Order Code IB10069
Issue Brief for Congress
Received through the CRS Web
Clean Water Issues in the 107th Congress
Updated January 9, 2003
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Legislative and Clinton Administration Activity Since P.L. 100-4
Issues in the 107th Congress
Water Infrastructure Funding
TMDLs and State Water Quality Standards
Agricultural Impacts on Water Quality
Regulatory Protection of Wetlands
Other Issues: Wet Weather Pollution Problems
Combined and separate sewer overflows
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
FOR ADDITIONAL READING
Clean Water Issues in the 107th Congress
Key water quality issues currently include: actions to implement existing provisions of the Clean Water Act (CWA), whether
additional steps are necessary to achieve
overall goals of the Act, and the appropriate
federal role in guiding and paying for clean
water infrastructure and other activities. In the
second session of the 107th Congress, House
and Senate committees approved legislation to
reauthorize water infrastructure funding programs (H.R. 3930, S. 1961), but no further
action occurred. Congress did pass a bill with
funding to clean up contaminated sediments in
the Great Lakes (H.R. 1070, P.L. 107-303).
CWA amendments in 1987, the last
comprehensive revision, initiated a program of
grants to capitalize State Water Pollution
Control Revolving Funds, or SRF loan programs, for wastewater treatment plant
construction. States were to have flexibility in
exchange for a phaseout of federal assistance
after FY1994. However, difficulties that some
states and small towns have had in implementing the SRF program, coupled with financing
needs that are estimated to exceed $130 billion nationwide, have made wastewater
treatment funding an important issue.
Congress remains interested in implementation of an existing provision of the Act
that requires states to set “total maximum
daily loads” (TMDLs) of pollution to ensure
that water quality standards are attained. Rules
issued by EPA in July 2000 to strengthen the
TMDL program have been very controversial.
The Bush Administration has decided to
review and revise the Clinton rules.
Congressional Research Service
Also of interest are EPA and USDA actions during the Clinton Administration to
better manage waste discharges from animal
feeding operations, which can pollute waterways. Congress has been examining impacts
on agricultural producers and how the programs will be funded.
Programs that regulate activities in wetlands, such as Section 404 of the CWA, have
been criticized by landowners for intruding on
private land-use decisions and imposing
excessive economic burdens. Environmental
groups, who view these programs as essential
for maintaining the health of wetland ecosystems, are concerned about a 2001 Supreme
Court decision that narrowed regulatory protection of wetlands, as well as recent administrative actions which they believe will likewise diminish protection. Because of continuing wide disagreement about the nature of
needed reforms, it has been difficult for
policymakers to reach consensus on legislative
Monitoring data have identified wet
weather discharges to rivers and lakes (including urban stormwater and sewer overflows)
as a serious threat to water quality. Clean
water programs are now focusing on solving
these wet weather pollution problems. At
issue is whether and how to specify wet weather programs in the Act and how to pay for
related pollution control projects.
This issue brief will not be updated. For
information on legislative activity in the 108th
Congress, see CRS Issue Brief IB10108,
Clean Water Act Issues in the 108th Congress.
˜ The Library of Congress
MOST RECENT DEVELOPMENTS
The 107th Congress did not enact comprehensive legislation affecting the Clean Water
Act. However, in November, the House and Senate gave final approval to the Great Lakes
Legacy Act (H.R. 1070, P.L. 107-303). It authorizes $250 million for EPA to carry out
projects to remediate sediment contamination in the Great Lakes.
On September 30, 2002,EPA released a study, called the Gap Analysis, which estimates
that over the next 20 years and assuming no growth in investment, there will be a $122
billion gap between current capital spending and projected needs for wastewater
infrastructure projects. Even before this report, Senate and House committees approved
legislation to extend current water infrastructure financing programs. On March 20, the
House Transportation and Infrastructure Committee approved a bill to reauthorize the
Clean Water Act’s State Revolving Fund (SRF) financing program (H.R. 3930). On May 17
the Senate Environment and Public Works Committee approved separate legislation to
reauthorize the Act’s SRF program and make a number of changes to update the program
(S. 1961, S.Rept. 107-228). Because of controversies over provisions of both bills (especially
allocation of funds among the states and prevailing wage requirements), no further action
occurred before the 107th Congress adjourned. Since the September 11, 2001, terrorist
attacks in the United States, congressional attention has focused on security, preparedness,
and emergency response issues, including at the nation’s water infrastructure facilities (both
drinking water and wastewater).
BACKGROUND AND ANALYSIS
The principal law that deals with polluting activity 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 plant construction. Both
parts are supported by research activities, plus permit and enforcement provisions. Programs
at the federal level are administered by the Environmental Protection Agency (EPA); state
and local governments have major responsibilities to implement those programs.
The objective declared in the 1972 Act is to restore and maintain the chemical, physical,
and biological integrity of the nation’s waters. 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 been fully achieved, considerable progress has been made, especially in controlling
conventional pollutants (suspended solids, bacteria, and oxygen-consuming materials)
discharged by industries and municipal sewage treatment plants.
Progress has been mixed in controlling discharges of toxic pollutants (heavy metals,
inorganic and organic chemicals), which are more numerous and can harm human health and
the environment even when present in minute amounts — at the parts-per-billion level.
Moreover, efforts to control pollution from diffuse sources, termed nonpoint source pollution
(rainfall runoff from urban, suburban, and agricultural areas, for example) are more recent,
following the traditional focus on point source pollution (discharges from industrial and
municipal wastewater treatment plants). Overall, data reported by EPA and states indicate
that 39% of river and stream miles assessed by states and 45% of assessed lake acres do not
meet applicable water quality standards and are impaired for one or more desired uses.
Forty-four 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
chemical contaminants in lakes, rivers, and coastal waters, 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 funding of wastewater treatment
assistance expired in FY1994. None of these programs has lapsed, however, as Congress has
continued to appropriate funds to implement the Act.
The 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 interest groups and the
public, but lately some have questioned whether actions to achieve further benefits are worth
the costs. Such criticisms have come especially from industry, which has been the longstanding focus of the Act’s regulatory programs and which often opposes imposition of
additional stringent and costly requirements. Criticism also has come from developers and
property rights groups who contend that federal regulations (particularly the Act’s wetlands
permit program) are a costly intrusion on private land-use decisions. States and cities have
traditionally supported water quality programs and federal funding to assist them in carrying
out the law, but recently many have opposed CWA measures that they fear might impose
new unfunded mandates. Many environmental groups believe that further fine-tuning to
strengthen the Act is needed to maintain progress achieved to date and to address remaining
water quality problems.
Legislative and Clinton Administration Activity Since P.L. 100-4
Following enactment of amendments in 1987, no major CWA legislative activity
occurred until the 104th Congress, when the CWA was one of the first environmental laws
to receive congressional attention. The House approved a comprehensive reauthorization
bill, H.R. 961, in May 1995. It would have amended many of the regulatory and standards
provisions of the law, required the Environmental Protection Agency (EPA) to use extensive
new risk assessment and cost-benefit analysis procedures, and increased flexibility with
regulatory relief from current clean water programs. The proposals in H.R. 961 were among
the early efforts of the Republican majority in the 104th Congress to make changes in
environmental laws and regulations and engendered extensive controversy. The Senate did
not take up that bill or other CWA legislation during the 104th Congress.
In the 105th Congress, committees did not initiate legislative activity on clean water
issues, and no comprehensive reauthorization legislation was introduced. Committee
leaders, especially in the House, said they would do so only if presented with consensus
proposals that did not raise controversies like those associated previously with H.R. 961.
House and Senate subcommittees held hearings on water infrastructure and wetlands issues,
but no further congressional activity occurred.
Likewise, in the 106th Congress, committees did not pursue comprehensive
reauthorization legislation, but action was taken on bills dealing with specific water quality
issues. Congress passed a bill to strengthen protection of coastal recreation waters through
upgraded water quality standards and coastal waters monitoring programs (P.L. 106-284).
Congress also passed a bill (P.L. 106-457) which reauthorized several existing CWA
programs (i.e., Chesapeake Bay cleanup, clean lakes, and the National Estuary Program).
Congress passed a bill to authorize CWA grant funding for wet weather sewerage projects
(included as a provision of the FY2001 Consolidated Appropriations bill, P.L. 106-554).
Further, the House and Senate also included limitations in appropriations laws intended to
restrict implementation of the Act’s Total Maximum Daily Load program (see discussion
below, TMDLs and State Water Quality Standards). (For additional information, see
CRS Report RL30908, Clean Water Act Issues and Legislation in the 106th Congress.)
During its tenure, the Clinton Administration did not offer proposals to reauthorize the
CWA. EPA Administrator Carol Browner was quoted in press reports as saying that the
agency did not plan 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 Clinton Administration’s environmental protection
principles. Instead, EPA began a number of agency-wide and program-specific reforms
focusing on flexibility and “common sense” approaches to regulation, many of which affect
implementation of water quality programs. In 1998, the Clinton Administration released a
multi-agency Clean Water Action Plan intended to build on the environmental successes of
the Act and address many of the nation’s remaining water quality challenges. Its purpose
was to coordinate federal efforts to achieve three goals: enhanced protection against public
health threats posed by water pollution, more effective control of polluted runoff, and
promotion of water quality protection on a watershed basis. Components of the Plan
consisted mainly of existing programs that were proposed to receive increased funding or be
accelerated with performance-specific deadlines. Besides EPA, other involved agencies were
the Departments of Agriculture, Commerce, Interior, and the U.S. Army Corps of Engineers.
Complementing the Plan, President Clinton’s FY1999 budget submission identified it
as a high priority. That year’s was the first of three Clinton budgets that proposed funds to
implement the Plan. During the years FY1999-FY2001, Congress provided a total of $1.24
billion in increases for Plan activities above FY1998 baseline amounts. Each year’s budget
request was higher than the preceding year’s, and while Congress agreed to some increases,
it appropriated amounts less than the Administration had sought. (For information, see CRS
Report 98-150, Clean Water Action Plan: Background and Early Implementation.)
Issues in the 107th Congress
Key water quality issues include: evaluating actions to implement existing provisions
of the Clean Water Act, assessing whether additional steps are necessary to achieve overall
goals of the Act, and defining the appropriate federal role in guiding and paying for clean
water activities. Prospects for initiatives to comprehensively amend the Act have for some
time stalled over whether and exactly how to change the law. Many issues that might be
addressed involve making difficult tradeoffs between impacts on different sectors of the
economy, taking action when there is technical or scientific uncertainty, and allocating
governmental responsibilities for implementing the law.
Many observers have speculated that, rather than taking up comprehensive
reauthorization legislation as it had traditionally done, Congress would consider only narrow
bills to extend or modify selected CWA programs, as was the case in the 106th Congress. If
broader clean water issues receive attention, it could focus on implementation of current
programs for developing total maximum daily loads (TMDLs) to restore pollution-impaired
waters and impacts of agricultural activities on water quality. The Act’s wetlands permit
program, a pivotal and contentious issue in the recent past, also remains on the legislative
agenda for some Members.
More generally, following the September 11, 2001 terrorist attacks on the World Trade
Center and the Pentagon, congressional attention has focused on security, preparedness, and
emergency response issues. Among the many topics of interest is protection of the nation’s
water infrastructure facilities (both drinking water and wastewater) from possible physical
damage, biological/chemical attacks, and cyber disruption. (For information, see CRS
Report RS21026, Terrorist and Security Issues Facing the Water Infrastructure Sector.)
Policymakers are considering a number of legislative options in this area, including enhanced
physical security, communication and coordination, and research. In October 2002, the
House passed legislation to provide $200 million in grants for security activities at
wastewater treatment plants (H.R. 5169). Similar legislation was introduced in the Senate
(S. 3037), but no further action occurred. Congress did enact legislation authorizing $160
million in grants for drinking water utilities to conduct vulnerability assessments (P.L. 107188).
While the 107th Congress focused on water infrastructure legislation (see below), it did
pass one bill amending the CWA. Before adjourning in November, the House and Senate
gave final approval to the Great Lakes Legacy Act (H.R. 1070). It amends the existing Great
Lakes provision of the CWA (Section 118) to authorize $250 million for EPA to carry out
projects to remediate sediment contamination in the Great Lakes. The bill also revises and
reauthorizes CWA provisions concerning the Lake Champlain Basin Program.
Miscellaneous provisions revive a number of CWA reports to Congress that had been sunset
under a previously-passed law (P.L. 104-66) and allow states to use Section 319 grant funds
for stormwater management projects in FY2003. President Bush signed H.R. 1070 on
November 27 (P.L 107-303).
Water Infrastructure Funding
The Act’s program of financial aid for municipal wastewater treatment plant
construction is a central feature of the law. At issue today is how the federal government will
assist states and cities, especially in view of the high projected funding needs that exist.
Since 1972 Congress has provided $75 billion to assist cities in constructing projects to
achieve the Act’s requirements for secondary treatment of municipal sewage (equivalent to
85% reduction of wastes), or more stringent treatment where required by local water quality
conditions. The CWA does not authorize funds for operation or maintenance of completed
projects. State and local governments have spent more than $25 billion of their own funds
for construction, as well. Nevertheless, funding needs remain very high: an additional
$139.5 billion nationwide by 2016 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. On
September 30, 2002, EPA released a study, called the Gap Analysis, which assesses the
difference between current spending for wastewater infrastructure and total funding needs
(both capital and operation and maintenance). EPA estimates that, over the next two
decades, the United States needs to spend nearly $390 billion to replace existing wastewater
infrastructure systems and to build new ones. Funding needs for operation and maintenance
are an additional $148 billion, the Agency estimates. According to the study, if there is no
increase in investment, there will be about a $6 billion gap between current annual capital
expenditures for wastewater treatment ($13 billion annually) and projected spending needs.
The study also estimates that, if wastewater spending increases by 3% annually, the gap
would shrink by nearly 90% (to about $1 billion annually). In addition to the Gap Analysis,
EPA and states are preparing a new wastewater needs survey, as required by the CWA,
which will update the 1996 survey. Outside groups, including a coalition called the Water
Infrastructure Network, have offered proposals which have attracted some congressional
interest for a multi-billion dollar investment program in wastewater and drinking water
infrastructure. (For additional information, see CRS Report RL31116, Water Infrastructure
Funding: Review and Analysis of Current Issues.)
The 1987 amendments initiated a program of grants to capitalize State Water Pollution
Control Revolving Funds (SRFs), or loan programs. This program in Title VI of the Act
replaced the previous categorical grants program, under which the federal share was 55% of
project costs and localities were not obligated to repay federal funds that they received.
Under the revolving fund concept, monies used for construction will be repaid by borrowing
communities to the states, to be recycled for future construction in other communities, thus
providing an ongoing source of financing. States must provide a 20% match of the federal
amount. The intent of the 1987 amendments was that federal contributions to SRFs would
assist in making a transition to full state and local financing by FY1995. The essential
tradeoff was that states would have greater flexibility to set priorities and administer funding
in exchange for ending federal aid after FY1994. (For additional information, see CRS
Report 98-323, Wastewater Treatment: Overview and Background.) In the 107th Congress,
committees considered but did not pass legislation to address these issues (see below).
All states have established the mechanisms to administer the new loan programs and
have been receiving SRF capitalization funds under Title VI for several years. 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, even though Congress had intended that
states were 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.
While initial intent was to phase out federal support for this program, Congress has
continued to appropriate SRF capitalization grants to the states, providing an average of
$1.35 billion annually in recent years. The SRF provisions have been less controversial than
others in the Act, such as wetlands reform, because of apparent general agreement on the
need to 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 (SDWA) in 1996 (P.L. 104-182). However, because remaining clean water funding
needs are still so large, at issue is whether and how to extend SRF assistance to address those
needs, how to allocate SRF funds among the states, and how to prioritize projects and
funding. Bush Administration officials have said that infrastructure funding needs go beyond
what the federal government can do on its own. Of particular concern is assisting small and
economically disadvantaged communities that have had the most difficulty in adjusting from
the Act’s previous categorical grants program to SRF loans. There also is interest in
availability of SRF funding for projects dealing with combined and separate sewer overflow
problems (discussed below). In the 106th Congress, several SRF reauthorization bills were
introduced and hearings were held, but no further action occurred.
Congressional Activity. During the first session of the 107th Congress, committees
held several hearings on water infrastructure financing and need issues: the Senate
Environment and Public Works Committee held hearings in March and October 2001, and
in the House, separate hearings were held on March 28 by the Transportation and
Infrastructure Committee and the Energy and Commerce Committee.
In the second session, attention turned to specific legislative proposals. On March 13,
the House Transportation and Infrastructure Subcommittee on Water Resources and
Environment held a hearing on H.R. 3930, a bill to authorize $20 billion for the CWA SRF
program through FY2007 and make several programmatic changes, including to the method
for allotting SRF funds to states. At the hearing, EPA witnesses said that the Bush
Administration opposes the high authorization level in the bill, preferring a lower funding
level that would allow SRFs to maintain the current activity level of $2 billion per year. The
full committee approved H.R. 3930 with the $20 billion/5-year funding on March 20. The
committee approved one amendment to provide that Davis-Bacon Act prevailing wage
requirements apply to projects and activities funded by capitalization grants and recycled
monies in an SRF.
In February, the Senate Environment Committee held two hearings on several bills to
reauthorize the CWA water infrastructure program. The committee heard testimony on S.
252 (a bill to authorize $15 billion in SRF appropriations, expand eligibilities, and authorize
SRF loan subsidies for financially distressed communities), S. 285 (to authorize use of SRF
monies for construction of water conservation and water quality improvements), S. 1044 (to
authorize grant assistance to Chesapeake Bay states for wastewater nutrient removal
projects), and S. 1961 (to authorize $20 billion in CWA SRF appropriations, incorporate
several provisions of the SDWA SRF program into the CWA such as loan subsidies for small
communities, and establish demonstration programs for innovations in technology and
alternative approaches to water quality or water supply management). S. 1961 also would
authorize $15 billion in SDWA SRF appropriations.
On May 17, the Senate committee approved an amended version of S. 1961 (S.Rept.
107-228). It authorizes $20 billion in CWA SRF capitalization grants for 5 years. The
committee adopted several amendments, including reauthorizing a wet-weather grant
program at $250 million a year for 5 years to remedy sewerage overflows (see discussion
below, Combined and separate sewer overflows), revising the Act’s formula for allocating
SRF capitalization grants among the states, and requiring the streamlining of SRF application
procedures. A number of issues were contentious during markup, including debate over an
amendment adopted by the committee to incorporate prevailing wage provisions under the
Davis-Bacon Act, debate over provisions in the bill which some Members argued place
excessive restrictions on SRF funding, and debate over the bill’s revised allocation formula.
No further action occurred on either H.R. 3930 or S. 1961, in large part due to
controversies over the Davis-Bacon Act and allocation formula issues in both measures. (For
information on these bills, see CRS Report RL31344, Water Infrastructure Financing
Legislation: Comparison of S. 1961 and H.R. 3930.) However, water infrastructure funding
legislation is expected to a priority in the 108th Congress.
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 involves
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. At issue today is controversies over implementation of the
existing TMDL program and regulatory revisions that EPA issued in July 2000 to strengthen
Since the late 1980s, citizen groups have filed more than 40 lawsuits in 38 states against
EPA and states for failure to fulfill the TMDL requirements of the Act. Of the lawsuits tried
or settled to date, 20 have resulted in court orders requiring expeditious development of
TMDLs under timeframes ranging from 8-1/2 to 13 years. The lawsuits have increased
public attention to the TMDL program and led EPA to seek ways to re-focus EPA’s and
states’ resources on TMDL activities, rather than litigation. In August 1999, EPA proposed
regulatory changes to strengthen the existing program. The proposal set forth criteria for
states, territories and Indian tribes to identify impaired waters and establish all TMDLs
within 15 years. It would require more comprehensive waterway assessments, cleanup plans,
and timetables for implementation.
The 1999 proposal became highly controversial because of issues such as potential
burdens on states, industries, cities and others to implement a revised TMDL program and
potential impacts on some agriculture and forestry sources which are not now subject to
CWA regulations. The controversies also drew congressional attention, and 13 congressional
hearings were held by the House and Senate Agriculture committees, the House
Transportation and Infrastructure Committee, and Senate Environment and Public Works
Committee during the 106th Congress. Committees and many Members expressed concern
about details of the TMDL requirements and deadlines and adequacy of resources for states
to develop TMDLs and related assessments. Several legislative proposals to modify the
Clean Water Act by explicitly exempting agriculture and forestry from the TMDL program
or to delay the rule were introduced. EPA attempted to respond to the widespread criticism
and signal flexibility on some of the most contentious points. In July 2000, EPA issued a
final revised rule, but controversies persist. The final rule builds on the current TMDL
regulatory program and adds details, specific requirements, and deadlines that require states
to implement plans to clean up polluted waters. It retains the basic elements of the 1999
proposal for more comprehensive identification of impaired waters, schedules and minimum
elements for TMDLs, and new public participation requirements. (For additional
information, see CRS Report 97-831, Clean Water Act and Total Maximum Daily Loads
(TMDLs) of Pollutants.)
TMDL issues were addressed in FY2001 appropriations bills. Prior to the July 4, 2000
congressional recess, the House and Senate approved a FY2001 Military Construction and
emergency supplemental appropriations bill (H.R. 4425, H.Rept. 106-710) that included a
provision to prevent EPA from spending any funds in FY2000 or FY2001 to finalize or
implement new TMDL rules. President Clinton signed the bill on July 13, 2000, in spite of
the TMDL provision, which the Administration opposed (P.L. 106-246). However, EPA
Administrator Browner signed the new TMDL rules 2 days earlier, on July 11, but delayed
the effective date until October 2001 when the limitation in P.L. 106-246 would expire. In
addition, the FY2001 appropriation act providing funds for EPA, P.L. 106-377, signed on
October 27, 2000, included report language mandating studies by the National Academy of
Sciences (NAS) and EPA on the scientific basis of the TMDL program and on the potential
costs to states and businesses of implementing the revised TMDL rules. The NAS report,
examining the role of science in the TMDL program, was issued June 15, 2001. It did not
specifically analyze the July 2000 revised regulations. The NAS panel concluded that
scientific knowledge exists to move forward with the TMDL program and recommended that
EPA and states use adaptive implementation for TMDL development. In many cases, the
report said, water quality problems and solutions are obvious and should proceed without
complex analysis. In other cases, solutions are more complex and require a different level
of understanding and something like phased implementation. A House Transportation
Committee subcommittee held a hearing on the NAS report on June 28, 2001. EPA issued
a draft report on costs of the 2000 TMDL program in August 2001, estimating that average
annual costs to states and EPA of developing TMDLs could be $63-$69 million, while
implementation costs for pollutant sources could be between $900 million and $4.3 billion
per year, depending on states’ actions. (For information, see CRS Report RL31091, The
Clean Water Act’s TMDL Program: Newly Presented Options and Cost Estimates.) The
General Accounting Office recently reported that inconsistent monitoring, data collection,
and listing procedures used by states to identify impaired waters have hindered efforts to
develop effective TMDL programs (Water Quality: Inconsistent State Approaches
Complicate Nation’s Efforts to Identify Its Most Polluted Waters, GAO-02-186).
In October 2001, the Bush Administration announced that it would delay the effective
date of the 2000 rules for 18 months (until May 2003) to allow EPA officials time to review
the rule and the recent NAS report. This action came after a federal court approved the
Administration’s request for a similar suspension of litigation which is challenging the
regulation (nearly a dozen interest groups have sued EPA over various parts of the TMDL
rule). In the interim, existing rules and requirements and court-sanctioned TMDL schedules
remain in place. A House Transportation and Infrastructure subcommittee held a hearing in
November 2001 to review issues of interest in development of a new rule. On December 20,
2002, EPA proposed to withdraw the July 2000 TMDL rule while it considers initiating an
entirely new rule or other options; no further timeframe was announced. EPA officials said
that implementation of the existing TMDL program will continue, but that additional time
beyond May 2003 is needed to decide whether and how to revise the current program.
Agricultural Impacts on Water Quality
A key element of the Clinton Administration’s Clean Water Action Plan was 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 waste. Animal waste is frequently applied to land for
disposal and to utilize the nutrient value of manure to benefit crops. If not managed properly,
it can pose risks to water quality and public health, contributing pollutants such as nutrients,
sediment, pathogens, and ammonia to the environment. At issue today are controversies over
programs and rules initiated by the Clinton Administration seeking to better control adverse
environmental impacts of agricultural activities.
Existing EPA rules, issued in the 1970s, require CWA discharge permits for the largest
AFOs, termed Confined Animal Feeding Operations (CAFOs, about 12,000 out of 375,000
total facilities nationwide). However, EPA acknowledges that compliance and enforcement
of these permit rules have been poor (fewer than one-fourth of covered facilities actually
have permits) and that the regulations themselves are outdated. In March 1999, EPA and
USDA issued a national AFO 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. It
proposed 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
implement voluntary nutrient management plans, while 15,000 to 20,000 CAFOs will be
required to develop the plans as part of CWA discharge permits. Also, EPA is working with
states on a 2-phase approach for issuing permits to animal feedlot operations: requiring
coverage of large-scale operations by permits by 2005; and revising existing regulations by
As part of that strategy (and to comply with a settlement agreement to update a number
of industry clean water standards), in December 2000, EPA proposed rules to increase the
number of CAFOs required to obtain CWA permits and to restrict land application of animal
wastes. A House Transportation and Infrastructure subcommittee held an oversight hearing
on this proposal on May 16, 2001. Issues that Congress has addressed include impacts and
costs imposed on the agricultural sector (especially small farmers), which for the most part
is not regulated by the Clean Water Act or other EPA programs; how the proposed
combination of regulatory and incentive-based measures in the National AFO Strategy will
achieve the goal of minimizing water pollution from confinement facilities and land
application of manure; the adequacy of agriculture’s relevant programs to support
implementation; and whether legislation is needed to define national rules and policies
regarding animal waste. (For additional information, see CRS Report RL30437, Water
Quality Initiatives and Agriculture.)
EPA issued final revised CAFO rules on December 16, 2002. The final rules are
generally regarded as less stringent than the December 2000 proposal. The most significant
new provision will require CAFOs to develop nutrient management plans that are intended
to keep livestock waste from entering nearby waters. Farmers are pleased that the rule scales
back some of the proposal, which would, for example, have required co-permitting of
corporate owners of livestock as well as of farmers who actually raise the animals.
Environmentalists, however, contend the rule relies too heavily on voluntary measures to
control runoff, instead of mandating strict compliance with water quality standards.
While the AFO strategy focused mainly on large facilities which are subject to CWA
permit requirements, other activities also are of interest. State and EPA survey data report
that uncontrolled polluted runoff from agriculture and city streets and storm sewers is the
leading cause of water quality impairment in the United States. EPA’s most recent National
Water Quality Inventory Report finds that these nonpoint sources of water pollution, along
with runoff from forestry and construction sites, land disposal activities, and deposition of
air pollution contaminants, contribute more than 50% of remaining water quality problems
in rivers, lakes, and coastal waters. Agriculture is believed to be responsible for the largest
portion of today’s water quality impairments due to polluted runoff–the main source
adversely affecting 48% of impaired river and stream miles and 41% of impaired lake acres,
according to EPA. Scrutiny of nonpoint pollution problems, including from agriculture, may
occur as policymakers assess steps to continue progress towards water quality goals.
Regulatory Protection of Wetlands
Restoring and protecting wetlands also was a key feature of the Clinton
Administration’s Clean Water Action Plan. One element of the plan was 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 had become one of the most contentious
environmental policy issues, especially in the context of the CWA, which contains a key
wetlands regulatory tool, the permit program in Section 404. It requires landowners or
developers to obtain permits for disposal of dredged or fill material that is generated by
construction or similar activity into navigable waters of the United States, including
wetlands. Section 404 has evolved through judicial interpretation and regulatory change to
become one of the principal federal tools used to protect wetlands, although that term appears
only once in Section 404 itself and is not defined there. At the same time, its implementation
has come to be seen as intrusive and burdensome to those whose activities it regulates. At
issue today is how to address criticism of the Section 404 regulatory program while
achieving desired goals of wetlands protection. (For additional information, see CRS Issue
Brief IB97014, Wetlands Issues.)
Unlike the rest of the Act, the permit aspects of Section 404 are administered by the
U.S. Army Corps of Engineers, using EPA environmental guidance. Other federal agencies
including the U.S. Fish and Wildlife Service (FWS) and Natural Resource Conservation
Service (NRCS) have more limited roles in the Corps’ permitting decisions. Tension has
existed for many years between the regulation of activities in wetlands under Section 404 and
related laws, on the one hand, and the desire of landowners to develop property that may
include wetlands, on the other hand. The conflicts over wetlands regulation have for the
most part occurred in administrative proceedings, as Congress has not amended Section 404
since 1977, when it provided permit 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.
Proposals to modify Section 404 have presented a number of issues, including whether
all wetlands should be treated the same, or whether some could be accorded less stringent
regulatory protection; whether activities or areas covered by federal regulation should be
modified; and whether federal and state roles in implementing Section 404 should be revised.
Views on these issues vary. Many wetland protection advocates contend that statutory
changes that have been proposed would weaken current protection efforts and that more
modest administrative reforms would effectively improve the current program. Many
landowners say that changes are needed to lessen burdens of the regulatory program. Some
also argue that the CWA should compensate landowners whose property is adversely
affected by regulatory “takings” when application of Section 404 limits desired property use,
since an estimated 74% of all remaining wetlands are on private lands.
Legislative proposals for comprehensive reform of wetlands regulatory programs have
been controversial, leading some to focus instead on narrower revisions. Specific issues that
could draw congressional attention include a 1998 federal court ruling that overturned a
regulation (called the Tulloch rule) issued by the Corps and EPA in 1993 that had expanded
the scope of wetlands regulation to certain landclearing and excavation activities that
previously had not been regulated. The Clinton Administration issued a revised Tulloch rule
before leaving office in January 2001, and after reviewing it, the Bush Administration agreed
to let the rule take effect. The revisions were intended to clarify what types of landclearing
and excavation activities are subject to regulation, in light of the 1998 court ruling. Industry
groups have challenged the regulation in court.
Another issue of interest is the Corps’ implementation of the nationwide permit
program, which is intended to minimize the burden of regulation through a streamlined
permitting process. Nationwide permits are issued for periods of no longer than 5 years.
Thus, in January 2002, the Corps reissued all 43 nationwide permits, most of which were last
re-issued in 1996. EPA and environmental groups object to some revisions that the Corps
included in order to add flexibility, including relaxation of certain permit conditions, fearing
that they would result in a net loss of wetland acres. Industry groups favor flexibility in the
revisions, but say that some requirements for case-by-case review could nullify the positive
aspects. At issue is whether the nationwide permit program has become so complex that it
can neither protect aquatic resources nor provide for a fair regulatory system, which are its
dual objectives. (See CRS Report 97-223, Nationwide Permits for Wetlands Projects:
Regulatory Developments and Current Issues.) Also of interest are impacts of a January
2001 Supreme Court decision that ruled that the Corps’ regulatory authority does not extend
to isolated wetlands, areas which have been among the most controversial in terms of Section
404 jurisdiction (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers (531 U.S. 159 (2001)); for information, see CRS Report RL30849, The Supreme
Court Addresses Corps of Engineers Jurisdiction Over “Isolated Waters”: The SWANCC
Decision). The House Government Reform Subcommittee on Energy Policy, Natural
Resources and Regulatory Affairs held a hearing on the government’s response to the
SWANCC decision on September 19 and has continued to press the government to clarify
its interpretation of the Court case.
Controversy also surrounds revised regulations issued by EPA and the Corps in May
2002, which redefine two key terms in the 404 program, “fill material” and “discharge of fill
material.” The agencies say that the revisions are intended to clarify certain confusion in the
program, but environmental groups contend that the changes allow for inadequate regulation
of certain disposal activities, including disposal of coal mining waste. Legislation to reverse
the agencies’ action was introduced (H.R. 4683) in the 107th Congress. (For additional
information, see CRS Report RL31411, Controversies over Redefining “Fill Material”
Under the Clean Water Act.)
While Congress has not been able to agree on how to address regulatory questions, it
has supported programs to restore wetlands and to provide incentives for setting them aside.
For example, interest has grown in creating “mitigation banks,” in which wetlands are
created, restored, or enhanced in advance to serve as “credits” that may be used or acquired
by permit applicants when they are required to mitigate impacts of their activities. Numerous
public and private banks have been established, and federal policy and guidance support the
concept. However, controversy exists over whether it is possible to restore or create
wetlands with ecological and other functions equivalent to or better than those of natural
wetlands that have been lost over time and, thus, whether reliance on mitigation banks is
appropriate. In the 107th Congress, the House Transportation and Infrastructure Water
Resources and Environment Subcommittee held a hearing on September 20, 2001, on H.R.
1474, a bill which promotes restoration, conservation, and enhancement of wetlands by
specifically authorizing a wetlands mitigation banking program. It would require the Corps
to establish standards and criteria for mitigation banking, on-site mitigation, in-lieu fees, and
other off-site mitigation. No further action occurred.
Other Issues: Wet Weather Pollution Problems
In recent years, as projects for treating traditional municipal pollution have been
identified and successfully addressed, water quality officials have turned their attention to
stormwater discharges and overflows from municipal sewer systems. These problems, which
are most often associated with weather events during which rain or snowmelt overwhelm the
capacity of sewerage collection systems, and untreated wastes are discharged directly into
waterways, have received little attention in the past and have been largely uncontrolled. Wet
weather discharges, unlike discharges from industrial facilities, are intermittent and variable
and present regulatory challenges for policymakers. At issue is whether and how to detail
wet weather programs in the Act versus encouraging flexibility that recognizes the sitespecific nature of intermittent wet weather pollution.
Stormwater. Stormwater discharge systems are the pipes and sewer lines that carry
rainwater or snowmelt (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 CWA 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. Under the regulatory program developed by EPA,
industrial facilities and cities with populations of 100,000 were required to seek stormwater
permits by May 1993. Under the 1987 amendments, smaller cities were to comply with rules
that EPA was to issue by October 1993, but those rules were not issued until October 1999.
Under those 1999 rules, permit applications for small cities are due in March 2003. (For
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. In the 106th
Congress, several bills dealing with local government stormwater programs were introduced,
but no further action occurred. Those bills proposed to limit and clarify local governments’
liability for certain 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. Properly
designed, sized, and maintained combined sewers can be an acceptable part of a city’s water
pollution control infrastructure. Normally (under dry-weather conditions), the combined
wastes are conveyed to a municipal sewage treatment plant. 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 many years, 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.
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 normal flows that exceed the capacity of 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 January 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 that concerns some cities is the problem of overflows from
municipal separate sanitary sewers (SSOs) that are not CSOs because they transport only
sanitary wastes. Discharges of untreated sewage from these sewers occur from manholes,
broken pipes and deteriorated infrastructure, and undersized pipes, and can occur in wet or
dry weather. EPA estimates that there are 18,000 municipalities with separate sanitary
sewers, all of which can, under certain circumstances, experience overflows. No explicit
EPA or statutory control policy currently exists. In 1995, EPA convened a stakeholders’
group to discuss how to address those overflows that pose the highest environmental and
public health risk first. On January 5, 2001, EPA finalized regulations that will improve the
operation of municipal sanitary sewer collection systems, reduce the frequency and
occurrence of overflows, clarify the existing CWA prohibition on SSO discharges, and
clarify circumstances appropriate for enforcement action. However, the rules were not
published before the Clinton Administration left office, and the Bush Administration is
currently reviewing the regulations.
Funding for CSO and SSO projects is a major issue for states and cities. At the end of
the 106th Congress, legislation was enacted which amended the CWA to codify EPA’s 1994
CSO policy on sewer overflows (discussed above) and create a 2-year $1.5 billion grant
program to reduce wet weather flows from municipal sewer systems. The text of this bill
was included in the FY2001 Consolidated Appropriations bill, enacted in December (P.L.
106-554; Division B, Title I of H.R. 5666, Section 112). Congress has not provided any
appropriations for this grant program (see CRS Issue Brief IB89102).
CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS
U.S. Congress. House. Committee on Transportation and Infrastructure. Subcommittee on
Water Resources and Environment. Improving Water Quality: States’ Perspectives on
the Federal Water Pollution Control Act. Hearing, February 28, 2001. 107th Congress,
1st session. Washington, U.S. Govt. Print. Off., 53 p. (107-3)
—— Water Infrastructure Needs. Hearing, Mar. 28, 2001. 107th Congress, 1st session, 296
—— Confined Animal Feeding Operations. Hearing, May 16, 2001. 107th Congress, 1st
session, 126 p. (107-21)
—— The Wetlands Permitting Process: Is It Working Fairly? Hearing, Oct. 3, 2001. 107th
Congress, 1st session, 99 p. (107-50)
U.S. Congress. Senate. Committee on Environment and Public Works. Water Investment
Act of 2002. Report to accompany S. 1961, together with minority views. 107th
Congress, 2d session. Report 107-228. 116 p.
—— Subcommittee on Fisheries, Wildlife, and Water. Water and Wastewater Infrastructure
Needs. Hearing, Mar. 21, 2001. 107th Congress, 1st session, 141 p. (S.Hrg. 107-316)
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.
Loeb, Penny. “Very Troubled Waters.” U.S. News & World Report, v. 125, no. 12,
September 28, 1998: 39, 41-42.
National Research Council, National Academy of Sciences. ASSESSING THE TMDL
APPROACH TO WATER QUALITY MANAGEMENT. National Academy Press, Washington,
D.C. June 2001. 82 p.
U.S. Environmental Protection Agency. National Water Quality Inventory: 2000 Report.
Washington, September 2002. “EPA841-R-2-001.”
U.S. General Accounting Office. Key EPA and State Decisions Limited by Inconsistent and
Incomplete Data. (GAO/RCED-00-54) March 2000. 73 p.
—— Water Infrastructure: Information on Financing, Capital Planning, and Privatization.
(GAO-02-764) August 2002. 79 p.
CRS Report 97-831, Clean Water Act and Total Maximum Daily Loads (TMDLs) of
Pollutants, by Claudia Copeland.
CRS Report RL30908, Clean Water Act Issues and Legislation in the 106th Congress, by
CRS Report RL31091, The Clean Water Act’s TMDL Program: Newly Presented Options
and Cost Estimates, by Claudia Copeland.
CRS Report 98-150, The Clean Water Action Plan: Background and Early Implementation,
by Claudia Copeland.
CRS Report RL30611, EPA’s Total Maximum Daily Load (TMDL) Program: Highlights
of the Final Revised Rule, by Claudia Copeland.
CRS Report 97-223, Nationwide Permits for Wetlands Projects: Regulatory Developments
and Current Issues, by Claudia Copeland.
CRS Report 96-647, Water Infrastructure Financing: History of EPA Appropriations, by
CRS Report RL31344, Water Infrastructure Financing Legislation: Comparison of Two
Bills, by Claudia Copeland and Mary Tiemann.
CRS Report RL31116, Water Infrastructure Funding: Review and Analysis of Current
Issues, by Claudia Copeland and Mary Tiemann.
CRS Report RL30437, Water Quality Initiatives and Agriculture, by Claudia Copeland.
CRS Issue Brief IB89102, Water Quality: Implementing the Clean Water Act, by Claudia
CRS Report 98-323, Wastewater Treatment: Overview and Background, by Claudia
CRS Issue Brief IB97014, Wetland Issues, by Jeffrey Zinn and Claudia Copeland.