Capital Report

Supreme Court Makes Decision On WOTUS Challenge Jurisdiction

In January, the U.S. Supreme Court issued a decision concerning rule-making over the definition of “waters of the United States” (“WOTUS”) under the Clean Water Act (CWA), or the WOTUS Rule. According to Van Ness Feldman, the WOTUS Rule, which redefined jurisdictional “waters of the United States” under the CWA, has far-reaching implications for project development across energy, water, agricultural, construction and transportation sectors.

Although the Supreme Court’s decision merely resolves a jurisdictional dispute between the federal courts of appeals and the federal district courts over which court has jurisdiction to hear challenges to the WOTUS Rule, the decision will result in the lifting of the existing stay of the WOTUS Rule, opening the door to disparate approaches to jurisdictional determinations under the CWA across the country.

The decision has significant implications for the fate of the WOTUS Rule and how federal agencies review permit applications that may affect jurisdictional waters under the WOTUS Rule. In particular, the numerous legal challenges to the WOTUS rule that were previously raised in district courts are likely to resume, but pending resolution of those challenges, implementation of the WOTUS Rule—which expands federal control over several types of water bodies—would be legally permissible.


Five Recipients Get Ocean Awareness Awards

The National Marine Sanctuary Foundation announced more than $140,000 in Ernest F. Hollings Ocean Awareness Awards to protect endangered species, engage children in science and increase awareness about U.S. national marine sanctuaries.

The foundation selected five recipients for this year’s awards. Two projects—Space to Sea: A Photographic Journey into Stellwagen Bank National Marine Sanctuary and Robust Citizen Science Data for West Coast National Marine Sanctuaries—support the foundation’s goal to inspire stewardship of natural and cultural resources through U.S. marine and Great Lakes sanctuaries.

Three projects, funded with support from NOAA’s National Marine Fisheries Service—School and Community Leatherback Sea Turtle Project, Killer Whale Tales: Kids Making a Difference Now, and Global Action Explorers: Empowering Students for Action on Ocean Acidification—bring awareness to endangered and protected marine species, in partnership with NOAA’s Species in the Spotlight initiative.


BOEM Issues Guide for Offshore Wind Design Approach

The U.S. Bureau of Ocean Energy Management (BOEM) now has draft guidelines for the use of a “design envelope” approach in construction and operations plans for offshore wind energy facilities in the U.S. In order to take advantage of the rapid pace of technological development in the offshore wind industry, offshore wind developers have asked BOEM to adopt this practice, which is standard in some European countries, for permitting offshore wind energy projects. This would afford developers a degree of flexibility and allow them to make certain project design decisions—such as which turbines to use—at a more commercially advantageous time later in the project development process.

Last August, the Trump Administration announced Executive Order 13807 to streamline the review and permitting of infrastructure projects. The design envelope approach would allow BOEM to analyze the environmental impacts of the proposed project in a manner that could reduce or eliminate the need for subsequent environmental and technical reviews. The use of a design envelope is not mandatory. Design envelopes are an optional tool for prospective developers.


Trump Acknowledges Need To Invest in US Ports

In his first State of the Union address, U.S. President Donald Trump called on Congress to pass an infrastructure bill that generates $1.5 trillion in infrastructure investments and streamlines permitting for major capital projects from 10 to two years, or possibly less.

In his focus on America’s “crumbling infrastructure,” the president placed a heavy emphasis on safe, reliable, modern transportation infrastructure, including roads, bridges, highways, railways and waterways.

He also talked about two other issues important to ports: international trade deals and investing in workforce development and training.

Seaport cargo activity accounts for 26 percent of U.S. GDP and more than 23 million American jobs, and generates more than $320 billion annually in federal, state and local tax revenues. The American Association of Port Authorities (AAPA) has identified $66 billion in federal port-related infrastructure investments over the next 10 years. These federal investments are necessary to supplement the approximately $155 billion in capital improvements that U.S. port authorities and their private sector partners are planning between 2016 and 2020.


Trump Announces Pick For USGS Director

U.S. President Donald Trump has nominated Dr. James Reilly of Colorado to be director of the United States Geological Survey (USGS). Reilly currently serves U.S. and allied militaries as an expert on space operations, and he is a technical advisor supporting the National Security Space Institute of the U.S. Air Force. Previously, Reilly held management positions in academia, as well as at TAEUS Corp. and PhotoStencil Corp. in Colorado Springs. He had a 13-year career at NASA. Prior to NASA, he was chief geologist at Enserch Exploration Inc., working projects around the world, including in Antarctica and on the continental slope of the Gulf of Mexico.


Timothy Gallaudet Confirmed As NOAA Assistant Secretary

U.S. President Donald Trump’s nominee for assistant secretary of NOAA, Dr. Timothy Gallaudet, has been confirmed by the Senate.

Gallaudet is a rear admiral in the U.S. Navy whose most recent assignment was oceanographer of the Navy and commander of the Navy Meteorology and Oceanography Command. During his 32 years of service, Gallaudet has had experience in weather and ocean forecasting; hydrographic surveying; developing policy and plans to counter illegal, unregulated and unreported fishing; and assessing the national security impacts of climate change.

Gallaudet holds a bachelor’s degree from the U.S. Naval Academy and master’s and doctoral degrees from Scripps Institution of Oceanography in oceanography.


$9.8 Million in Grants For US Small Shipyards

The U.S. Department of Transportation’s Maritime Administration (MARAD) awarded $9.8 million to 18 U.S. small shipyards through its Small Shipyard Grant Program. These investments support industrial modernizations that will increase productivity and allow the country’s small shipyards to compete more effectively in the global marketplace. The grants, which were primarily available to U.S. shipyards with less than 600 production employees, are generally less than $1 million each, but can make a huge difference in a shipyard’s bottom line.


US House FY 2018 Science Appropriations Bill Includes Ocean Research Funding

Rep. Suzanne Bonamici (D-Ore.), co-chair of the bipartisan Oceans Caucus, announced that her provisions to increase funding for research and monitoring of harmful algal blooms (HABs) and ocean acidification were included in the House bill to set funding levels for fiscal year (FY) 2018.

The two amendments were added to the Commerce, Justice, and Science Appropriations Bill. One amendment increases funding for NOAA’s National Ocean Service to do coastal monitoring and assessment of HAB, which can lead to toxins that shut down shellfish harvests. The other amendment increases funding for NOAA’s ocean acidification program to help coastal communities.


DEEP SEARCH Study of Deep Ocean Off US Southeast Coast

The Bureau of Ocean Energy Management (BOEM), the U.S. Geological Survey (USGS) and NOAA are collaborating on a new 4.5-year study that will shed light on little-known natural resources of the deep ocean off the U.S. Southeast coast, DEEP SEARCH (Deep Sea Exploration and Research of Coral/Canyon/Seep Habitats), NOIA reported. The research is organized through the National Oceanographic Partnership Program (NOPP), with TDI-Brooks International Inc. as the prime contractor for BOEM, and scientists from USGS and seven academic institutions participating. There are three planned collaborative deep-sea expeditions over the next three years. BOEM will obtain new scientific data to inform environmental reviews and offshore energy decisions; USGS and NOAA will gain new scientific understanding of the region’s physical and biological resources.


NRDC Report Seeks Clean Energy Scenario For US by 2050

In the face of U.S. President Donald Trump’s climate retreat, the Natural Resources Defense Council (NRDC) released an ambitious blueprint to dramatically increase energy efficiency, cut greenhouse gas pollution 80 percent from 1990 levels, raise wind and solar power generation to 70 percent, and usher in a clean energy future for the U.S. by 2050.

“America’s Clean Energy Frontier: The Pathway to Safer Climate Future” report relies on existing technologies and envisions curtailing energy use 50 percent through efficiency and electrification gains; raising fuel economy of gasoline-powered cars to 80 mi. per gallon (and 100 mpg for fleetwide); expanding wind and solar energy 13-fold; strengthening the electricity grid; electrifying buildings and cars to run with renewable energy; and a steep decline in nuclear power by 2050 through plant retirements.

Health and environmental benefits of the plan would include less extreme weather, heat waves and climate-induced illnesses.


Zinke Wants to Decrease Protected Sites And Allow Commercial Use

A copy of U.S. Secretary of the Interior Ryan Zinke’s secret recommendations for the nation’s monuments and sanctuaries under review was obtained by The Washington Post and Wall Street Journal. According to the memo, Zinke is recommending shrinking the borders of six monuments and ocean preserves and opening up four others to uses such as commercial fishing, logging and coal mining.

Rose Atoll near American Samoa and the Pacific Remote Islands west of Hawaii monuments would see their size reduced to allow for commercial fishing. For the Northeast Canyons and Seamounts National Monument off the coast of Cape Cod, Massachusetts, Zinke is recommending modifying its management plan to allow for commercial fishing there as well.

New Industry Association Hires Lobby for Ocean Businesses

IOSTIA, the International Ocean Science and Technology Industry Association is a new 501(c)(6) industry association representing businesses that provide technology and services for sectors that sustainably and commercially utilize the oceans.

It has engaged the bipartisan government relations and lobbying firm to plan and implement an aggressive public policy program aimed at Capitol Hill and the regulatory agencies in an effort to provide a unified industry voice in Washington, D.C.

With nearly two-thirds of blue-tech companies located outside of North America, this new industry association will also be international in scope and substance. The IOSTIA government relations plan will be heavy on engaging the foreign embassies located in Washington to assist international companies entering the U.S. economic and regulatory markets.