Clean Water Issues in the 107th Congress

Order Code IB10069

Issue Brief for Congress

Received through the CRS Web

Clean Water Issues in the 107th Congress

Updated January 9, 2003

Claudia Copeland

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

CONTENTS

SUMMARY

MOST RECENT DEVELOPMENTS

BACKGROUND AND ANALYSIS

Introduction

Legislative and Clinton Administration Activity Since P.L. 100-4

Issues in the 107th Congress

Water Infrastructure Funding

Congressional Activity

TMDLs and State Water Quality Standards

Agricultural Impacts on Water Quality

Regulatory Protection of Wetlands

Other Issues: Wet Weather Pollution Problems

Stormwater

Combined and separate sewer overflows

CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

FOR ADDITIONAL READING

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Clean Water Issues in the 107th Congress

SUMMARY

Key water quality issues currently include: actions to implement existing provisions of the Clean Water Act (CWA), whether

additional steps are necessary to achieve

overall goals of the Act, and the appropriate

federal role in guiding and paying for clean

water infrastructure and other activities. In the

second session of the 107th Congress, House

and Senate committees approved legislation to

reauthorize water infrastructure funding programs (H.R. 3930, S. 1961), but no further

action occurred. Congress did pass a bill with

funding to clean up contaminated sediments in

the Great Lakes (H.R. 1070, P.L. 107-303).

CWA amendments in 1987, the last

comprehensive revision, initiated a program of

grants to capitalize State Water Pollution

Control Revolving Funds, or SRF loan programs, for wastewater treatment plant

construction. States were to have flexibility in

exchange for a phaseout of federal assistance

after FY1994. However, difficulties that some

states and small towns have had in implementing the SRF program, coupled with financing

needs that are estimated to exceed $130 billion nationwide, have made wastewater

treatment funding an important issue.

Congress remains interested in implementation of an existing provision of the Act

that requires states to set “total maximum

daily loads” (TMDLs) of pollution to ensure

that water quality standards are attained. Rules

issued by EPA in July 2000 to strengthen the

TMDL program have been very controversial.

The Bush Administration has decided to

review and revise the Clinton rules.

Congressional Research Service

Also of interest are EPA and USDA actions during the Clinton Administration to

better manage waste discharges from animal

feeding operations, which can pollute waterways. Congress has been examining impacts

on agricultural producers and how the programs will be funded.

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

been criticized by landowners for intruding on

private land-use decisions and imposing

excessive economic burdens. Environmental

groups, who view these programs as essential

for maintaining the health of wetland ecosystems, are concerned about a 2001 Supreme

Court decision that narrowed regulatory protection of wetlands, as well as recent administrative actions which they believe will likewise diminish protection. Because of continuing wide disagreement about the nature of

needed reforms, it has been difficult for

policymakers to reach consensus on legislative

change.

Monitoring data have identified wet

weather discharges to rivers and lakes (including urban stormwater and sewer overflows)

as a serious threat to water quality. Clean

water programs are now focusing on solving

these wet weather pollution problems. At

issue is whether and how to specify wet weather programs in the Act and how to pay for

related pollution control projects.

This issue brief will not be updated. For

information on legislative activity in the 108th

Congress, see CRS Issue Brief IB10108,

Clean Water Act Issues in the 108th Congress.

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MOST RECENT DEVELOPMENTS

The 107th Congress did not enact comprehensive legislation affecting the Clean Water

Act. However, in November, the House and Senate gave final approval to the Great Lakes

Legacy Act (H.R. 1070, P.L. 107-303). It authorizes $250 million for EPA to carry out

projects to remediate sediment contamination in the Great Lakes.

On September 30, 2002,EPA released a study, called the Gap Analysis, which estimates

that over the next 20 years and assuming no growth in investment, there will be a $122

billion gap between current capital spending and projected needs for wastewater

infrastructure projects. Even before this report, Senate and House committees approved

legislation to extend current water infrastructure financing programs. On March 20, the

House Transportation and Infrastructure Committee approved a bill to reauthorize the

Clean Water Act’s State Revolving Fund (SRF) financing program (H.R. 3930). On May 17

the Senate Environment and Public Works Committee approved separate legislation to

reauthorize the Act’s SRF program and make a number of changes to update the program

(S. 1961, S.Rept. 107-228). Because of controversies over provisions of both bills (especially

allocation of funds among the states and prevailing wage requirements), no further action

occurred before the 107th Congress adjourned. Since the September 11, 2001, terrorist

attacks in the United States, congressional attention has focused on security, preparedness,

and emergency response issues, including at the nation’s water infrastructure facilities (both

drinking water and wastewater).

BACKGROUND AND ANALYSIS

Introduction

The principal law that deals with polluting activity in the nation’s streams, lakes, and

estuaries is the Federal Water Pollution Control Act (P.L. 92-500, enacted in 1972),

commonly known as the Clean Water Act (amended by P.L. 95-217 in 1977, P.L. 97-117 in

1981, and P.L. 100-4 in 1987). It consists of two major parts: regulatory provisions that

impose progressively more stringent requirements on industries and cities to abate pollution

and meet the statutory goal of zero discharge of pollutants; and provisions that authorize

federal financial assistance for municipal wastewater treatment plant construction. Both

parts are supported by research activities, plus permit and enforcement provisions. Programs

at the federal level are administered by the Environmental Protection Agency (EPA); state

and local governments have major responsibilities to implement those programs.

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

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

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

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

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

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

discharged by industries and municipal sewage treatment plants.

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Progress has been mixed in controlling discharges of toxic pollutants (heavy metals,

inorganic and organic chemicals), which are more numerous and can harm human health and

the environment even when present in minute amounts — at the parts-per-billion level.

Moreover, efforts to control pollution from diffuse sources, termed nonpoint source pollution

(rainfall runoff from urban, suburban, and agricultural areas, for example) are more recent,

following the traditional focus on point source pollution (discharges from industrial and

municipal wastewater treatment plants). Overall, data reported by EPA and states indicate

that 39% of river and stream miles assessed by states and 45% of assessed lake acres do not

meet applicable water quality standards and are impaired for one or more desired uses.

Forty-four states now have some form of fish-consumption advisory in effect (including

100% of Great Lakes waters and a large portion of the nation’s coastal waters), due to

chemical contaminants in lakes, rivers, and coastal waters, and one-third of shellfishing beds

are closed or restricted, due to toxic pollutant contamination.

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

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

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

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

research, and general EPA support. Authorizations for funding of wastewater treatment

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

continued to appropriate funds to implement the Act.

The Act has been viewed as one of the most successful environmental laws in terms of

achieving its statutory goals, which have been widely supported by interest groups and the

public, but lately some have questioned whether actions to achieve further benefits are worth

the costs. Such criticisms have come especially from industry, which has been the longstanding focus of the Act’s regulatory programs and which often opposes imposition of

additional stringent and costly requirements. Criticism also has come from developers and

property rights groups who contend that federal regulations (particularly the Act’s wetlands

permit program) are a costly intrusion on private land-use decisions. States and cities have

traditionally supported water quality programs and federal funding to assist them in carrying

out the law, but recently many have opposed CWA measures that they fear might impose

new unfunded mandates. Many environmental groups believe that further fine-tuning to

strengthen the Act is needed to maintain progress achieved to date and to address remaining

water quality problems.

Legislative and Clinton Administration Activity Since P.L. 100-4

Following enactment of amendments in 1987, no major CWA legislative activity

occurred until the 104th Congress, when the CWA was one of the first environmental laws

to receive congressional attention. The House approved a comprehensive reauthorization

bill, H.R. 961, in May 1995. It would have amended many of the regulatory and standards

provisions of the law, required the Environmental Protection Agency (EPA) to use extensive

new risk assessment and cost-benefit analysis procedures, and increased flexibility with

regulatory relief from current clean water programs. The proposals in H.R. 961 were among

the early efforts of the Republican majority in the 104th Congress to make changes in

environmental laws and regulations and engendered extensive controversy. The Senate did

not take up that bill or other CWA legislation during the 104th Congress.

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In the 105th Congress, committees did not initiate legislative activity on clean water

issues, and no comprehensive reauthorization legislation was introduced. Committee

leaders, especially in the House, said they would do so only if presented with consensus

proposals that did not raise controversies like those associated previously with H.R. 961.

House and Senate subcommittees held hearings on water infrastructure and wetlands issues,

but no further congressional activity occurred.

Likewise, in the 106th Congress, committees did not pursue comprehensive

reauthorization legislation, but action was taken on bills dealing with specific water quality

issues. Congress passed a bill to strengthen protection of coastal recreation waters through

upgraded water quality standards and coastal waters monitoring programs (P.L. 106-284).

Congress also passed a bill (P.L. 106-457) which reauthorized several existing CWA

programs (i.e., Chesapeake Bay cleanup, clean lakes, and the National Estuary Program).

Congress passed a bill to authorize CWA grant funding for wet weather sewerage projects

(included as a provision of the FY2001 Consolidated Appropriations bill, P.L. 106-554).

Further, the House and Senate also included limitations in appropriations laws intended to

restrict implementation of the Act’s Total Maximum Daily Load program (see discussion

below, TMDLs and State Water Quality Standards). (For additional information, see

CRS Report RL30908, Clean Water Act Issues and Legislation in the 106th Congress.)

During its tenure, the Clinton Administration did not offer proposals to reauthorize the

CWA. EPA Administrator Carol Browner was quoted in press reports as saying that the

agency did not plan to propose any major environmental legislation in the 106th Congress,

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

congressional action could weaken the Clinton Administration’s environmental protection

principles. Instead, EPA began a number of agency-wide and program-specific reforms

focusing on flexibility and “common sense” approaches to regulation, many of which affect

implementation of water quality programs. In 1998, the Clinton Administration released a

multi-agency Clean Water Action Plan intended to build on the environmental successes of

the Act and address many of the nation’s remaining water quality challenges. Its purpose

was to coordinate federal efforts to achieve three goals: enhanced protection against public

health threats posed by water pollution, more effective control of polluted runoff, and

promotion of water quality protection on a watershed basis. Components of the Plan

consisted mainly of existing programs that were proposed to receive increased funding or be

accelerated with performance-specific deadlines. Besides EPA, other involved agencies were

the Departments of Agriculture, Commerce, Interior, and the U.S. Army Corps of Engineers.

Complementing the Plan, President Clinton’s FY1999 budget submission identified it

as a high priority. That year’s was the first of three Clinton budgets that proposed funds to

implement the Plan. During the years FY1999-FY2001, Congress provided a total of $1.24

billion in increases for Plan activities above FY1998 baseline amounts. Each year’s budget

request was higher than the preceding year’s, and while Congress agreed to some increases,

it appropriated amounts less than the Administration had sought. (For information, see CRS

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

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Issues in the 107th Congress

Key water quality issues include: evaluating actions to implement existing provisions

of the Clean Water Act, assessing whether additional steps are necessary to achieve overall

goals of the Act, and defining the appropriate federal role in guiding and paying for clean

water activities. Prospects for initiatives to comprehensively amend the Act have for some

time stalled over whether and exactly how to change the law. Many issues that might be

addressed involve making difficult tradeoffs between impacts on different sectors of the

economy, taking action when there is technical or scientific uncertainty, and allocating

governmental responsibilities for implementing the law.

Many observers have speculated that, rather than taking up comprehensive

reauthorization legislation as it had traditionally done, Congress would consider only narrow

bills to extend or modify selected CWA programs, as was the case in the 106th Congress. If

broader clean water issues receive attention, it could focus on implementation of current

programs for developing total maximum daily loads (TMDLs) to restore pollution-impaired

waters and impacts of agricultural activities on water quality. The Act’s wetlands permit

program, a pivotal and contentious issue in the recent past, also remains on the legislative

agenda for some Members.

More generally, following the September 11, 2001 terrorist attacks on the World Trade

Center and the Pentagon, congressional attention has focused on security, preparedness, and

emergency response issues. Among the many topics of interest is protection of the nation’s

water infrastructure facilities (both drinking water and wastewater) from possible physical

damage, biological/chemical attacks, and cyber disruption. (For information, see CRS

Report RS21026, Terrorist and Security Issues Facing the Water Infrastructure Sector.)

Policymakers are considering a number of legislative options in this area, including enhanced

physical security, communication and coordination, and research. In October 2002, the

House passed legislation to provide $200 million in grants for security activities at

wastewater treatment plants (H.R. 5169). Similar legislation was introduced in the Senate

(S. 3037), but no further action occurred. Congress did enact legislation authorizing $160

million in grants for drinking water utilities to conduct vulnerability assessments (P.L. 107188).

While the 107th Congress focused on water infrastructure legislation (see below), it did

pass one bill amending the CWA. Before adjourning in November, the House and Senate

gave final approval to the Great Lakes Legacy Act (H.R. 1070). It amends the existing Great

Lakes provision of the CWA (Section 118) to authorize $250 million for EPA to carry out

projects to remediate sediment contamination in the Great Lakes. The bill also revises and

reauthorizes CWA provisions concerning the Lake Champlain Basin Program.

Miscellaneous provisions revive a number of CWA reports to Congress that had been sunset

under a previously-passed law (P.L. 104-66) and allow states to use Section 319 grant funds

for stormwater management projects in FY2003. President Bush signed H.R. 1070 on

November 27 (P.L 107-303).

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Water Infrastructure Funding

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

construction is a central feature of the law. At issue today is how the federal government will

assist states and cities, especially in view of the high projected funding needs that exist.

Since 1972 Congress has provided $75 billion to assist cities in constructing projects to

achieve the Act’s requirements for secondary treatment of municipal sewage (equivalent to

85% reduction of wastes), or more stringent treatment where required by local water quality

conditions. The CWA does not authorize funds for operation or maintenance of completed

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

for construction, as well. Nevertheless, funding needs remain very high: an additional

$139.5 billion nationwide by 2016 for all types of projects eligible for funding under the Act,

according to the most recent estimate by EPA and the states, completed in 1996. On

September 30, 2002, EPA released a study, called the Gap Analysis, which assesses the

difference between current spending for wastewater infrastructure and total funding needs

(both capital and operation and maintenance). EPA estimates that, over the next two

decades, the United States needs to spend nearly $390 billion to replace existing wastewater

infrastructure systems and to build new ones. Funding needs for operation and maintenance

are an additional $148 billion, the Agency estimates. According to the study, if there is no

increase in investment, there will be about a $6 billion gap between current annual capital

expenditures for wastewater treatment ($13 billion annually) and projected spending needs.

The study also estimates that, if wastewater spending increases by 3% annually, the gap

would shrink by nearly 90% (to about $1 billion annually). In addition to the Gap Analysis,

EPA and states are preparing a new wastewater needs survey, as required by the CWA,

which will update the 1996 survey. Outside groups, including a coalition called the Water

Infrastructure Network, have offered proposals which have attracted some congressional

interest for a multi-billion dollar investment program in wastewater and drinking water

infrastructure. (For additional information, see CRS Report RL31116, Water Infrastructure

Funding: Review and Analysis of Current Issues.)

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

Control Revolving Funds (SRFs), or loan programs. This program in Title VI of the Act

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

project costs and localities were not obligated to repay federal funds that they received.

Under the revolving fund concept, monies used for construction will be repaid by borrowing

communities to the states, to be recycled for future construction in other communities, thus

providing an ongoing source of financing. States must provide a 20% match of the federal

amount. The intent of the 1987 amendments was that federal contributions to SRFs would

assist in making a transition to full state and local financing by FY1995. The essential

tradeoff was that states would have greater flexibility to set priorities and administer funding

in exchange for ending federal aid after FY1994. (For additional information, see CRS

Report 98-323, Wastewater Treatment: Overview and Background.) In the 107th Congress,

committees considered but did not pass legislation to address these issues (see below).

All states have established the mechanisms to administer the new loan programs and

have been receiving SRF capitalization funds under Title VI for several years. Some with

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

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

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

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SRF program is unduly complicated by federal rules, even though Congress had intended that

states were to have greater flexibility. Congressional oversight since 1987 has examined the

progress towards reducing the backlog of wastewater treatment facilities needed to achieve

the Act’s water quality objectives, but newer estimates of future funding needs, discussed

above, are drawing increased attention from Members of Congress and others.

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

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

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

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

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

full capital cost of sewage treatment projects.

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

continued to appropriate SRF capitalization grants to the states, providing an average of

$1.35 billion annually in recent years. The SRF provisions have been less controversial than

others in the Act, such as wetlands reform, because of apparent general agreement on the

need to extend funding assistance (as reflected in continued appropriations). The CWA’s

SRF provisions also were a model for similar provisions added to the Safe Drinking Water

Act (SDWA) in 1996 (P.L. 104-182). However, because remaining clean water funding

needs are still so large, at issue is whether and how to extend SRF assistance to address those

needs, how to allocate SRF funds among the states, and how to prioritize projects and

funding. Bush Administration officials have said that infrastructure funding needs go beyond

what the federal government can do on its own. Of particular concern is assisting small and

economically disadvantaged communities that have had the most difficulty in adjusting from

the Act’s previous categorical grants program to SRF loans. There also is interest in

availability of SRF funding for projects dealing with combined and separate sewer overflow

problems (discussed below). In the 106th Congress, several SRF reauthorization bills were

introduced and hearings were held, but no further action occurred.

Congressional Activity. During the first session of the 107th Congress, committees

held several hearings on water infrastructure financing and need issues: the Senate

Environment and Public Works Committee held hearings in March and October 2001, and

in the House, separate hearings were held on March 28 by the Transportation and

Infrastructure Committee and the Energy and Commerce Committee.

In the second session, attention turned to specific legislative proposals. On March 13,

the House Transportation and Infrastructure Subcommittee on Water Resources and

Environment held a hearing on H.R. 3930, a bill to authorize $20 billion for the CWA SRF

program through FY2007 and make several programmatic changes, including to the method

for allotting SRF funds to states. At the hearing, EPA witnesses said that the Bush

Administration opposes the high authorization level in the bill, preferring a lower funding

level that would allow SRFs to maintain the current activity level of $2 billion per year. The

full committee approved H.R. 3930 with the $20 billion/5-year funding on March 20. The

committee approved one amendment to provide that Davis-Bacon Act prevailing wage

requirements apply to projects and activities funded by capitalization grants and recycled

monies in an SRF.

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In February, the Senate Environment Committee held two hearings on several bills to

reauthorize the CWA water infrastructure program. The committee heard testimony on S.

252 (a bill to authorize $15 billion in SRF appropriations, expand eligibilities, and authorize

SRF loan subsidies for financially distressed communities), S. 285 (to authorize use of SRF

monies for construction of water conservation and water quality improvements), S. 1044 (to

authorize grant assistance to Chesapeake Bay states for wastewater nutrient removal

projects), and S. 1961 (to authorize $20 billion in CWA SRF appropriations, incorporate

several provisions of the SDWA SRF program into the CWA such as loan subsidies for small

communities, and establish demonstration programs for innovations in technology and

alternative approaches to water quality or water supply management). S. 1961 also would

authorize $15 billion in SDWA SRF appropriations.

On May 17, the Senate committee approved an amended version of S. 1961 (S.Rept.

107-228). It authorizes $20 billion in CWA SRF capitalization grants for 5 years. The

committee adopted several amendments, including reauthorizing a wet-weather grant

program at $250 million a year for 5 years to remedy sewerage overflows (see discussion

below, Combined and separate sewer overflows), revising the Act’s formula for allocating

SRF capitalization grants among the states, and requiring the streamlining of SRF application

procedures. A number of issues were contentious during markup, including debate over an

amendment adopted by the committee to incorporate prevailing wage provisions under the

Davis-Bacon Act, debate over provisions in the bill which some Members argued place

excessive restrictions on SRF funding, and debate over the bill’s revised allocation formula.

No further action occurred on either H.R. 3930 or S. 1961, in large part due to

controversies over the Davis-Bacon Act and allocation formula issues in both measures. (For

information on these bills, see CRS Report RL31344, Water Infrastructure Financing

Legislation: Comparison of S. 1961 and H.R. 3930.) However, water infrastructure funding

legislation is expected to a priority in the 108th Congress.

TMDLs and State Water Quality Standards

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

“total maximum daily loads” (TMDLs) that set the maximum amount of pollution that a

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

EPA is required to develop a priority list for the state and make its own TMDL

determination. Most states have lacked the resources to do TMDL analysis, which involves

complex assessments of water quality problems, pollution sources, and needed pollution

reductions, and EPA has both been reluctant to override states and has also lacked resources

to do so. Thus, there has been little implementation of the provision (Section 303(d)), which

Congress enacted in 1972. At issue today is controversies over implementation of the

existing TMDL program and regulatory revisions that EPA issued in July 2000 to strengthen

that program.

Since the late 1980s, citizen groups have filed more than 40 lawsuits in 38 states against

EPA and states for failure to fulfill the TMDL requirements of the Act. Of the lawsuits tried

or settled to date, 20 have resulted in court orders requiring expeditious development of

TMDLs under timeframes ranging from 8-1/2 to 13 years. The lawsuits have increased

public attention to the TMDL program and led EPA to seek ways to re-focus EPA’s and

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states’ resources on TMDL activities, rather than litigation. In August 1999, EPA proposed

regulatory changes to strengthen the existing program. The proposal set forth criteria for

states, territories and Indian tribes to identify impaired waters and establish all TMDLs

within 15 years. It would require more comprehensive waterway assessments, cleanup plans,

and timetables for implementation.

The 1999 proposal became highly controversial because of issues such as potential

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

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

CWA regulations. The controversies also drew congressional attention, and 13 congressional

hearings were held by the House and Senate Agriculture committees, the House

Transportation and Infrastructure Committee, and Senate Environment and Public Works

Committee during the 106th Congress. Committees and many Members expressed concern

about details of the TMDL requirements and deadlines and adequacy of resources for states

to develop TMDLs and related assessments. Several legislative proposals to modify the

Clean Water Act by explicitly exempting agriculture and forestry from the TMDL program

or to delay the rule were introduced. EPA attempted to respond to the widespread criticism

and signal flexibility on some of the most contentious points. In July 2000, EPA issued a

final revised rule, but controversies persist. The final rule builds on the current TMDL

regulatory program and adds details, specific requirements, and deadlines that require states

to implement plans to clean up polluted waters. It retains the basic elements of the 1999

proposal for more comprehensive identification of impaired waters, schedules and minimum

elements for TMDLs, and new public participation requirements. (For additional

information, see CRS Report 97-831, Clean Water Act and Total Maximum Daily Loads

(TMDLs) of Pollutants.)

TMDL issues were addressed in FY2001 appropriations bills. Prior to the July 4, 2000

congressional recess, the House and Senate approved a FY2001 Military Construction and

emergency supplemental appropriations bill (H.R. 4425, H.Rept. 106-710) that included a

provision to prevent EPA from spending any funds in FY2000 or FY2001 to finalize or

implement new TMDL rules. President Clinton signed the bill on July 13, 2000, in spite of

the TMDL provision, which the Administration opposed (P.L. 106-246). However, EPA

Administrator Browner signed the new TMDL rules 2 days earlier, on July 11, but delayed

the effective date until October 2001 when the limitation in P.L. 106-246 would expire. In

addition, the FY2001 appropriation act providing funds for EPA, P.L. 106-377, signed on

October 27, 2000, included report language mandating studies by the National Academy of

Sciences (NAS) and EPA on the scientific basis of the TMDL program and on the potential

costs to states and businesses of implementing the revised TMDL rules. The NAS report,

examining the role of science in the TMDL program, was issued June 15, 2001. It did not

specifically analyze the July 2000 revised regulations. The NAS panel concluded that

scientific knowledge exists to move forward with the TMDL program and recommended that

EPA and states use adaptive implementation for TMDL development. In many cases, the

report said, water quality problems and solutions are obvious and should proceed without

complex analysis. In other cases, solutions are more complex and require a different level

of understanding and something like phased implementation. A House Transportation

Committee subcommittee held a hearing on the NAS report on June 28, 2001. EPA issued

a draft report on costs of the 2000 TMDL program in August 2001, estimating that average

annual costs to states and EPA of developing TMDLs could be $63-$69 million, while

implementation costs for pollutant sources could be between $900 million and $4.3 billion

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per year, depending on states’ actions. (For information, see CRS Report RL31091, The

Clean Water Act’s TMDL Program: Newly Presented Options and Cost Estimates.) The

General Accounting Office recently reported that inconsistent monitoring, data collection,

and listing procedures used by states to identify impaired waters have hindered efforts to

develop effective TMDL programs (Water Quality: Inconsistent State Approaches

Complicate Nation’s Efforts to Identify Its Most Polluted Waters, GAO-02-186).

In October 2001, the Bush Administration announced that it would delay the effective

date of the 2000 rules for 18 months (until May 2003) to allow EPA officials time to review

the rule and the recent NAS report. This action came after a federal court approved the

Administration’s request for a similar suspension of litigation which is challenging the

regulation (nearly a dozen interest groups have sued EPA over various parts of the TMDL

rule). In the interim, existing rules and requirements and court-sanctioned TMDL schedules

remain in place. A House Transportation and Infrastructure subcommittee held a hearing in

November 2001 to review issues of interest in development of a new rule. On December 20,

2002, EPA proposed to withdraw the July 2000 TMDL rule while it considers initiating an

entirely new rule or other options; no further timeframe was announced. EPA officials said

that implementation of the existing TMDL program will continue, but that additional time

beyond May 2003 is needed to decide whether and how to revise the current program.

Agricultural Impacts on Water Quality

A key element of the Clinton Administration’s Clean Water Action Plan was to

minimize public health and environmental impacts of runoff from animal feeding operations

(AFOs), which are agricultural facilities that confine livestock feeding activities, thus

concentrating animal populations and waste. Animal waste is frequently applied to land for

disposal and to utilize the nutrient value of manure to benefit crops. If not managed properly,

it can pose risks to water quality and public health, contributing pollutants such as nutrients,

sediment, pathogens, and ammonia to the environment. At issue today are controversies over

programs and rules initiated by the Clinton Administration seeking to better control adverse

environmental impacts of agricultural activities.

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

AFOs, termed Confined Animal Feeding Operations (CAFOs, about 12,000 out of 375,000

total facilities nationwide). However, EPA acknowledges that compliance and enforcement

of these permit rules have been poor (fewer than one-fourth of covered facilities actually

have permits) and that the regulations themselves are outdated. In March 1999, EPA and

USDA issued a national AFO strategy containing a number of steps to improve compliance

and strengthen existing regulations, obtain better information through data collection and

research on water quality impairments, and coordinate federal and state activities. It

proposed that all AFOs, regardless of size, should develop and implement comprehensive

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

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

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

implement voluntary nutrient management plans, while 15,000 to 20,000 CAFOs will be

required to develop the plans as part of CWA discharge permits. Also, EPA is working with

states on a 2-phase approach for issuing permits to animal feedlot operations: requiring

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

2002.

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As part of that strategy (and to comply with a settlement agreement to update a number

of industry clean water standards), in December 2000, EPA proposed rules to increase the

number of CAFOs required to obtain CWA permits and to restrict land application of animal

wastes. A House Transportation and Infrastructure subcommittee held an oversight hearing

on this proposal on May 16, 2001. Issues that Congress has addressed include impacts and

costs imposed on the agricultural sector (especially small farmers), which for the most part

is not regulated by the Clean Water Act or other EPA programs; how the proposed

combination of regulatory and incentive-based measures in the National AFO Strategy will

achieve the goal of minimizing water pollution from confinement facilities and land

application of manure; the adequacy of agriculture’s relevant programs to support

implementation; and whether legislation is needed to define national rules and policies

regarding animal waste. (For additional information, see CRS Report RL30437, Water

Quality Initiatives and Agriculture.)

EPA issued final revised CAFO rules on December 16, 2002. The final rules are

generally regarded as less stringent than the December 2000 proposal. The most significant

new provision will require CAFOs to develop nutrient management plans that are intended

to keep livestock waste from entering nearby waters. Farmers are pleased that the rule scales

back some of the proposal, which would, for example, have required co-permitting of

corporate owners of livestock as well as of farmers who actually raise the animals.

Environmentalists, however, contend the rule relies too heavily on voluntary measures to

control runoff, instead of mandating strict compliance with water quality standards.

While the AFO strategy focused mainly on large facilities which are subject to CWA

permit requirements, other activities also are of interest. State and EPA survey data report

that uncontrolled polluted runoff from agriculture and city streets and storm sewers is the

leading cause of water quality impairment in the United States. EPA’s most recent National

Water Quality Inventory Report finds that these nonpoint sources of water pollution, along

with runoff from forestry and construction sites, land disposal activities, and deposition of

air pollution contaminants, contribute more than 50% of remaining water quality problems

in rivers, lakes, and coastal waters. Agriculture is believed to be responsible for the largest

portion of today’s water quality impairments due to polluted runoff–the main source

adversely affecting 48% of impaired river and stream miles and 41% of impaired lake acres,

according to EPA. Scrutiny of nonpoint pollution problems, including from agriculture, may

occur as policymakers assess steps to continue progress towards water quality goals.

Regulatory Protection of Wetlands

Restoring and protecting wetlands also was a key feature of the Clinton

Administration’s Clean Water Action Plan. One element of the plan was a goal of achieving

a net gain of as many as 100,000 acres of wetlands annually by the year 2005. Even before

this specific policy goal was declared, how best to protect the nation’s remaining wetlands

and regulate activities taking place in wetlands had become one of the most contentious

environmental policy issues, especially in the context of the CWA, which contains a key

wetlands regulatory tool, the permit program in Section 404. It requires landowners or

developers to obtain permits for disposal of dredged or fill material that is generated by

construction or similar activity into navigable waters of the United States, including

wetlands. Section 404 has evolved through judicial interpretation and regulatory change to

become one of the principal federal tools used to protect wetlands, although that term appears

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only once in Section 404 itself and is not defined there. At the same time, its implementation

has come to be seen as intrusive and burdensome to those whose activities it regulates. At

issue today is how to address criticism of the Section 404 regulatory program while

achieving desired goals of wetlands protection. (For additional information, see CRS Issue

Brief IB97014, Wetlands Issues.)

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

U.S. Army Corps of Engineers, using EPA environmental guidance. Other federal agencies

including the U.S. Fish and Wildlife Service (FWS) and Natural Resource Conservation

Service (NRCS) have more limited roles in the Corps’ permitting decisions. Tension has

existed for many years between the regulation of activities in wetlands under Section 404 and

related laws, on the one hand, and the desire of landowners to develop property that may

include wetlands, on the other hand. The conflicts over wetlands regulation have for the

most part occurred in administrative proceedings, as Congress has not amended Section 404

since 1977, when it provided permit exemptions for categories of routine activities, such as

normal farming and forestry. Controversy has grown over the extent of federal jurisdiction

and impacts on private property, burdens and delay of permit procedures, and roles of federal

agencies and states in issuing permits.

Proposals to modify Section 404 have presented a number of issues, including whether

all wetlands should be treated the same, or whether some could be accorded less stringent

regulatory protection; whether activities or areas covered by federal regulation should be

modified; and whether federal and state roles in implementing Section 404 should be revised.

Views on these issues vary. Many wetland protection advocates contend that statutory

changes that have been proposed would weaken current protection efforts and that more

modest administrative reforms would effectively improve the current program. Many

landowners say that changes are needed to lessen burdens of the regulatory program. Some

also argue that the CWA should compensate landowners whose property is adversely

affected by regulatory “takings” when application of Section 404 limits desired property use,

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

Legislative proposals for comprehensive reform of wetlands regulatory programs have

been controversial, leading some to focus instead on narrower revisions. Specific issues that

could draw congressional attention include a 1998 federal court ruling that overturned a

regulation (called the Tulloch rule) issued by the Corps and EPA in 1993 that had expanded

the scope of wetlands regulation to certain landclearing and excavation activities that

previously had not been regulated. The Clinton Administration issued a revised Tulloch rule

before leaving office in January 2001, and after reviewing it, the Bush Administration agreed

to let the rule take effect. The revisions were intended to clarify what types of landclearing

and excavation activities are subject to regulation, in light of the 1998 court ruling. Industry

groups have challenged the regulation in court.

Another issue of interest is the Corps’ implementation of the nationwide permit

program, which is intended to minimize the burden of regulation through a streamlined

permitting process. Nationwide permits are issued for periods of no longer than 5 years.

Thus, in January 2002, the Corps reissued all 43 nationwide permits, most of which were last

re-issued in 1996. EPA and environmental groups object to some revisions that the Corps

included in order to add flexibility, including relaxation of certain permit conditions, fearing

that they would result in a net loss of wetland acres. Industry groups favor flexibility in the

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revisions, but say that some requirements for case-by-case review could nullify the positive

aspects. At issue is whether the nationwide permit program has become so complex that it

can neither protect aquatic resources nor provide for a fair regulatory system, which are its

dual objectives. (See CRS Report 97-223, Nationwide Permits for Wetlands Projects:

Regulatory Developments and Current Issues.) Also of interest are impacts of a January

2001 Supreme Court decision that ruled that the Corps’ regulatory authority does not extend

to isolated wetlands, areas which have been among the most controversial in terms of Section

404 jurisdiction (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of

Engineers (531 U.S. 159 (2001)); for information, see CRS Report RL30849, The Supreme

Court Addresses Corps of Engineers Jurisdiction Over “Isolated Waters”: The SWANCC

Decision). The House Government Reform Subcommittee on Energy Policy, Natural

Resources and Regulatory Affairs held a hearing on the government’s response to the

SWANCC decision on September 19 and has continued to press the government to clarify

its interpretation of the Court case.

Controversy also surrounds revised regulations issued by EPA and the Corps in May

2002, which redefine two key terms in the 404 program, “fill material” and “discharge of fill

material.” The agencies say that the revisions are intended to clarify certain confusion in the

program, but environmental groups contend that the changes allow for inadequate regulation

of certain disposal activities, including disposal of coal mining waste. Legislation to reverse

the agencies’ action was introduced (H.R. 4683) in the 107th Congress. (For additional

information, see CRS Report RL31411, Controversies over Redefining “Fill Material”

Under the Clean Water Act.)

While Congress has not been able to agree on how to address regulatory questions, it

has supported programs to restore wetlands and to provide incentives for setting them aside.

For example, interest has grown in creating “mitigation banks,” in which wetlands are

created, restored, or enhanced in advance to serve as “credits” that may be used or acquired

by permit applicants when they are required to mitigate impacts of their activities. Numerous

public and private banks have been established, and federal policy and guidance support the

concept. However, controversy exists over whether it is possible to restore or create

wetlands with ecological and other functions equivalent to or better than those of natural

wetlands that have been lost over time and, thus, whether reliance on mitigation banks is

appropriate. In the 107th Congress, the House Transportation and Infrastructure Water

Resources and Environment Subcommittee held a hearing on September 20, 2001, on H.R.

1474, a bill which promotes restoration, conservation, and enhancement of wetlands by

specifically authorizing a wetlands mitigation banking program. It would require the Corps

to establish standards and criteria for mitigation banking, on-site mitigation, in-lieu fees, and

other off-site mitigation. No further action occurred.

Other Issues: Wet Weather Pollution Problems

In recent years, as projects for treating traditional municipal pollution have been

identified and successfully addressed, water quality officials have turned their attention to

stormwater discharges and overflows from municipal sewer systems. These problems, which

are most often associated with weather events during which rain or snowmelt overwhelm the

capacity of sewerage collection systems, and untreated wastes are discharged directly into

waterways, have received little attention in the past and have been largely uncontrolled. Wet

weather discharges, unlike discharges from industrial facilities, are intermittent and variable

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and present regulatory challenges for policymakers. At issue is whether and how to detail

wet weather programs in the Act versus encouraging flexibility that recognizes the sitespecific nature of intermittent wet weather pollution.

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

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

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

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

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

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

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

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

been frustrating and controversial. Under the regulatory program developed by EPA,

industrial facilities and cities with populations of 100,000 were required to seek stormwater

permits by May 1993. Under the 1987 amendments, smaller cities were to comply with rules

that EPA was to issue by October 1993, but those rules were not issued until October 1999.

Under those 1999 rules, permit applications for small cities are due in March 2003. (For

information, see CRS Report 97-290, Stormwater Permits: Status of EPA’s Regulatory

Program.) Questions of how small sources will be regulated and the general complexity of

the permit program have brought stormwater back as a legislative issue. In the 106th

Congress, several bills dealing with local government stormwater programs were introduced,

but no further action occurred. Those bills proposed to limit and clarify local governments’

liability for certain stormwater discharges.

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

combined sewers where domestic sanitary sewage, industrial wastes, infiltration from

groundwater, and stormwater runoff are collected and treated together. These systems serve

approximately 40 million persons, mainly in older urban and coastal cities. Properly

designed, sized, and maintained combined sewers can be an acceptable part of a city’s water

pollution control infrastructure. Normally (under dry-weather conditions), the combined

wastes are conveyed to a municipal sewage treatment plant. However, combined sewer

overflow (CSO) occurs when the capacity of the collection and treatment system is exceeded

due to high volumes of rainwater or snowmelt, and the excess volume is diverted and

discharged directly into receiving waters, bypassing the sewage treatment plants. Often the

excess flow that contains raw sewage, industrial wastes, and stormwater is discharged

untreated. Many combined sewer systems are found in coastal areas where recreational

areas, fish habitat and shellfish beds may be contaminated by the discharges.

For many years, CSOs were not considered a high regulatory or permitting priority for

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

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

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

to address the CSO issue directly have been discussed.

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

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

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

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

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to normal flows that exceed the capacity of sewers) and then calls for states and cities to

address CSOs based on impacts on water quality and human health. Cities also were to

implement nine minimum controls by January 1, 1997 (e.g., proper operation and

maintenance programs for sewer systems and pollution prevention programs). The EPA

strategy does not contain a deadline for issuance of permits or for controlling CSOs.

Deadlines will be contained in plans developed by permitting authorities. Controls are

available and generally are based on combinations of management techniques (such as

temporary retention of excess flow during storm events) and structural measures (ranging

from screens that capture solids to construction of separate sewer systems). EPA officials

stated in May 1998 that only about one-half of the cities with combined sewers have

implemented the minimum measures called for in the 1994 strategy. EPA is now working

with states to remind cities of their obligations to address CSO problems. However, a formal

enforcement strategy is not contemplated.

A more recent issue that concerns some cities is the problem of overflows from

municipal separate sanitary sewers (SSOs) that are not CSOs because they transport only

sanitary wastes. Discharges of untreated sewage from these sewers occur from manholes,

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

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

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

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

group to discuss how to address those overflows that pose the highest environmental and

public health risk first. On January 5, 2001, EPA finalized regulations that will improve the

operation of municipal sanitary sewer collection systems, reduce the frequency and

occurrence of overflows, clarify the existing CWA prohibition on SSO discharges, and

clarify circumstances appropriate for enforcement action. However, the rules were not

published before the Clinton Administration left office, and the Bush Administration is

currently reviewing the regulations.

Funding for CSO and SSO projects is a major issue for states and cities. At the end of

the 106th Congress, legislation was enacted which amended the CWA to codify EPA’s 1994

CSO policy on sewer overflows (discussed above) and create a 2-year $1.5 billion grant

program to reduce wet weather flows from municipal sewer systems. The text of this bill

was included in the FY2001 Consolidated Appropriations bill, enacted in December (P.L.

106-554; Division B, Title I of H.R. 5666, Section 112). Congress has not provided any

appropriations for this grant program (see CRS Issue Brief IB89102).

CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

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

Water Resources and Environment. Improving Water Quality: States’ Perspectives on

the Federal Water Pollution Control Act. Hearing, February 28, 2001. 107th Congress,

1st session. Washington, U.S. Govt. Print. Off., 53 p. (107-3)

—— Water Infrastructure Needs. Hearing, Mar. 28, 2001. 107th Congress, 1st session, 296

p. (107-8)

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—— Confined Animal Feeding Operations. Hearing, May 16, 2001. 107th Congress, 1st

session, 126 p. (107-21)

—— The Wetlands Permitting Process: Is It Working Fairly? Hearing, Oct. 3, 2001. 107th

Congress, 1st session, 99 p. (107-50)

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

Act of 2002. Report to accompany S. 1961, together with minority views. 107th

Congress, 2d session. Report 107-228. 116 p.

—— Subcommittee on Fisheries, Wildlife, and Water. Water and Wastewater Infrastructure

Needs. Hearing, Mar. 21, 2001. 107th Congress, 1st session, 141 p. (S.Hrg. 107-316)

FOR ADDITIONAL READING

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

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

Houck, Oliver A. “TMDLs:

The Resurrection of Water Quality Standards-Based

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

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

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

September 28, 1998: 39, 41-42.

National Research Council, National Academy of Sciences. ASSESSING THE TMDL

APPROACH TO WATER QUALITY MANAGEMENT. National Academy Press, Washington,

D.C. June 2001. 82 p.

U.S. Environmental Protection Agency. National Water Quality Inventory: 2000 Report.

Washington, September 2002. “EPA841-R-2-001.”

U.S. General Accounting Office. Key EPA and State Decisions Limited by Inconsistent and

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

—— Water Infrastructure: Information on Financing, Capital Planning, and Privatization.

(GAO-02-764) August 2002. 79 p.

CRS Products

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

Pollutants, by Claudia Copeland.

CRS Report RL30908, Clean Water Act Issues and Legislation in the 106th Congress, by

Claudia Copeland.

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CRS Report RL31091, The Clean Water Act’s TMDL Program: Newly Presented Options

and Cost Estimates, by Claudia Copeland.

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

by Claudia Copeland.

CRS Report RL30611, EPA’s Total Maximum Daily Load (TMDL) Program: Highlights

of the Final Revised Rule, by Claudia Copeland.

CRS Report 97-223, Nationwide Permits for Wetlands Projects: Regulatory Developments

and Current Issues, by Claudia Copeland.

CRS Report 96-647, Water Infrastructure Financing: History of EPA Appropriations, by

Claudia Copeland.

CRS Report RL31344, Water Infrastructure Financing Legislation: Comparison of Two

Bills, by Claudia Copeland and Mary Tiemann.

CRS Report RL31116, Water Infrastructure Funding: Review and Analysis of Current

Issues, by Claudia Copeland and Mary Tiemann.

CRS Report RL30437, Water Quality Initiatives and Agriculture, by Claudia Copeland.

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

Copeland.

CRS Report 98-323, Wastewater Treatment: Overview and Background, by Claudia

Copeland.

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

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