Legislative Approaches to Defining “Waters of the United States”

Claudia Copeland
Specialist in Resources and Environmental Policy

In the 111th Congress, legislation has been introduced that seeks to clarify the scope of the Clean Water Act (CWA) in the wake of Supreme Court decisions in 2001 and 2006 that interpreted the law's jurisdiction more narrowly than prior case law. The Court's narrow interpretation involved jurisdiction over some geographically isolated wetlands, intermittent streams, and other waters. The two cases are Solid Waste Agency of Northern Cook County v. Army Corps of Engineers (SWANCC) and Rapanos v. United States. 

Bills to nullify the Court's rulings have been introduced repeatedly since the 107th Congress, but none had advanced until the 111th Congress. In June 2009, a Senate committee approved S. 787, the Clean Water Restoration Act. Companion legislation in the House, H.R. 5088 (America's Commitment to Clean Water Act), was introduced in April 2010. 

Under current law, the key CWA phrase which sets the act's reach is the phrase "navigable waters," defined to mean "the waters of the United States, including the territorial seas." Proponents of the current legislation contend that the Court misread Congress' intent when it enacted the CWA, and consequently the Court's ruling unduly restricted the scope of the act's water quality protections. Both S. 787 and H.R. 5088 would replace the phrase "navigable waters" in the CWA with "waters of the United States" and would install a definition of "waters of the United States," not found in the law now. The bills differ in how they would define the phrase. The Senate committee bill includes a definition drawn from one paragraph of existing federal regulatory text, while H.R. 5088 includes a longer definition based on the same regulatory language, but with some modifications. Both bills also include provisions affirming the constitutional basis for the act's jurisdiction. These provisions address the concern that the Court's rulings, while decided on statutory grounds, raised related questions about the outer limits of Congress's power to regulate waters with little or no connection to traditional navigable waters under the Commerce Clause of the Constitution. 

Proponents of the current legislation, including many states and environmental advocacy groups, contend that the Court's ruling in these cases, and subsequent regulatory guidance by federal agencies, have unsettled several decades' worth of case law, misreading or ignoring congressional intent, and thus reinterpreting and narrowing the jurisdictional scope of the act. Supporters say that the intention is to return to the CWA regulatory jurisdiction that prevailed before the Court's rulings. On the other hand, critics, including many industry groups and development and home builder organizations, contend that the legislation would greatly expand federal regulatory jurisdiction of the CWA beyond interpretations that existed before the two Supreme Court rulings, not simply reaffirm congressional intent. They are concerned that the legislation has the potential to be interpreted far more broadly than what was previously understood to be jurisdictional—thus causing more uncertainty, rather than clarifying the issue. 

Between proponents and critics, there is wide disagreement whether the new statutory definition proposed in either bill, coupled with other changes, will achieve the objective of clarity and certainty that is broadly desired. In light of the differing views on the issues, future prospects for either bill are uncertain. The legal and policy questions associated with the SWANCC and Rapanos cases—concerning the outer geographic limits of CWA jurisdiction and consequences of restricting that scope—have challenged regulators, landowners and developers, and policymakers for more than 35 years.


Date of Report: April 30, 2010
Number of Pages: 18
Order Number: R41225
Price: $29.95

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Estimating Offset Supply in a Cap-and-Trade Program

Jonathan L. Ramseur
Specialist in Environmental Policy

If allowed as a compliance option in a greenhouse gas (GHG) emission reduction program (e.g., a cap-and-trade system), offsets have the potential to provide considerable cost savings and other benefits. However, offsets have generated considerable controversy, primarily over the concern that illegitimate offsets could undermine the ultimate objective of a cap-and-trade program: emission reduction. 

An offset is a measurable reduction, avoidance, or sequestration of GHG emissions from a source not covered by an emission reduction program. An estimate of the quantity and type of offset projects that might be available as a compliance option would provide for a more informed debate over the design elements of a cap-and-trade program. It is difficult to estimate the supply of offsets that might be available in a cap-and-trade system, because the supply is determined by many variables, including: 

Mitigation potential. Mitigation potential estimates are the raw data that feed into models estimating offset use in a cap-and-trade program. Recent estimates contain considerable uncertainty. 

Policy choices. The design of the cap-and-trade system would be critical to offset supply. Particularly relevant design choices include which sources are covered; which types of offset projects are allowed; whether or not offset use is limited; and the degree to which set-aside allowances are allotted to activities that may otherwise qualify as offsets. Policymakers' treatment of international offsets would play a major role. 

Economic factors. The development and market penetration of low- and/or zero-carbon technologies would likely have substantial effects. These technologies could lower the costs of the cap-and-trade program, making fewer offset projects cost effective. 

Emission allowance price. The allowance price would determine the supply and type of offsets that would be economically competitive in a cap-and-trade system. As the price increases, more (and different types of) projects would become cost effective. Allowance price estimates are difficult to predict, as they are dependent on numerous variables, including offset treatment. 

Other factors. Non-market factors, such as social acceptance, may influence offset use. In addition, information dissemination would likely be an issue, because some of the offset opportunities exist at smaller operations, such as family farms. 

Although economic models have generated estimates of offsets that would be developed and used in a cap-and-trade system, the estimates are rife with uncertainty. This report examines the multiple variables that would help shape offset supply.


Date of Report: April 16, 2010
Number of Pages: 14
Order Number: RL34705
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Federal Pollution Control Laws: How Are They Enforced?

Robert Esworthy  
Specialist in Environmental Policy

As a result of enforcement actions and settlements for noncompliance with federal pollution control requirements, the U.S. Environmental Protection Agency (EPA) reported that, for FY2009, regulated entities committed to invest an estimated $45.0 billion for judicially mandated controls and cleanup, and for implementing mutually agreed upon (supplemental) environmentally beneficial projects. EPA estimates that these efforts achieved commitments to reduce 580 million pounds of pollutants in the environment, primarily from air and water. EPA also assessed more than $96.0 million in civil and criminal fines and restitution during FY2009. Nevertheless, noncompliance with federal pollution control laws remains a continuing concern. The overall effectiveness of the enforcement organizational framework, the balance between state autonomy and federal oversight, and the adequacy of funding are long-standing congressional concerns. 

This report provides an overview of the statutory framework, key players, infrastructure, resources, tools, and operations associated with enforcement and compliance of the major pollution control laws and regulations administered by EPA. It also outlines the roles of federal (including regional offices) and state regulators, as well as the regulated community. Understanding the many facets of how all federal pollution control laws are enforced, and the responsible parties involved, can be challenging. Enforcement of the considerable body of these laws involves a complex framework and organizational setting. 

The array of enforcement/compliance tools employed to achieve and maintain compliance includes monitoring, investigation, administrative and judicial (civil and criminal) actions and penalties, and compliance assistance and incentive approaches. Most compliance violations are resolved administratively by the states and EPA. EPA concluded 1,916 final administrative penalty orders in FY2009. Civil judicial actions, which may be filed by states or EPA, are the next most frequent enforcement action. EPA may refer civil cases to the Department of Justice (DOJ), referring 277 civil cases in FY2009. The U.S. Attorney General's Office and DOJ's Environmental Crimes Section, or the State Attorneys General, in coordination with EPA criminal investigators and general counsel, may prosecute criminal violations against individuals or entities who knowingly disregard environmental laws or are criminally negligent. 

Federal appropriations for environmental enforcement and compliance activities have remained relatively constant in recent fiscal years. Congress appropriated $596.7 million for EPA's enforcement activities for FY2010, an increase above the $568.9 million enacted for FY2009, and $553.5 million for FY2008. Many contend that overall funding for enforcement activities has not kept pace with inflation or with the increasingly complex federal pollution control requirements.


Date of Report: April 20, 2010
Number of Pages: 47
Order Number: RL34384
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Oil Spills in U.S. Coastal Waters: Background, Governance, and Issues for Congress

Jonathan L. Ramseur
Specialist in Environmental Policy

During the past two decades, while U.S. oil imports and consumption have steadily risen, oil spill incidents and the volume of oil spilled have not followed a similar course. In general, the annual number and volume of oil spills have shown declines—in some cases, dramatic declines. The 1989 Exxon Valdez spill in Alaskan waters played a large role in stimulating actions that contributed to this trend, particularly the decrease in the annual spill volumes. The Exxon Valdez spill highlighted the need for stronger legislation, inflamed public sentiment, and spurred Congress to enact comprehensive oil spill legislation, resulting in the Oil Pollution Act of 1990 (P.L. 101-380). This law expanded and clarified the authority of the federal government and created new oil spill prevention and preparedness requirements. Moreover, the 1990 legislation strengthened existing liability provisions, providing a greater deterrent against spills. After 1990, spill volume from oil tankers, the vessels that carry and have spilled the most oil, decreased significantly. 

Considering that U.S. oil consumption and oil imports have increased in recent decades, the trend of declining spill incidents and volume in past years is noteworthy. However, the risk of a major oil spill remains. Although recent Energy Information Administration (EIA) projections indicate that oil imports are expected to level off in coming years, the United States is expected to continue importing a substantial percentage of the oil it consumes. The threat of oil spills raises the question of whether U.S. officials have the necessary resources at hand to respond to a major spill. There is some concern that the favorable U.S. spill record has resulted in a loss of experienced personnel, capable of responding quickly and effectively to a major oil spill. 

Prior to actions by the 109th and 110th Congresses, the Oil Spill Liability Trust Fund was particularly vulnerable to a large and costly spill: Fund managers had projected the fund would be completely depleted by FY2009. Recent legislative developments have increased the oil spill liability limits and raised the tax rate that feeds into the trust fund. With these changes in effect, the most recent projection indicates that the fund will reach almost $1.5 billion by the end of FY2009 and crest $3.5 billion by FY2016. Although the trust fund is now less vulnerable to a major spill, some degree of exposure still remains, thus raising a central policy debate: How should policymakers allocate the costs associated with a major, accidental oil spill? For example, what share of costs should be borne by the responsible party (e.g., oil vessel owner/operators), the oil industry, and the general treasury? 

No oil spill is entirely benign. Even a relatively minor spill, depending on the timing and location, can cause significant harm to individual organisms and entire populations. Marine mammals, birds, bottom-dwelling and intertidal species, and organisms in early developmental stages—eggs or larvae—are especially vulnerable to a nearby spill. However, the effects of oil spills can vary greatly. Oil spills can cause impacts over a range of time scales, from only a few days to several years, or even decades in some cases. 

This report reviews the history and trends of oil spills in the United States; identifies the legal authorities governing oil spill prevention, response, and cleanup; and examines the threats of future oil spills in U.S. coastal waters. .


Date of Report: April 30, 2010
Number of Pages: 38
Order Number: RL33705
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Particulate Matter (PM2.5): Implementation of the 1997 National Ambient Air Quality Standards (NAAQS)

Robert Esworthy
Specialist in Environmental Policy

Particulate matter (PM), including fine particulate matter (PM2.5) and larger, but still inhalable particles (PM10), is one of the six principal pollutants for which the U.S. Environmental Protection Agency (EPA) has set National Ambient Air Quality Standards (NAAQS) under the Clean Air Act (CAA). Primary NAAQS are designed to protect human health, with an adequate margin of safety. After years of litigation and other delays, EPA is implementing the NAAQS for PM2.5 promulgated in 1997. This report outlines the implementation process for the 1997 PM2.5 NAAQS and describes issues raised as EPA and states develop implementation strategies. 

The EPA's final designation of 39 areas, consisting of 205 counties in 20 states and the District of Columbia, as "nonattainment" (out of compliance) areas for the 1997 PM2.5 NAAQS became effective in April 2005. A combined population of almost 90 million resides in these areas. States with PM2.5 nonattainment areas are required to develop comprehensive implementation plans, referred to as State Implementation Plans (SIPs), demonstrating how attainment will be reached by a designated deadline. SIPs include pollution control measures that rely on models of the impact on air quality of projected emission reductions to demonstrate attainment. States were required to submit SIPs for the 1997 PM2.5 NAAQS by April 2008, but EPA did not begin receiving most submissions until July 2008. On November 27, 2009, EPA published its findings that three states failed to meet the deadline for submitting complete SIPs. For the remaining designated areas, states either submitted a complete SIP or EPA made a final approval that the area attained the 1997 PM2.5 NAAQS based on 2006-2008 air quality data. States must be in compliance by 2010, unless they are granted an extension. 

A number of issues will continue to be debated as the implementation of the 1997 PM2.5 NAAQS progresses. Although its decision was modified on December 23, 2008, the U.S. Court of Appeals for the D.C. Circuit's July 11, 2008, decision (North Carolina v. EPA) to vacate the Clean Air Interstate Rule (CAIR) introduced new concerns and disruptions with respect to the implementation of the 1997 PM2.5 NAAQS. Implementation of CAIR would have assisted states in addressing the interstate transport (upwind state) emission contributions in achieving attainment. The court's modified decision allows CAIR to remain in effect, but only temporarily until EPA promulgates a replacement rule, which could have future implications for implementing the PM2.5 NAAQS. EPA has projected July 2010 for proposing a replacement rule. 

In addition, other promulgated and proposed EPA rulemakings that influence various aspects of regulating air quality, including EPA's changes to the particulates NAAQS, could affect the 1997 PM2.5 NAAQS implementation process. As required under the CAA, EPA reviewed the PM2.5 and PM10 NAAQS, and on October 17, 2006, promulgated final revisions that included a strengthening of the 1997 PM2.5 standards. On November 13, 2009, EPA published its final designations for the 2006 PM2.5 NAAQS that include 120 counties and portions of counties in 18 states as nonattainment areas. EPA has initiated the next round of the periodic review of the particulates NAAQS and announced its intention to accelerate that review. 

As implementation of the 1997 NAAQS moves forward, its effects on states and tribes will be a continuing issue of interest to Congress. Although EPA has reported that 19 of the 39 nonattainment areas are currently meeting the 1997 PM2.5 standard according to the most recent air monitoring data, many questions and concerns remain. These include, for example, whether special provisions can be made for meeting attainment deadlines for areas affected by upwind pollution, and what impact the implementation of the 2006 particulates NAAQS will have.


Date of Report: April 16, 2010
Number of Pages: 32
Order Number: RL32431
Price: $29.95

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