98-946: Clean Water Act Issues in the 106th Congress

Claudia Copeland
Specialist in Environmental Policy
Environment and Natural Resources Policy Division

November 24, 1998

Background

The Clean Water Act (CWA) is the principal law that governs pollution in the nation's lakes, rivers, and coastal waters. Originally enacted in 1948 and significantly revised in 1972 (P.L. 92-500), the Act was last amended in 1987 (P.L. 100-4). These amendments are now being implemented by states, cities, regulated industries and the federal government. Since 1972, implementation of the law and application of pollution control technology by industries and cities has led to significant water quality improvements: about 60% of waters surveyed by states are clean enough to support basic uses such as fishing and swimming. However, these same survey data indicate that about 40% of surface waters fail to meet standards. Forty-seven states now have some form of fish-consumption advisory in effect (including 100% of Great Lakes waters and a large portion of the nation's coastal waters), due to water pollution problems, and one-third of shellfishing beds are closed or restricted, due to toxic pollutant contamination.

Authorizations for appropriations for most current programs expired Sept. 30, 1990, but Congress has continued to appropriate funds to carry out the Act; program authorities do not lapse. The CWA has been viewed as one of the nation's most successful environmental laws in terms of achieving the statutory goals, which have been widely supported by interest groups and the public, but lately it has been criticized over whether the benefits have been worth the costs, particularly whether the environmental benefits of future changes which would strengthen the law would be worth the economic costs.

Such criticisms have come especially from industry, which has been the long-standing focus of the Act's regulatory programs and which opposes imposition of additional stringent and costly requirements. Criticism also has come from developers and property rights groups who contend that federal regulations (particularly the Act's wetlands permit program) are a costly intrusion on private land-use decisions. States and cities have traditionally supported water quality programs and favored reauthorization in order to obtain funding to carry out the law, but recently many have opposed CWA measures that might impose new unfunded mandates. Many environmental groups believe that further fine-tuning to strengthen the Act is needed to maintain progress achieved to date and to address remaining water quality problems.

The Act consists of two major parts: regulatory provisions that impose stringent requirements on industries and cities to abate pollution in order to achieve the statutory goal of zero discharge of pollutants; and provisions that authorize federal financial assistance for municipal wastewater treatment plant construction. Both major parts are supported by research activities, plus permit and enforcement provisions. In the past, congressional efforts to amend the CWA have dealt with all aspects of the law, with the objective of strengthening water quality programs.

Recent Activity. Following enactment of amendments in 1987, no major CWA legislative activity occurred until the 104^th Congress, when the CWA was one of the first environmental laws to receive attention. In May 1995, the House passed a comprehensive reauthorization bill, H.R. 961. It reflected efforts to make the Act more flexible and to address regulatory relief issues raised by industries, states, and cities, who had criticized what they view as excessive and prescriptive clean water regulation. H.R. 961 was endorsed by industry, states, and local government groups, but was strongly opposed by environmental groups and the Clinton Administration. During bill consideration, officials of the Environmental Protection Agency (EPA) were reported to say that they believed it would undermine the existing framework for protecting U.S. waters.

Supporters disputed the critical characterizations of H.R. 961 and said during House debate and in contemporaneous press reports that they also support strong clean water programs, but favor approaching pollution control in a more collaborative and less commanding way based on better priority-setting, considering costs and benefits of controls, and devolving authority to state and local governments. In the Senate, reauthorization legislation was not introduced during the 104^th Congress, and no hearings on H.R. 961 were held; thus, no CWA amendments were enacted.

In the 105^th Congress, congressional committees did not initiate legislative activity on clean water issues. Committee leaders, especially in the House, said they would do so only if presented with consensus proposals that do not raise controversies like those associated previously with H.R. 961 ("House Staff Initiate Effort to Find Consensus on Clean Water Issues," Inside EPA, May 30, 1997, p. 9). Committees that have jurisdiction over the Act (Senate Environment and Public Works, House Transportation and Infrastructure) devoted attention to other bills, including reauthorization of the Intermodal Surface Transportation Efficiency Act, which was completed in 1998, and the Superfund hazardous waste cleanup law, on which action was not completed.

During this time, the Administration has not presented proposals to reauthorize the CWA. Instead, EPA has begun a number of agency-wide and program-specific reforms focusing on flexibility and "common sense" approaches to regulation, many of which are affecting implementation of water quality programs. In February 1998, the Administration released a multi-agency Clean Water Action Plan intended to build on the environmental successes of the Act and address many of the nation's remaining water quality challenges. Its purpose is to coordinate federal efforts to achieve three goals: enhanced protection against public health threats posed by water pollution, more effective control of polluted runoff, and promotion of water quality protection on a watershed basis. Components of the plan, nearly 100 actions, consist mainly of existing programs that are proposed to receive increased funding or be accelerated with performance-specific deadlines.

The President's FY1999 budget identified the Clean Water Action Plan as a high priority for environmental programs in the budget. It requested a 35% increase over 1998 levels to fund activities included in the plan. However, in the appropriations process, where the plan has so far been considered, congressional support was mixed. Appropriators funded few budgetary elements of the plan, citing reasons such as difficulty in supporting new initiatives, on top of existing priorities. Overall, the FY1999 funding bills provided about 20% of the increases requested by the Administration. While EPA received full funding for its activities, other agencies and departments received no or only small increases to support the plan. (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.)

Issues in the 106^th Congress

Legislative prospects for the CWA have recently been at an impasse over whether and exactly how to change the law, facing challenges that are both political and substantive. Groups who have advocated or supported changes to the Act, such as industry, are reluctant to propose amendments that could be characterized as anti-environmental threats to water quality programs. Similarly, state and local government groups might propose changes to give them flexibility in day-to-day implementation of the law, yet steps which these groups view as adding flexibility might seem to others to weaken strong areas of the law, such as national standards of pollution control. Environmentalists oppose changes that they consider environmentally harmful to water quality programs. Many would support amendments to enhance and toughen the law, but it is unclear how widely such a water quality agenda would be supported in Congress. Issues that might be addressed during reauthorization are not, for the most part, easily amenable to straight-forward, consensus solutions. Many involve making difficult tradeoffs between impacts on different sectors of the economy, taking action when there is technical or scientific uncertainty, and allocating governmental responsibilities for implementing the law.

Nonetheless, there are a number of specific issues which Congress might address, if it takes up reauthorization of the Clean Water Act. Some - particularly the first two discussed below - are issues that have come to the fore recently as a result of implementation of current law. Others discussed below are issues which have been open for debate for several years and remain persistent on the water quality agenda.

Managing Animal Waste. A key element of the Clean Water Action Plan is to minimize public health and environmental impacts of runoff from animal feeding operations (AFOs), which are agricultural facilities that confine feeding activities, thus concentrating animal populations and manure. Animal waste is frequently applied to land for disposal and to utilize the nutrient value of manure to benefit crops. If not managed properly, it can pose a number of risks to water quality and public health, contributing pollutants such as nutrients, sediment, pathogens, and ammonia to the environment.

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 in a March 1998 report ("Draft Strategy on Animal Feeding Operations") that compliance and enforcement of these permit rules is poor (less than one-third of covered facilities actually have permits) and that the regulations themselves are outdated. In September, EPA and the Department of Agriculture jointly proposed a draft strategy containing a number of steps to improve compliance and strengthen existing regulations, obtain better information through data collection and research on water quality impairments due to AFOs, and coordinate federal and state activities. EPA will work with states on a 2-phase approach for issuing permits to AFOs: requiring coverage of an estimated 20,000 large-scale operations, starting in 1999; and revising existing regulations by 2002. EPA will encourage other AFOs to voluntarily develop and implement plans to manage animal wastes. Issues that Congress may address include impacts and costs imposed on the agricultural sector, which for the most part is not regulated by EPA programs; how the anticipated combination of regulatory and incentive-based measures will achieve the goal of minimizing water pollution from confinement facilities and land application of manure; and whether legislation is needed to define national rules and policies regarding animal waste. (For additional information, see CRS Report 98-451, Animal Waste Management and the Environment: Background for Current Issues.)

TMDLs and State Water Quality Standards. The CWA requires states to identify pollution-impaired water segments and develop "total maximum daily loads" (TMDLs) that set the maximum amount of pollution that a water body can receive without violating water quality standards. If a state fails to do so, EPA is required to develop a priority list for the state and make its own TMDL determination. Most states have lacked the resources to do TMDL analysis, which involve complex assessments of water quality problems, pollution sources, and needed pollution reductions, and EPA has both been reluctant to override states and has also lacked resources to do so. Thus, there has been little implementation of the provision, which Congress enacted in 1972.

Since 1995, citizen groups have filed more than 30 lawsuits in 35 states against EPA and states, claiming they have failed to fulfill CWA requirements. The lawsuits have increased public attention to the TMDL program. Of the suits tried or settled to date, 11 have resulted in court orders forcing EPA to oversee the establishment of TMDLs. In July 1998, EPA received recommendations from an advisory group on regulatory and administrative changes to strengthen and clarify the TMDL program (the text is available at http://www.epa.gov/owow/tmdl/advisory.html). These recommendations are forming the basis of program changes that EPA expects to release in early 1999. The TMDL issue has been controversial, in part because of requirements and costs now facing states to implement this provision of the law. Industries, cities, farmers, and others may be required to use new pollution controls to meet TMDL requirements. If these issues draw congressional attention, areas of interest are likely to include modifying TMDL requirements and deadlines, providing states with resources to develop TMDLs and related assessments, and reviewing the basic water quality standard requirements of the Act. The direction of legislative action, if it occurs, is unclear at this time. While regulated entities are likely to favor flexibility or legislating limits on the program, environmental groups support strengthening and clarifying the current program, which they see as important to achieving the overall goals and objectives of the Act. (For additional information, see CRS Report 97-831, Clean Water Act and Total Maximum Daily Loads (TMDLs) of Pollutants.)

Regulatory Protection of Wetlands. Restoring and protecting wetlands is a key feature of the Administration's Clean Water Action Plan. One element of the plan is a goal of achieving a net gain of as many as 100,000 acres of wetlands annually by the year 2005. Even before this specific policy goal was declared, how best to protect the nation's remaining wetlands and regulate activities taking place in wetlands has become one of the most contentious environmental policy issues, especially in the context of the CWA which contains a key wetlands regulatory tool, the permit program in Section 404. It requires landowners or developers to obtain U.S. Army Corps of Engineers permits to carry out activities involving disposal of dredged or fill material into navigable waters of the United States, including wetlands. EPA provides environmental guidance on permitting and can veto a permit, based on environmental impacts. 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 the permitting process.

A number of proposals to amend Section 404 have been made in recent years, raising many issues. These include whether all wetlands should be treated the same or whether some could be accorded less stringent regulatory protection; whether activities or areas covered by federal regulation should be modified; and whether federal and state roles in implementing Section 404 should be revised. Views on each of these issues vary. Many conservationists contend that statutory changes that have been proposed would weaken wetlands protection and that more modest administrative reforms would effectively improve the current program. Many landowners say that changes are needed to make the regulatory program workable again. Some also argue that the CWA should compensate landowners whose property is adversely affected by regulatory "takings" due to Section 404 requirements, since an estimated 74% of all remaining wetlands are on private lands.

Recent legislative proposals for comprehensive reform of wetlands programs have been controversial, leading some persons to focus instead on narrower, strategic revisions. In that context, other specific issues could draw congressional attention. These include the Corps' implementation of the nationwide permit program, which is intended to minimize the burden of regulation but has recently been widely criticized, and a 1997 federal court decision, affirmed in 1998, that overturned rules issued by the Corps and EPA which had extended the scope of wetlands regulation to certain landclearing and excavation activities that previously had not been regulated (American Mining Congress v. U.S. Army Corps of Engineers, No. 93-1754, Jan. 23, 1997 (D.D.C.)).

Management of Nonpoint Source Pollution. Surveys by states and EPA report that polluted runoff from agriculture and city streets and storm sewers is the leading cause of water quality impairment in the United States. EPA's most recent National Water Quality Inventory Report finds that these nonpoint sources of water pollution, along with runoff from forestry and construction sites, land disposal activities, and deposition of air pollution contaminants, contribute more than 50% of remaining water quality problems in rivers, lakes, and coastal waters. The 1987 CWA amendments established the first comprehensive program, in Section 319 of the Act, to address nonpoint source pollution through voluntary state management programs utilizing technical and financial assistance from EPA. Because the sources of nonpoint pollution are diverse, as are the geographic areas it affects, it is generally agreed that management solutions are best if they are tailored to local conditions, not dictated through national rules and regulations. That is the approach embodied in Section 319.

Still, pressure to address nonpoint pollution issues more expressly in the Act has grown for several reasons. First, increased public scrutiny of impaired waters and the TMDL provisions of the Act (discussed above) focuses attention on what controls states might necessarily impose on both nonpoint and point sources to achieve standards in waters that remain polluted. Second, the Administration's pending strategy to address animal waste problems (also discussed above) envisions using incentive-based and voluntary measures by the agricultural sector to achieve greater control of agricultural runoff that adversely affects water quality. Greater scrutiny of nonpoint pollution, including agricultural contributions, may occur as this strategy is developed and implemented. In any CWA reauthorization initiative, Congress may address agricultural pollution problems specifically and, more generally, whether and how to establish programs in the CWA with minimum standards to continue progress towards water quality goals, while providing flexibility and incentives for sources to manage polluted runoff.

Wastewater Funding. The 1987 CWA amendments authorized $18 billion to aid construction of public wastewater treatment facilities and established a new program of federal grants to capitalize State Water Pollution Control Revolving Funds, or state loan programs (SRFs). Authorizations for SRF grants under those amendments expired at the end of FY1994. The most recent survey by states and the EPA estimates that $139.5 billion is needed nationwide over the next 20 years for all types of projects eligible for funding. While initial intent was to phase out federal financial support for this program, Congress has continued to appropriate grants to the states, providing an average of $1.6 billion annually in recent years. Recently, the SRF provisions have been less controversial than have others in the Act, such as wetlands reform, because of apparent general agreement on the need to extend funding assistance (as reflected in continued appropriations). The CWA's SRF provisions also were a model for similar provisions added to the Safe Drinking Water Act in 1996 (P.L. 104-182). However, because remaining clean water funding needs are still so large, at issue is whether and how to extend SRF assistance to address those needs, how to allocate SRF funds among the states, and how to modify the program to aid priority projects. Of particular concern is assisting small and economically disadvantaged communities that have had the most difficulty in adjusting from the Act's previous categorical grants program to loans.