Water Quality Bills in the Remainder of the 111th Congress

Claudia Copeland
Specialist in Resources and Environmental Policy

The Senate and House could consider a number of water quality bills some time during the remaining days of the 111th Congress. Recent press reports have indicated that legislators, especially in the Senate, are seeking to gather support for several bills, possibly packaged with others dealing with public lands and wildlife protection. This report describes 10 water quality bills pending in the Senate that could be candidates for consideration during the lame duck session of the 111th Congress.

All of the water quality issues discussed below have been highlighted in recent press reports for inclusion in a package. All but one would amend the Clean Water Act (CWA), and all were approved by the Senate Environment and Public Works Committee in recent weeks. Similar House bills have been introduced for all but one of the Senate measures discussed in this report, and the House has passed two of them. With the exception of a bill on Chesapeake Bay, the individual bills are not likely to be considered controversial. Most of the individual bills would either reauthorize existing CWA provisions that address water quality concerns in specified geographic areas, or would establish similar provisions for other regions or watersheds. These water quality issues and related 111th Congress bills are:

• Estuaries under the CWA’s National Estuary Program (H.R. 4715), 
• Chesapeake Bay (S. 1816), 
• Columbia River Basin (S. 4016), 
• Great Lakes (S. 3073 and S. 933), 
• Gulf of Mexico (S. 1311), 
• Lake Tahoe (S. 2724), 
• Long Island Sound (S. 3119), 
• Puget Sound (S. 2739), and 
• San Francisco Bay (S. 3539). 

The descriptions in this report are based on bills as reported by the Senate Environment and Public Works Committee, although if any of the bills were to receive further consideration, provisions could differ from the reported version or amendments offered. Further, if the Senate or House were to consider a group of water quality bills, the package might include more or fewer than those discussed here. Also, whether sufficient time remains for necessary action by both the Senate and House is highly uncertain. .


Date of Report: December 13, 2010
Number of Pages: 11
Order Number: R41517
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Safe Drinking Water Act (SDWA): A Summary of the Act and Its Major Requirements

Mary Tiemann
Specialist in Environmental Policy

This report summarizes the Safe Drinking Water Act (SDWA) and its major programs and regulatory requirements. It excerpts, with several additions, the SDWA chapter of CRS Report RL30798, Environmental Laws: Summaries of Major Statutes Administered by the Environmental Protection Agency, which provides summaries of the principal environmental statutes administered by the Environmental Protection Agency (EPA). This report includes the drinking water security provisions added to the SDWA by the Public Heath Security and Bioterrorism Preparedness and Response Act of 2002 (P.L. 107-188).

The SDWA, Title XIV of the Public Health Service Act, is the key federal law for protecting public water supplies from harmful contaminants. First enacted in 1974 and substantially amended in 1986 and 1996, the act is administered through programs that establish standards and treatment requirements for public water supplies, control underground injection of wastes, finance infrastructure projects, and protect sources of drinking water. The 1974 law established the current federal-state arrangement in which states may be delegated primary implementation and enforcement authority for the drinking water program. The state-administered Public Water Supply Supervision (PWSS) Program remains the basic program for regulating the nation’s public water systems, and 49 states have assumed this authority.

The last major reauthorization of the act was done through the Safe Drinking Water Act Amendments of 1996 (P.L. 104-182), which generally authorized appropriations for SDWA programs through FY2003. As with other EPA-administered statutes having expired funding authority, Congress has continued to appropriate funds for the ongoing SDWA programs.

In addition to reviewing key programs and requirements of the SDWA, this report includes statistics on the number and types of regulated public water systems. It also provides tables that list all major amendments, with the year of enactment and public law number, and that crossreference sections of the act with the major U.S. Code sections of the codified statute.


Date of Report: December 10, 2010
Number of Pages: 22
Order Number: RL31243
Price: $29.95

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Deepwater Horizon Oil Spill: The Fate of the Oil

Jonathan L. Ramseur
Specialist in Environmental Policy

The April 20, 2010, explosion of the Deepwater Horizon offshore drilling rig led to the largest oil spill in U.S. waters. Federal government officials estimated that the deepwater well ultimately released (over 84 days) over 200 million gallons (or 4.9 million barrels) of crude oil. Although decreasing amounts of oil were observed on the ocean surface following the well’s containment on July 15, 2010, oil spill response officials and researchers have found oil in other places. A pressing question that has been raised by many stakeholders is where did the oil go?

On August 4, 2010, the federal government released an estimate of the oil spill budget for the Deepwater Horizon incident. On November 23, 2010, the federal government released a peerreviewed “Technical Document” that further explained how the estimates were derived, and in some cases, modified the initial estimates. The oil budget estimates divide the released oil into seven categories, accounting for the following percentages of the total oil released. These categories generally fall into three groups: 

• • Human intervention: direct recovery from the well (17%); in situ burning (5%); skimmed (3%); chemically dispersed (16%). 
• • Natural Processes: naturally dispersed (13%); evaporated or dissolved (24%). 
• • Other (22%): refers to the oil remaining after subtracting the above estimates from the total estimated release; possible fates include remaining in the water column, settling to the sea floor, mixing with sediment, ingested by microbes, or collected during shore cleanup activities. 

Direct observation and measurement of the fate of the vast majority of the estimated 200 million gallons of oil presents a considerable challenge. In some cases, the estimates used to calculate these percentages contain considerable uncertainty. Even assuming that approximately half of the oil has been removed from the Gulf ecosystem through direct recovery, burning, skimming, or evaporation, the fate of the remaining (“other”) oil is unknown.

A complete and definitive answer to the question of the remaining oil is unknown at this juncture. It is debatable whether the fate of the remaining oil will ever be established conclusively, because multiple challenges hinder this objective: the complexity of the Gulf system; resources required to collect data; and varied interpretations over the results and observations. Moreover, as time progresses, determining the fate of the oil will likely become more difficult. Regardless, the question of oil fate will likely be answered through an incremental process. Researchers are continuing to study various components of the Gulf, specifically damages to natural resources. Some of these efforts may provide clues to the oil’s fate.

Because evaluating the actual fate of the oil may take time and may prove difficult, perceptions of the oil’s fate may influence congressional interest and action, with consequences for the affected stakeholders. The perception of the spill’s fate may be influenced by multiple factors, including oil spill assessments, the group that prepared the assessment, and the manner in which the assessment is presented. If policymakers have the perception that the oil has degraded with minimal impacts to the environment, attention to the oil spill’s consequences and associated impacts may wane. On the other hand, a perception that a substantial volume of oil remains and poses a threat to the environment could result in continuing pressure on Gulf industries and livelihoods.


Date of Report: December 16, 2010
Number of Pages: 24-
Order Number: R41531
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Litigation Seeking to Establish Climate Change Impacts as a Common Law Nuisance

Robert Meltz
Legislative Attorney/Acting Section Research Manager

Congressional inaction on climate change has led various entities to pursue climate change measures off Capitol Hill. Either in hopes of realizing substantive measures or to pressure Congress to act, such entities have looked to international forums, treaty negotiations, Environmental Protection Agency (EPA) action under the Clean Air Act, state and regional efforts, and—the topic here—lawsuits seeking to establish climate change impacts as a common law nuisance. If congressional efforts to block or delay EPA from addressing greenhouse gas (GHG) emissions are successful, that likely will give added importance to such nuisance suits. As background, a private nuisance is a substantial and unreasonable invasion of another’s interest in the private use and enjoyment of land, without involving trespass; a public nuisance is an unreasonable interference with a right common to the general public.

In litigating a climate-change/nuisance suit, several issues arise at the outset and, if resolved against the plaintiff, prevent a claim from proceeding. First, there is the question whether the federal common law of nuisance has been displaced yet by EPA regulation of GHG emissions under the Clean Air Act. A second threshold issue is standing to sue, which asks whether a given party is an appropriate one to invoke the jurisdiction of a federal court. As developed by the Supreme Court, the Constitution requires that for a plaintiff to have standing in federal court, he/she must show injury in fact, that the injury was caused by the defendant, and that the remedy sought likely will ameliorate the injury. Suits seeking relief based on climate change claims have run into difficulty with one or more of these requirements. A third threshold issue is the political question doctrine, which is designed to restrain the judiciary from inappropriately interfering in matters reposed in the other branches of government. For example, the defendants in one case argued that one indicium of a political question—the Constitution’s textual commitment of the issue to the executive or legislative branch—is displayed by climate change because using a nuisance case to reduce U.S. CO2 emissions undermines the President’s constitutional authority to manage foreign relations—in particular, to induce other nations to reduce their CO2 emissions.

There are five common law/nuisance suits addressing climate change now or formerly active. Of the two no longer active, neither was successful. Of the three still-active cases, one has recently leaped to center stage because the Supreme Court agreed to hear it. In Connecticut v. American Electric Power Co., Inc., eight states sued five utility companies alleged to be emitting the most GHGs in the nation through their coal-fired electric power plants. Following a Second Circuit decision, the Supreme Court agreed on December 6, 2010, to resolve threshold issues in this case.

The other two active cases are (1) Comer v. Murphy Oil USA, a suit against certain oil, coal, and chemical companies in Mississippi arguing that their GHG emissions contributed to making Hurricane Katrina more severe and thus damaged plaintiffs’ property (now before the Supreme Court on a mandamus petition challenging the Fifth Circuit’s dismissal of the appeal based on the circuit’s lack of a quorum); and (2) Native Village of Kivalina v. ExxonMobil Corp., in which a coastal Eskimo village sued 24 oil and energy companies, claiming that the large quantities of GHGs they emit contribute to climate change, which is causing coastal erosion that will require relocating the village (now pending before the Ninth Circuit). The fortunes of Comer and Native Village of Kivalina may well be affected by the Supreme Court decision in Connecticut.


Date of Report: December 10, 2010
Number of Pages: 13-
Order Number: R41496
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Clean Air Issues in the 111th Congress

James E. McCarthy
Specialist in Environmental Policy

EPA regulatory actions on greenhouse gas (GHG) emissions using existing Clean Air Act authority have been the main focus of congressional interest in clean air issues in recent months. Although the agency and the Obama Administration have consistently said that they would prefer that Congress pass legislation to address climate change, EPA has begun to develop regulations using its existing authority. On December 15, 2009, the agency finalized an “endangerment finding” under Section 202 of the Clean Air Act, which permits it (in fact, requires it) to regulate pollutants for their effect as greenhouse gases for the first time. Relying on this finding, EPA finalized GHG emission standards for cars and light trucks, April 1, 2010. The implementation of these standards will, in turn, trigger permitting requirements and the imposition of Best Available Control Technology for new major stationary sources of GHGs in January 2011.

It is the triggering of standards for stationary sources (power plants, manufacturing facilities, etc.) that has raised the most concern in Congress: legislation has been introduced in both the House and Senate aimed at preventing EPA from implementing these requirements. The legislation has taken several forms, including the introduction of resolutions of disapproval for the endangerment finding itself under the Congressional Review Act, and stand-alone legislation that would forestall specific EPA regulatory actions. Meanwhile, EPA has itself promulgated regulations and guidance that will limit the applicability of Clean Air Act GHG requirements, delaying the applicability of requirements for all stationary sources until 2011 through guidance published April 2, 2010, and focusing its regulatory efforts on the largest emitters while granting smaller sources at least a six-year reprieve through what it calls the Greenhouse Gas “Tailoring Rule.”

The endangerment finding and EPA’s other actions, which were triggered by a 2007 Supreme Court decision, came as Congress struggled with climate change and energy legislation. On June 26, 2009, the House narrowly passed H.R. 2454, a 1,428-page bill addressing a number of interrelated energy and climate change issues. The bill would have established a cap-and-trade program for greenhouse gas (GHG) emissions, beginning in 2012. In the Senate, both the Environment and Public Works Committee and the Energy and Natural Resources Committee reported bills (S. 1733 and S. 1462), but action subsequently bogged down, while a trio of Senators began negotiating a climate bill from scratch. As the clock wound down on the 111th Congress, it became less likely that climate legislation would be enacted, and more likely that EPA’s actions would be the principal U.S. response to climate issues for now.

Besides addressing climate change, EPA has taken action on a number of conventional air pollutants, generally in response to the courts. Several Bush Administration regulatory decisions were vacated or remanded to the agency: among them, the Clean Air Interstate Rule (CAIR)—a rule designed to control the long-range transport of sulfur dioxide and nitrogen oxides from power plants, by establishing a cap-and-trade program—and the Clean Air Mercury Rule, which would have established a cap-and-trade program for power plant mercury emissions. EPA will address these court decisions through new regulations—the agency proposed a replacement for CAIR July 6. Some in Congress have wanted to address these issues through legislation, an approach that might reduce the likelihood of further court challenges. The agency is also in the midst of reviewing ambient air quality standards for the six most widespread air pollutants. These standards serve as EPA’s definition of clean air, and drive a wide range of regulatory controls.

This report provides an overview of clean air legislative and regulatory issues. More detailed information on most of the issues can be found in other CRS reports, which are referenced throughout this report.


Date of Report: December 7, 2010
Number of Pages: 31
Order Number: R40145
Price: $29.95

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