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Capitol to Capitol | Sept. 19, 2023

September 19, 2023

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NCSL Updates

NCSL Submits Statement on Scope of Practice to Veteran Affairs Subcommittee on Health

NCSL was invited to submit a Statement for the Record to the U.S. House Committee on Veterans’ Affairs, Subcommittee on Health. The subcommittee is holding an oversight hearing on the Department of Veterans Affairs (VA) efforts to develop national standards of practice for 51 categories of health professionals. While NCSL did not take a position on the VA’s project, the statement provided an overview of state trends related to scope of practice as well as a snapshot of state legislation in specific VA occupations. Read more.

Congressional Updates

Senate Conducts First Artificial Intelligence Insight Forum to Explore AI Regulations

This week, U.S. Senate Majority Leader, Chuck Schumer, D-N.Y., hosted an Artificial Intelligence Insight Forum. Major tech giants such as Tesla CEO Elon Musk, Meta CEO Mark Zuckerberg, Google CEO Sundar Pichai, along with 20 others tech executives, gave testimony in a closed-door meeting to discuss parameters for future regulation on AI and the impacts this technology can have on the county. Read NCSL’s AI primer

Administration Updates

Deadline for States Planning New Summer EBT Program Approaching

The Consolidated Appropriations Act of 2023 created a new Summer Electronic Benefits Transfer program to fight child hunger over the summer while schools are closed. The program, which begins in summer 2024, will provide families of children who receive free or reduced-price meals during the school year with $40 per month per child over the summer. The federal government covers the cost of the benefits and half of the administrative costs, with states covering the other half. States that intend to operate summer EBT programs in 2024 must notify the U.S. Department of Agriculture of their intent by Jan. 1, 2024. Existing guidance is available, with a final regulation expected by the end of this year. The department briefed NCSL members on summer EBT during a recent webinar. Read more.

Watch the USDA briefing here.

EPA Updates WOTUS and Expands State Authority to Approve or Deny Infrastructure Projects

The Environmental Protection Agency issued two major rulemakings: The first revises the Waters of the United States final rule that redefines which wetlands and waterways are protected by the Clean Water Act; the second reverses a rulemaking by the previous administration that significantly limited state authority under Section 401 of the Clean Water Act to certify, condition or deny any federal permits and licenses for projects that would result in the discharge of pollutants into a water of the United States, or WOTUS.

The EPA’s issuance of a new final WOTUS rule follows the Supreme Court’s decision in Sackett v. Environmental Protection Agency, in which the justices narrowed the federal government’s interpretation of which wetlands and waterways may be considered “waters of the United States” and thus protected by the Clean Water Act. The Waters of the United States, or WOTUS, as the rule is known, aims to determine the scope of federal authority to regulate such water, and when states, local governments and others must seek federal permits to develop land because it contains such waters. The court ruled that the previous interpretation of WOTUS was too broad and created a narrower “test” to determine what waters qualify under the Clean Water Act. Under the decision, only wetlands with a “continuous surface connection,” or those that are “indistinguishable” from larger streams, lakes and rivers, can qualify.  

The EPA’s revised final rule amends the "Revised Definition of ‘Waters of the United States’" to conform to key aspects of the court’s decision. The rule keeps the following categories as jurisdictional waters: traditional navigable waters, territorial seas, interstate waters, impoundments, tributaries and adjacent wetlands, but it removes the “significant nexus” test from consideration when identifying waters as federally protected. It also revises the adjacency test when identifying federally jurisdictional wetlands, clarifies that interstate wetlands do not fall within the interstate waters category, and clarifies the types of features that can be considered under the “additional waters” category. The rule will go into effect as soon as it is published in the Federal Register, and like previous iterations, is anticipated to be challenged in court. More information can be found here.  

Following that, the EPA took steps to reverse the previous administration’s CWA 401 Certification rule that limited states authorities by including reductions in state timelines for review and certification, restrictions on the scope of certification reviews and conditions, and modifications of other related requirements and procedures. Specifically, the 2020 rule barred states from considering factors not directly related to water quality impacts from point source discharges only–previously, all potential sources of pollution from a project were reviewable.

This final rule expands states’ scope of consideration to include not just direct discharges, but the potential water quality-related impacts of the overall activity associated with the project. While the previous rulemaking limited the amount of time states had to consider project applications to 60 days, the new final rule extends the length of time states have to consider project applications by requiring project applicants to engage in pre-filing meetings prior to kick-starting a six-month clock. Once the rule is published in the Federal Register, it will apply to all new decisions made under the 401 processes, including ones that are currently in progress. The EPA has noted that as a result of the new final WOTUS rulemaking, there “will be significantly less waters under federal protection, and therefore fewer federally licensed projects that will need to go through the 401 program.” Read more.


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