Clean Water Act Reauthorization

Order Code IB10001

CRS Issue Brief for Congress

Received through the CRS Web

Clean Water Act Reauthorization

Updated May 23, 2000

Claudia Copeland

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

CONTENTS

SUMMARY

MOST RECENT DEVELOPMENTS

BACKGROUND AND ANALYSIS

Introduction

Legislative Activity in the 104th Congress

The 105th Congress

The Administration's Clean Water Action Plan

The 106th Congress

Issues in the 106th Congress

Managing Animal Waste

TMDLs and State Water Quality Standards

Regulatory Protection of Wetlands

Management of Nonpoint Source Pollution

Funding Municipal Wastewater Treatment

Other Issues

Stormwater

Combined and separate sewer overflows

CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

FOR ADDITIONAL READING

CRS Issue Briefs

CRS Reports

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Clean Water Act Reauthorization

SUMMARY

In the 105th Congress, legislation to

reauthorize the Clean Water Act was not

introduced, and no major House or Senate

committee activity occurred. In the 104th

Congress, the House passed a comprehensive

reauthorization bill, but controversies arose

and the Senate did not take up the Housepassed bill. The Act could present issues for

the 106th Congress; whether and how it will be

considered is unclear at this time. No major

activity occurred in the first session, and none

has been scheduled in the second session,

although action on a number of individual

clean water bills has occurred.

Likely to be of interest if Congress does

consider the Act are pending regulatory actions by EPA and the Department of Agriculture to strengthen management of waste

from animal feeding operations. How the

proposals will be funded and impacts on agricultural producers could be addressed.

Congress also could review 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. There has been little implementation of the provision, up until the recent filing

of numerous lawsuits against EPA and states

for failing to comply with its requirements.

TMDL requirements and costs facing states

and others to implement this provision have

drawn considerable attention.

EPA and states’ water quality inventories

have identified wet weather flows (including

agricultural runoff, urban stormwater, and

sewer overflows) as the largest remaining

threat to water quality. EPA’s clean water

programs are now focusing to a large extent

on solving wet weather pollution problems.

Congressional Research Service

These issues may be addressed legislatively, as

well. At issue is whether and how to detail

wet weather programs in the Act versus allowing flexibility that recognizes the site-specific

nature of intermittent wet weather pollution.

Programs that regulate activities in wetlands, such as Section 404 of the Act, have

been criticized by landowners for intruding on

private land-use decisions and imposing excessive economic burden. Yet, environmentalists

and conservationists view these programs as

essential for maintaining the health of wetland

ecosystems. Because of continuing wide

disagreement about the nature of needed

reforms, it has been difficult for policymakers

to reach consensus.

Clean Water Act amendments in 1987

initiated a program of grants to capitalize State

Water Pollution Control Revolving Funds, or

SRF loan programs, for wastewater treatment

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 another element of the reauthorization

debate.

Other issues have been debated recently,

such as reforming the law to provide regulatory relief for industry, states and cities, and

individual landowners. The debate over many

of these issues highlights differing views of the

Act and its implementation by some who seek

to strengthen existing requirements and others

who believe that costs and benefits should be

more carefully weighed before additional

control programs are mandated.

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MOST RECENT DEVELOPMENTS

Neither House nor Senate committees have scheduled major legislative activity on the

Clean Water Act, and no comprehensive reauthorization bills have been introduced in the

106th Congress. However, a number of bills dealing with individual water quality issues

have passed the House or the Senate, including H.R. 673, H.R. 999, H.R. 1106, H.R. 1237,

H.R. 2328, H.R. 2957, H.R. 3039, H.R. 3313, and S. 835, and several other bills have been

reported by committees. House and Senate committees have held several oversight hearings

on implementation of current law and Administration water quality initiatives. Whether

these oversight hearings will lead to broader legislative activity is unclear.

In October 1997, Vice President Gore directed federal agencies to develop a Clean

Water Initiative to improve and strengthen the nation’s water pollution control efforts. A

multi-agency Plan was released in February 1998 which identifies more than 100 actions.

Most are existing activities, now labeled as part of the Initiative. It did not include

legislative proposals to reauthorize the Act. The President’s FY1999 budget requested $2.5

billion for five departments and agencies to fund the Initiative. Final appropriations for

FY1999 to fund the Initiative were $2.0 billion and provided less than 10% of the budgetary

increases sought by the Administration. For FY2000, the Administration requested $2.5

billion to fund the Initiative, including $450 million in increases above FY1999 levels.

FY2000 appropriations bills provide about $2.2 billion of the total requested. For FY2001,

the budget requests $2.8 billion, a 27%increase above FY2000 levels. On May 13, 1999,

the Senate Environment and Public Works Committee held the first congressional oversight

hearing on the Initiative.

BACKGROUND AND ANALYSIS

Introduction

The principal law governing pollution in the nation’s streams, lakes, and estuaries is the

Federal Water Pollution Control Act (P.L. 92-500, enacted in 1972), commonly known as the

Clean Water Act (amended by P.L. 95-217 in 1977, P.L. 97-117 in 1981, and P.L. 100-4 in

1987). It consists of two major parts: regulatory provisions that impose progressively more

stringent requirements on industries and cities to abate pollution and meet the statutory goal

of zero discharge of pollutants; and provisions that authorize federal financial assistance for

municipal wastewater treatment construction. Both parts are supported by research activities,

plus permit and enforcement provisions. Programs at the federal level are administered by

the Environmental Protection Agency (EPA); state and local governments have major

responsibilities to implement those programs. (Note: A summary of the Act with details and

"hot links" to sections of the U.S. Code can be found in the online version of this issue brief,

which is available on the CRS Home Page/Full Text of CRS Online Products.) Prior to the

104th Congress, congressional efforts to amend the Act dealt with all of these aspects, with

the objective of strengthening water quality programs. Legislation passed by the House in

1995, but not enacted (H.R. 961), also was comprehensive but had the primary objective of

making the law more flexible and less prescriptive.

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The objective declared in the 1972 Act is to restore and maintain the chemical, physical,

and biological integrity of the nation’s water. That objective was accompanied by statutory

goals to eliminate the discharge of pollutants into navigable waters by 1985 and to attain,

wherever possible, waters deemed “fishable and swimmable” by 1983. While those goals

have not yet been achieved, considerable progress has been made, especially in controlling

conventional pollutants (suspended solids, bacteria, and oxygen-consuming materials)

discharged by industries and municipal sewage treatment plants. Nearly 75% of assessed

waters comply with standards for these pollutants. Progress has been mixed in controlling

discharges of toxic pollutants (heavy metals, inorganic and organic chemicals), which are

more numerous and can harm human health and the environment even when present in minute

amounts — at the parts-per-billion level. Moreover, efforts to control pollution from diffuse

sources (rainfall runoff, for example) have only recently begun. Overall, data reported by

EPA and states indicate that 40% of waters surveyed by states fail to meet water quality

standards. Forty-seven states now have some form of fish-consumption advisory in effect

(including 100% of Great Lakes waters and a large portion of the nation's coastal waters),

due to water pollution problems, and one-third of shellfishing beds are closed or restricted,

due to toxic pollutant contamination.

In 1987 Congress passed major amendments, the first comprehensive revision to the law

in a decade (P.L. 100-4). (For further information, see CRS Issue Brief IB89102, Water

Quality: Implementing the Clean Water Act.) Authorizations for a number of the provisions

expired in FY1990 and FY1991, for programs such as general grant assistance to states,

research, and general EPA support. Authorizations for wastewater treatment assistance

expired in FY1994. None of these programs lapsed, however, as Congress has continued to

appropriate funds to implement the Act.

Legislative Activity in the 104th Congress. In the 104th Congress, the Clean Water

Act was one of the first environmental laws to receive congressional attention. A House

Committee on Transportation and Infrastructure subcommittee held oversight hearings on

clean water issues in February and March 1995. Committee Chairman Shuster introduced a

comprehensive reauthorization bill, H.R. 961, on February 15. It was approved by the full

Committee on April 6 (H.Rept. 104-112). On May 16, 1995, the House passed H.R. 961

(240-185). (For additional information, see CRS Report 95-427, Clean Water: Summary

of H.R. 961, As Passed.)

H.R. 961 reflected efforts to make the CWA more flexible and less prescriptive and to

address a number of regulatory relief issues of concern to many — industries, states, and

cities, in particular — who criticized what they viewed as excessive and prescriptive clean

water regulation. These reform efforts were evident in the bill’s amendments to the standards

and regulatory requirements and wetlands permit provisions of current law. The legislation

was endorsed by a number of industry groups, as well as state and local government groups,

but was opposed by environmental groups and the Clinton Administration. EPA officials said

that the bill would undermine the existing framework for protection of U.S. waters.

In the Senate, reauthorization legislation was not introduced, and no hearings on H.R.

961 were held. However, a Senate Environment and Public Works subcommittee held three

hearings in 1995 on S. 851, legislation to revise the CWA Section 404 dredge and fill permit

program that was similar to wetlands reforms included in H.R. 961, and a hearing on wetlands

mitigation banking issues in 1996. In December 1995, the Committee held a hearing on CWA

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issues affecting municipalities, including funding and implementation of regulatory programs

to manage stormwater and combined sewer overflows.

The 105th Congress. Congressional committees did not undertake any legislative

activity on clean water issues in the 105th Congress, and no comprehensive reauthorization

legislation was introduced. During the first session, committees that have jurisdiction over

the Act (Senate Environment and Public Works and House Transportation and Infrastructure)

gave priority to two other bills, reauthorization of Superfund and the Intermodal Surface

Transportation Efficiency Act (ISTEA). However, in April 1997, the House Transportation

and Infrastructure Subcommittee on Water Resources and Environment began oversight

hearings on issues that could assist in developing reauthorization legislation. One hearing,

concerning clean water and drinking water infrastructure needs, was followed by another on

regulatory and judicial developments affecting wetlands. A Senate subcommittee held a

similar hearing on wetlands issues in June 1997. No further congressional activity occurred.

The Administration's Clean Water Action Plan. In October 1997, on the 25th

anniversary of the CWA, Vice President Al Gore announced an initiative intended to build on

the environmental successes of the Act and to address the nation’s remaining water quality

challenges, especially nonpoint source pollution. The Vice President directed EPA and

USDA to coordinate the work of other federal agencies to develop an action plan to improve

and strengthen water pollution control efforts. The purpose of the plan is to coordinate

federal efforts to achieve three goals: enhanced protection from public health threats posed

by water pollution, more effective control of polluted runoff, and promotion of water quality

protection on a watershed basis.

President Clinton and Vice President Gore released the action plan in February 1998.

Components of the plan, nearly 100 actions, consist mainly of existing programs, including

some planned regulatory actions that agencies have had underway, now to be enhanced with

increased funding or accelerated with performance-specific deadlines. (The text is available

at [http://www.cleanwater.gov/].) The individual elements of the plan are built on four

concepts: utilizing collaborative watershed-based partnerships to clean up impaired waters;

maintaining strong federal and state standards; calling on federal natural resource and

conservation agencies to assist in restoring and protecting watersheds; and ensuring that

citizens and officials have improved information for decisionmaking.

Complementing the plan, the President’s FY1999 budget identified the Clean Water

Initiative as a high-priority for environmental programs. It requested a total of $2.5 billion,

a $609 million, or 33%, increase over FY1998 base levels, to fund activities in five

departments and agencies, plus interagency funds. Almost one-half of the increases, $265

million, was designated as assistance to states and localities or to individual landowners.

The action plan was not accompanied by legislation to reauthorize the CWA. In

Congress, it was considered primarily through the appropriations process, rather than

authorizing committee activity. Funding to support the plan is contained in several separate

appropriations bills, including the Omnibus Consolidated and Supplemental Appropriations

Act (P.L. 105-277) passed just before the 105th Congress adjourned. In those bills,

congressional support for the action plan was quite mixed. Appropriators funded few

budgetary elements of the Action Plan, citing reasons such as difficulty in supporting new

initiatives, on top of existing priorities. Overall, the bills provided less than 10% of the

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increased funds requested by the Administration. While EPA received close to full funding

for the requested action plan activities contained in its budget, other agencies and departments

received no or only small increases to support the plan.

The FY1999 increases for EPA totaled $121 million and consisted of $95 million more

for grants to states to manage nonpoint source pollution (a 95% increase for CWA Section

319 grants); $20 million more for grants for state administration of water quality programs

(a 20% increase for Section 106 grants); and $7 million for various EPA water quality

activities, including development of water quality criteria for nutrients and updated

regulations for animal feeding operations, other grants for watershed restoration and wetlands

protection, and EPA actions to reduce the need for fish advisories. Other involved

departments include USDA, the Departments of Interior and Commerce, and the U.S. Army

Corps of Engineers.

In the President's FY2000 budget request, the Administration sought an additional $450

million ($2.5 billion total) for Clean Water Action Plan activities. Appropriations to fund

federal activities under the Plan were passed in four FY2000 bills which provided $2.2 billion

of the total requested. EPA and USDA officials say that the Plan will be implemented, even

though funds have been less than requested. Implementation will occur, they say, because

they believe that the Plan's many actions are the only way to achieve the Clean Water Act's

water quality goals. For FY2001, the budget requests $2.8 billion, a 27% increase above

FY2000 levels.

(For further information, see CRS Report 98-150, The Clean Water Action Plan:

Background and Early Implementation, and CRS Report 98-745, The Clean Water Action

Plan: Budgetary Initiatives.)

On May 13, 1999, the Senate Environment and Public Works Committee held the first

congressional oversight hearing on the Plan. The Committee heard from federal and state

government representatives, as well as members of the public. Agency witnesses addressed

how the Plan and its implementation are involving the public, states and localities, and federal

agencies in intergovernmental partnerships. Other witnesses and some Committee members

questioned the degree to which the Plan actually reflects state, local, public, and congressional

input and whether federal agencies have the legal authority to be taking some of the

contemplated actions. Questions also were raised about the scientific basis of the Plan,

because of inadequate national water quality data. Testimony from the hearing is available

at [http://www.senate.gov/~epw/stm1_106.htm#5-13-99].

The 106th Congress. Neither House nor Senate committees have scheduled major

legislative activity on the CWA, and no comprehensive reauthorization bills have been

introduced. However, bills dealing with a number of individual issues have received attention,

particularly in the House, which passed several measures in April and May, 2000. On April

12, the House passed two bills. One, H.R. 2328 (H.Rept. 106-560), would reauthorize the

clean lakes program (CWA §314) at a level of $50 million per year through FY2005. A

second bill, H.R. 3039 (H.Rept. 106-550), would expand federal and interstate efforts that

currently exist through the CWA for restoration of the Chesapeake Bay (CWA §117). In

May, the House passed H.R. 2957 (H.Rept. 106-594), authorizing $108 million for a Lake

Pontchartrain Basin restoration program. It also authorizes $100 million for an inflow and

infiltration project in New Orleans. The House also passed H.R. 673 (H.Rept. 106-592),

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authorizing EPA to make infrastructure improvement grants to improve water quality in the

Florida Keys marine ecosystem, and H.R. 1106 (H.Rept. 106-593), authorizing EPA to make

grants on a cost-shared basis for alternative water source projects to enhance water supplies.

Finally, in May, the House also passed H.R. 1237 (H.Rept. 106-596) to reauthorize the

National Estuary Program (CWA sec. 320) and H.R. 3313 (H.Rept. 106-597) to reauthorize

funding for the Long Island Sound estuary program (CWA sec. 119) and to establish a system

for trading nitrogen credits within the Long Island Sound watershed. (For additional

information, see CRS Report 97-644, National Estuary Program.)

On April 22, 1999, the House approved a bill, the Beaches Environmental Assessment,

Cleanup, and Health Act (H.R. 999, H.Rept. 106-98), addressing concerns that some have

raised about lack of uniformity of coastal water quality monitoring activities and failure of

states to adopt stringent water quality criteria for coastal recreational waters. The bill would

require states to adopt EPA water quality standards for bacteria within 3-1/2 years and to

monitor coastal recreation areas. It authorizes grants up to $30 million per year to assist

states and localities in meeting the requirements. Similar legislation has been introduced in

the Senate (S. 522), and the Senate Environment and Public Works Committee held a hearing

on these bills in July 1999. On April 13, 2000, the Senate committee approved both H.R. 999

and S. 522.

On March 30, the Senate passed S. 835, the Estuary Habitat Restoration Act (S.Rept.

106-189). It would establish a federal interagency council to develop a national strategy for

selecting and prioritizing estuary habitat restoration projects and authorizes $315 million over

5 years for such projects. Earlier that month, the House Transportation and Infrastructure

Committee approved a companion bill, H.R. 1775 (H.Rept. 106-561, pt. 1).

The Senate Environment and Public Works Committee held hearings in October 1999

on several clean water bills, including an October 7 hearing on proposals dealing with clean

water infrastructure funding (S. 914, S. 968, and S. 1699) and an October 13 hearing on a

bill concerning federal facility compliance with the CWA (S. 669), a bill to extend SRF

assistance to water conservation projects (S. 188), and legislation to amend the stormwater

provisions of the CWA (S. 1706). Also in October, the Committee approved legislation

authorizing appropriations for the Long Island Sound estuary cleanup program (S. 1632,

S.Rept. 106-182) and a bill modifying provisions of the Act concerning cleanup of

Chesapeake Bay (S. 492, S.Rept. 106-181).

The Senate and House also have passed separate versions of legislation to continue

several reports to Congress authorized under the Clean Water Act (S. 1730, S.Rept. 106-190;

H.R. 4052, H.Rept. 106-555). The Federal Reports Elimination and Sunset Act of 1995 (P.L.

104-66) authorized the elimination of numerous agency reports to congressional committees

at the end of 1999 unless Congress acted to continue specific reports. Congress extended the

deadline until May 15 in the Consolidated Appropriations Act for FY2000 (P.L. 106-113).

S. 1730 would continue two CWA reports; H.R. 4052 would continue 12 reports.

Issues in the 106th Congress

Prospects for reauthorization of the entire Act in the 106th Congress are dim, as attention

is focusing, instead, on individual programs within the Act (discussed above). Comprehensive

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reauthorization issues that might be addressed are not, for the most part, easily amenable to

straight-forward, consensus solutions. Many involve making difficult tradeoffs between

impacts on different sectors of the economy, taking action when there is technical or scientific

uncertainty, and allocating governmental responsibilities for implementing the law. (For

additional information, see CRS Report 98-946, Clean Water Act Issues in the 106th

Congress.) EPA Administrator Carol Browner has been quoted in press reports as saying that

the agency is not planning to propose any major environmental legislation in the 106th

Congress, preferring to focus on achieving regulatory advances under existing law, out of

concern that congressional action could weaken the Administration's environmental protection

principles.

Managing Animal Waste

A key element of the Clean Water Action Plan is to minimize public health and

environmental impacts of runoff from animal feeding operations (AFOs), which are

agricultural facilities that confine livestock feeding activities, thus concentrating animal

populations and manure. Animal waste is frequently applied to land for disposal and to utilize

the nutrient value of manure to benefit crops. If not managed properly, it can pose a number

of risks to water quality and public health, contributing pollutants such as nutrients, sediment,

pathogens, and ammonia to the environment. Agricultural runoff has been linked to

dangerous toxic microorganisms such as Pfiesteria piscicida, which is widely believed to be

responsible for major fish kills and disease events in several mid-Atlantic states.

Existing EPA regulations, issued in the 1970s, require CWA discharge permits for the

largest AFOs (about 6,000 out of 450,000 total facilities nationwide). However, EPA

acknowledges that compliance and enforcement of these permit rules is poor (less than onethird of covered facilities actually have permits) and that the regulations themselves are

outdated. In September 1998, EPA and the Department of Agriculture jointly proposed a

draft strategy containing a number of steps to improve compliance and strengthen existing

regulations, obtain better information through data collection and research on water quality

impairments, and coordinate federal and state activities. The agencies solicited public

comment on the draft strategy and held 11 "listening sessions" around the country to gather

further comments that will form the basis of a final joint strategy later this year.

EPA and USDA issued a final national AFO strategy March 9, 1999. It proposes that

all AFOs, regardless of size, should develop and implement comprehensive nutrient

management plans by 2009. The plans would include manure handling and storage,

application of manure to land, recordkeeping, feed management, land management, and other

manure-use options. Officials estimate that 95% of all AFOs will be encouraged to

voluntarily implement nutrient management plans, while 15,000 to 20,000 large-scale

operations will be required to develop the plans as part of CWA discharge permits. Also,

EPA will work with states on a 2-phase approach for permitting animal feedlot operations:

requiring coverage of large-scale operations by permits by 2005; and revising existing

regulations by 2002. Issues that Congress may address include impacts and costs imposed

on the agricultural sector, which for the most part is not regulated by the Clean Water Act

or other EPA programs; how the anticipated combination of regulatory and incentive-based

measures will achieve the goal of minimizing water pollution from confinement facilities and

land application of manure; and whether legislation is needed to define national rules and

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policies regarding animal waste. (For additional information, see CRS Report 98-451,

Animal Waste Management and the Environment: Background for Current Issues.)

TMDLs and State Water Quality Standards

The CWA requires states to identify pollution-impaired water segments and develop

"total maximum daily loads" (TMDLs) that set the maximum amount of pollution that a water

body can receive without violating water quality standards. If a state fails to do so, EPA is

required to develop a priority list for the state and make its own TMDL determination. Most

states have lacked the resources to do TMDL analysis, which involve complex assessments

of water quality problems, pollution sources, and needed pollution reductions, and EPA has

both been reluctant to override states and has also lacked resources to do so. Thus, there has

been little implementation of the provision (Section 303(d)), which Congress enacted in 1972.

Since 1995, citizen groups have filed more than 30 lawsuits against EPA and states for

failure to fulfill CWA TMDL requirements. The lawsuits have increased public attention to

the TMDL program. Of the suits tried or settled to date, 11 have resulted in court orders

forcing EPA to oversee the establishment of TMDLs. In July 1998, EPA received

recommendations from an advisory group on regulatory and administrative changes to

strengthen and clarify the TMDL program (the text is available at

[http://www.epa.gov/owow/tmdl/advisory.html]). These recommendations formed the basis

of program changes that EPA proposed in August 1999; final rules are expected later in 2000.

The proposal sets forth criteria for states, territories and Indian tribes to identify impaired

waters and establish all TMDLs within 15 years. It would require more comprehensive

assessments of waterways, detailed cleanup plans, and timetables for implementation.

The August 1999 proposal has become highly controversial because of issues such as

burdens on states, industries, cities and others to implement a revised TMDL program and

potential impacts on some agriculture and forestry sources which are not now subject to

CWA regulations. The controversies also have drawn congressional attention. Eight

congressional hearings have been held, so far. In October 1999, a House Agriculture

subcommittee held an oversight hearing on impacts of the TMDL program and other recent

Administration water quality initiatives on agriculture (see

[http://commdocs.house.gov/committees/ag/hag10640.000/hag10640_0f.htm]). The Senate

Agriculture Committee also held a hearing on TMDL program changes on February 23

[http://www.senate.gov/~agriculture/Hearings/2000_Hearing/wl00223.htm]. A House

Transportation and Infrastructure subcommittee held two days of oversight hearings in

February, as well [http://www.house.gov/transportation/ctisub5.html], and a subcommittee

of the Senate Environment and Public Works Committee held hearings on March 1, March

23, May 6, and May 18 (see [http://www.senate.gov/~epw/stm1_106.htm]). A House

Agriculture subcommittee held a field hearing in North Carolina on May 22.

TMDL issues that have drawn recent congressional interest include details of the TMDL

requirements and deadlines and adequacy of resources for states to develop TMDLs and

related assessments. Several legislative proposals have been introduced, including H.R.

3609, H.R. 3625, S. 2041, and S. 2139, bills which would exempt agriculture and forestry

activities from CWA permit requirements. Another bill, S. 2417, would increase

authorizations for two CWA grant programs (nonpoint source management and state

implementation funds) to assist in TMDL development. This bill also would delay

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implementation of new TMDL rules for up to 18 months, pending a study by the National

Academy of Sciences. A similar bill, H.R. 4502, also would delay implementation of final

TMDL rules, pending an NAS study. (For additional information, see CRS Report 97-831,

Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants and CRS Report

RL30422, EPA’s Total Maximum Daily Load (TMDL Program: Highlights of Proposed

Changes and Impacts on Agriculture.)

Regulatory Protection of Wetlands

Restoring and protecting wetlands is a key features of the Administration's Clean Water

Action Plan. One element of the plan is a goal of achieving a net gain of as many as 100,000

acres of wetlands annually by the year 2005. Even before this specific policy goal was

declared, how best to protect the nation's remaining wetlands and regulate activities taking

place in wetlands has become one of the most contentious environmental policy issues,

especially in the context of the CWA, which contains a key wetlands regulatory tool, the

permit program in Section 404. Section 404 has evolved through judicial interpretation and

regulatory change to become one of the principal federal tools used to protect wetlands,

although that term appears only once in Section 404 itself and is not defined there. (For

further information, see CRS Issue Brief IB97014, Wetlands Issues.)

Unlike the rest of the Act, the permit aspects of Section 404 are administered by the U.S.

Army Corps of Engineers, using EPA guidance. Other federal agencies including the Fish and

Wildlife Service (FWS) and Natural Resource Conservation Service (NRCS) have significant

but more limited roles in the Corps’ permitting decisions. Tension has existed for many years

between the regulation of activities in wetlands under Section 404 and related laws, on the

one hand, and the desire of landowners to develop property that may include wetlands, on the

other hand. The conflicts over wetlands regulation have for the most part occurred in

administrative proceedings, as Congress has not amended Section 404 since 1977, when it

provided exemptions for categories of routine activities, such as normal farming and forestry.

Pressure to revise Section 404 and wetlands regulation in general has grown. In January

1989, the four federal agencies that regulate wetlands activities adopted and issued a federal

manual to provide a uniform definition and method for delineating wetland areas. While the

manual was intended to provide consistency among the Corps, EPA, FWS, and NRCS, one

result was a perception in some regions that areas not previously regulated now are

considered wetlands and are subject to permit requirements. Developers and other groups

contend that wetlands regulatory programs have been extended to areas with little or no

resource value, yet at great cost to the landowner.

In August 1993 the White House announced new federal policies in an effort to reconcile

conflicting interests in wetlands issues. The policies embody several principles and a large

number of regulatory, administrative, and legislative details. Some were implemented by the

Administration quickly (such as designating the NRCS as the lead agency for wetlands

determinations on agricultural lands), while others are not yet complete (such as establishing

a new administrative appeals process for review of wetlands permit decisions). Nonetheless,

many critics of federal wetlands programs contend that these administrative changes do not

provide the full extent of reform that they believe is needed.

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Among recent proposals for amending Section 404, a number of issues have been raised,

including whether all wetlands should be treated the same or not and whether some could be

accorded less stringent regulatory protection, whether activities or areas covered by

regulation should be modified, and whether the institutional arrangements for implementing

Section 404 (at federal and state levels) should be revised. Views on each of these issues

vary. Many conservationists and environmentalists contend that any changes would weaken

wetlands protection, while many landowners say that changes are needed to make the

regulatory program workable again. Some also argue that the CWA should compensate

landowners whose property is adversely affected by regulatory "takings" due to Section 404

requirements, since an estimated 74% of all remaining wetlands are on private lands. During

the last three Congresses, the continuing focus on Section 404 effectively overshadowed

congressional consideration of other portions of the Act and was a key reason why no action

on comprehensive reauthorization legislation occurred.

Two developments have pushed wetlands onto the congressional agenda recently. One

is a January 1997 Federal District Court decision, upheld by an appeals court in June 1998,

that voided the so-called “Tulloch” rule, issued by the Corps in 1993, which expanded the

scope of regulation to include certain landclearing and excavation activities (American Mining

Congress v. U.S. Army Corps of Engineers, No. 93-1754, Jan. 23, 1997 (D.D.C.)). Corps

officials view the ruling as a major setback for the regulatory program, as do

environmentalists. Industry groups support the decision. For now, the ruling leaves unsettled

the scope of the Corps' authority to regulate certain activities. The second development was

the Corps’ reissuance in December 1996 of nationwide permits, which are a key means by

which the Corps minimizes the burden of its regulatory program. In the 1996 revisions, the

Corps made changes to strengthen the environmental restrictions on one of the permits that

has been most controversial, Nationwide Permit 26 (NWP 26). The changes to this permit

pleased wetland protection advocates but were opposed by development and commercial

interests who contend that permitting will now be more burdensome. Further, in March 2000,

the Corps issued six new permits to entirely replace NWP 26, which will take effect June 7.

The replacement permits have been criticized both by developers, who say the new permits

would be of little benefit to them, and environmentalists, who say the permits are too

expansive and would result in environmental damage to wetlands. (For more information, see

CRS Report 97-223, Nationwide Permits for Wetlands Projects: Permit 26 and Other Issues

and Controversies.)

Wetlands policy issues were addressed in P.L. 106-60, the FY2000 Energy and Water

Development appropriations bill. As approved by the House in July 1999, this bill (H.R. 2605)

included two provisions. One would have required the Corps to modify a recently-established

administrative appeals process for certain Corps regulatory decisions to allow unsuccessful

appellants to directly challenge the decisions in court (prior to a final permit decision). The

Administration opposed this provision, saying that it would impose excessive burdens on the

Corps and the courts, while landowner and developer groups favor it. The final bill included

language providing that $5 million in additional funds for the Corps’ regulatory program in

FY2000 shall be used to establish an administrative process for appeals of jurisdictional

determinations by the Corps but deleted the House provision that would have made such

decisions directly appealable to federal courts.

The House-passed bill also included a provision to require the Corps to submit a study

on the workload impact and compliance costs of replacement permits for NWP 26, but no

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later than December 30. Landowner and developer groups supported the House-passed

provision, contending that the costs and impacts should be better identified before revised

permits are issued, but the Administration opposed it, saying that the study was unnecessary

and, even with a December 30 deadline, would increase wetlands loss in the nation by

delaying issuance of replacement permits. The final bill modified the House language by

directing the Corps to study the workload impacts and costs of compliance of the proposed

replacement permits, but dropped language that would have required submission of a report

to Congress before publication of final permits.

Management of Nonpoint Source Pollution

Nonpoint source pollution is diffuse runoff of pollutants from farm lands, forests, city

streets, construction sites, mines, and other areas. As the more traditional point sources of

pollution (from industry and sewage treatment plants) are controlled, nonpoint source

pollution represents a larger and more pervasive portion of total water quality problems. EPA

estimates that nonpoint sources are responsible for more than 50% of water quality standard

violations and that agricultural sources contribute 80% of the violations from nonpoint

sources. Pollutants vary widely and include sediments and other conventional (e.g., nutrients)

and toxic wastes that degrade water quality. In broad terms, EPA views nonpoint source

pollution and similar types of pollution that are intermittent in nature and are related to wet

weather events (such as urban stormwater runoff and sewer overflows, discussed below) as

the largest remaining threat to water quality nationwide.

The 1987 amendments established the first comprehensive program to address nonpoint

source pollution problems in a new Section 319 of the Act. While the Act previously had

provided for state and regional planning to address all sources and types of pollution,

nonpoint sources have been viewed as so diverse and site-specific that they are not amenable

to national standards or controls. Moreover, controlling nonpoint sources typically requires

controlling individual actions associated with land use, decisions generally made by state and

local governments. Nonpoint source controls are difficult because the diffuse and intermittent

nature of the sources makes it hard to quantify individual contributions and because

regulatory authority for implementing and enforcing controls relies on local authority.

Nevertheless, Section 319 reflects a widespread recognition that failure to manage nonpoint

sources will prevent achieving the nation’s overall water quality objectives.

Section 319 consists of three elements. First, states were required to assess the extent

of nonpoint source-related water quality impairments. Second, they were to develop and

implement plans for managing nonpoint sources. Third, Section 319 authorized $400 million

in grants to states for plan implementation. After several years of implementing the 319

program, EPA and states began discussions on how to make administrative changes that

would result in more effective control of nonpoint source pollution. EPA wanted states to

review and revise their programs to achieve specific elements and goals, while states desired

more flexibility and relief from oversight. In May 1996, EPA issued revised program

guidance, based on negotiations with states, that is intended to streamline the 319 program

and to make it more effective and responsive. States that meet criteria in the guidance can

be designated as leadership or Tier I states, making them eligible for incentives such as multiyear grants, reduced reporting, and self-assessment by states themselves.

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The approach embodied in Section 319 reflects belief that, because the sources of

nonpoint pollution are diverse, as are the geographic areas it affects, management solutions

are best if they are tailored to local conditions, not dictated through national rules and

regulations. Nonetheless, Congress and others have been reviewing the adequacy of EPA and

state activity to implement Section 319 and the possible need for program modification.

Pressure to address nonpoint pollution issues more expressly in the Act has grown for several

reasons. First, increased public scrutiny of impaired waters and the TMDL provisions of the

Act (discussed above) focuses attention on what controls states might necessarily impose on

both nonpoint and point sources to achieve standards in waters that remain polluted. Second,

the Administration's pending strategy to address animal waste problems (also discussed

above) envisions using incentive-based and voluntary measures by the agricultural sector to

achieve greater control of agricultural runoff that adversely affects water quality. Greater

scrutiny of nonpoint pollution, including agricultural contributions, may occur as this strategy

is developed and implemented. In a CWA reauthorization initiative, Congress may address

agricultural pollution problems specifically. In addressing nonpoint pollution issues, a key

question is whether and how to establish programs in the CWA with minimum standards to

continue progress towards water quality goals, while providing flexibility and incentives for

sources to manage polluted runoff.

Funding Municipal Wastewater Treatment

The Act’s program of financial aid for municipal wastewater treatment plant

construction is a central feature of the law. Since 1972 Congress has provided $69 billion to

assist cities in achieving requirements for secondary treatment of municipal sewage

(equivalent to 85% reduction of wastes), or higher where required by local water quality

conditions. State and local governments have spent more than $25 billion of their own funds,

as well. Nevertheless, funding needs remain very high: an additional $139.5 billion

nationwide over the next 20 years for all types of projects eligible for funding under the Act,

according to the most recent estimate by EPA and the states completed in 1996 (the report

is available from EPA via [http://www.epa.gov/owm/toc.htm]). EPA is currently completing

a new study, called the Gap Analysis, to assess the difference between current federal funding

for CWA programs and total funding needs. Drafts of this analysis reportedly indicate that,

over the next two decades, the United States needs to spend $300 billion to replace existing

water infrastructure systems and to build new ones. According to the new data, by the year

2020, the United States will need to spend $21 billion per year to meet capital expenditures

for wastewater treatment, compared with about $9.4 billion being spent annually now. At

issue has been how to assist states and cities, especially in view of such high projected funding

needs.

The 1987 amendments initiated a program of grants to capitalize State Water Pollution

Control Revolving Funds (SRFs), or loan programs. This new Title VI program replaced the

previous categorical grants program, under which the federal share was 55% of project costs

and localities were not obligated to repay federal funds that they received. Under the

revolving fund concept, monies used for construction will be repaid by loan recipients to the

states, to be recycled for future construction in other communities, thus providing an ongoing

source of financing. States are required to deposit a 20% match of the federal amount. The

intent of the 1987 amendments was that federal contributions to SRFs would assist in making

a transition to full state and local financing by FY1995. The essential tradeoff embodied in

these provisions was that states would have greater flexibility to set priorities and administer

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funding in exchange for an end to federal aid after FY1994. (For additional information, see

CRS Report 98-323, Wastewater Treatment: Overview and Background.)

All states have established the legal and procedural mechanisms to administer the new

loan programs and are now eligible to receive SRF capitalization funds under Title VI. Some

with prior experience using similar financing programs moved quickly, while others had

difficulty in making a transition from the previous grants program to one that requires greater

financial management expertise for all concerned. Moreover, many states have complained

that the SRF program is unduly complicated by federal rules — some contained in the statute,

others in EPA guidance — even though states were intended to have greater flexibility.

Congressional oversight since 1987 has examined the progress towards reducing the backlog

of wastewater treatment facilities needed to achieve the Act’s water quality objectives, but

newer estimates of future funding needs, discussed above, are drawing increased attention

from Members of Congress and others.

Small communities and states with large rural populations have experienced the largest

share of problems with the SRF program. Many small towns did not participate in the

previous grants program and consequently are likely to require major projects to achieve

compliance with the law. Yet these communities often lack an industrial tax base and thus

face the prospect of very high per capita user fees, if their citizens are required to repay the

full capital cost of sewage treatment projects. (For additional information, see CRS Report

98-64, Rural Water Supply and Sewer Systems: Background Information.)

The General Accounting Office has identified several factors affecting states’ ability to

lend their SRF funds, including (1) lack of experience in some states in managing such

programs; (2) financial factors, such as the inability of small communities to afford SRF loans,

and the ability of larger cities to borrow at lower rates directly from the bond market; and (3)

various state-specific factors. Some Members of Congress have expressed concern that states

have been unable to make loans fast enough to keep pace with congressional appropriations,

leading to suggestions that the SRF program should be restricted. States are strong

supporters of the SRF program and contend that inexperience plus other factors, such as

resistance by some communities to the shift from grants to a loan program, contributed to

initial delays in some states.

While initial intent was to phase out federal support for this program, Congress has

continued to appropriate grants to the states, providing an average of $1.6 billion annually in

recent years. Recently, the SRF provisions have been less controversial than others in the

Act, such as wetlands reform, because of apparent general agreement on the need to extend

funding assistance (as reflected in continued appropriations). The CWA's SRF provisions also

were a model for similar provisions added to the Safe Drinking Water Act in 1996 (P.L. 104182). However, because remaining clean water funding needs are still so large, at issue is

whether and how to extend SRF assistance to address those needs, how to allocate SRF funds

among the states, and how to modify the program to aid priority projects. Of particular

concern is assisting small and economically disadvantaged communities that have had the

most difficulty in adjusting from the Act's previous categorical grants program to loans.

There also is interest in availability and adequacy of SRF funding for projects dealing with

combined and separate sewer overflow problems (discussed below). Several SRF

reauthorization bills have been introduced (H.R. 2720, S. 188, S. 1699) and hearings have

been held, but no further action on these proposals has occurred.

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Other Issues

Other issues could receive attention as part of the water quality agenda.

Stormwater. Stormwater discharge systems are the pipes and sewer lines that carry

rainwater or snow melt (but not sanitary wastes) away from urban areas and commercial and

industrial facilities. Although stormwater is discharged from pipes, it is intermittent and

weather-dependent. Thus, it has characteristics of both point and nonpoint pollution.

Although stormwater can transport significant amounts of pollutants, it had been largely

unregulated until the 1987 amendments directed EPA to implement a specific permit program

for stormwater discharges from industrial sources and municipalities. Delays in issuing

regulations, coupled with high compliance costs (especially for some cities), have been

frustrating and controversial. Industrial facilities and cities with populations of 100,000 or

more are in the process of obtaining and complying with permits under EPA’s current

regulations. Smaller cities were to comply with rules that EPA was to have issued by October

1993. However, EPA missed that deadline and subsequently the agency worked with an

advisory committee of stakeholders to develop rules for regulating smaller stormwater

dischargers. Draft rules were proposed in December 1997, and final rules were issued in

October 1999. (For further information, see CRS Report 97-290, Stormwater Permits: Status

of EPA’s Regulatory Program.) Questions of how small sources will be regulated and the

general complexity of the permit program have brought stormwater back as a legislative issue.

Modifying current law to provide regulatory relief, particularly to municipalities, was a

legislative issue in the 104th Congress. In the 106th Congress, bills dealing with local

government stormwater programs have been introduced (H.R. 3294, S. 1706). These bills

would limit and clarify local governments’ liability for certain types of stormwater discharges.

Combined and separate sewer overflows. Nearly 1,200 municipalities have combined

sewers where domestic sanitary sewage, industrial wastes, infiltration from groundwater, and

stormwater runoff are collected and treated together. These systems serve approximately 40

million persons, mainly in older urban and coastal cities. Normally (under dry-weather

conditions), the combined wastes are conveyed to a municipal sewage treatment plant.

Properly designed, sized, and maintained combined sewers can be an acceptable part of

a city’s water pollution control infrastructure. However, combined sewer overflow (CSO)

occurs when the capacity of the collection and treatment system is exceeded due to high

volumes of rainwater or snowmelt, and the excess volume is diverted and discharged directly

into receiving waters, bypassing the sewage treatment plants. Often the excess flow that

contains raw sewage, industrial wastes, and stormwater is discharged untreated. Many

combined sewer systems are found in coastal areas where recreational areas, fish habitat and

shellfish beds may be contaminated by the discharges.

For a long time, CSOs were not considered a high regulatory or permitting priority for

EPA or states. There are no express provisions in the Act dealing with CSOs, except to the

extent that they are subject to permit requirements and deadlines as are other point sources.

Congress has recognized the impacts of CSO discharges, however, and legislative options to

address the CSO issue directly have been discussed.

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In both the 103rd and 104th Congresses, consensus began to emerge on modifying the

CWA to endorse EPA’s current permitting strategy which was developed in 1994 after

negotiations with key stakeholder groups. As a first priority, EPA’s strategy calls for

eliminating overflows from combined sewers that occur even in the absence of rainfall (due

to overcapacity of the sewers) and then calls for states and cities to address CSOs based on

impacts on water quality and human health. Cities also were to implement nine minimum

controls by Jan. 1, 1997 (e.g., proper operation and maintenance programs for sewer systems

and pollution prevention programs). The EPA strategy does not contain a deadline for

issuance of permits or for controlling CSOs. Deadlines will be contained in plans developed

by permitting authorities. Controls are available and generally are based on combinations of

management techniques (such as temporary retention of excess flow during storm events) and

structural measures (ranging from screens that capture solids to construction of separate

sewer systems). EPA officials stated in May 1998 that only about one-half of the cities with

combined sewers have implemented the minimum measures called for in the 1994 strategy.

EPA is now working with states to remind cities of their obligations to address CSO

problems. However, a formal enforcement strategy is not contemplated.

A more recent issue of concern to some cities is the problem of overflows from

municipal separate sanitary sewers (SSOs) that are not CSOs and do not transport

stormwater. Discharges of untreated sewage from these sewers occur from manholes, broken

pipes and deteriorated infrastructure, and undersized pipes, and can occur in wet or dry

weather. EPA estimates that there are approximately 18,000 municipalities with separate

sanitary sewers, all of which can, under certain circumstances, experience overflows. No

explicit EPA or statutory control policy currently exists. In 1995, EPA convened a

stakeholders’ group to discuss how to address those overflows that pose the highest

environmental and public health risk first. Agency officials are working on a document that

will detail regulatory priorities and circumstances appropriate for enforcement action.

Funding CSO and SSO projects is a major concern of states and cities. On June 22,

1999, a House Transportation and Infrastructure subcommittee held a hearing on CSO, SSO,

and related wet weather issues. The subcommittee heard testimony on the need for additional

federal funding to help municipalities address wet weather-related problems. A number of

witnesses and subcommittee members criticized the Administration's FY2000 budget for clean

water infrastructure, which requested 40% less than was appropriated for FY1999 (see CRS

Issue Brief IB89102, Water Quality: Implementing the Clean Water Act). Witnesses

addressed two legislative proposals (H.R. 828 and a bill introduced after the hearing, H.R.

3570, advocated by a coalition of municipal and technical organizations) which would

authorize CWA grant funding for wet weather sewerage projects and allow regulatory

flexibility for such projects. Witnesses from municipalities and several other interest groups

endorsed these proposals, but an EPA witness opposed them, objecting to creation of new

grant programs and to provisions which EPA believes would delay correcting CSO and SSO

problems. Testimony is available at [http://www.house.gov/transportation/ctisub5.html].

Senate legislation similar to H.R. 828 has been introduced (S. 914) and was discussed at an

October 1999 Senate Environment subcommittee hearing.

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CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

U.S. Congress. Committee on Transportation and Infrastructure. Subcommittee on Water

Resources and Environment. Reauthorization of the Federal Water Pollution Control

Act. Hearings on H.R. 961, held February 9, 16, 21, 24, March 7, 9, 1995. 104th

Congress, 1st session. Washington, U.S. Govt. Print. Off. 2 vols., 3149 p. (104-13)

——

Meeting Clean Water and Drinking Water Infrastructure Needs. Hearing, April 23,

1997. 105th Congress, 1st session. Washington, U.S. Govt. Print. Off., 437 p. (10518)

——

Beaches and Ocean Legislation. Hearing, Aug. 6, 1998. 105th Congress, 2nd session.

Washington, U.S. Govt. Print. Off., 388 p. (105-81)

—— Governors’ Perspectives on the Clean Water Act. Hearing, Feb. 13, 1999. 106th

Congress, 1st session. Washington, U.S. Govt. Print. Off., 56 p. (106-12)

U.S. Congress. Senate. Committee on Environment and Public Works. Clean Water Action

Plan. Hearing held May 13, 1999. 106th Congress, 1st session. Washington, U.S. Govt.

Print. Off., 148 p. (S. Hrg. 106-389)

FOR ADDITIONAL READING

Goplerud, C. Peter. “Water Pollution Law: Milestones from the Past and Anticipation of

the Future.” Natural Resources & Environment, v. 10, no. 2, Fall 1995: 7-12.

Houck, Oliver A. “TMDLs:

The Resurrection of Water Quality Standards-Based

Regulation Under the Clean Water Act.” Environmental Law Reporter News &

Analysis, v. 27, no. 7, July 1997: 10329-10344.

Knopman, Debra S. and Richard A. Smith. “20 Years of the Clean Water Act, Has U.S.

Water Quality Improved?” Environment, v. 31, no. 1, January/February 1993: 16-20,

34-41.

Loeb, Penny. "Very Troubled Waters." U.S. News & World Report, v. 125, no. 12,

September 28, 1998: 39, 41-42.

U.S. Environmental Protection Agency. National Water Quality Inventory: 1994 Report to

Congress. Washington, 1995. “EPA841-R-95-005" 497 p.

—— “Clean Water Agenda, Remaking the Laws that Protect Our Water Resources.” EPA

Journal, v. 20, no. 1-2, summer 1994. Whole issue.

—— Office of Water. Environmental Indicators of Water Quality in the United States.

Washington, 1996. “EPA841-R-96-002" 26 p.

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U.S. General Accounting Office. State Revolving Funds Insufficient to Meet Wastewater

Treatment Needs. (GAO/RCED-92-35) January 1992. 83 p.

—— Many [Water Pollution] Violations Have Not Received Appropriate Enforcement

Attention. (GAO/RCED-96-23) March 1996. 23 p.

—— State Revolving Fund Loans to Improve Water Quality.

December 1996. 20 p.

(GAO/RCED-97-19)

—— Key EPA and State Decisions Limited by Inconsistent and Incomplete Data.

(GAO/RCED-00-54) March 2000. 73 p.

CRS Issue Briefs

CRS Issue Brief IB89102. Water Quality: Implementing the Clean Water Act, by Claudia

Copeland. (Updated regularly)

CRS Issue Brief IB97014. Wetland Issues, by Jeffrey Zinn and Claudia Copeland. (Updated

regularly)

CRS Reports

CRS Report 96-283. Reinventing the Environmental Protection Agency and EPA’s Water

Programs, by Claudia Copeland.

CRS Report 98-946. Clean Water Act Issues in the 106th Congress, by Claudia Copeland.

CRS Report 97-223. Nationwide Permits for Wetlands Projects: Permit 26 and Other Issues

and Controversies, by Claudia Copeland.

CRS Report 98-150. The Clean Water Action Plan: Background and Early Implementation,

by Claudia Copeland.

CRS Report 98-745. Clean Water Action Plan: Budgetary Initiatives, by Claudia Copeland.

CRS Report 98-451. Animal Waste Management and the Environment: Background for

Current Issues, by Claudia Copeland and Jeffrey Zinn.

CRS Report 97-831. Clean Water Act and Total Maximum Daily Loads (TMDLs) of

Pollutants, by Claudia Copeland.

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