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IB89102: Water Quality: Implementing the Clean Water Act
August 15, 2001
|Fiscal Year||Title II||Title VI||Title II||Title VI|
Small Communities. One issue of interest is impacts on small communities. These entities in particular have found it difficult to participate in the SRF loan program, since many are characterized by narrow or weak tax bases, limited or no access to capital markets, lower relative household incomes, and higher per capita needs. 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.
Congressional oversight of wastewater/SRF issues has focused on several points, including: many small communities have found it difficult to participate in the SRF loan program, and the lack of funds for high-cost categories of projects such as correcting combined sewer overflows. The General Accounting Office has stated that two SRF funding issues predominate. First is the gap between funding levels authorized in the Act and state needs. Second is the small community problem. Over a 10-year period, according to GAO, SRFs will only meet about one-third of the states' funding needs and will generally not meet the needs of poor communities.
While there has been some criticism of the SRF program, and debate continues over specific concerns (such as small community impacts), the basic approach is well supported in Congress and elsewhere. Congress used the clean water SRF as the model when it established a drinking water SRF in legislation that reauthorized the Safe Drinking Water Act in 1996 (P.L. 104-182). (For further information, see CRS Report 97-677, Safe Drinking Water Act: State Revolving Fund Program.)
A number of other Clean Water Act issues continue to receive attention, as well. Like those discussed previously, many of these topics have recently been part of Congress' agenda in connection with reauthorization (see CRS Issue Brief IB10001).
Stormwater Discharges. EPA has struggled since the 1970s to regulate industrial and municipal stormwater discharges in a workable yet comprehensive manner. In P.L. 100-4 Congress established firm deadlines and priorities for EPA to require permits for these discharges of stormwater that is not mixed or contaminated with household or industrial waste. EPA issued rules in November 1990 (21 months after the statutory deadline) that addressed the process of applying for stormwater permits. The burden of complying with the rules continues to be an issue with many affected industries and municipalities, especially small cities. EPA worked with an advisory committee of stakeholders beginning in 1994 to develop rules for regulating smaller stormwater dischargers, which were not covered by EPA's 1990 rules. Rules for smaller dischargers (unregulated industries and small cities) were issued in October 1999. (For further information, see CRS Report 97-290, Stormwater Permits: Status of EPA's Regulatory Program.)
Combined and Separate Sewer Overflows. Nearly 1,200 municipalities have combined sewers where domestic sanitary sewage, industrial wastes, infiltration from groundwater, and stormwater runoff are collected. These systems serve approximately 40 million persons, mainly in older urban and coastal cities. Normally (under dry-weather conditions), the combined wastes are conveyed to a municipal sewage treatment plant.
Properly designed, sized, and maintained combined sewers can be an acceptable part of a city's water pollution control infrastructure. However, combined sewer overflow (CSO) occurs when the capacity of the collection and treatment system is exceeded due to high volumes of rainwater or snowmelt, and the excess volume is diverted and discharged directly into receiving waters, bypassing the sewage treatment plants. Often the excess flow that contains raw sewage, industrial wastes, and stormwater is discharged untreated. Many combined sewer systems are found in coastal areas where recreational areas, fish habitat and shellfish beds may be contaminated by the discharges.
In 1994 EPA issued a CSO permitting strategy after negotiations with key stakeholder groups. Cities were to implement nine minimum controls by January 1, 1997 (e.g., proper operation and maintenance programs for sewer systems and pollution prevention programs). The EPA strategy did not contain a deadline for issuance of permits or for controlling CSOs. Deadlines will be contained in plans developed by permitting authorities. Controls are available and generally are based on combinations of management techniques (such as temporary retention of excess flow during storm events) and structural measures (ranging from screens that capture solids to construction of separate sewer systems). EPA officials stated in May 1998 that only about one-half of the cities with combined sewers implemented the minimum measures called for in the 1994 strategy. EPA is now working with states to remind cities of their obligations to address CSO problems. However, a formal enforcement strategy is not contemplated.
A more recent issue concerning some cities is the problem of overflows from municipal separate sanitary sewers (SSOs) that are not CSOs because they transport only sanitary wastes. Discharges of untreated sewage from these sewers occur from manholes, broken pipes and deteriorated infrastructure, and undersized pipes, and can occur in wet or dry weather. EPA estimates that there are about 18,000 municipalities with separate sanitary sewers, all of which can, under certain circumstances, experience overflows. No explicit EPA or statutory control policy currently exists. In 1995, EPA convened a stakeholders' group to discuss how to address those overflows that pose the highest environmental and public health risk first. On January 5, 2001, the Clinton Administration finalized regulations that will improve the operation of municipal sanitary sewer collection systems, reduce the frequency and occurrence of overflows, clarify the existing CWA prohibition on SSO discharges, and clarify circumstances appropriate for enforcement action. The new rules, not yet published, are being reviewed by the Bush Administration.
Funding CSO and SSO projects is a major concern of states and cities. In December, the 106th Congress passed legislation, the Wet Weather Water Quality Act, authorizing a $1.5 billion grants program to reduce wet weather flows from municipal sewer systems. This bill was included in H.R. 4577, the FY2001 Consolidated Appropriations bill (Section 112 of Division B, P.L. 106-554). The measure also codifies EPA's 1994 CSO policy on sewer overflows (discussed above).
Wetlands. Public debate over the nation's wetlands has come to focus on questions of the effectiveness and costs of wetland resource protection efforts, rather than on whether such resources should be preserved. The permit program authorized by Section 404 of the Clean Water Act is one of the major federal programs that protects wetlands. However, environmentalists and others have criticized Section 404 as being inadequate to prevent the continuing loss of wetlands, due to statutory exemption of certain types of actions on farmlands and weak enforcement. Those wishing to develop wetlands maintain that existing laws are already an intrusion on private land-use decisions and that further federal involvement is unwarranted. How best to protect remaining wetlands and regulate activities taking place in wetlands has become one of the most contentious environmental policy issues facing Congress and was a prominent element of clean water debate during the 103rd and 104th Congresses. (See CRS Issue Brief IB97014, Wetland Issues.)
EPA was at the center of many of the Clinton Administration's efforts to reinvent government. Some of EPA's projects were intended to fix problem areas in the implementation of current law; others were intended to set future directions. The initiatives were, in part, a response to budgetary pressures and the need to be more efficient. The agency also was responding to pressures from the Congress to reform the way it does business and the realization that Congress may change the agency, if it fails to change itself. (For further information, see CRS Report 96-283, Reinventing the Environmental Protection Agency and EPA's Water Programs.) For now, it is unclear how the new Bush Administration will view the reinvention activities at EPA -- whether they will be continued, rejected, or modified and renamed to reflect new priorities. Broadly, the reinvention activities at EPA during the Clinton Administration fit in three categories.
Performance Partnership System between EPA and States. In May 1995 EPA and states entered into a formal agreement intended to fundamentally redesign and improve the federal-state partnership on environmental protection. States will be allowed more authority to set priorities and tailor implementation, while EPA agrees to allow states greater flexibility and reduce oversight of states that demonstrate exceptional performance. (For further information, see CRS Report 97-689 ENR, Environmental Policy: Issues in Federal-State Relations.) One element of the partnership program is a more flexible approach to funding, through block grants to be called Performance Partnership Grants, in lieu of traditional categorical grants for air, water, hazardous waste, etc. Consolidated grants are intended to reduce administrative burdens and improve environmental performance by allowing states to target funds to meet their specific needs. Congress endorsed the consolidated grants approach in EPA's FY1996 funding bill, P.L. 104-134, and has supported it in subsequent appropriations bills, as well.
Initiatives for Industry. The second category was new regulatory partnerships between EPA and industry intended to apply more common sense and economical approaches to environmental regulation. These initiatives were equivalent to the federal-state performance partnerships. The centerpiece of these activities was EPA's Common Sense Initiative (CSI), through which six industry sectors were identified and corresponding task groups established to debate and restructure environmental requirements based on industry sectors, rather than pollutant by pollutant or media by media. Other industry activities included Project XL, giving selected entities the opportunity to demonstrate innovations to meet environmental goals outside the current regulatory framework; a Common Sense Compliance Program of incentives for small businesses; and a reexamination of all of the agency's permitting programs to adopt performance-based improvements.
Program-Specific Initiatives. Third was activities in individual program areas, including water quality, that involved regulatory reform initiatives in specific terms and reflected a devolution to states (transfer of powers and authorities from the federal government). In the water quality program, many of the initiatives started from a watershed approach to problem-solving. This approach recognizes that remaining water quality problems require attention to diffuse (nonpoint) as well as discrete (point source) pollution sources managed on the basis of geographic areas defined by natural or hydrologic features, instead of political boundaries. Further, the watershed approach is more community-based than top-down in emphasis and is intended to be a process that involves key government, citizen, and other user groups as full partners in developing solutions. EPA has been encouraging the watershed approach to address specific water pollution issues, especially wet weather pollution problems (nonpoint sources, stormwater, and sewer system overflows) and implementation of TMDL requirements under current law.
Some observers said that the types of changes occurring at EPA through these initiatives were logical next steps in the evolution of environmental programs. Others said that what was occurring was a sea change in policy without clear prospects that environmental benefits would result. In addition, some were concerned that the many activities have insufficient focus or priority. Most participants were enthusiastic about the changes affecting the EPA-state and EPA-industry relationships (although many concluded that some programs, such as Project XL, have proved difficult and time-consuming while yielding few benefits). Still, there were concerns about how some of the broad initiatives would be implemented and about if, in EPA's enthusiasm for state flexibility and reduced federal oversight, support for core elements of environmental protection programs would be diminished.
In October 1997, on the 25th anniversary of the CWA, Vice President Gore announced an initiative intended to build on the environmental successes of the Act and to address the nation's remaining water quality challenges, especially nonpoint source pollution. The Vice President directed EPA and USDA to coordinate with other federal agencies to develop an action plan to improve and strengthen water pollution control efforts. The purpose of the plan was to coordinate federal efforts to achieve three goals: enhanced protection from public health threats posed by water pollution, more effective control of polluted runoff, and promotion of water quality protection on a watershed basis. Other departments involved in the Initiative included USDA, the Departments of the Interior and Commerce, and the U.S. Army Corps of Engineers.
President Clinton and Vice President Gore released the action plan on February 19, 1998. Components of the plan, nearly 110 actions, consisted mainly of existing programs, including some planned regulatory actions that agencies had had underway, to be enhanced with increased funding or accelerated with performance-specific deadlines. (The text is available at http://www.cleanwater.gov/.) The individual elements of the plan were built on 4 concepts: utilizing collaborative watershed-based partnerships to clean up impaired waters; maintaining strong federal and state standards; calling on federal natural resource and conservation agencies to assist in restoring and protecting watersheds; and ensuring that citizens and officials have improved information for decisionmaking.
Complementing the plan, President Clinton's FY1999 budget identified the Clean Water Initiative as a high-priority for environmental programs in the budget. It requested a total of $2.5 billion, a $609 million, or 33%, increase over 1998, to fund activities in 5 departments and agencies, plus interagency funds. Almost one-half of the total increases, $265 million, was designated as assistance to states and localities or to individual landowners (farmers).
The action plan was not accompanied by proposals or legislation to reauthorize the CWA. In Congress, it was considered primarily through the appropriations process, rather than authorizing committee activity. President Clinton's FY1999 budget submission identified it as a high priority. That year's was the first of three Clinton budgets that proposed funds to implement the Plan. During the years FY1999-2001, Congress provided a total of $1.24 billion in increases for Plan activities above FY1998 baseline amounts. Each year's budget request was higher than the preceding year's, and while Congress agreed to some increases, it appropriated amount less than the Administration had sought. EPA and USDA officials said that the action plan will be implemented, even though appropriations have been less than requested. Implementation will occur, they said, because they believe that its many actions are the only way to achieve the Clean Water Act's water quality goals. (For additional information, see CRS Report 98-150, Clean Water Action Plan: Background and Early Implementation, and CRS Report 98-745, Clean Water Action Plan: Budgetary Initiatives.)
On May 13, 1999, the Senate Environment and Public Works Committee held the first congressional oversight hearing on the Plan outside the appropriations process. The Committee heard from federal and state government representatives, as well as members of the public. Agency witnesses addressed how the Plan is involving the public, states and localities, and federal agencies in intergovernmental partnerships. Other witnesses and some Committee members questioned the degree to which the Plan actually reflects state, local, public and congressional input and whether federal agencies have the legal authority to be taking some of the contemplated actions. Questions also were raised about the scientific basis of the Plan, because of inadequate national water quality data.
Strategy Concerning Animal Feeding Operations. A key element of the Clean Water Initiative, minimizing public health and environmental impacts of runoff from animal feeding operations (AFOs) into rivers, lakes, and estuaries, was addressed by a national strategy issued jointly by EPA and USDA on March 9, 1999. Animal feeding operations are agricultural facilities that confine feeding activities, thus concentrating animal populations and manure. Animal waste, if not managed properly, can run off farms and pollute nearby water bodies. Agricultural runoff has been linked to dangerous toxic microorganisms such as Pfiesteria piscicida, which is widely believed to be responsible for major fish kills and disease events in several mid-Atlantic states.
Existing EPA regulations, issued in the 1970s, require CWA discharge permits for the largest AFOs (about 6,600 out of 450,000 total facilities nationwide). However, EPA acknowledged that compliance and enforcement of these permit rules has been poor (less than one-third of covered facilities actually have permits) and that the regulations themselves are outdated. For example, they do not reflect changed waste management practices or address the need for management plans dealing with land application of manure. The national strategy contains a number of short-term and long-term steps to improve compliance and strengthen existing regulations, obtain better information through data collection and research on water quality impairments due to AFOs, and together with other federal agencies and states, coordinate activities related to AFOs. In December 2000, EPA proposed rules to increase the number of AFOs required to obtain CWA permits and to restrict land application of animal wastes. On May 16, a House Transportation and Infrastructure subcommittee held an oversight hearing on the December regulatory proposal. Issues that Congress has addressed and is likely to continue reviewing include impacts and costs imposed on the agricultural sector, especially small farmers, and how the proposed combination of regulatory and incentive-based measures in the 1999 National AFO Strategy will achieve control of agricultural runoff that adversely affects water quality. (For additional information, see CRS Report RL30437, Water Quality Initiatives and Agriculture.) In legislation providing FY2000 funding for EPA (P.L. 106-74), Congress directed EPA in conjunction with USDA to submit a report to Congress by May 15, 2001, providing a cost and capability assessment of the AFO strategy. This report is now expected to be delivered to Congress in December.
Like the EPA reinvention activities pursued by the Clinton Administration (discussed above), the Bush Administration's views on the Clean Water Initiative are unknown. So far, the new Administration has not announced or undertaken steps to continue, reject, or modify specific Clean Water Action Plan activities begun during the previous administration.
While the 1987 Clean Water Act amendments dealt with financial aid issues, funding questions have continued to arise and be addressed in the context of appropriations. (For additional information, see CRS Report 96-647, Water Infrastructure Financing: History of EPA Appropriations.)
FY2002. On April 10, the Bush Administration presented its budget request for FY2002. Overall for EPA, the budget seeks $7.3 billion, about 6.4% below the FY2001 enacted level as a result of eliminating $499 million of unrequested spending earmarked by Congress. The Administration requests a total of $1.3 billion for clean water infrastructure funds, consisting of $850 million for clean water SRF grants (compared with $1.35 billion appropriated for FY2001) and $450 million for a new program of municipal sewer overflow grants under legislation enacted in December (discussed above). However, that legislation, the Wet Weather Water Quality Act, provides that sewer overflow grants are only available in years when at least $1.35 billion in clean water SRF grants is appropriated. The Administration explains that the $1.3 billion total is higher than the Clinton Administration had requested in recent years and that the request continues to support an overall goal of providing $2 billion average in annual financial over the long-term (which also was the Clinton Administration's goal). The Bush budget requests no funds for special earmarked grants, except for $75 million to fund projects along the U.S.-Mexico border and $35 million for projects in Alaskan Native Villages (both are the same amounts provided in FY2001). Other water quality funds proposed in the budget are about level with FY2001 enacted levels, except for elimination of unrequested spending earmarked by Congress. Some Members of Congress and outside groups have criticized the budget request, saying that it does not provide enough support for water infrastructure programs.
As of August, the House and Senate have passed separate versions of EPA's FY2002 funding bill (H.R. 2620). Neither bill includes funds for the new sewer overflow grant program requested by the Administration. The House-passed bill includes $1.2 billion for clean water SRF grants and reserves $200 million for special project grants. The Senate-passed version includes $1.35 billion for clean water SRF grants, plus $140 million for earmarked project grants. Final congressional action is expected in September.
FY2001. The Clinton Administration's FY2001 budget requested $800 million for clean water SRF grants, the same level requested for FY2000, but which Congress rejected (see following discussion). Members of Congress and interest group representatives criticized this funding request (a 40% decrease from FY2000), especially in view of recent data concerning infrastructure funding needs over the next two decades (see discussion above, State Revolving Fund Provisions). The budget also proposed several major budget increases for other clean water programs, including: $50 million more for state grants to manage nonpoint pollution programs (the Section 319 program; a total of $250 million); $45 million more for state grants for general administration of water quality programs, with the increase intended to support state TMDL activities (Section 106 grants; a total of $160 million); and $50 million for a new state grant program to assist with cleanup of Great Lakes contamination problems.
In October 2000, the House and Senate approved EPA's funding bill for FY2001, P.L. 106-377 (H.R. 4635, H.Rept. 106-988), providing $1.35 billion for clean water SRF grants (the same level enacted for FY2000). The enacted bill included $110 million for water infrastructure project grants in rural and Alaskan Native villages and along the U.S.-Mexico border. It included an additional $336 million for a number of other specified project grants throughout the country. In addition, the bill provided $1,008 million for state categorical program grants ($60 million less in total than requested), including $38 million more than requested for nonpoint pollution management grants and $56.6 million more for Section 106 grants, intended to help states meet TMDL program needs. Congress rejected the Administration's request for new Great Lakes cleanup funds.
P.L. 106-377 included report language addressing TMDL regulations promulgated by EPA in July 2000 (see discussion above, TMDLs). It directed studies by the National Academy of Sciences and EPA on the scientific basis of the TMDL program and on the potential costs to states and businesses of implementing the revised TMDL rules. It did not invalidate or otherwise alter the TMDL rules.
Subsequently, in December, Congress provided $21 million more for special project water infrastructure grants (in addition to the $336 million in P.L. 106-377) as a provision of H.R. 4577, the FY2001 Consolidated Appropriations bill (P.L. 106-554).
(Note: Congress has held more than 75 hearings on Clean Water Act and water quality issues since enactment of P.L. 100-4. Those highlighted below are a partial list of the most recent published hearings.)
U.S. Congress. House. Committee on Transportation and Infrastructure. Subcommittee on Oversight, Investigations and Emergency Management. Total Maximum Daily Load Initiatives under the Clean Water Act. Hearing, July 27, 2000. 106th Congress, 2dt session. Washington, U.S. Govt. Print. Off., 77 p. (106-106)
---- Subcommittee on Water Resources and Environment. Improving Water Quality: States' Perspectives on the Federal Water Pollution Control Act. Hearing, Feb. 28, 2001. 107th Congress, 1st session. Washington, U.S. Govt. Print. Off., 53 p. (107-3)
U.S. Congress. Senate. Committee on Agriculture, Nutrition, and Forestry. Water Quality. Hearing, Feb. 23, 2000. 106th Congress, 2d session. Washington, U.S. Govt. Print. Off., 336 p. (S. Hrg. 106-699)
U.S. Congress. Senate. Committee on Environment and Public Works. Clean Water Action Plan. Hearing, May 13, 1999. 106th Congress, 1st session. Washington, U.S. Govt. Print. Off., 148 p. (S. Hrg. 106-389)
---- Subcommittee on Fisheries, Wildlife, and Water. Proposed Rule Changes to the TMDL and NPDES Permit Programs. Hearings, Mar. 1, 23, and May 18, 2000. 107th Congress, 1st session. Washington, U.S. Govt. Print. Off., 597 p. (S.Hrg. 106-971)
Goplerud, C. Peter. "Water Pollution Law: Milestones from the Past and Anticipation of the Future." Natural Resources & Environment. v. 10, no. 2, Fall 1995. pp. 7-12.
Knopman, Debra S. and Richard A. Smith. "20 Years of the Clean Water Act, Has U.S. Water Quality Improved?" Environment. v. 31, no. 1, January/February 1993. pp. 16-20, 34-41.
U.S. Environmental Protection Agency. National Water Quality Inventory: 1998 Report to Congress. Washington, June 2000. "EPA841-R-00-001."
---- 1996 Clean Water Needs Survey Report to Congress. Washington, 1997. 1 vol. "EPA832/R-97-003"
CRS Report 98-451. Animal Waste Management and the Environment: Background for Current Issues, by Claudia Copeland and Jeffrey Zinn.
CRS Report RL30030. Clean Water Act: A Summary of the Law, by Claudia Copeland.
CRS Report 97-831 (pdf). Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants, by Claudia Copeland.
CRS Report 98-150. Clean Water Action Plan: Background and Early Implementation, by Claudia Copeland.
CRS Report 98-745. Clean Water Action Plan: Budgetary Initiatives, by Claudia Copeland.
CRS Report RL30611. EPA's Total Maximum Daily Load (TMDL) Program: Highlights of the Final Revised Rule, by Claudia Copeland.
CRS Report 96-442. Great Lakes Water Quality Issues, by Claudia Copeland.
CRS Report 96-283. Reinventing the Environmental Protection Agency and EPA's Water Programs, by Claudia Copeland.
CRS Report 98-323. Wastewater Treatment: Overview and Background, by Claudia Copeland.
CRS Report 96-647 pdf. Water Infrastructure Financing: History of EPA Appropriations, by Claudia Copeland.
CRS Issue Brief IB97014. Wetland Issues, by Jeffrey Zinn and Claudia Copeland.
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