Water Quality Issues in the 114th Congress: An Overview

Congressional research reportDec 13, 2016

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Water Quality Issues in the 114th Congress:

An Overview

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R43867

Water Quality Issues in the 114th Congress: An Overview

Summary

Much progress has been made in achieving the ambitious goals that Congress established in 1972

in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological

integrity of the nation’s waters. However, long-standing problems persist, and new problems have

emerged. Water quality problems are diverse, ranging from pollution runoff from farms and

ranches, city streets, and other diffuse or “nonpoint” sources, to toxic substances discharged from

factories and sewage treatment plants.

There is little agreement among stakeholders about what solutions are needed, whether legislation

is required to address the nation’s remaining water pollution problems, or whether regulatory

authorities should be reduced. For some time, efforts to comprehensively amend the CWA have

stalled as interests have debated whether and exactly how to change the law. Congress has instead

focused legislative attention on enacting narrow bills to extend or modify selected CWA

programs, but not comprehensive proposals.

Programs that regulate activities in wetlands have been of particular interest recently, especially

CWA Section 404, which has been criticized by landowners for intruding on private land-use

decisions and imposing excessive economic burdens. Environmentalists view this regulatory

program as essential for maintaining the health of wetland ecosystems, and they are concerned

about court rulings that have narrowed regulatory protection of wetlands. Many stakeholders

desire clarification of the act’s regulatory jurisdiction, but they differ on what solutions are

appropriate. In 2015, the Environmental Protection Agency (EPA) and the Army Corps of

Engineers finalized a rule intended to clarify jurisdictional issues in light of two key Supreme

Court rulings, but the rule, which has been stayed by a federal court, remains controversial inside

and outside of Congress.

Another prominent water quality issue for some time has concerned financial aid for municipal

wastewater treatment projects. House and Senate committees have approved bills to reauthorize

CWA assistance on several occasions, but, for various reasons, no legislation other than

appropriations was enacted. At issue has been the role of the federal government in assisting

states and cities in meeting needs to rebuild, repair, and upgrade wastewater treatment systems,

especially in light of capital costs that are projected to be more than $270 billion over the next 20

years. The 113th Congress enacted legislation that created a pilot program to provide federal credit

assistance for water infrastructure projects (P.L. 113-121). In December 2016, the program

received initial appropriated funds, and EPA expects to begin making loans in 2017. P.L. 113-121

also revised certain of the water infrastructure funding provisions of the CWA.

A number of other water quality issues have been the subject of congressional oversight and

legislation for some time, with some legislators highly critical of EPA’s recent regulatory

initiatives and others more supportive. In several cases, policymakers have sought to curtail water

quality protection initiatives under the CWA following court rulings that expanded the regulatory

scope of the law. Among the topics of particular interest has been regulation of surface coal

mining activities in Appalachia. Congressional interest in this and other topics has been reflected

in specific legislative proposals and debate over policy provisions of bills providing

appropriations for EPA. Members from both parties have raised questions about the costeffectiveness of some of EPA’s actions and whether the agency has exceeded its authority. In the

114th Congress, scrutiny of EPA initiatives continued to be intense.

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Water Quality Issues in the 114th Congress: An Overview

Contents

Introduction ..................................................................................................................................... 1

Legislative and Oversight Issues ..................................................................................................... 3

Regulatory Protection of Wetlands and CWA Regulatory Jurisdiction ..................................... 4

Judicial Proceedings Involving Section 404 ....................................................................... 4

Authorization of Clean Water Infrastructure Funding............................................................. 10

Issues Affecting Legislative Efforts .................................................................................. 13

WIFIA Pilot Program and SRF Amendments in P.L. 113-121.......................................... 14

Other Clean Water Act Issues .................................................................................................. 15

Mountaintop Mining in Appalachia .................................................................................. 16

Continuing Issue: Appropriations .................................................................................................. 17

FY2016 Appropriations ........................................................................................................... 17

FY2017 Appropriations ........................................................................................................... 17

Tables

Table 1. Clean Water SRF Capitalization Grants, FY2008-FY2017 request................................. 12

Contacts

Author Contact Information .......................................................................................................... 18

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Water Quality Issues in the 114th Congress: An Overview

Introduction

Much progress has been made in achieving the ambitious goals that Congress established more

than 40 years ago to restore and maintain the chemical, physical, and biological integrity of the

nation’s waters. However, long-standing problems persist, and new problems have emerged.

Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city

streets, and other diffuse or “nonpoint” sources, to “point” source discharges of metals and

organic and inorganic toxic substances from factories and sewage treatment plants.

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

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

commonly known as the Clean Water Act, or CWA. It consists of two major parts: regulatory

provisions that impose 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 governments have primary

day-to-day responsibilities to implement CWA programs through standard-setting, permitting,

enforcement, and administering financial assistance programs. Local governments also have

important roles in implementing water quality protection programs, such as building and

operating municipal wastewater treatment plants and regulating local pollution sources.1

The water quality restoration objective declared in the 1972 act was accompanied by statutory

goals to attain, wherever possible, waters deemed “fishable and swimmable” by 1983 and to

eliminate the discharge of pollutants into navigable waters by 1985. Although 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 sewage treatment plants.

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

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

environment even when present in very small amounts—at the parts-per-billion level. Moreover,

efforts to control pollution from diffuse sources, termed nonpoint source pollution (rainfall runoff

and snowmelt from urban, suburban, and agricultural areas, for example), are more recent, given

the earlier emphasis on “point source” pollution (discharges from industrial facilities and

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

44% of river and stream miles assessed by states and 64% of assessed lake acres do not meet

applicable water quality standards and are impaired for one or more desired uses.2

Over the last decade, working with states and tribes, EPA has conducted a series of national

aquatic resource assessments, to gather information on the ecological condition of the nation’s

waters. In 2006 EPA issued an assessment of streams and small rivers, reporting that 67% of U.S.

stream miles are in poor or fair condition and that nutrients and streambed sediments have the

largest adverse impact on the aquatic species in these waters.3 A similar assessment of the health

of the nation’s lakes, issued in 2016, found that 31% have degraded benthic macroinvertebrate

For further information, see CRS Report RL30030, Clean Water Act: A Summary of the Law, by (name redac ted) .

U.S. Environmental Protection Agency, National Water Quality Inventory: Report to Congress, 2004 Reporting

Cycle, EPA 841-R-08-001, January 2009, http://water.epa.gov/lawsregs/guidance/cwa/305b/2004report_index.cfm.

U.S. Environmental Protection Agency, Wadeable Streams Assessment: A Collaborative Survey of the Nation’s

Streams, EPA 841-B-06-002, December 2006, http://www.epa.gov/owow/streamsurvey/.

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Water Quality Issues in the 114th Congress: An Overview

communities, which include small aquatic creatures like snails and mayflies. It found that nutrient

pollution is a widespread problem across the county. About one in three lakes (35%) has excess

nitrogen, and two out of five lakes (40%) have excess phosphorus.4 Approximately 95,000 lakes

and 544,000 river miles in the United States are under fish-consumption advisories (including

100% of the Great Lakes and their connecting waters), due to chemical contaminants, and onethird of shellfishing beds are closed or restricted due to toxic pollutant contamination. Mercury is

a contaminant of growing concern—in 2010, approximately 16.3 million lake acres and 1.14

million river miles were under fish or shellfish consumption advisory because of elevated

mercury levels. Mercury concentrations in game fish exceed health-based limits in about half of

U.S. lakes.5

A 2016 EPA report found that the condition of coastal waters is a mix of fair and good health,

with about one-third of waters rated as good. In most coastal waterbodies, the sediment quality

and biological condition were judged to be good, but fish tissue samples from species in most

coastal waters showed contamination from various pollutants.6 A fourth survey assessment, also

issued in 2016, evaluated the ecological condition of tidal and non-tidal wetlands. Plant presence,

abundance, and trait information are used to assess biological condition of wetlands, and EPA

reported that less than half of wetland areas nationally have healthy plant communities. Physical

disturbances to wetlands and surrounding habitat, such as surface hardening and vegetation

removal or loss, are the most widespread problems, EPA said.7

The last major amendments to the CWA were the Water Quality Act of 1987 (P.L. 100-4). That

legislation culminated six years of congressional efforts to extend and revise the act and was the

most comprehensive amendments since 1972. Authorizations of appropriations for some

programs provided in P.L. 100-4, such as funding for research and general EPA support, expired

in FY1990 and FY1991. Authorizations for wastewater treatment project funding expired in

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

funds to implement them. EPA, states, industry, and other citizens continue to implement the

1987 legislation.

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

of achieving its statutory goals, which have been widely supported by the public. Lately,

however, some have questioned whether additional actions to achieve further benefits are worth

the costs. Criticism has come from industry, which has been the long-standing focus of the act’s

regulatory programs and often opposes imposition of new stringent and costly requirements.

Criticism also has come from developers and property rights groups who contend that federal

regulations (particularly the act’s wetlands permit program) are a costly intrusion on private landuse decisions. States and cities have traditionally supported water quality programs and federal

funding to assist them in carrying out the law, but many have opposed CWA measures that they

fear might impose new unfunded mandates. Many environmental groups believe that

strengthening of the law is needed to maintain progress achieved to date and to address remaining

water quality problems.

U.S. Environmental Protection Agency, Office of Water and Office of Research and Development, National Lakes

Assessment 2012, A Collaborative Survey of the Nation’s Lakes, EPA-841-R-16-113, December 2016.

Ibid.

U.S. Environmental Protection Agency, National Coastal Condition Assessment 2010, EPA 841-R-15-006, January

2016.

U.S. Environmental Protection Agency, National Wetland condition Assessment 2011: A Collaborative Survey of the

Nation's Wetlands, EPA-843-R-15-005, May 2016.

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Legislative and Oversight Issues

October 2012 marked the 40th anniversary of passage of the Clean Water Act and 25 years since

the last major amendments to the law were enacted. While there has been measurable clean water

progress as a result of the act, observers and analysts agree that significant water pollution

problems remain. However, there is less agreement about what solutions are needed and whether

new legislation is required. Several key water quality issues exist: what additional actions, if any,

should be taken to implement existing provisions of the law; whether additional steps are

necessary to achieve overall goals of the act that have not yet been attained; how to ensure that

progress made to date is not lost through diminished attention to water quality needs; whether

existing regulatory authorities should be reduced; and what is the appropriate federal role in

guiding and paying for clean water infrastructure and other activities. For some time, efforts to

comprehensively amend the act have stalled as interests have debated whether and exactly how to

change the law. Many issues that might be addressed involve making difficult tradeoffs between

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

uncertainty; and allocating governmental responsibilities among federal, state, local, and tribal

entities for implementing the law.

These factors partly explain why Congress has recently focused legislative attention on narrow

bills to extend or modify selected CWA programs, rather than taking up comprehensive proposals.

Other factors also have been at work. These include a lack of legislative initiatives by the

Administration on clean water issues (neither the Clinton nor the Bush Administration proposed

CWA legislation, nor has the Obama Administration), and the high economic cost of addressing

water infrastructure issues.

In recent years, congressional attention turned significantly to oversight and legislation focused

on criticism of EPA regulatory activities—particularly in the House, which has passed a number

of bills to limit EPA’s regulatory authority. The Senate did not act on these measures. The 112th

Congress enacted two bills that amend the CWA. One extended the moratorium for CWA

permitting of certain vessels for an additional year, until December 18, 2014 (P.L. 112-213), and

the other extended authorization of funds for the Lake Pontchartrain Basin program in Section

121 of the act through FY2017 (P.L. 112-237). The 113th Congress enacted several bills with

CWA provisions:



Provisions of water resource legislation with some amendments to CWA Title VI,

plus a pilot program for water infrastructure financing (see “WIFIA Pilot

Program and SRF Amendments in P.L. 113-121” below);

As part of the 2014 farm bill, legislation exempting most silviculture activity

from requiring a CWA permit;8

Legislation providing an additional three-year moratorium for CWA permitting of

certain vessels;9 and

A bill eliminating a number of statutorily required reports to Congress, including

one CWA report (P.L. 113-188).

For discussion, see CRS Report R42883, Water Quality Issues in the 113th Congress: An Overview, by (name re

dacted) .

See CRS Report R42142, EPA’s Vessel General Permits: Background and Issues, by (name redacted) .

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Water Quality Issues in the 114th Congress: An Overview

In the 114th Congress, one CWA bill (other than appropriations, discussed below) was enacted. It

is P.L. 114-162, providing a five-year authorization of appropriations (through FY2021) for the

National Estuary Program in CWA Section 320.

Two CWA issues that have been the focus of much of legislators’ interest in recent Congresses

and are likely to be prominent in the 115th Congress, as well—regulatory protection of wetlands,

in relation to the scope of the regulatory jurisdiction of the CWA, and water infrastructure

financing—are discussed next.

Regulatory Protection of Wetlands and CWA Regulatory

Jurisdiction

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. Much of the

debate has focused on the CWA, which contains a key wetlands regulatory tool. The permit

program in CWA Section 404 requires landowners or developers to obtain permits for disposal of

dredged or fill material that is generated by construction or similar activity into navigable waters

of the United States, including wetlands. Section 404 has evolved through judicial interpretation

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

although that term appears only once in Section 404 itself and is not defined there. At the same

time, its implementation has come to be seen as intrusive and burdensome to those whose

activities it regulates. At issue today is how to address criticism of the Section 404 regulatory

program while achieving goals of wetlands protection in the context of meeting the objectives of

the CWA.10 Recently, the issue of wetlands management and protection has been central to

controversy surrounding an Obama Administration rule to define “waters of the United States,”

that is, which surface waters and wetlands are subject to the CWA’s regulatory requirements and

protection (see “2015 Revised Rule” below).

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

Corps of Engineers, rather than EPA, although the Corps uses environmental guidance jointly

developed with EPA to evaluate permit applications. Also, the act authorizes EPA to veto a 404

permit that does not meet the law’s requirements. Other federal agencies, including the 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 been addressed in administrative and

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

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

has grown over the extent of federal jurisdiction and impacts on private property, burdens and

delay of permit procedures, and roles of federal agencies and states in issuing permits.

Judicial Proceedings Involving Section 404

One issue involving long-standing controversy and litigation is whether isolated waters are

properly within the jurisdiction of Section 404. Waters and wetlands that appear to be isolated—

for example, they are not physically adjacent to navigable surface waters—or streams that are wet

only for portions of the year may appear to provide only some of the values for which wetlands

For additional information, see CRS Report RL33483, Wetlands: An Overview of Issues, by (name redacted) .

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are protected, such as flood control or water purification, even if they meet the technical

definition of a wetland.11 Questions about whether such waters and wetlands are jurisdictional for

CWA purposes have been extensively litigated.

SWANCC and Rapanos

In 2001, the Supreme Court ruled on the question of whether the CWA provides the Corps and

EPA with authority over isolated waters. The Court’s 5-4 ruling in Solid Waste Agency of

Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers12 held that the Corps’ denial

of a 404 permit for a disposal site on isolated wetlands solely on the basis that migratory birds use

the site exceeded the authority provided in the act.

In 2006, the Supreme Court revisited issues related to the extent of CWA jurisdiction in two

consolidated cases brought by landowners (Rapanos v. United States; and Carabell v. U.S. Army

Corps of Engineers) seeking to narrow the scope of the 404 permit program as it applies to

development of wetlands. The issue in both cases had to do with the reach of the CWA to cover

“waters” that were not navigable waters in the traditional sense, but were connected somehow to

navigable waters or “adjacent” to those waters. (The act requires a federal permit to discharge

dredged or fill materials into “navigable waters.”) Many legal and other observers hoped that the

Court’s ruling in these cases would bring greater clarity about the scope of federal jurisdiction.

The Court’s ruling on the two cases was issued in June 2006.13 In a 5-4 decision, a plurality of the

Court, led by Justice Scalia, held that the lower court had applied an incorrect standard to

determine whether the wetlands at issue are covered by the CWA. Justice Kennedy joined this

plurality to vacate the lower court decisions and remand the cases for further consideration, but he

took different positions on most of the substantive issues raised by the cases, as did four other

dissenting Justices.14 Because the several opinions written by the Justices did not draw a clear line

regarding which wetlands and other waters are subject to federal jurisdiction, one result has been

more case-by-case determinations and continuing litigation. There also has been pressure on the

Corps and EPA to clarify the issues through an administrative rulemaking.

The full extent of impacts on the regulatory program resulting from these decisions has remained

somewhat unclear, in part because of different interpretations of both rulings reflected in

subsequent federal court cases. While it continues to be difficult to fully assess how regulatory

protection of wetlands has been affected as a result of the decisions and other possible changes,

the remaining responsibility to protect affected wetlands falls on states and localities.

Environmentalists believe that the Court misinterpreted congressional intent on the matter, while

industry and landowner groups welcomed the rulings. Policy implications of how much the

decisions restrict federal regulation depend on how broadly or narrowly the opinions are applied.

Most federal courts have interpreted SWANCC and Rapanos narrowly, thus limiting effects on

existing permit rules, while a few have read the decisions more broadly, resulting in a more

restrictive interpretation of regulatory jurisdiction.

Scientists generally agree that the presence of a wetland can be determined by a combination of soils, plants, and

hydrology. See the discussion in CRS Report RL33483, Wetlands: An Overview of Issues, by (name redacted) .

531 U.S. 159 (2001).

Rapanos v. United States, 547 U.S. 715 (2006).

For additional information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA):

Rapanos and Beyond, by (name redacted) and (name redacted)

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Corps/EPA Guidance

Following both the SWANCC and Rapanos rulings, EPA and the Corps issued guidance in 2003

and 2008 to enable their field staffs to make CWA jurisdictional determinations in light of the

decisions. Environmental groups criticized the guidance, saying that the agencies were

substantially limiting the scope of waters that are protected by the CWA. Industry groups such as

developers remain frustrated by what they see as inconsistencies and delays in obtaining needed

permits.

The Obama Administration entered this debate in 2011, when EPA and the Corps proposed new

guidance, which was intended to clarify regulatory jurisdiction over U.S. waters and wetlands,

consistent with the Supreme Court decisions and agency regulations. Like previous guidance

documents, the Obama draft examined current regulatory definitions of waters that are subject to

CWA jurisdiction, such as interstate waters, and tributaries (at 33 C.F.R. §328.3 and 40 C.F.R.

§230.3), in light of the Supreme Court’s rulings to determine which waters are clearly subject to

the CWA, which waters are not, and which waters require a case-specific analysis in order to

determine jurisdiction.

The 2011 proposed guidance quickly generated substantial controversy. Some critics argued that

the guidance represented over-reaching by the agencies, beyond authority provided by Congress.

Others faulted the continued reliance on federal guidance, which is not binding and lacks the

force of law, yet can have significant impact on regulated entities. For various reasons, the 2011

draft guidance was not finalized, and in 2013, EPA and the Corps announced that the document

had been withdrawn from interagency review and also announced that revised regulations to

define “waters of the United States” were being developed. In March 2014, the agencies released

a proposed rule that was intended to clarify CWA jurisdiction, but the proposal was extremely

controversial. Groups representing property owners, land developers, and the agriculture sector

contended that it was a massive federal overreach beyond the agencies’ statutory authority. Most

state and local officials are supportive of clarifying the extent of CWA-regulated waters, but some

were concerned that the rule could impose costs on states and localities as their own actions (e.g.,

transportation or public infrastructure projects) become subject to new requirements. Most

environmental advocacy groups welcomed the intent of the proposal to more clearly define U.S.

waters that are subject to CWA protections, but beyond that general support, some favored even a

stronger rule.

2015 Revised Rule

On May 27, 2015, EPA and the Corps issued a final rule revising their regulations that define the

scope of waters protected under the CWA. The revised rule became effective on August 28, 2015,

60 days after publication in the Federal Register.15 The rule was immediately challenged in

federal courts by multiple stakeholders, as described below, and in October 2015, a nationwide

stay of the rule was issued while legal proceedings play out.

The 2015 revised rule retains much of the structure of the agencies’ existing definition of “waters

of the United States.”16 It focuses particularly on clarifying the regulatory status of surface waters

located in isolated places in a landscape and streams that flow only part of the year, along with

Department of the Army, Corps of Engineers, and Environmental Protection Agency, “Clean Water Rule: Definition

of ‘Waters of the United States,’ Final Rule,” 80 Federal Register 37054-37127, June 29, 2015.

The definition of “waters of the United States” is found at 33 C.F.R. §328.3 (Corps) and 40 C.F.R. §122.2 (EPA).

The term is similarly defined in other EPA regulations, as is the term “navigable waters.”

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Water Quality Issues in the 114th Congress: An Overview

nearby wetlands—the types of waters with ambiguous jurisdictional status following the Supreme

Court’s rulings. Like the 2003 and 2008 guidance documents and the 2014 proposal, it identifies

categories of waters that are and are not jurisdictional, as well as categories of waters and

wetlands that require a case-specific evaluation.



Under the final rule, all tributaries to the nation’s traditional navigable waters,

interstate waters, the territorial seas, or impoundments of these waters would be

jurisdictional per se. All of these waters are jurisdictional under existing rules,

but the term “tributary” is newly defined in the rule.

Waters—including wetlands, ponds, lakes, oxbows, and similar waters—that are

adjacent to traditional navigable waters, interstate waters, the territorial seas,

jurisdictional tributaries, or impoundments of these waters would be

jurisdictional by rule. The final rule for the first time puts some boundaries on

what is considered “adjacent.”

Some waters—but fewer than under current practice—would remain subject to a

case-specific evaluation of whether or not they meet the legal standards for

federal jurisdiction established by the Supreme Court. The final rule establishes

two defined sets of additional waters that will be a “water of the United States” if

they are determined to have a significant nexus to a jurisdictional water.

The final rule identifies a number of types of waters to be excluded from CWA

jurisdiction. Some are restatements of exclusions under current rules (e.g., prior

converted cropland); some have been excluded by practice and would be

expressly excluded by rule for the first time (e.g., groundwater, some ditches).

Some exclusions were added to the final rule based on public comments (e.g.,

stormwater management systems and groundwater recharge basins). The rule

makes no change and does not affect existing statutory exclusions: permit

exemptions for normal farming, ranching, and silviculture practice and for

maintenance of drainage ditches (CWA §404(f)(1)), as well as for agricultural

stormwater discharges and irrigation return flows (CWA §402(l)).

The agencies’ intention was to clarify questions of CWA jurisdiction, in view of the Supreme

Court’s rulings and consistent with the agencies’ scientific and technical expertise. Much of the

controversy since the Court’s rulings has centered on the many instances that have required

applicants for CWA permits to seek a time-consuming case-specific evaluation to determine if

CWA jurisdiction applies to their activity, due to uncertainty over the geographic scope of the act.

In the rule, the Corps and EPA intended to clarify jurisdictional questions by clearly articulating

categories of waters that are and are not protected by the CWA and thus limiting the types of

waters that still require case-specific analysis. However, critical response to the proposal from

industry, agriculture, many states, and some local governments was that the rule was vague and

ambiguous and could be interpreted to enlarge the regulatory jurisdiction of the CWA beyond

what the statute and the courts allow.

Officials of the Corps and EPA vigorously defended the proposed rule. But they acknowledged

that it raised questions that required clarification in the final rule. In an April 2015 blog post, the

EPA Administrator and the Assistant Secretary for the Army said that the agencies responded to

criticisms of the proposal with changes in the final rule, which was then undergoing interagency

review. The blog post said that the final rule would make changes such as defining tributaries

more clearly; better defining how protected waters are significant; limiting protection of ditches

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Water Quality Issues in the 114th Congress: An Overview

to those that function like tributaries and can carry pollution downstream; and preserving CWA

exclusions and exemptions for agriculture.17 The 2015 final rule does reflect a number of changes

from the proposal, especially to provide more bright line boundaries and simplify definitions that

identify waters that are protected under the CWA.18 The agencies’ intention was to clarify the

rules and make jurisdictional determinations more predictable, less ambiguous, and more timely.

While some stakeholders believe that the agencies largely succeeded in that objective, others

believe that they did not.

Legal challenges to the 2015 rule were filed in multiple federal courts soon after it was

announced. These lawsuits, filed by industry groups, more than half of the states, and several

environmental groups (nearly 90 plaintiffs in all), will test whether the agencies’ interpretation of

CWA jurisdiction is consistent with the Supreme Court’s rulings and whether the rule complies

with substantive and procedural requirements of the CWA and other laws.

Because of uncertainty about the correct judicial venue for challenging the rule,19 petitions for

review were filed both in federal district courts and appellate courts. The petitions for review in

courts of appeals were consolidated in the U.S. Court of Appeals for the Sixth Circuit. On

October 9, 2015, a three-judge panel of the Sixth Circuit placed a nationwide stay on the rule,

pending further developments. In June 2016, this court set the initial briefing schedule in the

litigation; the court's schedule likely would lead to oral arguments in February 2017 or later.

Other legal complexities remain, however, including continuing district court cases over the rule

in other circuits and pending decisions on the same issue in appeals before other federal appellate

courts.20

As a result of the Sixth Circuit's rulings and ongoing judicial review of the regulation, the Corps

and EPA are again making CWA jurisdictional determinations based on the 2008 guidance, as

they did before promulgation of the 2015 rule.

Legislative Responses

Congressional committees have held oversight hearings on both the SWANCC and Rapanos

decisions, seeking clarification of interpretations and impacts of the rulings. But the uncertainties

about federal jurisdiction over wetlands and other waters raised by the rulings remain highly

controversial. In response, legislation to overturn the decisions by providing a broad definition of

Gina McCarthy and Jo-Ellen Darcy, “Your Input Is Shaping the Clean Water Rule,” EPA Connect, The Official Blog

of EPA’s Leadership, April 6, 2015, http://blog.epa.gov/epaconnect/2015/04/your-input-is-shaping-the-clean-waterrule/#more-3470.

See CRS Report R43455, EPA and the Army Corps’ Rule to Define “Waters of the United States”, by (name re

dacted) .

The judicial review section of the CWA, Section 509, vests exclusive, original review jurisdiction over enumerated

EPA actions under the act in the federal courts of appeals. The initial issue with Section 509 is that none of the listed

EPA actions clearly cover the Clean Water Rule. Indeed, in the preamble to the final rule, EPA and the Corps

acknowledge that “[t]he Supreme Court and lower courts have reached different conclusions on the types of actions

that fall within section 509,” and offers no opinion of its own as to review of the Clean Water Rule. If a court finds that

the rule is not covered by Section 509, review jurisdiction presumably will lie in the district courts pursuant to the

federal question statute. That statute, applicable where no more specific statute provides otherwise, gives the district

courts original jurisdiction over “all civil actions arising under the ... laws ... of the United States.” (28 U.S.C. §1331)

See CRS Legal Sidebar WSLG1369, The EPA/Corps Clean Water Rule: What Court or Courts Get to Rule on the

Legal Challenges?.

For further analysis, see CRS Legal Sidebar WSLG1503, UPDATED: Sixth Circuit Will Hear Challenges to EPA’s

Clean Water Act Jurisdiction (“Waters of the United States”) Rule, but Litigation Uncertainties Remain Unresolved,

by (name redacted)

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“waters of the United States” has been introduced regularly since the 107th Congress, and one

such bill was reported by a Senate committee in the 111th Congress.21 Legislation that instead

would narrow the definition of “waters of the United States” also was introduced.

Stakeholders with different perspectives seemingly agree on one point—that Congress must

clarify the important issues left unsettled by the Supreme Court’s 2001 and 2006 rulings and by

the Corps/EPA guidance—but they disagree on what that would entail. Environmental advocates

argue that legislation is needed to “reaffirm” what Congress intended when the CWA was enacted

in 1972 and what EPA and the Corps have subsequently been practicing until the two Supreme

Court rulings, in terms of CWA jurisdiction. But critics questioned the constitutionality of

legislation that was proposed and asserted that it would expand federal authority, thus likely

increasing confusion, rather than settling it. Indeed, many developer and other groups that have

been critical of EPA and the Corps favor greater restrictions on waters and wetlands that are

considered to be “jurisdictional” for CWA regulatory purposes.

EPA’s and the Corps’ efforts to develop revised Rapanos guidance and revised regulations have

been controversial and received congressional attention. Legislative provisions to prohibit the

agencies from funding activities related to the 2011 draft guidance and the proposed “waters” rule

were included in appropriations bills since the 112th Congress.

Congressional interest has continued to be strong in the 114th Congress. On February 4, 2015, the

Senate Environment and Public Works Committee and the House Transportation and

Infrastructure Committee held a joint hearing on impacts of the 2014 proposed rule on state and

local governments, hearing from public and EPA and Corps witnesses. Hearings also have been

held by other congressional committees. As well, a number of bills were introduced, most of them

intended either to prohibit the agencies from finalizing the 2014 proposed rule or to detail

procedures for a new rulemaking to replace the 2015 rule. Bills have been of several types.22



Joint resolutions of disapproval under the Congressional Review Act. The Senate

and House passed such a resolution (S.J.Res. 22), but President Obama vetoed

the joint resolution on January 19, 2016, and the Senate subsequently failed to

invoke cloture on a motion to proceed to override the veto.

Appropriations bill limitations. Bills with limitations were reported in the Senate

and House in 2015, but the FY2016 Consolidated Appropriations Act (P.L. 114113) contained no such provisions. FY2017 funding bills for EPA and the Corps

included similar provisions, but none of the limitation language has been enacted.

Standalone targeted legislation. The House passed one such bill (H.R. 1732).

Similar legislation was reported in the Senate, but failed to advance (S. 1140).

Broad amendments to the CWA to affirm or clarify Congress’s intention

regarding CWA jurisdiction, including such bills as S. 980 and S. 2705.

None of these bills was enacted, but congressional interest in halting or modifying the “waters of

the United States” rule remained high in 2016 and is likely to continue in 2017.

For information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and

Beyond, by (name redacted) and (name redacted)

For additional discussion, see CRS Report R43943, EPA and the Army Corps’ “Waters of the United States” Rule:

Congressional Response and Options, by (name redacted) .

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Water Quality Issues in the 114th Congress: An Overview

Authorization of Clean Water Infrastructure Funding

Meeting the nation’s needs to build, upgrade, rebuild, and repair wastewater infrastructure is a

significant element in achieving the CWA’s water quality objectives and an issue of continuing

interest to policymakers. The act’s program of financial aid for municipal wastewater treatment

plant construction is a key contributor to that effort. Since 1972, Congress has provided more

than $94 billion to assist local governments 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. State and

local governments have spent more than $25 billion of their own funds for construction, as well.

Federal funds can only be used for construction purposes (i.e., new plants or upgrades), but not

for operation and maintenance of facilities, which are funded from local sources.

Still, funding needs remain very high: an additional $271 billion over the next 20 years, according

to the most recent Needs Survey estimate by EPA and the states, as of January 2012.23 This

estimate includes $198 billion for wastewater treatment and collection systems, which represent

nearly 73% of all needs; $48 billion for combined sewer overflow corrections; $19.2 billion for

stormwater management; and $6.1 billion to build systems to distribute recycled water. Compared

with the previous survey (data as of 2008), documented wastewater infrastructure needs

decreased 20%. States reported declining needs for several reasons, including completion of

major projects, difficulty for some states in obtaining acceptable documentation to substantiate

the costs of projects (particularly for small communities and for stormwater management

projects), and decisions by some states to limit their level of effort on the survey. The largest

decreases were associated with secondary treatment needs, CSO correction needs, and stormwater

management needs.24

While water infrastructure investments are made and projects are built, new funding needs also

are identified. In the 2012 survey, EPA reported increased funding needs for some categories.

Needs for conveyance system repair increased slightly—$3.8 billion, or an 8% increase; while in

the recycled water distribution category, needs increased significantly—$1.1 billion, or a 21%

increase. In the latter case, EPA said that the increase was due to recognition of the positive

benefits of wastewater reuse. The estimates do not explicitly include funding needed to address

security issues, or funding possibly needed for treatment works to adapt to climate change

impacts.

Several states reported large increases in needs between 2008 and 2012, including Colorado,

Georgia, Kentucky, Missouri, and New Mexico, while several other states (Illinois, New Jersey,

Michigan, Pennsylvania, and Utah) reported needs decreasing by 50% or more compared with

2008.

Debate over the nation’s efforts regarding wastewater infrastructure was a central part of the 1987

CWA amendments. The amendments extended through FY1990 the traditional Title II program of

grants for sewage treatment project construction, under which the federal share was 55% of

project costs. The 1987 law initiated a program of grants to capitalize State Water Pollution

Control Revolving Funds (SRFs), which are loan programs, in a new Title VI. Under the

revolving fund concept, monies used for wastewater treatment construction are repaid by loan

U.S. Environmental Protection Agency, Clean Watersheds Needs Survey 2012, Report to Congress, Washington,

January 2016, http://www.epa.gov/sites/production/files/2015-12/documents/cwns_2012_report_to_congress-508opt.pdf.

Ibid., pp. 2, 11.

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Water Quality Issues in the 114th Congress: An Overview

recipients to the states (repayment was not required for grants under the Title II program), to be

used for future construction in other communities, thus providing an ongoing source of financing.

The expectation in 1987 was that the federal contributions to SRFs would assist in making a

transition to full state and local financing by FY1995. Although most states believe that the SRF

is working well, continuing large funding needs have delayed the anticipated shift to full state

responsibility. Thus, SRF issues have been prominent on the Clean Water Act reauthorization

agenda in recent Congresses.25

SRF monies may be used for specified activities, including making loans for as much as 100% of

project costs (at or below market interest rates, including interest-free loans), to buy or refinance

cities’ debt obligations, or as a source of revenue or security for payment of principal and interest

on a state-issued bond. SRF monies also may be used to provide loan guarantees or credit

enhancement for localities. Loans made by a state from its SRF are to be used first to assure

progress toward the goals of the act and, in particular, on projects to meet the standards and

enforceable requirements of the act. After states achieve those requirements, SRF monies also

may be used to implement national estuary programs and nonpoint pollution management. Since

the SRF program began, states have used about 4% of clean water SRF funds to assist nonpoint

management projects and estuary projects.

All states have established the mechanisms to administer the loan program and have been

receiving SRF capitalization funds under Title VI. Congressional oversight has examined the

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

act’s water quality objectives, while estimates of future funding needs have drawn increased

attention to the role of the SRF program in meeting such needs. Although there has been some

criticism of the SRF program, and debate continues over specific concerns, the basic approach is

well supported. Congress used the clean water SRF as the model when it established a drinking

water SRF program in 1996 (P.L. 104-182).26

The initial intent was to phase out federal support for this program, but Congress has continued to

appropriate SRF capitalization grants to the states—a total of $41 billion since the 1987

amendments, providing an average of $1.45 billion annually in recent years. Table 1 summarizes

recent Administration budget requests and enacted appropriations for SRF capitalization grants.27

This table does not include appropriations for congressionally directed special project grants in

individual cities (that is, congressional earmarks), which for several years represented about 15%

of water infrastructure funds.28

For further information on the clean water SRF program, see CRS Report 98-323, Wastewater Treatment: Overview

and Background, by (name redacted) .

For additional information, see CRS Report RS22037, Drinking Water State Revolving Fund (DWSRF): Program

Overview and Issues, by (name redacted).

For additional information, see CRS Report R43871, Funding for EPA Water Infrastructure: A Fact Sheet, by

(name redacted) .

Issues associated with special project grants are discussed in CRS Report RL32201, Water Infrastructure Projects

Designated in EPA Appropriations: Trends and Policy Implications, by (name redacted) . Since FY2011, Congress

has placed a moratorium on earmarks, but some policymakers favor restoring the practice.

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Water Quality Issues in the 114th Congress: An Overview

Table 1. Clean Water SRF Capitalization Grants, FY2008-FY2017 request

(millions of dollars)

Fiscal Year

President’s

Request

Appropriations

2008

687.6

1,083.8

2009

555.0

4,689.1a

2010

2,400.0

2,100.0

2011

2,000.0

1,522.0

2012

1,550.0

1,466.5

2013

1,175.0

1,376.1

2014

1,095.0

1,448.9

2015

1,018.0

1,448.9

2016

1,116.0

1,393.9

2017

979.5

TOTAL

12,576.1

16,529.2

Source: Compiled by CRS.

a. FY2009 appropriations include $4.0 billion in supplemental appropriations as part of the American Recovery

and Reinvestment Act of 2009 (P.L. 111-5).

One issue of continuing interest is impacts of paying for water infrastructure projects on small

communities, many of which have found it difficult to participate in the SRF loan program. This

is due to a number of factors. Many are characterized by narrow or weak tax bases, limited or no

access to capital markets, lower relative household incomes, higher per capita needs, and limited

ability to demonstrate economies of scale. They often find it harder to borrow to meet their

capital needs and pay relatively high premiums to do so. Meeting the special needs of small

towns, through a reestablished grant program, other funding source, or loan program with special

rules, has been an issue of interest to Congress.

Because remaining clean water funding needs are still so large nationally, 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. Additionally, there is concern about the

adequacy of SRF or other funding specifically for high-cost projects dealing with problems of

overflows from municipal combined and separate sewers which can release partially treated or

untreated wastewaters that harm public health and the environment. EPA estimates that the cost of

projects to control sewer overflows and manage stormwater runoff is nearly $64 billion

nationwide—more than one-fifth of all needs estimated in the most recent Needs Survey.

Wastewater utilities also have sought assistance to assess operational vulnerabilities and upgrade

physical protection of their facilities against possible terrorist attacks that could threaten the water

infrastructure system.29

In 2010 EPA issued a “Clean Water and Drinking Water Infrastructure Sustainability Policy”

addressing management and pricing of infrastructure funded through SRFs to encourage

conservation and provide adequate long-term funding for future capital needs. EPA is working

For additional information on many of these topics, see CRS Report RL31116, Water Infrastructure Needs and

Investment: Review and Analysis of Key Issues, by (name redacted) and (name redacted) .

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with water utilities to promote planning processes that reflect not only public health and water

quality, but also conservation of natural resources and innovative treatment. Further, EPA is

working with states to target SRF assistance to projects that focus on system upgrade and

replacement in existing communities, reflect full life cycle costs of infrastructure assets, and

conserve natural resources or use alternative approaches. In 2015, EPA established a Water

Infrastructure and Resiliency Finance Center to help communities identify financing approaches

and to provide guidance on financing the planning, design, and construction of projects. The

center is not a source of funding or financing; rather, it is intended to provide financial guidance

and technical assistance, including providing connections with private sector entities that could

assist local governments.

Issues Affecting Legislative Efforts

Congress had considered water infrastructure funding issues several times since the 107th

Congress, but no legislation other than appropriations was enacted until P.L. 113-121, discussed

next. Despite specific issues that have stalled legislation, the act’s water infrastructure program is

widely supported both inside and outside Congress. However, because the House and Senate have

focused extensively on reducing federal spending and deficit reduction recently, proposals

concerning new or expanded federal spending for water infrastructure investments have not

advanced. Throughout this period, several factors contributed to difficulties in moving bills

through the legislative process. They included Bush Administration opposition to higher

authorization levels, controversies over application of prevailing wage requirements of the DavisBacon Act to water infrastructure projects, and disputes over the formula for allocating clean

water SRF grants among the states.

The issue of the applicability of the Davis-Bacon Act to SRF-funded projects has been especially

controversial, because that act has both strong supporters and critics in Congress and elsewhere. It

requires, among other things, that not less than the locally prevailing wage be paid to workers

employed, under contract, on federal construction work “to which the United States or the District

of Columbia is a party.” Critics of Davis-Bacon say that it unnecessarily increases public

construction costs and hampers competition, while supporters say that it helps stabilize the local

construction industry by preventing competition that would undercut local wages and working

conditions. Under the original SRF program authorization enacted in 1987, the Davis-Bacon Act

applied to so-called “first use” monies provided by a state from its SRF (that is, loans made from

initial federal capitalization grants, but not to subsequent monies provided from repayments to the

SRF). When that authorization expired at the end of FY1994, Davis-Bacon requirements also

expired. Thus, the recent issue has been whether to restore the applicability of those

requirements.30 While authorizing committees have debated this issue for some time, DavisBacon requirements have been attached to use of SRF funds through appropriations acts since

2009.

A second issue that has complicated enactment of legislation is the method of allocating SRF

capitalization grants among the states. CWA Section 205(c)(3) contains a table that identifies each

state’s percentage share of appropriated funds. Changing the formulation of how funds are

distributed matters to every state, because inevitably it results in “winners” and “losers.” But

because the existing statutory allotment has not been revised since 1987, while needs have

For information, see CRS Report R41469, Davis-Bacon Prevailing Wages and State Revolving Loan Programs

Under the Clean Water Act and the Safe Drinking Water Act, by (name redacted) and (name redacted) .

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Water Quality Issues in the 114th Congress: An Overview

changed considerably, the issue is important to considering clean water infrastructure

legislation.31

WIFIA Pilot Program and SRF Amendments in P.L. 113-121

Most policymakers acknowledge that communities face formidable challenges in providing and

paying for adequate and reliable water infrastructure services for their citizens, and Congress has

long considered ways to help meet those challenges. Several policy options have been discussed,

including some that exist and are well established—such as the SRF program—while some are

newer—such as creating a national infrastructure bank. Some are intended to provide long-term

revenue to support infrastructure financing programs, and some are intended to encourage private

participation in providing wastewater services. At this point, there is no consensus favoring a

single policy, and many advocate a combination of options to expand the financing “toolbox.”

One particular option that has been debated is a “Water Infrastructure Finance and Innovation

Act,” or WIFIA, program, and legislation to create a WIFIA pilot program was enacted in the

113th Congress (H.R. 3080/P.L. 113-121). The legislation, the Water Resources Reform and

Development Act (WRRDA) Title V, Subtitle C, authorized a five-year WIFIA pilot program. The

bill authorized EPA to provide credit assistance (secured loans or loan guarantees) for drinking

water and wastewater projects and the U.S. Army Corps of Engineers to provide similar

assistance for water resource projects, such as flood control or hurricane and storm damage

reduction. Proponents argue that WIFIA offers a number of financing advantages, such as

providing credit assistance at low U.S. Treasury rates to projects that otherwise have difficulty

obtaining financing, thus lowering the cost of capital to borrowers. Under the legislation, EPA and

the Corps each were authorized a total of $175 million over five years (beginning with $20

million in FY2015 and increasing to $50 million in FY2019 for each agency) to provide

assistance. Projects must be $20 million or larger in costs to be eligible, except that projects in

rural areas (population 25,000 or less) must have eligible project costs of $5 million or more.32

EPA has been preparing for implementation of the WIFIA program, including through a series of

public listening sessions in several U.S. cities in 2014. In November 2016 EPA released two rules

(one an interim final rule, the other a proposed rule) to explain and clarify some provisions of the

program and establish guidelines and fees for the application process. The rules are intended to

address a number of questions about the program, such as defining eligible projects, determining

selection criteria, developing a ranking system, and determining project creditworthiness. The

agency’s goal is to be ready for making the first loans in 2017.

Before the program can proceed, it was necessary for Congress to provide appropriations for it.

The first appropriations, in FY2015 and FY2016, provided EPA with resources to hire staff and

begin preparation for the program, but did not appropriate funds to actually finance projects.33

However, in legislation enacted in December 2016, Congress appropriated $20 million that will

allow EPA to begin making loans (see “FY2017 Appropriations”).

For additional information on the current statutory formula, see CRS Report RL31073, Allocation of Wastewater

Treatment Assistance: Formula and Other Changes, by (name redacted) .

For additional information, see CRS Report R43315, Water Infrastructure Financing: The Water Infrastructure

Finance and Innovation Act (WIFIA) Program, by (name redacted) .

Under the Federal Credit Reform Act of 1990, appropriations for federal credit assistance programs cover the subsidy

cost of the program, which is the "estimated long-term cost to the Government of a direct loan or loan guarantee,

calculated on a net present value basis, excluding administrative costs" (104 Stat. 1388-610).

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In addition to the WIFIA provisions, P.L. 113-121 included a number of provisions amending

certain water infrastructure provisions of the CWA, especially the Title VI SRF program. Some of

the provisions in P.L. 113-121 were included in other legislation and proposals in recent

Congresses that have not advanced (such as extending SRF loan repayment from 20 to 30 years,

allowing states to make subsidized loans under certain circumstances, adding land acquisition to

the definition of “treatment works” in order to be eligible for SRF assistance, and explicitly

allowing SRF monies to be used for security projects at wastewater treatment plants). Several of

the provisions had been included in recent appropriations bills and are now codified in the CWA

by P.L. 113-121 (such as expanding the list of SRF-eligible projects to include energy- and waterefficiency and others; increasing SRF assistance to Indian Tribes; and imposing “Buy American”

requirements on SRF assistance). The CWA provisions included in P.L. 113-121 are the first

amendments to Title VI since 1987. However, the amendments did not address other longstanding Title VI issues: authorization of appropriations for capitalization grants (i.e., the

amendments do not reauthorize clean water SRF grants), state-by-state allocation of capitalization

grants (i.e., the allocation formula that has been in effect since 1987), or applicability of

prevailing wage requirements under the Davis-Bacon Act (locally prevailing wages are to be paid

to workers on projects that receive SRF assistance).34

Other Clean Water Act Issues

A number of other issues affecting efforts to achieve the goals and objectives of the CWA have

drawn interest and been the subject of congressional oversight and legislation. Some legislators

have been highly critical of recent regulatory initiatives, while others have been more supportive

of EPA’s implementation efforts.

Since 2009, EPA has proposed and promulgated numerous regulations implementing the CWA

and other pollution control statutes that it administers. Critics of the Administration, both within

Congress and outside of it, have accused the agency of reaching beyond the authority given to it

by Congress and ignoring or underestimating the costs and economic impacts of these rules.

Majority party leaders in the House conducted vigorous oversight of the agency in the 112th and

113th Congresses, and both the Senate and House have conducted oversight in the 114th Congress.

Bills seeking to overturn specific regulations or to limit the agency’s authority also were

introduced, along with proposals to bar EPA funding for specific activities. Environmental groups

disagree that the agency has overreached, and EPA itself contends that critics’ focus on the cost of

controls obscures the benefits of new regulations. The agency estimates that benefits far exceed

the costs, and that investing in pollution control is an important source of economic activity,

exports, and American jobs. Although particular attention has been paid to the Clean Air Act, a

number of EPA’s initiatives concerning the CWA also received legislators’ scrutiny.35 In several

cases, policymakers sought to curtail water quality protection initiatives under the CWA

following court rulings that expanded the regulatory scope of the law. In the 114th Congress,

scrutiny of EPA initiatives continued to be intense, including those involving water quality.

For additional information on P.L. 113-121, see CRS Report R43298, Water Resources Reform and Development Act

of 2014: Comparison of Select Provisions, by (name redacted) et al.

For information, see CRS Report R41561, EPA Regulations: Too Much, Too Little, or On Track?, by (name red

acted) and (name redacted)

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Water Quality Issues in the 114th Congress: An Overview

Mountaintop Mining in Appalachia

One water quality issue that received considerable attention is mountaintop coal mining.

Mountaintop removal coal mining involves removing the top of a mountain in order to recover

the coal seams contained there. This practice occurs in six Appalachian states (Kentucky, West

Virginia, Virginia, Tennessee, Pennsylvania, and Ohio). It creates an immense quantity of excess

spoil, which is typically placed in nearby valleys, burying streams that flow through the valleys.

Critics say that, as a result of valley fills, stream water quality and the aquatic and wildlife habitat

that streams support are destroyed. The mining industry argues that mountaintop mining is

essential to conducting surface coal mining in the Appalachian region and that surface coal

mining would not be economically feasible there if producers were restricted from using valleys

for the disposal of mining overburden.36

Beginning in 2009, the Obama Administration undertook a number of initiatives intended to

reduce the harmful environmental impacts of mountaintop mining and surface coal mining in

Appalachia. The actions were implemented through regulatory proposals, guidance documents,

and review of applications for permits to authorize mountaintop mining-valley fill operations.

The Administration’s actions have been controversial with industry and also with Members of

Congress, which has held oversight hearings and considered legislative responses that would

curtail the Administration.

Because of controversies about the environmental impacts of mountaintop mining, legislation to

restrict the practice has been introduced. A bill in the 114th Congress, H.R. 912, would place a

moratorium on permitting for mountain removal coal mining until certain health studies are

conducted. Another bill in the 114th Congress (H.R. 6411, the Clean Water Protection Act) would

narrow the CWA definition of “fill material,” and thus narrow the types of materials that can be

discharged into U.S. waters under a Section 404 permit. The significance of the bill is that

discharges of materials that are not eligible for a Section 404 permit are regulated under CWA

Section 402. Because Section 402 discharge requirements are more restrictive than those for

Section 404, some discharges that could be permitted under Section 404 cannot be authorized

under Section 402. Supporters favor making it more difficult to use Section 404 to authorize

activities that they consider to be environmentally harmful. On the other hand, critics of the

legislation say that, as a practical matter, economically important activities such as coal mining

could not meet the more stringent limitations of a Section 402 permit and, thus, would be

infeasible.37

Another aspect of the mountaintop mining issue that has drawn attention is EPA’s 2011 veto of a

CWA Section 404 permit for a surface coal mining operation in West Virginia, the Spruce No. 1

mine. EPA’s action has been controversial, particularly because the veto occurred after the permit

had been issued by the Army Corps. EPA’s veto of the permit was challenged, and in 2012, a

federal district court overturned the veto, ruling that EPA had exceeded its statutory authority in

the Spruce No. 1 action. However, a federal appeals court reversed the lower court’s decision and

upheld EPA’s authority to retroactively veto permits.38 The appeals court ruling was applauded by

For additional information, see CRS Report RS21421, Mountaintop Removal Mining: Background on Current

Controversies, by (name redacted) .

For additional information, see CRS Report RL31411, Controversies over Redefining “Fill Material” Under the

Clean Water Act, by (name redacted) .

Mingo Logan Coal Company v. U.S. Environmental Protection Agency, 714 F.3d 608 (DC Cir. 2013); cert. denied,

134 S. Ct. 1540 (2014). For background on the veto, see CRS Report RS21421, Mountaintop Removal Mining:

Background on Current Controversies, by (name redacted) .

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environmental groups and criticized by the mining industry. In response, bills were introduced to

limit or prohibit EPA’s ability to exercise this veto authority, contained in CWA Section 404(c).

Several proposals in the 114th Congress (S. 54/S. 234, H.R. 896, and H.R. 1203) would bar EPA

from vetoing a 404 permit retroactively.

Continuing Issue: Appropriations

Although few CWA amendments have been enacted recently, clean water policy and program

issues have been addressed regularly by Congress in the context of annual appropriations acts.

EPA’s appropriations are included in the Interior, Environment, and Related Agencies

appropriations acts.39

FY2016 Appropriations

The Administration’s FY2016 budget sought $8.6 billion for EPA, or $452 million more than the

FY2015 enacted level of funding.40 The EPA request included $1.116 billion for clean water SRF

capitalization grants ($333 million less than the FY2015 enacted level; see Table 1) and $15

million for Alaska Native Village and U.S.-Mexico Border water infrastructure projects. The

Administration sought $238.8 million to protect surface waters (19.5% higher than the FY2015

enacted level), and $250 million for the Great Lakes Restoration Initiative (17% below the

FY2015 enacted level). The budget sought increases for several water quality grant programs

(Section 106 grants, Section 319 grants, and wetlands program development grants).

Although the House and Senate Appropriations Committees reported bills to provide FY2016

appropriations for EPA (H.R. 2822 and S. 1645), final appropriations action for EPA and other

agencies occurred as part of the Consolidated Appropriations Act, 2016, signed by the President

December 18, 2015 (P.L. 114-113). The bill provided $1.394 billion for clean water SRF

capitalization grants ($55 million less than FY2015, but $278 million above the President’s

request) and $30 million for Alaska Native Village and U.S.-Mexico Border water infrastructure

projects. It also provides $300 million for the Great Lakes Restoration Initiative. The final bill

included the requested increase in funds for Section 319 nonpoint pollution management grants,

but not for other water quality grant programs (i.e., Section 106 grants and wetlands program

development grants).

FY2017 Appropriations

The Administration’s FY2017 budget, presented to Congress in February 2016, requested $8.3

billion in total for EPA ($127 million above the FY2016 enacted budget). The request for EPA

included $979.5 million for clean water SRF capitalization grant ($424 million less than the

FY2016 enacted level), $228 million for core surface water protection programs ($28 million

increase), and $250 million for the Great Lakes Restoration Initiative ($50 million decrease).

During congressional hearings on the EPA request, many Members criticized the requested 30%

decrease in funds for clean water SRF capitalization grants. This criticism was reflected to some

For additional information, see CRS Report 96-647, Water Infrastructure Financing: History of EPA Appropriations,

by (name redacted) .

See CRS Report R44208, Environmental Protection Agency (EPA): FY2016 Appropriations, by (name redacted)

and (name redacted) , and CRS In Focus IF10383, U.S. Environmental Protection Agency (EPA): FY2017 President’s

Budget Request, by (name redacted) and (name redacted) .

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degree in appropriations bills that the Appropriations Committees subsequently approved that

include EPA funding. In July 2016, the House passed H.R. 5538, FY2017 Interior and

Environment Appropriations Act; it included $1.0 billion for clean water SRF grants. The Senate

Appropriations Committee reported a companion bill, S. 3068, in June. It included $1.35 billion

for clean water SRF grants. The Senate did not take up this bill.

Congress did not reach final agreement on an EPA funding bill before the start of FY2017, on

October 1. However, on September 28, the House and Senate passed a 10-week continuing

resolution that extends FY2016 funding levels, minus a 0.496% across-the-board reduction,

through December 9, 2016 (P.L. 114-223). A second continuing resolution, passed in December

2014, extends FY2016 funding levels, minus a 0.1901% across-the-board reduction, from

December 10, 2016, through April 28, 2017 (P.L. 114-254).

The Administration’s FY2017 budget submission also included a $15 million request to allow

EPA to begin making WIFIA loans (see “WIFIA Pilot Program and SRF Amendments in P.L. 113121”). P.L. 114-254 includes the first appropriation, $20 million, for EPA to do so.

Author Contact Information

(name redacted)

Specialist in Resources and Environmental Policy

[redacted]@crs.loc.gov , 7-....

Congressional Research Service

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