Order Code IB10069
CRS Issue Brief for Congress
Received through the CRS Web
Clean Water Act Issues in the 107th Congress
Updated April 3, 2002
Claudia Copeland
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Introduction
Recent Legislative and Clinton Administration Activity
Issues in the 107th Congress
Water Infrastructure Funding
Congressional Activity
TMDLs and State Water Quality Standards
Agricultural Impacts on Water Quality
Regulatory Protection of Wetlands
Other Issues: Wet Weather Pollution Problems
Stormwater
Combined and separate sewer overflows
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
FOR ADDITIONAL READING
CRS Issue Briefs
CRS Reports

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Clean Water Act Issues in the 107th Congress
SUMMARY
Key water quality issues that may face the
tion of an existing provision of the Act that
107th Congress include: actions to implement
requires states to set "total maximum daily
existing provisions of the Clean Water Act
loads" (TMDLs) of pollution to ensure that
(CWA), whether additional steps are necessary
water quality standards are attained. Rules
to achieve overall goals of the Act, and the
issued by EPA in July 2000 to strengthen the
appropriate federal role in guiding and paying
TMDL program have been very controversial.
for clean water activities. No major activity
The Bush Administration has decided to delay
occurred during the first session of the 107th
these rules until May 2003.
Congress, but in the second session, commit-
tees are considering legislation to reauthorize
Also of interest are EPA and USDA ac-
water infrastructure funding programs.
tions during the Clinton Administration to
better manage waste discharges from animal
Rather than pursuing comprehensive
feeding operations, which can pollute water-
reauthorization of the CWA, the 106th Con-
ways. Congress has been examining impacts
gress focused on individual programs within
on agricultural producers and how the pro-
the Act, and a number of narrow bills related
grams will be funded.
to clean water were enacted. One is intended
to strengthen protection of coastal waters; one
Programs that regulate activities in wet-
reauthorized several existing CWA programs;
lands, such as Section 404 of the CWA, have
and one authorized grants for wet weather
been criticized by landowners for intruding on
sewerage projects.
private land-use decisions and imposing exces-
sive economic burdens. Environmentalists
CWA amendments in 1987, the last
view these programs as essential for maintain-
comprehensive revision, initiated a program of
ing the health of wetland ecosystems. Because
grants to capitalize State Water Pollution
of continuing wide disagreement about the
Control Revolving Funds, or SRF loan pro-
nature of needed reforms, it has been difficult
grams, for wastewater treatment construction.
for policymakers to reach consensus.
States were to have flexibility in exchange for
a phaseout of federal assistance after FY1994.
Monitoring data have identified wet
However, difficulties that some states and
weather discharges to rivers and lakes (in-
small towns have had in implementing the SRF
cluding urban stormwater and sewer over-
program, coupled with financing needs that are
flows) as a serious threat to water quality.
estimated to exceed $130 billion nationwide,
Clean water programs are now focusing on
have made wastewater treatment funding an
solving these wet weather pollution problems.
important issue for Congress.
At issue is whether and how to specify wet
weather programs in the Act and how to pay
Congress is likely to review implementa-
for related pollution control projects.
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
Senate and House committees have begun to consider legislation on water
infrastructure financing issues. On March 20, the House Transportation and Infrastructure
Committee approved a bill to reauthorize the Clean Water Act’s State Revolving Fund
program (H.R. 3930). The Senate Environment and Public Works Committee held two
hearings in February on several bills to reauthorize the Act’s (CWA) State Revolving Fund
financing program and expects to mark up legislation in the near future. Since the
September 11 terrorist attacks in the United States, congressional attention has focused on
security, preparedness, and emergency response issues, including at the nation’s water
infrastructure facilities (both drinking water and wastewater). Whether proposals that may
emerge will have implications for the Clean Water Act is uncertain for now. The 106th
Congress passed several bills dealing with specific water quality issues that amend the CWA.
In addition to the enacted measures, a number of bills dealing with individual water quality
issues passed the House or the Senate, and several others were reported by committees.
Most of the congressional focus on water quality issues during the 106th Congress dealt with
oversight of implementation of current law and Clinton Administration water quality
initiatives, especially regulations implementing the law’s Total Maximum Daily Load
(TMDL) program.
BACKGROUND AND ANALYSIS
Introduction
The principal law that deals with polluting activity in the nation’s streams, lakes, and
estuaries is the Federal Water Pollution Control Act (P.L. 92-500, enacted in 1972),
commonly known as the Clean Water Act (amended by P.L. 95-217 in 1977, P.L. 97-117 in
1981, and P.L. 100-4 in 1987). It consists of two major parts: regulatory provisions that
impose progressively more stringent requirements on industries and cities to abate pollution
and meet the statutory goal of zero discharge of pollutants; and provisions that authorize
federal financial assistance for municipal wastewater treatment plant construction. Both parts
are supported by research activities, plus permit and enforcement provisions. Programs at the
federal level are administered by the Environmental Protection Agency (EPA); state and local
governments have major responsibilities to implement those programs.
The objective declared in the 1972 Act is to restore and maintain the chemical, physical,
and biological integrity of the nation’s waters. That objective was accompanied by statutory
goals to eliminate the discharge of pollutants into navigable waters by 1985 and to attain,
wherever possible, waters deemed “fishable and swimmable” by 1983. While those goals
have not been fully achieved, considerable progress has been made, especially in controlling
conventional pollutants (suspended solids, bacteria, and oxygen-consuming materials)
discharged by industries and municipal sewage treatment plants.
Progress has been mixed in controlling discharges of toxic pollutants (heavy metals,
inorganic and organic chemicals), which are more numerous and can harm human health and
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the environment even when present in minute amounts — at the parts-per-billion level.
Moreover, efforts to control pollution from diffuse sources, termed nonpoint source pollution
(rainfall runoff, for example) have only recently begun, following the traditional focus on
point source pollution (discharges from industrial and municipal wastewater treatment plants).
Overall, data reported by EPA and states indicate that 40% of waters surveyed by states fail
to meet water quality standards. Forty-seven states now have some form of fish-consumption
advisory in effect (including 100% of Great Lakes waters and a large portion of the nation's
coastal waters), due to water pollution problems, and one-third of shellfishing beds are closed
or restricted, due to toxic pollutant contamination.
In 1987 Congress passed major amendments, the first comprehensive revision to the law
in a decade (P.L. 100-4). (For further information, see CRS Issue Brief IB89102, Water
Quality: Implementing the Clean Water Act.) Authorizations for a number of the provisions
expired in FY1990 and FY1991, for programs such as general grant assistance to states,
research, and general EPA support. Authorizations for funding of wastewater treatment
assistance expired in FY1994. None of these programs has lapsed, however, as Congress has
continued to appropriate funds to implement the Act.
The Act has been viewed as one of the most successful environmental laws in terms of
achieving the statutory goals, which have been widely supported by interest groups and the
public, but lately some have questioned whether actions to achieve further benefits are worth
the costs. Such criticisms have come especially from industry, which has been the long-
standing focus of the Act's regulatory programs and which often opposes imposition of
additional stringent and costly requirements. Criticism also has come from developers and
property rights groups who contend that federal regulations (particularly the Act's wetlands
permit program) are a costly intrusion on private land-use decisions. States and cities have
traditionally supported water quality programs and federal funding to assist them in carrying
out the law, but recently many have opposed CWA measures that they fear might impose new
unfunded mandates. Many environmental groups believe that further fine-tuning to strengthen
the Act is needed to maintain progress achieved to date and to address remaining water
quality problems.
Recent Legislative and Clinton Administration Activity
Following enactment of amendments in 1987, no major CWA legislative activity
occurred until the 104th Congress, when the CWA was one of the first environmental laws to
receive congressional attention. The House approved a comprehensive reauthorization bill,
H.R. 961, in May 1995. It would have amended many of the regulatory and standards
provisions of the law, required the Environmental Protection Agency (EPA) to use extensive
new risk assessment and cost-benefit analysis procedures, and increased flexibility with
regulatory relief from current clean water programs. The proposals in H.R. 961 were among
the early efforts of the Republican majority in the 104th Congress to make changes in
environmental laws and regulations and engendered extensive controversy. The Senate did
not take up that bill or other CWA legislation during the 104th Congress.
In the 105th Congress, committees did not initiate legislative activity on clean water
issues, and no comprehensive reauthorization legislation was introduced. Committee leaders,
especially in the House, said they would do so only if presented with consensus proposals that
did not raise controversies like those associated previously with H.R. 961. House and Senate
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subcommittees held hearings on water infrastructure and wetlands issues, but no further
congressional activity occurred.
Likewise, in the 106th Congress, committees did not pursue comprehensive
reauthorization legislation, but action was taken on bills dealing with specific water quality
issues. Congress passed a bill to strengthen protection of coastal recreation waters through
upgraded water quality standards and coastal waters monitoring programs (P.L. 106-284).
Congress also passed a bill reauthorizing several existing CWA programs (i.e., Chesapeake
Bay cleanup, clean lakes, and the National Estuary Program, in P.L. 106-457). Congress
passed a bill to authorize CWA grant funding for wet weather sewerage projects (included
as a provision of the FY2001 Consolidated Appropriations bill, P.L. 106-554). Further, the
House and Senate also included limitations in appropriations laws intended to restrict
implementation of the Act’s Total Maximum Daily Load program (see discussion below,
TMDLs and State Water Quality Standards). (For additional information, see CRS
Report RL30908, Clean Water Act Issues and Legislation in the 106th Congress.)
During its tenure, the Clinton Administration did not offer proposals to reauthorize the
CWA. EPA Administrator Carol Browner was quoted in press reports as saying that the
agency did not plan to propose any major environmental legislation in the 106th Congress,
preferring to focus on achieving regulatory advances under existing law, out of concern that
congressional action could weaken the Clinton Administration's environmental protection
principles. Instead, EPA began a number of agency-wide and program-specific reforms
focusing on flexibility and "common sense" approaches to regulation, many of which affect
implementation of water quality programs. In February 1998, the Clinton Administration
released a multi-agency Clean Water Action Plan intended to build on the environmental
successes of the Act and address many of the nation's remaining water quality challenges. Its
purpose was to coordinate federal efforts to achieve three goals: enhanced protection against
public health threats posed by water pollution, more effective control of polluted runoff, and
promotion of water quality protection on a watershed basis. Components of the Plan, more
than 110 actions, consisted mainly of existing programs that were proposed to receive
increased funding or be accelerated with performance-specific deadlines. Besides EPA, other
involved agencies were the Departments of Agriculture, Commerce, Interior, and the U.S.
Army Corps of Engineers.
Complementing the Plan, President Clinton’s FY1999 budget submission identified it as
a high priority. That year’s was the first of three Clinton budgets that proposed funds to
implement the Plan. During the years FY1999-2001, Congress provided a total of $1.24
billion in increases for Plan activities above FY1998 baseline amounts. Each year’s budget
request was higher than the preceding year’s, and while Congress agreed to some increases,
it appropriated amounts less than the Administration had sought. (For information, see CRS
Report 98-150, Clean Water Action Plan: Background and Early Implementation.)
Issues in the 107th Congress
Key water quality issues that may face the 107th Congress include: actions to implement
existing provisions of the Clean Water Act, whether additional steps are necessary to achieve
overall goals of the Act, and the appropriate federal role in guiding and paying for clean water
activities. Legislative prospects for comprehensively amending the Act have for some time
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stalled over whether and exactly how to change the law. Many issues that might be addressed
involve making difficult tradeoffs between impacts on different sectors of the economy, taking
action when there is technical or scientific uncertainty, and allocating governmental
responsibilities for implementing the law.
Some observers speculate that, rather than taking up comprehensive reauthorization
legislation as it has traditionally done, Congress might consider only narrow bills to extend
or modify selected CWA programs, as was the case in the 106th Congress. If broader clean
water issues receive attention in the 107th Congress, attention could focus on water
infrastructure funding, implementation of current programs for developing total maximum
daily loads (TMDLs) to restore pollution-impaired waters, and impacts of agricultural
activities on water quality. The Act’s wetlands permit program, a pivotal and contentious
issue in the recent past, also remains on the legislative agenda for some Members.
Consideration of specific issues depends in part on the policy agenda of the Bush
Administration. The Administration’s views on clean water topics are not well known, as
these issues were not prominent in the 2000 Presidential campaign and have not yet been
addressed in detail by EPA Administrator Christine Todd Whitman or other agency officials.
Specific legislative issues also will be guided by priorities of the key committees that have
major jurisdiction over the Act (Senate Environment and Public Works, House Transportation
and Infrastructure). Because of provisions of House rules adopted in 1995 that limit
committee leaders to three consecutive terms, the activities of the Transportation and
Infrastructure Committee in the 107th Congress are being directed by new full committee and
subcommittee chairmen. Leadership changes in the full Senate and in committee leadership
there in mid-2001 also have resulted in attention to new issues and priorities.
More generally, following the September 11, 2001, terrorist attacks on the World Trade
Center and the Pentagon, congressional attention has focused on security, preparedness, and
emergency response issues. Among the many topics of interest is protection of the nation’s
water infrastructure facilities (both drinking water and wastewater) from possible physical
damage, biological/chemical attacks, and cyber disruption. (For information, see CRS Report
RS21026, Terrorist and Security Issues Facing the Water Infrastructure Sector.)
Policymakers are considering a number of legislative options in this area, including enhanced
physical security, communication and coordination, and research. Whether proposals will
have implications for the Clean Water Act is uncertain for now.
Water Infrastructure Funding
The Act’s program of financial aid for municipal wastewater treatment plant construction
is a central feature of the law. At issue today is how the federal government will assist states
and cities, especially in view of the high projected funding needs that exist. Since 1972
Congress has provided $73 billion to assist cities in constructing projects to achieve the Act’s
requirements for secondary treatment of municipal sewage (equivalent to 85% reduction of
wastes), or higher where required by local water quality conditions. The CWA does not
authorize funds for operation or maintenance of completed projects. State and local
governments have spent more than $25 billion of their own funds for construction, as well.
Nevertheless, funding needs remain very high: an additional $139.5 billion nationwide by
2016 for all types of projects eligible for funding under the Act, according to the most recent
estimate by EPA and the states, completed in 1996. EPA has been compiling data, called the
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Gap Analysis, to assess the difference between current federal funding for CWA programs
and total funding needs. Drafts of this analysis reportedly indicate that, over the next two
decades, the United States needs to spend $300 billion to replace existing water infrastructure
systems and to build new ones. According to the new data, by the year 2020, the United
States will need to spend $21 billion per year to meet capital expenditures for wastewater
treatment, compared with about $9.4 billion being spent annually now. In addition to the Gap
Analysis, which EPA expects to issue later this year, EPA and states are preparing a new
wastewater needs survey, as required by the CWA, which also is due later this year; it will
update the 1996 survey. Outside groups, including a coalition called the Water Infrastructure
Network, have offered proposals for a multi-billion dollar investment program in wastewater
and drinking water infrastructure which have attracted some congressional interest. (For
additional information, see CRS Report RL31116, Water Infrastructure Funding: Review and
Analysis of Current Issues.)
The 1987 amendments initiated a program of grants to capitalize State Water Pollution
Control Revolving Funds (SRFs), or loan programs. This program in Title VI of the Act
replaced the previous categorical grants program, under which the federal share was 55% of
project costs and localities were not obligated to repay federal funds that they received.
Under the revolving fund concept, monies used for construction will be repaid by borrowing
communities to the states, to be recycled for future construction in other communities, thus
providing an ongoing source of financing. States must provide a 20% match of the federal
amount. The intent of the 1987 amendments was that federal contributions to SRFs would
assist in making a transition to full state and local financing by FY1995. The essential tradeoff
was that states would have greater flexibility to set priorities and administer funding in
exchange for ending federal aid after FY1994. (For additional information, see CRS Report
98-323, Wastewater Treatment: Overview and Background.) Congressional committees are
beginning to consider legislation to address these issues (see below).
All states have established the mechanisms to administer the new loan programs and
have been receiving SRF capitalization funds under Title VI for several years. Some with
prior experience using similar financing programs moved quickly, while others had difficulty
in making a transition from the previous grants program to one that requires greater financial
management expertise for all concerned. Moreover, many states have complained that the
SRF program is unduly complicated by federal rules, even though Congress had intended that
states were to have greater flexibility. Congressional oversight since 1987 has examined the
progress towards reducing the backlog of wastewater treatment facilities needed to achieve
the Act’s water quality objectives, but newer estimates of future funding needs, discussed
above, are drawing increased attention from Members of Congress and others.
Small communities and states with large rural populations have experienced the largest
share of problems with the SRF program. Many small towns did not participate in the
previous grants program and consequently are likely to require major projects to achieve
compliance with the law. Yet these communities often lack an industrial tax base and thus
face the prospect of very high per capita user fees, if their citizens are required to repay the
full capital cost of sewage treatment projects.
While initial intent was to phase out federal support for this program, Congress has
continued to appropriate SRF capitalization grants to the states, providing an average of
$1.35 billion annually in recent years. The SRF provisions have been less controversial than
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others in the Act, such as wetlands reform, because of apparent general agreement on the
need to extend funding assistance (as reflected in continued appropriations). The CWA's SRF
provisions also were a model for similar provisions added to the Safe Drinking Water Act
(SDWA) in 1996 (P.L. 104-182). However, because remaining clean water funding needs
are still so large, at issue is whether and how to extend SRF assistance to address those needs,
how to allocate SRF funds among the states, and how to prioritize projects and funding.
Bush Administration officials have said that infrastructure funding needs go beyond what the
federal government can do on its own. Of particular concern is assisting small and
economically disadvantaged communities that have had the most difficulty in adjusting from
the Act's previous categorical grants program to SRF loans. There also is interest in
availability and adequacy of SRF funding for projects dealing with combined and separate
sewer overflow problems (discussed below). In the 106th Congress, several SRF
reauthorization bills were introduced and hearings were held, but no further action occurred.
Congressional Activity. During the 1st Session of the 107th Congress, committees
held several hearings on water infrastructure financing and need issues: the Senate
Environment and Public Works Committee held hearings in March and October, 2001, and
in the House, separate hearings were held on March 28 by the Transportation and
Infrastructure Committee and the Energy and Commerce Committee.
In the 2nd Session, attention is turning to specific legislative proposals. On March 13,
the House Transportation and Infrastructure Subcommittee on Water Resources and
Environment held a hearing on H.R. 3930, a bill to authorize $20 billion for the CWA SRF
program through FY2007 and make several programmatic changes, including to the method
for allotting SRF funds to states. At the hearing, EPA witnesses said that the Administration
opposes the high authorization level in the bill, preferring a lower funding level that would
allow SRFs to maintain the current activity level of $2 billion per year. The full committee
approved H.R.. 3930 with the $20 billion funding on March 20. The committee approved one
amendment to provide that Davis-Bacon Act prevailing wage requirements apply to projects
and activities funded by capitalization grants and recycled monies in an SRF.
In February, the Senate Environment Committee held two hearings on several bills to
reauthorize the CWA water infrastructure program. The committee heard testimony on S.
252 (a bill to authorize $15 billion in SRF appropriations, expand eligibilities, and authorize
SRF loan subsidies for financially distressed communities), S. 285 (to authorize use of SRF
monies for construction of water conservation and water quality improvements), S. 1044 (to
authorize grant assistance to Chesapeake Bay states for wastewater nutrient removal
projects), and S. 1961 (to authorize $20 billion in CWA SRF appropriations, incorporate
several provisions of the SDWA SRF program into the CWA such as loan subsidies for small
communities, and establish demonstration programs for innovations in technology and
alternative approaches to water quality or water supply management). S. 1961 also would
authorize $15 billion in SDWA SRF appropriations. (For information on H.R. 3930 and S.
1961, see CRS Report RL31344, Water Infrastructure Financing Legislation: Comparison
of Two Bills.)
TMDLs and State Water Quality Standards
The CWA requires states to identify pollution-impaired water segments and develop
"total maximum daily loads" (TMDLs) that set the maximum amount of pollution that a water
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body can receive without violating water quality standards. If a state fails to do so, EPA is
required to develop a priority list for the state and make its own TMDL determination. Most
states have lacked the resources to do TMDL analysis, which involves complex assessments
of water quality problems, pollution sources, and needed pollution reductions, and EPA has
both been reluctant to override states and has also lacked resources to do so. Thus, there has
been little implementation of the provision (Section 303(d)), which Congress enacted in 1972.
At issue today is controversies over implementation of the existing TMDL program and
regulatory revisions that EPA issued in July 2000 to strengthen that program.
Since the late 1980s, citizen groups have filed more than 40 lawsuits in 38 states against
EPA and states for failure to fulfill the TMDL requirements of the Act. Of the lawsuits tried
or settled to date, 19 have resulted in court orders requiring expeditious development of
TMDLs under timeframes ranging from 8-1/2 to 13 years. The lawsuits have increased public
attention to the TMDL program and led EPA to seek ways to re-focus EPA’s and states’
resources on TMDL activities, rather than litigation. In August 1999, EPA proposed
regulatory changes to strengthen the existing program. The proposal set forth criteria for
states, territories and Indian tribes to identify impaired waters and establish all TMDLs within
15 years. It would require more comprehensive waterway assessments, cleanup plans, and
timetables for implementation.
The 1999 proposal became highly controversial because of issues such as potential
burdens on states, industries, cities and others to implement a revised TMDL program and
potential impacts on some agriculture and forestry sources which are not now subject to
CWA regulations. The controversies also drew congressional attention, and 13 congressional
hearings were held by the House and Senate Agriculture committees, the House
Transportation and Infrastructure Committee, and Senate Environment and Public Works
Committee during the 106th Congress. Committees and many Members expressed concern
about details of the TMDL requirements and deadlines and adequacy of resources for states
to develop TMDLs and related assessments. Several legislative proposals to modify the Clean
Water Act by exempting agriculture and forestry from the TMDL program or to delay the
rule were introduced. EPA attempted to respond to the widespread criticism and signal
flexibility on some of the most contentious points. In July 2000, EPA issued a final revised
rule, but controversies persist. The final rule builds on the current TMDL regulatory program
and adds details, specific requirements, and deadlines that require states to implement plans
to clean up polluted waters. It retains the basic elements of the 1999 proposal for more
comprehensive identification of impaired waters, schedules and minimum elements for
TMDLs, and new public participation requirements. (For additional information, see CRS
Report 97-831, Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants.)
TMDL issues were addressed in FY2001 appropriations bills. Prior to the July 4th, 2000,
congressional recess, the House and Senate approved a FY2001 Military Construction and
emergency supplemental appropriations bill (H.R. 4425, H.Rept. 106-710) that included a
provision to prevent EPA from spending any funds in FY2000 or FY2001 to finalize or
implement new TMDL rules. President Clinton signed the bill on July 13, in spite of the
TMDL provision, which the Administration opposed (P.L. 106-246). However, EPA
Administrator Browner signed the new TMDL rules two days earlier, on July 11, 2000, but
delayed the effective date until October 2001 when the limitation in P.L. 106-246 is due to
expire. In addition, the FY2001 appropriation act providing funds for EPA, P.L. 106-377,
signed on October 27, 2000, included report language mandating studies by the National
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Academy of Sciences (NAS) and EPA on the scientific basis of the TMDL program and on
the potential costs to states and businesses of implementing the revised TMDL rules. The
NAS report, examining the role of science in the TMDL program, was issued June 15, 2001.
It did not specifically analyze the July 2000 revised regulations. The NAS panel concluded
that scientific knowledge exists to move forward with the TMDL program and recommended
that EPA and states use adaptive implementation for TMDL development. In many cases,
the report said, water quality problems and solutions are obvious and should proceed without
complex analysis. In other cases, solutions are more complex and require a different level of
understanding and something like phased implementation. A House Transportation
Committee subcommittee held a hearing on the NAS report on June 28. EPA issued a draft
report on costs of the 2000 TMDL program in August, estimating that average annual costs
to states and EPA of developing TMDLs could be $63-$69 million, while implementation
costs for pollutant sources could be between $900 million and $4.3 billion per year, depending
on states’ actions. (For information, see CRS Report RL31091, The Clean Water Act’s
TMDL Program: Newly Presented Options and Cost Estimates.) The General Accounting
Office recently reported that inconsistent monitoring, data collection, and listing procedures
used by states to identify impaired waters have hindered efforts to develop effective TMDL
programs (Water Quality: Inconsistent State Approaches Complicate Nation’s Efforts to
Identify Its Most Polluted Waters, GAO-02-186).
In mid-October, 2001, the Bush Administration announced that it will delay the effective
date of the 2000 rules for 18 months (until May 2003) to allow EPA officials time to review
the rule and the recent NAS report. This action came after a federal court approved the
Administration’s request for a similar suspension of litigation which is challenging the
regulation (nearly a dozen interest groups have sued EPA over various parts of the TMDL
rule). In the interim, existing rules and requirements and court-sanctioned TMDL schedules
remain in place. A House Transportation and Infrastructure subcommittee held a hearing on
November 15 to review issues of interest in development of a new rule, and congressional
oversight is likely to continue in the 107th Congress.

Agricultural Impacts on Water Quality
A key element of the Clinton Administration’s Clean Water Action Plan was to minimize
public health and environmental impacts of runoff from animal feeding operations (AFOs),
which are agricultural facilities that confine livestock feeding activities, thus concentrating
animal populations and waste. Animal waste is frequently applied to land for disposal and to
utilize the nutrient value of manure to benefit crops. If not managed properly, it can pose
risks to water quality and public health, contributing pollutants such as nutrients, sediment,
pathogens, and ammonia to the environment. At issue today are controversies over programs
and rules initiated by the Clinton Administration seeking to better control adverse
environmental impacts of agricultural activities.
Existing EPA rules, issued in the 1970s, require CWA discharge permits for the largest
AFOs (about 6,000 out of 450,000 total facilities nationwide). However, EPA acknowledges
that compliance and enforcement of these permit rules have been poor (less than one-third of
covered facilities actually have permits) and that the regulations themselves are outdated. In
March 1999, EPA and USDA issued a national AFO strategy containing a number of steps
to improve compliance and strengthen existing regulations, obtain better information through
data collection and research on water quality impairments, and coordinate federal and state
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activities. It proposed that all AFOs, regardless of size, should develop and implement
comprehensive nutrient management plans by 2009. The plans would include manure
handling and storage, application of manure to land, recordkeeping, feed management, land
management, and other manure-use options. Officials estimate that 95% of all AFOs will be
encouraged to implement voluntary nutrient management plans, while 15,000 to 20,000 large-
scale operations will be required to develop the plans as part of CWA discharge permits.
Also, EPA is working with states on a 2-phase approach for issuing permits to animal feedlot
operations: requiring coverage of large-scale operations by permits by 2005; and revising
existing regulations by 2002.
In December 2000, EPA proposed rules to increase the number of AFOs required to
obtain CWA permits and to restrict land application of animal wastes. A House
Transportation and Infrastructure subcommittee held an oversight hearing on this proposal
on May 16. A final rule has not yet been published but is due by December in order to meet
a court deadline. Issues that Congress has addressed and is likely to continue reviewing
include impacts and costs imposed on the agricultural sector (especially small farmers), which
for the most part is not regulated by the Clean Water Act or other EPA programs; how the
proposed combination of regulatory and incentive-based measures in the National AFO
Strategy will achieve the goal of minimizing water pollution from confinement facilities and
land application of manure; the adequacy of agriculture’s relevant programs to support
implementation; and whether legislation is needed to define national rules and policies
regarding animal waste. (For additional information, see CRS Report RL30437, Water
Quality Initiatives and Agriculture.)
While the AFO strategy focuses mainly on large facilities which are subject to CWA
permit requirements, other activities also are of interest. State and EPA survey data report
that uncontrolled polluted runoff from agriculture and city streets and storm sewers is the
leading cause of water quality impairment in the United States. EPA's most recent National
Water Quality Inventory Report finds that these nonpoint sources of water pollution, along
with runoff from forestry and construction sites, land disposal activities, and deposition of air
pollution contaminants, contribute more than 50% of remaining water quality problems in
rivers, lakes, and coastal waters. Agriculture is believed to be responsible for the largest
portion of today’s water quality impairments due to polluted runoff–70% of impaired rivers
and streams and 49% of impaired lakes, according to EPA. Scrutiny of nonpoint pollution
problems, including from agriculture, may occur as policymakers assess steps to continue
progress towards water quality goals.
Regulatory Protection of Wetlands
Restoring and protecting wetlands also was a key feature of the Clinton Administration's
Clean Water Action Plan. One element of the plan was a goal of achieving a net gain of as
many as 100,000 acres of wetlands annually by the year 2005. Even before this specific
policy goal was declared, how best to protect the nation's remaining wetlands and regulate
activities taking place in wetlands had become one of the most contentious environmental
policy issues, especially in the context of the CWA, which contains a key wetlands regulatory
tool, the permit program in Section 404. It requires landowners or developers to obtain
permits for disposal of dredged or fill material that is generated by construction or similar
activity into navigable waters of the United States, including wetlands. Section 404 has
evolved through judicial interpretation and regulatory change to become one of the principal
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federal tools used to protect wetlands, although that term appears only once in Section 404
itself and is not defined there. At the same time, its implementation has come to be seen as
intrusive and burdensome to those whose activities it regulates. At issue today is addressing
criticism of the Section 404 regulatory program while achieving desired goals of wetlands
protection. (For additional information, see CRS Issue Brief IB97014, Wetlands Issues.)
Unlike the rest of the Act, the permit aspects of Section 404 are administered by the U.S.
Army Corps of Engineers, using EPA environmental guidance. Other federal agencies
including the U.S. Fish and Wildlife Service (FWS) and Natural Resource Conservation
Service (NRCS) have more limited roles in the Corps’ permitting decisions. Tension has
existed for many years between the regulation of activities in wetlands under Section 404 and
related laws, on the one hand, and the desire of landowners to develop property that may
include wetlands, on the other hand. The conflicts over wetlands regulation have for the most
part occurred in administrative proceedings, as Congress has not amended Section 404 since
1977, when it provided exemptions for categories of routine activities, such as normal farming
and forestry. Controversy has grown over the extent of federal jurisdiction and impacts on
private property, burdens and delay of permit procedures, and roles of federal agencies and
states in issuing permits.
Legislative proposals to modify Section 404 have presented a number of issues, including
whether all wetlands should be treated the same, or whether some could be accorded less
stringent regulatory protection; whether activities or areas covered by federal regulation
should be modified; and whether federal and state roles in implementing Section 404 should
be revised. Views on these issues vary. Many wetland protection advocates contend that
statutory changes that have been proposed would weaken current protection efforts and that
more modest administrative reforms would effectively improve the current program. Many
landowners say that changes are needed to lessen burdens of the regulatory program. Some
also argue that the CWA should compensate landowners whose property is adversely affected
by regulatory "takings" when application of Section 404 limits desired property use, since an
estimated 74% of all remaining wetlands are on private lands.
Legislative proposals for comprehensive reform of wetlands regulatory programs have
been controversial, leading some to focus instead on narrower revisions. Specific issues that
could draw congressional attention include a federal court rulings that overturned a regulation
(called the Tulloch rule) issued by the Corps and EPA in 1993 that had expanded the scope
of wetlands regulation to certain landclearing and excavation activities that previously had not
been regulated. The Clinton Administration issued a revised Tulloch rule before leaving office
in January 2001, and in April, after reviewing it, the new Bush Administration agreed to let
the rule take effect. Industry groups have challenged the regulation in court.
Another issue of interest is the Corps’ implementation of the nationwide permit program,
which is intended to minimize the burden of regulation through a streamlined permitting
process.. Nationwide permits are issued for periods of no longer than 5 years. Thus, in
January 2002, the Corps reissued all 43 nationwide permits, most of which were last re-issued
in 1996. EPA and environmental groups object to some revisions that the Corps included in
order to add flexibility, including relaxation of certain permit conditions, fearing that they
would result in a net loss of wetland acres. Industry groups favor flexibility in the revised,
but say that some requirements for case-by-case review could nullify the positive aspects. At
issue is whether the nationwide permit program has become so complex that it can neither
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protect aquatic resources nor provide for a fair regulatory system, which are its dual
objectives. (See CRS Report 97-223, Nationwide Permits for Wetlands Projects: Regulatory
Developments and Current Issues.)
Also of interest is impacts of a January 2001 Supreme Court decision that ruled that the
Corps’ regulatory authority does not extend to isolated wetlands, areas which have been
among the most controversial in terms of Section 404 jurisdiction (Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers, No. 99-1178, January 9, 2001; for
information, see CRS Report RL30849, The Supreme Court Addresses Corps of Engineers
Jurisdiction Over “Isolated Waters”: The SWANCC Decision).
While Congress has not been able to agree on how to address regulatory questions, it
has supported programs to restore wetlands and to provide incentives for setting them aside.
For example, interest has grown in creating “mitigation banks,” in which wetlands are created,
restored, or enhanced in advance to serve as “credits” that may be used or acquired by permit
applicants when they are required to mitigate impacts of their activities. Numerous public and
private banks have been established, and federal policy and guidance support the concept.
However, controversy exists over whether it is possible to restore or create wetlands with
ecological and other functions equivalent to or better than those of natural wetlands that have
been lost over time and, thus, whether reliance on mitigation banks is appropriate. In the
107th Congress, the House Transportation and Infrastructure Water Resources and
Environment Subcommittee held a hearing on September 20 on H.R. 1474, a bill which
promotes restoration, conservation, and enhancement of wetlands by specifically authorizing
a wetlands mitigation banking program. It would require the Corps to establish standards and
criteria for mitigation banking, on-site mitigation, in-lieu fees, and other off-site mitigation.
Other Issues: Wet Weather Pollution Problems
In recent years, as projects for treating traditional municipal pollution have been
identified and successfully addressed, water quality officials have turned their attention to
stormwater discharges and overflows from municipal sewer systems. These problems, which
are most often associated with weather events during which rain or snowmelt overwhelm the
capacity of sewerage collection systems, and untreated wastes are discharged directly into
waterways, have received little attention in the past and have been largely uncontrolled. Wet
weather discharges, unlike discharges from industrial facilities, are intermittent and variable
and present regulatory challenges for policymakers. At issue is whether and how to detail wet
weather programs in the Act versus allowing flexibility that recognizes the site-specific nature
of intermittent wet weather pollution. The 107th Congress may examine policy and funding
questions raised by efforts to address wet weather pollution problems.
Stormwater. Stormwater discharge systems are the pipes and sewer lines that carry
rainwater or snowmelt (but not sanitary wastes) away from urban areas and commercial and
industrial facilities. Although stormwater is discharged from pipes, it is intermittent and
weather-dependent. Thus, it has characteristics of both point and nonpoint pollution.
Although stormwater can transport significant amounts of pollutants, it had been largely
unregulated until the 1987 amendments directed EPA to implement a specific permit program
for stormwater discharges from industrial sources and municipalities. Delays in issuing
regulations, coupled with high compliance costs (especially for some cities), have been
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frustrating and controversial. Under the regulatory program developed by EPA, industrial
facilities and cities with populations of 100,000 were required to seek stormwater permits by
May 1993. Under the provision in the 1987 amendments, smaller cities were to comply with
rules that EPA was to issue by October 1993, but those rules were not issued until October
1999. Under those 1999 rules, permit applications are due in March 2003. (For information,
see CRS Report 97-290, Stormwater Permits: Status of EPA’s Regulatory Program.)
Questions of how small sources will be regulated and the general complexity of the permit
program have brought stormwater back as a legislative issue. In the 106th Congress, several
bills dealing with local government stormwater programs were introduced, but no further
action occurred. Those bills proposed to limit and clarify local governments’ liability for
certain stormwater discharges.
Combined and separate sewer overflows. Nearly 1,200 municipalities have
combined sewers where domestic sanitary sewage, industrial wastes, infiltration from
groundwater, and stormwater runoff are collected and treated together. These systems serve
approximately 40 million persons, mainly in older urban and coastal cities. Properly designed,
sized, and maintained combined sewers can be an acceptable part of a city’s water pollution
control infrastructure. Normally (under dry-weather conditions), the combined wastes are
conveyed to a municipal sewage treatment plant. However, combined sewer overflow (CSO)
occurs when the capacity of the collection and treatment system is exceeded due to high
volumes of rainwater or snowmelt, and the excess volume is diverted and discharged directly
into receiving waters, bypassing the sewage treatment plants. Often the excess flow that
contains raw sewage, industrial wastes, and stormwater is discharged untreated. Many
combined sewer systems are found in coastal areas where recreational areas, fish habitat and
shellfish beds may be contaminated by the discharges.
For many years, CSOs were not considered a high regulatory or permitting priority for
EPA or states. There are no express provisions in the Act dealing with CSOs, except to the
extent that they are subject to permit requirements and deadlines as are other point sources.
Congress has recognized the impacts of CSO discharges, however, and legislative options to
address the CSO issue directly have been discussed.
In both the 103rd and 104th Congresses, consensus began to emerge on modifying the
CWA to endorse EPA’s current permitting strategy which was developed in 1994 after
negotiations with key stakeholder groups. As a first priority, EPA’s strategy calls for
eliminating overflows from combined sewers that occur even in the absence of rainfall (due
to normal flows that exceed the capacity of sewers) and then calls for states and cities to
address CSOs based on impacts on water quality and human health. Cities also were to
implement nine minimum controls by January 1, 1997 (e.g., proper operation and maintenance
programs for sewer systems and pollution prevention programs). The EPA strategy does not
contain a deadline for issuance of permits or for controlling CSOs. Deadlines will be
contained in plans developed by permitting authorities. Controls are available and generally
are based on combinations of management techniques (such as temporary retention of excess
flow during storm events) and structural measures (ranging from screens that capture solids
to construction of separate sewer systems). EPA officials stated in May 1998 that only about
one-half of the cities with combined sewers have implemented the minimum measures called
for in the 1994 strategy. EPA is now working with states to remind cities of their obligations
to address CSO problems. However, a formal enforcement strategy is not contemplated.
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A more recent issue concerning some cities is the problem of overflows from municipal
separate sanitary sewers (SSOs) that are not CSOs because they transport only sanitary
wastes. Discharges of untreated sewage from these sewers occur from manholes, broken
pipes and deteriorated infrastructure, and undersized pipes, and can occur in wet or dry
weather. EPA has estimated that there are 18,000 municipalities with separate sanitary
sewers, all of which can, under certain circumstances, experience overflows. No explicit EPA
or statutory control policy currently exists. In 1995, EPA convened a stakeholders’ group
to discuss how to address those overflows that pose the highest environmental and public
health risk first. On January 5, 2001, EPA finalized regulations that will improve the operation
of municipal sanitary sewer collection systems, reduce the frequency and occurrence of
overflows, clarify the existing CWA prohibition on SSO discharges, and clarify circumstances
appropriate for enforcement action. However, the rules were not published before the Clinton
Administration left office, and the Bush Administration is currently reviewing the regulations.
Funding for CSO and SSO projects is a major concern of states and cities. In June 1999,
a House Transportation and Infrastructure subcommittee held a hearing on the need for
additional federal funding (in addition to that which is available through the CWA SRF
program) to help municipalities address CSO, SSO, and related wet weather issues. At the
end of the 106th Congress, legislation was enacted which amends the CWA to codify EPA’s
1994 CSO policy on sewer overflows (discussed above) and create a 2-year $1.5 billion grant
program to reduce wet weather flows from municipal sewer systems. The text of this bill was
included in the FY2001 Consolidated Appropriations bill, enacted in December (P.L. 106-
554; Division B, Title I of H.R. 5666, Section 112).
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress. Committee on Transportation and Infrastructure. Subcommittee on Water
Resources and Environment. Improving Water Quality: States’ Perspectives on the
Federal Water Pollution Control Act. Hearing, Feb. 28, 2001. 107th Congress, 1st
session. Washington, U.S. Govt. Print. Off., 53 p. (107-3)
—— Clean Water Infrastructure and Wet Weather Flows Legislation. Hearing, June 22,
1999. 106th Congress, 1st session. Washington, U.S. Govt. Print. Off., 296 p. (106-23)
U.S. Congress. Senate. Committee on Environment and Public Works. Clean Water Action
Plan. Hearing, May 13, 1999. 106th Congress, 1st session. Washington, U.S. Govt.
Print. Off., 148 p. (S. Hrg. 106-389)
—— Water Infrastructure. Hearing, Oct. 7, 1999, on S. 968, S. 914, and S. 1699. 106th
Congress, 1st session. Washington, U.S. Govt. Print. Off., 108 p. (S. Hrg. 106-618)
—— Clean Water Act Issues. Hearing, Oct. 13, 1999, on S. 188, S. 669, S. 1706. 106th
Congress, 1st session. Washington, U.S. Govt. Print. Off., 90 p. (S. Hrg. 106-590)
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—— Subcommittee on Fisheries, Wildlife, and Water. Proposed Rule Changes to the TMDL
and NPDES Permit Programs. Hearings, Mar. 1, 23, and May 18, 2000. 107th
Congress, 1st session. Washington, U.S. Govt. Print. Off., 597 p. (S.Hrg. 106-971)
FOR ADDITIONAL READING
Goplerud, C. Peter. “Water Pollution Law: Milestones from the Past and Anticipation of
the Future.” Natural Resources & Environment, v. 10, no. 2, Fall 1995: 7-12.
Houck, Oliver A. “TMDLs: The Resurrection of Water Quality Standards-Based
Regulation Under the Clean Water Act.” Environmental Law Reporter News &
Analysis, v. 27, no. 7, July 1997: 10329-10344.
Loeb, Penny. "Very Troubled Waters." U.S. News & World Report, v. 125, no. 12,
September 28, 1998: 39, 41-42.
National Research Council, National Academy of Sciences. ASSESSING THE TMDL
APPROACH TO WATER QUALITY MANAGEMENT. National Academy Press, Washington,
D.C. June 2001. 82 p.
U.S. Environmental Protection Agency. National Water Quality Inventory: 1998 Report to
Congress. Washington, June 2000. “EPA841-R-00-001."
U.S. General Accounting Office. Key EPA and State Decisions Limited by Inconsistent and
Incomplete Data. (GAO/RCED-00-54) March 2000. 73 p.
CRS Issue Briefs
CRS Issue Brief IB89102, Water Quality: Implementing the Clean Water Act, by Claudia
Copeland.
CRS Issue Brief IB97014, Wetland Issues, by Jeffrey Zinn and Claudia Copeland.
CRS Reports
CRS Report 96-647, Water Infrastructure Financing: History of EPA Appropriations, by
Claudia Copeland
CRS Report 97-223, Nationwide Permits for Wetlands Projects: Regulatory Developments
and Current Issues, by Claudia Copeland.
CRS Report 98-323, Wastewater Treatment: Overview and Background, by Claudia
Copeland
CRS Report RL31116, Water Infrastructure Funding: Review and Analysis of Current
Issues, by Claudia Copeland and Mary Tiemann
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CRS Report RL31344, Water Infrastructure Financing Legislation: Comparison of Two
Bills, by Claudia Copeland and Mary Tiemann
CRS Report 98-150, The Clean Water Action Plan: Background and Early Implementation,
by Claudia Copeland.
CRS Report RL30437, Water Quality Initiatives and Agriculture, by Claudia Copeland
CRS Report 97-831, Clean Water Act and Total Maximum Daily Loads (TMDLs) of
Pollutants, by Claudia Copeland
CRS Report RL30611, EPA’s Total Maximum Daily Load (TMDL) Program: Highlights of
the Final Revised Rule, by Claudia Copeland
CRS Report RL31091, The Clean Water Act’s TMDL Program: Newly Presented Options
and Cost Estimates, by Claudia Copeland
CRS Report RL30908, Clean Water Act Issues and Legislation in the 106th Congress, by
Claudia Copeland
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