Water Quality Issues in the 114th Congress:
An Overview
Claudia Copeland
Specialist in Resources and Environmental Policy
January 5, 2016
Congressional Research Service
7-5700
www.crs.gov
R43867
Water Quality Issues in the 114th Congress: An Overview
Summary
Much progress has been made in achieving the ambitious goals that Congress established in 1972
in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological
integrity of the nation’s waters. However, long-standing problems persist, and new problems have
emerged. Water quality problems are diverse, ranging from pollution runoff from farms and
ranches, city streets, and other diffuse or “nonpoint” sources, to toxic substances discharged from
factories and sewage treatment plants.
There is little agreement among stakeholders about what solutions are needed, whether legislation
is required to address the nation’s remaining water pollution problems, or whether regulatory
authorities should be reduced. For some time, efforts to comprehensively amend the CWA have
stalled as interests have debated whether and exactly how to change the law. Congress has instead
focused legislative attention on enacting narrow bills to extend or modify selected CWA
programs, but not comprehensive proposals.
Programs that regulate activities in wetlands have been of particular interest recently, especially
CWA Section 404, which has been criticized by landowners for intruding on private land-use
decisions and imposing excessive economic burdens. Environmentalists view this regulatory
program as essential for maintaining the health of wetland ecosystems, and they are concerned
about court rulings that have narrowed regulatory protection of wetlands. Many stakeholders
desire clarification of the act’s regulatory jurisdiction, but they differ on what solutions are
appropriate. On May 27, 2015, the Environmental Protection Agency (EPA) and the Army Corps
of Engineers finalized a rule intended to clarify jurisdictional issues, but interpretive questions
about the rule remain controversial inside and outside of Congress.
Another prominent water quality issue for some time has concerned financial aid for municipal
wastewater treatment projects. House and Senate committees have approved bills to reauthorize
CWA assistance on several occasions since the 107th Congress, but, for various reasons, no
legislation other than appropriations was enacted. At issue has been the role of the federal
government in assisting states and cities in meeting needs to rebuild, repair, and upgrade
wastewater treatment systems, especially in light of capital costs that are projected to be nearly
$300 billion over the next 20 years. The 113th Congress agreed to legislation that creates a pilot
program to provide federal loans for water infrastructure projects (P.L. 113-121), but the program
has not yet received funds to begin making loans. The same legislation also revised certain of the
water infrastructure financing provisions of the CWA.
A number of other water quality issues have been the subject of congressional oversight and
legislation, with some legislators highly critical of EPA’s recent regulatory initiatives and others
more supportive. In several cases, policymakers have sought to curtail water quality protection
initiatives under the CWA following court rulings that expanded the regulatory scope of the law.
Among the topics of particular interest has been regulation of surface coal mining activities in
Appalachia. Congressional interest in this and other topics has been reflected in specific
legislative proposals and debate over policy provisions of bills providing appropriations for EPA.
Members from both parties have raised questions about the cost-effectiveness of some of EPA’s
actions and whether the agency has exceeded its authority. In the 114th Congress, scrutiny of EPA
initiatives has continued to be intense.
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Water Quality Issues in the 114th Congress: An Overview
Contents
Introduction ..................................................................................................................................... 1
Legislative and Oversight Issues ..................................................................................................... 2
Regulatory Protection of Wetlands ............................................................................................ 3
Judicial Proceedings Involving Section 404 ....................................................................... 4
Authorization of Clean Water Infrastructure Funding ............................................................... 9
Issues Affecting Legislative Efforts .................................................................................. 12
WIFIA Pilot Program and SRF Amendments in P.L. 113-121.......................................... 13
Other Clean Water Act Issues .................................................................................................. 14
Mountaintop Mining in Appalachia .................................................................................. 15
Continuing Issue: Appropriations .................................................................................................. 16
FY2016 Appropriations ........................................................................................................... 17
Tables
Table 1. Clean Water SRF Capitalization Grants, FY2008-FY2016 .............................................. 11
Contacts
Author Contact Information .......................................................................................................... 17
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Water Quality Issues in the 114th Congress: An Overview
Introduction
Much progress has been made in achieving the ambitious goals that Congress established more
than 40 years ago to restore and maintain the chemical, physical, and biological integrity of the
nation’s waters. However, long-standing problems persist, and new problems have emerged.
Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city
streets, and other diffuse or “nonpoint” sources, to “point” source discharges of metals and
organic and inorganic toxic substances 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. 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 governments have
primary day-to-day responsibilities to implement CWA programs through standard-setting,
permitting, enforcement, and administering financial assistance programs. Local governments
also have important roles in implementing water quality protection programs, such as building
and operating municipal wastewater treatment plants and regulating local pollution sources.1
The water quality restoration objective declared in the 1972 act was accompanied by statutory
goals to attain, wherever possible, waters deemed “fishable and swimmable” by 1983 and to
eliminate the discharge of pollutants into navigable waters by 1985. Although 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 sewage treatment plants.
Progress has been mixed in controlling discharges of toxic pollutants (heavy metals, inorganic
and organic chemicals), which are more numerous and can harm human health and the
environment even when present in very small amounts—at the parts-per-billion level. Moreover,
efforts to control pollution from diffuse sources, termed nonpoint source pollution (rainfall runoff
and snowmelt from urban, suburban, and agricultural areas, for example), are more recent, given
the earlier emphasis on “point source” pollution (discharges from industrial facilities and
municipal wastewater treatment plants). Overall, data reported by EPA and states indicate that
44% of river and stream miles assessed by states and 64% of assessed lake acres do not meet
applicable water quality standards and are impaired for one or more desired uses.2 In 2006 EPA
issued an assessment of streams and small rivers, reporting that 67% of U.S. stream miles are in
poor or fair condition and that nutrients and streambed sediments have the largest adverse impact
on the aquatic species in these waters.3 A similar assessment of the health of the nation’s lakes,
issued in 2009, found that 56% are in good biological condition, but that about 20% of lakes have
high levels of phosphorus or nitrogen and are more likely to have poor biological health than
1 For further information, see CRS Report RL30030, Clean Water Act: A Summary of the Law, by Claudia Copeland.
2 U.S. Environmental Protection Agency, National Water Quality Inventory: Report to Congress, 2004 Reporting
Cycle, EPA 841-R-08-001, January 2009, http://water.epa.gov/lawsregs/guidance/cwa/305b/2004report_index.cfm.
3 U.S. Environmental Protection Agency, Wadeable Streams Assessment: A Collaborative Survey of the Nation’s
Streams, EPA 841-B-06-002, December 2006, http://www.epa.gov/owow/streamsurvey/.
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Water Quality Issues in the 114th Congress: An Overview
lakes without excess nutrients.4 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, and one-third of shellfishing beds are
closed or restricted due to toxic pollutant contamination. Mercury is a contaminant of growing
concern—in 2010, approximately 16.3 million lake acres and 1.14 million river miles were under
fish or shellfish consumption advisory because of elevated mercury levels. Mercury
concentrations in game fish exceed health-based limits in about half of U.S. lakes.5
The last major amendments to the CWA were the Water Quality Act of 1987 (P.L. 100-4). That
legislation culminated six years of congressional efforts to extend and revise the act and was the
most comprehensive amendments since 1972. Authorizations of appropriations for some
programs provided in P.L. 100-4, such as grant assistance to states, research, and general EPA
support, expired in FY1990 and FY1991. Authorizations for wastewater treatment project funding
expired in FY1994. None of these programs has lapsed, however, as Congress has continued to
appropriate funds to implement them. EPA, states, industry, and other citizens continue to
implement the 1987 legislation.
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. Lately,
however, some have questioned whether additional actions to achieve further benefits are worth
the costs, especially in view of the continuing problems of the U.S. economy. 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 many have opposed CWA measures that they fear might impose new unfunded
mandates. Many environmental groups believe that strengthening of the law is needed to maintain
progress achieved to date and to address remaining water quality problems.
Legislative and Oversight Issues
October 2012 marked the 40th anniversary of passage of the Clean Water Act and 25 years since
the last major amendments to the law were enacted. While 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: what additional actions, if any,
should be taken to implement existing provisions of the law; whether additional steps are
necessary to achieve overall goals of the act that have not yet been attained; how to ensure that
progress made to date is not lost through diminished attention to water quality needs; whether
existing regulatory authorities should be reduced; and what is 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
4 U.S. Environmental Protection Agency, Office of Water and Office of Research and Development, National Lakes
Assessment: A Collaborative Survey of the Nation’s Lakes, EPA-R-09-001, 2009.
5 Ibid.
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uncertainty; and allocating governmental responsibilities among federal, state, local, and tribal
entities for implementing the law.
These factors partly explain why Congress has recently focused legislative attention on narrow
bills to extend or modify selected CWA programs, rather than taking up comprehensive proposals.
Other factors also have been at work. These include a lack of legislative initiatives by the
Administration on clean water issues (neither the Clinton nor the Bush Administration proposed
CWA legislation, nor has the Obama Administration); and the high economic cost of addressing
water infrastructure issues.
After the 2010 election, congressional attention turned significantly to oversight and legislation
focused on criticism of EPA regulatory activities—particularly in the House, which passed a
number of bills to limit EPA’s regulatory authority. The Senate did not act on these measures. The
112th Congress enacted two bills that amend the CWA. One extended the moratorium for CWA
permitting of certain vessels for an additional year, until December 18, 2014 (P.L. 112-213), and
the other extended authorization of funds for the Lake Pontchartrain Basin program in Section
121 of the act through FY2017 (P.L. 112-237). The 113th Congress enacted several bills with
CWA provisions:
Provisions of water resource legislation with some amendments to CWA Title VI,
plus a pilot program for water infrastructure financing (see “WIFIA Pilot
Program and SRF Amendments in P.L. 113-121” below);
As part of the 2014 farm bill, legislation exempting most silviculture activity
from requiring a CWA permit;6
Legislation providing an additional three-year moratorium for CWA permitting of
certain vessels;7 and
A bill eliminating a number of statutorily required reports to Congress, including
one CWA report (P.L. 113-188).
Two CWA issues that have been the focus of much of legislators’ interest in recent Congresses—
regulatory protection of wetlands and water infrastructure financing—are discussed next.
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. Much of the
debate has focused on the CWA, which contains a key wetlands regulatory tool. The permit
program in CWA Section 404 requires landowners or developers to obtain permits for disposal of
dredged or fill material that is generated by construction or similar activity into navigable waters
of the United States, including wetlands. Section 404 has evolved through judicial interpretation
and regulatory change to become one of the principal 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 goals of wetlands protection in the context of meeting the objectives of
6 For discussion, see CRS Report R42883, Water Quality Issues in the 113th Congress: An Overview, by Claudia
Copeland.
7 See CRS Report R42142, EPA’s Vessel General Permits: Background and Issues, by Claudia Copeland.
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the CWA.8 Recently, the issue of wetlands management and protection has been central to
controversy surrounding an Obama Administration regulatory proposal to define “waters of the
United States,” that is, which surface waters and wetlands are subject to the CWA’s regulatory
requirements and protection (see “2015 Revised Rule” below).
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 environmental guidance jointly
developed with EPA to evaluate permit applications. Also, the act authorizes EPA to veto a 404
permit that does not meet the law’s requirements. Other federal agencies, including the 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 been addressed in administrative and
judicial 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.
Judicial Proceedings Involving Section 404
One issue involving long-standing controversy and litigation is whether isolated waters are
properly within the jurisdiction of Section 404. Waters and wetlands that appear to be isolated—
e.g., they are not physically adjacent to navigable surface waters—or streams that are wet only for
portions of the year may 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.9 Questions about whether such waters and wetlands are jurisdictional for CWA
purposes have been extensively litigated.
SWANCC and Rapanos
In 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 Engineers10 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 exceeded the authority provided in the act.
In 2006, the Supreme Court revisited issues related to the extent of CWA jurisdiction in two
consolidated cases brought by landowners (Rapanos v. United States; and Carabell v. U.S. Army
Corps of Engineers) seeking to narrow the scope of the 404 permit program as it applies to
development of wetlands. The issue in both cases had to do with the reach of the CWA to cover
“waters” that were not navigable waters in the traditional sense, but were connected somehow to
navigable waters or “adjacent” to those waters. (The act requires a federal permit to discharge
dredged or fill materials into “navigable waters.”) Many legal and other observers hoped that the
Court’s ruling in these cases would bring greater clarity about the scope of federal jurisdiction.
8 For additional information, see CRS Report RL33483, Wetlands: An Overview of Issues, by Claudia Copeland.
9 Scientists generally agree that the presence of a wetland can be determined by a combination of soils, plants, and
hydrology. See the discussion in CRS Report RL33483, Wetlands: An Overview of Issues.
10 531 U.S. 159 (2001).
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The Court’s ruling on the two cases was issued in June 2006.11 In a 5-4 decision, a plurality of the
Court, led by Justice Scalia, held that the lower court had applied an incorrect standard to
determine whether the wetlands at issue are covered by the CWA. Justice Kennedy joined this
plurality to vacate the lower court decisions and remand the cases for further consideration, but he
took different positions on most of the substantive issues raised by the cases, as did four other
dissenting Justices.12 Because the several opinions written by the Justices did not draw a clear line
regarding which wetlands and other waters are subject to federal jurisdiction, one result has been
more case-by-case determinations and continuing litigation. There also has been pressure on the
Corps and EPA to clarify the issues through an administrative rulemaking.
The full extent of impacts on the regulatory program resulting from these decisions still remains
unclear, in part because of different interpretations of both rulings reflected in subsequent federal
court cases. While it continues to be difficult to fully assess how regulatory protection of
wetlands has been affected as a result of the decisions and other possible changes, the remaining
responsibility to protect affected wetlands falls on states and localities. Environmentalists believe
that the Court misinterpreted congressional intent on the matter, while industry and landowner
groups welcomed the rulings. Policy implications of how much the decisions restrict federal
regulation depend on how broadly or narrowly the opinions are applied. Some federal courts have
interpreted SWANCC and Rapanos narrowly, thus limiting effects on existing permit rules, while
a few have read the decisions more broadly, resulting in a more restrictive interpretation of
regulatory jurisdiction.
Corps/EPA Guidance
Following both the SWANCC and Rapanos rulings, EPA and the Corps issued guidance in 2003
and 2008 to enable their field staffs to make CWA jurisdictional determinations in light of the
decisions. Environmental groups criticized the guidance, saying that the agencies are substantially
limiting the scope of waters that are protected by the CWA. Industry groups such as developers
remain frustrated by what they see as inconsistencies and delays in obtaining needed permits.
The Obama Administration entered this debate in 2011, when EPA and the Corps proposed new
guidance, which was intended to clarify regulatory jurisdiction over U.S. waters and wetlands,
consistent with the Supreme Court decisions and agency regulations. Like previous guidance
documents, the Obama draft examined current regulatory definitions of waters that are subject to
CWA jurisdiction, such as interstate waters, and tributaries (at 33 C.F.R. §328.3 and 40 C.F.R.
§230.3) in light of the Supreme Court’s rulings to determine which waters are clearly subject to
the CWA, which waters are not, and which waters require a case-specific analysis in order to
determine jurisdiction.
The 2011 proposed guidance quickly generated substantial controversy. Some critics argued that
the guidance represented over-reaching by the agencies, beyond authority provided by Congress.
Others faulted the continued reliance on federal guidance, which is not binding and lacks the
force of law, yet can have significant impact on regulated entities. For various reasons, the 2011
draft guidance was not finalized, and in September 2013, EPA and the Corps announced that the
document had been withdrawn from interagency review and also announced that revised
11 Rapanos v. United States, 547 U.S. 715 (2006).
12 For additional information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA):
Rapanos and Beyond, by Robert Meltz and Claudia Copeland.
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regulations to define “waters of the United States” were being developed. On March 25, 2014, the
agencies released a proposed rule, and accepted public comment on it until November 14, 2014.13
According to EPA and the Corps, the agencies’ intent was to clarify CWA jurisdiction, not expand
it. Nevertheless, the rule has been extremely controversial, especially with groups representing
property owners, land developers, and the agriculture sector, who contend that it represents a
massive federal overreach beyond the agencies’ statutory authority. Most state and local officials
are supportive of clarifying the extent of CWA-regulated waters, but some are concerned that the
rule could impose costs on states and localities as their own actions (e.g., transportation or public
infrastructure projects) become subject to new requirements. Most environmental advocacy
groups welcomed the intent of the proposal to more clearly define U.S. waters that are subject to
CWA protections, but beyond that general support, some favored even a stronger rule.
2015 Revised Rule
On May 27, 2015, EPA and the Corpson Agency (EPA) issued a final rule revising their
regulations that define the scope of waters protected under the CWA. The revised rule became
effective on August 28, 2015, 60 days after publication in the Federal Register.14
The revised rule retains much of the structure of the agencies’ existing definition of “waters of the
United States.”15 It focuses particularly on clarifying the regulatory status of surface waters
located in isolated places in a landscape and streams that flow only part of the year, along with
nearby wetlands—the types of waters with ambiguous jurisdictional status following the Supreme
Court’s rulings. Like the 2003 and 2008 guidance documents and the 2014 proposal, it identifies
categories of waters that are and are not jurisdictional, as well as categories of waters and
wetlands that require a case-specific evaluation.
Under the final rule, all tributaries to the nation’s traditional navigable waters,
interstate waters, the territorial seas, or impoundments of these waters would be
jurisdictional per se. All of these waters are jurisdictional under existing rules,
but the term “tributary” is newly defined in the rule.
Waters—including wetlands, ponds, lakes, oxbows, and similar waters—that are
adjacent to traditional navigable waters, interstate waters, the territorial seas,
jurisdictional tributaries, or impoundments of these waters would be
jurisdictional by rule. The final rule for the first time puts some boundaries on
what is considered “adjacent.”
Some waters—but fewer than under current practice—would remain subject to a
case-specific evaluation of whether or not they meet the legal standards for
federal jurisdiction established by the Supreme Court. The final rule establishes
two defined sets of additional waters that will be a “water of the United States” if
they are determined to have a significant nexus to a jurisdictional waters.
13 Department of Defense, Department of the Army, Corps of Engineers, and Environmental Protection Agency,
“Definition of ‘Waters of the United States’ Under the Clean Water Act, Proposed Rule,” 79 Federal Register 22188-
22274, April 21, 2014.
14 Department of the Army, Corps of Engineers, and Environmental Protection Agency, “Clean Water Rule: Definition
of ‘Waters of the United States,’ Final Rule,” 80 Federal Register 37054-37127, June 29, 2015.
15 The definition of “waters of the United States” is found at 33 C.F.R. §328.3 (Corps) and 40 C.F.R. §122.2 (EPA).
The term is similarly defined in other EPA regulations, as is the term “navigable waters.”
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The final rule identifies a number of types of waters to be excluded from CWA
jurisdiction. Some are restatements of exclusions under current rules (e.g., prior
converted cropland); some have been excluded by practice and would be
expressly excluded by rule for the first time (e.g., groundwater, some ditches).
Some exclusions were added to the final rule based on public comments (e.g.,
stormwater management systems and groundwater recharge basins). The rule
makes no change and does not affect existing statutory exclusions: permit
exemptions for normal farming, ranching, and silviculture practice and for
maintenance of drainage ditches (CWA §404(f)(1)), as well as for agricultural
stormwater discharges and irrigation return flows (CWA §402(l)).
The agencies’ intention was to clarify questions of CWA jurisdiction, in view of the Supreme
Court’s rulings and consistent with the agencies’ scientific and technical expertise. Much of the
controversy since the Court’s rulings has centered on the many instances that have required
applicants for CWA permits to seek a time-consuming case-specific evaluation to determine if
CWA jurisdiction applies to their activity, due to uncertainty over the geographic scope of the act.
In the rule, the Corps and EPA intended to clarify jurisdictional questions by clearly articulating
categories of waters that are and are not protected by the CWA and thus limiting the types of
waters that still require case-specific analysis. However, critical response to the proposal from
industry, agriculture, many states, and some local governments was that the rule was vague and
ambiguous and could be interpreted to enlarge the regulatory jurisdiction of the CWA beyond
what the statute and the courts allow.
Officials of the Corps and EPA vigorously defended the proposed rule. But they acknowledged
that it raised questions that required clarification in the final rule. In an April 2015 blog post, the
EPA Administrator and the Assistant Secretary for the Army said that the agencies responded to
criticisms of the proposal with changes in the final rule, which was then undergoing interagency
review. The blog post said that the final rule would make changes such as: defining tributaries
more clearly; better defining how protected waters are significant; limiting protection of ditches
to those that function like tributaries and can carry pollution downstream; and preserving CWA
exclusions and exemptions for agriculture.16 The final rule announced on May 27 does reflect a
number of changes from the proposal, especially to provide more bright line boundaries and
simplify definitions that identify waters that are protected under the CWA.17 The agencies’
intention has been to clarify the rules and make jurisdictional determinations more predictable,
less ambiguous, and more timely. Based on press reports of stakeholders’ reactions to the final
rule, it appears that some believe that the agencies largely succeeded in that objective, while
others believe that they did not.18
Legal challenges to the Clean Water Rule were filed in multiple federal courts soon after it was
announced. These lawsuits, filed by industry groups, more than half of the states, and several
environmental groups (nearly 90 plaintiffs so far), will test whether the agencies’ interpretation of
CWA jurisdiction is consistent with the Supreme Court’s rulings and whether the rule complies
with substantive and procedural requirements of the CWA and other laws.
16 Gina McCarthy and Jo-Ellen Darcy, “Your Input Is Shaping the Clean Water Rule,” EPA Connect, The Official Blog
of EPA’s Leadership, April 6, 2015, http://blog.epa.gov/epaconnect/2015/04/your-input-is-shaping-the-clean-water-
rule/#more-3470.
17 See CRS Report R43455, EPA and the Army Corps’ Rule to Define “Waters of the United States” for discussion.
18 See, for example, Amena H. Saiyid, “Obama Says Water Jurisdiction Rule Provides Clarity, Certainty; Critics Claim
Overreach,” Daily Environment Report, May 28, 2015, pp. A-1.
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Because of uncertainty about the correct judicial venue for challenging the rule,19 petitions for
review have been filed both in federal district courts and courts of appeal. As of December 1,
2015, petitions for review of the rule have been filed in eight appellate courts; most have been
consolidated in the Sixth Circuit. Sixteen separate challenges also were filed in 12 federal district
courts. On October 9, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit
placed a nationwide stay on the 2015 rule, pending further developments, including the need to
determine the court’s own jurisdictional authority.20 On the substance of the complaints, the court
said there was a good chance that the plaintiffs would prevail on the merits. A two-judge majority
said that the significance of the new rule warranted leaving the prior regulatory regime in place,
while the third judge said that until the question of subject-matter jurisdiction is answered, the
new rule should not be stayed.21 The Sixth Circuit court heard arguments on December 8, 2015,
on whether it has exclusive jurisdiction to review the rule, but the court has not yet issued its
ruling. As a result of the court’s order, the Corps and EPA will continue to make CWA
jurisdictional determinations based on the 2008 guidance, as they did before promulgation of the
2015 rule.
Legislative Responses
Congressional committees have held oversight hearings on both the SWANCC and Rapanos
decisions, seeking clarification of interpretations and impacts of the rulings. But the uncertainties
about federal jurisdiction over wetlands and other waters raised by the rulings remain highly
controversial. In response, legislation to overturn the decisions by providing a broad definition of
“waters of the United States” has been introduced regularly since the 107th Congress, and one
such bill was reported by a Senate committee in the 111th Congress.22 Legislation that instead
would narrow the definition of “waters of the United States” also has been introduced.
Environmental advocates and others contend that Congress must clarify the important issues left
unsettled by the Supreme Court’s 2001 and 2006 rulings and by the Corps/EPA guidance. They
also argue that legislation is needed to “reaffirm” what Congress intended when the CWA was
enacted in 1972 and what EPA and the Corps have subsequently been practicing until the two
Supreme Court rulings, in terms of CWA jurisdiction. But critics questioned the constitutionality
of legislation that was proposed and asserted that it would expand federal authority, thus likely
increasing confusion, rather than settling it.
19 The judicial review section of the CWA, Section 509, vests exclusive, original review jurisdiction over enumerated
EPA actions under the act in the federal courts of appeals. The initial issue with Section 509 is that none of the listed
EPA actions clearly cover the Clean Water Rule. Indeed, in the preamble to the final rule, EPA and the Corps
acknowledge that “[t]he Supreme Court and lower courts have reached different conclusions on the types of actions
that fall within section 509,” and offers no opinion of its own as to review of the Clean Water Rule. If a court finds that
the rule is not covered by Section 509, review jurisdiction presumably will lie in the district courts pursuant to the
federal question statute. That statute, applicable where no more specific statute provides otherwise, gives the district
courts original jurisdiction over “all civil actions arising under the ... laws ... of the United States.” (28 U.S.C. §1331)
See CRS Legal Sidebar WSLG1369, The EPA/Corps Clean Water Rule: What Court or Courts Get to Rule on the
Legal Challenges?
20 On August 27, a district court in North Dakota issued a preliminary injunction that blocked implementation of the
rule in 13 states, but not in the remaining 37 states.
21 In re Environmental Protection Agency and Department of Defense, Nos. 15-3799 et al. (6th Cir., Oct. 9, 2015),
http://www.ca6.uscourts.gov/opions.pdf/15a0246p-06.pdf.
22 For information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and
Beyond.
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EPA’s and the Corps’ efforts to develop revised Rapanos guidance and revised regulations have
been controversial and received congressional attention. Legislative provisions to prohibit the
agencies from funding activities related to the guidance and the proposed “waters” rule were
included in appropriations bills since the 112th Congress. One such provision was enacted as part
of the Consolidated and Further Continuing Appropriations Act, 2015 (P.L. 113-235) in December
2014. It required EPA and the Corps to withdraw an interpretive rule related to the proposed
“waters” rule, which addressed permit exemptions for agricultural activities but created
controversy and confusion.23
Congressional interest has continued to be strong in the 114th Congress. On February 4, 2015, the
Senate Environment and Public Works Committee and the House Transportation and
Infrastructure Committee held a joint hearing on impacts of the 2014 proposed rule on state and
local governments, hearing from public and EPA and Corps witnesses. Hearings also have been
held by other congressional committees. As well, a number of bills have been introduced, most of
them intended either to prohibit the agencies from finalizing the 2014 proposed rule or to detail
procedures for a new rulemaking. Bills have been of several types.24
Joint resolutions of disapproval under the Congressional Review Act. The Senate
has passed such a resolution (S.J.Res. 22), and a similar resolution has been
introduced in the House (H.J.Res 59).
Appropriations bill limitations. Bills with limitations were reported in the Senate
and House in 2015, but the FY2016 Consolidated Appropriations Act (P.L. 114-
113) contained no such provisions.
Standalone targeted legislation. The House has passed one such bill (H.R. 1732).
Similar legislation was reported in the Senate, but failed to advance (S. 1140).
Broad amendments to the CWA to affirm or clarify Congress’s intention
regarding CWA jurisdiction, including such bills as S. 980 and S. 2705.
None of these bills has been enacted, but congressional interest in halting or modifying the
“waters of the United States” rule is likely to remain high in 2016.
Authorization of Clean Water Infrastructure Funding
Meeting the nation’s needs to build, upgrade, rebuild, and repair wastewater infrastructure is a
significant element in achieving the CWA’s water quality objectives and an issue of continuing
interest to policymakers. The act’s program of financial aid for municipal wastewater treatment
plant construction is a key contributor to that effort. Since 1972, Congress has provided nearly
$94 billion to assist local governments 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. State and local governments
have spent more than $25 billion of their own funds for construction, as well. Federal funds can
only be used for construction purposes (i.e., new plants or upgrades), but not for operation and
maintenance of facilities, which are funded from local sources.
23 See CRS Insight IN10212, Withdrawal of the EPA-Army Corps Interpretive Rule for Agriculture, by Claudia
Copeland.
24 For additional discussion, see CRS Report R43943, EPA and the Army Corps’ “Waters of the United States” Rule:
Congressional Response and Options, by Claudia Copeland.
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Still, funding needs remain very high: an additional $298 billion, according to the most recent
Needs Survey estimate by EPA and the states, a 17% increase above the estimate reported four
years earlier.25 This estimate includes $187.9 billion for wastewater treatment and collection
systems ($26.7 billion more than the previous report), which represent more than 60% of all
needs; $63.6 billion for combined sewer overflow corrections ($1.4 billion less than the previous
estimate); $42.3 billion for stormwater management ($17 billion more than the previous
estimate); and $4.4 billion to build systems to distribute recycled water ($700 million less than
the previous estimate).
While water infrastructure investments are made and projects are built, new funding needs also
are identified. Rather than decreasing over time, estimates of funding needs continue to grow.
EPA reported several reasons for increased funding needs, which were $23 billion higher than in
the previous report. Cited reasons include improvements needed to meet more protective water
quality standards, rehabilitation of aging infrastructure, and expanding capacity to meet
population growth. Needs for stormwater management increased by $17 billion and were mostly
due to emerging needs to provide “green” infrastructure (e.g., use of wetland and other natural
systems to capture stormwater) as a supplement to traditional stormwater treatment structures.
The estimates do not explicitly include funding needed to address security issues, or funding
possibly needed for treatment works to adapt to climate change impacts.
Debate over the nation’s efforts regarding wastewater infrastructure was a central part of the 1987
CWA amendments. The 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), which are loan programs, in a new Title VI. Under the
revolving fund concept, monies used for wastewater treatment construction are repaid by loan
recipients to the states (repayment was not required for grants under the Title II program), to be
used for future construction in other communities, thus providing an ongoing source of financing.
The expectation in 1987 was that the federal contributions to SRFs would assist in making a
transition to full state and local financing by FY1995. Although most states believe that the SRF
is working well, continuing large funding needs 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.26
SRF monies may be used for specified activities, including making 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 toward 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, SRF monies also
may be used to implement national estuary programs and nonpoint pollution management. Since
the SRF program began, states have used about 4% of clean water SRF funds to assist nonpoint
management projects and estuary projects.
25 U.S. Environmental Protection Agency, Clean Watersheds Needs Survey 2008, Report to Congress, Washington,
June 2010, http://water.epa.gov/scitech/datait/databases/cwns/upload/cwns2008rtc.pdf.
26 For further information on the clean water SRF program, see CRS Report 98-323, Wastewater Treatment: Overview
and Background, by Claudia Copeland.
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All states have established the mechanisms to administer the loan program and have been
receiving SRF capitalization funds under Title VI. Congressional oversight has examined the
progress toward reducing the backlog of wastewater treatment facilities needed to achieve the
act’s water quality objectives, while estimates of future funding needs have drawn increased
attention to the role of the SRF program in meeting such needs. Although there has been some
criticism of the SRF program, and debate continues over specific concerns, the basic approach is
well supported. Congress used the clean water SRF as the model when it established a drinking
water SRF in 1996 (P.L. 104-182).27
The initial intent was to phase out federal support for this program, but Congress has continued to
appropriate SRF capitalization grants to the states—a total of $41 billion since the 1987
amendments, providing an average of $1.45 billion annually in recent years. Table 1 summarizes
recent Administration budget requests and enacted appropriations for SRF capitalization grants.
This table does not include appropriations for congressionally directed special project grants in
individual cities (that is, congressional earmarks), which for several years represented about 15%
of water infrastructure funds.28
Table 1. Clean Water SRF Capitalization Grants, FY2008-FY2016
(millions of dollars)
President’s
Fiscal Year
Request
Appropriations
2008
687.6
1,083.8
2009
555.0
4,689.1a
2010
2,400.0
2,100.0
2011
2,000.0
1,522.0
2012
1,550.0
1,466.5
2013
1,175.0
1,376.1b
2014
1,095.0
1,448.9
2015
1,018.0
1,448.9
2016
1,116.0
1,393.9
TOTAL
11,596.6
16,529.2
Source: Compiled by CRS.
a. FY2009 appropriations include $4.0 bil ion in supplemental appropriations as part of the American Recovery
and Reinvestment Act of 2009 (P.L. 111-5).
b. FY2013 appropriations reflect post-sequester/post-rescission amount.
One issue of continuing interest is impacts of paying for water infrastructure projects on small
communities, many of which have found it difficult to participate in the SRF loan program. This
is due to a number of factors. Many are characterized by narrow or weak tax bases, limited or no
access to capital markets, lower relative household incomes, higher per capita needs, and limited
27 For additional information, see CRS Report RS22037, Drinking Water State Revolving Fund (DWSRF): Program
Overview and Issues, by Mary Tiemann.
28 Issues associated with special project grants are discussed in CRS Report RL32201, Water Infrastructure Projects
Designated in EPA Appropriations: Trends and Policy Implications, by Claudia Copeland. Since FY2011, Congress
has placed a moratorium on earmarks, but some policymakers favor restoring the practice.
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ability to demonstrate economies of scale. 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.
Because remaining clean water funding needs are still so large nationally, 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. Additionally, there is concern about the
adequacy of SRF or other funding specifically for high-cost 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 and manage stormwater runoff is nearly $64 billion
nationwide—more than one-fifth of all needs estimated in the most recent Needs Survey.
Wastewater utilities also have sought assistance to assess operational vulnerabilities and upgrade
physical protection of their facilities against possible terrorist attacks that could threaten the water
infrastructure system.29
In 2010 EPA issued a “Clean Water and Drinking Water Infrastructure Sustainability Policy”
addressing management and pricing of infrastructure funded through SRFs to encourage
conservation and provide adequate long-term funding for future capital needs. EPA is working
with water utilities to promote planning processes that reflect not only public health and water
quality, but also conservation of natural resources and innovative treatment. Further, EPA is
working with states to target SRF assistance to projects that focus on system upgrade and
replacement in existing communities, reflect full life cycle costs of infrastructure assets, and
conserve natural resources or use alternative approaches.
Issues Affecting Legislative Efforts
Congress had considered water infrastructure funding issues several times since the 107th
Congress, but no legislation other than appropriations was enacted until P.L. 113-121, discussed
next. Despite specific issues that have stalled legislation, the act’s water infrastructure program is
widely supported both inside and outside Congress. However, because the House and Senate have
focused extensively on reducing federal spending and deficit reduction recently, proposals
concerning new or expanded federal spending for water infrastructure investments have not
advanced. Throughout this period, several factors contributed to difficulties in moving bills
through the legislative process. They included Bush Administration opposition to higher
authorization levels, controversies over application of prevailing wage requirements of the Davis-
Bacon Act to water infrastructure projects, and disputes over the formula for allocating clean
water SRF grants among the states.
The issue of the applicability of the Davis-Bacon Act to SRF-funded projects has been especially
controversial, because that act has both strong supporters and critics in Congress and elsewhere. It
requires, among other things, that not less than the locally prevailing wage be paid to workers
employed, under contract, on federal construction work “to which the United States or the District
of Columbia is a party.” 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. Under the original SRF program authorization enacted in 1987, the Davis-Bacon Act
29 For additional information on many of these topics, see CRS Report RL31116, Water Infrastructure Needs and
Investment: Review and Analysis of Key Issues, by Claudia Copeland and Mary Tiemann.
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Water Quality Issues in the 114th Congress: An Overview
applied to so-called “first use” monies provided by a state from its SRF (that is, loans made from
initial federal capitalization grants, but not to subsequent monies provided from repayments to the
SRF). When that authorization expired at the end of FY1994, Davis-Bacon requirements also
expired. Thus, the recent issue has been whether to restore the applicability of those
requirements.30 While authorizing committees have debated this issue for some time, Davis-
Bacon requirements have been attached to use of SRF funds through appropriations acts since
2009.
A second issue that has complicated enactment of legislation is the method of allocating SRF
capitalization grants among the states. CWA Section 205(c)(3) contains a table that identifies each
state’s percentage share of appropriated funds. Changing the formulation of how funds are
distributed matters to every state, because inevitably it results in “winners” and “losers.” But
because the existing statutory allotment has not been revised since 1987, while needs have
changed considerably, the issue is important to considering clean water infrastructure
legislation.31
WIFIA Pilot Program and SRF Amendments in P.L. 113-121
Most policymakers acknowledge that communities face formidable challenges in providing and
paying for adequate and reliable water infrastructure services for their citizens, and Congress has
long considered ways to help meet those challenges. Several policy options have been discussed,
including some that exist and are well established—such as the SRF program—while some are
newer—such as creating a national infrastructure bank. Some are intended to provide long-term
revenue to support infrastructure financing programs, and some are intended to encourage private
participation in providing wastewater services. At this point, there is no consensus favoring a
single policy, and many advocate a combination of options to expand the financing “toolbox.”
One particular option that has been debated is a “Water Infrastructure Finance and Innovation
Act,” or WIFIA, program, and legislation to create a WIFIA pilot program was enacted in the
113th Congress (H.R. 3080/P.L. 113-121). The legislation, the Water Resources Reform and
Development Act (WRRDA) Title V, Subtitle C, authorizes a five-year WIFIA pilot program.
Under the bill, EPA is authorized to provide credit assistance (secured loans or loan guarantees)
for drinking water and wastewater projects, and the U.S. Army Corps of Engineers is authorized
to provide similar assistance for water resource projects, such as flood control or hurricane and
storm damage reduction. Proponents argue that WIFIA offers a number of financing advantages,
such as providing credit assistance at low U.S. Treasury rates to projects that otherwise have
difficulty obtaining financing, thus lowering the cost of capital to borrowers. Under the
legislation, EPA and the Corps each are authorized a total of $175 million over five years
(beginning with $20 million in FY2015 and increasing to $50 million in FY2019 for each agency)
to provide assistance. Projects must be $20 million or larger in costs to be eligible, except that
projects in rural areas (population 25,000 or less) must have eligible projects costs of $5 million
or more.32
30 For information, see CRS Report R41469, Davis-Bacon Prevailing Wages and State Revolving Loan Programs
Under the Clean Water Act and the Safe Drinking Water Act, by Gerald Mayer and Jon O. Shimabukuro.
31 For additional information on the current statutory formula, see CRS Report RL31073, Allocation of Wastewater
Treatment Assistance: Formula and Other Changes, by Claudia Copeland.
32 For additional information, see CRS Report R43315, Water Infrastructure Financing: The Water Infrastructure
Finance and Innovation Act (WIFIA) Program, by Claudia Copeland.
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Since passage of the legislation, EPA has held a series of meetings around the country to discuss
implementation of the new program, as the agency seeks stakeholder views on issues such as how
to define eligible projects, develop a project ranking system and evaluation criteria, and
determine credit worthiness. However, the program will not proceed until Congress provides
appropriations for it. In the FY2015 omnibus appropriations act, enacted in December 2014 (P.L.
113-235), Congress provided EPA with $2.2 million for hiring and staffing to implement the new
program, but it did not appropriate funds to actually finance projects. The Consolidated
Appropriations Act, 2016, enacted in December 2015 (P.L. 114-113) provided EPA with $5.0
million to continue preparation for the program. Neither bill appropriated funds to actually
finance projects.
In addition to the WIFIA provisions, P.L. 113-121 includes a number of provisions amending
certain water infrastructure provisions of the CWA, especially the Title VI SRF program. Some of
the provisions in P.L. 113-121 were included in other legislation and proposals in recent
Congresses that have not advanced (such as extending SRF loan repayment from 20 to 30 years,
allowing states to make subsidized loans under certain circumstances, adding land acquisition to
the definition of “treatment works” in order to be eligible for SRF assistance, and explicitly
allowing SRF monies to be used for security projects at wastewater treatment plants). Several of
the provisions have been included in recent appropriations bills and are now codified in the CWA
by P.L. 113-121 (such as expanding the list of SRF-eligible projects to include energy- and water-
efficiency and others; increasing SRF assistance to Indian Tribes; and imposing “Buy American”
requirements on SRF assistance). The CWA provisions included in P.L. 113-121 are the first
amendments to Title VI since 1987. However, the amendments do not address other long-standing
Title VI issues: authorization of appropriations for capitalization grants (i.e., the amendments do
not reauthorize clean water SRF grants), state-by-state allocation of capitalization grants (i.e., the
allocation formula that has been in effect since 1987), or applicability of prevailing wage
requirements under the Davis-Bacon Act (locally prevailing wages are to be paid to workers on
projects that receive SRF assistance).33
Other Clean Water Act Issues
A number of other issues affecting efforts to achieve the goals and objectives of the CWA have
drawn interest recently and been the subject of congressional oversight and legislation. Some
legislators have been highly critical of recent regulatory initiatives, while others have been more
supportive of EPA’s implementation efforts.
Since 2009, EPA has proposed and promulgated numerous regulations implementing the CWA
and other pollution control statutes that it administers. Critics of the Administration, both within
Congress and outside of it, have accused the agency of reaching beyond the authority given it by
Congress and ignoring or underestimating the costs and economic impacts of these rules.
Majority party leaders in the House conducted vigorous oversight of the agency in the 112th and
113th Congresses. Bills seeking to overturn specific regulations or to limit the agency’s authority
also were introduced, along with proposals to bar EPA funding for specific activities.
Environmental groups disagree that the agency has overreached, and EPA itself contends that
critics’ focus on the cost of controls obscures the benefits of new regulations. The agency
estimates that benefits far exceed the costs, and that investing in pollution control is an important
source of economic activity, exports, and American jobs. Although particular attention is being
33 For additional information on P.L. 113-121, see CRS Report R43298, Water Resources Reform and Development Act
of 2014: Comparison of Select Provisions, by Nicole T. Carter et al.
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Water Quality Issues in the 114th Congress: An Overview
paid to the Clean Air Act, a number of EPA’s initiatives concerning the CWA also have received
legislators’ scrutiny.34 In several cases, policymakers have sought to curtail water quality
protection initiatives under the CWA following court rulings that expanded the regulatory scope
of the law. In the 114th Congress, scrutiny of EPA initiatives has continued to be intense, including
those involving water quality.
Mountaintop Mining in Appalachia
One water quality issue that has received considerable attention is mountaintop coal mining.
Mountaintop removal coal mining involves removing the top of a mountain in order to recover
the coal seams contained there. This practice occurs in six Appalachian states (Kentucky, West
Virginia, Virginia, Tennessee, Pennsylvania, and Ohio). It creates an immense quantity of excess
spoil, which is typically placed in nearby valleys, burying streams that flow through the valleys.
Critics say that, as a result of valley fills, stream water quality and the aquatic and wildlife habitat
that streams support are destroyed. The mining industry argues that mountaintop mining is
essential to conducting surface coal mining in the Appalachian region and that surface coal
mining would not be economically feasible there if producers were restricted from using valleys
for the disposal of mining overburden.35
Mountaintop mining is regulated under several laws, including the CWA Section 404 permit
program (discussed above) and the Surface Mining Control and Reclamation Act. In June 2009,
officials of EPA, the Corps of Engineers, and the Department of the Interior’s Office of Surface
Mining and Reclamation (OSM) signed a memorandum of understanding outlining a series of
administrative actions under these laws to reduce the harmful environmental impacts of
mountaintop mining and surface coal mining in Appalachia. The plan includes a series of near-
term and longer-term actions that emphasize specific steps, improved coordination, and greater
transparency of decisions. The actions are being implemented through regulatory proposals,
guidance documents, and review of pending applications for permits to authorize mountaintop
mining-valley fill operations. In 2009, the Army Corps suspended the use of a particular CWA
general permit (nationwide permit 21) for surface coal mining activities in Appalachia and in
2012 it finalized rules to apply more stringent use of CWA general permits by these coal mining
operations.36
Also in 2009 EPA and the Corps began conducting detailed evaluations of 79 pending CWA
permit applications for surface mining activities in order to limit environmental impacts of the
proposed activities under a process called Enhanced Coordination Procedures (ECP). Coal
industry groups and coal state officials contended that the ECP process resulted in costly delay in
issuance of permits. They challenged the process in federal court, and in October 2011, the court
struck down the ECP as an unlawful transfer of legal authority from the Corps to EPA.37
Thereafter, the agencies continued to review permit applications for surface coal mining projects
in Appalachia under existing rules, but not the vacated ECP.
34 For information, see CRS Report R41561, EPA Regulations: Too Much, Too Little, or On Track?, by James E.
McCarthy and Claudia Copeland.
35 For additional information, see CRS Report RS21421, Mountaintop Mining: Background on Current Controversies,
by Claudia Copeland.
36 For information, see CRS Report 97-223, The Army Corps of Engineers’ Nationwide Permits Program: Issues and
Regulatory Developments, by Claudia Copeland.
37 At the time of the court’s ruling, 8 of the 79 projects under ECP review had received permits; 50 permit applications
had been withdrawn by the applicants; 3 project reviews were underway or nearly complete; and 18 reviews had not yet
begun.
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In 2011 EPA issued guidance on review of CWA Section 402 and 404 permit requests for surface
coal mining in Appalachia. The guidance tightened oversight of permit reviews in several ways,
most notably by establishing two benchmarks for stream conductivity, which is a measure of the
level of salinity in water and is a proxy for dissolved solids in stream waters associated with
mining activity that may contribute to toxicity. The guidance has been very controversial with
industry. The House Transportation Subcommittee on Water Resources and Environment held
hearings on these issues in May 2011. A hearing also was held by the House Government Reform
and Oversight Committee in July 2011. In July 2012, the same federal court that struck down the
ECP also invalidated the 2011 guidance document intended to help assess a mine’s water quality
impacts, ruling that EPA had overstepped its statutory authority. The government appealed both of
these rulings, which were overturned by a federal appeals court in July 2014.38
Legislation to restrict the practice of mountaintop mining has been introduced. A bill in the 114th
Congress, H.R. 912, would place a moratorium on permitting for mountain removal coal mining
until certain health studies are conducted. A bill in the 113th Congress (H.R. 1837, the Clean
Water Protection Act) would have narrowed the CWA definition of “fill material,” and thus
narrowed the types of materials that can be discharged into U.S. waters under a Section 404
permit. The significance of the bill is that discharges of materials that are not eligible for a
Section 404 permit are regulated under CWA Section 402. Because Section 402 discharge
requirements are more restrictive than those for Section 404, some discharges that could be
permitted under Section 404 cannot be authorized under Section 402. Supporters favored making
it more difficult to use Section 404 to authorize activities that they consider to be environmentally
harmful. On the other hand, critics of the legislation say that, as a practical matter, economically
important activities such as coal mining could not meet the more stringent limitations of a Section
402 permit and, thus, would be infeasible.39
Another aspect of the mountaintop mining issue that has drawn attention is EPA’s 2011 veto of a
CWA Section 404 permit for a surface coal mining operation in West Virginia, the Spruce No. 1
mine. EPA’s action has been controversial, particularly because the veto occurred after the permit
had been issued by the Army Corps. EPA’s veto of the permit was challenged, and in 2012, a
federal district court overturned the veto, ruling that EPA had exceeded its statutory authority in
the Spruce No. 1 action. However, in 2013, a federal appeals court reversed the lower court’s
decision and upheld EPA’s authority to retroactively veto permits.40 The appeals court ruling was
applauded by environmental groups and criticized by the mining industry. In response, bills have
been introduced to limit or prohibit EPA’s ability to exercise this veto authority, contained in
CWA Section 404(c). Several proposals in the 114th Congress (S. 55/S. 234, H.R. 896,and H.R.
1203) would bar EPA from vetoing a 404 permit retroactively.
Continuing Issue: Appropriations
Although few CWA amendments have been enacted recently, clean water policy and program
issues have been addressed regularly by Congress in the context of annual appropriations acts.
38 National Mining Association v. McCarthy, D.C. Cir., No. 12-5310, July 11, 2014.
39 For additional information, see CRS Report RL31411, Controversies over Redefining “Fill Material” Under the
Clean Water Act, by Claudia Copeland.
40 Mingo Logan Coal Company v. U.S. Environmental Protection Agency, 714 F.3d 608 (DC Cir. 2013); cert. denied,
134 S. Ct. 1540 (2014). For background on the veto, see CRS Report RS21421, Mountaintop Mining: Background on
Current Controversies, by Claudia Copeland.
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EPA’s appropriations are included in the Interior, Environment, and Related Agencies
appropriations acts.41
FY2016 Appropriations
The Administration’s FY2016 budget was presented on February 2, 2015. Overall, the budget
sought $8.6 billion for EPA, or $452 million more than the FY2015 enacted level of funding.42
The EPA request included $1.116 billion for clean water SRF capitalization grants ($333 million
less than the FY2015 enacted level; see Table 1) and $15 million for Alaska Native Village and
U.S.-Mexico Border water infrastructure projects. The Administration sought $238.8 million to
protect surface waters (19.5% higher than the FY2015 enacted level), and $250 million for the
Great Lakes Restoration Initiative (17% below the FY2015 enacted level). The budget sought
increases for several water quality grant programs (Section 106 grants, Section 319 grants, and
wetlands program development grants.
Although the House and Senate Appropriations Committees reported bills to provide FY2016
appropriations for EPA (H.R. 2822 and S. 1645), final appropriations action for EPA and other
agencies occurred as part of the Consolidated Appropriations Act, 2016, signed by the President
December 18, 2015 (P.L. 114-113). The bill provides $1.393.9 billion for clean water SRF
capitalization grants ($55 million less than FY2015, but $278 million above the President’s
request) and $30 million for Alaska Native Village and U.S.-Mexico Border water infrastructure
projects. It also provides $300 million for the Great Lakes Restoration Initiative. The final bill
includes the requested increase in funds for Section 319 nonpoint pollution management grants,
but not for other water quality grant programs (i.e., Section 106 grants and wetlands program
development grants).
Author Contact Information
Claudia Copeland
Specialist in Resources and Environmental Policy
ccopeland@crs.loc.gov, 7-7227
41 For additional information, see CRS Report 96-647, Water Infrastructure Financing: History of EPA Appropriations,
by Claudia Copeland.
42 See CRS Report R44208, Environmental Protection Agency (EPA): FY2016 Appropriations, by Robert Esworthy
and David M. Bearden.
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