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Wednesday, June 22, 2011

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. In April 2011, the agencies proposed revised guidance intended to clarify whether waters are protected by the CWA, but this proposal is controversial. 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. Similar legislation has not been introduced in the 112th Congress.

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,” meaning “waters of the United States,” 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: June 3, 2011
Number of Pages: 28
Order Number: RL33263
Price: $29.95

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Friday, June 3, 2011

Federally Supported Water Supply and Wastewater Treatment Programs


Claudia Copeland, Coordinator
Specialist in Resources and Environmental Policy

Betsy A. Cody
Specialist in Natural Resources Policy

Mary Tiemann
Specialist in Environmental Policy

Nicole T. Carter
Specialist in Natural Resources Policy

Megan Stubbs
Analyst in Agricultural Conservation and Natural Resources Policy

Charles V. Stern
Analyst in Natural Resources Policy


Although the federal government has played a significant role in developing water quality regulations and standards for municipal and industrial (M&I) water use, it historically has provided a relatively small percentage of the funding for construction of water supply and treatment facilities for M&I uses. Yet, several programs exist to assist communities with development of water supply and treatment projects, and it appears that Congress is more frequently being asked to authorize direct financial and technical assistance for developing or treating water supplies for M&I use.

This report provides background information on the types of water supply and wastewater treatment projects traditionally funded by the federal government and the several existing programs to assist communities with water supply and wastewater recycling and treatment. These projects and programs are found primarily within the Department of Agriculture (USDA), Department of Commerce, Department of Defense (DOD), Department of Housing and Urban Development (HUD), Department of the Interior (DOI), and the Environmental Protection Agency (EPA).

The focus of some programs has been enlarged over the years. The Department of the Interior’s Bureau of Reclamation (Reclamation) was established to implement the Reclamation Act of 1902, which authorized the construction of water works to provide water for irrigation in arid western states. Congress subsequently authorized other uses of project water, including M&I use. Even so, the emphasis of Reclamation’s operations was to provide water for irrigation. Similarly, the U.S. Army Corps of Engineers (DOD) constructed large reservoirs primarily for flood control, but was authorized in 1958 to allocate water for M&I purposes. Over the past 30-plus years, Congress has authorized and refined several programs to assist local communities in addressing other water supply and wastewater problems. These programs serve generally different purposes and have different financing mechanisms; however, there is some overlap.

Federal funding for the programs and projects discussed in this report varies greatly. For example, in FY2011 Congress provided $963 million appropriations for grants to states under EPA’s State Revolving Fund (SRF) loan program for drinking water facilities and $1.5 billion for EPA’s SRF program for wastewater facilities; funds appropriated for the USDA’s rural water and waste disposal grant and loan programs are $527 million for FY2011; HUD Community Development Block Grant (CDBG) funds (used partly but not exclusively for water and wastewater projects) are $3.3 billion for FY2011. In contrast, Reclamation’s Title 16 reclamation/recycling projects are scheduled to receive $20.5 million under the agency’s FY2011 operating plan.

For each of the projects and programs discussed, this report describes project or program purposes, financing mechanisms, eligibility requirements, recent funding, and the Administration’s FY2012 budget request.



Date of Report: May 27, 2011
Number of Pages: 33
Order Number: RL30478
Price: $29.95

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The Global Climate Change Initiative (GCCI): Budget Authority and Request, FY2008-FY2012


Richard K. Lattanzio
Analyst in Environmental Policy

The United States supports international financial assistance for global climate change initiatives in developing countries. Under the Obama Administration, this assistance has been articulated primarily as the Global Climate Change Initiative (GCCI), a major strategic platform within the President’s 2010 Policy Directive on Global Development. The GCCI aims to integrate climate change considerations into relevant foreign assistance through a full range of bilateral, multilateral, and private sector mechanisms to foster low-carbon growth, promote sustainable and resilient societies, and reduce emissions from deforestation and land degradation. The GCCI is implemented through programs at the Department of State, the Department of the Treasury, and the U.S. Agency for International Development (USAID), and is funded through the Administration’s Executive Budget, Function 150 account, for State, Foreign Operations, and Related Programs.

Congress is responsible for several activities in regard to the GCCI, including (1) authorizing periodic appropriations for federal agency programs and multilateral fund contributions, (2) enacting those appropriations, (3) providing guidance to the agencies, and (4) overseeing U.S. interests in the programs and the multilateral funds. Recent budget authority for the GCCI was $323 million in FY2009 and $1,003 million in FY2010, and has been enacted through legislation including the Omnibus Appropriations Act, 2009 (H.R. 1105; P.L. 111-8); the Consolidated Appropriations Act, 2010 (H.R. 3288/div.F; P.L. 111-117); the Supplemental Appropriations Act, 2010 (H.R. 4899; P.L. 111-212); and the Department of Defense and Full-Year Continuing Appropriations Act, 2011 (H.R. 1473; P.L. 112-10). The Administration’s GCCI FY2012 budget request is $1,328 million. Congressional committees of jurisdiction for the GCCI include the U.S. House of Representatives Committees on Foreign Affairs (various subcommittees); Financial Services, Subcommittee on International Monetary Policy and Trade; and Appropriations, Subcommittee on State, Foreign Operations, and Related Programs; and the U.S. Senate Committees on Foreign Relations, Subcommittee on International Development and Foreign Assistance, Economic Affairs, and International Environmental Protection; and Appropriations, Subcommittee on State, Foreign Operations, and Related Programs.

As Congress considers potential authorizations and/or appropriations for initiatives administered through the GCCI, it may have questions concerning U.S. agency initiatives and current bilateral and multilateral programs that address global climate change. Some potential concerns may include cost, purpose, direction, efficiency, and effectiveness, as well as the GCCI’s relationship to industry, investment, humanitarian efforts, national security, and international leadership. This report serves as a brief overview of the GCCI, its structure, intents, and funding history. For a more detailed discussion of international financial assistance for climate change activities, see CRS Report R41808, International Climate Change Financing: Needs, Sources, and Delivery Methods, by Richard K. Lattanzio and Jane A. Leggett.



Date of Report: June 1, 2011
Number of Pages: 14
Order Number: R41845
Price: $29.95

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Thursday, June 2, 2011

The Regional Greenhouse Gas Initiative: Lessons Learned and Issues for Policymakers

Jonathan L. Ramseur
Specialist in Environmental Policy

The Regional Greenhouse Gas Initiative (RGGI) is the nation’s first mandatory cap-and-trade program for greenhouse gas (GHG) emissions. RGGI took effect January 1, 2009. RGGI involves 10 states—Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, and Vermont. The RGGI cap-and-trade system applies only to carbon dioxide (CO2) emissions from electric power plants with capacities to generate 25 megawatts or more—approximately 200 facilities. Compared to recent federal proposals, the reductions required by RGGI’s cap are relatively modest: the initial objective of RGGI is to stabilize CO2 emissions for several years (2009-2014), and then require gradual reductions, achieving a 10% decrease from the 2009 emission cap level by 2019.

The initial results of the RGGI program may be instructive to policymakers, because RGGI may serve as a possible test case for a federal cap-and-trade program, providing insights into the mechanics of various design elements and lessons of potential design pitfalls. Several of RGGI’s design elements generated considerable interest during the development and debate of federal proposals to address GHG emissions.

RGGI has encountered several design challenges that have and may continue to undermine the overall objectives of the program. First, the program’s emission cap exceeds actual emissions. This means that since the cap took effect in 2009, the cap has not compelled regulated entities to make internal emission reductions or purchase emission credits from other sources. Second, a critical design detail—electricity imports from non-RGGI states—remains unresolved. Emissions associated with imported electricity are not controlled by the RGGI program. This presents an opportunity for emissions to shift from a controlled area to an uncontrolled area, a process known as emissions leakage that could undermine the effectiveness of the RGGI program. However, recent evidence does not indicate this has occurred.

Although RGGI’s emission cap is not expected to require emission reductions in the near future, the program has had some effects. First, the cap’s existence attaches a price to the regulated entities’ CO
2 emissions. Because the cap is non-binding, this price acts like an emissions fee or carbon tax. A 2010 analysis of the RGGI program concluded that the emission allowance price accounted for approximately 3.4% of the change in the relative prices of natural gas and coal in the RGGI region between 2005 and 2009. Second, the RGGI emission allowances, which are essentially a new form of currency, have been used to support various policy objectives. Of the various objectives, RGGI states (as a group) have contributed the most—52% of auction revenues—to support energy efficiency efforts. Several RGGI studies indicate that supporting energy efficiency provides multiple benefits: emission reduction, consumer savings via lower electricity bills, and job creation.

As a group, the RGGI states represent approximately 10% of U.S. CO
2 emissions. RGGI’s emissions rank above many of the major industrial nations. But from a practical standpoint, the RGGI program’s contribution to directly reducing the global accumulation of GHG emissions in the atmosphere is arguably negligible. However, RGGI’s activities may stimulate action in other states or at the federal level: when confronted with a growing patchwork of state/regional requirements, industry stakeholders may support a singular national policy. Moreover, RGGI may create examples and/or models that serve as a test case for federal policymakers crafting more widespread applications.


Date of Report: May 24, 2011
Number of Pages: 19
Order Number: R41836
Price: $29.95

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Wednesday, June 1, 2011

Hydraulic Fracturing and Safe Drinking Water Act Issues


Mary Tiemann
Specialist in Environmental Policy

Adam Vann
Legislative Attorney


Hydraulic fracturing is a technique developed initially to stimulate oil production from wells in declining oil reservoirs. More recently, it has been used to initiate oil and gas production in unconventional (i.e., low-permeability) reservoirs where these resources were previously inaccessible. This process now is used in more than 90% of new oil and gas production wells. Hydraulic fracturing is done after a well is drilled and involves injecting large volumes of water, sand (or other propping agent), and specialized chemicals under enough pressure to fracture the formations holding the oil or gas. The sand or other proppant holds the fractures open to allow the oil or gas to flow freely out of the formation and into a production well.

Its application, along with horizontal drilling, for production of natural gas (methane) from coal beds, tight gas sands, and, more recently, from unconventional gas shale formations, has resulted in the marked expansion of estimated U.S. natural gas reserves in recent years. Similarly, hydraulic fracturing is enabling the development of unconventional domestic oil resources, such as the Bakken Formation in North Dakota and Montana. However, the rapidly increasing and geographically expanding use of fracturing, along with a growing number of citizen complaints and state investigations of well water contamination attributed to this practice, has led to calls for greater state and/or federal environmental regulation and oversight of this activity.

Historically, the Environmental Protection Agency (EPA) had not regulated the underground injection of fluids for hydraulic fracturing of oil or gas production wells. In 1997, the U.S. Court of Appeals for the 11
th Circuit ruled that fracturing for coalbed methane (CBM) production in Alabama constituted underground injection and must be regulated under the Safe Drinking Water Act (SDWA). This ruling led EPA to study the risk that hydraulic fracturing for CBM production might pose to drinking water sources. In 2004, EPA reported that the risk was small, except where diesel was used, and that regulation was not needed. However, to address regulatory uncertainty the ruling created, the Energy Policy Act of 2005 (EPAct 2005) revised the SDWA term “underground injection” to explicitly exclude the injection of fluids and propping agents (except diesel fuel) used for hydraulic fracturing purposes. Consequently, EPA currently lacks authority under the SDWA to regulate hydraulic fracturing, except where diesel fuel is used. However, as the use of this process has grown, some in Congress would like to revisit this statutory exclusion.

In the 112
th Congress, H.R. 1084 and S. 587, the Fracturing Responsibility and Awareness of Chemicals Act (FRAC Act), have been introduced. The legislation would repeal the exemption for hydraulic fracturing operations that was established in EPAct 2005, and would amend the term “underground injection” to include explicitly the injection of fluids used in hydraulic fracturing operations related to oil and gas production, thus authorizing EPA to regulate this process under the SDWA. The bills also would require disclosure of the chemicals used in the fracturing process. EPA’s FY2010 appropriations act directed EPA to study the relationship between hydraulic fracturing and drinking water. The interim report, expected in 2012, may help inform Congress on whether federal action is needed. Meanwhile, various states are reviewing, and some have revised, their oil and gas rules to address the increased use of hydraulic fracturing.

This report reviews past and proposed treatment of hydraulic fracturing under the SDWA, the principal federal statute for regulating the underground injection of fluids to protect groundwater sources of drinking water. It reviews current SDWA provisions for regulating underground injection activities, and discusses some possible implications of, and issues associated with, enactment of legislation authorizing EPA to regulate hydraulic fracturing under this statute.



Date of Report: May 18, 2011
Number of Pages: 38
Order Number: R41760
Price: $29.95

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