Environmental Issues During the Second Session of the 108th Congress and Related Administrative Actions
July 15, 2004
Michael Galano - Washington
Introduction
The Second Session of the 108th Congress began on January 20, 2004. As was the case in the First Session, Congress has not undertaken any wholesale reforms of any major environmental law. Instead, most of the action has taken place on the agency level in the regulatory arena.
New EPA Administrator
On October 28, 2003, the Senate confirmed Utah Governor Michael Leavitt to be Administrator of the U.S. Environmental Protection Agency (EPA). The Senate voted 88-8 to confirm Leavitt after six Democrats withdrew their holds on the nomination. Governor Leavitt replaces former New Jersey Governor Christine Todd Whitman who resigned as EPA Administrator effective June 27, 2003. Governor Leavitt was sworn in on November 6, 2003 by President Bush. At his swearing in ceremony, Governor Leavitt explained that his approach to environmental management can be captured in one word: “balance.” The Governor stated, “[w]e need to balance the needs of the environment and the needs of humanity ... and balance the needs of this generation and the next.”
Fiscal Year 2005 Presidential Budget
President Bush’s fiscal year 2005 budget proposal would reduce funding for the EPA by 8.9 percent over fiscal year 2004. Specifically, the proposed $7.6 billion in budget authority for the agency is $745 million less than in fiscal 2004. Discretionary budget authority for fiscal year 2005 would be $7.8 billion, $606 million less than the current level of $8.4 billion. The Agency’s decrease in budget authority is primarily a result of reductions in grants and loans to states and tribes for air and water pollution control projects. President Bush proposed a reduction in the Clean Water State Revolving Fund, which helps states build and improve their sewer systems, from $1.3 billion in fiscal 2004, to $850 million for the next fiscal year. President Bush requested $1.4 billion for Superfund cleanups, an increase of nearly 10 percent from fiscal 2004 funding. Congress is currently reviewing the Presidential budget submission. The current federal fiscal year ends September 30, 2004.
New Wetlands Proposal
On April 22, 2004, President Bush unveiled a wetlands preservation plan. The President announced a new national goal – moving beyond a policy of “no net loss” of wetlands to have an overall increase of wetlands in America each year. The President’s goal is to create, improve and protect at least three million wetland acres over the next five years in order to increase overall wetland acres and quality. To meet this goal, the President called on Congress to pass his fiscal year 2005 budget request, which includes $4.4 billion for conservation programs that include funding for wetlands – an increase of $1.5 billion (53 percent) over fiscal year 2001. The fiscal year 2005 budget proposes to spend $349 million on two wetlands programs – the Wetlands Reserve Program and the North American Wetlands Conservation Act Grants Program – which is an increase of more than 50 percent over fiscal year 2001 for those two programs.
• Through a combined effort, the Departments of the Interior, Agriculture and Transportation, EPA, Army Corps of Engineers and NOAA will do the following over the next five years:
– restore and create at least 1 million acres of wetlands
– improve the quality of at least 1 million acres of wetlands
– protect at least 1 million acres of wetlands
• Better tracking of wetland programs includes the following:
– complete the next National Wetlands Inventory by the end of 2005, instead of the current 2010 due date, and move to more frequent reviews beginning in 2006
– improve interagency coordination on remote sensing and ground level data collection on gain, loss and quality
– gain further experience and develop useful protocols for measuring wetland outcomes
Endangered Species Act Reform
Congress has not attempted to make any major revisions to the Endangered Species Act (ESA) during the Second Session of the 108th Congress. The main issues which have been discussed, include how the ESA impacts military readiness and how to promote sound science in the implementation of the ESA. On April 28, 2004, the House Committee on Resources held a hearing on H.R. 2933, the “Critical Habitat Reform Act of 2003.” The bill, sponsored by Rep. Dennis Cardoza (D-CA), would amend the Endangered Species Act of 1973 to reform the process for designating critical habitat. It is unlikely this bill will be enacted during this Congress.
Specifically, H.R. 2933 would do the following:
• amend the Endangered Species Act of 1973 to require the process for designating critical habitat to be practicable, economically feasible and concurrent with the approval of a recovery plan for a species
• prohibit the Secretary of the Interior from designating an area as critical habitat of a species, and any designation of critical habitat of a species from applying to an area, if the area is subject to one of the following:
• a habitat conservation plan that the Secretary determines provides protection for habitat of the species that is substantially equivalent to the protection that would be provided by such designation
•a state or federal land conservation program that provides such protection
• direct the Secretary, in determining whether an area is critical habit, to seek, and if available, consider information from local governments in the vicinity of the area, including local resource data maps
• specify factors for consideration of the economic impact on landowners under the Act, including lost revenues and costs associated with preparing reports, surveys and analyses
• modify the contents of the required notice of proposed designation of critical habit to include any municipality having administrative jurisdiction over the area in which the species is believed to occur
• require the Secretary, with respect to a regulation to designate or revise a designation of critical habitat, to do both of the following:
– maintain, on a publicly accessible Internet page of the Department of the Interior, geographical information system maps and coordinates of the area
– include in such notice a reference to the Internet page
BRAC 2005
In January 2004, the Pentagon began gathering information from 425 domestic military bases to start determining which bases might be closed. An independent commission on base realignment and closure (BRAC) was scheduled to be appointed in 2005 to complete a list of bases to cut, which Congress will then have to consider on an all-or-nothing vote. The House of Representatives recently passed legislation that would delay the BRAC commission by two years. The Senate has not yet acted on the matter. The White House has indicated that the President would veto any legislation that would delay the BRAC process. Environmental issues are playing a prominent role in the current debate since one of eight criteria for shutting down bases is “the environmental impact, including the costs related to potential environmental restoration, waste management and environmental compliance activities.”
For more information, contact Michael Galano via e-mail at michael.galano@hklaw.com or call toll free, 1-888-688-8500.