Biological Opinions for the Sacramento-San Joaquin Delta: A Case Law Summary

Kristina Alexander
Legislative Attorney

For decades biologists, water users, and lawmakers (both federal and state) have attempted to craft a system that meets the needs of California water users while ensuring sufficient usable water for fish. Under California’s hybrid system of appropriative water rights, users are issued permits for water diverted from rivers and streams regardless of the users’ proximity to the source of water. The state of California has issued permits to the Bureau of Reclamation (the Bureau) to store, divert, and deliver water from the federal Central Valley Project (CVP), which consists of facilities on the Sacramento, Stanislaus, and San Joaquin Rivers, including the Shasta, New Melones, and Friant Dams. The Bureau diverts CVP and State Water Project (SWP) water from the southern portion of the Sacramento-San Joaquin Delta to the southern part of California. Although the amount of water available from the CVP/SWP is relatively constant, notwithstanding periods of drought and periods of excessive rain (e.g., El Niño years), the amount of water diverted from major rivers and their tributaries has increased over time, and fish populations have declined.

In the CVP/SWP watershed, the Endangered Species Act (ESA) protects multiple species or populations of fish, including the endangered Sacramento River winter-run Chinook salmon, the threatened Central Valley spring-run Chinook salmon, the threatened Central Valley steelhead, the threatened Southern population of North American green sturgeon, and the threatened delta smelt. The ESA requires the Bureau to consult with the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) (together, the Services) to see whether planned actions are likely to jeopardize a listed species or damage critical habitat. (FWS is consulted for impacts related to the Delta smelt. NMFS is consulted on potential impacts to salmon.) The consultation process concludes with the Service issuing a biological opinion (BiOp) along with an incidental take statement, allowing the federal action to proceed without prosecution for incidental harm to listed species. If the Service finds the action is likely to jeopardize a listed species, a jeopardy BiOp is issued, which will include reasonable and prudent alternatives (RPAs) to the planned action to avoid extinction of a species. Otherwise a no-jeopardy BiOp is issued.

In 2004, the Long-Term Central Valley Project and State Water Project Operations Criteria and Plan (OCAP) was issued by California and the Bureau to meet the system’s water needs. Pursuant to OCAP, the Services issued both jeopardy and no-jeopardy opinions. Lawsuits challenged both types of BiOp. If jeopardy was found, water users argued that the BiOp failed to consider impacts on junior water users sufficiently. If no jeopardy was found, environmentalists and fishermen argued that the BiOp did not fully consider the extent of the harm to the species. Judge Oliver W. Wanger of the federal court for the Eastern District of California has found the BiOps or the RPAs to be inadequate for various reasons, including failing to comply with the National Environmental Policy Act (NEPA). (He retired from the bench at the end of September 2011.) Some of those decisions have since been appealed to the Ninth Circuit. New biological opinions are not due until December 2014 (FWS) and February 2017 (NMFS), although those deadlines could be extended an additional two years each, according to a court order of April 2013. This report summarizes the proceedings on the BiOps issued since 2004.


Date of Report: May 3, 2013
Number of Pages: 12
Order Number: R41876
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Mountaintop Mining: Background on Current Controversies

Claudia Copeland
Specialist in Resources and Environmental Policy

Mountaintop removal mining involves removing the top of a mountain in order to recover the coal seams contained there. This practice occurs in six Appalachian states (Kentucky, West Virginia, Virginia, Tennessee, Pennsylvania, and Ohio). It creates an immense quantity of excess spoil (dirt and rock that previously composed the mountaintop), which is typically placed in valley fills on the sides of the former mountains, burying streams that flow through the valleys. Mountaintop mining is regulated under several laws, including the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA).

Critics say that, as a result of valley fills from mountaintop mining, stream water quality and the aquatic and wildlife habitat that streams support are destroyed by tons of rocks and dirt. The mining industry argues that mountaintop mining is essential to conducting surface coal mining in the Appalachian region and that it would not be economically feasible there if operators were barred from using valleys for the disposal of mining overburden. Critics have used litigation to challenge the practice. In a number of cases, environmental groups have been successful at the federal district court level in challenging permits for mountaintop mining projects, only to be later overturned on appeal. Nonetheless, the criticisms also have prompted some regulatory changes.

In 2009, officials of the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers (Corps), and the Department of the Interior signed a Memorandum of Understanding outlining a series of administrative actions under these laws to reduce the harmful environmental impacts of mountaintop mining and surface coal mining in Appalachia. The plan includes a series of near-term and longer-term actions that emphasize specific steps, improved coordination, and greater transparency of decisions to be implemented through regulatory proposals, guidance documents, and review of applications for permits to authorize surface coal mining operations in Appalachia. Viewed broadly, the Administration’s combined actions on mountaintop mining displease both industry and environmental advocates. The additional scrutiny of permits and more stringent requirements have angered the coal industry and many of its supporters. Controversy also was generated by EPA’s January 2011 veto of a CWA permit that had been issued by the Corps for a surface coal mining project in West Virginia. At the same time, while environmental groups support EPA’s steps to restrict the practice, many favor tougher requirements or even total rejection of mountaintop mining in Appalachia. Federal courts have recently rejected several of the Administration’s actions, including enhanced permit review procedures, and EPA guidance on factors used in evaluating water quality impacts of Appalachian surface mining permits. EPA’s veto of the West Virginia mine permit was overturned by a federal court, but that ruling was recently reversed on appeal.

This report provides background on regulatory requirements, controversies and legal challenges to mountaintop mining, and recent Administration actions. Congressional interest in these issues also is discussed, including legislation in the 111th Congress seeking to restrict the practice of mountaintop mining and other legislation intended to block the Obama Administration’s regulatory actions. Attention to EPA’s veto of the West Virginia mining permit and other federal agency actions has increased in Congress. Bills have been introduced in the 113th Congress to clarify or restrict EPA’s authority to veto CWA permits issued by the Corps (H.R. 524 and S. 830).


Date of Report: April 29, 2013
Number of Pages: 21
Order Number: RS21421
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Hydraulic Fracturing and the National Environmental Policy Act (NEPA): Selected Issues

Brandon J. Murrill
Legislative Attorney

Hydraulic fracturing is a technique used to recover oil and natural gas from underground low permeability rock formations. This process involves pumping fluids under high pressure into the formations to crack them, releasing oil and gas into the well. The technique has been the subject of controversy due to some of its potential effects on the environment.

The National Environmental Policy Act (NEPA) requires federal agencies to consider the potential environmental consequences of the actions they propose to take by preparing one of three NEPA documents. Actions that fit within a categorical exclusion (CE) undergo a relatively low level of review because these are actions that an agency has found do not have a significant effect on the environment. A CE may not be used when extraordinary circumstances occur. An environmental assessment (EA) provides a more comprehensive level of review and may be prepared when an agency wishes to determine whether an action requires the preparation of an environmental impact statement (EIS). An EIS is the most comprehensive NEPA document; it requires, among other things, that the agency explain how the proposed action will affect the environment; what unavoidable adverse effects will result; and what alternatives to the proposed action exist.

This report provides an overview of three situations in which parties have argued that agencies do not need to conduct a comprehensive environmental review of hydraulic fracturing under NEPA. In March 2013, a federal district court in California held that the Bureau of Land Management (BLM) had violated NEPA and the Administrative Procedure Act (APA) when it prepared an EA and Finding of No Significant Impact (FONSI) for a lease sale in the Monterey Shale. The court held that BLM could not rely on an analysis that (1) assumed that only one exploratory well would be drilled on the leased acres, and (2) did not contain a detailed assessment of the impact of hydraulic fracturing and horizontal drilling on the environment.

In 2011, New York Attorney General Eric Schneiderman filed a complaint on behalf of the state of New York alleging that the Delaware River Basin Commission (DRBC) and five federal agencies were in violation of NEPA. New York sought an injunction compelling the defendants to prepare an EIS before the defendants adopted regulations that would allow natural gas development in the basin. In September 2012, the United States District Court for the Eastern District of New York granted the defendants’ motions to dismiss New York’s complaint for lack of subject matter jurisdiction.

On March 21, 2012, the U.S. Department of Agriculture Rural Development agency reaffirmed its use of a CE to exempt from further NEPA review the loans it makes for the purchase of singlefamily homes on properties leased for drilling. The agency stated that, by itself, the existence of a drilling lease on a property is not an extraordinary circumstance that will prevent the agency from using a CE for a loan.


Date of Report: April 25, 2013
Number of Pages: 12
Order Number: R42502
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Pesticide Registration and Tolerance Fees: An Overview

Robert Esworthy
Specialist in Environmental Policy

The Pesticide Registration Improvement Extension Act of 2012 (PRIA 3; P.L. 112-177), enacted September 28, 2012, amended the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA) to reauthorize and revise, through FY2017, the collection and use of fees to enhance and accelerate the U.S. Environmental Protection Agency’s (EPA’s) pesticide licensing (registration) activities. Among other provisions, P.L. 112-177 increases the amounts of certain fees, revises the schedule for fee assessment and review deadlines for reviewing specific registration decisions, modifies provisions for small business reductions of fees, adds provisions for the enhancement of pesticide decision information tracking systems and for initial content preliminary screening activities, and eliminates pre-PRIA reregistration fee (1988) authorities. PRIA 2 (P.L. 110-94), enacted October 9, 2007, and set to expire at the end of FY2012, reauthorized and revised fee collection provisions first established under PRIA 1 (P.L. 108-199), enacted January 23, 2004.

EPA is responsible for regulating the sale, use, and distribution of pesticides under the authority of two statutes. FIFRA (7 U.S.C. §136-136y), a licensing statute, requires EPA to review and register the use of pesticide products. FFDCA (21 U.S.C. §346a) requires the establishment of maximum limits (tolerances) for pesticide residues on food in interstate commerce. EPA was also required to reevaluate older, registered pesticides (i.e., “reregistration” for pesticides registered prior to 1984, and more recently, “registration review”) and to reassess existing tolerances to ensure they meet current safety standards. Although U.S. Treasury revenues cover much of the costs for administering these acts, various fees paid by pesticide manufacturers and other registrants have supplemented EPA appropriations for many years as a means intended to, in part, increase the pace of the agency’s activities under FIFRA and FFDCA.

In March 2013, EPA reported the completion of 1,574 pesticide registration-related decisions subject to PRIA 2 during FY2012, for a total of 12,165 decisions since the enactment of PRIA 1 in 2004. For FY2012, EPA reported expending $13.4 million of the $20.3 million in available revenues (composed of $15.6 million in net receipts of new registration service fees collected in FY2012 and $4.7 million carried forward from FY2011). Expenditures decreased by nearly 7% in FY2012 compared to $14.3 million in FY2011, primarily a result of a 35% reduction in expenditures for contracts.

Authority for collecting pesticide fees dates back to the 1954 FFDCA amendments (P.L. 518; July 22, 1954), which, as passed, required the collection of fees “sufficient to provide adequate service” for establishing maximum residue levels (tolerances) for pesticides on food. Authority to collect fees was expanded with the 1988 FIFRA amendments (P.L. 100-532). The 1996 amendments to FIFRA and FFDCA, or the Food Quality Protection Act (FQPA; P.L. 104-170), extended EPA’s authority to collect certain fees through FY2001. Prior to the enactment of PRIA 1 (P.L. 108-199) in 2004, Congress had extended these fee authorities annually through appropriations legislation. Since 1998, Presidents’ budget requests have included proposals to modify existing fee structures to further increase revenues for pesticide activities, but were not adopted in legislation and in some cases specifically prohibited by Congress. The FY2013 President’s budget request, submitted to Congress February 13, 2012, did not include similar proposals for supplemental fees, but instead acknowledged the need for reauthorization of the current fees at increased levels to cover a greater portion of relevant program operating costs.


Date of Report: April 19, 2013
Number of Pages: 41
Order Number: RL32218
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Air Quality Issues in Natural Gas Systems: In Brief

Richard K. Lattanzio
Analyst in Environmental Policy

Natural Gas Systems and Air Pollution 

Congressional interest in U.S. energy policy has focused in part on ways through which the United States could secure more economical and reliable fossil fuel resources both domestically and internationally. Recent expansion in natural gas production, primarily as a result of new or improved technologies (e.g., hydraulic fracturing, directional drilling) used on unconventional resources (e.g., shale, tight sands, and coal-bed methane), has made natural gas an increasingly significant component in the U.S. energy supply. This expansion, however, has prompted renewed questions about the potential impacts of natural gas systems on human health and the environment, including impacts on air quality. Unlike the debate over groundwater contamination or induced seismicity—where questions exist as to whether or not production activities contribute significantly to these impacts—there is little question that natural gas systems emit air pollutants. The concerns, instead, are the following:

• Which pollutants? 
• How much of each pollutant? 
• From which sources? 
• What are the impacts of the emissions? 
• How much is the cost of abatement? 
• What are the respective roles of federal, state, and local governments? 

Air pollutants are released by natural gas systems through the leaking, venting, and combustion of natural gas; the combustion of other fossil fuel resources; and the discharge of particulate matter during associated operations. Emission sources include pad, road, and pipeline construction; well drilling, completion, and flowback activities; and gas processing and transmission equipment such as controllers, compressors, dehydrators, pipes, and storage vessels. Pollutants include, most prominently, methane and volatile organic compounds—of which the natural gas industry is one of the highest-emitting industrial sectors in the United States—as well as nitrogen oxides, sulfur dioxide, particulate matter, and various forms of hazardous air pollutants. 

EPA’s 2012 Air Standards 

The U.S. Environmental Protection Agency (EPA), in response to a consent decree issued by the U.S. Court of Appeals, D.C. Circuit, promulgated air standards for several source categories in the crude oil and natural gas sector on August 16, 2012. These standards—effective October 15, 2012—revised existing rules and promulgated new ones to regulate emissions of volatile organic compounds (VOCs), sulfur dioxide, and hazardous air pollutants (HAPs) from many production and processing activities that had never before been covered by federal oversight. The standards control air pollution, in part, through the capture of fugitive releases of natural gas. Thus, compliance with the standards has the potential to translate into economic benefits, as producers may be able to offset abatement costs with the value of product recovered and sold. Using this assumption, EPA estimated the annual benefits of the standards to be VOC reductions of 190,000 tons, HAP reductions of 12,000 tons, methane reductions of 1.0 million tons, and a net cost savings of $11 million to $19 million after the sale of recovered product. Industry and other stakeholders have disputed these figures as both too high and too low. Moreover, the expansion of
both industry production and government regulation of natural gas has sparked discussion on a number of outstanding issues, including the following:

• defining the roles of local, state, and federal governments, 
• determining the proper coverage of pollutants and sources, 
• establishing comprehensive emissions data, 
• understanding the human health and environmental impacts of emissions, and 
• estimating the costs of pollution abatement. 

Scope and Purpose of This Report 

This report serves as a brief summary of the information provided in CRS Report R42833, Air Quality Issues in Natural Gas Systems. The report is structured similarly, providing information on the natural gas industry and the types and sources of air pollutants in the sector. It then examines the role of the federal government in regulating these emissions, including the provisions in the Clean Air Act (CAA) and the regulatory activities of EPA. It concludes with a brief discussion of the aforementioned outstanding issues. For more detail, reference information, and further citations, refer to CRS Report R42833.

Date of Report: April 16, 2013
Number of Pages: 21
Order Number: R42986
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