On December 23, 2011, President Obama signed the Consolidated Appropriations Act, 2012, as Public Law 112-74, an Act which includes FY 2012 funding for what would normally be nine separate appropriations bills (HR 2055; Conference Report is H.Rpt. 112-331). Included in the Act is funding for programs under the Interior, Environment, and Related Agencies Appropriations bill (Division E of the Act). In this Memorandum we report on the funding levels for selected programs in the Environmental Protection Agency that are of particular interest to Indian tribes and tribal organizations.
During the first several months of FY 2012, most federal programs were funded under a Continuing Resolution at their FY 2011 level minus 1.5 percent. Under PL 112-74, Congress applied several across-the-board reductions which vary by appropriations sections. Programs, projects, and activities as detailed in the Act, accompanying reports, or President’s budget under Interior, Environment and Related Agencies have an across-the-board reduction of 0.16 percent. This 0.16 percent reduction is not, however, reflected in the numbers provided in this Memorandum.
Guidance. The Conference report states with regard to consideration of Appropriations Committee report language:
Language contained in House Report 112-151 [there was no Senate Committee report] providing specific guidance to agencies regarding the administration of appropriated funds and any corresponding reporting requirements carries the same emphasis as the language included in this explanatory statement and should be complied with unless specifically addressed to the contrary herein.
In instances where the House report speaks more broadly to policy issues or offers views that are subject to interpretation, such views remain those of the House and do not reflect the views of the conferees unless otherwise repeated in this statement.
Status of Appropriations Balances. The Act includes House-proposed bill language that requires the DOI, IHS, EPA and Forest Service to provide Congress quarterly reports on the balances of appropriations. The bill language states:
SEC. 424. The Department of the Interior, the Environmental Protection Agency, the Forest Service, and the Indian Health Service shall provide the Committees on Appropriations of the House of Representatives and Senate quarterly reports on the status of balances of appropriations including all uncommitted, committed, and unobligated funds in each program and activity.
The House report explained:
During the development of the fiscal year 2011 continuing resolution, it became evident that many of the agencies under the subcommittee’s jurisdiction were unable to provide this data relating to both discretionary and mandatory accounts on a timely basis. The Committee experienced delays in receiving this information and found that the agency reports did not provide a comprehensive picture of the status of balances. Of particular concern, the Committee found that the agencies could not report on the age of balances by year of appropriation. As a result, it is not possible to tell whether the balances derive from uncommitted or unobligated balances in the immediately prior fiscal year or from appropriations acts enacted two, three or more years earlier.
The source year of carryover is important. If balances have languished on the books for multiple fiscal years it is a symptom, at best, of administrative inefficiency. Of more concern, it may suggest that the Committee was asked to provide appropriations in excess of the amount required to accomplish program purposes. Given the obvious importance of the source year of balances to budget administration, the Committee is puzzled that agencies have not configured internal accounting systems to capture and routinely report this information. . . .
…Bill language contained in Title IV requires that the Department of the Interior, EPA, Forest Service, and the Indian Health Service begin reporting to the Committee on a quarterly basis on the status of balances, including the source year of balances. It is the Committee’s intention that the agency reports show the status of balances at the appropriation account level, as well as at budget activity or other lower levels where such levels are reflected in the Committee’s report accompanying an appropriation act. (H.Rpt. 112-151, pp. 5-6)
Improved Coordination. The House committee expressed its views on the “fragmented” grant and funding opportunities processes tribes must navigate through the various agencies to address their needs. The Committee directed the DOI, HHS, DOJ, EPA and Forest Service to provide a report on possible streamlining and improved coordination on funding opportunities and opportunities for new compacts. The report stated:
While the Committee’s recommendation and the President’s budget include funds for these services, responsibility and oversight for many of the projects and programs are dispersed over several agencies. Some are contained within this Act, while others are not. For example, no less than three agencies may be involved in constructing a home on a reservation: the Indian Health Service, the Department of Housing and Urban Development, and the Bureau of Indian Affairs. Tribes may also seek funds from the Department of Transportation and the Environmental Protection Agency for infrastructure support of those homes. The result is a fragmented and confusing approach to addressing basic infrastructure and the health and education needs of American Indian communities.
On November 5, 2009, the President signed a memorandum directing all Federal agencies to provide a plan on how each agency is implementing Executive Order 13175, which requires Federal agencies to engage in regular and meaningful consultation with Tribes. The Committee supports this effort, but views it only as an initial step. Beyond consultation, there must be more effective implementation of the Federal laws and programs created to honor this Nation’s trust responsibility to American Indians–including meeting government-wide mandates under the Indian Self-Determination and Education Assistance Act (ISDEA, P.L. 93–638, as amended).
The Committee directs the Secretary of the Interior, the Secretary of Health and Human Services, the Attorney General, the Administrator of the Environmental Protection Agency, and the Chief of the Forest Service to provide this Committee within 120 days of enactment of this Act a joint report on: (1) how these agencies can use the consultation process to streamline and coordinate grant programs and funding opportunities for American Indian programs under their jurisdiction; and (2) opportunities for each agency and bureau to enter into new compacts with Tribes, as per ISDEA. (H.Rpt. 112-151, pp. 13-14)
The House report included a number of policy riders and would have made more drastic cuts than the enacted funding levels we report below. Language in the Act softened the majority of these proposed cuts and removed many of the policy riders.
ENVIRONMENTAL PROTECTION AGENCY
FY 2011 Enacted $8,682,117,000
FY 2012 Admin. Request $8,973,000,000
FY 2012 Enacted $8,463,005,000
The Act funds the EPA at $509.9 million below the Administration’s request and $219.1 million below the FY 2011 enacted level. There are a limited number of tribal-specific programs under the EPA but tribes are often eligible for the larger grant programs. We report below on several programs of interest to tribes.
STATE AND TRIBAL ASSISTANCE GRANTS
FY 2011 Enacted $3,758,913,000
FY 2012 Admin. Request $3,860,430,000
FY 2012 Enacted $3,618,727,000
There are two categories of assistance under the State and Tribal Assistance Grants (STAG), e.g., Infrastructure Assistance Grants ($2.5 billion), and Categorical Grants ($1 billion). Funds are issued to help communities fulfill the requirements of various environmental protection laws, as well as to rehabilitate land, water, and air resources that have been harmed.
Infrastructure Assistance Grants
• Water Supply and Wastewater Infrastructure Grants for Alaska Rural and Native Villages
FY 2011 Enacted $ 9,980,000
FY 2012 Admin. Request $10,000,000
FY 2012 Enacted $10,000,000
The Alaska Rural and Native Village Program, administered by the State of Alaska, provides infrastructure funding to Alaska Native Villages and rural Alaska communities that lack access to basic drinking water and sanitation infrastructure. The Act states that,
$10,000,000 shall be for grants to the State of Alaska to address drinking water and wastewater infrastructure needs of rural and Alaska Native Villages: Provided further, That, of these funds: (1) the State of Alaska shall provide a match of 25 percent; (2) no more than 5 percent of the funds may be used for administrative and overhead expenses; and (3) the State of Alaska shall make awards consistent with the State-wide priority list established in conjunction with the Agency and the U.S. Department of Agriculture for all water, sewer, waste disposal, and similar projects carried out by the State of Alaska that are funded under section 221 of the Federal Water Pollution Control Act (33 U.S.C. 1301) or the Consolidated Farm and Rural Development Act (7 U.S.C. 1921 et seq.) which shall allocate not less than 25 percent of the funds provided for projects in regional hub communities; (PL 112-74, pp. 232)
The House report which was superseded by the Act had proposed to zero out the program entirely stating,
Alaska Native Villages.—Since 1995 the Committee has provided over $450,000,000 to address the lack of basic drinking water and wastewater infrastructure needs in rural and Native communities. The Committee has continued to authorize the program since its expiration in 2000 in order to continue to address the significant challenges in these rural communities despite the duplication of available funding relative to the State Revolving Funds. The Committee has not included funding for this unauthorized grant program in 2012 recognizing that low income and disadvantage communities may apply for water and wastewater infrastructure funding through the State Revolving Funds. Additional subsidies are available for those communities that may not be able to afford the traditional low-interest SRF loans. (H.Rpt. 112-151, pp. 79-80)
• Brownfields Projects
FY 2011 Enacted $99,800,000
FY 2012 Admin. Request $99,041,000
FY 2012 Enacted $95,000,000
• Safe Drinking Water Revolving Loan Fund
FY 2011 Enacted $963,070,000
FY 2012 Admin. Request $990,000,000
FY 2012 Enacted $919,363,000
Grants under this program can go to tribes directly as well as to the Indian Health Service under cooperative agreements to fund tribal projects.
• Clean Water State Revolving Loan Fund
FY 2011 Enacted $1,521,950,000
FY 2012 Admin. Request $1,550,000,000
FY 2012 Enacted $1,468,806,000
These funds will be used for building or improving sanitation facilities in Indian Country.
Language in the Act provides that two percent of the Clean Water State Revolving Funds and the Drinking Water State Revolving Funds is set aside for tribes.
Provided further, That for fiscal year 2012, and notwithstanding section 518(f) of the Act, the Administrator is authorized to use the amounts appropriated for any fiscal year under section 319 of that Act to make grants to federally recognized Indian tribes pursuant to sections 319(h) and 518(e) of that Act: Provided further, That for fiscal year 2012, notwithstanding the limitation on amounts in section 518(c) of the Federal Water Pollution Control Act and section 1452(i) of the Safe Drinking Water Act, up to a total of 2 percent of the funds appropriated for State Revolving Funds under such Acts may be reserved by the Administrator for grants under section 518(c) and section 1452(i) of such Acts: (PL 112-74, pp.233)
Language in the Act provides the Administrator of the EPA a certain degree of flexibility to transfer funds between accounts, namely,
Provided further, That for fiscal year 2012 and hereafter, the Administrator may transfer funds provided for tribal set-asides through funds appropriated for the Clean Water State Revolving Funds and for the Drinking Water State Revolving Funds between those accounts in such manner as the Administrator deems appropriate, but not to exceed the transfer limits given to States under section 302(a) of Public Law 104–182. (PL 112-74, pp. 233-234)
• Tribal General Assistance Program (GAP)
FY 2011 Enacted $67,739,000
FY 2012 Admin. Request $71,375,000
FY 2012 Enacted $67,739,000
GAP provides general assistance grants to build capacity to administer environmental regulatory programs that may be authorized by EPA in Indian Country, and to provide technical assistance in the development of multimedia programs to address environmental issues on Indian lands. The GAP grants cover the costs of planning, developing, and establishing environmental protection programs consistent with other applicable provisions of law providing for enforcement of such laws by Indian tribes on Indian lands.
• Tribal Air Quality Management
FY 2011 Enacted $13,273,000
FY 2012 Admin. Request $13,566,000
FY 2012 Enacted $13,273,000
This program includes funding for tribal air pollution control agencies and tribal governments. Through Clean Air Act (CAA) section 105 Grants, tribes may develop and implement programs for the prevention and control of air pollution or implementation of national primary and secondary ambient air standards. Through CAA Section 103 grants, tribal air pollution control agencies or tribes, colleges, universities, or multi-tribe jurisdictional air pollution control agencies and/or non-profit organizations may conduct and promote research, investigations, experiments, demonstrations, surveys, studies and training related to air pollution.
• Brownfields Grants
FY 2011 Enacted $49,396,000
FY 2012 Admin. Request $49,495,000
FY 2012 Enacted $49,396,000
• Section 319 Non-Point Source Pollution Grants
FY 2011 Enacted $175,505,000
FY 2012 Admin. Request $164,757,000
FY 2012 Enacted $164,757,000
Grants under Section 319 of the Clean Water Act are provided to states, territories, and tribes to help them implement their EPA-approved non-point source management programs by remediating non-point source pollution that has occurred in the past and by preventing or minimizing new non-point source pollution.
• Wetland Program Development Grants
FY 2011 Enacted $16,796,000
FY 2012 Admin. Request $15,167,000
FY 2012 Enacted $15,167,000
The Wetland Program Development Grants enable EPA to provide technical and financial support to assist states, tribes, and local governments toward the national goal of an overall increase in the nation’s wetlands. Grants are used to develop new or refine existing state and tribal wetland protection, management, and restoration programs as well as to implement programs where environmental results can be demonstrated.
FY 2011 Enacted $23,680,000
FY 2012 Admin. Request $26,397,000
FY 2012 Enacted $23,680,000
This program, under the EPA’s Environmental and Program Management program, differs from the Brownfields programs listed above. It is designed to help states, tribes, local communities and other stakeholders in economic redevelopment to work together to assess, safely clean up, and reuse Brownfields. The other programs provide funding for cleanup purposes alone. However, the programs work in conjunction with one another.
RESOURCE CONSERVATION AND RECOVERY ACT (RCRA) WASTE MANAGEMENT
FY 2011 Enacted $118,043,000
FY 2012 Admin. Request $116,871,000
FY 2012 Enacted $112,643,000
The RCRA Waste Management program is designed to reduce the amount of waste generated and to improve the recovery and conservation of materials by focusing on a hierarchy of waste management options that advocate reduction, reuse, and recycling over treatment and disposal. The program has a tribal component, which is aimed at providing technical assistance to tribes.
LEAKING UNDERGROUND STORAGE TANKS (LUST/UST)
• Environmental and Program Management Fund
FY 2011 Enacted $12,966,000
FY 2012 Admin. Request $12,866,000
FY 2012 Enacted $12,866,000
• State and Tribal Assistance Grants
FY 2011 Enacted $2,495,000
FY 2012 Admin. Request $1,550,000
FY 2012 Enacted $1,550,000
This program is designed to prevent, detect, and repair leaks from underground storage tanks including those containing fuel or oil. The Environmental and Program Management funds primarily go to states to help with enforcement, though the EPA is working with tribes and tribal consortia to build and implement their own LUST programs. The State and Tribal Assistance Grants for LUST are used primarily to assist tank owners in ensuring their tanks do not leak and to detect leaks.
Please let us know if we may be of further assistance regarding the FY 2012 budget for programs in the Environmental Protection Agency covered in this Memorandum.