Claudia Copeland
Specialist in Resources and Environmental Policy
Although 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, 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 how the federal government will assist 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, interest in increased investment in public works infrastructure—including wastewater—in order to stimulate the faltering U.S. economy brought greater attention to water infrastructure issues. Acting quickly, in February 2009, Congress passed and the President signed the American Recovery and Reinvestment Act (P.L. 111-5). Among its provisions, the legislation appropriated $4.0 billion in additional CWA assistance for wastewater projects. In addition, in March 2009, the House passed legislation to reauthorize the CWA’s State Revolving Fund (SRF) program to finance wastewater infrastructure and several related provisions of the act (H.R. 1262). A companion bill was approved by the Senate Environment and Public Works Committee (S. 1005). 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 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.
The 111th Congress considered a number of water quality issues through oversight and legislation. Two bills amending the CWA were enacted and are discussed. One dealt with extending a moratorium for CWA permitting of certain vessels (P.L. 111-215), and the other dealt with ensuring that federal agencies and departments pay localities for reasonable costs associated with managing stormwater pollution from federal properties (P.L. 111-378).
Date of Report: January 11, 2011
Number of Pages: 34
Order Number: R40098
Price: $29.95
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Robert Esworthy
Specialist in Environmental Policy
David M. Bearden
Specialist in Environmental Policy
Claudia Copeland
Specialist in Resources and Environmental Policy
Jane A. Leggett
Specialist in Energy and Environmental Policy
James E. McCarthy
Specialist in Environmental Policy
Mary Tiemann
Specialist in Environmental Policy
The President’s FY2011 budget request, submitted to the 111th Congress on February 1, 2010, included $10.02 billion for the Environmental Protection Agency (EPA). The amount requested for EPA is below the funding level of $10.29 billion provided in the Interior, Environment, and Related Agencies Appropriations Act for FY2010 (P.L. 111-88), but an increase above the enacted EPA appropriation of $7.64 billion provided in the Omnibus Appropriations Act for FY2009 (P.L. 111-8). However, when including the $7.22 billion in supplemental appropriations for EPA provided in the American Recovery and Reinvestment Act of 2009 (ARRA; P.L. 111-5), the total appropriation for the agency in FY2009 was $14.86 billion, exceeding both the FY2010 enacted appropriations and the President’s FY2011 request.
Although the President proposed an overall decrease for EPA relative to the appropriations enacted for FY2010, the FY2011 budget request included a variety of decreases and increases in funding for many of the individual programs and activities funded within the eight appropriations accounts that fund the agency. Since FY2006, Congress has funded these accounts within the Interior, Environment, and Related Agencies appropriations bill. In FY2005 and prior fiscal years, Congress appropriated funding for EPA’s accounts within the former Veterans Affairs, Housing and Urban Development, and Independent Agencies appropriations bill.
Most of the overall FY2011 decrease for EPA relative to FY2010 appropriations is attributed to the requested $200 million reduction for water infrastructure grants within the State and Tribal Assistance Grants (STAG) account, the largest of the agency’s eight appropriations accounts. This requested decrease would reduce financial assistance to states to help capitalize Clean Water and Drinking Water State Revolving Funds (SRFs). The adequacy of federal assistance for this purpose has been a long-standing issue. The President’s FY2011 request included $2.0 billion for Clean Water SRF capitalization grants and $1.29 billion for Drinking Water SRF capitalization grants, less than the enacted FY2010 appropriations, but more than that provided in the Omnibus Appropriations Act for FY2009. When including the FY2009 supplemental funds provided in ARRA ($4.0 billion for the Clean Water SRF and $2.0 billion for the Drinking Water SRF), both the FY2010 enacted appropriations and the President’s FY2011 request for the SRF grants are less than the total funding made available for the SRF grants in FY2009.
Other prominent issues that have received attention within the context of EPA appropriations include the level of funding for climate change research and related activities, cleanup of hazardous waste sites under the Superfund program, cleanup of less hazardous sites referred to as brownfields, and grants to assist states in implementing air pollution control requirements. Funding for the Great Lakes Restoration Initiative established in the FY2010 appropriations, and funding for the protection and restoration of the Chesapeake Bay and other geographic-specific water programs, also have received attention. None of the 12 regular appropriations bills for FY2011, including the Interior, Environment, and Related Agencies bill that includes funding for EPA, were enacted before the start of the fiscal year on October 1, 2010. Consequently, a series of laws generally continuing funds at FY2010 levels has been enacted. Most recently, P.L. 111-322, enacted December 22, 2010, extended funding through March 4, 2011. Two other bills enacted during the second session of the 111th Congress included provisions related to EPA appropriations. P.L. 111-212, enacted July 29, 2010, provided EPA FY2010 supplemental funding. P.L. 111-226, enacted August 10, 2010, included provisions rescinding EPA FY2009 ARRA funding. .
Date of Report: January 4, 2011
Number of Pages: 35
Order Number: R41149
Price: $29.95
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Linda Luther
Analyst in Environmental Policy
In the aftermath of a major disaster, communities may need to rebuild, replace, or possibly even relocate a multitude of structures. When recovery activities take place on such a potentially large scale, compliance with any of a number of local, state, and federal laws or regulations may apply. For example, when older buildings must be repaired or demolished, provisions of the National Historic Preservation Act (NHPA) may need to be considered. If rebuilding will take place in a floodplain, provisions of Executive Order 11988 on Floodplain Management may apply.
When federal agencies make decisions, such as funding applicant-proposed actions, the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. § 4321 et seq.) applies. For example, when federal funding is provided for disaster-related activities, applicants for those funds may be required to assess the environmental impacts of their proposed action. As commonly implemented, NEPA’s environmental review requirements are used as a vehicle to identify any other environmental requirements that may apply to a project as well. This use of NEPA as an “umbrella” statute can lead to confusion. For example, before an applicant can commit or expend funds under the Department of Housing and Urban Development’s (HUD’s) Community Development Block Grant (CDBG) program, the applicant must complete an environmental review of the project. A required element of that review is the applicant’s certification that compliance criteria applicable to historic preservation, floodplain management, endangered species, air quality, and farmland protection have been considered. This review is required not only to meet NEPA obligations, but also to ensure that the project being funded does not violate applicable environmental law. From the applicant’s perspective, this may blur the distinction between what is required under NEPA and what is required under separate compliance requirements identified within the context of the NEPA process.
For many federal actions undertaken in response to emergencies or major disasters, NEPA’s environmental review requirements are exempted under provisions of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act). (The Stafford Act does not, however, exempt such projects from other applicable environmental requirements.) In the past, some Members of Congress have been interested in the NEPA process as it applies to disasterrelated projects. This interest has been driven, in part, by federal grant applicants who have been confused about both their role in the NEPA process and what the law requires.
To address issues associated with the NEPA process, this report discusses NEPA as it applies to projects for which federal funding to recover from or prepare for a disaster has been requested by local, tribal, or state grant applicants. Specifically, the report provides an overview of the NEPA process as it applies to such projects, identifies the types of projects (categorized by federal funding source) likely to require environmental review, and delineates the types of projects for which no or minimal environmental review is required (i.e., those for which statutory or regulatory exemptions apply) and those likely to require more in-depth review.
Date of Report: January 13, 2011
Number of Pages: 15
Order Number: RL34650
Price: $29.95
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Linda Luther
Analyst in Environmental Policy
After a disaster, when a region turns its attention to rebuilding, one of the greatest challenges to moving forward may involve how to properly manage debris generated by the event. Options include typical methods of waste management—landfilling, recycling, or burning. The challenge after a major disaster (e.g., a building or bridge collapse, or a flood, hurricane, or earthquake) is in managing significantly greater amounts of debris often left in the wake of such an event.
Debris after a disaster may include waste soils and sediments, vegetation (trees, limbs, shrubs), municipal solid waste (common household garbage, personal belongings), construction and demolition debris (in some instances, entire residential structures and all their contents), vehicles (cars, trucks, boats), food waste, so-called white goods (refrigerators, freezers, air conditioners), and household hazardous waste (cleaning agents, pesticides, pool chemicals). Each type of waste may contain or be contaminated with certain toxic or hazardous constituents. In the short term, removal of debris is necessary to facilitate the recovery of a geographic area. In the long term, the methods by which these wastes are to be managed require proper consideration to ensure that their management (by landfilling, for example) will not pose future threats to human health or the environment.
After a presidentially declared disaster, federal funding or direct assistance in response to the disaster may be available to a state or local government. The Federal Emergency Management Agency (FEMA) may provide funding through its Public Assistance (PA) Grant Program for debris removal operations that eliminate immediate threats to lives, public health, and safety, or eliminate immediate threats of significant damage to improved public or private property. The federal share of funding to the affected area will be stated in the disaster declaration, but will be no less than 75%. The funding will be available for response activities in a designated geographic area for a specific period of time.
In addition to funding, if the state or local government does not have the capability to respond to the disaster, it may request direct federal assistance from FEMA. Federal agencies most likely to assist with debris removal operations are the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA). Activities they may perform include right-of-way clearance, curbside waste pickup, private property debris removal, property demolition, assistance with contaminated debris management, and collection of household hazardous waste.
Date of Report: January 13, 2011
Number of Pages: 13
Order Number: RL34576
Price: $29.95
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Claudia Copeland
Specialist in Resources and Environmental Policy
The 1990 Clean Air Act amendments required major industrial sources of air pollutants to obtain operating permits. These permits, authorized in Title V of the act, are intended to enhance environmental compliance by detailing for each covered facility all of the emission control requirements to which it is subject. Title V also was intended to generate permit fees that would be used by state and local permitting authorities for administering the program. Implementation of these requirements affects nearly 17,000 industrial sources of air emissions, as well as state and local air pollution control agencies. Adding these provisions to the act was controversial, and implementation, too, has generated controversies.
The Environmental Protection Agency (EPA) issued regulations to implement Title V in 1992. Aspects of those rules (particularly concerning procedures to modify permits) have been contentious since then. EPA has considered a number of regulatory revisions, but has not finalized any modifications. However, EPA has issued white papers and a number of formal and informal guidance documents that, together with the 1992 rules, comprise the agency’s current interpretation of statutory and regulatory requirements.
Because of regulatory and program approval delays, state and local agencies were slow to begin issuing Title V permits, falling far short of statutory deadlines and EPA’s goals. As of March 2000, for example, less than 45% of all required Title V permits had been issued. According to an EPA Inspector General report, key factors that delayed issuance of permits included insufficient state resources, complex EPA rules and limited guidance, and conflicting state priorities. Now, however, 99% of all required original permits have been issued, and permit reissuance (required after five years) and modification have replaced issuance of initial permits as the major ongoing task of permitting agencies.
Attention to the Title V program has increased recently because in 2010 EPA initiated several regulatory actions to regulate emissions of greenhouse gases (GHGs) under existing CAA authority that will have implications for Title V permits and permitting beginning in 2011. For Title V, these actions will mean including GHG control requirements in existing Title V permits issued for non-GHG pollutants and issuing new Title V permits for sources whose non-GHG emissions are small, but GHG emissions are above specified thresholds. To minimize the costs and administrative burden of its GHG regulations, EPA issued a “Tailoring Rule” to impose requirements only on the largest sources of GHG emissions. Nevertheless, EPA’s actions have been highly controversial.
Twenty years after Congress enacted Title V, most stakeholders agree that at least some of the benefits identified by Congress have been achieved, such as incorporation of applicable air pollution control requirements in a single document that is accessible to regulators, the public, and industrial sources. At the same time, there also is widespread dissatisfaction with the program’s complexity, costs, and confusing requirements. Many believe that a lack of EPA guidance has contributed greatly to implementation problems. Congressional examination of Title V has been limited to several oversight hearings, the most recent of which was in 2000. Clean Air Act issues are expected to be of considerable interest during the 112th Congress, especially scrutiny of EPA’s regulation of greenhouse gas emissions. EPA’s actions concerning GHGs involve Title V as well as other provisions of the act; thus, Title V could draw greater congressional attention in the future.
Date of Report: January 3, 2011
Number of Pages: 15
Order Number: RL33632
Price: $29.95
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