Clean Water Act Issues in the 109th Congress

Order Code IB10142
CRS Issue Brief for Congress
Received through the CRS Web
Clean Water Act Issues
in the 109th Congress
Updated May 24, 2006
Claudia Copeland
Resources, Science, and Industry Division
Congressional Research Service ˜ The Library of Congress

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

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Clean Water Act Issues in the 109th Congress
SUMMARY
Legislative initiatives to comprehensively
treatment projects, and it has received atten-
amend the Clean Water Act (CWA) have
tion in the 109th Congress as well. At issue is
stalled for some time as interested parties have
how the federal government will assist states
debated whether and exactly how to change
and cities in meeting needs to rebuild, repair,
the law. Congress has recently focused legis-
and upgrade wastewater treatment plants,
lative attention on narrow bills to extend or
especially in light of capital costs that are
modify selected CWA programs, rather than
projected to be as much as $390 billion over
taking up comprehensive proposals. For ex-
the next two decades. This issue received
ample, the 108th Congress enacted one bill
attention in the 108th Congress, as House and
amending the CWA: legislation to reauthorize
Senate committees reported legislation, but no
the National Estuary Program (H.R. 4731,
further action occurred on either bill.
P.L. 108-399). In the 109th Congress, Con-
gress passed legislation to extend authoriza-
Several other Clean Water Act issues
tions for the Long Island Sound Program
could receive congressional attention. Pro-
(H.R. 3963, P.L. 109-137). The House has
grams that regulate activities in wetlands,
passed H.R. 1721, a bill to reauthorize coastal
especially CWA Section 404, have been
water quality programs. Also, the Senate
criticized by landowners for intruding on
Environment and Public Works Committee
private land-use decisions and imposing
has approved S. 1400, a bill authorizing $20
excessive economic burdens. Environmental-
billion in federal grants to capitalize state
ists view these programs as essential for
clean water infrastructure loan programs. A
maintaining the health of wetland ecosystems.
House committee has approved bills to
These groups are concerned about a 2001
reauthorize other Clean Water Act programs:
Supreme Court decision, the SWANCC case,
H.R. 624 would provide $1.5 billion in grants
that narrowed regulatory protection of wet-
over six years for sewer overflow projects;
lands, and related administrative actions,
and H.R. 1359 would extend a pilot program
including 2003 policy guidance intended to
for alternative water source projects.
interpret the case. Legislation to reverse the
SWANCC ruling has been introduced in the
Following Hurricanes Katrina and Rita,
109th Congress (H.R. 1356, the Clean Water
the Senate has passed legislation to streamline
Authority Restoration Act), as has a bill to
delivery of funds to repair storm-damaged
narrow the government’s regulatory jurisdic-
sewage treatment plants (S. 1709). Other bills
tion (H.R. 2658, the Federal Wetlands Juris-
intended to simplify environmental review of
diction Act).
recovery and rebuilding projects also have
been introduced (S. 1711, S. 1765/S. 1766).
Also of interest is whether and how the
Administration will revise the current program
For several years, the most prominent
for restoration of pollution-impaired waters
legislative water quality issue has concerned
(the Total Maximum Daily Load, or TMDL,
financial assistance for municipal wastewater
program), in view of continuing controversies.


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MOST RECENT DEVELOPMENTS
Wastewater security issues are again receiving attention in the 109th Congress. On May
23, the Senate Environment and Public Works Committee approved S. 2781, a bill that
encourages wastewater utilities to conduct vulnerability assessments and authorizes $220
million to assist utilities with assessments and preparation of site security plans.
In December 2005, the House and Senate passed legislation to reauthorize funding for
the Long Island Sound Program in the Clean Water Act; President Bush signed it on
December 22 (H.R. 3963, P.L. 109-137). Also in December, the House passed H.R. 1721,
a bill to reauthorize coastal water quality programs in the act. Water infrastructure funding
legislation has been receiving congressional attention because of estimates by the
Environmental Protection Agency that as much as $390 billion will be needed over the next
two decades to rebuild, repair, and upgrade the nation’s wastewater treatment plants. In July
2005, the Senate Environment and Public Works Committee approved S. 1400, a bill
authorizing federal funds for local wastewater and drinking water infrastructure programs,
including $20 billion to capitalize state clean water infrastructure loan programs. In May
2005, the House Transportation and Infrastructure Committee approved bills to reauthorize
two other Clean Water Act programs. H.R. 624 would provide $1.5 billion in grants over
six years for sewer overflow projects (CWA Sec. 221), and H.R. 1359 would extend a pilot
program for alternative water source projects (CWA Sec. 220).
In the Gulf Coast region affected by Hurricanes Katrina and Rita, high winds and water
damaged several hundred sewage treatment plants, along with many other public and private
facilities and structures. Assessment and repair of water infrastructure facilities is underway,
and legislation has been introduced in the 109th Congress that is intended to aid recovery and
rebuilding. One bill intended to streamline delivery of funds to repair storm-damaged
sewage treatment plants (S. 1709) was passed by the Senate on September 27. Other bills
are intended to simplify environmental review of recovery and rebuilding projects (S. 1711,
S. 1765/S. 1766).
BACKGROUND AND ANALYSIS
Introduction
Although much progress has been made in achieving the ambitious goals established
30-plus years ago to restore and maintain the chemical, physical, and biological integrity of
the nation’s waters, problems persist. The types of remaining water quality problems are
diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse
or “nonpoint” sources, to metals (especially mercury) and organic and inorganic toxic
substances discharged from factories and sewage treatment plants.
The principal law that deals with polluting activity in the nation’s streams, lakes,
estuaries, and coastal waters is the Federal Water Pollution Control Act (P.L. 92-500, enacted
in 1972), commonly known as the Clean Water Act, or CWA (amended by P.L. 95-217 in
1977, P.L. 97-117 in 1981, and P.L. 100-4 in 1987). It consists of two major parts:
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regulatory provisions that impose progressively more stringent requirements on industries
and cities to abate pollution and meet the statutory goal of zero discharge of pollutants; and
provisions that authorize federal financial assistance for municipal wastewater treatment
plant construction. Both parts are supported by research activities, plus permit and
enforcement provisions. Programs at the federal level are administered by the Environmental
Protection Agency (EPA); state and local governments have major responsibilities to
implement CWA programs through standard-setting, permitting, and enforcement.
The objective declared in the 1972 Act of restoring and maintaining the chemical,
physical, and biological integrity of the nation’s waters was accompanied by statutory goals
to eliminate the discharge of pollutants into navigable waters by 1985 and to attain, wherever
possible, waters deemed “fishable and swimmable” by 1983. While those goals have not
been fully achieved, considerable progress has been made, especially in controlling
conventional pollutants (suspended solids, bacteria, and oxygen-consuming materials)
discharged by industries and municipal sewage treatment plants.
Progress has been mixed in controlling discharges of toxic pollutants (heavy metals,
inorganic and organic chemicals), which are more numerous and can harm human health and
the environment even when present in minute amounts — at the parts-per-billion level.
Moreover, efforts to control pollution from diffuse sources, termed nonpoint source pollution
(rainfall runoff from urban, suburban, and agricultural areas, for example), are more recent,
given the earlier emphasis on “point source” pollution (discharges from industrial and
municipal wastewater treatment plants). Overall, data reported by EPA and states indicate
that 39% of river and stream miles assessed by states and 45% of assessed lake acres do not
meet applicable water quality standards and are impaired for one or more desired uses.
Approximately 95,000 lakes and 544,000 river miles in the United States are under fish-
consumption advisories (including 100% of the Great Lakes and their connecting waters),
due to chemical contaminants in lakes, rivers, and coastal waters, and one-third of
shellfishing beds are closed or restricted, due to toxic pollutant contamination. For mercury
— a contaminant of growing concern — as of 2003, 45 states had issued partial or statewide
fish or shellfish consumption advisories.
The most recent major amendments were enacted in 1987 (P.L. 100-4); this was the first
comprehensive revision to the law in a decade. Authorizations for a number of programs,
such as general grant assistance to states, research, and general EPA support authorized in
that law, expired in FY1990 and FY1991. Authorizations for wastewater treatment funding
expired in FY1994. None of these programs has lapsed, however, as Congress has continued
to appropriate funds to implement the act. (For further information, see CRS Issue Brief
IB89102, Water Quality: Implementing the Clean Water Act, by Claudia Copeland.)
The Clean Water Act has been viewed as one of the most successful environmental laws
in terms of achieving its statutory goals, which have been widely supported by the public, but
lately some have questioned whether additional actions to achieve further benefits are worth
the costs. Criticism has come from industry, which has been the long-standing focus of the
act’s regulatory programs and often opposes imposition of new stringent and costly
requirements. Criticism also has come from developers and property rights groups who
contend that federal regulations (particularly the act’s wetlands permit program) are a costly
intrusion on private land-use decisions. States and cities have traditionally supported water
quality programs and federal funding to assist them in carrying out the law, but recently
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many have opposed CWA measures that they fear might impose new unfunded mandates.
Many environmental groups believe that further fine-tuning to strengthen the act is needed
to maintain progress achieved to date and to address remaining water quality problems.
Legislative Activity Since P.L. 100-4
Following enactment of amendments in 1987, no major CWA legislative activity
occurred until the 104th Congress (1995). The House approved a comprehensive
reauthorization bill, H.R. 961, that was opposed by environmentalists and the Clinton
Administration. Critics said that the bill would undermine the existing framework for
protecting U.S. waters. The Senate did not take up H.R. 961 or other CWA legislation.
In the 105th and 106th Congresses, no comprehensive reauthorization legislation was
introduced, but action was taken in the 106th Congress on bills dealing with specific water
quality issues. Congress passed a bill to strengthen protection of coastal recreation waters
through upgraded water quality standards and coastal waters monitoring programs (P.L. 106-
284). Congress also passed a bill (P.L. 106-457) that reauthorized several existing CWA
programs (i.e., Chesapeake Bay cleanup, clean lakes, and the National Estuary Program), and
a bill to authorize CWA grant funding for wet weather sewerage projects (included as a
provision of the FY2001 Consolidated Appropriations bill, P.L. 106-554).
During its tenure, the Clinton Administration did not offer legislation to reauthorize the
CWA, but rather initiated a number of agency-wide and program-specific reforms focusing
on flexibility and what were termed “common sense” approaches to regulation.
The 107th Congress focused legislative attention on one of the key programs of the act,
provisions concerning financial assistance for municipal wastewater treatment projects.
House and Senate committees approved bills to extend the act’s State Revolving Fund (SRF)
program through FY2007 (H.R. 3930, S. 1961). Neither bill received further action, in large
part due to controversies over application of the Davis-Bacon Act, which requires that
contractors, engaging in certain federal contract construction, pay workers on such projects
not less than the locally prevailing wage for comparable work, and over the formula for
allocating SRF grants among the states.
The single water quality measure enacted by the 107th Congress was the Great Lakes
Legacy Act (P.L. 107-303). It amended existing Great Lakes provisions of the CWA
(Section 118) to authorize $50 million annually for FY2004-FY2008 for EPA to carry out
projects to remediate sediment contamination in the Great Lakes. The bill also reauthorized
CWA provisions concerning the Lake Champlain Basin Program. Miscellaneous provisions
revived a number of CWA reports to Congress that had been discontinued under a previously
passed “sunset” law (P.L. 104-66) and allowed states to use CWA Section 319 grant funds
for stormwater management projects in FY2003.
In the 108th Congress, attention again focused on water infrastructure financing issues,
although no bill was enacted (see below). However, there was some action on bills to
reauthorize existing, mostly geographic-specific programs in the Clean Water Act. Before
recessing for the 2004 election, the House and Senate passed H.R. 4731, to reauthorize the
National Estuary Program through FY2010. The President signed this bill on October 30,
2004 (P.L. 108-399). The National Estuary Program, authorized by the 1987 CWA
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amendments, is directed at improving the quality of estuaries of national importance. Also
in September 2004, the House Transportation and Infrastructure Committee reported three
other bills. They were (1) H.R. 784, to reauthorize section 221 of the act and provide $1.5
billion over six years for sewer overflow projects (H.Rept. 108-675); (2) H.R. 4470, to
extend the Lake Pontchartrain Basin Restoration Program in Section 121 through FY2010
(H.Rept. 108-676); and (3) H.R. 4688, to reauthorize the Chesapeake Bay Program through
FY2010 (H.Rept. 108-677). The House passed H.R. 4470 on October 7, 2004, but no further
action occurred. Also on October 7, the House passed H.R. 4794, to amend and reauthorize
the Tijuana River Valley Estuary and Beach Sewage Cleanup Act (P.L. 106-457) in order to
address treatment of sewage from Tijuana, Mexico, that impacts the San Diego border
region. The Senate passed this bill on November 16, 2004, and the President signed it on
November 30 (P.L. 108-425; this law does not amend the CWA).
109th Congress. In December 2005, Congress passed H.R. 3963 (H.Rept. 109-293),
authorizing $40 million per year for six years to extend the Long Island Sound program
under Section 119 of the act. President Bush signed it on December 22 (P.L. 109-137). Also
in December, the House approved H.R. 1721 (H.Rept. 109-292), to extend the coastal water
quality program in Section 406 of the act and to authorize $30 million over six years for
coastal water quality monitoring.
On July 20, the Senate Environment and Public Works Committee approved S. 1400
(S.Rept. 109-186), authorizing federal funds for water quality and drinking water State
Revolving Fund programs (see discussion below). On May 18, the House Transportation and
Infrastructure Committee approved bills to reauthorize two other existing CWA programs.
The bills are (1) H.R. 624 (H.Rept. 109-166), to reauthorize Section 221 of the act and
provide $1.5 billion over six years for sewer overflow projects (identical to H.R. 784 from
the 108th Congress) and (2) H.R. 1359 (H.Rept. 109-167), to extend Section 220 of the act,
authorizing a pilot program for alternative water source projects (H.R. 1560 and S. 2550 in
the 108th Congress also would have reauthorized Section 220 — see discussion of these bills
below).
Recovery from Hurricanes. Throughout the Gulf Coast region affected by
Hurricanes Katrina and Rita, high winds and water damaged a wide range of public service
facilities, including sewage treatment plants, and restoring those facilities is part of the
overall cleanup and restoration process. Damages at many facilities included loss of electric
power after the storm to pump, process, and treat raw water supply and wastewater. EPA
and the U.S. Army Corps of Engineers staff are assisting state and local government
personnel to evaluate damages. Efforts to assess facilities continue throughout the region to
determine their operating status, including needs to repair or rebuild, but EPA reported that
by October 10, more than 95% of wastewater treatment facilities in the affected region were
operational, although many may require major repairs or rebuilding. Even months after the
storms, facilities in some cities (serving parts of New Orleans, for example) are not
operational. (For information, see CRS Report RS22285, Hurricane-Damaged Drinking
Water and Wastewater Facilities: Impacts, Needs, and Response
, by Claudia Copeland.) The
109th Congress has been considering a wide range of legislative proposals to aid generally
in response and recovery. In particular, S. 1709, passed by the Senate on September 27,
would modify the revolving loan provisions of the Clean Water Act to provide favorable
treatment (such as forgiveness of loan principal and extended repayment) for sewage
treatment repair or rebuilding projects in Alabama, Mississippi and Louisiana. It also would
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permit those states for two years to provide CWA assistance even for projects not included
on a state’s Intended Use Plan, since many of the systems affected by Hurricane Katrina are
believed to not be included in the plans. More generally, some have suggested that
environmental review and permitting requirements of the Clean Water Act and other federal
environmental laws should be modified to enable swift recovery from the storms. Several
bills with provisions intended to do so have been introduced (S. 1711, S. 1765/S. 1766) and
could receive congressional consideration.
Wastewater Security. Since the September 11, 2001 terrorist attacks in the United
States, congressional attention has focused on security, preparedness, and emergency
response issues. Among the topics of interest are protection of the nation’s water
infrastructure facilities (both drinking water and wastewater) from possible physical damage,
biological/chemical attacks, and cyber disruption. (For information, see CRS Report
RL32189, Terrorism and Security Issues Facing the Water Infrastructure Sector, by Claudia
Copeland and Betsy Cody.)
Policymakers have examined a number of legislative options in this area, including
enhanced physical security, communication and coordination, and research. In October
2002, the House passed legislation to authorize $200 million in grants for security activities
at wastewater treatment plants (H.R. 5169). It also authorized $15 million in technical
assistance for small treatment plant facilities and $5 million to EPA for improved
vulnerability assessment tools. Similar legislation was introduced in the Senate (S. 3037),
but no further action occurred. Congress did enact legislation authorizing $160 million in
grants for drinking water utilities to conduct vulnerability assessments (P.L. 107-188).
In the 108th Congress, the House passed legislation similar to H.R. 5169. H.R. 866
(H.Rept. 108-33) would authorize $200 million in grants to wastewater utilities to conduct
vulnerability assessments and an additional $20 million for technical assistance and
improved assessment tools. The Senate Environment and Public Works Committee
approved a similar bill (S. 1039, S.Rept. 108-149) in May 2003. No further action occurred,
due in part to concerns expressed by some that the legislation would not mandate
vulnerability assessments and would not require that they be submitted to EPA, as is the case
with drinking water assessments required by P.L. 107-188.
Wastewater security issues are again receiving attention in the 109th Congress. On May
23, the Senate Environment and Public Works Committee approved S. 2781. It is similar
to S. 1039 in the 108th Congress in that it encourages wastewater utilities to conduct
vulnerability assessments and authorizes $220 million to assist utilities with assessments and
preparation of site security plans. It also includes provisions responding to a March 2006
GAO report that found that utilities have made little effort to address vulnerabilities of
collection systems, which may be used by terrorists to introduce hazardous substances or as
access points for underground travel to a potential target (Securing Wastewater Facilities,
Utilities Have Made Upgrades but Further Improvements to Key System Components May
Be Limited by Costs and Other Constraints
, GAO-06-390). S. 2781 authorizes EPA to
conduct research on this topic. During consideration of the bill, the Senate committee
rejected an amendment that would have required, rather than encouraged, treatment works
to conduct vulnerability assessments and also would have required high-risk facilities to
switch from using chlorine and similar hazardous substances to other chemicals that are often
referred to as “inherently safer technologies.”
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Legislative Issues in the 109th Congress
The year 2002 marked the 30th anniversary of passage of the Clean Water Act and 15
years since the last major amendments to the law. While, as noted, there has been
measurable clean water progress as a result of the act, observers and analysts agree that
significant water pollution problems remain. However, there is less agreement about what
solutions are needed and whether new legislation is required. Several key water quality
issues exist: evaluating actions to implement existing provisions of the law, assessing
whether additional steps are necessary to achieve overall goals of the act that have not yet
been attained, and defining the appropriate federal role in guiding and paying for clean water
infrastructure and other activities. For some time, efforts to comprehensively amend the act
have stalled as interests have debated whether and exactly how to change the law. Many
issues that might be addressed involve making difficult tradeoffs between impacts on
different sectors of the economy, taking action when there is technical or scientific
uncertainty, and allocating governmental responsibilities for implementing the law.
These factors partly explain why Congress has recently favored focusing legislative
attention on narrow bills to extend or modify selected CWA programs, rather than taking up
comprehensive proposals. Other factors also are at work. These include a general reluctance
by most Members of Congress to address controversial environmental issues in view of the
slim majorities held by political parties in the House and the Senate; lack of presidential
initiatives on clean water issues (neither the Clinton nor the Bush Administration proposed
CWA legislation); and since the terrorist attacks of September 11, 2001, a prominent
congressional focus on security and terrorism issues than on many other topics, including
environmental protection.
Authorization of Water Infrastructure Funding
The act’s program of financial aid for municipal wastewater treatment plant
construction is a central feature of the law. At issue today is how the federal government will
assist states and cities, especially in view of the high projected funding needs that exist. It
has received attention in the 109th Congress, as it has for several years, although
controversies have stymied enactment of new legislation. Since 1972, Congress has provided
a total of $75 billion to assist cities in constructing projects to achieve the act’s requirements
for secondary treatment of municipal sewage (equivalent to 85% reduction of wastes), or
more stringent treatment where required by local water quality conditions. The CWA does
not authorize funds for operation or maintenance of completed projects. State and local
governments have spent more than $25 billion of their own funds for construction, as well.
In addition to CWA programs, other sources of federal funding are administered by the U.S.
Department of Agriculture and the Department of Housing and Urban Development (for
information, see CRS Report RL30478, Federally Supported Water Supply and Wastewater
Treatment Programs
).
Nevertheless, funding needs remain very high: an additional $181 billion nationwide
for all types of projects eligible for funding under the act, according to the most recent Needs
Survey estimate by EPA and the states, completed in August 2003 (available at [http://
www.epa.gov/owm/mtb/cwns/2000rtc/toc.htm]. In September 2002, EPA released a study,
called the Gap Analysis (available at [http://www.epa.gov/owm/gapreport.pdf]), that assessed
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the difference between current spending for wastewater infrastructure and total funding needs
(both capital and operation and maintenance). EPA estimated that, over the next two
decades, the United States needs to spend nearly $390 billion to replace existing wastewater
infrastructure systems and to build new ones (including for some projects not currently
eligible for CWA funds, such as system replacement, which are not reflected in the EPA-
state Needs Survey). Funding needs for operation and maintenance, which are not currently
eligible for federal aid, are an additional $148 billion, the agency estimates. According to
the Gap Analysis, if there is no increase in investment, there will be about a $6 billion gap
between current annual capital expenditures for wastewater treatment ($13 billion annually)
and projected spending needs. The study also estimated that, if wastewater spending
increases by 3% annually, the gap would shrink by nearly 90% (to about $1 billion annually).
Outside groups, including a coalition called the Water Infrastructure Network, have offered
proposals that have attracted some congressional interest for a multibillion dollar investment
program in wastewater and drinking water infrastructure. (For additional information, see
CRS Report RL31116, Water Infrastructure Needs and Investment: Review and Analysis of
Key Issues
, by Claudia Copeland and Mary Tiemann.)
The 1987 amendments initiated a program of grants to capitalize State Water Pollution
Control Revolving Funds (SRF), 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, by Claudia Copeland.)
All states have established the mechanisms to administer the new loan programs and
have been receiving SRF capitalization funds under Title VI for several years. Many have
complained that the SRF program is unduly complicated by federal rules, even though
Congress had intended that states were to have greater flexibility. Congressional oversight
has examined the progress toward reducing the backlog of wastewater treatment facilities
needed to achieve the act’s water quality objectives, while newer estimates of future funding
needs have drawn increased attention to the role of the SRF program in meeting such needs.
Small communities and states with large rural populations have experienced the largest
share of problems with the SRF program. Many small towns did not participate in the
previous construction grants program and consequently are likely to require major projects
to achieve compliance with the law. Yet these communities often lack an industrial tax base
and thus face the prospect of very high per capita user fees, if their citizens are required to
repay the full capital cost of sewage treatment projects.
While the initial intent was to phase out federal support for this program, Congress has
continued to appropriate SRF capitalization grants to the states, providing an average of
$1.35 billion annually in recent years. The SRF provisions have been less controversial than
others in the act, such as wetlands reform, because of apparent general agreement on the need
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to provide funding assistance (as reflected in continued appropriations). The CWA’s SRF
provisions also were a model for similar provisions added to the Safe Drinking Water Act
(SDWA) in 1996 (P.L. 104-182). However, because remaining clean water funding needs
are still so large, at issue is whether and how to extend SRF assistance to address those
needs, how to allocate SRF funds among the states, and how to prioritize projects and
funding. Bush Administration officials have said that infrastructure funding needs go beyond
what the federal government can do on its own. Of particular concern is assisting small and
economically disadvantaged communities that have had the most difficulty in adjusting from
the act’s previous categorical grants program to SRF loans. Additionally, there is concern
about the adequacy of SRF or other funding specifically for projects dealing with problems
of overflows from municipal combined and separate sewers which can release partially
treated or untreated wastewaters that harm public health and the environment. EPA
estimates that the cost of projects to control sewer overflows, from combined and separate
sanitary sewer systems, is nearly $140 billion nationwide. And more recently, wastewater
utilities have sought assistance to assess operational vulnerabilities and upgrade physical
protection of their facilities against possible terrorist attacks that could threaten water
infrastructure systems. (Water infrastructure funding issues related to annual appropriations
also are an issue of interest to Congress; for information see CRS Issue Brief IB89102, Water
Quality: Implementing the Clean Water Act
, by Claudia Copeland.)
Legislative Responses. The 107th Congress considered but did not pass legislation
to address infrastructure funding issues. House and Senate committees approved bills to
extend the act’s SRF program through FY2007 and increase federal assistance (H.R. 3930,
S. 1961), but neither bill received further action, in large part due to controversies over
application of prevailing wage requirements of the Davis-Bacon Act and over the formula
for allocating SRF grants among the states.
In the 108th Congress, four bills to reauthorize the Clean Water Act SRF program were
introduced (S. 170, S. 2550, H.R. 20, H.R. 1560). In addition, separate bills to reauthorize
funding for sewer overflow grants (CWA Section 221) were introduced (H.R. 784, S. 567).
On October 7, 2004, the Senate Environment and Public Works Committee reported
legislation authorizing $41.25 billion over five years for wastewater and drinking water
infrastructure programs, including $20 billion for the clean water SRF program (S. 2550,
S.Rept. 108-386). The bill included a new formula for state-by-state allocation of clean
water SRF grants, renewal of the Clean Water Act’s sewer overflow grant program, and
provisions such as extended loan repayments and subsidies for disadvantaged communities.
Prior to the Senate committee’s action, in July 2003, the House Transportation and
Infrastructure Subcommittee on Water Resources and Environment approved H.R. 1560,
legislation similar to H.R. 3930, the bill approved by that committee in 2002. H.R. 1560
would have authorized $20 billion for the clean water SRF program for FY2004-FY2008.
It included several provisions intended to benefit economically disadvantaged and small
communities, such as allowing extended loan repayments (30 years, rather than 20) and
additional subsidies, including principal forgiveness and negative interest loans, for
communities that meet a state’s affordability criteria. It includes provisions to require
communities to plan for capital replacement needs and to develop and implement an asset
management plan for the repair and maintenance of infrastructure that is being financed.
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(For information, see CRS Report RL32503, Water Infrastructure Financing Legislation:
Comparison of S. 2550 and H.R. 1560
, by Claudia Copeland and Mary Tiemann.)
The issue of the applicability of the prevailing local wage requirements of the Davis-
Bacon Act to SRF-funded projects has affected consideration of water infrastructure
legislation for some time, because that act has both strong supporters and critics in Congress.
Critics of Davis-Bacon say that it unnecessarily increases public construction costs and
hampers competition, while supporters say that it helps stabilize the local construction
industry by preventing competition that would undercut local wages and working conditions.
The bill approved by the House subcommittee in July 2003 did not include language
specifying that the Davis-Bacon Act shall apply to SRF-funded projects, while the bill
approved by the Senate Environment and Public Works Committee did include such a
requirement. Other factors that clouded the bills were Administration opposition to
authorization levels in S. 2550 and H.R. 1560 and dispute over funding allocation formulas.
In the 109th Congress, the Senate Environment and Public Works Committee approved
S. 1400, the Water Infrastructure Financing Act, on July 20 (S.Rept. 109-186). The bill is
similar to S. 2550 in the 108th Congress; it authorizes $20 billion for grants to capitalize the
Clean Water Act SRF program and $15 billion for Safe Drinking Water Act SRFs through
FY2010. As approved by the committee, S. 1400 would revise and update the CWA formula
for state-by-state allocation of SRF monies and also would specify that the prevailing wage
requirements of the Davis-Bacon Act shall apply to all projects financed from an SRF (as
similarly provided in the committee’s bill in the 108th Congress).
On June 8 and 14, 2005, the House Transportation and Infrastructure Subcommittee on
Water Resources and Environment held hearings on alternative means to fund water
infrastructure projects in the future. At the first hearing, witnesses focused on one way to
increase funding for water infrastructure that has recently been advocated by some groups,
creating a national clean water trust fund that would conceptually be similar to trust funds
that exist for highway and aviation projects. Witnesses and subcommittee members
discussed difficulties in identifying potential revenue sources that would be deemed fair and
equitable. The second hearing addressed other financing options, such as expanded use of
tax-exempt private activity bonds, and more efficient management techniques, such as asset
management programs and sustainable infrastructure initiatives. In December, legislation
was introduced in the House to establish a $7.5 billion federal trust fund for wastewater
infrastructure improvements. This bill, H.R. 4560, uses a concept for funding such projects
that has been promoted by wastewater treatment industry officials, other stakeholders, and
some environmentalists, who argue it could provide a new source of money for necessary
system upgrades amid dwindling federal funds. The bill contemplates a system of user fees
to create the fund, but the source of revenue is not specified in the bill.
Other Clean Water Act Issues
Several other CWA issues could receive congressional attention.
Regulatory Protection of Wetlands. How best to protect the nation’s remaining
wetlands and regulate activities taking place in wetlands has become one of the most
contentious environmental policy issues, especially in the context of the CWA, which
contains a key wetlands regulatory tool, the permit program in Section 404. It requires
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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, by Jeffrey Zinn and Claudia Copeland.)
Unlike the rest of the act, the permit aspects of Section 404 are administered by the U.S.
Army Corps of Engineers, rather than EPA, although the Corps uses EPA environmental
guidance. Other federal agencies including the U.S. Fish and Wildlife Service (FWS) and
Natural Resource Conservation Service (NRCS) have more limited roles in the Corps’
permitting decisions. Tension has existed for many years between the regulation of activities
in wetlands under Section 404 and related laws, on the one hand, and the desire of
landowners to develop property that may include wetlands, on the other hand. The conflicts
over wetlands regulation have for the most part occurred in administrative proceedings, as
Congress has not amended Section 404 since 1977, when it provided exemptions for
categories of routine activities, such as normal farming and forestry. Controversy has grown
over the extent of federal jurisdiction and impacts on private property, burdens and delay of
permit procedures, and roles of federal agencies and states in issuing permits.
The Supreme Court’s SWANCC Decision. One issue involving long-standing
controversy and litigation is whether isolated waters are properly within the jurisdiction of
Section 404. Isolated waters that are wetlands which are not physically adjacent to navigable
surface waters often appear to provide only some of the values for which wetlands are
protected, such as flood control or water purification, even if they meet the technical
definition of a wetland. On January 9, 2001, the Supreme Court ruled on the question of
whether the CWA provides the Corps and EPA with authority over isolated waters. The
Court’s 5-4 ruling in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army
Corps of Engineers
(531 U.S. 159 (2001)) held that the Corps’ denial of a 404 permit for a
disposal site on isolated wetlands solely on the basis that migratory birds use the site exceeds
the authority provided in the act.
The full extent of impacts on the regulatory program resulting from this decision
remains unclear for now. Environmentalists believe that the Court misinterpreted
congressional intent on the matter, while industry and landowner groups welcomed the
ruling. Policy implications of how much the decision restricts federal regulation depend on
how broadly or narrowly the opinion is applied. Some federal courts have interpreted
SWANCC narrowly, thus limiting its effect on current permit rules, while a few read the
decision more broadly. The government’s current view on this key question was expressed
in EPA-Corps guidance (see [http://www.epa.gov/owow/wetlands/guidance/SWANCC/Joint
_Memo.pdf]) issued on January 15, 2003. It provides a legal interpretation essentially based
on a narrow reading of the Court’s decision, thus allowing federal regulation of some isolated
waters to continue, but it calls for more headquarters review in disputed cases.
Administration press releases say that the guidance demonstrates the government’s
commitment to “no-net-loss” wetlands policy. However, it is apparent that the issues remain
under discussion, because at the same time, the Administration issued an advance notice of
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proposed rulemaking (ANPRM) seeking comment on how to define waters that are under
jurisdiction of the regulatory program. The ANPRM did not actually propose rule changes,
but it indicated possible ways that Clean Water Act rules might be modified to further limit
federal jurisdiction, building on SWANCC and some subsequent legal decisions.
The government received more than 133,000 comments on the ANPRM, most of them
negative, according to EPA and the Corps. Environmentalists and many states opposed
changing any rules, saying that the law and previous court rulings call for the broadest
possible interpretation of the Clean Water Act (and thus a narrow interpretation of
SWANCC), but developers sought changes to clarify interpretation of the SWANCC ruling.
On December 16, 2003, EPA and the Corps announced that the Administration will not
pursue development of rule changes concerning federal regulatory jurisdiction over isolated
wetlands. The EPA Administrator said that the Administration wanted to avoid a
contentious and lengthy rulemaking debate over the issue. Environmentalists and state
representatives expressed relief at the announcement. Interest groups on all sides have been
critical of confusion in implementing the 2003 guidance, which constitutes the main tool for
interpreting the reach of the SWANCC decision. Environmentalists remain concerned about
diminished protection resulting from the guidance, while developers said that without new
regulations, confusing and contradictory interpretations of wetland rules will continue.
Congressional Actions. In September 2002, the House Government Reform
Subcommittee on Energy Policy, Natural Resources, and Regulatory Affairs held a hearing
on the government’s response to the SWANCC decision and to press the government to
clarify its interpretation of the Court case. Committee Members and public witnesses
indicated that a lack of guidance has led to inconsistent regulatory decisions by Corps
officials in individual regions of the country, and subsequent judicial decisions by other
federal and state court have been mixed. At the hearing, Corps and EPA officials testified
on their efforts to develop guidance, which subsequently was released in January 2003.
Concern about lingering confusion over the SWANCC decision and its implementation by
the Corps was the topic of an oversight hearing by the Senate Environment and Public Works
Committee in June 2003. Developers and others in the regulated community criticized the
Corps and EPA, saying that the January 2003 guidance document had not clarified the reach
of federal jurisdiction. A House Transportation and Infrastructure subcommittee also held
a hearing on post-SWANCC issues on March 30, 2004.
While it continues to be difficult to fully assess how regulatory protection of wetlands
will be affected as a result of the SWANCC decision and other possible changes, the
remaining responsibility to protect affected wetlands falls on states and localities. (For
additional information, see CRS Report RL30849, The Supreme Court Addresses Corps of
Engineers Jurisdiction Over ‘Isolated Waters’: The SWANCC Decision
, by Robert Meltz and
Claudia Copeland.)
Controversies about the SWANCC guidance issued by EPA and the Corps in 2003
persist. In response, on May 18 the House adopted an amendment to a bill providing
FY2007 appropriations for EPA (H.R. 5386). The amendment (passed by a 222-198 vote)
would bar EPA from spending funds to implement the 2003 policy guidance. Supporters of
the amendment said that the guidance goes beyond what the Supreme Court required in
SWANCC, has allowed many streams and wetlands to be unprotected from development, and
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has been more confusing than helpful. Opponents of the amendment predicted that it would
make EPA’s and the Corps’ regulatory job more difficult than it already is.
Legislation to overturn the SWANCC decision by providing a broad definition of
“waters of the United States” has been introduced in the 109th Congress (H.R. 1356, the
Clean Water Authority Restoration Act of 2005). Other legislation to narrow the definition
of “waters of the United States” also has been introduced (H.R. 2658, the Federal Wetlands
Jurisdiction Act of 2005). (For additional information and discussion of similar legislation
in the 108th Congress, see CRS Issue Brief IB97014, Wetland Issues, by Jeffrey A. Zinn and
Claudia Copeland.)
TMDLs and State Water Quality Standards. The CWA requires states to identify
pollution-impaired water segments and develop “total maximum daily loads” (TMDL) that
set the maximum amount of pollution that a water body can receive without violating water
quality standards. A TMDL is essentially a plan to allocate responsibility for implementing
pollution control measures within an area or watershed in order to remedy water quality
impairments. Until recently, there had been little implementation of the TMDL provision
(Section 303(d)), which Congress enacted in 1972. Since the early 1990s, environmental
groups have filed lawsuits in 40 states to pressure EPA and states to meet the law’s
requirements. Of the suits tried or settled to date, more than half have resulted in court
orders requiring expeditious development of TMDLs, thus driving the program that had
previously received little attention. At issue today are controversies over implementation of
the existing TMDL program and regulatory revisions that EPA issued in July 2000, partly
in response to the lawsuits to strengthen the program. That rule was highly controversial
(and never went into effect) because of issues such as potential burdens on states, industries,
cities, and others to implement a revised TMDL program and potential impacts on some
agriculture and forestry sources, which are not now directly subject to CWA regulations.
Because of those controversies, the Clinton Administration delayed the effective date of the
2000 rule until October 2001.
In the FY2001 appropriations act funding EPA, P.L. 106-377, Congress requested a
study by the National Academy of Sciences (NAS) on the scientific basis of the TMDL
program. The NAS report was issued in June 2001 (National Research Council, NAS,
Assessing the TMDL Approach to Water Quality Management). It did not specifically
analyze the July 2000 revised regulations. The NAS panel concluded that scientific
knowledge exists to move forward with the TMDL program and recommended that EPA and
states use adaptive implementation for TMDL development. In many cases, the report said,
water quality problems and solutions are obvious and should proceed without complex
analysis. In other cases, solutions are more complex and require a different level of
understanding and something like phased implementation. In addition, the General
Accounting Office (now the Government Accountability Office) concluded in a report that
inconsistent monitoring, data collection, and listing procedures used by states to identify
impaired waters have hindered efforts to develop effective TMDL programs (Water Quality:
Inconsistent State Approaches Complicate Nation’s Efforts to Identify Its Most Polluted
Waters
, GAO-02-186).
In October 2001, the Bush Administration announced that it would delay the rule for
18 months (until May 2003) to allow EPA officials time to review the rule and the NAS
report. This action came after a federal court approved the Administration’s request for a
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similar suspension of litigation that is challenging the regulation (nearly a dozen interest
groups have sued EPA over various parts of the TMDL rule). In the interim, existing rules
and requirements and court-sanctioned TMDL schedules (affecting approximately 22 states)
remain in place. (For additional information, see CRS Report 97-831, Clean Water Act and
Total Maximum Daily Loads (TMDLs) of Pollutants
, by Claudia Copeland.)
On March 19, 2003, EPA withdrew the July 2000 TMDL rule. EPA officials said that
implementation of the existing TMDL program will continue in the meantime, but that
additional time is needed to decide whether and how to revise the current program. EPA is
considering initiating an entirely new rule or other options, but no further timeframe or
proposal has been announced. Recent congressional attention to these issues has been
limited to oversight hearings held by the House Transportation and Infrastructure
Subcommittee on Water Resources in June and November 2001. The 109th Congress may
examine implementation of existing TMDL requirements and possible regulatory changes,
if issued, in view of continuing disagreement among states, cities, industry, and
environmental advocates about program effectiveness and efficiency.
Other Implementation Issues. Of potential legislative interest are the impacts of
recent court rulings in several cases concerning implementation of existing provisions of the
law and involving questions of whether certain activities require a Clean Water Act discharge
permit. A fundamental element of the act is the requirement that the “discharge of a
pollutant” from a point source shall be pursuant to a permit authorized by the National
Pollutant Discharge Elimination System (NPDES) program under Section 402 of the law.
In 2004, the Supreme Court held that the transfer of polluted water from one waterbody to
another requires a permit, notwithstanding that no new pollutant is added in the process of
transfer (South Florida Water Management District v. Miccosukee Tribe of Indians, 124 S.
Ct. 1537 (2004)). (For information, see CRS Report RL32569, The Supreme Court Revisits
the Environment: Seven Cases Decided or Accepted in the 2003-2004 Term
, by Robert
Meltz.) The decision has raised concerns in agricultural areas where such transfers often
occur in supplying irrigation water, presently without a permit.
Also, decisions of federal courts in two cases have held that aerial application of a
pesticide over and into U.S. waters requires a CWA permit, even when the pesticide use
meets other requirements of federal law, including the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA). These and related decisions drew the attention of many pesticide
applicators, including public health entities such as mosquito control districts, concerned
with how the rulings might affect their need to control pests associated with diseases such
as the West Nile virus. In January 2005, EPA issued guidance seeking to resolve the conflict
over the regulatory scope of the CWA and FIFRA related to pesticide use, in light of the
recent litigation, and simultaneously proposed a formal rulemaking to promulgate regulations
that would clarify circumstances under which a CWA permit is or is not required for
activities carried out pursuant to FIFRA. Congress has examined these issues in oversight
hearings, one by a House Transportation and Infrastructure subcommittee in October 2002
and another by a House Government Reform subcommittee in October 2004. Legislation
intended to affirm that a CWA permit is not required for use of FIFRA-approved pesticides
has been introduced in the 109th Congress, the Pest Management and Fire Suppression
Flexibility Act (H.R. 1749, S. 1269). A House Transportation and Infrastructure
subcommittee held a hearing on H.R. 1749 on September 29. (For background, see CRS
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Report RL32884, Pesticide Use and Water Quality: Are the Laws Complementary or In
Conflict?
by Claudia Copeland.)
LEGISLATION
H.R. 624 (Camp)
Amends the Clean Water Act (Sec. 221) to reauthorize appropriations for sewer
overflow grants; authorizes $250 million annually for FY2006-FY2011. Introduced February
8, 2005, referred to Transportation and Infrastructure Committee. Approved by full
committee May 18, 2005 (H.Rept. 109-166).
H.R. 1359 (J. Davis, FL)
Amends the Federal Water Pollution Control Act to extend the pilot program for
alternative water source projects (Sec. 220) through FY2010 and increase annual
authorizations from $75 million to $125 million. Introduced March 17, 2005, referred to
Transportation and Infrastructure Committee. Approved by full committee May 18, 2005,
with amendment to strike the fiscal year limitation in the bill (H.Rept. 109-167).
H.R. 1721 (T. Bishop)
Amends the Clean Water Act (Sec. 406) to reauthorize appropriations for coastal
recreation waters programs; authorizes $30 million annually for FY2006-FY2011.
Introduced April 20, 2004, referred to Transportation and Infrastructure Committee.
Approved by full committee October 26, 2005 (H.Rept. 109-292). Passed House December
7.
H.R. 3963 (Simmons)
Amends the Clean Water Act (Sec. 119) to reauthorize appropriations for the Long
Island Sound Program; authorizes $40 million annually for FY2006-FY2011. Introduced
September 29, 2005, referred to Transportation and Infrastructure Committee. Approved by
full committee October 26 (H.Rept. 109-293). Passed House December 7. Passed Senate
December 16. Signed by President December 22 (P.L. 109-137)
H.R. 4560 (Duncan)
Clean Water Trust Act of 2005, amends the Clean Water Act to authorize appropriations
for state water pollution control revolving funds and for other purposes; establishes Clean
Water Trust Fund for construction of wastewater infrastructure projects. Introduced
December 15, 2005, referred to Transportation and Infrastructure Committee.
S. 1400 (Chafee)
Water Infrastructure Financing Act, to amend the Clean Water Act and the Safe
Drinking Water Act to improve water and wastewater infrastructure in the United States.
Introduced July 14, 2005, referred to Environment and Public Works Committee. Approved
by full committee, with amendments, July 20, 2005 (S.Rept. 109-186).
S. 1709 (Inhofe)
Gulf Coast Emergency Water Infrastructure Assistance Act. Amends CWA Title VI
to provide favorable treatment for certain projects in response to Hurricane Katrina; also
allows states to provide assistance for wastewater treatment and drinking water projects that
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are not included on states’ intended use plan) Introduced September 15, 2005; referred to
Environment and Public Works Committee. Passed Senate by voice vote September 27.
S. 2781 (Inhofe)
Wastewater Treatment Works Security Act of 2006. Amends the CWA to enhance the
security of wastewater treatment works facilities by encouraging treatment works to conduct
vulnerability assessments and site security plans. Introduced May 8, 2006; referred to
Environment and Public Works Committee. Approved by committee May 23.
FOR ADDITIONAL READING
National Research Council, National Academy of Sciences. Assessing the TMDL Approach
to Water Quality Management. National Academy Press, Washington, D.C. June 2001.
82 p.
U.S. Congressional Budget Office. Future Investment in Drinking Water and Wastewater
Infrastructure. Washington, November 2002. 58 p.
U.S. Environmental Protection Agency. The National Water Quality Inventory: 2000
Report. Washington, September 2002. “EPA-841-R-2-001.” 207 p.
——. The Clean Water and Drinking Water Infrastructure Gap Analysis. Washington,
September 2002. “EPA-816-R-02-020.” 50 p.
——. Clean Watersheds Needs Survey 2000, Report to Congress. Washington, August 2003.
“EPA-832-R-03-001.” 1 vol.
U.S. Government Accountability Office. Key EPA and State Decisions Limited by
Inconsistent and Incomplete Data. (GAO/RCED-00-54) March 2000. 73 p.
——. Water Infrastructure: Information on Financing, Capital Planning, and Privatization.
(GAO-02-764) August 2002. 79 p.
CRS Issue Briefs and Reports
CRS Issue Brief IB89102. Water Quality: Implementing the Clean Water Act, by Claudia
Copeland.
CRS Issue Brief IB97014. Wetland Issues, by Jeffrey Zinn and Claudia Copeland.
CRS Report RL30030. Clean Water Act: A Summary of the Law, by Claudia Copeland.
CRS Report 97-831. Clean Water Act and Total Maximum Daily Loads (TMDLs) of
Pollutants, by Claudia Copeland.
CRS Report RL32884. Pesticide Use and Water Quality: Are the Laws Complementary or
In Conflict? by Claudia Copeland.
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CRS Report 98-323. Wastewater Treatment: Overview and Background, by Claudia
Copeland.
CRS Report 96-647. Water Infrastructure Financing: History of EPA Appropriations, by
Claudia Copeland.
CRS Report RL31116. Water Infrastructure Needs and Investment: Review and Analysis
of Key Issues, by Claudia Copeland and Mary Tiemann.
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