Order Code IB10142
CRS Issue Brief for Congress
Received through the CRS Web
Clean Water Act Issues in the 109th Congress
Updated January 24, 2005
Claudia Copeland
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Introduction
Legislative Activity Since P.L. 100-4
Wastewater Security
Issues in the 109th Congress
Water Infrastructure Funding
Legislative Responses
Other Clean Water Act Issues
Regulatory Protection of Wetlands
TMDLs and State Water Quality Standards
Other Implementation Issues
LEGISLATION
FOR ADDITIONAL READING
CRS Issue Briefs and Reports


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Clean Water Act Issues in the 109th Congress
SUMMARY
Legislative initiatives to comprehensively
tion and Infrastructure subcommittee also
amend the Clean Water Act (CWA) have
approved a water infrastructure financing bill
stalled for some time as interested parties have
(H.R. 1560). No further action on either bill
debated whether and exactly how to change
occurred.
the law. Congress has recently focused legis-
lative attention on narrow bills to extend or
Several other Clean Water Act issues
modify selected CWA programs, rather than
could receive congressional attention. Pro-
taking up comprehensive proposals. For ex-
grams that regulate activities in wetlands,
ample, the 108th Congress enacted one bill
especially CWA Section 404, have been
amending the CWA: legislation to reauthorize
criticized by landowners for intruding on
the National Estuary Program (H.R. 4731,
private land-use decisions and imposing
P.L. 108-399).
excessive economic burdens. Environmental-
ists view these programs as essential for
For several years, the most prominent
maintaining the health of wetland ecosystems.
water quality issue has concerned financial
These groups are concerned about a 2001
assistance for municipal wastewater treatment
Supreme Court decision that narrowed regula-
projects. It is likely to be prominent in the
tory protection of wetlands, as well as recent
109th Congress as well. At issue is how the
administrative actions that they believe will
federal government will assist states and cities
likewise diminish protection.
in meeting needs to rebuild, repair, and up-
grade wastewater treatment plants, especially
Also among the topics of interest is
in light of capital costs that are projected to be
whether and how the Administration will
as much as $390 billion over the next two
revise the current program for restoration of
decades. This issue received attention in the
pollution-impaired waters (the Total Maxi-
108th Congress. In October 2004, the Senate
mum Daily Load, or TMDL, program), in
Environment and Public Works Committee
view of controversy and continuing disagree-
reported legislation to authorize $41.25 billion
ment among states, cities, industry, and envi-
in funding for water infrastructure projects,
ronmental advocates about program effective-
including $20 billion for clean water facilities
ness and efficiency.
(S. 2550). In July 2003, a House Transporta-
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MOST RECENT DEVELOPMENTS
Water infrastructure funding legislation received attention in the 108th Congress because
of recent estimates by the Environmental Protection Agency that as much as $390 billion will
be needed over the next two decades to rebuild, repair, and upgrade the nation’s wastewater
treatment plants. In October 2004, the Senate Environment and Public Works Committee
reported a bill (S. 2550, S.Rept. 108-386) to provide $41.25 billion in federal funds over five
years for local wastewater and drinking water infrastructure programs. In July 2003, a House
Transportation and Infrastructure Committee subcommittee approved a bill to authorize $20
billion over five years for the Clean Water Act’s program that assists municipal wastewater
treatment projects (H.R. 1560), but no further action on the legislation occurred. The 108th
Congress did enact H.R. 4731, amending the Act to extend the National Estuary Program
through FY2010 (P.L. 108-399).
BACKGROUND AND ANALYSIS
Introduction
Although much progress has been made in achieving the ambitious goals established
30-plus years ago to restore and maintain the chemical, physical, and biological integrity of
the nation’s waters, problems persist. The types of remaining water quality problems are
diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse
or “nonpoint” sources, to metals (especially mercury) and organic and inorganic toxic
substances discharged from factories and sewage treatment plants.
The principal law that deals with polluting activity in the nation’s streams, lakes,
estuaries, and coastal waters is the Federal Water Pollution Control Act (P.L. 92-500, enacted
in 1972), commonly known as the Clean Water Act, or CWA (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 CWA programs through standard-setting, permitting, and enforcement.
The objective declared in the 1972 Act of restoring and maintaining the chemical,
physical, and biological integrity of the nation’s waters 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.
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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
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 from urban, suburban, and agricultural areas, for example), are more recent,
given the earlier emphasis on “point source” pollution (discharges from industrial and
municipal wastewater treatment plants). Overall, data reported by EPA and states indicate
that 39% of river and stream miles assessed by states and 45% of assessed lake acres do not
meet applicable water quality standards and are impaired for one or more desired uses.
Approximately 95,000 lakes and 544,000 river miles in the United States are under fish-
consumption advisories (including 100% of the Great Lakes and their connecting waters),
due to chemical contaminants in lakes, rivers, and coastal waters, and one-third of
shellfishing beds are closed or restricted, due to toxic pollutant contamination. For mercury
— a contaminant of growing concern — as of 2003, 45 states had issued partial or statewide
fish or shellfish consumption advisories.
The most recent major amendments were enacted in 1987 (P.L. 100-4); this was the first
comprehensive revision to the law in a decade. Authorizations for a number of programs,
such as general grant assistance to states, research, and general EPA support authorized in
that law, expired in FY1990 and FY1991. Authorizations for wastewater treatment funding
expired in FY1994. None of these programs has lapsed, however, as Congress has continued
to appropriate funds to implement the Act. (For further information, see CRS Issue Brief
IB89102, Water Quality: Implementing the Clean Water Act, by Claudia Copeland.)
The Clean Water Act has been viewed as one of the most successful environmental laws
in terms of achieving its statutory goals, which have been widely supported by the public, but
lately some have questioned whether additional actions to achieve further benefits are worth
the costs. Criticism has come from industry, which has been the long-standing focus of the
Act’s regulatory programs and often opposes imposition of new 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.
Legislative Activity Since P.L. 100-4
Following enactment of amendments in 1987, no major CWA legislative activity
occurred until the 104th Congress (1995). The House approved a comprehensive
reauthorization bill, H.R. 961, that was opposed by environmentalists and the Clinton
Administration, which they said would undermine the existing framework for protecting U.S.
waters. The Senate did not take up H.R. 961 or other CWA legislation.
In the 105th and 106th Congresses, no comprehensive reauthorization legislation was
introduced, but action was taken in the 106th Congress 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-
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284). Congress also passed a bill (P.L. 106-457) that reauthorized several existing CWA
programs (i.e., Chesapeake Bay cleanup, clean lakes, and the National Estuary Program), and
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). (For additional
information on congressional activity, see CRS Report RL30908, Clean Water Act: Issues
and Legislation in the 106th Congress
, by Claudia Copeland.)
During its tenure, the Clinton Administration did not offer legislation to reauthorize the
CWA, but rather initiated a number of agency-wide and program-specific reforms focusing
on flexibility and what were termed “common sense” approaches to regulation.
The 107th Congress focused legislative attention on one of the key programs of the Act,
provisions concerning financial assistance for municipal wastewater treatment projects.
House and Senate committees approved bills to extend the Act’s State Revolving Fund
(SRF) program through FY2007 (H.R. 3930, S. 1961). Neither bill received further action,
in large part due to controversies over application of the Davis-Bacon Act, which requires
that contractors, engaging in certain federal contract construction, pay workers on such
projects not less than the locally prevailing wage for comparable work, and over the formula
for allocating SRF grants among the states.
The single water quality measure enacted by the 107th Congress was the Great Lakes
Legacy Act (P.L. 107-303). It amended existing Great Lakes provisions of the CWA
(Section 118) to authorize $50 million annually for FY2004-FY2008 for EPA to carry out
projects to remediate sediment contamination in the Great Lakes. The bill also reauthorized
CWA provisions concerning the Lake Champlain Basin Program. Miscellaneous provisions
revived a number of CWA reports to Congress that had been discontinued under a previously
passed “sunset” law (P.L. 104-66) and allowed states to use CWA Section 319 grant funds
for stormwater management projects in FY2003.
In the 108th Congress, attention again focused on water infrastructure financing issues,
although no bill was enacted (see below). However, there was some action on bills to
reauthorize existing, mostly geographic-specific programs in the Clean Water Act. Before
recessing for the 2004 election, the House and Senate passed H.R. 4731, to reauthorize the
National Estuary Program through FY2010. The President signed this bill on October 30,
2004 (P.L. 108-399). The National Estuary Program, authorized by the 1987 CWA
amendments, is directed at improving the quality of estuaries of national importance. Also
in September, the House Transportation and Infrastructure Committee reported three other
bills. They were (1) H.R. 784, to reauthorize section 221 of the Act and provide $1.5 billion
over six years for sewer overflow projects (H.Rept. 108-675); (2) H.R. 4470, to extend the
Lake Pontchartrain Basin Restoration Program in Section 121 through FY2010 (H.Rept. 108-
676); and (3) H.R. 4688, to reauthorize the Chesapeake Bay Program through FY2010
(H.Rept. 108-677). The House passed H.R. 4470 on October 7, but no further action
occurred. Also on October 7, the House passed H.R. 4794, to amend and reauthorize the
Tijuana River Valley Estuary and Beach Sewage Cleanup Act (P.L. 106-457) in order to
address treatment of sewage from Tijuana, Mexico, that impacts the San Diego border
region. The Senate passed this bill on November 16, and the President signed it on
November 30 (P.L. 108-425). (P.L. 108-425 does not amend the CWA.) (For information,
see CRS Issue Brief IB10108, Clean Water Act Issues in the 108th Congress, by Claudia
Copeland.)
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Wastewater Security. Since the September 11, 2001 terrorist attacks in the United
States, congressional attention has focused on security, preparedness, and emergency
response issues. Among the topics of interest are 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
RL32189, Terrorism and Security Issues Facing the Water Infrastructure Sector.)
Policymakers have examined a number of legislative options in this area, including
enhanced physical security, communication and coordination, and research. In October
2002, the House passed legislation to authorize $200 million in grants for security activities
at wastewater treatment plants (H.R. 5169). It also authorized $15 million in technical
assistance for small treatment plant facilities and $5 million to EPA for improved
vulnerability assessment tools. Similar legislation was introduced in the Senate (S. 3037),
but no further action occurred. Congress did enact legislation authorizing $160 million in
grants for drinking water utilities to conduct vulnerability assessments (P.L. 107-188).
In the 108th Congress, legislation similar to H.R. 5169 was approved by the House
Transportation and Infrastructure Committee in February 2003 (H.R. 866, H.Rept. 108-33)
and was passed by the House on May 7, 2003. It would authorize $200 million in grants to
wastewater utilities to conduct vulnerability assessments and an additional $20 million for
technical assistance and improved assessment tools. The Senate Environment and Public
Works Committee approved a similar bill (S. 1039, S.Rept. 108-149) on May 15, 2003. No
further action occurred, due in part to concerns expressed by some that the legislation does
not mandate vulnerability assessments and require that they be submitted to EPA, as is the
case with drinking water assessments required by P.L. 107-188.
Issues in the 109th Congress
The year 2002 marked the 30th anniversary of passage of the Clean Water Act and 15
years since the last major amendments to the law. While, as noted, there has been
measurable clean water progress as a result of the Act, observers and analysts agree that
significant water pollution problems remain. However, there is less agreement about what
solutions are needed and whether new legislation is required. Several key water quality
issues exist: evaluating actions to implement existing provisions of the law, assessing
whether additional steps are necessary to achieve overall goals of the Act that have not yet
been attained, and defining the appropriate federal role in guiding and paying for clean water
infrastructure and other activities. For some time, efforts to comprehensively amend the Act
have stalled as interests have debated 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.
These factors partly explain why Congress has recently favored focusing legislative
attention on narrow bills to extend or modify selected CWA programs, rather than taking up
comprehensive proposals. Other factors also are at work. These include a general reluctance
by most Members of Congress to address controversial environmental issues in view of the
slim majorities held by political parties in the House and the Senate; lack of presidential
initiatives on clean water issues (neither the Clinton nor the Bush Administration proposed
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CWA legislation); and since the terrorist attacks of September 11, 2001, a more prominent
congressional focus on security and terrorism issues than on most other topics, including
environmental protection.
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. It
is likely to be the prominent CWA issue in the 109th Congress, as it has been for several
years, although controversies have stymied enactment of new legislation. Since 1972,
Congress has provided a total of $75 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 more stringent treatment 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. In addition to CWA programs, other sources of federal funding are
administered by the U.S. Department of Agriculture and the Department of Housing and
Urban Development (for information, see CRS Report RL30478, Federally Supported Water
Supply and Wastewater Treatment Programs
).
Nevertheless, funding needs remain very high: an additional $181 billion nationwide
for all types of projects eligible for funding under the Act, according to the most recent
Needs Survey estimate by EPA and the states, completed in August 2003 (available at [http://
www.epa.gov/owm/mtb/cwns/2000rtc/toc.htm]. In September 2002, EPA released a study,
called the Gap Analysis (available at [http://www.epa.gov/owm/gapreport.pdf]), that assessed
the difference between current spending for wastewater infrastructure and total funding needs
(both capital and operation and maintenance). EPA estimated that, over the next two
decades, the United States needs to spend nearly $390 billion to replace existing wastewater
infrastructure systems and to build new ones (including for some projects not currently
eligible for CWA funds, such as system replacement, which are not reflected in the EPA-
state Needs Survey). Funding needs for operation and maintenance, which are not currently
eligible for federal aid, are an additional $148 billion, the agency estimates. According to
the Gap Analysis, if there is no increase in investment, there will be about a $6 billion gap
between current annual capital expenditures for wastewater treatment ($13 billion annually)
and projected spending needs. The study also estimated that, if wastewater spending
increases by 3% annually, the gap would shrink by nearly 90% (to about $1 billion annually).
Outside groups, including a coalition called the Water Infrastructure Network, have offered
proposals that have attracted some congressional interest for a multibillion dollar investment
program in wastewater and drinking water infrastructure. (For additional information, see
CRS Report RL31116, Water Infrastructure Funding: Review and Analysis of Current
Issues
, by Claudia Copeland.)
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
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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.)
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. Many 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
has examined the progress toward reducing the backlog of wastewater treatment facilities
needed to achieve the Act’s water quality objectives, while newer estimates of future funding
needs have drawn increased attention to the role of the SRF program in meeting such needs.
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 construction 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 the 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
others in the Act, such as wetlands reform, because of apparent general agreement on the
need to provide 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. Additionally, there is concern
about the adequacy of SRF or other funding specifically for projects dealing with problems
of overflows from municipal combined and separate sewers which can release partially
treated or untreated wastewaters that harm public health and the environment. EPA
estimates that the cost of projects to control sewer overflows, from combined and separate
sanitary sewer systems, is nearly $140 billion nationwide. And more recently, wastewater
utilities have sought assistance to assess operational vulnerabilities and upgrade physical
protection of their facilities against possible terrorist attacks that could threaten water
infrastructure systems.
Legislative Responses. The 107th Congress considered but did not pass legislation
to address infrastructure funding issues. House and Senate committees approved bills to
extend the Act’s SRF program through FY2007 and increase federal assistance (H.R. 3930,
S. 1961), but neither bill received further action, in large part due to controversies over
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application of prevailing wage requirements of the Davis-Bacon Act and over the formula
for allocating SRF grants among the states.
In the 108th Congress, four bills to reauthorize the Clean Water Act SRF program were
introduced (S. 170, S. 2550, H.R. 20, H.R. 1560). In addition, separate bills to reauthorize
funding for sewer overflow grants (CWA Section 221) were introduced (H.R. 784, S. 567).
On October 7, 2004, the Senate Environment and Public Works Committee reported
legislation (S. 2550, S.Rept. 108-386) authorizing $41.25 billion over five years for
wastewater and drinking water infrastructure programs, including $20 billion for the clean
water SRF program. The bill included a new formula for state-by-state allocation of clean
water SRF grants, renewal of the Clean Water Act’s sewer overflow grant program, and
provisions such as extended loan repayments and subsidies for disadvantaged communities.
On July 17, 2003, the House Transportation and Infrastructure Subcommittee on Water
Resources and Environment approved H.R. 1560, legislation similar to H.R. 3930, the bill
approved by that committee in 2002. H.R. 1560 would have authorized $20 billion for the
clean water SRF program for FY2004-FY2008. It included several provisions intended to
benefit economically disadvantaged and small communities, such as allowing extended loan
repayments (30 years, rather than 20) and additional subsidies, including principal
forgiveness and negative interest loans, for communities that meet a state’s affordability
criteria. It includes provisions to require communities to plan for capital replacement needs
and to develop and implement an asset management plan for the repair and maintenance of
infrastructure that is being financed. (For information, see CRS Report RL32503, Water
Infrastructure Financing Legislation: Comparison of S. 2550 and H.R. 1560
, by Claudia
Copeland and Mary Tiemann.)
The issue of the applicability of the prevailing wage requirements of the Davis-Bacon
Act to SRF-funded projects has affected consideration of water infrastructure legislation both
in the 107th and 108th Congresses, because that act has both strong supporters and critics in
Congress. Critics of Davis-Bacon say that it unnecessarily increases public construction
costs and hampers competition, while supporters say that it helps stabilize the local
construction industry by preventing competition that would undercut local wages and
working conditions. The bill approved by the House subcommittee in July 2003 did not
include language specifying that the Davis-Bacon Act shall apply to SRF-funded projects,
while the bill approved by the Senate Environment and Public Works Committee did include
such a requirement. Other factors that clouded the bills were Administration opposition to
funding levels in S. 2550 and H.R. 1560 and dispute over funding allocation formulas.
Other Clean Water Act Issues
Several other CWA issues could receive congressional attention.
Regulatory Protection of Wetlands. How best to protect the nation’s remaining
wetlands and regulate activities taking place in wetlands has 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,
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including wetlands. Section 404 has evolved through judicial interpretation and regulatory
change to become one of the principal 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 how to address criticism of the Section 404 regulatory program
while achieving desired goals of wetlands protection. (For additional information, see CRS
Issue Brief IB97014, Wetlands Issues, by Jeffrey Zinn and Claudia Copeland.)
Unlike the rest of the Act, the permit aspects of Section 404 are administered by the
U.S. Army Corps of Engineers, rather than EPA, although the Corps uses 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.
The Supreme Court’s SWANCC Decision. One issue involving long-standing
controversy and litigation is whether isolated waters are properly within the jurisdiction of
Section 404. Isolated waters that are wetlands which are not physically adjacent to navigable
surface waters often appear to provide only some of the values for which wetlands are
protected, such as flood control or water purification, even if they meet the technical
definition of a wetland. On January 9, 2001, the Supreme Court ruled on the question of
whether the CWA provides the Corps and EPA with authority over isolated waters. The
Court’s 5-4 ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army
Corps of Engineers
(531 U.S. 159 (2001)) held that the Corps’ denial of a 404 permit for a
disposal site on isolated wetlands solely on the basis that migratory birds use the site exceeds
the authority provided in the Act.
The full extent of impacts on the regulatory program resulting from this decision
remains unclear for now. Environmentalists believe that the Court misinterpreted
congressional intent on the matter, while industry and landowner groups welcomed the
ruling. Policy implications of how much the decision restricts federal regulation depend on
how broadly or narrowly the opinion is applied. Some federal courts have interpreted
SWANCC narrowly, thus limiting its effect on current permit rules, while a few read the
decision more broadly. The government’s current view on this key question was expressed
in EPA-Corps guidance (see [http://www.epa.gov/epahome/headline2_011003.htm]) issued
on January 15, 2003. It provides a legal interpretation essentially based on a narrow reading
of the Court’s decision, thus allowing federal regulation of some isolated waters to continue,
but it calls for more headquarters review in disputed cases. Administration press releases say
that the guidance demonstrates the government’s commitment to “no-net-loss” wetlands
policy. However, it is apparent that the issues remain under discussion, because at the same
time, the Administration issued an advance notice of proposed rulemaking (ANPRM)
seeking comment on how to define waters that are under jurisdiction of the regulatory
program. The ANPRM did not actually propose rule changes, but it indicated possible ways
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that Clean Water Act rules might be modified to further limit federal jurisdiction, building
on SWANCC and some subsequent legal decisions.
The government received more than 133,000 comments on the ANPRM, most of them
negative, according to EPA and the Corps. Environmentalists and many states opposed
changing any rules, saying that the law and previous court rulings call for the broadest
possible interpretation of the Clean Water Act (and thus a narrow interpretation of
SWANCC), but developers sought changes to clarify interpretation of the SWANCC ruling.
On December 16, 2003, EPA and the Corps announced that the Administration will not
pursue development of rule changes concerning federal regulatory jurisdiction over isolated
wetlands (see [http://yosemite.epa.gov/opa/admpress.nsf/b1ab9f485b098972852562e7004dc
686/540f28acf38d7f9b85256dfe00714ab0?OpenDocument]). The EPA Administrator said
that the Administration wanted to avoid a contentious and lengthy rulemaking debate over
the issue. Environmentalists and state representatives expressed relief at the announcement.
Interest groups on all sides have been critical of confusion in implementing the 2003
guidance, which constitutes the main tool for interpreting the reach of the SWANCC decision.
Environmentalists remain concerned about diminished protection resulting from the
guidance, while developers said that without new regulations, confusing and contradictory
interpretations of wetland rules will continue.
Congressional Actions. In September 2002, the House Government Reform
Subcommittee on Energy Policy, Natural Resources, and Regulatory Affairs held a hearing
on the government’s response to the SWANCC decision and to press the government to
clarify its interpretation of the Court case. Committee Members and public witnesses
indicated that a lack of guidance has led to inconsistent regulatory decisions by Corps
officials in individual regions of the country, and subsequent judicial decisions by other
federal and state court have been mixed. At the hearing, Corps and EPA officials testified
on their efforts to develop guidance, which subsequently was released in January 2003.
Concern about lingering confusion over the SWANCC decision and its implementation by
the Corps was the topic of an oversight hearing by the Senate Environment and Public Works
Committee in June 2003. Developers and others in the regulated community criticized the
Corps and EPA, saying that the January 2003 guidance document had not clarified the reach
of federal jurisdiction. A House Transportation and Infrastructure subcommittee also held
a hearing on post-SWANCC issues on March 30, 2004.
While it continues to be difficult to fully assess how regulatory protection of wetlands
will be affected as a result of the SWANCC decision and other possible changes, the
remaining responsibility to protect affected wetlands falls on states and localities. (For
additional information, see CRS Report RL30849, The Supreme Court Addresses Corps of
Engineers Jurisdiction Over ‘Isolated Waters’: The SWANCC Decision
, by Robert Meltz and
Claudia Copeland.) Legislation to overturn the decision by providing a broad definition of
“waters of the United States” was introduced in the 108th Congress (H.R. 962, S. 473). In
addition, other legislation to narrow the definition of “waters of the United States” also was
introduced (H.R. 4843). No further action occurred on any of these 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 body can receive without violating water
quality standards. A TMDL is essentially a plan to allocate responsibility for implementing
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pollution control measures within an area or watershed in order to remedy water quality
impairments. Until recently, there had been little implementation of the TMDL provision
(Section 303(d)), which Congress enacted in 1972. Since the early 1990s, environmental
groups have filed lawsuits in 40 states to pressure EPA and states to meet the law’s
requirements. Of the suits tried or settled to date, more than half have resulted in court
orders requiring expeditious development of TMDLs, thus driving the program that had
previously received little attention. At issue today are controversies over implementation of
the existing TMDL program and regulatory revisions that EPA issued in July 2000, partly
in response to the lawsuits to strengthen the program. That rule was highly controversial
(and never went into effect) 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 directly subject to CWA regulations.
Because of those controversies, the Clinton Administration delayed the effective date of the
2000 rule until October 2001.
In the FY2001 appropriations act funding EPA, P.L. 106-377, Congress requested a
study by the National Academy of Sciences (NAS) on the scientific basis of the TMDL
program. The NAS report was issued in June 2001 (National Research Council, NAS,
Assessing the TMDL Approach to Water Quality Management). 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. In addition, the General
Accounting Office (now the Government Accountability Office) concluded in a report 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 October 2001, the Bush Administration announced that it would delay the rule for
18 months (until May 2003) to allow EPA officials time to review the rule and the NAS
report. This action came after a federal court approved the Administration’s request for a
similar suspension of litigation that 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 (affecting approximately 22 states)
remain in place. (For additional information, see CRS Report 97-831, Clean Water Act and
Total Maximum Daily Loads (TMDLs) of Pollutants
, by Claudia Copeland.)
On March 19, 2003, EPA withdrew the July 2000 TMDL rule. EPA officials said that
implementation of the existing TMDL program will continue in the meantime, but that
additional time beyond May 2003 is needed to decide whether and how to revise the current
program. EPA is considering initiating an entirely new rule or other options, but no further
timeframe or proposal has been announced. Recent congressional attention to these issues
has been limited to oversight hearings held by the House Transportation and Infrastructure
Subcommittee on Water Resources in June and November 2001. The 109th Congress may
examine implementation of existing TMDL requirements and possible regulatory changes,
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if issued, in view of continuing disagreement among states, cities, industry, and
environmental advocates about program effectiveness and efficiency.
Other Implementation Issues. Of potential interest are the impacts of recent court
rulings in several cases concerning implementation of existing provisions of the law and
involving questions of whether certain activities require a Clean Water Act discharge permit.
A fundamental element of the Act is the requirement that the “discharge of a pollutant” from
a point source shall be pursuant to a permit authorized by the National Pollutant Discharge
Elimination System (NPDES) program under Section 402 of the law. In the last term, the
Supreme Court held that the transfer of polluted water from one waterbody to another
requires a permit, notwithstanding that no new pollutant is added in the process of transfer
(South Florida Water Management District v. Miccosukee Tribe of Indians, 124 S. Ct. 1537
(2004)). (For information, see CRS Report RL32569, The Supreme Court Revisits the
Environment: Seven Cases Decided or Accepted in the 2003-2004 Term
, by Robert Meltz.)
The decision has raised concerns in agricultural areas where such transfers often occur in
supplying irrigation water, presently without a permit.
Also, decisions of federal courts in two cases have held that aerial application of a
pesticide over and into U.S. waters requires a CWA permit, even when the pesticide use
meets other requirements of federal law, especially the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA). These decisions drew the attention of many pesticide applicators,
including public health entities such as mosquito control districts, concerned with how the
rulings might affect their need to control mosquito populations associated with diseases such
as the West Nile Virus. In July 2003, EPA issued interim guidance attempting to resolve the
conflict over the regulatory scope of the CWA and FIFRA related to pesticide use, in light
of the recent litigation, but EPA’s statements have failed to halt the controversy. Congress
has examined these issues in oversight hearings, one by a House Transportation and
Infrastructure subcommittee in October 2002 and another by a House Government Reform
subcommittee in October 2004.
LEGISLATION
(As bills relevant to clean water issues are introduced, they will be listed in this section in
future updates.)
FOR ADDITIONAL READING
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. Congressional Budget Office. Future Investment in Drinking Water and Wastewater
Infrastructure. Washington, November 2002. 58 p.
U.S. Environmental Protection Agency. The National Water Quality Inventory: 2000
Report. Washington, September 2002. “EPA-841-R-2-001.” 207 p.
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——The Clean Water and Drinking Water Infrastructure Gap Analysis. Washington,
September 2002. “EPA-816-R-02-020.” 50 p.
——Clean Watersheds Needs Survey 2000, Report to Congress. Washington, August 2003.
“EPA-832-R-03-001.” 1 vol.
U.S. Government Accountability Office. Key EPA and State Decisions Limited by
Inconsistent and Incomplete Data. (GAO/RCED-00-54) March 2000. 73 p.
——Water Infrastructure: Information on Financing, Capital Planning, and Privatization.
(GAO-02-764) August 2002. 79 p.
CRS Issue Briefs and Reports
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 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 Report 98-323. Wastewater Treatment: Overview and Background, by Claudia
Copeland.
CRS Report 96-647. Water Infrastructure Financing: History of EPA Appropriations, 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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