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Friday, October 19, 2012

Environmental Protection Agency (EPA): Appropriations for FY2013



Robert Esworthy, Coordinator
Specialist in Environmental Policy

David M. Bearden
Specialist in Environmental Policy

Mary Tiemann
Specialist in Environmental Policy

Claudia Copeland
Specialist in Resources and Environmental Policy

James E. McCarthy
Specialist in Environmental Policy

Jane A. Leggett
Specialist in Energy and Environmental Policy


On September 28, 2012, the President signed a continuing resolution (P.L. 112-175, H.J.Res. 117) to provide appropriations for federal departments and agencies—including the Environmental Protection Agency (EPA)—funded under each of the regular appropriations bills through March 27, 2013, at FY2012 levels with an across-the-board increase of 0.612% unless otherwise specified. Subsequent to the passage of the joint resolution in Congress, the bipartisan leadership of the Senate Appropriations Subcommittee on Interior, Environment, and Related Agencies released a draft bill on September 25, 2012, that included $8.52 billion for EPA for FY2013. As reported July 10, 2012, by the House Committee on Appropriations, Title II of H.R. 6091, the Interior, Environment, and Related Agencies Act, 2013, included $7.06 billion for the EPA for FY2013, $1.28 billion (15.5%) below the President’s FY2013 request of $8.34 billion, and $1.39 billion (16.5%) below the FY2012 enacted appropriation of $8.45 billion. Although H.R. 6091 as reported proposed an overall decrease for EPA, it included both decreases and increases in funding for many individual programs and activities in the eight appropriations accounts that fund the agency compared with the FY2013 requested and FY2012 enacted levels.

The House committee-reported bill, H.R. 6091, would decrease funding for seven of the eight EPA appropriations accounts compared to the President’s FY2013 request, and for six of the accounts relative to FY2012 enacted levels. The largest decrease in H.R. 6091 as reported was for the State and Tribal Assistance Grants (STAG) account: $2.60 billion for FY2013, compared to $3.36 billion requested (23% decrease) and $3.61 billion for FY2012 (28% decrease). This account consistently contains the largest portion of the agency’s funding among the eight accounts. The majority of the proposed decrease is attributed to a combined $507.0 million reduction in funding for grants that provide financial assistance to states to help capitalize Clean Water and Drinking Water State Revolving Funds (SRFs). Respectively, these funds finance local wastewater and drinking water infrastructure projects. H.R. 6091 as reported included $689.0 million for Clean Water SRF capitalization grants and $829.0 million for Drinking Water SRF capitalization grants, compared to $1.18 billion and $850.0 million requested for FY2013, and $1.47 billion and $917.9 million appropriated for FY2012, respectively.

The STAG account also includes funds to support “categorical” grant programs. States and tribes use these grants to support the day-to-day implementation of environmental laws, such as monitoring, permitting and standard setting, training, and other pollution control and prevention activities, and these grants also assist multimedia projects. The $994.0 million total included for FY2013 for categorical grants in H.R. 6091 as reported is $208.4 million less than the $1.20 billion requested for FY2013, and $94.8 million below the $1.09 billion FY2012 enacted amount.

Other prominent issues receiving attention within the context of FY2013 EPA appropriations include funding for implementing certain air pollution control requirements including greenhouse gas emission regulations, climate change research and related activities, cleanup of hazardous waste sites under the Superfund program, cleanup of sites that tend to be less hazardous (referred to as brownfields), and cleanup of petroleum from leaking underground tanks. Additionally, several recent and pending EPA regulatory actions continued to be controversial in the FY2013 appropriations. H.R. 6091 as reported included a number of provisions (similar to those considered in the FY2012 appropriations debate, some of which were adopted for FY2012) that would restrict the use of funding for the development, implementation, and enforcement of certain EPA actions that cut across the various pollution control statutes’ programs and initiatives. These provisions were not included in the continuing resolution for FY2013 as enacted.



Date of Report: October 2, 2012
Number of Pages: 60
Order Number: R42520
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Monday, October 15, 2012

The EPA Draft Report of Groundwater Contamination Near Pavillion, Wyoming: Main Findings and Stakeholder Responses



Peter Folger
Specialist in Energy and Natural Resources Policy

Mary Tiemann
Specialist in Environmental Policy

David M. Bearden
Specialist in Environmental Policy


On December 8, 2011, the U.S. Environmental Protection Agency (EPA) issued a draft report on its investigation of groundwater contamination near the town of Pavillion, Wyoming. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), residents of Pavillion petitioned EPA, asking the agency to investigate whether groundwater contamination exists, its extent, and possible sources. EPA began its investigation in 2008. The EPA draft report indicated that certain constituents in groundwater are consistent with some of the constituents used in natural gas well operations, including the process of hydraulic fracturing. EPA claimed that its approach to the investigation best supports the explanation that different compounds associated with hydraulic fracturing have contaminated the aquifer used for domestic water supply in the Pavillion area. EPA also stated that its approach indicates that gas production activities have likely enhanced the migration of natural gas in the aquifer. EPA did not appear to conclude that there was a definitive link to a release from the production wells, nor to the constituents found in domestic wells in shallower parts of the aquifer.

Because the draft report linked groundwater contamination in Wyoming to activities related to hydraulic fracturing, it raised concerns about hydraulic fracturing practices in general. Some stakeholders took issue with some of the findings in the draft report. They questioned the scientific validity of EPA’s contention that “the explanation best fitting the data for the deep monitoring wells is that constituents associated with hydraulic fracturing have been released into the Wind River drinking water aquifer at depths above the current production zone.” Some environmental advocacy organizations cited EPA’s findings in calling for more stringent regulation of hydraulic fracturing. Various stakeholder groups commissioned independent assessments of EPA’s draft report and released their respective assessments in May 2012. An assessment commissioned by an industry organization disagreed with EPA’s findings, whereas an assessment commissioned by four environmental advocacy organizations supported the agency’s findings.

EPA’s draft report also has received attention within Congress. On January 20, 2012, 11 members of the Senate Environment and Public Works Committee sent a letter to EPA Administrator Lisa Jackson asking that the EPA investigation be considered a “highly influential scientific assessment and that any related, generated report is subject to the most rigorous, independent, and thorough external peer review process.” In the House, the Subcommittee on Energy and Environment of the Committee on Science, Space, and Technology held a hearing on February 1, 2012, to examine EPA’s findings.

In response to concerns about the adequacy of the original data, EPA worked with the U.S. Geological Survey and the State of Wyoming to collect additional samples from two deep monitoring wells installed by EPA. On September 26, 2012, the USGS released two reports regarding their sampling program for the two wells. The USGS provided raw data from only one well because the second well did not yield enough water to collect representative samples. A news report cited an EPA spokesperson stating that the USGS sampling results were generally consistent with findings from the earlier EPA draft report. An industry spokesperson stated that there was nothing surprising in the USGS results, based on a preliminary examination of the data.

EPA extended the public comment period on its draft report from March 12, 2012, to October 16, 2012. Similarly, EPA has postponed convening a panel of independent scientists to review the draft report until the additional sampling and analysis are completed.



Date of Report: October 1, 2012
Number of Pages: 30
Order Number: R42327
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Water Quality Issues in the 112th Congress: Oversight and Implementation



Claudia Copeland
Specialist in Resources and Environmental Policy

Much progress has been made in achieving the ambitious goals that Congress established nearly 40 years ago in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. However, long-standing problems persist, and new problems have emerged. Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse or “nonpoint” sources, to toxic substances discharged from factories and sewage treatment plants.

There is little agreement among stakeholders about what solutions are needed and whether new legislation is required to address the nation’s remaining water pollution problems. For some time, efforts to comprehensively amend the CWA have stalled as interests have debated whether and exactly how to change the law. Congress has instead focused legislative attention on enacting narrow bills to extend or modify selected CWA programs, but not any comprehensive proposals.

For several years, the most prominent legislative water quality issue has concerned financial assistance for municipal wastewater treatment projects. House and Senate committees have approved bills on several occasions, but, for various reasons, no legislation has been enacted. At issue has been the role of the federal government in assisting states and cities in meeting needs to rebuild, repair, and upgrade wastewater treatment plants, especially in light of capital costs that are projected to be as much as $390 billion. In the 111th Congress, the House passed H.R. 1262 to reauthorize the CWA’s State Revolving Fund (SRF) program to finance wastewater infrastructure, and a companion bill, S. 1005, was approved by the Senate Environment and Public Works Committee. No legislation was enacted. Reauthorization legislation has been introduced again in the 112th Congress (H.R. 3145).

Programs that regulate activities in wetlands also have been of interest, especially CWA Section 404, which has been criticized by landowners for intruding on private land-use decisions and imposing excessive economic burdens. Environmentalists view this regulatory program as essential for maintaining the health of wetland ecosystems, and they are concerned about court rulings that have narrowed regulatory protection of wetlands and about related administrative actions. Many stakeholders desire clarification of the act’s regulatory jurisdiction, but they differ on what solutions are appropriate. In the 111th Congress, the Senate Environment and Public Works Committee approved a bill that sought to clarify but not expand the CWA’s geographic scope (S. 787). Because some stakeholders believe that the bills would expand federal jurisdiction—not simply clarify it—the bills were controversial, and no legislation was enacted. In contrast to approaches reflected in earlier proposals, bills in the 112th Congress would narrow the scope of the act’s jurisdiction (S. 2122/H.R. 4304).

These issues have drawn interest in the 112th Congress, as well. In addition, a number of other CWA issues have been the subject of congressional oversight and legislation, with some legislators highly critical of recent regulatory initiatives and others more supportive of EPA’s actions. Among the topics of interest are environmental and economic impacts of Chesapeake Bay restoration efforts, federal promulgation of water quality standards in Florida, regulation of surface coal mining activities in Appalachia, and other CWA regulatory actions. Congressional interest in several of these issues has been reflected in debate over policy provisions of legislation to provide appropriations for EPA in FY2012 (P.L. 112-74) and FY2013 (H.R. 6091).



Date of Report: October 5, 2012
Number of Pages: 27
Order Number: R41594
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EPA Regulations: Too Much, Too Little, or On Track?



James E. McCarthy
Specialist in Environmental Policy

Claudia Copeland
Specialist in Resources and Environmental Policy

Since Barack Obama was sworn in as President in 2009, the Environmental Protection Agency (EPA) has proposed and promulgated numerous regulations implementing the pollution control statutes enacted by Congress. Critics have reacted strongly. Many, both within Congress and outside of it, have accused the agency of reaching beyond the authority given it by Congress and ignoring or underestimating the costs and economic impacts of proposed and promulgated rules. The House has conducted vigorous oversight of the agency in the 112th Congress, and has approved several bills that would overturn specific regulations or limit the agency’s authority. Particular attention is being paid to the Clean Air Act, under which EPA has moved forward with the first federal controls on emissions of greenhouse gases and also addressed emissions of conventional pollutants from a number of industries.

Environmental groups and others disagree that the agency has overreached, and EPA states that critics’ focus on the cost of controls obscures the benefits of new regulations, which, it estimates, far exceed the costs; and it maintains that pollution control is an important source of economic activity, exports, and American jobs. Further, the agency and its supporters say that EPA is carrying out the mandates detailed by Congress in the federal environmental statutes.

This report provides background information on recent EPA regulatory activity to help address these issues. It examines 45 major or controversial regulatory actions taken by or under development at EPA since January 2009, providing details on the regulatory action itself, presenting an estimated timeline for completion of the rule (including identification of related court or statutory deadlines), and, in general, providing EPA’s estimates of costs and benefits, where available. The report includes tables that show which rules have been finalized and which remain under development.

The report also discusses factors that affect the timeframe in which regulations take effect, including statutory and judicial deadlines, public comment periods, judicial review, and permitting procedures, the net results of which are that existing facilities are likely to have several years before being required to comply with most of the regulatory actions under discussion. Unable to account for such factors, which will vary from case to case, timelines that show dates for proposal and promulgation of EPA standards effectively underestimate the complexities of the regulatory process and overstate the near-term impact of many of the regulatory actions.



Date of Report: October 5, 2012
Number of Pages: 46
Order Number: R41561
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Wednesday, October 10, 2012

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 NiƱo 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. This report summarizes the proceedings on the BiOps issued since 2004.



Date of Report: September 13, 2012
Number of Pages: 12
Order Number: R41876
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