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January 23, 2019  |  Written by Richard S. Deitchman

Five Things to Know About How the Partial Federal Government Shutdown May Affect Western Water and Resource Issues

The ongoing partial government shutdown, the longest in the history of the United States, is now in its fifth week.  In all, nine federal departments and agencies have had to close or greatly limit operations.  The agencies affected include Agriculture, Interior, Commerce, Justice and the Environmental Protection Agency (EPA).  The partial shutdown requires furlough or work without pay for all but essential (“excepted”) employees in the affected departments.  According to most media reports, over 800,000 federal workers are presently furloughed or working without pay.  The partial shutdown has affected federal government activities relating to western water issues in several federal agencies and will continue to do so until the political issues are resolved.  The following is a list of five key areas of interest to the water community.

  1. The Bureau of Reclamation is funded.

The Bureau of Reclamation’s (Reclamation) fiscal year 2019 budget was passed as a component of the Energy and Water Development Appropriation Bill and signed in fall 2018.  As a result, Reclamation is not among the departments and agencies subject to the partial shutdown.

  1. The Fish & Wildlife Service and NOAA Fisheries are not funded.

With limited exception, such as Reclamation, all agencies of the Departments of Interior and Commerce are subject to the partial shutdown.  This includes the Fish & Wildlife Service (FWS) and NOAA Fisheries/NMFS.  Generally speaking, FWS and NOAA Fisheries share responsibility for administering the federal Endangered Species Act (ESA).  FWS manages land and freshwater species, while NOAA Fisheries manages marine and anadromous species.  The partial shutdown will likely delay most ongoing ESA consultation processes and other regulatory actions.

  1. The Department of Justice is not funded, which will potentially halt all civil cases involving water and natural resource issues.

The Department of Justice (Justice) is among the agencies subject to the partial shutdown.  As a result, Justice has sought stays or extensions of time in many cases.  The United States is often a party to cases involving water and the ESA or other environmental issues.  As a result, most of that litigation is likely to be put on hold until Justice receives an appropriation of funds.  For example, the Special Master in Texas v. New Mexico & Colorado, an original jurisdiction action before the U.S. Supreme Court involving the Rio Grande River, recently extended upcoming legal briefing deadlines on account of a request from Justice due to the partial shutdown.  In addition to Justice, the Administrative Office of the U.S. Courts continues to update the status of operation for the federal courts, which currently are estimated to run out of available funding for fully paid operations on January 31.

  1. The EPA is not funded and recently postponed its public hearing on the new WOTUS rule.

EPA is one of the agencies subject to the partial shutdown.  As a result, among other responsibilities, environmental enforcement and monitoring efforts are likely to be on hold until EPA receives an appropriation of funds.  In addition, EPA and the U.S. Army Corps of Engineers announced postponement of a scheduled January 23, 2019 public hearing on the new proposed Waters of the United States (WOTUS) rule.  For more on the proposed WOTUS rule, please see EPA and Army Corps of Engineers Float Revised “Waters of the United States” Rule.  The partial shutdown will undoubtedly delay the ongoing proposed WOTUS rule process, including an anticipated upcoming public comment period on the proposed rule.

  1. Certain crop management and grant programs provided by the Department of Agriculture are unavailable during the partial shutdown.

The Department of Agriculture (USDA) is not presently funded and current USDA activities are generally related to law enforcement, protection of life and property or funded through other available funding (i.e., user fees).  USDA Farm Service Agency (FSA) offices are presently closed, although there are reports that they may re-open despite the partial shutdown.  The National Agricultural Statistics Service (NASS) and other USDA crop reporting and tracking are likely no longer up to date, which may limit available data that may be relevant to crop decisions for the upcoming season.

Politicians and pundits lack consensus on how or when the partial shutdown will end.  Even upon an agreement to end the stalemate, it is likely that it will take some time for the re-opened portions of the government to get back up to speed.

For more information on the partial shutdown or related issues, please contact Rich Deitchman at (916) 446 7979 or rdeitchman@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.