Clean Water Act Reauthorization

Clean Water Act Reauthorization

Order Code IB10001
CRS Issue Brief for Congress
Received through the CRS Web
Clean Water Act Reauthorization
Updated May 23, 2000
Claudia Copeland
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Introduction
Legislative Activity in the 104th Congress
The 105th Congress
The Administration's Clean Water Action Plan
The 106th Congress
Issues in the 106th Congress
Managing Animal Waste
TMDLs and State Water Quality Standards
Regulatory Protection of Wetlands
Management of Nonpoint Source Pollution
Funding Municipal Wastewater Treatment
Other Issues
Stormwater
Combined and separate sewer overflows
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
FOR ADDITIONAL READING
CRS Issue Briefs
CRS Reports

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Clean Water Act Reauthorization
SUMMARY
In the 105th Congress, legislation to
These issues may be addressed legislatively, as
reauthorize the Clean Water Act was not
well. At issue is whether and how to detail
introduced, and no major House or Senate
wet weather programs in the Act versus allow-
committee activity occurred. In the 104th
ing flexibility that recognizes the site-specific
Congress, the House passed a comprehensive
nature of intermittent wet weather pollution.
reauthorization bill, but controversies arose
and the Senate did not take up the House-
Programs that regulate activities in wet-
passed bill. The Act could present issues for
lands, such as Section 404 of the Act, have
the 106th Congress; whether and how it will be
been criticized by landowners for intruding on
considered is unclear at this time. No major
private land-use decisions and imposing exces-
activity occurred in the first session, and none
sive economic burden. Yet, environmentalists
has been scheduled in the second session,
and conservationists view these programs as
although action on a number of individual
essential for maintaining the health of wetland
clean water bills has occurred.
ecosystems. Because of continuing wide
disagreement about the nature of needed
Likely to be of interest if Congress does
reforms, it has been difficult for policymakers
consider the Act are pending regulatory ac-
to reach consensus.
tions by EPA and the Department of Agri-
culture to strengthen management of waste
Clean Water Act amendments in 1987
from animal feeding operations. How the
initiated a program of grants to capitalize State
proposals will be funded and impacts on agri-
Water Pollution Control Revolving Funds, or
cultural producers could be addressed.
SRF loan programs, for wastewater treatment
construction. States were to have flexibility in
Congress also could review an existing
exchange for a phaseout of federal assistance
provision of the Act that requires states to set
after FY1994. However, difficulties that some
"total maximum daily loads" (TMDLs) of
states and small towns have had in implement-
pollution to ensure that water quality standards
ing the SRF program, coupled with financing
are attained. There has been little implementa-
needs that are estimated to exceed $130 billion
tion of the provision, up until the recent filing
nationwide, have made wastewater treatment
of numerous lawsuits against EPA and states
funding another element of the reauthorization
for failing to comply with its requirements.
debate.
TMDL requirements and costs facing states
and others to implement this provision have
Other issues have been debated recently,
drawn considerable attention.
such as reforming the law to provide regula-
tory relief for industry, states and cities, and
EPA and states’ water quality inventories
individual landowners. The debate over many
have identified wet weather flows (including
of these issues highlights differing views of the
agricultural runoff, urban stormwater, and
Act and its implementation by some who seek
sewer overflows) as the largest remaining
to strengthen existing requirements and others
threat to water quality. EPA’s clean water
who believe that costs and benefits should be
programs are now focusing to a large extent
more carefully weighed before additional
on solving wet weather pollution problems.
control programs are mandated.
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MOST RECENT DEVELOPMENTS
Neither House nor Senate committees have scheduled major legislative activity on the
Clean Water Act, and no comprehensive reauthorization bills have been introduced in the
106th Congress. However, a number of bills dealing with individual water quality issues
have passed the House or the Senate, including H.R. 673, H.R. 999, H.R. 1106, H.R. 1237,
H.R. 2328, H.R. 2957, H.R. 3039, H.R. 3313, and S. 835, and several other bills have been
reported by committees. House and Senate committees have held several oversight hearings
on implementation of current law and Administration water quality initiatives. Whether
these oversight hearings will lead to broader legislative activity is unclear.
In October 1997, Vice President Gore directed federal agencies to develop a Clean
Water Initiative to improve and strengthen the nation’s water pollution control efforts. A
multi-agency Plan was released in February 1998 which identifies more than 100 actions.
Most are existing activities, now labeled as part of the Initiative. It did not include
legislative proposals to reauthorize the Act. The President’s FY1999 budget requested $2.5
billion for five departments and agencies to fund the Initiative. Final appropriations for
FY1999 to fund the Initiative were $2.0 billion and provided less than 10% of the budgetary
increases sought by the Administration. For FY2000, the Administration requested $2.5
billion to fund the Initiative, including $450 million in increases above FY1999 levels.
FY2000 appropriations bills provide about $2.2 billion of the total requested. For FY2001,
the budget requests $2.8 billion, a 27%increase above FY2000 levels. On May 13, 1999,
the Senate Environment and Public Works Committee held the first congressional oversight
hearing on the Initiative.
BACKGROUND AND ANALYSIS
Introduction
The principal law governing pollution in the nation’s streams, lakes, and estuaries is the
Federal Water Pollution Control Act (P.L. 92-500, enacted in 1972), commonly known as the
Clean Water Act (amended by P.L. 95-217 in 1977, P.L. 97-117 in 1981, and P.L. 100-4 in
1987). It consists of two major parts: regulatory provisions that impose progressively more
stringent requirements on industries and cities to abate pollution and meet the statutory goal
of zero discharge of pollutants; and provisions that authorize federal financial assistance for
municipal wastewater treatment construction. Both parts are supported by research activities,
plus permit and enforcement provisions. Programs at the federal level are administered by
the Environmental Protection Agency (EPA); state and local governments have major
responsibilities to implement those programs. (Note: A summary of the Act with details and
"hot links" to sections of the U.S. Code can be found in the online version of this issue brief,
which is available on the CRS Home Page/Full Text of CRS Online Products.) Prior to the
104th Congress, congressional efforts to amend the Act dealt with all of these aspects, with
the objective of strengthening water quality programs. Legislation passed by the House in
1995, but not enacted (H.R. 961), also was comprehensive but had the primary objective of
making the law more flexible and less prescriptive.
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The objective declared in the 1972 Act is to restore and maintain the chemical, physical,
and biological integrity of the nation’s water. That objective was accompanied by statutory
goals to eliminate the discharge of pollutants into navigable waters by 1985 and to attain,
wherever possible, waters deemed “fishable and swimmable” by 1983. While those goals
have not yet been achieved, considerable progress has been made, especially in controlling
conventional pollutants (suspended solids, bacteria, and oxygen-consuming materials)
discharged by industries and municipal sewage treatment plants. Nearly 75% of assessed
waters comply with standards for these pollutants. Progress has been mixed in controlling
discharges of toxic pollutants (heavy metals, inorganic and organic chemicals), which are
more numerous and can harm human health and the environment even when present in minute
amounts — at the parts-per-billion level. Moreover, efforts to control pollution from diffuse
sources (rainfall runoff, for example) have only recently begun. Overall, data reported by
EPA and states indicate that 40% of waters surveyed by states fail to meet water quality
standards. Forty-seven states now have some form of fish-consumption advisory in effect
(including 100% of Great Lakes waters and a large portion of the nation's coastal waters),
due to water pollution problems, and one-third of shellfishing beds are closed or restricted,
due to toxic pollutant contamination.
In 1987 Congress passed major amendments, the first comprehensive revision to the law
in a decade (P.L. 100-4). (For further information, see CRS Issue Brief IB89102, Water
Quality: Implementing the Clean Water Act.) Authorizations for a number of the provisions
expired in FY1990 and FY1991, for programs such as general grant assistance to states,
research, and general EPA support. Authorizations for wastewater treatment assistance
expired in FY1994. None of these programs lapsed, however, as Congress has continued to
appropriate funds to implement the Act.
Legislative Activity in the 104th Congress. In the 104th Congress, the Clean Water
Act was one of the first environmental laws to receive congressional attention. A House
Committee on Transportation and Infrastructure subcommittee held oversight hearings on
clean water issues in February and March 1995. Committee Chairman Shuster introduced a
comprehensive reauthorization bill, H.R. 961, on February 15. It was approved by the full
Committee on April 6 (H.Rept. 104-112). On May 16, 1995, the House passed H.R. 961
(240-185). (For additional information, see CRS Report 95-427, Clean Water: Summary
of H.R. 961, As Passed.)
H.R. 961 reflected efforts to make the CWA more flexible and less prescriptive and to
address a number of regulatory relief issues of concern to many — industries, states, and
cities, in particular — who criticized what they viewed as excessive and prescriptive clean
water regulation. These reform efforts were evident in the bill’s amendments to the standards
and regulatory requirements and wetlands permit provisions of current law. The legislation
was endorsed by a number of industry groups, as well as state and local government groups,
but was opposed by environmental groups and the Clinton Administration. EPA officials said
that the bill would undermine the existing framework for protection of U.S. waters.
In the Senate, reauthorization legislation was not introduced, and no hearings on H.R.
961 were held. However, a Senate Environment and Public Works subcommittee held three
hearings in 1995 on S. 851, legislation to revise the CWA Section 404 dredge and fill permit
program that was similar to wetlands reforms included in H.R. 961, and a hearing on wetlands
mitigation banking issues in 1996. In December 1995, the Committee held a hearing on CWA
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issues affecting municipalities, including funding and implementation of regulatory programs
to manage stormwater and combined sewer overflows.
The 105th Congress. Congressional committees did not undertake any legislative
activity on clean water issues in the 105th Congress, and no comprehensive reauthorization
legislation was introduced. During the first session, committees that have jurisdiction over
the Act (Senate Environment and Public Works and House Transportation and Infrastructure)
gave priority to two other bills, reauthorization of Superfund and the Intermodal Surface
Transportation Efficiency Act (ISTEA). However, in April 1997, the House Transportation
and Infrastructure Subcommittee on Water Resources and Environment began oversight
hearings on issues that could assist in developing reauthorization legislation. One hearing,
concerning clean water and drinking water infrastructure needs, was followed by another on
regulatory and judicial developments affecting wetlands. A Senate subcommittee held a
similar hearing on wetlands issues in June 1997. No further congressional activity occurred.
The Administration's Clean Water Action Plan. In October 1997, on the 25th
anniversary of the CWA, Vice President Al Gore announced an initiative intended to build on
the environmental successes of the Act and to address the nation’s remaining water quality
challenges, especially nonpoint source pollution. The Vice President directed EPA and
USDA to coordinate the work of other federal agencies to develop an action plan to improve
and strengthen water pollution control efforts. The purpose of the plan is to coordinate
federal efforts to achieve three goals: enhanced protection from public health threats posed
by water pollution, more effective control of polluted runoff, and promotion of water quality
protection on a watershed basis.
President Clinton and Vice President Gore released the action plan in February 1998.
Components of the plan, nearly 100 actions, consist mainly of existing programs, including
some planned regulatory actions that agencies have had underway, now to be enhanced with
increased funding or accelerated with performance-specific deadlines. (The text is available
at [http://www.cleanwater.gov/].) The individual elements of the plan are built on four
concepts: utilizing collaborative watershed-based partnerships to clean up impaired waters;
maintaining strong federal and state standards; calling on federal natural resource and
conservation agencies to assist in restoring and protecting watersheds; and ensuring that
citizens and officials have improved information for decisionmaking.
Complementing the plan, the President’s FY1999 budget identified the Clean Water
Initiative as a high-priority for environmental programs. It requested a total of $2.5 billion,
a $609 million, or 33%, increase over FY1998 base levels, to fund activities in five
departments and agencies, plus interagency funds. Almost one-half of the increases, $265
million, was designated as assistance to states and localities or to individual landowners.
The action plan was not accompanied by legislation to reauthorize the CWA. In
Congress, it was considered primarily through the appropriations process, rather than
authorizing committee activity. Funding to support the plan is contained in several separate
appropriations bills, including the Omnibus Consolidated and Supplemental Appropriations
Act (P.L. 105-277) passed just before the 105th Congress adjourned. In those bills,
congressional support for the action plan was quite mixed. Appropriators funded few
budgetary elements of the Action Plan, citing reasons such as difficulty in supporting new
initiatives, on top of existing priorities. Overall, the bills provided less than 10% of the
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increased funds requested by the Administration. While EPA received close to full funding
for the requested action plan activities contained in its budget, other agencies and departments
received no or only small increases to support the plan.
The FY1999 increases for EPA totaled $121 million and consisted of $95 million more
for grants to states to manage nonpoint source pollution (a 95% increase for CWA Section
319 grants); $20 million more for grants for state administration of water quality programs
(a 20% increase for Section 106 grants); and $7 million for various EPA water quality
activities, including development of water quality criteria for nutrients and updated
regulations for animal feeding operations, other grants for watershed restoration and wetlands
protection, and EPA actions to reduce the need for fish advisories. Other involved
departments include USDA, the Departments of Interior and Commerce, and the U.S. Army
Corps of Engineers.
In the President's FY2000 budget request, the Administration sought an additional $450
million ($2.5 billion total) for Clean Water Action Plan activities. Appropriations to fund
federal activities under the Plan were passed in four FY2000 bills which provided $2.2 billion
of the total requested. EPA and USDA officials say that the Plan will be implemented, even
though funds have been less than requested. Implementation will occur, they say, because
they believe that the Plan's many actions are the only way to achieve the Clean Water Act's
water quality goals. For FY2001, the budget requests $2.8 billion, a 27% increase above
FY2000 levels.
(For further information, see CRS Report 98-150, The Clean Water Action Plan:
Background and Early Implementation, and CRS Report 98-745, The Clean Water Action
Plan: Budgetary Initiatives.)
On May 13, 1999, the Senate Environment and Public Works Committee held the first
congressional oversight hearing on the Plan. The Committee heard from federal and state
government representatives, as well as members of the public. Agency witnesses addressed
how the Plan and its implementation are involving the public, states and localities, and federal
agencies in intergovernmental partnerships. Other witnesses and some Committee members
questioned the degree to which the Plan actually reflects state, local, public, and congressional
input and whether federal agencies have the legal authority to be taking some of the
contemplated actions. Questions also were raised about the scientific basis of the Plan,
because of inadequate national water quality data. Testimony from the hearing is available
at [http://www.senate.gov/~epw/stm1_106.htm#5-13-99].
The 106th Congress. Neither House nor Senate committees have scheduled major
legislative activity on the CWA, and no comprehensive reauthorization bills have been
introduced. However, bills dealing with a number of individual issues have received attention,
particularly in the House, which passed several measures in April and May, 2000. On April
12, the House passed two bills. One, H.R. 2328 (H.Rept. 106-560), would reauthorize the
clean lakes program (CWA §314) at a level of $50 million per year through FY2005. A
second bill, H.R. 3039 (H.Rept. 106-550), would expand federal and interstate efforts that
currently exist through the CWA for restoration of the Chesapeake Bay (CWA §117). In
May, the House passed H.R. 2957 (H.Rept. 106-594), authorizing $108 million for a Lake
Pontchartrain Basin restoration program. It also authorizes $100 million for an inflow and
infiltration project in New Orleans. The House also passed H.R. 673 (H.Rept. 106-592),
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authorizing EPA to make infrastructure improvement grants to improve water quality in the
Florida Keys marine ecosystem, and H.R. 1106 (H.Rept. 106-593), authorizing EPA to make
grants on a cost-shared basis for alternative water source projects to enhance water supplies.
Finally, in May, the House also passed H.R. 1237 (H.Rept. 106-596) to reauthorize the
National Estuary Program (CWA sec. 320) and H.R. 3313 (H.Rept. 106-597) to reauthorize
funding for the Long Island Sound estuary program (CWA sec. 119) and to establish a system
for trading nitrogen credits within the Long Island Sound watershed. (For additional
information, see CRS Report 97-644, National Estuary Program.)
On April 22, 1999, the House approved a bill, the Beaches Environmental Assessment,
Cleanup, and Health Act (H.R. 999, H.Rept. 106-98), addressing concerns that some have
raised about lack of uniformity of coastal water quality monitoring activities and failure of
states to adopt stringent water quality criteria for coastal recreational waters. The bill would
require states to adopt EPA water quality standards for bacteria within 3-1/2 years and to
monitor coastal recreation areas. It authorizes grants up to $30 million per year to assist
states and localities in meeting the requirements. Similar legislation has been introduced in
the Senate (S. 522), and the Senate Environment and Public Works Committee held a hearing
on these bills in July 1999. On April 13, 2000, the Senate committee approved both H.R. 999
and S. 522.
On March 30, the Senate passed S. 835, the Estuary Habitat Restoration Act (S.Rept.
106-189). It would establish a federal interagency council to develop a national strategy for
selecting and prioritizing estuary habitat restoration projects and authorizes $315 million over
5 years for such projects. Earlier that month, the House Transportation and Infrastructure
Committee approved a companion bill, H.R. 1775 (H.Rept. 106-561, pt. 1).
The Senate Environment and Public Works Committee held hearings in October 1999
on several clean water bills, including an October 7 hearing on proposals dealing with clean
water infrastructure funding (S. 914, S. 968, and S. 1699) and an October 13 hearing on a
bill concerning federal facility compliance with the CWA (S. 669), a bill to extend SRF
assistance to water conservation projects (S. 188), and legislation to amend the stormwater
provisions of the CWA (S. 1706). Also in October, the Committee approved legislation
authorizing appropriations for the Long Island Sound estuary cleanup program (S. 1632,
S.Rept. 106-182) and a bill modifying provisions of the Act concerning cleanup of
Chesapeake Bay (S. 492, S.Rept. 106-181).
The Senate and House also have passed separate versions of legislation to continue
several reports to Congress authorized under the Clean Water Act (S. 1730, S.Rept. 106-190;
H.R. 4052, H.Rept. 106-555). The Federal Reports Elimination and Sunset Act of 1995 (P.L.
104-66) authorized the elimination of numerous agency reports to congressional committees
at the end of 1999 unless Congress acted to continue specific reports. Congress extended the
deadline until May 15 in the Consolidated Appropriations Act for FY2000 (P.L. 106-113).
S. 1730 would continue two CWA reports; H.R. 4052 would continue 12 reports.
Issues in the 106th Congress
Prospects for reauthorization of the entire Act in the 106th Congress are dim, as attention
is focusing, instead, on individual programs within the Act (discussed above). Comprehensive
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reauthorization issues that might be addressed are not, for the most part, easily amenable to
straight-forward, consensus solutions. Many involve making difficult tradeoffs between
impacts on different sectors of the economy, taking action when there is technical or scientific
uncertainty, and allocating governmental responsibilities for implementing the law. (For
additional information, see CRS Report 98-946, Clean Water Act Issues in the 106th
Congress.) EPA Administrator Carol Browner has been quoted in press reports as saying that
the agency is not planning to propose any major environmental legislation in the 106th
Congress, preferring to focus on achieving regulatory advances under existing law, out of
concern that congressional action could weaken the Administration's environmental protection
principles.
Managing Animal Waste
A key element of the Clean Water Action Plan is to minimize public health and
environmental impacts of runoff from animal feeding operations (AFOs), which are
agricultural facilities that confine livestock feeding activities, thus concentrating animal
populations and manure. Animal waste is frequently applied to land for disposal and to utilize
the nutrient value of manure to benefit crops. If not managed properly, it can pose a number
of risks to water quality and public health, contributing pollutants such as nutrients, sediment,
pathogens, and ammonia to the environment. Agricultural runoff has been linked to
dangerous toxic microorganisms such as Pfiesteria piscicida, which is widely believed to be
responsible for major fish kills and disease events in several mid-Atlantic states.
Existing EPA regulations, issued in the 1970s, require CWA discharge permits for the
largest AFOs (about 6,000 out of 450,000 total facilities nationwide). However, EPA
acknowledges that compliance and enforcement of these permit rules is poor (less than one-
third of covered facilities actually have permits) and that the regulations themselves are
outdated. In September 1998, EPA and the Department of Agriculture jointly proposed a
draft strategy containing a number of steps to improve compliance and strengthen existing
regulations, obtain better information through data collection and research on water quality
impairments, and coordinate federal and state activities. The agencies solicited public
comment on the draft strategy and held 11 "listening sessions" around the country to gather
further comments that will form the basis of a final joint strategy later this year.
EPA and USDA issued a final national AFO strategy March 9, 1999. It proposes that
all AFOs, regardless of size, should develop and implement comprehensive nutrient
management plans by 2009. The plans would include manure handling and storage,
application of manure to land, recordkeeping, feed management, land management, and other
manure-use options. Officials estimate that 95% of all AFOs will be encouraged to
voluntarily implement nutrient management plans, while 15,000 to 20,000 large-scale
operations will be required to develop the plans as part of CWA discharge permits. Also,
EPA will work with states on a 2-phase approach for permitting animal feedlot operations:
requiring coverage of large-scale operations by permits by 2005; and revising existing
regulations by 2002. Issues that Congress may address include impacts and costs imposed
on the agricultural sector, which for the most part is not regulated by the Clean Water Act
or other EPA programs; how the anticipated combination of regulatory and incentive-based
measures will achieve the goal of minimizing water pollution from confinement facilities and
land application of manure; and whether legislation is needed to define national rules and
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policies regarding animal waste. (For additional information, see CRS Report 98-451,
Animal Waste Management and the Environment: Background for Current Issues.)
TMDLs and State Water Quality Standards
The CWA requires states to identify pollution-impaired water segments and develop
"total maximum daily loads" (TMDLs) that set the maximum amount of pollution that a water
body can receive without violating water quality standards. If a state fails to do so, EPA is
required to develop a priority list for the state and make its own TMDL determination. Most
states have lacked the resources to do TMDL analysis, which involve complex assessments
of water quality problems, pollution sources, and needed pollution reductions, and EPA has
both been reluctant to override states and has also lacked resources to do so. Thus, there has
been little implementation of the provision (Section 303(d)), which Congress enacted in 1972.
Since 1995, citizen groups have filed more than 30 lawsuits against EPA and states for
failure to fulfill CWA TMDL requirements. The lawsuits have increased public attention to
the TMDL program. Of the suits tried or settled to date, 11 have resulted in court orders
forcing EPA to oversee the establishment of TMDLs. In July 1998, EPA received
recommendations from an advisory group on regulatory and administrative changes to
strengthen and clarify the TMDL program (the text is available at
[http://www.epa.gov/owow/tmdl/advisory.html]). These recommendations formed the basis
of program changes that EPA proposed in August 1999; final rules are expected later in 2000.
The proposal sets forth criteria for states, territories and 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.
The August 1999 proposal has become highly controversial because of issues such as
burdens on states, industries, cities and others to implement a revised TMDL program and
potential impacts on some agriculture and forestry sources which are not now subject to
CWA regulations. The controversies also have drawn congressional attention. Eight
congressional hearings have been held, so far. In October 1999, a House Agriculture
subcommittee held an oversight hearing on impacts of the TMDL program and other recent
A d m i n i s t r a t i o n w a t e r q u a l i t y i n i t i a t i v e s o n a g r i c u l t u r e ( s e e
[http://commdocs.house.gov/committees/ag/hag10640.000/hag10640_0f.htm]). The Senate
Agriculture Committee also held a hearing on TMDL program changes on February 23
[http://www.senate.gov/~agriculture/Hearings/2000_Hearing/wl00223.htm]. A House
Transportation and Infrastructure subcommittee held two days of oversight hearings in
February, as well [http://www.house.gov/transportation/ctisub5.html], and a subcommittee
of the Senate Environment and Public Works Committee held hearings on March 1, March
23, May 6, and May 18 (see [http://www.senate.gov/~epw/stm1_106.htm]). A House
Agriculture subcommittee held a field hearing in North Carolina on May 22.
TMDL issues that have drawn recent congressional interest include details of the TMDL
requirements and deadlines and adequacy of resources for states to develop TMDLs and
related assessments. Several legislative proposals have been introduced, including H.R.
3609, H.R. 3625, S. 2041, and S. 2139, bills which would exempt agriculture and forestry
activities from CWA permit requirements. Another bill, S. 2417, would increase
authorizations for two CWA grant programs (nonpoint source management and state
implementation funds) to assist in TMDL development. This bill also would delay
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implementation of new TMDL rules for up to 18 months, pending a study by the National
Academy of Sciences. A similar bill, H.R. 4502, also would delay implementation of final
TMDL rules, pending an NAS study. (For additional information, see CRS Report 97-831,
Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants and CRS Report
RL30422, EPA’s Total Maximum Daily Load (TMDL Program: Highlights of Proposed
Changes and Impacts on Agriculture.)
Regulatory Protection of Wetlands
Restoring and protecting wetlands is a key features of the Administration's Clean Water
Action Plan. One element of the plan is a goal of achieving a net gain of as many as 100,000
acres of wetlands annually by the year 2005. Even before this specific policy goal was
declared, how best to protect the nation's remaining wetlands and regulate activities taking
place in wetlands has become one of the most contentious environmental policy issues,
especially in the context of the CWA, which contains a key wetlands regulatory tool, the
permit program in Section 404. 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. (For
further information, see CRS Issue Brief IB97014, Wetlands Issues.)
Unlike the rest of the Act, the permit aspects of Section 404 are administered by the U.S.
Army Corps of Engineers, using EPA guidance. Other federal agencies including the Fish and
Wildlife Service (FWS) and Natural Resource Conservation Service (NRCS) have significant
but more limited roles in the Corps’ permitting decisions. Tension has existed for many years
between the regulation of activities in wetlands under Section 404 and related laws, on the
one hand, and the desire of landowners to develop property that may include wetlands, on the
other hand. The conflicts over wetlands regulation have for the most part occurred in
administrative proceedings, as Congress has not amended Section 404 since 1977, when it
provided exemptions for categories of routine activities, such as normal farming and forestry.
Pressure to revise Section 404 and wetlands regulation in general has grown. In January
1989, the four federal agencies that regulate wetlands activities adopted and issued a federal
manual to provide a uniform definition and method for delineating wetland areas. While the
manual was intended to provide consistency among the Corps, EPA, FWS, and NRCS, one
result was a perception in some regions that areas not previously regulated now are
considered wetlands and are subject to permit requirements. Developers and other groups
contend that wetlands regulatory programs have been extended to areas with little or no
resource value, yet at great cost to the landowner.
In August 1993 the White House announced new federal policies in an effort to reconcile
conflicting interests in wetlands issues. The policies embody several principles and a large
number of regulatory, administrative, and legislative details. Some were implemented by the
Administration quickly (such as designating the NRCS as the lead agency for wetlands
determinations on agricultural lands), while others are not yet complete (such as establishing
a new administrative appeals process for review of wetlands permit decisions). Nonetheless,
many critics of federal wetlands programs contend that these administrative changes do not
provide the full extent of reform that they believe is needed.
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Among recent proposals for amending Section 404, a number of issues have been raised,
including whether all wetlands should be treated the same or not and whether some could be
accorded less stringent regulatory protection, whether activities or areas covered by
regulation should be modified, and whether the institutional arrangements for implementing
Section 404 (at federal and state levels) should be revised. Views on each of these issues
vary. Many conservationists and environmentalists contend that any changes would weaken
wetlands protection, while many landowners say that changes are needed to make the
regulatory program workable again. Some also argue that the CWA should compensate
landowners whose property is adversely affected by regulatory "takings" due to Section 404
requirements, since an estimated 74% of all remaining wetlands are on private lands. During
the last three Congresses, the continuing focus on Section 404 effectively overshadowed
congressional consideration of other portions of the Act and was a key reason why no action
on comprehensive reauthorization legislation occurred.
Two developments have pushed wetlands onto the congressional agenda recently. One
is a January 1997 Federal District Court decision, upheld by an appeals court in June 1998,
that voided the so-called “Tulloch” rule, issued by the Corps in 1993, which expanded the
scope of regulation to include certain landclearing and excavation activities (American Mining
Congress v. U.S. Army Corps of Engineers, No. 93-1754, Jan. 23, 1997 (D.D.C.)). Corps
officials view the ruling as a major setback for the regulatory program, as do
environmentalists. Industry groups support the decision. For now, the ruling leaves unsettled
the scope of the Corps' authority to regulate certain activities. The second development was
the Corps’ reissuance in December 1996 of nationwide permits, which are a key means by
which the Corps minimizes the burden of its regulatory program. In the 1996 revisions, the
Corps made changes to strengthen the environmental restrictions on one of the permits that
has been most controversial, Nationwide Permit 26 (NWP 26). The changes to this permit
pleased wetland protection advocates but were opposed by development and commercial
interests who contend that permitting will now be more burdensome. Further, in March 2000,
the Corps issued six new permits to entirely replace NWP 26, which will take effect June 7.
The replacement permits have been criticized both by developers, who say the new permits
would be of little benefit to them, and environmentalists, who say the permits are too
expansive and would result in environmental damage to wetlands. (For more information, see
CRS Report 97-223, Nationwide Permits for Wetlands Projects: Permit 26 and Other Issues
and Controversies.)
Wetlands policy issues were addressed in P.L. 106-60, the FY2000 Energy and Water
Development appropriations bill. As approved by the House in July 1999, this bill (H.R. 2605)
included two provisions. One would have required the Corps to modify a recently-established
administrative appeals process for certain Corps regulatory decisions to allow unsuccessful
appellants to directly challenge the decisions in court (prior to a final permit decision). The
Administration opposed this provision, saying that it would impose excessive burdens on the
Corps and the courts, while landowner and developer groups favor it. The final bill included
language providing that $5 million in additional funds for the Corps’ regulatory program in
FY2000 shall be used to establish an administrative process for appeals of jurisdictional
determinations by the Corps but deleted the House provision that would have made such
decisions directly appealable to federal courts.
The House-passed bill also included a provision to require the Corps to submit a study
on the workload impact and compliance costs of replacement permits for NWP 26, but no
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later than December 30. Landowner and developer groups supported the House-passed
provision, contending that the costs and impacts should be better identified before revised
permits are issued, but the Administration opposed it, saying that the study was unnecessary
and, even with a December 30 deadline, would increase wetlands loss in the nation by
delaying issuance of replacement permits. The final bill modified the House language by
directing the Corps to study the workload impacts and costs of compliance of the proposed
replacement permits, but dropped language that would have required submission of a report
to Congress before publication of final permits.
Management of Nonpoint Source Pollution
Nonpoint source pollution is diffuse runoff of pollutants from farm lands, forests, city
streets, construction sites, mines, and other areas. As the more traditional point sources of
pollution (from industry and sewage treatment plants) are controlled, nonpoint source
pollution represents a larger and more pervasive portion of total water quality problems. EPA
estimates that nonpoint sources are responsible for more than 50% of water quality standard
violations and that agricultural sources contribute 80% of the violations from nonpoint
sources. Pollutants vary widely and include sediments and other conventional (e.g., nutrients)
and toxic wastes that degrade water quality. In broad terms, EPA views nonpoint source
pollution and similar types of pollution that are intermittent in nature and are related to wet
weather events (such as urban stormwater runoff and sewer overflows, discussed below) as
the largest remaining threat to water quality nationwide.
The 1987 amendments established the first comprehensive program to address nonpoint
source pollution problems in a new Section 319 of the Act. While the Act previously had
provided for state and regional planning to address all sources and types of pollution,
nonpoint sources have been viewed as so diverse and site-specific that they are not amenable
to national standards or controls. Moreover, controlling nonpoint sources typically requires
controlling individual actions associated with land use, decisions generally made by state and
local governments. Nonpoint source controls are difficult because the diffuse and intermittent
nature of the sources makes it hard to quantify individual contributions and because
regulatory authority for implementing and enforcing controls relies on local authority.
Nevertheless, Section 319 reflects a widespread recognition that failure to manage nonpoint
sources will prevent achieving the nation’s overall water quality objectives.
Section 319 consists of three elements. First, states were required to assess the extent
of nonpoint source-related water quality impairments. Second, they were to develop and
implement plans for managing nonpoint sources. Third, Section 319 authorized $400 million
in grants to states for plan implementation. After several years of implementing the 319
program, EPA and states began discussions on how to make administrative changes that
would result in more effective control of nonpoint source pollution. EPA wanted states to
review and revise their programs to achieve specific elements and goals, while states desired
more flexibility and relief from oversight. In May 1996, EPA issued revised program
guidance, based on negotiations with states, that is intended to streamline the 319 program
and to make it more effective and responsive. States that meet criteria in the guidance can
be designated as leadership or Tier I states, making them eligible for incentives such as multi-
year grants, reduced reporting, and self-assessment by states themselves.
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The approach embodied in Section 319 reflects belief that, because the sources of
nonpoint pollution are diverse, as are the geographic areas it affects, management solutions
are best if they are tailored to local conditions, not dictated through national rules and
regulations. Nonetheless, Congress and others have been reviewing the adequacy of EPA and
state activity to implement Section 319 and the possible need for program modification.
Pressure to address nonpoint pollution issues more expressly in the Act has grown for several
reasons. First, increased public scrutiny of impaired waters and the TMDL provisions of the
Act (discussed above) focuses attention on what controls states might necessarily impose on
both nonpoint and point sources to achieve standards in waters that remain polluted. Second,
the Administration's pending strategy to address animal waste problems (also discussed
above) envisions using incentive-based and voluntary measures by the agricultural sector to
achieve greater control of agricultural runoff that adversely affects water quality. Greater
scrutiny of nonpoint pollution, including agricultural contributions, may occur as this strategy
is developed and implemented. In a CWA reauthorization initiative, Congress may address
agricultural pollution problems specifically. In addressing nonpoint pollution issues, a key
question is whether and how to establish programs in the CWA with minimum standards to
continue progress towards water quality goals, while providing flexibility and incentives for
sources to manage polluted runoff.
Funding Municipal Wastewater Treatment
The Act’s program of financial aid for municipal wastewater treatment plant
construction is a central feature of the law. Since 1972 Congress has provided $69 billion to
assist cities in achieving requirements for secondary treatment of municipal sewage
(equivalent to 85% reduction of wastes), or higher where required by local water quality
conditions. State and local governments have spent more than $25 billion of their own funds,
as well. Nevertheless, funding needs remain very high: an additional $139.5 billion
nationwide over the next 20 years for all types of projects eligible for funding under the Act,
according to the most recent estimate by EPA and the states completed in 1996 (the report
is available from EPA via [http://www.epa.gov/owm/toc.htm]). EPA is currently completing
a new study, called the Gap Analysis, to assess the difference between current federal funding
for CWA programs and total funding needs. Drafts of this analysis reportedly indicate that,
over the next two decades, the United States needs to spend $300 billion to replace existing
water infrastructure systems and to build new ones. According to the new data, by the year
2020, the United States will need to spend $21 billion per year to meet capital expenditures
for wastewater treatment, compared with about $9.4 billion being spent annually now. At
issue has been how to assist states and cities, especially in view of such high projected funding
needs.
The 1987 amendments initiated a program of grants to capitalize State Water Pollution
Control Revolving Funds (SRFs), or loan programs. This new Title VI program replaced the
previous categorical grants program, under which the federal share was 55% of project costs
and localities were not obligated to repay federal funds that they received. Under the
revolving fund concept, monies used for construction will be repaid by loan recipients to the
states, to be recycled for future construction in other communities, thus providing an ongoing
source of financing. States are required to deposit a 20% match of the federal amount. The
intent of the 1987 amendments was that federal contributions to SRFs would assist in making
a transition to full state and local financing by FY1995. The essential tradeoff embodied in
these provisions was that states would have greater flexibility to set priorities and administer
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funding in exchange for an end to federal aid after FY1994. (For additional information, see
CRS Report 98-323, Wastewater Treatment: Overview and Background.)
All states have established the legal and procedural mechanisms to administer the new
loan programs and are now eligible to receive SRF capitalization funds under Title VI. Some
with prior experience using similar financing programs moved quickly, while others had
difficulty in making a transition from the previous grants program to one that requires greater
financial management expertise for all concerned. Moreover, many states have complained
that the SRF program is unduly complicated by federal rules — some contained in the statute,
others in EPA guidance — even though states were intended to have greater flexibility.
Congressional oversight since 1987 has examined the progress towards reducing the backlog
of wastewater treatment facilities needed to achieve the Act’s water quality objectives, but
newer estimates of future funding needs, discussed above, are drawing increased attention
from Members of Congress and others.
Small communities and states with large rural populations have experienced the largest
share of problems with the SRF program. Many small towns did not participate in the
previous grants program and consequently are likely to require major projects to achieve
compliance with the law. Yet these communities often lack an industrial tax base and thus
face the prospect of very high per capita user fees, if their citizens are required to repay the
full capital cost of sewage treatment projects. (For additional information, see CRS Report
98-64, Rural Water Supply and Sewer Systems: Background Information.)
The General Accounting Office has identified several factors affecting states’ ability to
lend their SRF funds, including (1) lack of experience in some states in managing such
programs; (2) financial factors, such as the inability of small communities to afford SRF loans,
and the ability of larger cities to borrow at lower rates directly from the bond market; and (3)
various state-specific factors. Some Members of Congress have expressed concern that states
have been unable to make loans fast enough to keep pace with congressional appropriations,
leading to suggestions that the SRF program should be restricted. States are strong
supporters of the SRF program and contend that inexperience plus other factors, such as
resistance by some communities to the shift from grants to a loan program, contributed to
initial delays in some states.
While initial intent was to phase out federal support for this program, Congress has
continued to appropriate grants to the states, providing an average of $1.6 billion annually in
recent years. Recently, the SRF provisions have been less controversial than others in the
Act, such as wetlands reform, because of apparent general agreement on the need to extend
funding assistance (as reflected in continued appropriations). The CWA's SRF provisions also
were a model for similar provisions added to the Safe Drinking Water Act in 1996 (P.L. 104-
182). However, because remaining clean water funding needs are still so large, at issue is
whether and how to extend SRF assistance to address those needs, how to allocate SRF funds
among the states, and how to modify the program to aid priority projects. Of particular
concern is assisting small and economically disadvantaged communities that have had the
most difficulty in adjusting from the Act's previous categorical grants program to loans.
There also is interest in availability and adequacy of SRF funding for projects dealing with
combined and separate sewer overflow problems (discussed below). Several SRF
reauthorization bills have been introduced (H.R. 2720, S. 188, S. 1699) and hearings have
been held, but no further action on these proposals has occurred.
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Other Issues
Other issues could receive attention as part of the water quality agenda.
Stormwater. Stormwater discharge systems are the pipes and sewer lines that carry
rainwater or snow melt (but not sanitary wastes) away from urban areas and commercial and
industrial facilities. Although stormwater is discharged from pipes, it is intermittent and
weather-dependent. Thus, it has characteristics of both point and nonpoint pollution.
Although stormwater can transport significant amounts of pollutants, it had been largely
unregulated until the 1987 amendments directed EPA to implement a specific permit program
for stormwater discharges from industrial sources and municipalities. Delays in issuing
regulations, coupled with high compliance costs (especially for some cities), have been
frustrating and controversial. Industrial facilities and cities with populations of 100,000 or
more are in the process of obtaining and complying with permits under EPA’s current
regulations. Smaller cities were to comply with rules that EPA was to have issued by October
1993. However, EPA missed that deadline and subsequently the agency worked with an
advisory committee of stakeholders to develop rules for regulating smaller stormwater
dischargers. Draft rules were proposed in December 1997, and final rules were issued in
October 1999. (For further information, see CRS Report 97-290, Stormwater Permits: Status
of EPA’s Regulatory Program.) Questions of how small sources will be regulated and the
general complexity of the permit program have brought stormwater back as a legislative issue.
Modifying current law to provide regulatory relief, particularly to municipalities, was a
legislative issue in the 104th Congress. In the 106th Congress, bills dealing with local
government stormwater programs have been introduced (H.R. 3294, S. 1706). These bills
would limit and clarify local governments’ liability for certain types of stormwater discharges.
Combined and separate sewer overflows. Nearly 1,200 municipalities have combined
sewers where domestic sanitary sewage, industrial wastes, infiltration from groundwater, and
stormwater runoff are collected and treated together. These systems serve approximately 40
million persons, mainly in older urban and coastal cities. 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.
For a long time, CSOs were not considered a high regulatory or permitting priority for
EPA or states. There are no express provisions in the Act dealing with CSOs, except to the
extent that they are subject to permit requirements and deadlines as are other point sources.
Congress has recognized the impacts of CSO discharges, however, and legislative options to
address the CSO issue directly have been discussed.
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In both the 103rd and 104th Congresses, consensus began to emerge on modifying the
CWA to endorse EPA’s current permitting strategy which was developed in 1994 after
negotiations with key stakeholder groups. As a first priority, EPA’s strategy calls for
eliminating overflows from combined sewers that occur even in the absence of rainfall (due
to overcapacity of the sewers) and then calls for states and cities to address CSOs based on
impacts on water quality and human health. Cities also were to implement nine minimum
controls by Jan. 1, 1997 (e.g., proper operation and maintenance programs for sewer systems
and pollution prevention programs). The EPA strategy does not contain a deadline for
issuance of permits or for controlling CSOs. Deadlines will be contained in plans developed
by permitting authorities. Controls are available and generally are based on combinations of
management techniques (such as temporary retention of excess flow during storm events) and
structural measures (ranging from screens that capture solids to construction of separate
sewer systems). EPA officials stated in May 1998 that only about one-half of the cities with
combined sewers have implemented the minimum measures called for in the 1994 strategy.
EPA is now working with states to remind cities of their obligations to address CSO
problems. However, a formal enforcement strategy is not contemplated.
A more recent issue of concern to some cities is the problem of overflows from
municipal separate sanitary sewers (SSOs) that are not CSOs and do not transport
stormwater. 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 approximately 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. Agency officials are working on a document that
will detail regulatory priorities and circumstances appropriate for enforcement action.
Funding CSO and SSO projects is a major concern of states and cities. On June 22,
1999, a House Transportation and Infrastructure subcommittee held a hearing on CSO, SSO,
and related wet weather issues. The subcommittee heard testimony on the need for additional
federal funding to help municipalities address wet weather-related problems. A number of
witnesses and subcommittee members criticized the Administration's FY2000 budget for clean
water infrastructure, which requested 40% less than was appropriated for FY1999 (see CRS
Issue Brief IB89102, Water Quality: Implementing the Clean Water Act). Witnesses
addressed two legislative proposals (H.R. 828 and a bill introduced after the hearing, H.R.
3570, advocated by a coalition of municipal and technical organizations) which would
authorize CWA grant funding for wet weather sewerage projects and allow regulatory
flexibility for such projects. Witnesses from municipalities and several other interest groups
endorsed these proposals, but an EPA witness opposed them, objecting to creation of new
grant programs and to provisions which EPA believes would delay correcting CSO and SSO
problems. Testimony is available at [http://www.house.gov/transportation/ctisub5.html].
Senate legislation similar to H.R. 828 has been introduced (S. 914) and was discussed at an
October 1999 Senate Environment subcommittee hearing.
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CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress. Committee on Transportation and Infrastructure. Subcommittee on Water
Resources and Environment. Reauthorization of the Federal Water Pollution Control
Act. Hearings on H.R. 961, held February 9, 16, 21, 24, March 7, 9, 1995. 104th
Congress, 1st session. Washington, U.S. Govt. Print. Off. 2 vols., 3149 p. (104-13)
——
Meeting Clean Water and Drinking Water Infrastructure Needs. Hearing, April 23,
1997. 105th Congress, 1st session. Washington, U.S. Govt. Print. Off., 437 p. (105-
18)
——
Beaches and Ocean Legislation. Hearing, Aug. 6, 1998. 105th Congress, 2nd session.
Washington, U.S. Govt. Print. Off., 388 p. (105-81)
—— Governors’ Perspectives on the Clean Water Act. Hearing, Feb. 13, 1999. 106th
Congress, 1st session. Washington, U.S. Govt. Print. Off., 56 p. (106-12)
U.S. Congress. Senate. Committee on Environment and Public Works. Clean Water Action
Plan. Hearing held May 13, 1999. 106th Congress, 1st session. Washington, U.S. Govt.
Print. Off., 148 p. (S. Hrg. 106-389)
FOR ADDITIONAL READING
Goplerud, C. Peter. “Water Pollution Law: Milestones from the Past and Anticipation of
the Future.” Natural Resources & Environment, v. 10, no. 2, Fall 1995: 7-12.
Houck, Oliver A. “TMDLs: The Resurrection of Water Quality Standards-Based
Regulation Under the Clean Water Act.” Environmental Law Reporter News &
Analysis, v. 27, no. 7, July 1997: 10329-10344.
Knopman, Debra S. and Richard A. Smith. “20 Years of the Clean Water Act, Has U.S.
Water Quality Improved?” Environment, v. 31, no. 1, January/February 1993: 16-20,
34-41.
Loeb, Penny. "Very Troubled Waters." U.S. News & World Report, v. 125, no. 12,
September 28, 1998: 39, 41-42.
U.S. Environmental Protection Agency. National Water Quality Inventory: 1994 Report to
Congress. Washington, 1995. “EPA841-R-95-005" 497 p.
—— “Clean Water Agenda, Remaking the Laws that Protect Our Water Resources.” EPA
Journal, v. 20, no. 1-2, summer 1994. Whole issue.
—— Office of Water. Environmental Indicators of Water Quality in the United States.
Washington, 1996. “EPA841-R-96-002" 26 p.
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U.S. General Accounting Office. State Revolving Funds Insufficient to Meet Wastewater
Treatment Needs. (GAO/RCED-92-35) January 1992. 83 p.
—— Many [Water Pollution] Violations Have Not Received Appropriate Enforcement
Attention. (GAO/RCED-96-23) March 1996. 23 p.
—— State Revolving Fund Loans to Improve Water Quality. (GAO/RCED-97-19)
December 1996. 20 p.
—— Key EPA and State Decisions Limited by Inconsistent and Incomplete Data.
(GAO/RCED-00-54) March 2000. 73 p.
CRS Issue Briefs
CRS Issue Brief IB89102. Water Quality: Implementing the Clean Water Act, by Claudia
Copeland. (Updated regularly)
CRS Issue Brief IB97014. Wetland Issues, by Jeffrey Zinn and Claudia Copeland. (Updated
regularly)
CRS Reports
CRS Report 96-283. Reinventing the Environmental Protection Agency and EPA’s Water
Programs, by Claudia Copeland.
CRS Report 98-946. Clean Water Act Issues in the 106th Congress, by Claudia Copeland.
CRS Report 97-223. Nationwide Permits for Wetlands Projects: Permit 26 and Other Issues
and Controversies, by Claudia Copeland.
CRS Report 98-150. The Clean Water Action Plan: Background and Early Implementation,
by Claudia Copeland.
CRS Report 98-745. Clean Water Action Plan: Budgetary Initiatives, by Claudia Copeland.
CRS Report 98-451. Animal Waste Management and the Environment: Background for
Current Issues, by Claudia Copeland and Jeffrey Zinn.
CRS Report 97-831. Clean Water Act and Total Maximum Daily Loads (TMDLs) of
Pollutants, by Claudia Copeland.
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