October Federal Update: Appropriations


Congress has passed a stopgap spending measure intended to keep the government operating past the end of FY 2005, and Bush signed it in the waning hours of FY 2005, which ended at midnight, September 30. The resolution (HJR 68) will keep the government running through Nov. 18. Although most House Democrats backed the stopgap spending plan, they took the opportunity to highlight growth in the federal budget deficit. Minority Whip Steny H. Hoyer, D-MD, said he was voting for the measure because a government shutdown was unacceptable. “However, our enactment of this legislation must not be construed as an exoneration of the sheer fiscal mismanagement of this Republican Congress,” he said, noting that the GOP “obsession with tax cuts at a time of war and its unwillingness to make hard choices” has led to huge budget deficits. The stopgap measure prohibits agencies from initiating or resuming programs not funded in FY 2005 and from awarding new grants, (though there is an exception for activities in Iraq). The stopgap measure sets spending for other programs at the FY 2005 rate, the House-passed level for FY 2006 or the Senate-passed level, whichever is lowest. Sen. Robert Byrd, D-WV, said, “Here we go again, yes, here we go again. This is deja vu all over again. Is this the way to run a government? It is unfortunate that most of the regular programs of the departments and agencies of government will limp into the new fiscal year, under the terms of a very restrictive continuing resolution.”

Although House and Senate leaders had vowed to complete the budget process soon after Congress returned from its August recess, they were able to blame delay on the hurricanes in the Gulf. Congress passed two emergency spending measures (H.R. 3645 and H.R. 3673) totaling close to $62 billion to fund relief efforts along the Gulf Coast, and a third emergency spending bill is expected by mid-October. Environmentalists fear that this third bill, which could run as high as $100 billion, could include waivers to environmental laws and regulations, such as those proposed in a bill (S. 1711) drafted by Sen. Inhofe, R-OK, chair of the Environment and Public Works Committee, that would allow the EPA to temporarily suspend environmental laws when responding to the hurricanes.


The Interior bill has been signed by Bush and results have been reported to NWIFC. While there has been speculation that an across the board reduction might be made in that bill, such action would require that it be opened up again, and there is doubt there would be enough congressional will to do that. Unfortunately, the damage has probably been done. The Senate has taken action on the Commerce bill (the House passed its bill last month), which includes Coastal Salmon Recovery Fund monies. While no recent report on the level of this funding has been received, it is probably safe to assume that the level is $90 million, as the Senate appropriation committee reported. That means the difference will have to be worked out in conference, but with things more or less on hold, it is uncertain if there will be negotiation on individual bills or if there will be an omnibus bill.

TFW/FFR–$1.737 million, down from $3.04 million in FY ’05; Mass Marking–$1 million, up from $901.000 last year, but shy of the $1.25 million anticipated to implement the second year of the work plan; Hatchery Reform–$500,000 for Long Live The Kings and HSRG, but zero for tribes; Hatchery Maintenance/Rehab–$637,000. I[ from $490,000 in FY ’05, but allocated from a national pool; Coordinated Water—Earmark not funded this year, as was the case in FY ’05; Shellfish Settlement—The settlement fund did not receive anything this year (Interior’s slowness in developing consent decree language kept appropriators from allocating a $2 million amount for the first year of this deal. Work is ongoing to get this moving, and to make appropriate adjustments in state budget language.)

Commerce, State, Justice and Judiciary: CSRF—Funded at $50 million by House, but (assumed) $90 million by Senate. Groundfish: There is no mention of groundfish funding from either house.


The first Monday in October, John Roberts convened the United States Supreme Court as Supreme Justice, having been confirmed by the Senate. Bush wasted no time appointing Harriet Miers, a fellow Texan and White House Counsel, to fill the post left by resigning Justice Sandra Day O’Connor. Miers, who has served in her White House Counsel post for five years, has been a practicing member of the bar for 30 years. Her appointment was hailed by congressional leaders Sen. Bill Frist, R-TN, Senate Majority Leader; Sen Arlen Specter, R-PA, Judiciary Chair and Sen. Ted Stevens, R-AK, President Pro Tempore and she was assured that her confirmation process will be dignified, civil and quick. Miers is a long-time political appointee, campaign counsel, personal lawyer and Bush loyalist who has never served as a judge. Some Democratic congressman expressed relief in the nomination, saying it could have been much worse. Others responded that in the wake of the (now Ex-FEMA Director) Michael Brown crisis, the lesson should have been learned that vital national positions must be filled with qualified candidates, not political friends with limited experience. With such a thin public record, they said, how can Americans know Harriet Miers’ approach to critical issues like corporate power, privacy and civil rights? In a nutshell, Miers is a graduate of Southern Methodist University Law School who worked in private practice, served as President of the Dallas Bar Association, and State Bar Board of Directors, served a term on the Dallas City Council, worked as counsel for the Bush gubernatorial campaign, headed the Texas Lottery Commission, represented Bush and Cheney in a lawsuit stemming from their dual residency in Texas while running in the presidential primary, served as staff secretary for Bush in the White House, was promoted to Deputy Chief of Staff in 2003 and selected White House Counsel in 2004.


A Texas grand jury has indicted House Majority Leader Rep. Tom DeLay, R-TX and two political associates on charges of conspiracy in a campaign finance scheme, forcing him to “temporarily” relinquish his post, though he expects to continue a GOP leadership role without the Majority Leader title. More recently, DeLay was also indicted on money laundering. DeLay insists he is innocent and calls the prosecutor a “partisan fanatic.” House Whip Roy Blunt, R-MO, was elected to fill the spot. The indictment had been rumored for weeks among top Republicans, but it has stunned the GOP and posed new problems for the party as it heads into the midterm elections next year. The indictment, which comes after three rebukes of DeLay in 2004 by the House ethics committee on unrelated matters, poses a major political problem for the 58-year-old Bush loyalist, 11-term congressman, and self-described champion of free enterprise and deregulation. DeLay is also likely to face an inquiry by the ethics committee into a series of foreign trips he took partly paid for by lobbyists. The indictment alleges that DeLay participated in a conspiracy to funnel corporate money into the 2002 state election “with the intent that a felony be committed.” House Democratic Leader Nancy Pelosi of California said, “The criminal indictment of Majority Leader Tom DeLay is the latest example that Republicans in Congress are plagued by a culture of corruption at the expense of the American people.”


The Threatened and Endangered Species Recovery Act of 2005 (TESRA, HR 3824), sponsored by Rep. Richard Pombo, R-CA, has passed the House, posing one of the most far-reaching reversals of environmental policy in history. Pombo, a former rancher, has made property rights and opposition to ESA the lodestar of his political career. Under his bill, the process of listing a species under ESA would become more difficult, saddling such efforts with new economic analysis requirements. But the bill’s core provision eliminates the current system of designating “critical habitat,” territory deemed critical to species’ survival. Such designation can open the door to significant land-use restrictions. But the designation of critical habitat is obviously a crucial prerequisite to the survival and eventual recovery of endangered species. The bill would create “recovery teams” that prepare “recovery plans” based on “the best available scientific data.” The teams could delineate lands that would help a species survive. Federal agencies would be less obligated to take a species’ needs into account in making land-use decisions. The legislation also has provisions for the reimbursement of property owners whose land values are reduced by the law and financial incentives for those who work for species conservation, which several Democrats derided as federal payments for obeying the law. Pombo argued that under current law, federal wildlife management agencies had little incentive to negotiate. “With this bill, there is a cost,” he said. “So the incentive is there not just for the property owner but for the Fish and Wildlife Service to work out a deal.” The fate of such legislation in the Senate is more uncertain. Senate Environment and Public Works Fisheries, Wildlife and Water Subcommittee Chairman Lincoln Chafee, R-R.I., has held hearings on the act. NWIFC Chairman Billy Frank, Jr. testified at one recently (printed statement available on request). Chafee might not support or introduce his own version until early 2006. However, Environment and Public Works Chairman James Inhofe, R-OK, wants to have legislation through his committee this fall-which might mean competing efforts between the two republicans on the legislation.


Several Republican lawmakers have renewed efforts to loosen environmental regulations, and open protected areas to oil drilling, in the name of post-Hurricane Katrina recovery. Environmentalists counter that drilling will do nothing to soften the blow of Katrina on domestic oil production, while bypassing environmental laws will only cause more harm. Senate Environment and Public Works Committee Chairman Senator James Inhofe, R-OK, has prepared legislation to allow EPA to waive environmental regulations for 120 days if it “is necessary to respond, in a timely and effective manner, to a situation or damage related to Hurricane Katrina.” EPA released a statement last week supporting Inhofe’s bill: “As we respond to Katrina, we anticipate situations where additional legal authority would help us facilitate more timely cleanup and reconstruction of areas devastated by the hurricane.”

Inhofe warned in a statement that, “Those who seek to criticize this legislation under the guise of environmental concerns have it backwards as the use of the authority is specifically to protect public health.” But Inhofe’s plan has been widely criticized by both environmentalists and some congressional colleagues. Sen. Jim Jeffords, I-VT, who sits on the Environment and Public Works Committee, “If adopted, this waiver could undermine public health protections. We should be focusing our energy on protecting the health and safety of people impacted by this hurricane, not paving the way for an environmental disaster.” Prompting further concern from the environmental community is a proposal by House Energy and Commerce Committee Chairman, Joe Barton, R-TX, to drill in the Alaska National Wildlife Refuge (ANWR) and off the coasts of several states to help fill the “oil gap.” With nearly 1.5 million barrels per day coming out of the Gulf Coast, the region accounts for approximately 29 percent of U.S. oil production. Barton’s solution is to drill in ANWR and increase offshore drilling in other states. “Twenty-five percent of our domestic oil production is in the Gulf of Mexico. It doesn’t have to be that way. We could be drilling in Alaska right now. We could be drilling off the coasts of several other states,” said Barton.


The Bush Administration has released a new proposal to reauthorize the Magnuson-Stevens Fishery Conservation and Management Act. The bill contains key elements to implement Bush’s 2004 Ocean Action Plan and calls for a hard deadline to end over-fishing. “The commercial and recreational fishing industries are vital to the health of our economy,” said Commerce Secretary Carlos M. Gutierrez. “For over 30 years, Magnuson-Stevens has been our guide for wise stewardship of the nation’s fisheries resources and helped the U.S. become a world leader in marine science and conservation as a result. The new bill seeks to ensure that fisheries management decisions are based on proven, peer-reviewed scientific information, encourages fishery managers to use market-based management (such as dedicated access privileges, where appropriate) to make fishing safer and more profitable, calls for tougher fines and penalties for those who break fisheries laws, requires an end to over-fishing practices, establishes a national saltwater angler registry to ensure that recreational catches are better counted for scientific assessments and management purposes, and elevates the importance of ecosystem-based management by authorizing the regional fishery management councils to develop ecosystem plans.

Building on the commitment in the U.S. Ocean Action Plan, to promote greater use of market-based systems for fisheries management, Secretary Gutierrez pledged to work with the Fishery Management Councils to double the number of dedicated access privileges programs by 2010. The goal is to bring eight new fisheries under market-based management programs. In the eight fisheries where dedicated access privileges have been implemented since 1990, fishermen have enjoyed higher profits, lower costs, longer fishing seasons and a safer, more stable industry. “Oceans are important to everyone and one of our highest priorities is to create a vibrant well managed fishery system that can provide healthy food and good jobs to Americans for generations to come,” said Chairman Jim Connaughton, White House Council on Environmental Quality. “These new tools will help us toward ending over-fishing and rebuilding our fish stocks.” For a copy of the new proposal, along with the press release and a section-by-section analysis, please go here.


The House passed recently a bill (H.R. 889) authorizing additional personnel and equipment for the Coast Guard to cope with hurricane relief. The bill contains language included by Rep. Young, R-AK, chair of the House Transportation and Infrastructure Committee, that would insert a new hurdle into the process of approving offshore wind energy projects by requiring the head of the Coast Guard to submit a written opinion as to whether offshore wind projects would affect ship traffic and navigation.


Congress has extended a funding element for the North American Wetlands Conservation Act (NAWCA). NAWCA provides federal cost-share funding for habitat conservation projects for waterfowl and other migratory birds. A key federal funding mechanism for the act is set to expire soon. Chairman of the Environment and Public Works Committee, Senator Jim Inhofe, R-OK, sponsored legislation to renew the funding source and worked to pass it quickly in the U.S. Senate. Chairman of the House Resources Committee, Richard Pombo, R-CA, and former House Majority Leader Tom DeLay, R-TX, made sure the bill was quickly put before the House where it passed unanimously. The legislation now goes to the White House where presidential approval is expected. “NAWCA is an important and cost-effective conservation program and action was needed to ensure its continued success,” said Senator Inhofe. “The extension of the Pittman-Robertson funding element for NAWCA will ensure that our wetlands and wildlife habitat will benefit from on-the-ground conservation for years to come.” The enactment of NAWCA in 1989 provides that the money hunters pay to state wildlife agencies under the Pittman-Robertson program be invested. Interest from the investment is to be used to help fund the wetlands habitat projects carried out under NAWCA.


In spite of its opposition to the Native American Fish and Wildlife Management Act last year, the U.S. Fish and Wildlife Service has issued a statement that it’s open to cooperative agreements with tribes but says it needs new federal legislation to do it, via an amendment to the Fish and wildlife improvement act of 1978. (The agency says this would require modification of U.S.C. 742L; 92 Stat. 3110, specifically changing the language in paragraph 2 to read: “State, Tribe or other Federal agencies”). This act authorizes the Secretaries of the Interior and Commerce to establish, conduct, and assist with national training programs for state fish and wildlife law enforcement personnel. It also authorizes funding for research and development of new or improved methods to support fish and wildlife law enforcement. It provides authority to the federal agency secretaries to enter into law enforcement cooperative agreements with state or other federal agencies, and authorizes the disposal of abandoned or forfeited items under the fish, wildlife, and plant jurisdictions of these secretaries. It also strengthens the law enforcement operational capability of USFWS.