Sec. 1007. Environment and public health restoration

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The Congress finds as follows: As human beings, we share our environment with a wide variety of habitats and ecosystems that nurture and sustain a diversity of species. The abundance of natural resources in our environment forms the basis for our economy and has greatly contributed to human development throughout history. The accelerated pace of human development over the last several hundred years has significantly impacted our natural environment and its resources, the health and diversity of plant and animal wildlife, the availability of critical habitats, the quality of our air and our water, and our global climate.

The intervention of the Federal Government is necessary to minimize and mitigate human impact on the environment for the benefit of public health, to maintain air quality and water quality, to sustain the diversity of plants and animals, to combat global climate change, and to protect the environment. Laws and regulations in the United States have been created and promulgated to minimize and mitigate human impact on the environment for the benefit of public health, to maintain air quality and water quality, to sustain wildlife, and to protect the environment.

Such laws include the Antiquities Act of 1906 ( 16 U.S.C. 431 et seq. ) initiated by President Theodore Roosevelt to create the national park system, the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ), the Clean Air Act ( 42 U.S.C. 7401 et seq. ), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( Public Law 96–510 ), the Endangered Species Act of 1973 ( Public Law 93–205 ), and the National Forest Management Act of 1976 ( Public Law 94–588 ).

Attempts to repeal or weaken key environmental safeguards pose dangers to the public health, air quality, water quality, wildlife, and the environment. The Congress finds that, since 2001, the following changes and proposed changes to existing law or regulations have negatively impacted or will negatively impact the environment and public health: On May 9, 2002, the Environmental Protection Agency

(EPA)and the Army Corps of Engineers put forth a final rule that reconciled regulations implementing section 404 of the Federal Water Pollution Control Act by redefining the term fill material and amending the definition of the term discharge of fill material , reversing a 25-year-old regulation. The new rule fails to restrict the dumping of hardrock mining waste, construction debris, and other industrial wastes into rivers, streams, lakes, and wetlands. The rule further allows destructive mountaintop removal coal mining companies to dump waste into streams and lakes, polluting the surrounding natural habitat and poisoning plants and animals that depend on those water sources. On February 12, 2003, the Environmental Protection Agency published the rule National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations , new livestock waste regulations that aimed to control factory farm pollution but which would severely undermine existing protections under the Federal Water Pollution Control Act. This regulation allows large-scale animal factories to foul the Nation’s waters with animal waste, allows livestock owners to draft their own pollution-management plans and avoid ground water monitoring, legalizes the discharge of contaminated runoff water rich in nitrogen, phosphorus, bacteria, and metals, and ensures that large factory farms are not held liable for the environmental damage they cause. In a 2005 Federal court decision ( Waterkeeper Alliance, et al. v. Enviromental Protection Agency , 399 F.3d 486 (2nd Cir. 2005)), major parts of the rule were upheld, others vacated, and still others remanded back to the EPA. On November 20, 2008, the Environmental Protection Agency published a revised final rule which undermines environmental protection provisions by removing mandatory permitting requirements and allowing large animal farms to self-certify the absence of pollutant discharge activity. On March 19, 2003, the Environmental Protection Agency published a new rule regarding the Total Maximum Daily Load program of the Federal Water Pollution Control Act that regulates the maximum amount of a particular pollutant that can be present in a body of water and still meet water quality standards. The new rule withdrew the existing regulation put forth on July 13, 2000, and halted momentum in cleaning up polluted waterways throughout the Nation. By abandoning the existing rule, the Environmental Protection Agency is undermining the effectiveness of cleanup plans and is allowing States to avoid cleaning polluted waters entirely by dropping them from their cleanup lists. Waterways play a crucial role in the lives of the people of the United States and are critical to the livelihood of fish and wildlife. The result of dropping the July 2000 rule is that the restoration of polluted rivers, shorelines, and lakes will be delayed, harming more fish and wildlife and worsening the quality of drinking water. On December 2, 2008, the Environmental Protection Agency and the Army Corps of Engineers jointly issued a guidance document in the form of a legal memorandum, titled Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States . This new guidance dictates enforcement actions under the Federal Water Pollution Control Act and calls for a complicated case-by-case analysis to determine jurisdiction for waterways that do not flow all year. Such actions endanger small streams and wetlands that serve as important habitats for aquatic life, which play a fundamental role in safeguarding sources of clean drinking water and mitigate the risks and effects of floods and droughts. Further, the definition provided therein for waters of the United States is applicable to the Federal Water Pollution Control Act as a whole, potentially affecting programs that control industrial pollution and sewage levels, prevent oil spills, and set water quality standards for all waters in the United States protected under the Federal Water Pollution Control Act. On December 3, 2003, the President signed into law the Healthy Forests Restoration Act of 2003 ( Public Law 108–148 ; 16 U.S.C. 6501 et seq. ). Although the law attempts to reduce the risk of catastrophic forest fires, it provides a boon to timber companies by accelerating the aggressive thinning of backcountry forests that are far from at-risk communities. The law allows for increased logging of large, fire-resistant trees that are not in close proximity of homes and communities; it undermines critical protections for endangered species by exempting Federal land management agencies from consulting with the United States Fish and Wildlife Service before approving any action that could harm endangered plants or wildlife; and it limits public participation by reducing the number of environmental project reviews. On April 21, 2008, the Department of Agriculture issued a Final Planning Rule and Record of Decision for National Forest System Land Management Planning. Similar to rules enacted by the Administration on January 5, 2005, later remanded back to the agency in Federal district court for violating the National Environmental Policy Act of 1969, the Endangered Species Act of 1973, and the Administrative Procedure Act ( Citizens for Better Forestry v. United States Department of Agriculture , 481 F. Supp. 2d 1059 (N.D. Cal. 2007)), this revised rule eliminates strict forest planning standards established in 1982, and opens millions of acres of public lands to damaging and invasive logging, mining, and drilling operations. These regulations would reverse more than 20 years of protection for wildlife and national forests by removing the overall goal of ensuring ecological sustainability in managing the national forest system, weakening the National Forest Management Act of 1976, and effectively ending the review of forest management plans under the National Environmental Policy Act of 1969. On September 20, 2006, the District Court for the Northern District of California vacated the Protection of Inventoried Roadless Areas rule, enacted on May 13, 2005, which gave State Governors 18 months to petition the Federal Government to either restore the previous rule for their States, or submit a new management and development plan for national forest areas inventoried under the rule. Despite the enjoinment of the Administration’s 2005 rule, and the subsequent restoration of the original Roadless Area Conservation Rule, the United States Forest Service has continued to allow States to petition for a special rule under the authority of the Administrative Procedure Act, publishing a final special rule for Idaho on October 16, 2008. As a result, 58.5 million acres of wild national forests are still vulnerable to logging, road building, and other developments that may fragment natural habitats and negatively impact fish and wildlife. On November 17, 2008, the Department of the Interior’s Bureau of Land Management

(BLM)signed the Record of Decision

(ROD)amending 12 resource management plans in Colorado, Utah, and Wyoming, opening 2,000,000 acres of public lands to commercial tar sands and oil shale exploration and development. On November 18, 2008, the BLM published a final rule for Oil Shale Management setting the policies and procedures for a commercial leasing program for the management of federally owned oil shale in those three States. Previously barred by a congressional moratorium on the commercial leasing regulations for oil shale until September 30, 2008, the development of oil shale on public lands poses a serious threat to land conservation, endangered and threatened species, and critical habitat. Domestic shale oil production allowed by these regulations is highly water and energy intensive, the impacts of which will intensify existing water scarcity in the arid Western Region and potentially degrade air and water quality for surrounding populations. On December 16, 2008, the United States Fish and Wildlife Service of the Department of the Interior and the National Oceanic and Atmospheric Administration of the Department of Commerce jointly issued a new rule amending regulations governing interagency cooperation under section 7 of the Endangered Species Act of 1973 (ESA). This rule undermines the intention of the ESA to protect species and the ecosystems upon which they depend by allowing Federal agencies to carry out, permit, or fund an action without proper environmental review and expert third-party consultation from Federal wildlife experts. Under this new rule, Federal agencies can unilaterally circumvent the formal review process, eliminating longstanding and scientifically grounded safeguards that serve to protect the biodiversity of our Nation’s ecosystems and avert harm to thousands of endangered and threatened species. It is the policy of the United States Government to work in conjunction with States, territories, tribal governments, international organizations, and foreign governments in order to act as a steward of the environment for the benefit of public health, to maintain air quality and water quality, to sustain the diversity of plant and animal species, to combat global climate change, and to protect the environment for future generations to enjoy. Not later than 30 days after the date of enactment of this Act, the President shall enter into an arrangement under which the National Academy of Sciences will conduct a study to determine the impact on public health, air quality, water quality, wildlife, and the environment of the following regulations, laws, and proposed laws: Final revisions to the Federal Water Pollution Control Act regulatory definitions of fill material and discharge of fill material , finalized and published in the Federal Register on May 9, 2002 (67 Fed. Reg. 31129), amending part 232 of title 40, Code of Federal Regulations. Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations in response to the Waterkeeper Alliance, et al. v. Enviromental Protection Agency decision, finalized and published in the Federal Register on November 20, 2008 (73 Fed. Reg. 225), amending parts 9, 122, and 412 of title 40, Code of Federal Regulations. A March 19, 2003, rule published in the Federal Register (68 Fed. Reg. 13608) withdrawing a July 13, 2000, rule revising the Total Maximum Daily Load program of the Federal Water Pollution Control Act (65 Fed. Reg. 43586), amending parts 9, 122, 123, 124, and 130 of title 40, Code of Federal Regulations. Official Guidance Document, Clean Water Act Jurisdiction Following the United States Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States , issued on December 2, 2008, relating to jurisdiction under section 404 of the Federal Water Pollution Control Act. Healthy Forests Restoration Act of 2003, signed into law on December 3, 2003 ( Public Law 108–148 ; 16 U.S.C. 6501 et seq. ). National Forest System Land Management Planning Rule, finalized and published in the Federal Register on April 21, 2008 (73 Fed. Reg. 21468), replacing the 2005 final rule (70 Fed. Reg. 1022, Jan. 5, 2005), as amended March 3, 2006 (71 Fed. Reg. 10837) and the 2000 final rule adopted on November 9, 2000 (65 Fed. Reg. 67514) as amended on September 29, 2004 (69 Fed. Reg. 58055), amending title 36, Code of Federal Regulations, part 219. The application of the Administrative Procedure Act (5 U.S.C. 551 to 559, 701 to 706, et seq.), such that States may petition for a special rule for the roadless areas in all or part of said State. Record of Decision, Oil Shale and Tar Sands Resources Resource Management Plan Amendments , issued on November 17, 2008, along with the Final Rule, Oil Shale Management-General, published in the Federal Register on November 18, 2008 (73 Fed. Reg. 223), amending title 43, Code of Federal Regulations, parts 3900, 3910, 3920, and 3930. Final Rule, Interagency Cooperation Under the Endangered Species Act, published in the Federal Register on December 16, 2008, amending title 50, Code of Federal Regulations, part 402. In conducting the study under paragraph (1), the National Academy of Sciences may utilize and compare existing scientific studies regarding the regulations, laws, and proposed laws listed in paragraph (1). Under the arrangement entered into under paragraph (1), not later than 270 days after the date on which such arrangement is entered into, the National Academy of Sciences shall make publicly available and shall submit to the Congress and to the head of each department and agency of the Federal Government that issued, implements, or would implement a regulation, law, or proposed law listed in paragraph (1), a report containing— a description of the impact of all such regulations, laws, and proposed laws on public health, air quality, water quality, wildlife, and the environment, compared to the impact of preexisting regulations, or laws in effect, including— any negative impacts to air quality or water quality; any negative impacts to wildlife; any delays in hazardous waste cleanup that are projected to be hazardous to public health; and any other negative impact on public health or the environment; and any recommendations that the National Academy of Sciences considers appropriate to maintain, restore, or improve in whole or in part protections for public health, air quality, water quality, wildlife, and the environment for each of the regulations, laws, and proposed laws listed in paragraph (1), which may include recommendations for the adoption of any regulation or law in place or proposed prior to January 1, 2001. Not later than 180 days after the date on which the report is submitted pursuant to subsection (c)(3) , the head of each department and agency that has issued or implemented a regulation or law listed in subsection (c)(1) shall submit to the Congress a plan describing the steps such department or such agency will take, or has taken, to restore or improve protections for public health and the environment in whole or in part that were in existence prior to the issuance of such regulation or law.

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