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 more than 35 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 several related provisions of the act. A companion bill, S. 1005, was approved by the Senate Environment and Public Works Committee. No legislation was enacted.

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 (the Clean Water Restoration Act, S. 787). A companion bill was introduced in the House (H.R. 5088). Because some stakeholders believe that the bills would expand federal jurisdiction—not simply clarify it—the bills were controversial, and no legislation was enacted.

These issues are likely to be of interest in the 112th Congress, as well. In addition, a number of other CWA issues have drawn interest recently and 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 is reflected in policy provisions of H.R. 2584, providing FY2012 appropriations for EPA.


Date of Report: November 7, 2011
Number of Pages: 25
Order Number: R41594
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Animal Waste and Water Quality: EPA’s Response to the Waterkeeper Alliance Court Decision on Regulation of CAFOs

Claudia Copeland
Specialist in Resources and Environmental Policy

In October 2008, the Environmental Protection Agency (EPA) issued a regulation to revise a 2003 Clean Water Act rule governing waste discharges from large confined animal feeding operations (CAFOs). This action was necessitated by a 2005 federal court decision (Waterkeeper Alliance et al. v. EPA, 399 F.3d 486 (2nd Cir. 2005)), resulting from challenges brought by agriculture industry groups and environmental advocacy groups, that vacated parts of the 2003 rule and remanded other parts to EPA for clarification.

The Clean Water Act prohibits the discharge of pollutants from any “point source” to waters of the United States unless authorized under a permit that is issued by EPA or a qualified state, and the act expressly defines CAFOs as point sources. Permits limiting the type and quantity of pollutants that can be discharged are derived from effluent limitation guidelines promulgated by EPA. The 2003 rule, updating rules that had been in place since the 1970s, revised the way in which discharges of manure, wastewater, and other process wastes from CAFOs are regulated, and it modified both the permitting requirements and applicable effluent limitation guidelines. It contained important first-time requirements: all CAFOs must apply for a discharge permit, and all CAFOs that apply such waste on land must develop and implement a nutrient management plan.

EPA’s 2008 revised regulation addressed those parts of the 2003 rule that were affected by the federal court’s ruling: (1) it eliminated the “duty to apply” requirement that all CAFOs must either apply for discharge permits or demonstrate that they have no potential to discharge, which was challenged by industry plaintiffs; (2) it added procedures regarding review of and public access to nutrient management plans, challenged by environmental groups; and (3) it modified aspects of the effluent limitation guidelines, also challenged by environmental groups. The final rule also modified a provision of the 2003 rule that the court upheld, clarifying the treatment of a regulatory exemption for agricultural stormwater discharges. CAFOs were to apply for permits and develop nutrient management plans by February 27, 2009. After that date, sources will have three years to actually get permit coverage.

EPA’s efforts to revise the 2003 rule were controversial, particularly regarding the “duty to apply” for a permit and agricultural stormwater exemption provisions. Environmental groups strongly criticized EPA’s actions, arguing that the Waterkeeper Alliance court had left in place several means for the agency to accomplish much of its original permitting approach, but instead EPA chose not to do so. State permitting authorities also had a number of criticisms, focusing on key parts that they argued would greatly increase the administrative and resource burden on state regulators. Farm industry groups were generally supportive of the 2008 rule. Nevertheless, some of them brought a legal challenge. In March 2011, a federal court agreed with the industry petitioners and vacated a portion of the 2008 rule concerning the “duty to apply” requirement. Congress has shown some interest in CAFO issues in the past, primarily through oversight hearings in 1999 and 2001, before issuance of either the 2003 or 2008 rules.


Date of Report: November 8, 2011
Number of Pages: 20
Order Number: RL33656
Price: $29.95

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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. The federal government asked the court to stay the order vacating the exemption for two years, 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 the requested delay, which was extended until October 31, 2011. On October 31, EPA issued the permit. Under the final permit, pesticide applicators will be covered automatically for discharges before January 12, 2012. However, despite the agency’s efforts to minimize regulatory burdens and cost, the permit is controversial.

Some believe that the controversy will only be resolved by congressional action to clarify the intersecting scope of the Clean Water Act and FIFRA. In the 112th Congress, the House has passed legislation intended to nullify the 2009 federal court ruling (H.R. 872), but no legislation was enacted before EPA issued the pesticide general permit on October 31.


Date of Report: November 8, 2011
Number of Pages: 19
Order Number: RL32884
Price: $29.95

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EPA’s Boiler MACT: Controlling Emissions of Hazardous Air Pollutants

James E. McCarthy
Specialist in Environmental Policy

On May 16, 2011, the U.S. Environmental Protection Agency (EPA) announced that it was delaying the effective date of new Maximum Achievable Control Technology standards for boilers (the “Boiler MACT”), in order to take additional public comment and complete reconsideration of the rule. The standards were promulgated February 21, 2011, to meet the requirements of Section 112 of the Clean Air Act. There is widespread interest in the rule’s requirements and their potential effects, because boilers are used as power sources throughout industry, and for power or heat by large commercial establishments and institutions as well.

EPA developed the regulations because it has found, based on emissions data, that boilers (including coal-, biomass-, and liquid-fired boilers) are major sources of hazardous air pollutants (HAPs). The Clean Air Act defines a major source as any facility that emits 10 tons or more of a single listed HAP or 25 tons of any combination of HAPs annually. The HAPs themselves (187 substances) were listed by Congress in the 1990 Clean Air Act Amendments.

The rule promulgated in February would replace a 2004 version of the rule that was vacated and remanded to EPA by the D.C. Circuit Court of Appeals. EPA was under a court order to promulgate a replacement by January 2011. In early December 2010, the agency asked that the promulgation deadline be postponed to April 2012 so that it could revise the proposed rule based on new information it had received. The court refused EPA’s request, but did grant it five extra weeks. In order to obtain the time it wanted, EPA announced on the same day that it promulgated the rule that it would reconsider it. The agency subsequently asked for comment on 14 different aspects of the rule, and stated that it will propose any changes to the rule by the end of October, and make final decisions by April 2012.

As promulgated in February, the MACT would affect 13,840 boilers and process heaters, with capital costs of $5.1 billion, according to the agency; annualized costs, which spread the costs of capital over the expected life of the equipment and include operating and maintenance expenses, were estimated at $1.4 billion per year. Most of these costs would be borne by boilers that burn coal, biomass, or liquid fuels, which together account for only 12.7% of all the units covered by the rule. Most (83%) of the boilers affected by the rule are fueled by natural gas or refinery gases. These boilers would not have to install pollution control equipment and would experience cost savings under the rule, according to EPA. For the rule as a whole, EPA estimated that benefits— including the avoidance of 2,500 to 6,500 premature deaths annually—would outweigh costs by at least $20 billion per year.

Affected industries and many in Congress have raised objections to the rule both as proposed and as promulgated, and bills have been introduced in both the House and Senate (H.R. 2250 and S. 1392) to alter the rule’s requirements and delay its implementation. H.R. 2250 passed the House 275-142, on October 13. In response to comments on the proposed rule, EPA’s final rule had already reduced the number of units expected to require controls, and made the emissions standards much less stringent than those in the proposed rule, reducing the agency’s estimate of annualized control costs from $2.9 billion to $1.4 billion.

In addition to the Boiler MACT, this report discusses three related rules that EPA promulgated at the same time, dealing with smaller “area source” boilers and with commercial and industrial boilers that burn solid waste (the “CISWI” and solid waste rules). The latter two rules have also been controversial. Like the Boiler MACT, the CISWI rule is being stayed for reconsideration.


Date of Report: October 26, 2011
Number of Pages: 26
Order Number: R41459
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Carbon Capture and Sequestration: A Compendium

This compendium is a collection of seven in-depth Congressional Research Service studies on the topic of carbon capture and sequestration.

Carbon capture and sequestration (or storage)—known as CCS—has attracted interest as a measure for mitigating global climate change because large amounts of carbon dioxide (CO2) emitted from fossil fuel use in the United States are potentially available to be captured and stored underground or prevented from reaching the atmosphere. Large, industrial sources of CO2, such as electricity-generating plants, are likely initial candidates for CCS because they are predominantly stationary, single-point sources. Electricity generation contributes over 40% of U.S. CO2 emissions from fossil fuels.

Congressional interest has grown in CCS as part of legislative strategies to address climate change. On February 13, 2009, Congress passed the American Recovery and Reinvestment Act of 2009 (ARRA, P.L. 111-5), which included $3.4 billion for projects and programs related to CCS. Of that amount, $1.52 billion would be made available for a competitive solicitation for industrial carbon capture and energy efficiency improvement projects, $1 billion for the renewal of FutureGen, and $800 million for U.S. Department of Energy Clean Coal Power Initiative Round III solicitations, which specifically target coal-based systems that capture and sequester, or reuse, CO2 emissions. The $3.4 billion contained in ARRA greatly exceeds the federal government’s cumulative outlays for CCS research and development since 1997.

The large and rapid influx of funding for industrial-scale CCS projects may accelerate development and deployment of CO2 capture technologies. Currently, U.S. power plants do not capture large volumes of CO2 for CCS, even though technology is available that can potentially remove 80%-95% of CO2 from a point source. This is due, in part, to the absence of either an economic incentive (i.e., a price for captured CO2) or a regulatory requirement to curtail CO2 emissions. In addition, DOE estimates that CCS costs between $100 and $300 per metric ton (2,200 pounds) of carbon emissions avoided using current technologies. Those additional costs mean that power plants with CCS would require more fuel, and costs per kilowatt-hour would be higher than for plants without CCS.

After CO2 is captured from the source and compressed into a liquid, pipelines or ships would likely convey the captured CO2 to storage sites to be injected underground. Three main types of geological formations are being considered for storing large amounts of CO2 as a liquid: oil and gas reservoirs, deep saline reservoirs, and unmineable coal seams. The deep ocean also has a huge potential to store carbon; however, direct injection of CO2 into the deep ocean is still experimental, and environmental concerns have forestalled planned experiments in the open ocean. Mineral carbonation—reacting minerals with a stream of concentrated CO2 to form a solid carbonate—is well understood, but it also is still an experimental process for storing large quantities of CO2.

The increase in funding for CCS provided for in ARRA and by other economic incentives may lead to less expensive and more effective technologies for capturing large quantities of CO2. Without a carbon price or a regulatory requirement to cap CO2 emissions, however, it will be difficult to predict or evaluate how the technology would be deployed throughout the U.S. energy sector. By comparison, transporting, injecting, and storing CO2 underground may be less daunting. A large pipeline infrastructure for transporting CO2 could be very costly, however, and considerable uncertainty remains over how large quantities of injected CO2 would be permanently stored underground. To help resolve these uncertainties, DOE has initiated large-scale CO2 injection tests in a variety of geologic reservoirs that are to take place over the next several years.

Date of Compendium: January 11, 2011
Number of Pages: 265
Order Number: IS40310
Price: $59.95: Subscribers to Congressional Research Report pay $29.97


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