Order Code IB89102
Issue Brief for Congress
Received through the CRS Web
Water Quality:
Implementing the Clean Water Act
Updated June 5, 2002
Claudia Copeland
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
The Act and Recent Amendments
Legislative activity after P.L. 100-4
Total Maximum Daily Load (TMDL) Requirements
Nonpoint Pollution Management Provisions
Adequacy of plans
Quality of plans
Funding
Program changes
Significance for TMDLs
State Revolving Fund Provisions
Other Issues
Stormwater discharges
Combined and separate sewer overflows
Wetlands
The Clinton Administration’s Clean Water Initiative
Strategy concerning animal feeding operations
Continuing Issue: Appropriations and the Federal Budget
FY2003
FY2002
FY2001
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
FOR ADDITIONAL READING
CRS Reports and Issue Briefs


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Water Quality:
Implementing the Clean Water Act
SUMMARY
Congress enacted the most recent major
measures is significantly hindered by lack of
amendments to the Clean Water Act in 1987
resources, including federal assistance. EPA
(P.L. 100-4). Since then, the Environmental
adopted program guidance intended to give
Protection Agency (EPA), states, and others
states more flexibility and to speed up prog-
have been working to implement the many
ress in nonpoint source control.
program changes and additions mandated in
the law. At issue today, as it has been for
The third issue is funding to construct
some time, is what progress EPA and the
municipal wastewater treatment plants under
states are making. In general, many states and
the State Revolving Fund provisions of the
environmental groups fault EPA for delays in
1987 amendments. Budgetary constraints on
issuing guidance and assistance needed to
federal aid for wastewater treatment and large
carry out the provisions of the law. EPA and
remaining funding needs are a continuing
others are critical of states, in turn, for not
concern.
reaching beyond conventional knowledge and
institutional approaches to address their water
In 1998, the Clinton Administration
quality problems. Environmental groups have
released a multi-agency Clean Water Action
been criticized for insufficient recognition of
Plan intended to build on the environmental
EPA’s and states’ need for flexibility to im-
successes of the Act and address the nation’s
plement the Act. Finally, Congress has been
remaining water quality challenges. These
criticized for not providing adequate funding
Clinton initiatives have not been specifically
and resources to meet EPA and state needs.
addressed by the Bush Administration.
Three issues have predominated recently
Reauthorization of the Act was on the
in connection with implementation of the law.
agenda of the 104th Congress, when the
The first involves implementation of require-
House passed H.R. 961, but no amendments
ments under current law for states to develop
were enacted. No major legislative activity
total maximum daily loads (TMDLs) to re-
occurred in the 105th or 106th Congresses,
store pollution-impaired waters. The second
although legislation was passed affecting
issue involves the nonpoint pollution manage-
some individual program areas. Recent atten-
ment provisions added in 1987. States are
tion has focused on EPA rules for the Act’s
developing management programs describing
TMDL program issued in 2000. Congressio-
methods that will be used to reduce nonpoint
nal oversight of the TMDL program is likely
pollution, which may be responsible for as
in the 107th Congress, as is consideration of
much as 50% of the nation’s remaining water
water infrastructure legislation (also see CRS
quality problems. Most observers agree that
Issue Brief IB10069, Clean Water Act Issues
implementation of nonpoint source control
in the 107th Congress).
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
On February 4, the Administration presented its FY2003 budget request. The budget
seeks $1.212 billion for clean water SRF grants and also requests $20 million to fund a new
Targeted Watersheds Initiative that would provide direct grants to stakeholders
implementing watershed restoration projects. In November 2001, Congress passed
legislation providing funding for EPA for FY2002 (P.L. 107-73, H.R. 2620) including $1.35
billion for clean water SRF grants (the same level enacted for FY2001). Also at the end of
2001,Congress approved legislation (P.L. 107-117) appropriating funds for government
security and anti-terrorism activities. The bill includes $176 million for EPA to carry out
security, preparedness, and emergency response activities, especially at wastewater and
drinking water infrastructure facilities, which have received considerable congressional
attention since the terrorist attacks of September 11, 2001.

In August 1999, EPA proposed regulations to clarify and strengthen existing rules that
govern a Clean Water Act (CWA) program intended to restore impaired waters, the Total
Maximum Daily Load (TMDL) program. The proposal became highly controversial because
of issues such as burdens on states to implement the TMDL program and potential impacts
on some agriculture and forestry sources which are not now subject to CWA regulations.
EPA modified the 1999 proposal and issued new TMDL rules on July 11, 2000, but delayed
the effective date until October 2001. Controversies about the new rules persist. The Bush
Administration has decided to delay the rules until May 2003 for further review.

BACKGROUND AND ANALYSIS
The Act and Recent Amendments
The Federal Water Pollution Control Act, or Clean Water Act, is the principal law
concerned with polluting activity in the nation’s streams, lakes, and estuaries. Originally
enacted in 1948, it was totally revised by amendments in 1972 (P.L. 92-500) that gave the
Act its current form and spelled out ambitious programs for water quality improvements that
are now being put in place by industries and cities. Congress made certain fine-tuning
amendments in 1977 (P.L. 95-217) and 1981 (P.L. 97-117).
The Act consists of two major parts: regulatory provisions that impose progressively
more stringent requirements on industries and cities in order to meet the statutory goal of
zero discharge of pollutants, and provisions that authorize federal financial assistance for
municipal wastewater treatment construction. Industries were to meet pollution control
limits first by use of Best Practicable Technology and later by improved Best Available
Technology. Cities were to achieve secondary treatment of municipal wastewater (roughly
85% removal of conventional wastes), or better if needed to meet water quality standards.
Both major parts are supported by research activities authorized in the law, plus permit and
penalty provisions for enforcement. These programs are administered by the Environmental
Protection Agency (EPA), while state and local governments have the principal day-to-day
responsibility for implementing the law. (Note: A summary of the Act with details and "hot
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links" to sections of the U.S. Code can be found in the online version of this issue brief,
which is available on the CRS Home Page.)
The most recent amendments are the Water Quality Act of 1987 (P.L. 100-4). These
amendments culminated 6 years of congressional efforts to extend and revise the Act and are
the most comprehensive amendments to it since 1972. They recognize that, despite much
progress to date, significant water quality problems persist. Among its many provisions, the
1987 legislation:
! established a comprehensive program for controlling toxic pollutant
discharges, beyond that already provided in the Act, to respond to so-called
“toxic hot spots;”
! added a program requiring states to develop and implement programs to
control nonpoint sources of pollution, or rainfall runoff from farm and urban
areas, plus construction, forestry, and mining sites;
! authorized a total of $18 billion for wastewater treatment assistance under
a combination of the Act’s traditional construction grants program through
FY1990 and, as a transition to full state funding responsibility, a new
program of grants to capitalize State Revolving Funds, from FY1989-1994;
! authorized or modified a number of programs to address water pollution
problems in diverse geographic areas such as coastal estuaries, the Great
Lakes, and the Chesapeake Bay; and
! revised many of the Act’s regulatory, permit, and enforcement programs.
Legislative activity after P.L. 100-4. Congressional oversight of water quality
issues was limited following enactment of P.L. 100-4. Subcommittees held general
oversight hearings, as well as several hearings on individual issues (wetlands protection,
Chesapeake Bay programs, and toxics contamination of Great Lakes waters), but reserved
extensive review and oversight until implementation had been underway for some time.
EPA, the states, industry, and other citizens continue to implement the 1987 legislation,
including meeting the numerous requirements and deadlines in it. Three sets of issues have
been the focus of attention regarding the pace and effectiveness of implementation: the toxic
pollutant control provisions, nonpoint pollution management provisions, and the State
Revolving Fund provisions to transfer wastewater treatment funding responsibility to the
states after 1994. Attention has also focused on the cost-effectiveness of clean water
requirements and flexibility of implementation.
Implementation issues discussed below were the basis for legislation to reauthorize the
Clean Water Act during the 103rd Congress. Committees held hearings in 1993, and the
Senate Environment and Public Works Committee reported a comprehensive reauthorization
bill, S. 2093, in May 1994. Legislation also was introduced in the House, but no further
action occurred because of controversies specific to the Act and the pending bills, as well as
controversies over regulatory relief issues that became barriers to a number of bills in 1994.
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In the 104th Congress, the House moved quickly on Clean Water Act legislation,
approving a comprehensive reauthorization bill in May 1995. H.R. 961 would have amended
many of the regulatory and standards provisions of the law, required EPA to use extensive
new risk assessment and cost-benefit analysis procedures, and increased flexibility with
regulatory relief from current clean water programs. However, the Senate did not take up the
Clean Water Act during the 104th Congress; thus, no legislation was enacted.
1997 marked the 25-year anniversary of the 1972 Clean Water Act amendments, which
established the goals, objectives, and structure that continue to guide the law today. In the
105th Congress, no major committee activity over the Act occurred either in the House or
the Senate. In the 106th Congress, legislative attention focused on individual program areas
of the law; no comprehensive reauthorization legislation was introduced. However, activity
on bills dealing with specific water quality issues did occur. 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, clean lakes, and the
National Estuary Program; P.L. 106-457). Further, Congress passed a bill to authorize CWA
grant funding for wet weather sewerage projects (included as a provision of P.L. 106-554,
FY2001 Consolidated Appropriations bill). (For detailed information, see CRS Report
RL30908, Clean Water Act Issues and Legislation in the 106th Congress.)
Implementation issues that have been the focus of attention in recent Congresses, along
with concerns over flexibility and regulatory relief, are expected to predominate when
Congress does take up reauthorization in the future. In February 1998, the Clinton
Administration released a multi-agency Clean Water Initiative intended to build on the
environmental successes of the Act and address the nation’s remaining water quality
challenges (see discussion below, The Clinton Administration’s Clean Water Initiative).
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 wastewater and drinking water) 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. Physical security of
wastewater treatment plant operations is one of the issues under consideration.
Total Maximum Daily Load (TMDL) Requirements
Section 303(d) of the Clean Water Act requires states to identify pollutant-impaired
water segments and develop “total maximum daily loads” (TMDLs) that set the maximum
amount of pollution that a water 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 analyses,
which involve complex assessment of point and nonpoint sources and mathematical
modeling, and EPA has both been reluctant to override states and has also lacked resources
to do the analyses. Thus, there has been little implementation of the provision that Congress
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enacted in 1972. In recent years, national and local environmental groups have filed more
than 40 lawsuits in 38 states against EPA and states for failure to fulfill requirements of the
Act. Of the suits tried or settled to date, 19 have resulted in court orders requiring
expeditious development of TMDLs. EPA and state officials have been concerned about
diverting resources from other high-priority water quality activities in order to meet the
courts’ orders. In 1996, EPA created an advisory committee to solicit advice on the TMDL
problem. Recommendations from the advisory committee formed the basis of program
changes that EPA proposed in August 1999. The 1999 proposal set forth criteria for states,
territories, and authorized Indian tribes to identify impaired waters and establish all TMDLs
within 15 years. It would require more comprehensive assessments of waterways, detailed
cleanup plans, and timetables for implementation. (For additional information, see CRS
Report 97-831, Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants.)
The 1999 proposal was highly controversial because of issues such as burdens on states
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 have
drawn congressional attention, and 13 congressional hearings were held during the 106th
Congress by four separate House and Senate committees. Public and congressional pressure
on EPA to revise or withdraw the TMDL proposal entirely was great. Several legislative
proposals to modify EPA’s TMDL proposals or delay implementation of final rules were
introduced (For information see CRS Report RL30908, Clean Water Act Issues and
Legislation in the 106th Congress
).
TMDL issues also were addressed in FY2001 appropriations bills. Before 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 FY 2001 to finalize or
implement new TMDL rules. President Clinton signed the bill on July 13, 2000, in spite of
the TMDL restriction, which the Administration opposed (P.L. 106-246). However, the
EPA Administrator signed the new TMDL rules on July 11 but delayed the effective date
until October 2001 when the limitation in P.L. 106-246 would expire. (For information, see
CRS Report 30611, EPA’s Total Maximum Daily Load (TMDL) Program: Highlights of the
Final Revised Rule
.) EPA’s actions to sign the rule before the rider took effect led to more
criticism.
The FY2001 appropriations act providing funds for EPA, P.L. 106-377, included report
language mandating studies by the National 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. In August, EPA issued a draft report on costs
of the 2000 TMDL program. It estimates that average annual costs to states and EPA of
developing TMDLs could be $63-$69 million, while implementation costs for pollutant
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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).
The Bush Administration announced in mid-October that it would delay the effective
date of the 2000 rule until April 30, 2003, to allow for further review. That announcement
came after a federal court granted the Administration’s request for a similar 18-month
suspension of litigation which is challenging the regulation (nearly a dozen interest groups
sued EPA over various parts of the TMDL rule). In the interim, current program
requirements under existing regulations and court-sanctioned TMDL schedules remain in
place. A House Transportation and Infrastructure subcommittee held an oversight hearing
on November 15 concerning EPA’s plans to revise the rule, and congressional oversight is
likely to continue in the 107th Congress.
Nonpoint Pollution Management Provisions
The 1987 amendments added a new Section 319 to the Act, under which states were
required to develop and implement programs to control nonpoint sources of pollution, or
rainfall runoff from farm and urban areas, as well as construction, forestry, and mining sites.
Previously, the Act had largely focused on controlling point sources, while helping states and
localities to plan for management of diverse nonpoint sources. Yet, as industrial and
municipal sources have abated pollution, uncontrolled nonpoint sources have become a
relatively larger portion of remaining water quality problems — perhaps contributing as
much as 50% of the nation’s water pollution.
States were required to identify waters not expected to meet water quality standards —
because of nonpoint source pollution and to implement plans for managing pollution from
runoff. Federal grants totaling $400 million were authorized to cover as much as 60% of the
costs of implementing a state’s management plan.
The funding issue has become more urgent as states have moved from assessment and
plan development to management, since Congress intended that Section 319 funds be used
primarily to implement nonpoint pollution controls on the ground. EPA has urged states to
use a portion of monies that they receive under Section 106 of the Act, water quality program
assistance grants, for nonpoint source activities. But, doing so utilizes money otherwise
needed for core state efforts, such as permit issuance, monitoring, enforcement, etc. Several
concerns have been raised about the Section 319 program.
Adequacy of plans. Whether state plans have comprehensively addressed nonpoint
pollution problems is a lingering question. Some environmental groups criticize EPA for
providing inadequate guidance on methods, or management practices, to advance control of
nonpoint sources beyond known problems and existing implementation steps, such as
voluntary compliance and public education. Moreover, some believe that states should be
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required to repeat the nonpoint source assessments, which were one-time-only activities
under the 1987 law, in order to reflect improvements in technical and scientific information.
Quality of plans. EPA officials acknowledge that the quality of assessment reports
and management plans is quite variable and that many (including some that have been
approved) have been disappointing. Several reasons are cited: staff limitations affecting
states’ and EPA regions’ ability to prepare and oversee plans; lack of funding; limited federal
clout, since the program is essentially voluntary; and variations in the way regions
administered the program.
Funding. Precise estimates of the cost to manage nonpoint source pollution are not
available, but in 1994 EPA estimated that current and planned spending by private sources,
states, and cities under provisions of current law is between $750 million and $1.1 billion per
year. Without adequate funding to implement state management plans, it is doubtful that
much will be achieved under Section 319 to control nonpoint source pollution. Lack of
funding risks the possibility of Section 319 becoming the Section 208 of this decade: in the
1970s, states and regions used federal assistance to prepare areawide waste treatment
management plans under Section 208 of this Act, intended to comprehensively cover point
and nonpoint sources. No implementation monies were authorized, and few of the plans
were realized, as a result.
Program changes. EPA and states negotiated changes intended to give the 319
program a new framework by giving states more flexibility. As a result, in 1996, EPA issued
revised guidance concerning state management of nonpoint source programs that is intended
to recognize that federal and state processes need to be streamlined to increase program
effectiveness and to speed progress towards solving nonpoint pollution problems. The
revised guidance outlines nine key elements to be reflected in state programs (e.g., strong
partnerships with stakeholders, explicit short and long term goals for protecting surface and
ground waters). States that meet the nine criteria can be designated as leadership states,
making them eligible for incentives such as multi-year grants, reduced amount and frequency
of reporting, and self-assessment by states themselves. These incentives contrast with the
previous program approach, in which states competed for grants and those which did not
meet particular requirements received less grant money.
Significance for TMDLs. Attention has focused on nonpoint source management
efforts as a result of recent emphasis by EPA and states on meeting TMDL requirements
(see TMDL discussion, above). Scrutiny of nonpoint pollution problems and how they are
being addressed has intensified as policymakers and program officials assess additional steps
to continue progress towards the Act’s water quality goals. EPA has recently begun to
explicitly link implementation of Section 319 with TMDL activities. For example, in
September, EPA published guidance saying that grants awarded under Section 319 should
have a concentrated focus on the development and implementation of TMDLs for nonpoint
sources of pollution, although funds will still be awarded to activities other than TMDLs.

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State Revolving Fund Provisions
The Act’s program of financial aid for municipal wastewater treatment plant
construction was a central and controversial aspect of debate on the 1987 amendments.
Since 1972 Congress has provided $73 billion to assist wastewater treatment construction,
but funding needs remain very high: an additional $139.5 billion nationwide over the next
20 years 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 (the report is available from EPA
via [http://www.epa.gov/owm/toc.htm]). EPA is currently completing a new study, called
the 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
wastewater 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. At issue has been what should be the federal role in assisting states and cities,
especially in view of such high projected funding needs.
The 1987 amendments extended through FY1990 the traditional Title II program of
grants for sewage treatment project construction, under which the federal share was 55% of
project costs. The 1987 law initiated a program of grants to capitalize State Water Pollution
Control Revolving Funds (SRFs), or loan programs, in a new Title VI. States are required
to deposit an amount equal to at least 20% of the federal capitalization grant in the Fund
established under Title VI. Under the revolving fund concept, monies used for wastewater
treatment construction would be repaid by loan recipients to the states (repayment was not
required for grants under the Title II program), to be recycled for future construction in other
communities, thus providing an ongoing source of financing. The expectation in 1987 was
that the federal contributions to SRFs would assist in making a transition to full state and
local financing by FY1995. While most states believe that the SRF is working well, early
funding and administrative problems led many to believe that the anticipated shift to full
state responsibility will be delayed. Thus, SRF issues have been prominent on the Clean
Water Act reauthorization agenda in recent Congresses. (For further information, see CRS
Report 98-323, Wastewater Treatment: Overview and Background.)
SRF monies may be used for certain types of financial activity, including loans for as
much as 100% of project costs (at or below market interest rates, including interest-free
loans), to buy or refinance cities’ debt obligation, or as a source of revenue or security for
payment of principal and interest on a state-issued bond. SRF monies also may be used to
provide loan guarantees or credit enhancement for localities.
Loans made by a state from its SRF are to be used first to assure progress towards the
goals of the Act and, in particular, on projects to meet the standards and enforceable
requirements of the Act. After states achieve those requirements of the Act, SRF monies also
may be used to implement nonpoint pollution management and national estuary programs.
Table 1 summarizes wastewater treatment funding under Title II (traditional grants
program) and Title VI (capitalization grants for revolving loan programs). (Note: Table 1
does not include appropriations for special project grants in individual cities.)
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Table 1. Wastewater Treatment Funding
(billions of dollars)
Authorizations
Appropriations
Fiscal Year
Title II
Title VI
Title II
Title VI
1986
$2.4

$1.8

1987
2.4

2.36

1988
2.4

2.3

1989
1.2
1.2
0.941
0.941
1990
1.2
1.2
0.967
0.967
1991

2.4

2.1
1992

1.8

1.95
1993

1.2

1.93
1994

0.6

1.22
1995



1.24
1996



2.07
1997



0.625
1998



1.35
1999



1.35
2000



1.345
2001



1.35
2002



1.35
One issue of interest is impacts on small communities. These entities in particular have
found it difficult to participate in the SRF loan program, since many are characterized by
narrow or weak tax bases, limited or no access to capital markets, lower relative household
incomes, and higher per capita needs. They often find it harder to borrow to meet their
capital needs and pay relatively high premiums to do so. Meeting the special needs of small
towns, through a reestablished grant program, other funding source, or loan program with
special rules, has been an issue of interest to Congress.
Congressional oversight of wastewater/SRF issues has focused on several points,
including: many small communities have found it difficult to participate in the SRF loan
program, and the lack of funds for high-cost categories of projects such as correcting
combined sewer overflows. While there has been some criticism of the SRF program, and
debate continues over specific concerns (such as small community impacts), the basic
approach is well supported in Congress and elsewhere. Congress used the clean water SRF
as the model when it established a drinking water SRF in the Safe Drinking Water Act in
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1996 (P.L. 104-182). (For further information, see CRS Report 97-677, Safe Drinking Water
Act: State Revolving Fund Program
.)
Other Issues
A number of other Clean Water Act issues continue to receive attention, as well. Like
those discussed previously, many of these topics have recently been part of Congress’ agenda
in connection with reauthorization (see CRS Issue Brief IB10069).
Stormwater discharges. EPA has struggled since the 1970s to regulate industrial
and municipal stormwater discharges in a workable yet comprehensive manner. In P.L. 100-
4 Congress established firm deadlines and priorities for EPA to require permits for these
discharges of stormwater that is not mixed or contaminated with household or industrial
waste. EPA issued rules in November 1990 (21 months after the statutory deadline) that
addressed the process of applying for stormwater permits. The burden of complying with
the rules continues to be an issue with many affected industries and municipalities, especially
small cities. EPA worked with an advisory committee of stakeholders beginning in 1994 to
develop rules for regulating smaller stormwater dischargers, which were not covered by
EPA’s 1990 rules. Rules for smaller dischargers (unregulated industries and small cities)
were issued in October 1999. (For further information, see CRS Report 97-290, Stormwater
Permits: Status of EPA’s Regulatory Program
.)
Combined and separate sewer overflows. A total of 772 municipalities have
combined sewers where domestic sanitary sewage, industrial wastes, infiltration from
groundwater, and stormwater runoff are collected. These systems serve approximately 40
million persons, mainly in older urban and coastal cities. Normally (under dry-weather
conditions), the combined wastes are conveyed to a municipal sewage treatment plant.
Properly designed, sized, and maintained combined sewers can be an acceptable part
of a city’s water pollution control infrastructure. 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.
In 1994 EPA issued a CSO permitting strategy after negotiations with key stakeholder
groups. Cities 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 did 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 implemented
the minimum measures called for in the 1994 strategy. EPA is now working with states to
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remind cities of their obligations to address CSO problems. However, a formal enforcement
strategy is not contemplated.
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 estimates that there are about 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, the Clinton Administration 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. The new rules, not
yet published, are being reviewed by the Bush Administration.
Funding CSO and SSO projects is a major concern of states and cities. In December
2000, the 106th Congress passed legislation, the Wet Weather Water Quality Act, authorizing
a 2-year $1.5 billion grants program to reduce wet weather flows from municipal sewer
systems. This bill was included in H.R. 4577, the FY2001 Consolidated Appropriations bill
(Section 112 of Division B, P.L. 106-554). The measure also codified EPA’s 1994 CSO
policy on sewer overflows (discussed above).
Wetlands. Public debate over the nation’s wetlands has come to focus on questions
of the effectiveness and costs of wetland resource protection efforts, rather than on whether
such resources should be preserved. The permit program authorized by Section 404 of the
Clean Water Act is one of the major federal programs that protects wetlands. However,
environmentalists and others have criticized Section 404 as being inadequate to prevent the
continuing loss of wetlands, due to statutory exemption of certain types of actions on
farmlands and weak enforcement. Those wishing to develop wetlands maintain that existing
laws are already an intrusion on private land-use decisions and that further federal
involvement is unwarranted. How best to protect remaining wetlands and regulate activities
taking place in wetlands has become one of the most contentious environmental policy issues
facing Congress and was a prominent element of clean water debate during the 103rd and
104th Congresses. So far, the 107th Congress has examined few wetlands issues, and the
main activity has related to wetlands provisions of omnibus farm bill legislation (see CRS
Issue Brief IB97014, Wetland Issues). On October 4, the House Transportation and
Infrastructure Water Resources and Environment Subcommittee held an oversight hearing
on enforcement of wetlands regulatory programs, hearing from a number of witnesses who
claimed to have been treated improperly by federal regulators and enforcement officials.
The Clinton Administration’s Clean Water Initiative
In October 1997, on the 25th anniversary of the CWA, Vice President Gore announced
an initiative intended to build on the environmental successes of the Act and to address the
nation’s remaining water quality challenges, especially nonpoint source pollution. The Vice
President directed EPA and USDA to coordinate with other federal agencies to develop an
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action plan to improve and strengthen water pollution control efforts. President Clinton and
Vice President Gore released the action plan in February 1998. Components of the plan,
nearly 110 actions, consisted mainly of existing programs, including some planned regulatory
actions that agencies had had underway, to be enhanced with increased funding or
accelerated with performance-specific deadlines. (The text is available at
[http://www.cleanwater.gov/].)
The Bush Administration has not announced or undertaken steps specific to the Clean
Water Action Plan activities, and it did not identify specific portions of the FY2002 or
FY2003 budget request for activities under the Plan. Many of the Plan’s activities continue,
however, but without the focus given during the Clinton Administration.
The Clinton Administration’s action plan was not accompanied by proposals or
legislation to reauthorize the CWA. In Congress, it was considered primarily through the
appropriations process, rather than authorizing committee activity. FY1999 was the first of
three Clinton budgets that proposed funds to implement the Plan. It requested a total of $2.5
billion, a $609 million, or 33%, increase over 1998, to fund activities in 5 departments and
agencies, plus interagency funds. Almost one-half of the total increases, $265 million, was
designated as assistance to states and localities or to individual landowners (farmers).
During the years FY1999-2001, Congress provided a total of $1.24 billion in increases above
FY1998 baseline amounts for Plan activities at EPA and other agencies. Each year’s budget
request was higher than the preceding year’s, and while Congress agreed to some increases,
it appropriated amount less than the Administration had sought. EPA and USDA officials
said that the action plan will be implemented, even though appropriations have been less than
requested. Implementation will occur, they said, because they believe that its many actions
are the only way to achieve the Clean Water Act's water quality goals. (For additional
information, see CRS Report 98-150, Clean Water Action Plan: Background and Early
Implementation
, and CRS Report 98-745, Clean Water Action Plan: Budgetary Initiatives.)
Strategy concerning animal feeding operations. A key element of the Clean
Water Initiative, minimizing public health and environmental impacts of runoff from animal
feeding operations (AFOs) into rivers, lakes, and estuaries, was addressed by a national
strategy issued jointly by EPA and USDA on March 9, 1999. This part of the Initiative is an
example of an activity which continues under the Bush Administration due to continuing
concern about impacts of AFOs on water quality. Animal feeding operations are agricultural
facilities that confine feeding activities, thus concentrating animal populations and manure.
Animal waste, if not managed properly, can run off farms and pollute nearby water bodies.
Agricultural runoff has been linked to dangerous toxic microorganisms such as Pfiesteria
piscicida
, which is widely believed to be responsible for major fish kills and disease events
in several mid-Atlantic states.
Existing EPA regulations, issued in the 1970s, require CWA discharge permits for the
largest AFOs (about 6,600 out of 450,000 total facilities nationwide). However, EPA
acknowledges that compliance and enforcement of these permit rules has been poor (less
than one-third of covered facilities actually have permits) and that the regulations themselves
are outdated. For example, they do not reflect changed waste management practices or
address the need for management plans dealing with land application of manure. The 1999
national strategy contains a number of short-term and long-term steps to improve compliance
and strengthen existing regulations, obtain better information through data collection and
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research on water quality impairments due to AFOs, and together with other federal agencies
and states, coordinate activities related to AFOs. 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. EPA is continuing to develop these rules, which it is under court order to
issue by December 2002. On May 16, 2001, a House Transportation and Infrastructure
subcommittee held an oversight hearing on the December regulatory proposal. Issues that
Congress has addressed and is likely to continue reviewing include impacts and costs
imposed on the agricultural sector, especially small farmers, and how the proposed
combination of regulatory and incentive-based measures in the 1999 National AFO Strategy
will achieve control of agricultural runoff that adversely affects water quality. (For
additional information, see CRS Report RL30437, Water Quality Initiatives and
Agriculture
.) In legislation providing FY2000 funding for EPA (P.L. 106-74), Congress
directed EPA in conjunction with USDA to submit a report to Congress by May 15, 2001,
providing a cost and capability assessment of the AFO strategy. This report was expected
to be delivered to Congress in December.
.
Continuing Issue: Appropriations and the Federal
Budget
While the 1987 Clean Water Act amendments dealt extensively with financial aid
issues, funding questions have continued to arise and be addressed in the context of
appropriations. (For additional information, see CRS Report 96-647, Water Infrastructure
Financing: History of EPA Appropriations
.)
FY2003. The Bush Administration presented its FY2003 budget request on February
4. It seeks a total $1.335 billion for clean water infrastructure funds (compared with $1.8
billion appropriated for FY2002), consisting of $1.212 billion for clean water SRF grants
and $123 million for a limited number of special projects (especially in Alaska Native
Villages and in communities on the U.S.-Mexico border). The Administration eliminated
funds for unrequested project spending that Congress earmarked in the FY2002 law which
totaled $344 million. Also, the Administration requested no funds for the municipal sewer
overflow grants program enacted in 2000 (see below). The FY2003 budget includes a
request to establish a $20 million grant program for a Targeted Watersheds Project in a
limited number of areas. Details of this proposal and how it would be administered were not
presented. House and Senate Appropriations subcommittees have begun to review the
budget request for EPA, and committee action is expected by late spring. Members have
criticized the request level for SRF capitalization grants, which is $138 million below the
FY2002 enacted amount.
FY2002. Overall, the first Bush Administration budget for EPA sought $7.3 billion,
about 6.4% below the FY2001 enacted level due to eliminating $499 million of unrequested
spending earmarked by Congress. The Administration requested a total of $1.3 billion for
clean water infrastructure funds, consisting of $850 million for clean water SRF grants
(compared with $1.35 billion appropriated for FY2001) and $450 million for a new program
of municipal sewer overflow grants under legislation enacted in 2000 (discussed above).
However, that legislation, the Wet Weather Water Quality Act, provides that sewer overflow
grants are only available in years when at least $1.35 billion in clean water SRF grants is
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appropriated. The Administration explained that the $1.3 billion total is higher than the
Clinton Administration had requested in recent years and that the request continued to
support an overall goal of providing $2 billion average in annual financial over the long-term
(which also was the Clinton Administration’s goal). The Bush budget requested no funds
for special earmarked grants, except for $75 million to fund projects along the U.S.-Mexico
border and $35 million for projects in Alaskan Native Villages (both are the same amounts
provided in FY2001). Other water quality funds proposed in the budget were about level
with FY2001 enacted levels, except for elimination of unrequested spending earmarked by
Congress. Some Members of Congress and outside groups criticized the budget request,
saying that it does not provide enough support for water infrastructure programs.
Resolution of this and other appropriations bills was complicated by congressional
attention to general economic conditions in the U.S. and responses to the September 11, 2001
terrorist attacks on the World Trade Center and the Pentagon. Nevertheless, the House and
Senate gave final approval to legislation providing EPA’s FY2002 funding (H.R. 2620,
H.Rept. 107-272) on November 8, and President Bush signed the bill on November 26 (P.L.
107-73).. The final bill did not include separate funds for the new sewer overflow grant
program requested by the Administration, but it did include $1.35 billion for clean water SRF
grants, plus $344 million for earmarked water infrastructure project grants.
In addition, on Dec. 20, the House and Senate approved H.R. 3338, the DOD and
Emergency Supplemental Appropriations Act for FY02, providing supplemental
appropriations to EPA and other federal agencies to carry out enhanced security and
counterterrorism activities in response to the September 11 terrorist attacks in the United
States. The bill includes $176 million in funds for EPA for anthrax decontamination,
increased security at EPA buildings, and to develop and perform vulnerability assessments
at water infrastructure utilities. President Bush signed this bill on January 10 (P.L. 107-117)
FY2001. The Clinton Administration’s FY2001 budget requested $800 million for
clean water SRF grants, the same level requested for FY2000, but which Congress rejected
(see following discussion). Members of Congress and interest group representatives
criticized this funding request (a 40% decrease from FY2000), especially in view of recent
data concerning infrastructure funding needs over the next two decades (see discussion
above, State Revolving Fund Provisions). The budget also proposed several major budget
increases for other clean water programs, including: $50 million more for state grants to
manage nonpoint pollution programs (the Section 319 program; a total of $250 million); $45
million more for state grants for general administration of water quality programs, with the
increase intended to support state TMDL activities (Section 106 grants; a total of $160
million); and $50 million for a new state grant program to assist with cleanup of Great Lakes
contamination problems.
In October 2000, the House and Senate approved EPA’s funding bill for FY2001, P.L.
106-377 (H.R. 4635, H.Rept. 106-988), providing $1.35 billion for clean water SRF grants
(the same level enacted for FY2000). The enacted bill included $110 million for water
infrastructure project grants in rural and Alaskan Native villages and along the U.S.-Mexico
border. It included an additional $336 million for a number of other specified project grants
throughout the country. In addition, the bill provided $1,008 million for state categorical
program grants ($60 million less in total than requested), including $38 million more than
requested for nonpoint pollution management grants and $56.6 million more for Section 106
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grants, intended to help states meet TMDL program needs. Congress rejected the
Administration’s request for new Great Lakes cleanup funds.
P.L. 106-377 included report language addressing TMDL regulations promulgated by
EPA in July 2000 (see discussion above, TMDLs). It directed studies by the National
Academy of Sciences 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. It did not
invalidate or otherwise alter the TMDL rules.
Subsequently, in December 2000, Congress provided $21 million more for special
project water infrastructure grants (in addition to the $336 million in P.L. 106-377) as a
provision of H.R. 4577, the FY2001 Consolidated Appropriations bill (P.L. 106-554).
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
(Note: Congress has held more than 75 hearings on Clean Water Act and water quality
issues since enactment of P.L. 100-4. Those highlighted below are a partial list of the
most recent published hearings.)

U.S. Congress. House. Committee on Transportation and Infrastructure. Subcommittee on
Oversight, Investigations and Emergency Management. Total Maximum Daily Load
Initiatives under the Clean Water Act
. Hearing, July 27, 2000. 106th Congress, 2dt
session. Washington, U.S. Govt. Print. Off., 77 p. (106-106)
—— 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)
—— Water Infrastructure Needs. Hearing, Mar. 28, 2001. 107th Congress, 1st session.
Washington, U.S. Govt. Print. Off., 178 p. (107-8)
—— The National Academy of Sciences’ National Research Council Report on Assessing
the Scientific Basis of the Total Maximum Daily Load Approach to Water Quality
Management.
Hearing, June 28, 2001. 107th Congress, 1st session. Washington, U.S.
Govt. Print. Off., 118 p. (107-29)
U.S. Congress. Senate. Committee on Agriculture, Nutrition, and Forestry. Water Quality.
Hearing, Feb. 23, 2000. 106th Congress, 2d session. Washington, U.S. Govt. Print.
Off., 336 p. (S. Hrg. 106-699)
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)
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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. pp. 7-12.
Knopman, Debra S. and Richard A. Smith. “20 Years of the Clean Water Act, Has U.S.
Water Quality Improved?” Environment. v. 31, no. 1, January/February 1993. pp. 16-
20, 34-41.
U.S. Environmental Protection Agency. National Water Quality Inventory: 1998 Report to
Congress. Washington, June 2000. “EPA841-R-00-001."
—— 1996 Clean Water Needs Survey Report to Congress. Washington, 1997. 1 vol.
“EPA832/R-97-003"
CRS Reports and Issue Briefs
CRS Report RL30030. Clean Water Act: A Summary of the Law, by Claudia Copeland.
CRS Report 97-831. Clean Water Act and Total Maximum Daily Loads (TMDLs) of
Pollutants, by Claudia Copeland.
CRS Issue Brief IB10069. Clean Water Act Issues in the 107th Congress, by Claudia
Copeland.
CRS Report RL31091, The Clean Water Act’s TMDL Program: Newly Presented Options
and Cost Estimates, by Claudia Copeland
CRS Report 98-150. Clean Water Action Plan: Background and Early Implementation, by
Claudia Copeland.
CRS Report 98-745. Clean Water Action Plan: Budgetary Initiatives, 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 96-442. Great Lakes Water Quality: Current Issues, by Claudia Copeland.
CRS Report 98-323. Wastewater Treatment: Overview and Background, by Claudia
Copeland.
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CRS Report 96-647. Water Infrastructure Financing: History of EPA Appropriations, by
Claudia Copeland.
CRS Report RL30437. Water Quality Initiatives and Agriculture, by Claudia Copeland.
CRS Issue Brief IB97014. Wetland Issues, by Jeffrey Zinn and Claudia Copeland.
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