Dalles Watershed Development Act

— 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).

— 428 — Mandate for Leadership: The Conservative Promise Personnel, Budget, and Office Restructuring l Place a political appointee in Ann Arbor, Michigan, for the Office of Transportation and Air Quality (OTAQ, regulating mobile sources) and a political appointee in Research Triangle Park, North Carolina, for the Office of Air Quality Planning and Standards (OAQPS, regulating stationary sources) and give those appointees the requisite titles and authority to oversee the OTAQ and OAQPS staff. l Establish a political Chief of Staff in D.C. to manage the entire air office. l Pull the Renewable Fuel Standard (RFS) program out of OTAQ; establish its own suboffice in D.C. (with status parallel to OTAQ and OAQPS) that is headed by a political appointee; and establish a Memorandum of Understanding with the Department of Agriculture and the Department of Energy to work together to establish RFS programs. l Require regional air offices to receive approval from OAR before moving forward with enforcement actions in order to ensure that enforcement is meeting the requirements established by regulations and is not going beyond them. OFFICE OF WATER (OW) OW is responsible for ensuring safe drinking water and restoring and main- taining oceans, watersheds, and their aquatic ecosystems to protect human health, support economic and recreational activities, and provide healthy habitats for fish, plants, and wildlife. Its two main statutes include implementing the Clean Water Act (CWA)26 and Safe Drinking Water Act (SDWA).27 OW has generated a large number of expansive regulations that infringe on private property rights, most notably with the Waters of the U.S. program. Needed Reforms The overarching theme for reform is guidance on guidance. OW relies heav- ily on guidance documents that are outdated and that sometimes have been in a “deliberative” state for years. Additionally, there are significant issues surrounding OW’s holding up guidance as something more than simply guidance: as something akin to law in certain circumstances. The August 6, 2019, “Office of Water Policy for Draft Documents” memorandum28 should be strictly enforced to ensure transpar- ency as well as good governance by not letting guidance linger in draft form and by also ensuring that guidance documents are clearly just that: guidance. They do not have the effect of law and should not be treated by the office as if they did have any such effect. — 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.

— 315 — Department of Agriculture 79. U.S. Department of Agriculture, Food and Nutrition Service, “WIC Data Tables,” December 9, 2022, https:// www.fns.usda.gov/pd/wic-program (accessed December 16, 2022). 80. U.S. Food and Drug Administration, “Regulations and Information on the Manufacture and Distribution of Infant Formula,” May 16, 2022, https://www.fda.gov/food/infant-formula-guidance-documents-regulatory- information/regulations-and-information-manufacture-and-distribution-infant-formula (accessed December 14, 2022). 81. U.S. Department of Agriculture, Food and Nutrition Service, “History of the National School Lunch Program,” January 17, 2008, https://www.fns.usda.gov/nslp/program-history (accessed December 14, 2022). 82. U.S. Department of Agriculture, Food and Nutrition Service, “School Breakfast Program History,” July 24, 2013, https://www.fns.usda.gov/sbp/program-history (accessed December 14, 2022), and U.S. Department of Agriculture, Food and Nutrition Service, “History of the National School Lunch Program.” 83. Crystal FitzSimons, “Free School Meals for All Is the Key to Supporting Education and Health Outcomes,” Journal of Policy Analysis and Management, Vol 41, No. 1 (2022), pp. 358–364, https://econpapers.repec.org/ article/wlyjpamgt/v_3a41_3ay_3a2022_3ai_3a1_3ap_3a358-364.htm (accessed December 14, 2022). 84. Jonathan Butcher and Vijay Menon, “Returning to the Intent of Government School Meals: Helping Students in Need,” Heritage Foundation Backgrounder No. 3399, March 22, 2019, https://www.heritage.org/sites/ default/files/2019-03/BG3399.pdf. 85. Daren Bakst and Jonathan Butcher, “A Critical Fix to the Federal Overreach on School Meals,” Heritage Foundation Issue Brief No. 4976, July 11, 2019, https://www.heritage.org/hunger-and-food-programs/report/ critical-fix-the-federal-overreach-school-meals. 86. Ibid., and U.S. Department of Agriculture, Food and Nutrition Service, “Community Eligibility Provision,” April 19, 2019, https://www.fns.usda.gov/cn/community-eligibility-provision (accessed December 16, 2022). 87. See Payment Accuracy, https://www.paymentaccuracy.gov/ (accessed December 16, 2022). 88. Payment Accuracy, “Payment Integrity Scorecard,” https://www.cfo.gov/wp-content/uploads/2022/Q3/ FNS%20National%20School%20Lunch%20Program%20(NSLP)%20Payments%20Integrity%20Scorecard%20 FY%202022%20Q3.pdf (accessed December 14, 2022). 89. U.S. Government Accountability Office, “School Meals Programs: USDA Has Reported Taking Some Steps to Reduce Improper Payments But Should Comprehensively Assess Fraud Risks,” GAO–19–389, May 21, 2022, https://www.gao.gov/products/gao-19-389 (accessed December 14, 2022). 90. Payment Accuracy, “Payment Integrity Scorecard.” 91. White House, “Fact Sheet: The American Families Plan,” April 28, 2021, https://www.whitehouse.gov/ briefing-room/statements-releases/2021/04/28/fact-sheet-the-american-families-plan/ (accessed December 14, 2022). 92. Universal School Meals Program Act of 2021, S. 1530, 117th Cong., 1st Sess., https://www.congress.gov/ bill/117th-congress/senate-bill/1530 (accessed December 14, 2022). 93. See, for example, U.S. Department of Agriculture, “Find Meals for Kids When Schools Are Closed,” Food and Nutrition Service, September 22, 2022, https://www.fns.usda.gov/meals4kids (accessed December 16, 2022), and U.S. Department of Agriculture, Food and Nutrition Service, “Seamless Summer and Other Options for School,” July 16, 2013, https://www.fns.usda.gov/sfsp/seamless-summer-and-other-options-schools (accessed December 16, 2022). 94. Tom Driscoll, “From the Field: Farmers Are the Original Conservationists,” National Farmers Union, August 30, 2017, https://nfu.org/2017/08/30/from-the-field-farmers-are-the-original-conservationists/ (accessed December 16, 2022). 95. U.S. Department of Agriculture, Farm Service Agency, “Conservation Programs,” https://www.fsa.usda.gov/ programs-and-services/conservation-programs/index (accessed December 16, 2022), and U.S. Department of Agriculture, Natural Resources Conservation Service, “Programs and Initiatives,” https://www.nrcs.usda.gov/ programs-initiatives (accessed December 16, 2022). 96. U.S. Department of Agriculture, Farm Service Agency, “Conservation Reserve Program: About the Conservation Reserve Program (CRP),” https://www.fsa.usda.gov/programs-and-services/conservation- programs/conservation-reserve-program/ (accessed December 16, 2022). — 316 — Mandate for Leadership: The Conservative Promise 97. American Bakers Association et al., letter to U.S. Department of Agriculture Secretary Tom Vilsack, March 23, 2022, https://www.dropbox.com/s/yfyv04ilkom11zd/USDA%20Letter%20to%20Secretary%20Vilsack%20on%20 Tools%20to%20Address%20Global%20Commodity%20Supply%20Challenges%203.23.22_.pdf?dl=0 (accessed December 15, 2022). It is also necessary to increase food production to mitigate high food inflation. Approximately 25 percent of idled land is considered prime farmland. Therefore, one-quarter of idled land is merely idling, not producing food—and this does not include other land that may viably be used for food production. The Conservation Reserve Program should be eliminated. There are also two issues connected to property rights and fairness that should be addressed: challenging NRCS determinations and problems with USDA easements. To be eligible for many USDA programs, farmers must comply with certain conservation provisions enforced by NRCS. Conservation compliance of wetlands and highly erodible lands consist of federal restrictions that prevent farmers from using parts of their property. If farmers plant crops or modify the areas federal officials deem protected, farmers can lose all access to USDA programs and support. For farmers, there are real, practical concerns to challenging NRCS determinations, including the time and costs of challenging the federal bureaucracy. NRCS is empowered to declare areas wetlands and highly erodible areas, which are therefore off limits for farming. If these wetland-or-erodible-declared areas are used in a manner deemed unacceptable by federal officials, NRCS may revoke access to federal resources and subsidies by making technical determinations that carry potential penalties. There must be a fair and reasonable process for farmers to challenge such actions. See Daren Bakst, “Food Price Inflation Continues to Worsen. Here’s What Should Be Done About It,” The Daily Signal, April 25, 2022, https:// www.dailysignal.com/2022/04/25/food-price-inflation-continuing-to-worsen-heres-what-should-be-done- about-it/ (accessed December 15, 2022); American Bakers Association et.al., letter to Vilsack; U.S. Department of Agriculture, Natural Resources Conservation Service, “Conservation Compliance Appeals Process,” https://www. nrcs.usda.gov/getting-assistance/compliance/conservation-compliance-appeals-process (accessed December 15, 2022); and Chris Bennett, “Regulatory Hell: Farmer and Veteran Wins 10-Year Wetlands Fight With Government,” AG Web, August 30, 2021, https://www.agweb.com/news/crops/crop-production/regulatory-hell-farmer-and- veteran-wins-10-year-wetlands-fight (accessed December 15, 2022). 98. Fortunately, there are already resources available to help states establish their own wetlands conservation programs. One particular example, the American Legislative Exchange Council’s Wetlands Mapping and Protection Act model policy, is available for states to define the procedures, guidelines, and administration of wetlands programs. American Legislative Exchange Council, “Wetlands Mapping and Protection Act,” November 16, 2017, https://alec.org/model-policy/wetlands-mapping-and-protection-act/ (accessed December 16, 2022). The new Administration should focus on best practices instead of imposing prescriptive federal practices. It should support the policies contained within the “NRCS Wetland Compliance and Appeals Reform Act” and modify NRCS compliance rules to protect farmers and ranchers by adding protections against regulatory overreach—such as banning the practice of re-engaging farmers in new technical determinations appeals processes for the same areas of their farms. See NRCS Wetland Compliance and Appeals Reform Act, S. 4931, 117th Cong., 2nd Sess., https://www.congress.gov/bill/117th-congress/senate-bill/4931?s=1&r=8 (accessed December 15, 2022). 99. Ibid 100. See, for example, Daren Bakst and Jeremy Dalrymple, “Reducing Federal Barriers for the Sale of Meat,” Heritage Foundation Issue Brief No. 5078, June 1, 2020, https://www.heritage.org/agriculture/report/ reducing-federal-barriers-the-sale-meat, and U.S. Department of Agriculture, Food Safety and Inspection Service, “State Inspection Programs,” updated January 12, 2023, https://www.fsis.usda.gov/inspection/state- inspection-programs (accessed December 15, 2022). 101. U.S. Department of Agriculture, Food Safety and Inspection Service, “Cooperative Interstate Shipping Program,” September 7, 2022, https://www.fsis.usda.gov/inspection/state-inspection-programs/cooperative- interstate-shipping-program (accessed December 15, 2022). 102. U.S. Department of Agriculture, “State Inspection Programs.” 103. The Senate bill removes obstacles for both meat and poultry. The House version does not appear to cover poultry. New Markets for State-Inspected Meat and Poultry Act of 2021, S. 107, 117th Cong., 1st Sess., https:// www.congress.gov/bill/117th-congress/senate-bill/107#:~:text=This%20bill%20allows%20meat%20and,be%20 sold%20in%20interstate%20commerce (accessed December 15, 2022), and Expanding Markets for State- Inspected Meat Processors Act of 2021, H.R. 1998, 117th Cong., 1st Sess., https://www.congress.gov/bill/117th- congress/house-bill/1998 (accessed December 15, 2022).