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General Memorandum 12-087

General Memorandum 12-087
FY 2013 Interior and Environmental Protection Agency Appropriations Update

On June 28, 2012, the House Appropriations Committee approved its version of the FY 2013 Interior, Environment and Related Agencies appropriations bill (HR 6091, H.Rpt. 112-589). The Committee bill and report are available at http://appropriations.house.gov/.

In this Memorandum we highlight key House Committee-recommended and Administration-requested funding levels for Indian Affairs (Bureau of Indian Affairs (BIA)/Bureau of Indian Education (BIE)) and selected programs in the Environmental Protection Agency (EPA) as well as legislative language or provisions of particular interest. We attach the Indian Affairs (IA) budget chart for the Committee bill which includes comparisons with amounts enacted in FY 2012 and proposed by the Administration for FY 2013. Detailed information on the distribution of increases or decreases by account level will not be available until the IA releases its detailed budget chart.

While the House Committee-reported bill is not likely to advance to the House floor, the Senate Appropriations Committee has tentative plans to unveil its version of an Interior spending bill in July. The two houses have differing discretionary spending caps for the Interior, Environment and Related Agencies bill – $28 billion for the House and $29.7 billion for the Senate. In addition to having differing spending caps, there will be significant differences between the two houses, notably with regard to funding and policy provisions for the EPA (the House bill would reduce EPA funding by 17 percent).

Current expectations are that Congress will not enact FY 2013 funding bills prior to the beginning of the fiscal year (October 1) and that funding will be provided under a Continuing Resolution (CR) lasting past the November election and into December. Under the Budget Control Act, there will be a significant across-the-board sequestration of funding for many federal programs if Congress does not find a way to enact $1.2 trillion toward deficit reduction. While the IHS would be held to a statutory two percent reduction under sequestration, there is no similar provision so for the BIA/BIE. Another option is that Congress could amend the Budget Control Act to eliminate or modify the current sequestration language.

Despite the uncertainty, it is worth following whatever FY 2013 recommendations are made by the House and Senate Appropriations Committees – both with regard to funding and policy provisions – as they may affect the final FY 2013 funding bill(s).
INDIAN AFFAIRS

The House Committee bill would provide nearly $2.57 billion for Indian Affairs, which is $41.4 million above the budget request and $36.8 million more than the FY 2012 level. Within the recommended total are $2.4 billion for the Operation of Indian Programs (OIP; $36.9 million above the FY 2012 level) and $104.9 million for Construction ($6.5 million decrease from FY 2012).

Operation of Indian Programs. (Please see attachment for chart.)

Regarding the Contract Support funding, the House Committee report states:
The Committee directs the Bureau to work with Tribes and tribal organizations to explore options for improving the transparency of current year contract support cost information, and to report back to the Committee within 90 days of enactment of this Act. (H. Rpt. 112-589, p. 35)

Education–School Operations. The Committee report states the following regarding the Tribal Grant Support Costs proposed increase:
Within Education, the bill includes the following increases: $12,991,000 to make up half of the projected shortfall in administrative cost grants, which the Committee notes are also contract support costs; …

In addition to a proposed $1 million increase for Johnson–O'Malley (JOM), the Committee directs, as it did in FY 2012, that the Bureau of Indian Education (BIE) complete and report an updated JOM student count, and reinstate the JOM coordinator position. The report states:
The Committee is disappointed that the Bureau failed to update its count of students eligible for JOM program funding and to report back to the Committee as directed in House Report 112–331. The Committee directs the Bureau, in coordination with the Department of Education, and in consultation with the Tribes, to update its count of students eligible for the Johnson-O’Malley Program funding and to report the results to this Committee within 180 days of enactment of this Act. In addition, the Committee directs the Bureau to reestablish the full-time permanent Johnson-O’Malley coordinator position that was terminated in 2005. (H. Rpt. 112-589, p. 35)

Education–Higher Education. The Committee's recommendation for funding for post secondary education is at the Administration's requested levels. For the forward-funded program, the Committee recommended $69.8 million, which is $2.5 million over the FY 2012 amount. For the non-forward funded higher education programs, the Committee recommended $62 million or $617,000 over the FY 2012 amount.

Public Safety & Justice. In addition to proposed increases for Law Enforcement and Tribal Courts, the Committee clarifies that costs associated with the education and health services provided to incarcerated juveniles are considered allowable costs under detention/corrections program funding.

Community and Economic Development. In addition to proposing a $1 million increase for minerals and mining management, the Committee directs that the DOI develop, in consultation with tribes, a pilot program for energy and mineral development on tribal trust lands. The report states:
The Committee directs the Department to work with Tribes to develop a pilot program to accelerate conventional energy and mineral development on lands held in trust for American Indians. The Committee notes that not all Federal lands are public lands; that conventional energy and mineral development on Tribal trust lands is lagging behind State and private lands; that energy and mineral development on Tribal trust lands can have tremendous economic benefits for people who, as a group, suffer from some of the worst economic conditions in the country; that the Department has an obligation to act in their best interests to the greatest extent allowable by law; and that it must be Tribes themselves who determine what is in their best interests, particularly on lands held in trust specifically for them. The Committee took testimony this year from several witnesses who highlighted a number of concerns with the current energy and mineral development approval process, including permit fees, the need for additional Federal and Tribal personnel and training, and fair distribution of personnel around the country. The Committee directs the Department to use the pilot program to make a good faith effort, using existing authorities, to address these concerns and others identified by Tribes. (H. Rpt. 112-589, p. 35-36)

Indian Employment, Training, and Related Services. The Committee expresses continuing concern regarding the consolidated program that tribes administer under the authority of the Indian Employment Training and Related Services Demonstration Act, Public Law 102-477 (477), and efforts to resolve issues faced by tribes. The report states:

The Committee remains concerned that efforts to implement new administrative policies for P.L. 102–477 funds have the potential to add additional costs to Tribes, thereby diverting funds from the important services that this program provides. The Committee notes that there has been no evidence of misuse of these funds since the program's inception 20 years ago. The Committee recognizes the significant progress made by the P.L. 102–477 Tribal Work Group and the Administration to resolve the issues surrounding these policies, as directed by House Report 112–331, and feels strongly that these joint efforts should continue in pursuit of a permanent resolution. In particular, the parties are urged to resolve the financial reporting issues in a way that meets the goals of administrative flexibility and fiscal accountability without impeding the end outcome goals of the "477" program. (H. Rpt. 112-589, p. 36)

Construction. The Committee bill would increase the overall Construction account by $11.2 million over the budget request level for total funding of $117.1 million. The total would be $6.5 million below the FY 2012 level.

The majority of the increase ($9.2 million) would be applied to Education Construction as Replacement School Construction funding, for which the Administration had not requested funds. The Committee states the amount "should complete the next project on the 2004 priority list." The Committee also urges that the BIE develop a new replacement school construction priority list and to request FY 2014 funds for projects on the priority list.

The Committee states the following regarding Education and Public Safety and Justice construction:

The Committee notes the conditions of the Bug O Nay Ge Shig School of the Leech Lake Band of Ojibwe as an example of the significant safety and health hazards that have not received due attention by this Administration. The Committee urges the Bureau to continue to work with the Leech Lake Band of Ojibwe and other Tribes to replace and repair their school facilities.

The Committee commends the Shoshone-Bannock Tribes of the Fort Hall Indian Reservation for their initiative in addressing their law enforcement needs by constructing a justice center to house their adult and juvenile detention and rehabilitation center, tribal courts, and police department. The Committee also commends the [BIA] in its efforts to assist the Shoshone-Bannock Tribes in ensuring that the Center continues to operate effectively. Knowing that work must be done in consultation with Tribes, the Committee continues to encourage the Bureau to consider establishing regional detention centers at new or existing facilities, such as the Shoshone-Bannock Tribes' Justice Center, as it works to combat the crime problem in Indian Country. (H. Rpt. 112-589, p. 37)

Bill Language.

Contract Support Limitation. As requested, the Committee bill would continue language that attempts to limit the ability of the BIA and IHS to fund past-year shortfalls in contract support funding from remaining unobligated balances for those fiscal years. (Sec. 407)

Status of Appropriations Balances. The Committee bill would continue FY 2012 language that requires the DOI, IHS, EPA and Forest Service to provide Congress quarterly reports on the balances of appropriations. (Sec. 418)

Indian Law and Order Commission. The Committee proposes a one-year extension for the Commission to complete its congressionally mandated work (Sec. 116). The Committee notes the Commission's work was delayed a year due to lack of federal funds.

Carcieri Fix. The House version of the Interior Appropriations bill does not include the Administration-proposed language that would provide a "clean" Carcieri fix that would have reversed the U.S. Supreme Court's 2009 decision that the Interior Secretary did not have authority to take land into trust for tribes recognized after 1934.

ENVIRONMENTAL PROTECTION AGENCY

FY 2012 Enacted $8,449,385,000
FY 2013 Admin. Request $8,344,480,000
FY 2013 House Committee $7,055,041,000

The House Committee would provide $7 billion for the EPA, which is $1.2 billion below the budget request and $1.3 billion below the FY 2012 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 2012 Enacted $3,612,937,000
FY 2013 Admin. Request $3,355,723,000
FY 2013 House Committee $2,602,043,000

There are two categories of assistance under the State and Tribal Assistance Grants (STAG), e.g., Infrastructure Assistance Grants ($1.6 billion), and Categorical Grants ($994,043,000). 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

• Brownfields Projects

FY 2012 Enacted $94,848,000
FY 2013 Admin. Request $93,291,000
FY 2013 House Committee $60,000,000

• Safe Drinking Water Revolving Loan Fund

FY 2012 Enacted $917,892,000
FY 2013 Admin. Request $850,000,000
FY 2013 House Committee $829,000,000
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 2012 Enacted $1,466,456,000
FY 2013 Admin. Request $1,175,000,000
FY 2013 House Committee $ 689,000,000

These funds will be used for building or improving sanitation facilities in Indian Country.

Regarding the balances recommended for the two State Revolving Funds (SRF) (the Safe Drinking Water Revolving Loan Fund and Clean Water State Revolving Loan Fund), the House report states:

During calendar year 2009, the Committee provided over $11 billion for water and wastewater infrastructure assistance. Since then, the Committee provided an additional $4.87 billion for fiscal years 2011 and 2012. As a result, EPA has $2.4 billion in unobligated SRF balances yet to be transferred to States. In addition, the States have yet to spend nearly $5 billion that the Federal government has allocated for drinking water and wastewater projects. The Committee believes that EPA and the States must aggressively put this $7.4 billion on to projects in order to address the pressing infrastructure needs facing the nation. The bill provides funding at the fiscal year 2008 enacted levels for the Clean Water and Drinking Water State Revolving Funds: $689,000,000 and $829,000,000 respectively.

The Committee continues bill language to allow EPA and the States to provide additional forms of subsidy to those communities which cannot afford the below market rates provided by an SRF loan. These subsidies will apply to 20 to 30 percent of the funds appropriated for the SRFs. The Committee has carried forward this authority recognizing that many small, rural and/or disadvantaged communities do not have the resources to borrow from the SRFs with the responsibility to pay back the loan, even with the lower interest rate. The Committee directs the Agency to submit a report within 180 days of enactment of this Act detailing how EPA and the States have used this authority including information on the number and amounts of loans awarded with additional subsidization, recipient communities, and descriptions of projects funded.

The Committee has not included bill language mandating that States must use SRF grants for green infrastructure projects. While decentralized, alternative infrastructure projects may prove to be an important component in the efforts to improve and restore our waters, it should not be a mandatory function of the State Revolving Funds. (H. Rpt. 112-589, p. 64)

Regarding sanitation infrastructure specifically in Indian Country, the House report states:

Sanitation Infrastructure in Indian Country.— The Committee is concerned about the lack of sanitation infrastructure in Indian country and Alaska Native Villages. In collaboration with the Indian Health Service and the Bureau of Indian Affairs, the Environmental Protection Agency is directed to report to the Committee on a unified strategy across the relevant government agencies to correct these sanitation deficiencies over a 10-year period. EPA shall provide this report within six months of enactment of this Act. (H. Rpt. 112-589, p. 58)

• Water Supply and Wastewater Infrastructure Grants for Alaska Rural and Native Villages

FY 2012 Enacted $ 9,984,000
FY 2013 Admin. Request $10,000,000
FY 2013 House Committee –0– .

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. Last year the House Appropriations Committee attempted to zero out this line item but the Senate restored the funding. This year, the House Appropriations Committee has made another effort to do so. The House report states:

Alaska Native Villages.—The Committee has not included funding for this unauthorized grant program in fiscal year 2013 recognizing that low income and disadvantaged 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. 112-589, p. 64)

Categorical Grants

• Tribal General Assistance Program (GAP)

FY 2012 Enacted $67,631,000
FY 2013 Admin. Request $96,375,000
FY 2013 House Committee $67,631,000

The 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 2012 Enacted $13,252,000
FY 2013 Admin. Request $13,566,000
FY 2013 House Committee $13,252,000

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.

• Underground Storage Tanks (LUST/UST)

FY 2012 Enacted $1,548,000
FY 2013 Admin. Request $1,490,000
FY 2013 House Committee $1,490,000

• Brownfields Grants

FY 2012 Enacted $49,317,000
FY 2013 Admin. Request $47,572,000
FY 2013 House Committee $47,572,000

• Section 319 Non-Point Source Pollution Grants

FY 2012 Enacted $164,493,000
FY 2013 Admin. Request $164,757,000
FY 2013 House Committee $150,505,000

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 2012 Enacted $15,143,000
FY 2013 Admin. Request $15,167,000
FY 2013 House Committee $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.

ENVIRONMENTAL PROGRAMS AND MANAGEMENT

• Brownfields

FY 2012 Enacted $23,642,000
FY 2013 Admin. Request $25,685,000
FY 2013 House Committee $23,642,000

This program, under the EPA's ENVIRONMENTAL AND PROGRAM MANAGEMENT, differs from the two Brownfields programs listed under STATE AND TRIBAL ASSISTANCE GRANTS. 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.

• Underground Storage Tanks (LUST/UST)

FY 2012 Enacted $12,846,000
FY 2013 Admin. Request $12,283,000
FY 2013 House Committee $12,283,000

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.

• Resource Conservation and Recovery Act (RCRA) Waste Management

FY 2012 Enacted $112,469,000
FY 2013 Admin. Request $117,298,000
FY 2013 House Committee $112,469,000

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.

We will report in more detail on FY 2013 Interior, Environment and Related Agencies appropriations as information becomes available. In the meantime, please let us know if we may provide additional information or assistance regarding the FY 2013 Interior appropriations.

# # #

Inquiries may be directed to:
Marie Osceola-Branch (mosceola-branch@hobbsstraus.com)
Moriah O'Brien (mobrien@hobbstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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