ESTUARIES Act

— 420 — Mandate for Leadership: The Conservative Promise Subsequently, especially during the Obama Administration, EPA experienced massive growth as it was used to pursue far-reaching political goals to the point where its current activities and staffing levels far exceeded its congressional man- dates and purpose. This expansive status is entirely unnecessary: It has nothing to do with improving either the environment or public health. The EPA’s initial success was driven by clear mandates, a streamlined structure, recognition of the states’ prominent role, and built-in accountability. Fulfilling the agency’s mis- sion in a manner consistent with a limited-government approach proved to be extremely effective during the agency’s infancy. Back to Basics. EPA’s structure and mission should be greatly circumscribed to reflect the principles of cooperative federalism and limited government. This will require significant restructuring and streamlining of the agency to reflect the following: l State Leadership. EPA should build earnest relationships with state and local officials and assume a more supportive role by sharing resources and expertise, recognizing that the primary role in making choices about the environment belongs to the people who live in it. l Accountable Progress. Regulatory efforts should focus on addressing tangible environmental problems with practical, cost-beneficial, affordable solutions to clean up the air, water, and soil, and the results should be measured and tracked by simple metrics that are available to the public. l Streamlined Process. Duplicative, wasteful, or superfluous programs that do not tangibly support the agency’s mission should be eliminated, and a structured management program should be designed to assist state and local governments in protecting public health and the environment. l Healthy, Thriving Communities. EPA should consider and reduce as much as possible the economic costs of its actions on local communities to help them thrive and prosper. l Compliance Before Enforcement. EPA should foster cooperative relationships with the regulated community, especially small businesses, that encourage compliance over enforcement. l Transparent Science and Regulatory Analysis. EPA should make public and take comment on all scientific studies and analyses that support regulatory decision-making. — 421 — Environmental Protection Agency ADMINISTRATOR’S OFFICE AND REORGANIZATION RESPONSIBILITY The Office of the Administrator (AO) is intended to provide executive and logistical support for the EPA Administrator. Its stated purpose is to support EPA leadership and activities. To implement policies that are consistent with a conservative EPA, the agency will have to undergo a major reorganization. The Deputy Chief of Staff for Policy position within the Administrator’s office should be renamed the Deputy Chief of Staff for Regulatory Improvement. This position would oversee a reorganization effort that includes the following actions: l Returning the environmental justice function to the AO, eliminating the stand-alone Office of Environmental Justice and External Civil Rights. l Returning the enforcement and compliance function to the media offices (air, water, land, and emergency management, etc.) and eliminating the stand-alone Office of Enforcement and Compliance Assistance, which has created a mismatch between standard-setting and implementation. l Using enforcement to ensure compliance, not to achieve extrastatutory objectives. l Developing a plan for relocating regional offices so that they are more accessible to the areas they serve and deliver cost savings to the American people. l Restructuring the Office of International and Tribal Affairs into the American Indian Environmental Office and returning the international liaison function to media offices where appropriate. l Eliminating the Office of Public Engagement and Environmental Education as a stand-alone entity and reabsorbing substantive elements into the Office of Public Affairs. l Relocating the Office of Children’s Health Protection and the Office of Small and Disadvantaged Business Utilization from the AO and reabsorbing those functions within the media offices (air, water, land, and emergency management, etc.). l Reviewing the grants program to ensure that taxpayer funds go to organizations focused on tangible environmental improvements free from political affiliation.

— 540 — Mandate for Leadership: The Conservative Promise 24. U.S. Department of the Interior, “Order No. 3354: Supporting and Improving the Federal Onshore Oil and Gas Leasing Program and Federal Solid Mineral Leasing Program, July 6, 2017, https://www.doi.gov/sites/doi.gov/ files/uploads/so_-_3354_signed.pdf (accessed March 16, 2023). 25. U.S. Department of the Interior, “Order No. 3355: Streamlining National Environmental Policy Reviews and Implementation of Executive Order 13807, “Establishing Discipline and Accountability in the Environmental Review and Permitting Process for Infrastructure Projects,” August 31, 2017, https://www.doi.gov/sites/doi.gov/ files/elips/documents/3355_-_streamlining_national_environmental_policy_reviews_and_implementation_ of_executive_order_13807_establishing_discipline_and_accountability_in_the_environmental_review_ and_permitting_process_for.pdf (accessed March 16, 2023). 26. U.S. Department of the Interior, “Order No. 3358: Executive Committee for Expedited Permitting,” October 25, 2017, https://www.doi.gov/sites/doi.gov/files/elips/documents/so_3358_executive_committee_for_ expedited_permitting_0.pdf (accessed March 16, 2023). 27. U.S. Department of the Interior, “Order No. 3360: Rescinding Authorities Inconsistent with Secretary’s Order 3349, “American Energy Independence,” December 22, 2017, https://www.doi.gov/sites/doi.gov/files/elips/ documents/3360_-_rescinding_authorities_inconsistent_with_secretarys_order_3349_american_energy_ independence.pdf (accessed March 16, 2023). 28. U.S. Department of the Interior, “Order No. 3380: Public Notice of the Costs Associated with Developing Department of the Interior Publications and Similar Documents,” March 10, 2020, https://www.doi.gov/sites/ doi.gov/files/elips/documents/so-3398-508_0.pdf (accessed March 16, 2023). 29. U.S. Department of the Interior, “Order No. 3385: Enforcement Priorities,” September 14, 2020, https:// www.doi.gov/sites/doi.gov/files/elips/documents/signed-so-3385-enforcement-priorities.pdf (accessed March 16, 2023). 30. U.S. Department of the Interior, “Order 3389: Coordinating and Clarifying National Historic Preservation Act Section 106 Reviews,” September 14, 2020, https://www.doi.gov/sites/doi.gov/files/elips/documents/signed- so-3385-enforcement-priorities.pdf (accessed March 16, 2023). 31. Bureau of Land Management, “Updating Oil and Gas Leasing Reform: Land Use Planning and Lease Parcel Reviews,” IM 2018–034, January 31, 2018, https://www.blm.gov/policy/im-2018-034 (accessed March 16, 2023). 32. Lease Now Act, S. 4228, 117th Cong., 2nd Sess. (2022). 33. ONSHORE Act, S. 218, 116th Cong., 2nd Sess. (2019). https://www.congress.gov/bill/116th-congress/senate- bill/218/text (accessed March 18, 2023). 34. Federal Register, Vol. 87, No. 130 (July 8, 2022), pp. 40859–40863. 35. The Biden Administration’s 2023–2028 proposed program is fatally flawed. Katie Tubb, “Comment for the 2023–2028 National OCS Oil and Gas Leasing Proposed Program,” BOEM–2022–0031, October 6, 2022, http:// thf_media.s3.amazonaws.com/2022/Regulatory_Comments/BOEM%202023-2028%20lease%20plan%20 comment%20KTubb.pdf (accessed March 16, 2023). 36. See Inflation Reduction Act of 2022, Public Law No. 117–169, §§ 50261–50263. 37. Tax Cuts and Jobs Act of 2017, Public Law No. 115–97, § 20001, and U.S. Department of the Interior, “Order No. 3401: Comprehensive Analysis and Temporary Halt on All Activities in the Arctic National Wildlife Refuge Relating to the Coastal Plain Oil and Gas Leasing Program,” June 1, 2021, https://www.doi.gov/sites/doi.gov/files/elips/ documents/so-3401-comprehensive-analysis-and-temporary-halt-on-all-activitives-in-the-arctic-national- wildlife-refuge-relating-to-the-coastal-plain-oil-and-gas-leasing-program.pdf (accessed March 16, 2023). 38. In 2016, Interior Secretary Sally Jewell instituted a moratorium on new coal leases while conducting a programmatic environmental impact statement under NEPA to address concerns about competition and inconsistency with the Obama Administration’s climate policy. In 2017, Interior Secretary Ryan Zinke lifted the moratorium and ended development of a programmatic environmental impact statement. In April 2021, Interior Secretary Debra Haaland rescinded Zinke’s order and initiated a new review of the coal-leasing program. See U.S. Department of the Interior, “Order No. 3338: Discretionary Programmatic Environmental Impact Statement to Modernize the Federal Coal Program,” January 15, 2016, https://www.doi.gov/sites/doi. gov/files/elips/documents/archived-3338_-discretionary_programmatic_environmental_impact_statement_ to_modernize_the_federal_coal_program.pdf (accessed March 16, 2023); U.S. Department of the Interior, “Order No. 3348”; U.S. Department of the Interior, “Order No. 3398”; and Federal Register, Vol. 86, No. 159 (August 20, 2021), pp. 46873–46877. — 541 — Department of the Interior 39. Katie Tubb, “No More Standoffs: Protecting Federal Employees and Ending the Culture of Anti-Government Attacks and Abuse,” testimony before the Subcommittee on National Parks, Forests, and Public Lands, Committee on Natural Resources, U.S. House of Representatives, pp. 2–4, October 22, 2019, https://congress. gov/116/meeting/house/110104/witnesses/HHRG-116-II10-Wstate-TubbK-20191022.pdf (accessed March 16, 2023). 40. News release, “Secretary Haaland Announces Steps to Establish Protections for Culturally Significant Chaco Canyon Landscape,” U.S. Department of the Interior, November 15, 2021, https://www.doi.gov/pressreleases/ secretary-haaland-announces-steps-establish-protections-culturally-significant-chaco (accessed March 16, 2023); News release, “Biden–Harris Administration Proposes Protections for Thompson Divide,” U.S. Department of the Interior, October 12, 2022, https://www.doi.gov/pressreleases/biden-harris-administration- proposes-protections-thompson-divide (accessed March 16, 2023); News release, “Biden Administration Takes Action to Complete Study of Boundary Waters Area Watershed,” U.S. Department of the Interior, October 20, 2021, https://www.doi.gov/pressreleases/biden-administration-takes-action-complete-study-boundary- waters-area-watershed (accessed March 16, 2023); and News release, “Interior Department Takes Action on Mineral Leases Improperly Renewed in the Watershed of the Boundary Waters Wilderness,” U.S. Department of the Interior, January 26, 2022, https://www.doi.gov/pressreleases/interior-department-takes-action- mineral-leases-improperly-renewed-watershed-boundary (accessed March 16, 2023). 41. Endangered Species Act, Public Law 91–135, § 4(b)(2), and Federal Register, Vol. 85, No. 244 (December 18, 2020), pp. 82376–82389. 42. U.S. Fish and Wildlife Service, “Governing the Take of Migratory Birds Under the Migratory Bird Treaty Act.” https://www.fws.gov/regulations/mbta (accessed March 16, 2023). 43. Dino Grandoni and Anna Phillips, “Biden Restores Climate Safeguards in Key Environmental Law, Reversing Trump,” Washington Post, April 19, 2022, https://www.washingtonpost.com/climate- environment/2022/04/19/biden-nepa-climate-trump/ (accessed March 16, 2023). 44. Donald Trump, “Executive Order on Creating Schedule F in the Accepted Service,” Executive Order 13957, October 21, 2020, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-creating- schedule-f-excepted-service/ (accessed March 16, 2023). 45. Kathleen Masterson, “Nevada Wild Horse Population Skyrockets To New High,” KUNR Public Radio, July 22, 2019, https://www.kunr.org/energy-and-environment/2019-07-22/nevada-wild-horse-population-skyrockets- to-new-high (accessed March 20, 2023). 46. U.S. Department of the Interior, Bureau of Land Management, “Report to Congress: An Analysis of Achieving a Sustainable Horse and Burro Program,” Fact sheet, May 8, 2020, https://www.blm.gov/sites/blm.gov/files/ Final%20Fact%20Sheet%20WHB%20Report%20To%20Congress.pdf (accessed March 17, 2023). 47. Pendley, Sagebrush Rebel, pp. 45–47. 48. James D. Linxwiler, The Alaska Native Claims Settlement Act At 35: Delivering on the Promise, Rocky Mountain Mineral Law Institute, Vol. 53, Chap. 12 (2007), § 12.03(1)(a)(iv), https://www.guessrudd.com/wp-content/ uploads/sites/1600422/2020/05/The-Alaska-Native-Claims-Settlement-Act-at-35.pdf (accessed March 16, 2023). 49. Ibid., § 12.03(1)(a)(vii). See generally Richard S. Jones, Alaska Native Claims Settlement Act of 1971 (Public Law 92–203): History And Analysis Together With Subsequent Amendments, Report No. 81–127 GOV, June 1, 1981, http://www.alaskool.org/PROJECTS/ANCSA/reports/rsjones1981/ANCSA_History71.htm (accessed March 16, 2023). 50. 43 U.S. Code, Ch. 33. ANCSA also created 12 Native-owned regional corporations and authorized $962 million in “seed money.” Linxwiler, The Alaska Native Claims Settlement Act At 35, § 12.03(2)(e). 51. ANCSA provided that the withdrawal of the lands would expire in 1978 if Congress had not designated the lands as federal enclaves. John K. Norman Cole and Steven W. Silver, Alaska’s D-2 Lands, Rocky Mountain Mineral Law Institute, Vol. 6B, Ch. 5, September 1978, and Raymond A. Peck, Jr., And Then There Were None: Evolving Federal Restraints on the Availability of Public Lands for Mineral Development, Rocky Mountain Mineral Law Institute, Vol. 25, Ch. 3, 1979. 52. Andrus used purported authority under the FLPMA to withdraw 40 million acres, and Carter used purported authority under the Antiquities Act of to withdraw 56 million acres. James D. Linxwiler, The Alaska Native Claims Settlement Act: The First Twenty Years, Rocky Mountain Mineral Law Institute, Vol. 38 Ch. 2, 1992 at 2.04(8)(c), https://ancsa.lbblawyers.com/wp-content/uploads/ANCSA-Paper-with-Table-of-Contents-1992.pdf (accessed March 16, 2023).

— 429 — Environmental Protection Agency As a matter of broad practice, OW should be complying with statutorily estab- lished deadlines in all situations with only minimal exceptions. In cases where statutory deadlines will not be met, senior management should be made aware of the delay and should have an opportunity to determine whether alternative courses should be taken. Depending on the outcome of regulations from the Biden Administration as well as intervention by the Supreme Court on both waters of the United States (WOTUS) and CWA Section 401,29 the repeal and reissuance of new regulations should be pursued. New Policies New regulations should include the following: l A WOTUS rule that makes clear what is and is not a “navigable water” and respects private property rights. Coordinate with Congress to develop legislation, if necessary, to codify the definition in Rapanos v. United States that “waters of the United States” can refer only to “relatively permanent, standing or continuously flowing bodies of water…as opposed to ordinarily dry channels through which water occasionally or intermittently flows.”30 l A rule that provides clarity and regulatory certainty regarding the CWA Section 401 water quality certification process to limit unnecessary delay for needed projects, including by establishing a discharge-only approach with a limited scope (from point sources into navigable waters), assessing only water quality factors that are consistent with specific CWA sections, and excluding speculative analysis regarding future potential harm. l A rule to ensure that CWA Section 30831 has a clear and enforced time limit. l A rule to clarify the standard for criminal negligence under CWA Sections 40232 and 404.33 l A rule to prohibit retroactive or preemptive permits under CWA Section 404. l A rule to promote and shape nutrient trading that utilizes a carrot-versus- stick approach when dealing with nutrient compliance. l A rule to update compensatory mitigation that imposes no new or additional requirements beyond current law. l A rule on updates necessary for the effective use of the CWA needs survey. — 430 — Mandate for Leadership: The Conservative Promise l An executive order requiring EPA to find avenues and expedite the process for states obtaining primacy in available CWA and SDWA programs. This order would require coordination with the Army Corps of Engineers and the Department of the Interior. l Implementation of additional policies to address challenges in water workforce, issues surrounding timely actions on primacy applications, and cybersecurity. Budget While the overall goal is certainly to reduce government spending, there is one very targeted area where increased spending would be in the nation’s interest. The Clean Water Act needs survey is the entire basis for how congressionally appro- priated funds directed to state revolving funds—standard annual appropriations that are the true underpinning of all infrastructure funding for drinking water and clean water—are distributed by EPA across the country. Because this program is currently underfunded, money is being thrown at untargeted locations while water infrastructure is crumbling at other locations. Increased targeted funding would greatly benefit water systems across the country at a time when intervention is crucial, leaving fewer communities with significant water service challenges. Personnel OW would benefit greatly from the reshifting of SES employees to different programs and from headquarters out to regional offices. OFFICE OF LAND AND EMERGENCY MANAGEMENT (OLEM) OLEM’s mission is to partner with other federal agencies, states, tribes, local governments, and communities to clean up legacy pollution and revitalize land for reuse. OLEM executes this mission by protecting human health and the envi- ronment while leveraging economic opportunities and creating jobs. OLEM also oversees the agency’s emergency response. The main statutes that OLEM exe- cutes are the Resource Conservation and Recovery Act (RCRA)34 to regulate waste management; the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)35 to clean up Superfund sites and provide resources for cleaning up brownfields sites; and Section 112(r) of the Clean Air Act36 to reduce the likelihood of accidental chemical releases. Needed Reforms OLEM’s main function is to oversee the execution of cleanups under CERCLA and RCRA; therefore, it is critical that OLEM staff focus on project management more than policy creation. Emphasizing productivity more than process and policies