Order Code IB89102
CRS Issue Brief for Congress
Received through the CRS Web
Water Quality: Implementing the Clean Water Act
Updated April 21, 2005
Claudia Copeland
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
The Act and Most Recent Amendments
Legislative Activity after P.L. 100-4
Total Maximum Daily Load (TMDL) Requirements
Nonpoint Pollution Management
Adequacy of Plans
Funding
Program Changes
Significance for TMDLs
State Revolving Fund Program
Other Issues
Stormwater Discharges
Combined and Separate Sewer Overflows
Wetlands
Strategy Concerning Animal Feeding Operations
Continuing Issue: Appropriations and the Federal Budget
FY2006
FY2005
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
of the nation’s remaining water quality prob-
amendments to the Clean Water Act in 1987
lems. Most observers agree that implemen-
(P.L. 100-4). Since then, the Environmental
tation of nonpoint source control measures is
Protection Agency (EPA), states, and others
significantly hindered by limited resources.
have been working to implement the many
EPA has adopted program guidance intended
program changes and additions mandated in
to give states more flexibility and to speed up
the law. At issue today — more than 30 years
progress in nonpoint source control.
after enactment of the core law — is what
progress is being made to achieve its goals. In
The third issue is funding to construct
general, states and environmental groups fault
municipal wastewater treatment plants under
EPA for delays in issuing guidance and pro-
the State Revolving Fund (SRF) provisions of
viding assistance to carry out the law. EPA
the 1987 amendments. Budgetary constraints
and others are critical of states, in turn, for not
on federal aid for wastewater treatment and
reaching beyond conventional knowledge and
large remaining funding needs are a long-
approaches to address their water quality
standing concern. For FY2005, Congress
problems. Environmental advocates have
provided $1.1 billion for clean water SRF
been criticized for insufficient recognition of
grants ($251 million less than in FY2004), a
EPA’s and states’ need for flexibility to im-
reduction for the first time in recent years. The
plement the act. Finally, Congress has been
President’s FY2006 budget requests $730
criticized for not providing adequate resources
million for these grants, which would be 33%
to meet EPA and state needs. Appropriations
less than was provided in FY2005, and this is
for clean water programs, especially water
likely to again be controversial.
infrastructure, are a continuing issue.
Reauthorization of the Act has been on
Three issues have predominated recently
Congress’ agenda for several years, but no
in connection with implementation of the law.
comprehensive amendments have been en-
The first involves impacts and implementation
acted. In the 108th Congress, legislation fo-
of requirements under current law for states to
cused on water infrastructure funding legisla-
develop total maximum daily loads (TMDLs)
tion, but no bill was enacted.
to restore pollution-impaired waters. The
second issue involves progress in implement-
In January 2003, EPA announced a
ing the nonpoint pollution management provi-
Water Quality Trading Policy intended as an
sions added in 1987. States are developing
innovative approach to assist industries and
management programs describing methods
municipalities in meeting Clean Water Act
that will be used to reduce nonpoint pollution,
obligations.
which may be responsible for as much as 50%

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MOST RECENT DEVELOPMENTS
President Bush’s FY2006 budget request, presented on February 7, 2005, seeks 5.6%
less for EPA than Congress provided for the current year. In particular, the President’s
budget requests $730 million for grants to capitalize clean water state revolving funds
(SRFs), which would be a 33% reduction from the FY2005 appropriated level for this
popular program. EPA’s FY2005 funding, contained in P.L. 108-447, includes $1.09 billion
for grants to capitalize clean water SRFs, $251 million less than in FY2004 (and the first
significant reduction in SRF appropriations in recent years), but $241 million more than the
President’s FY2005 request. In addition to funds for SRF grants, the FY2005 appropriation
also includes $402 million for congressionally earmarked water infrastructure project grants.
BACKGROUND AND ANALYSIS
The Act and Most 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) and enacted comprehensive
amendments in 1987 (P.L. 100-4).
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. 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. (For additional information, see CRS Report
RL30030, Clean Water Act: A Summary of the Law.)
The most recent major amendments to the law are the Water Quality Act of 1987 (P.L.
100-4). These amendments culminated six years of congressional efforts to extend and
revise the Act and were 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: (1) established a comprehensive program
for controlling toxic pollutant discharges, beyond that already provided in the act, to respond
to so-called “toxic hot spots;” (2) 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; (3) authorized a total of $18 billion for
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wastewater treatment assistance under a combination of the act’s traditional construction
grants program and a new program of grants to capitalize State Revolving Funds; (4)
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 (5)
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 immediately after 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, 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.
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. Since the 104th Congress, attention has focused on individual program areas of
the law; no comprehensive reauthorization legislation has been introduced. However,
activity on bills dealing with specific water quality issues has occurred. 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) and 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). The 107th Congress approved the Great Lakes
Legacy Act (P.L. 107-303), which authorized $200 million for EPA to carry out projects to
remediate sediment contamination in the Great Lakes. The 108th Congress enacted legislation
amending the Act to extend the National Estuary Program through FY2010 (P.L. 108-399).
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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 RL32189, Terrorism 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 issue under consideration. In the 108th
Congress, the House passed legislation to provide $200 million in grants for security
activities at wastewater treatment plants (H.R. 866). A similar Senate bill was approved by
the Senate Environment and Public Works Committee (S. 1039). No further action occurred,
due in part to concerns expressed by some that the legislation would not require that
vulnerability assessments be mandatory and be submitted to EPA, as is the case with
assessments of drinking water utilities required by the 2002 Bioterrorism Preparedness Act
(P.L. 107-288).
Although much progress has been made in achieving the ambitious goals established
in the law 30-plus years ago to restore the maintain the chemical, physical, and biological
integrity of rivers, lakes, and coastal waters, problems persist. Based on the limited water
quality monitoring that is done by states, EPA reported in the 2000 National Water Quality
Inventory Report that 39% of assessed river and stream miles and 45% of assessed lake acres
do not meet applicable water quality standards and were found to be impaired for one or
more desired uses. The types of remaining water quality problems are diverse, ranging from
runoff from farms and ranches, city streets, and other diffuse sources, to metals (especially
mercury), organic and inorganic toxic substances discharged from factories, sewage
treatment plants, and nonpoint sources.
The Bush Administration has been reviewing a number of current clean water programs
and rules but has proposed few new initiatives. However, in January 2003, the agency
announced a Water Quality Trading Policy (see [http://www.epa.gov/owow/watershed/
trading/tradingpolicy.html]) intended as an innovative approach to assist industry and
municipalities in meeting Clean Water Act obligations. Trading allows one source to meet
regulatory requirements by using pollutant reductions created by another source that has
lower pollution control costs. The policy revised a May 2002 proposal which reflected
lessons learned from a similar policy issued by the Clinton Administration in 1996. Water
quality or effluent trading projects have occurred in the United States since the early 1980s.
(For information, see CRS Report RS21403, EPA’s Water Quality Trading Policy.)
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
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to do the analyses. Thus, for many years there was little implementation of the provision that
Congress enacted in 1972. At issue today is continuing controversy over implementation of
this program which is intended to address uncontrolled sources of water quality impairment
and efforts to revise the rules and requirements for it.
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, 22 have resulted in court orders requiring EPA to develop
TMDLs expeditiously. 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 bills to modify
EPA’s TMDL proposals or delay implementation of final rules were introduced.
TMDL issues also were addressed in FY2001 appropriations bills. In July 2000, the
House and Senate approved an FY2001 Military Construction and emergency supplemental
appropriations bill that included a provision to prevent EPA from spending any funds in
FY2000 or FY2001 to finalize or implement new TMDL rules. President Clinton signed the
bill, in spite of the TMDL restriction, which the Administration opposed (P.L. 106-246).
However, the EPA Administrator signed the new rules two days before the President signed
the bill but delayed the effective date until October 2001, when the limitation in P.L. 106-246
would expire. EPA’s signing of 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 in June 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 subcommittee held a
hearing on the NAS report in June 2001. In August 2001, EPA issued a draft report on costs
of the 2000 TMDL program. It estimated 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. The General Accounting Office (now the Government Accountability Office)
reported in 2002 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 October 2001 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). A House Transportation and Infrastructure
subcommittee held an oversight hearing in November 2001 concerning EPA’s plans to revise
the rule. Most recently, on March 19, 2003, EPA withdrew the July 2000 TMDL rule (68
Federal Register 13607). EPA officials said that additional time beyond May 2003 was
needed to decide whether and how to revise the current program and that allowing the rule
to take effect would have disrupted ongoing review efforts. In the interim, current program
requirements under existing regulations issued in 1992 and court-sanctioned TMDL
schedules remain in place.
Having withdrawn the 2000 rule, EPA is reportedly considering other options, including
initiating an entirely new rule, but no specific plans or timeframe have been announced. In
mid-2002, EPA developed a draft revised rule that it informally circulated among interest
groups and federal agencies for many months, but no formal proposal has occurred. One
EPA view, widely reported, is that a new rule is not essential, because EPA believes that
states are and will continue to improve the pace at which TMDLs are established, even under
existing rules. Most environmentalists say that, short of retaining the 2000 rule, the best
action would be to leave the 1992 rules in place, because, despite flaws, those rules are
preferable to a new rule that might significantly weaken the program. States, cities, and
industry groups have urged EPA to develop a new rule with more flexibility than either the
1992 regulations or the 2000 revisions.
Nonpoint Pollution Management
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. At issue today is what progress is being made
to manage nonpoint source pollution and what additional efforts may be needed involving
Section 319 or other public and private activities. Some observers are critical of the largely
voluntary nature of the Section 319 program, consisting of “all carrot but no stick,” while
other argue that the types of individual land management decisions that are needed to manage
nonpoint source pollution cannot be regulated in the same ways that industrial sources are
controlled.
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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
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.
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.
Questions have been raised about the state grant program’s efficacy and overlap with
farm bill conservation funding, leading to proposed reductions in FY2004 and FY2005
appropriations for Section 319 funds. In particular, the White House Office of Management
and Budget (OMB) found that EPA had not demonstrated results under the program and
urged the agency to shift its focus away from implementing projects in agricultural areas and
towards implementing plans in impaired waters. State officials have been concerned that
OMB is not fully aware of the extent to which Section 319 funds address a range of nonpoint
pollution control needs beyond the agricultural sector.
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.
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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 Requirements,” 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. For several years, EPA has
been explicitly linking implementation of Section 319 with TMDL activities. For example,
in 2001, 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.
However, states and agricultural interests criticized the guidance as being too restrictive, and
in August 2002, EPA modified the guidance which continues to encourage development of
nonpoint source TMDLs but gives states more flexibility to do so, especially in areas that
lack formally-established TMDLs. Since FY2001, $100 million of Section 319 grant funds
(which totaled $207 million in FY2005, for example) is being devoted annually to
developing and implementing nonpoint source TMDLs.
State Revolving Fund Program
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 more than $75 billion to assist wastewater treatment
construction, but 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, published in August 2003 (see [http://www.epa.gov/
owm/mtb/cwns/2000rtc/toc.htm]. In September 2002, EPA released a study called the Gap
Analysis (see [http://www.epa.gov/owm/gapreport.pdf]) that assesses the difference between
current spending for wastewater infrastructure and total funding needs (both capital and
operation and maintenance). EPA estimates 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. Funding needs for operation and maintenance (not eligible
for Clean Water Act funding) 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 estimates that, if wastewater
spending increases by 3% annually, the gap would shrink by nearly 90% (to about $1 billion
annually). 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
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local financing by FY1995. Although most states believe that the SRF is working well, early
funding and administrative problems have delayed the anticipated shift to full state
responsibility. 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.)
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 the fact that 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. Although 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 1996 (P.L. 104-182). (For further information, see CRS Report RS22037, Drinking
Water State Revolving Fund: Program Overview and Issues.)
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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
2003
—
—
—
1.34
2004
—
—
—
1.34
2005
—
—
—
1.09
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.
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
discharges of stormwater that are not mixed or contaminated with household or industrial
waste. EPA issued rules in November 1990 (21 months after the statutory deadline) that
addressed Phase I of the program, detailing the process of applying for stormwater permits
for industries, medium and large municipalities, and construction sites larger than 5 acres.
The agency worked with an advisory committee of stakeholders beginning in 1994 to
develop rules for regulating smaller stormwater dischargers, which were not covered by the
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1990 rules. Rules for smaller dischargers (unregulated industries, small construction sites,
and small cities), Phase II of the program, were issued in October 1999. The burden of
complying with the rules continues to be an issue with many affected industries and
municipalities, especially small cities, which faced compliance deadlines beginning in March
2003. (For further information, see CRS Report 97-290, Stormwater Permits: Status of
EPA’s Regulatory Program.)
Stormwater issues were addressed in one provision of omnibus energy legislation in the
108th Congress and now again in the 109th Congress. (For information, see CRS Issue Brief
IB10143.) Section 328 of the conference report on the 108th Congress version of H.R. 6
(H.Rept. 108-375) provided a permanent exemption from stormwater runoff rules for the
construction of exploration and production facilities by oil and gas companies or the roads
that service those sites. As the March 2003 compliance deadline approached, EPA proposed
a two-year extension of the Phase II rules for small oil and gas construction sites to allow the
agency to assess the economic impact of the rule on that industry. In March 2005, EPA again
extended the deadline, until June 2006, for further study. Industry officials say that the
stormwater rule creates costly permitting requirements, even though the short construction
period for drilling sites carries little potential for stormwater runoff pollution. The provision
in the bill would make EPA’s two-year delay permanent and making it applicable to
construction activities at all oil and gas development and production sites, regardless of size,
including those covered by Phase I of the stormwater program. Opponents argue that the
provision did not belong in the energy legislation and that there was no evidence that
construction at oil and gas sites causes less pollution than other construction activities. The
House passed the conference report on November 18, 2003. But the Senate failed to invoke
cloture on the bill, and ultimately no bill was enacted during the 108th Congress. In the 109th
Congress, the House is considering similar legislation, also H.R. 6, which contains an
identical oil and gas stormwater exemption provision (Section 328) to the bill from the
previous Congress.
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, following negotiations with key stakeholder groups, EPA issued a CSO
permitting strategy. 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,
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which primarily are states. 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 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 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
to 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 Clinton
proposal was not finalized and remains under review by the Bush Administration.
Funding for CSO and SSO projects is a major concern of states and cities. The most
recent clean water needs survey estimating the cost of projects to meet objectives of the
CWA found that the largest needs category, totaling $51 billion, is to address CSOs. EPA
estimates that costs to restrict SSOs are $88.5 billion. In December 2000, Congress passed
legislation, the Wet Weather Water Quality Act, authorizing a two-year $1.5 billion grants
program to reduce wet weather flows from municipal sewer systems. This bill was included
in the FY2001 Consolidated Appropriations bill (Section 112 of Division B, P.L. 106-554),
which codified EPA’s CSO policy on sewer overflows (discussed above). Congress
provided no appropriations for these wet weather grants during the two years of authorization
(FY2002-FY2003).
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. Although there has been no recent legislative activity on Section 404,
committee hearings were held on several issues arising from judicial decisions,
administrative actions of interest, and implementation of current law. Particular attention
has focused on issues related to a 2001 Supreme Court case which narrowed the
government’s regulatory jurisdiction over isolated waters, Solid Waste Agency of Northern
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Cook County (SWANCC) v. U.S. Army Corps of Engineers (531 U.S. 159 (2001)). Since the
2001 ruling, some federal courts have interpreted SWANCC narrowly, thus limiting its effect
on current permit rules, while a few read the decision more broadly.
On January 15, 2003, EPA and the Corps issued guidance to their staffs in the field for
regulating in light of SWANCC and related cases. At the same time, the agencies issued an
advanced notice of proposed rulemaking (ANPRM), seeking public comment on possible
rule changes not yet proposed but which may be needed in response to the legal decisions.
The agencies received more than 130,000 public comments on the ANPRM, most of them
negative, according to EPA and the Corps. Since the 2001 ruling, House and Senate
committees have held several hearings to examine issues and frustrations arising from
government and judicial interpretations of the decision. 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. 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. However, environmentalists remain concerned about diminished protection
resulting from the 2003 guidance, while developers said that without a new rule, confusing
and contradictory interpretations of wetland rules likely will continue. (For additional
information, see CRS Issue Brief IB97014, Wetland Issues.)
Strategy Concerning Animal Feeding Operations. Public and policy attention
has been increasing on steps to minimize public health and environmental impacts of runoff
from animal feeding operations (AFOs). AFOs are agricultural facilities that confine
livestock feeding activities, thus concentrating animal populations and waste. Animal waste
is frequently applied to land for disposal and to utilize the nutrient value of manure to benefit
crops. If not managed properly, however, it can pose risks to water quality and public health,
contributing pollutants such as nutrients, sediment, pathogens, and ammonia to the
environment. In 1999, EPA and the U.S. Department of Agriculture initiated a national AFO
strategy to improve compliance and strengthen regulations that are intended to control
adverse environmental impacts of these agricultural activities.
EPA regulations, issued in the 1970s, required CWA discharge permits for the largest
AFOs, termed confined animal feeding operations (CAFOs). However, EPA acknowledged
that compliance and enforcement of these permit rules was poor (less than one-third of
covered facilities actually have permits) and that the regulations themselves were outdated.
In December 2000, EPA proposed a rule to increase the number of AFOs required to obtain
CWA permits and to restrict land application of animal wastes. In May 2001, a House
Transportation and Infrastructure subcommittee held an oversight hearing on the proposal
Issues that Congress has addressed during this period 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 would achieve
control of agricultural runoff that adversely affects water quality. (For additional
information, see CRS Report RL30437, Water Quality Initiatives and Agriculture.)
On December 15, 2002, the EPA Administrator signed a final revised rule to regulate
waste discharges from CAFOs. The final rule, which the agency was under court order to
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issue by December 2002, modified the Clinton Administration’s 2000 proposal in a number
of areas. The final rule retains much of the structure of the existing rule, such as regulatory
thresholds and definitions, but includes requirements for development of nutrient
management plans to better manage land application of manure. EPA estimates that 15,500
CAFOs will be regulated by the rule (compared with 26,000-39,000 under the proposal), at
an annual compliance cost of $335 million (versus $850-$980 million under the proposal).
Farm groups said that the regulations are generally workable and consistent with
environmental initiatives in the 2002 farm bill (P.L. 107-171), but environmental groups
criticized the rule for inadequately addressing animal waste runoff problems. (For additional
information, see CRS Report RL31851, Animal Waste and the Environment: EPA Regulation
of Concentrated Animal Feeding Operations.) A January 2003 GAO report concluded that
the new rule will be ineffective unless EPA increases its oversight of state regulatory
programs, which have primary responsibility for ensuring compliance by feedlot operators
(Increased EPA Oversight Will Improve Environmental Program for Concentrated Animal
Feeding Operations, GAO-03-285.)
In February 2005, a federal court issued a ruling in a set of challenges to the CAFO rule
(Waterkeeper Alliance, American Farm Bureau, et al. v. EPA, 399 F.3d 486 (2d Cir. 2005)).
The litigation involved challenges to the permitting scheme of the rule, the type of discharges
subject to regulation, and the effluent limitations established in the rules. The court upheld
major parts of the EPA rule, held in favor of some of industry’s challenges, held in favor of
several of environmentalists’ challenges, and in some cases directed EPA to explain more
fully why it did or did not do certain things with regard to specific provisions of the rule. It
remanded the rule to EPA in light of the court’s ruling. The court overturned the “duty to
apply” part of the rule, as challenged by industry, that would require all CAFOs to apply for
a permit. It also rejected parts of the rule, challenged by environmentalists, regarding
regulatory review of permits, inclusion of nutrient management plans in CAFO permits, and
public participation requirements.
Continuing Issue:
Appropriations and the Federal Budget
Although 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, by Claudia Copeland.)
FY2006. President Bush presented the FY2006 budget request on February 7, 2005.
Overall for EPA, it seeks $7.6 billion, or 5.6% less than Congress appropriated for FY2005.
As proposed, the Administration’s deepest cuts would come from the account that funds
water infrastructure programs and state categorical grants. The budget requests $730 million
for clean water SRF grants, which would be 33% below FY2005 appropriated funding and
45.6% below the FY2004 funding level. It requests no funds for congressionally earmarked
water infrastructure projects, but does seek $70 million in funding for Administration
priorities — U.S.-Mexico border projects and Alaska Native Villages projects. Advocates
of the SRF program (especially state and local government officials) contend that the cuts
will impair their ability to carry out needed municipal wastewater treatment plant
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improvement projects. Administration officials say that cuts for the SRF in FY2006 are
because Congress boosted funds above their requested level in FY2005 (see following
discussion). These officials say they plan to invest $6.8 billion in the clean water SRF
program between FY2004-2011, after which federal funding would end and the state SRFs
would have an annual revolving level of $3.4 billion. If Congress appropriates more than
EPA requests in any given year, they say, that target will be met sooner, leading to reduced
budget requests for the SRF in subsequent years until the planned phaseout in FY2011. State
and local officials say that the SRF reductions could impede their ability to meet clean water
goals.
The President’s budget includes increases for some water quality programs (in
particular, requesting $50 million for cleanup of Great Lakes contaminated sediment, up
from $22 million in FY2005). It also includes increases for some categorical clean water
grant programs (state grants for program administration, $23.6 million more than in FY2005;
and nonpoint source pollution management grants, $1.8 million more than in FY2005) and
decreases for others in order to fund other Administration priorities (such as elimination of
$1.5 million for wastewater operator training grants and elimination of Water Quality
Cooperative Agreement grants, which support a variety of innovative permitting,
management, and research projects and were funded at $17 million in FY2005). States say
that the grant increases fall short of what they need in assistance to implement current rules
and program requirements.
FY2005. On November 20, 2004, the House and Senate passed H.R. 4818,
Consolidated Appropriations Act 2005, an omnibus appropriations bill comprising nine
appropriations measures, including funding for EPA. The bill provides total funding for
EPA of $8.1 billion, a decrease from the $8.4 billion approved in FY2004, but $340 million
more than was requested by the President in February. One of the most controversial items
is a $251 million decrease for clean water SRF grants from the FY2004 level, although the
$1.09 billion total is $241 million more than in the FY2005 budget request.
The funding for clean water SRF grants in H.R. 4818 ($1.09 billion) is a compromise
between the House and Senate amounts ($850 million and $1.35 billion, respectively), while
the final bill also includes $402 million for 669 congressionally earmarked water
infrastructure grants. H.R. 4818 also includes $22.3 million for remediation of contaminated
sediments in the Great Lakes, $17.9 million for targeted watershed grants, $207 million for
Section 319 grants, and $208 million for state implementation grants under Section 106 of
the act. President Bush signed the legislation December 8 (P.L. 108-447).
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 on implementation of the act.)
U.S. Congress. House. Committee on Transportation and Infrastructure. Subcommittee on
Water Resources and Environment. Improving Water Quality: States’ Perspectives on
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the Federal Water Pollution Control Act. Hearing. 107th Congress, 1st session,
February 28, 2001. Washington: GPO, 2001. 53 p. (107-3)
——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. 107th Congress, 1st session, June 28, 2001. Washington: GPO,
2001. 118 p. (107-29)
——The Future of the TMDL Program: How to Make TMDLs Effective Tools for Improving
Water Quality. Hearing. 107th Congress, 1st session, November 15, 2001. Washington:
GPO, 2001. 34 p. (107-56)
——Water Quality Trading: An Innovative Approach to Achieving Water Quality Goals on
a Watershed Basis. Hearing. 107th Congress, 2d session, June 13, 2002. Washington:
GPO, 2002. 102 p. (107-103)
——Meeting Our Nation’s Wastewater Infrastructure Needs. Hearing. 108th Congress, 1st
session, March 19, 2003. Washington: GPO, 2003. 133 p. (108-14)
——The Need to Update Water Quality Standards to Improve Clean Water Act Programs.
Hearing. 108th Congress, 1st session, June 19, 2003. Washington: GPO, 2004. 125 p.
(108-35)
U.S. Congress. Committee on Government Reform. Subcommittee on Energy Policy,
Natural Resources and Regulatory Affairs. Agency Implementation of the SWANCC
Decision. Hearing. 107th Congress, 2d session, September 19, 2002. Washington:
GPO, 2003. 209 p. (Serial No. 107-230)
U.S. Congress. Senate. Committee on Environment and Public Works. Subcommittee on
Fisheries, Wildlife, and Water. Water and Wastewater Infrastructure Needs. Hearings.
107th Congress, 1st session, March 27, 2001. S.Hrg. 107-316. Washington: GPO,
2001. 141 p.
——SWANCC Supreme Court Decision: Impact on Wetlands Regulations. Hearing. 108th
Congress, 1st session, June 10, 2003. Washington: GPO, 2004. 306 p. (108-352)
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.
Loeb, Penny. “Very Troubled Waters.” U.S. News & World Report, v. 125, no. 12,
September 28, 1998: 39, 41-42.
U.S. Congressional Budget Office. Future Investment in Drinking Water and Wastewater
Infrastructure. Washington, November 2002. 58 p.
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U.S. Environmental Protection Agency. The National Water Quality Inventory: 2000
Report. Washington, September 2002. “EPA-841-R-2-001.”
U.S. General 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.
——Improved EPA Guidance and Support Can Help States Develop Standards That Better
Target Cleanup Efforts. (GAO-03-308) January 2003. 74 p.
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 IB10142. Clean Water Act Issues in the 109th Congress, by Claudia
Copeland.
CRS Report RL32384. EPA’s Proposed Policy on Wastewater Blending: Background and
Issues, 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 RL32201. Water Infrastructure Project Earmarks in EPA Appropriations:
Trends and Policy Implications, 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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