# Water Quality Issues in the 114th Congress: An Overview

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR43867

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** December 13, 2016
- **Citation:** R43867

## Text

Water Quality Issues in the 114th Congress:
An Overview
name redacted
Specialist in Resources and Environmental Policy
December 13, 2016

Congressional Research Service
7-....
www.crs.gov
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
1

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.
3
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/.
2

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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.

4

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.
5
Ibid.
6
U.S. Environmental Protection Agency, National Coastal Condition Assessment 2010, EPA 841-R-15-006, January
2016.
7
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).

8

For discussion, see CRS Report R42883, Water Quality Issues in the 113th Congress: An Overview, by (name re
dacted) .
9
See CRS Report R42142, EPA’s Vessel General Permits: Background and Issues, by (name redacted) .

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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
10

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.

11

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) .
12
531 U.S. 159 (2001).
13
Rapanos v. United States, 547 U.S. 715 (2006).
14
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
15

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.
16
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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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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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
17

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.
18
See CRS Report R43455, EPA and the Army Corps’ Rule to Define “Waters of the United States”, by (name re
dacted) .
19
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?.
20
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.

21

For information, see CRS Report RL33263, The Wetlands Coverage of the Clean Water Act (CWA): Rapanos and
Beyond, by (name redacted) and (name redacted)
.
22
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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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
23

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.
24
Ibid., pp. 2, 11.

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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

25

For further information on the clean water SRF program, see CRS Report 98-323, Wastewater Treatment: Overview
and Background, by (name redacted) .
26
For additional information, see CRS Report RS22037, Drinking Water State Revolving Fund (DWSRF): Program
Overview and Issues, by (name redacted).
27
For additional information, see CRS Report R43871, Funding for EPA Water Infrastructure: A Fact Sheet, by
(name redacted) .
28
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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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
29

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

30

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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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”).

31

For additional information on the current statutory formula, see CRS Report RL31073, Allocation of Wastewater
Treatment Assistance: Formula and Other Changes, by (name redacted) .
32
For additional information, see CRS Report R43315, Water Infrastructure Financing: The Water Infrastructure
Finance and Innovation Act (WIFIA) Program, by (name redacted) .
33
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.

34

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.
35
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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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
36

For additional information, see CRS Report RS21421, Mountaintop Removal Mining: Background on Current
Controversies, by (name redacted) .
37
For additional information, see CRS Report RL31411, Controversies over Redefining “Fill Material” Under the
Clean Water Act, by (name redacted) .
38
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
39

For additional information, see CRS Report 96-647, Water Infrastructure Financing: History of EPA Appropriations,
by (name redacted) .
40
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

18

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR43867. Public record. Not legal advice.