Water Quality Issues in the 115th Congress: A Brief Overview

Water Quality Issues in the 115th Congress: A Brief Overview

Updated August 15, 2017
Water Quality Issues in the 115th Congress: A Brief Overview
The Clean Water Act (CWA) of 1972 declared its objective
granted a petition to decide whether federal district or
“to restore and maintain the chemical, physical, and
appellate courts are the proper venue for challenges to the
biological integrity of the Nation’s waters.” Much progress
rule. Oral arguments are not expected until the fall of 2017.
has been made in 45 years toward this objective. Significant
Meanwhile, the Corps and EPA are using guidance and
water quality problems persist, however, and there is little
regulations that were in place prior to the 2015 rule to
consensus among stakeholders about what solutions are
determine CWA jurisdiction, which stakeholders have
appropriate—including whether legislation is required to
asserted is ambiguous and often leads to time-consuming
address remaining problems or whether existing regulatory
case-by-case determinations.
authorities should be revised. In the 115th Congress, interest
in several ongoing issues has continued: defining the scope
In February 2017, President Trump issued an executive
of waters regulated under the CWA, addressing the nation’s
order directing the Corps and EPA to review and rescind or
wastewater infrastructure needs, and determining what (if
revise the rule. A proposed rule, published on July 27, 2017
any) actions should be taken to address controversies over
(82 Federal Register 34899), would “initiate the first step in
CWA permitting requirements.
a comprehensive, two-step process intended to review and
revise the definition of ‘waters of the United States’
Legislative and Oversight Issues
consistent with the Executive Order.” The first step
proposes to rescind the 2015 rule and re-codify the
Defining “Waters of the United States”
regulatory definition of “waters of the United States” as it
Under Section 404 of the CWA, landowners or developers
existed prior to the rule.
must obtain permits to discharge dredged or filled material
into “navigable waters,” defined in the act as “waters of the
In the 115th Congress, bills have focused on repealing the
United States, including the territorial seas” (CWA Section
rule (H.R. 1105) or replacing it with a narrower statutory
502(7)). The Army Corps of Engineers and the U.S.
definition of waters subject to CWA jurisdiction (H.R.
Environmental Protection Agency (EPA), which share
1261). Members of the House and Senate have proposed
implementation of the Section 404 permitting program,
resolutions expressing the sense that the rule should be
have defined this term more fully through regulations, as
withdrawn or vacated (H.Res. 152 and S.Res. 12). The
authorized by the CWA. Supreme Court rulings in 2001 and
Energy and Water Development Appropriations Act, 2018
2006 interpreted the scope of the term more narrowly than
(included in the FY2018 National Security Consolidated
the Corps and EPA had defined it in carrying out their
Appropriations Act), and the Interior, Environment, and
duties under the CWA.
Related Agencies Appropriations Act, 2018 (H.R. 3354), as
reported, contain provisions that would allow withdrawal of
In an effort to respond to the Court’s rulings and reduce
the rule “without regard to any provision of statute or
uncertainty about the scope of waters under CWA
regulation that establishes a requirement for such
jurisdiction, including waters subject to Section 404
withdrawal” (e.g., the Administrative Procedure Act).
permitting requirements, the Corps and EPA issued
guidance and the Clean Water Rule—or “Waters of the
Clean Water Infrastructure Funding
United States (WOTUS) Rule.” The final rule, published in
According to the most recent Needs Survey estimate by
June 2015, has been controversial. The Corps and EPA then
EPA and the states, $271 billion is needed to ensure that the
asserted that the rule does not expand the jurisdiction of
nation’s wastewater treatment facilities meet the CWA’s
regulated waters but rather that it clarifies the definition of
water quality objectives. The Clean Water State Revolving
types of waters with ambiguous jurisdictional status. Some
Fund (CWSRF) program assists states in financing a wide
stakeholders—such as landowners, developers, and
range of water quality infrastructure projects. Through
agricultural interests—criticized the rule for expanding
annual appropriations, EPA provides grants to states to
CWA jurisdiction beyond what Congress intended. States
capitalize SRFs. States use funds primarily to provide
and localities supported efforts to clarify the scope of
subsidized loans to municipalities for eligible projects.
waters covered, but some were concerned about compliance
Loan recipients repay the funds to the states to be used for
costs. Environmental groups generally supported the rule,
future projects, providing an ongoing source of funding.
but some asserted that the scope should be more inclusive.
Congress has appropriated an average of $1.45 billion
annually in recent years for the CWSRF program. Also, the
Industry groups, more than half the states, and several
Water Infrastructure Finance and Innovation Act (WIFIA)
environmental groups filed lawsuits in multiple federal
program is a new source of potential financing for water
district and appeals courts to challenge the rule. An appeals
infrastructure. It authorizes EPA to provide credit assistance
court ordered a nationwide stay of the rule in October 2015
for projects with costs over $20 million. For FY2017,
and later ruled that it had jurisdiction to hear consolidated
Congress appropriated $30 million to EPA, which is
challenges to the rule. In January 2017, the Supreme Court
expected to begin issuing loans in 2017. According to EPA,
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Water Quality Issues in the 115th Congress: A Brief Overview
the appropriations for subsidy costs will allow the agency to
confusing. They also object to conditions that some states
lend approximately $1.5 billion for water infrastructure
attach to EPA’s VGP under CWA Section 401, which they
projects.
assert creates a patchwork of requirements that puts them in
a difficult regulatory position. Many states, however,
Congressional interest in wastewater infrastructure funding
oppose proposals to preempt such state action. Some states
remains steady. Issues include how to allocate SRF funds
and environmental groups favor more stringent numeric
among the states, how to help municipalities prioritize
standards to eliminate aquatic nuisance species invasions
projects and funding, and how to assist small communities
and protect water quality. See CRS Report R42142, EPA’s
that may have difficulty participating in the SRF program.
Vessel General Permits: Background and Issues.
General Permits
In the 115th Congress, related bills (S. 168, H.R. 1154), if
Under the CWA, EPA and states use National Pollutant
enacted, would establish a single federal ballast water
Discharge Elimination System (NPDES) permits to
management standard that would supersede state standards
authorize and regulate discharges of pollutants into the
or permits and current EPA requirements. The bills would
nation’s waters. There are two basic types of NPDES
also make the moratorium for small commercial vessels
permits: (1) individual permits for a specific discharger, and
permanent. The Senate Committee on Commerce, Science,
(2) general permits covering categories of point sources that
and Transportation has reported S. 168 (S.Rept. 115-16).
have common elements and discharge the same waste
types. General permits allow the permitting authority to
Pesticide General Permit (PGP)
allocate resources efficiently—especially when there is a
For decades after enactment of the CWA and the Federal
large number of permittees—and to provide timely permit
Insecticide, Fungicide, and Rodenticide Act (FIFRA), there
coverage. Initially, permitting efforts focused on individual
was little apparent conflict between the two laws. EPA’s
permits for larger industrial and municipal sources. Over
practice was that pesticides used in compliance with FIFRA
time, the scope of permitted sources expanded to include
did not require regulatory consideration under the CWA. In
less traditional sources. Litigation from environmental
2006, EPA formalized its long-standing position that
groups in the 1990s challenging EPA’s practice of not
pesticides applied in a manner consistent with FIFRA did
requiring permits for certain types of discharges (i.e.,
not require NPDES permits. It also clarified that pesticide
incidental discharges from vessels and approved pesticide
applications in violation of FIFRA would be subject to the
applications) resulted in courts requiring EPA to regulate
CWA and permitting requirements. The rule prompted
such discharges. The vessel general permit and the pesticide
multiple lawsuits by industry and environmental groups.
general permit have been controversial, generating
The Sixth Circuit vacated the rule in 2009. In 2011, EPA
congressional interest to address concerns with the permits
issued a PGP, which covered discharges of biological and
or to exclude the sources from CWA permit requirements.
chemical pesticides that leave a residue. It required
permittees to minimize pesticide discharges through pest
Vessel General Permit (VGP)
management measures and to monitor and report adverse
Although the CWA explicitly includes vessels as a point
incidents. EPA renewed the permit in 2016, largely keeping
source subject to the act’s requirements, in 1973 EPA
the same requirements.
excluded discharges incidental to the normal operation of
vessels, including ballast water, from CWA permitting
Critics of the PGP assert, among other concerns, that CWA
requirements. Decades later, environmental groups
requirements are duplicative of FIFRA and burdensome,
challenged the regulation over concerns including the
particularly when using pesticides to combat public health
introduction of aquatic nuisance species through ballast
threats, such as mosquito-borne diseases. Supporters side
water discharges. In 2005, a federal court ruled that the
with court rulings stating that FIFRA and CWA have
1973 regulation contradicted the intention of Congress to
different purposes and that complying with FIFRA does not
regulate discharges from vessels under the CWA and later
obviate the need to obtain a CWA permit. See CRS Report
issued an order revoking the regulatory exclusion. In
RL32884, Pesticide Use and Water Quality: Are the Laws
response, EPA issued a VGP in 2008 covering incidental
Complementary or in Conflict?
discharges into U.S. waters from commercial vessels
greater than 79 feet in length and for ballast water from
Over the past several congresses, Members have introduced
commercial vessels of all sizes. Upon expiration, EPA
many bills on the issue, including efforts to nullify the 2009
replaced it with the 2013 VGP, which establishes
ruling, amend the CWA or FIFRA to exclude pesticide
requirements for 27 discharge categories. Similar to the
applications from CWA permitting requirements, and
2008 permit, the 2013 VGP includes best management
clarify congressional intent regarding the regulation of
practices and recordkeeping requirements for ballast water.
pesticide use in or near U.S. waters. In the 115th Congress,
However, it further specifies ballast water numeric
House-passed H.R. 953 and a related Senate bill (S. 340)
discharge limits, which are identical to standards set by the
would, with some exceptions, prohibit EPA or a state from
International Maritime Organization as well as U.S. Coast
requiring NPDES permits for discharges of pesticides from
Guard standards finalized in 2012.
point sources into navigable waters if the discharges are
approved under FIFRA.
Although stakeholders agree on the need for measures to
control discharges, key issues remain. Maritime industry
Laura Gatz, Analyst in Environmental Policy
groups have raised concerns that EPA’s permit overlaps
with Coast Guard rules, making implementation costly and
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Water Quality Issues in the 115th Congress: A Brief Overview

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