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Thursday, March 31, 2011

Clean Water Act: A Summary of the Law

Claudia Copeland
Specialist in Resources and Environmental Policy

The principal law governing pollution of the nation’s surface waters is the Federal Water Pollution Control Act, or Clean Water Act. Originally enacted in 1948, it was totally revised by amendments in 1972 that gave the act its current shape. The 1972 legislation spelled out ambitious programs for water quality improvement that have since been expanded and are still being implemented by industries and municipalities.

This report presents a summary of the law, describing the essence of the statute without discussing its implementation. Other CRS reports discuss implementation, including CRS Report R41594, Water Quality Issues in the 112
th Congress: Oversight and Implementation, by Claudia Copeland, and numerous products cited in that report.

The Clean Water Act consists of two major parts, one being the provisions which authorize federal financial assistance for municipal sewage treatment plant construction. The other is the regulatory requirements that apply to industrial and municipal dischargers. The act has been termed a technology-forcing statute because of the rigorous demands placed on those who are regulated by it to achieve higher and higher levels of pollution abatement under deadlines specified in the law. Early on, emphasis was on controlling discharges of conventional pollutants (e.g., suspended solids or bacteria that are biodegradable and occur naturally in the aquatic environment), while control of toxic pollutant discharges has been a key focus of water quality programs more recently.

Prior to 1987, programs were primarily directed at point source pollution, wastes discharged from discrete sources such as pipes and outfalls. Amendments to the law in that year authorized measures to address nonpoint source pollution (stormwater runoff from farm lands, forests, construction sites, and urban areas), which is estimated to represent more than 50% of the nation’s remaining water pollution problems.

Under this act, federal jurisdiction is broad, particularly regarding establishment of national standards or effluent limitations. Certain responsibilities are delegated to the states, and the act embodies a philosophy of federal-state partnership in which the federal government sets the agenda and standards for pollution abatement, while states carry out day-to-day activities of implementation and enforcement.

To achieve its objectives, the act is based on the concept that all discharges into the nation’s waters are unlawful, unless specifically authorized by a permit, which is the act’s principal enforcement tool. The law has civil, criminal, and administrative enforcement provisions and also permits citizen suit enforcement.

Financial assistance for constructing municipal sewage treatment plants and certain other types of water quality improvements projects is authorized under title VI. It authorizes grants to capitalize State Water Pollution Control Revolving Funds, or loan programs. States contribute matching funds, and under the revolving loan fund concept, monies used for wastewater treatment construction will be repaid to a state, to be available for future construction in other communities.



Date of Report: March 24, 2011
Number of Pages: 14
Order Number: RL30030
Price: $29.95

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The Wetlands Coverage of the Clean Water Act (CWA) Is Revisited by the Supreme Court: Rapanos v. United States


Robert Meltz
Legislative Attorney

Claudia Copeland
Specialist in Resources and Environmental Policy


In 1985 and 2001, the Supreme Court grappled with issues as to the geographic scope of the wetlands permitting program in the federal Clean Water Act (CWA). In 2006, the Supreme Court rendered a third decision, Rapanos v. United States, on appeal from two Sixth Circuit rulings. The Sixth Circuit rulings offered the Court a chance to clarify the reach of CWA jurisdiction over wetlands adjacent only to nonnavigable tributaries of traditional navigable waters—including tributaries such as drainage ditches and canals that may flow intermittently. (Jurisdiction over wetlands adjacent to traditional navigable waters was established in one of the two earlier decisions.)

The Court’s decision provided little clarification, however, splitting 4-1-4. The four-justice plurality decision, by Justice Scalia, said that the CWA covers only wetlands connected to relatively permanent bodies of water (streams, rivers, lakes) by a continuous surface connection. Justice Kennedy, writing alone, demanded a substantial nexus between the wetland and a traditional navigable water, using an ambiguous ecological test. Justice Stevens, for the four dissenters, would have upheld the existing broad reach of Corps of Engineers/EPA regulations. Because no rationale commanded the support of a majority of the justices, lower courts are extracting different rules of decision from Rapanos for resolving future cases. Corps/EPA guidance issued in December 2008 says that a wetland generally is jurisdictional if it satisfies either the plurality or Kennedy tests. The ambiguity of the Rapanos decision and questions about the agencies’ guidance have increased pressure on EPA and the Corps to initiate a rulemaking to promulgate new regulations, but also on Congress to provide clarification. In the 111
th Congress, legislation intended to do so was approved by a Senate committee (S. 787, the Clean Water Restoration Act), but no further legislative action occurred.

The legal and policy questions associated with Rapanos—regarding the outer geographic limit of CWA jurisdiction and the consequences of restricting that scope—have challenged regulators, landowners and developers, and policymakers for more than 30 years. The answer may determine the reach of CWA regulatory authority not only for the wetlands permitting program but also for other CWA programs; the CWA has one definition of “navigable waters” that applies to the entire law.

While regulators and the regulated community debate the legal dimensions of federal jurisdiction under the CWA, scientists contend that there are no discrete, scientifically supportable boundaries or criteria along the continuum of wetlands to separate them into meaningful ecological or hydrological compartments. Wetland scientists believe that all such waters are critical for protecting the integrity of waters, habitat, and wildlife downstream. Changes in the limits of federal jurisdiction highlight the role of states in protecting waters not addressed by federal law. From the states’ perspective, federal programs provide a baseline for consistent, minimum standards to regulate wetlands and other waters. Most states are either reluctant or unable to take steps to protect non-jurisdictional waters through legislative or administrative action.



Date of Report: March 14, 2011
Number of Pages: 24
Order Number: RL33263
Price: $29.95

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Wednesday, March 23, 2011

Pesticide Use and Water Quality: Are the Laws Complementary or in Conflict?


Claudia Copeland
Specialist in Resources and Environmental Policy

This report provides background on the emerging conflict over interpretation and implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Clean Water Act (CWA). For the more than 30 years since they were enacted, there had been little apparent conflict between them. But their relationship has recently been challenged in several arenas, including the federal courts and regulatory proceedings of the Environmental Protection Agency (EPA). In this report, a brief discussion of the two laws is followed by a review of the major litigation of interest. EPA’s efforts to clarify its policy in this area are discussed, including a regulation issued in 2006 that was subsequently vacated by a federal court, as well as possible options for EPA and Congress to address the issues further.

FIFRA governs the labeling, distribution, sale, and use of pesticides, including insecticides and herbicides. Its objective is to protect human health and the environment from unreasonable adverse effects of pesticides. It establishes a nationally uniform labeling system requiring the registration of all pesticides sold in the United States, and requiring users to comply with the national label. The CWA creates a comprehensive regulatory scheme to control the discharge of pollutants into the nation’s waters; the discharge of pollutants without a permit violates the act.

Several federal court cases testing the relationship between FIFRA and the CWA have drawn attention since 2001. In two cases concerning pesticide applications by agriculture and natural resources managers, the U.S. Ninth Circuit Court of Appeals held that CWA permits are required for at least some discharges of FIFRA-regulated pesticides over, into, or near U.S. waters. It held in a third case that no permit was required for the specific pesticide in question. Most recently, the U.S. Second Circuit Court of Appeals ruled in 2010 that a CWA discharge permit for mosquito control activities is not required before April 2011.

Several of the rulings alarmed a range of stakeholders who fear that requiring CWA permits for pesticide application activities would present significant costs, operational difficulties, and delays. Pressed to clarify its long-standing principle that CWA permits are not required for using FIFRA-approved products, EPA in 2006 issued a rule to formalize that principle in regulations. Environmental activists strongly opposed EPA’s actions, arguing that FIFRA does not protect water quality from harmful pollutant discharges, as the CWA is intended to do. Other stakeholders, such as pesticide applicators, endorsed the rule. The rule was challenged, and in 2009 a federal court vacated the regulation. Several industry groups petitioned for a rehearing on the court’s ruling, while the federal government asked the court to stay the order vacating the exemption for two years (until April 2011), to provide time for working with states to develop a general permit for pesticide applications covered by the decision. The court denied the request for rehearing and granted a two-year delay. EPA proposed a draft general permit in June 2010 and is working on promulgation of a final permit. EPA now expects to issue the permit by July 2011; the government has asked the court for additional time to implement it (until October 31, 2011).

Some believe that the controversy will only be resolved by congressional action to clarify the intersecting scope of the Clean Water Act and FIFRA. Legislation intended to nullify the 2009 federal court ruling has been introduced in the 112
th Congress (H.R. 872) and has been approved by a House committee.


Date of Report: March 9, 2011
Number of Pages: 18
Order Number: RL32884
Price: $29.95

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Monday, March 21, 2011

H.R. 1 Full-Year FY2011 Continuing Resolution: Overview of Environmental Protection Agency (EPA) Provisions

Robert Esworthy
Specialist in Environmental Policy

As of the date of this report, none of the 12 FY2011 regular appropriations bills had been finalized. On February 19, 2011, the House passed H.R. 1, funding 11 of the 12 regular FY2011 appropriations bills in the form of a full-year continuing resolution (CR) within Division B (Division A separately provided FY2011 appropriations for the Department of Defense, which is the 12th bill). Title VII of Division B in H.R. 1, as passed by the House, included specified funding levels for certain Environmental Protection Agency (EPA) accounts. Title VII of Division B, as well as Division D of the House-passed bill, combined contained more than 20 provisions restricting or prohibiting the use of appropriated funds to implement various regulatory activities under the EPA’s jurisdiction. On March 9, 2011, the Senate did not pass the House version of H.R. 1 and did not agree to a subsequent Senate substitute amendment (S.Amdt. 149) containing different funding levels and generally omitting the EPA provisions included in the House-passed H.R. 1. As Congress is currently considering additional interim and full-year options for FY2011 appropriations, funding levels and related environmental regulatory issues particularly regarding EPA have remained a prominent topic in the ongoing debate.

A number of recent and pending regulatory actions were the focus of considerable debate during the House floor consideration of H.R. 1. These EPA actions cut across the various environmental pollution control statutes’ programs and initiatives, such as those that address greenhouse gas emissions, hazardous air pollutants (including mercury), mountaintop mining regulation, management of coal ash, particulate matter emissions, and water quality management including geographical ecosystems (notably Chesapeake Bay and the Great Lakes).

This report provides a summary of funding levels for EPA accounts and program activities specified in H.R. 1, as passed by the House and as proposed in the Senate amendment. The report also briefly highlights a number of these provisions regarding EPA program activities as presented in H.R. 1, as passed by the House. Only those provisions that are clearly identifiable by specific language or references contained in the bill are included. Nearly all of these EPA provisions were omitted from the Senate amendment (S.Amdt. 149). The information presented throughout this report is primarily an extraction of the bill language for purposes of reference and is not intended to provide a comprehensive analysis of all provisions in H.R. 1 that may directly or indirectly affect EPA programs.

To date, four temporary Continuing Resolutions (CRs) have been enacted that have sequentially extended funding from October 1, 2010, through March 18, 2011. H.J.Res. 48, passed by the House on March 16, 2011, would continue funding at reduced levels through April 8, 2011. Congress continues to deliberate on options for completing the FY2011 appropriations bills.



Date of Report: March 17, 2011
Number of Pages: 16
Order Number: R41698
Price: $29.95

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Monday, March 14, 2011

Oil Spill Legislation in the 112th Congress


Jonathan L. Ramseur
Specialist in Environmental Policy

The 2010 Deepwater Horizon oil spill in the Gulf of Mexico continues to generate interest in a variety of oil spill-related issues. This report summarizes key provisions of selected legislative proposals in the 112th Congress that address oil spill-related policy issues, many of which were raised after the 2010 Deepwater Horizon incident.

This report focuses primarily on oil spill policy matters that concern prevention, preparedness, response, liability and compensation, and Gulf restoration. For the most part, the underlying statutes for these provisions are found in either the Oil Pollution Act of 1990 (OPA, P.L. 101-380; 33 U.S.C. 2701 et seq.), the Clean Water Act (CWA) and its amendments (33 U.S.C. 1251 et seq.), or the Outer Continental Shelf Lands Act (OCSLA) and its amendments (43 U.S.C. § 1331 et seq.).

As of the date of this report, the most comprehensive proposal is H.R. 501 (Markey). This proposal includes many of the provisions that were part of H.R. 3534 (CLEAR Act), which passed the House in the 111
th Congress on July 30, 2010. In addition, H.R. 501 seeks to implement some of the recommendations offered in the final report (January 2011) from the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling.


Date of Report: March 11, 2011
Number of Pages: 15
Order Number: R41684
Price: $29.95

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Liability and Compensation Issues Raised by the 2010 Gulf Oil Spill


Jonathan L. Ramseur
Specialist in Environmental Policy

The 2010 Deepwater Horizon incident produced the largest oil spill that has occurred in U.S. waters, releasing more than 200 million gallons into the Gulf of Mexico. BP has estimated the combined oil spill costs—cleanup activities, natural resource and economic damages, potential Clean Water Act (CWA) penalties, and other obligations—will be approximately $41 billion.

The Deepwater Horizon oil spill raised many issues for policymakers, including the ability of the existing oil spill liability and compensation framework to respond to a catastrophic spill. This framework determines (1) who is responsible for paying for oil spill cleanup costs and the economic and natural resource damages from an oil spill; (2) how these costs and damages are defined (i.e., what is covered?); and (3) the degree to which, and conditions in which, the costs and damages are limited and/or shared by other parties, including general taxpayers.

The existing framework includes a combination of elements that distribute the costs of an oil spill between the responsible party (or parties) and the Oil Spill Liability Trust Fund (OSLTF), which is largely financed through a per-barrel tax on domestic and imported oil. Responsible parties are liable up to their liability caps (if applicable); the trust fund covers costs above liability limits up to a per-incident cap of $1 billion.

Policymakers may want to consider the magnitude of the Deepwater Horizon incident and the liability and compensation issues raised under a scenario in which BP had refused to finance response activities or establish a claims process to comply with the relevant OPA provisions. BP has either directly funded oil spill response operations or reimbursed the federal government for actions taken by various agencies. BP has paid damage claims well above its liability limit and outside the scope of its liable damages.

Although evidence indicates that the levels of current framework (liability limits and OSLTF) may be sufficient to address the more common mix of spills that have historically occurred, the current combination of liability limits and $1 billion per-incident OSLTF cap is not sufficient to withstand a spill with damages/costs that exceed a responsible party’s liability limit by $1 billion. Even if the per-incident cap were increased, the current (and projected) level of funds in the OSLTF may not be sufficient to address costs from a catastrophic spill.

The options available to address these issues depend upon on the overall objective of Congress. One objective—which has been expressed by many in and outside Congress—is to provide full restoration and timely compensation (i.e., through channels other than litigation) for the impacts from the spill, without directly burdening the general taxpayers. If this is the objective, Congress may consider some combination of (1) increasing the offshore facility liability limit and corresponding financial responsibility demonstration; (2) increasing the OSLTF per-incident cap; or (3) increasing the level of funds available in the OSLTF. In addition, policymakers may want to consider an industry-financed fund, akin to the nuclear power industry’s fund, that could supplement or potentially replace the current system.

Another objective might be to maintain the existing system, which may be sufficient to address all but the most extreme scenarios. Catastrophic spills in U.S. waters have historically been rare. Some may argue that establishing a system that can withstand a catastrophic event would impose costs and yield consequences that would not justify the (expected) ability to address a catastrophic event.



Date of Report: March 11, 2011
Number of Pages: 27
Order Number: R41679
Price: $29.95

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