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**For most recent update see the AGI website for the 107th Congress**
Congress has made no move to reauthorize the Clean Water Act (CWA) since
the 104th Congress, when the House passed a reauthorization bill that died
in the Senate. The last reauthorization took place in 1987, and most of
the provisions of that bill ran out in 1990 and 1991. Congress has continued
to appropriate funds to implement the act while they debate several specifics
within the law, including the enforcement of Total Maximum Daily Load (TMDL)
standards, wetlands, local wastewater treatment, and the contamination
of many of the nations aquifers with MTBE, a popular gasoline oxygenate.
The May 2000 Political Scene column in Geotimes, entitled "Troubled
Waters," was written by AGI Congressional Science Fellow Eileen McLellan
on the TMDL issue.
Most Recent Action
Wetlands
Environmental Protection Agency (EPA) Administrator Carol Browner on
August 8th and Army Corps of Engineers (Corps) Assistant Secretary Joseph
Westphal on August 9th signed a proposed rule that will strengthen wetlands
protection. The rule will soon be published in the Federal
Register and open for public comment. The proposed rule will
close a loophole that EPA says has damaged or destroyed 20,000 wetland
acres and 150 miles of streams over the past two years without review or
mitigation. The loophole was the result of a 1998
court order that struck down the "Tulloch Rule," requiring a section
404 permit for the redeposit of soil during the ditching and draining of
wetlands and excavation in ponds or stream channels. The Tulloch
Rule was issued in 1993 by the EPA and Corps because developers were avoiding
permits by using specialized equipment to remove material dredged and depositing
it offsite -- the Tulloch Rule closed this loop. But because it claimed
that incidental fallback of material during drainage activities -- such
as dirt falling off a backhoe -- amounted to filling a wetland and required
a permit, the court determined it as overreaching and was thus overturned.
The EPA and Corps proposed rule clarifies the types of activities that
are likely to require permits and establishes a rebuttal presumption to
show that dredge activities are designed and conducted so as to result
only in incidental fallback, thus not requiring a permit. (8/15/00)
TMDLs
On July 11th, U.S. Environmental Protection Agency (EPA) Administrator
Carol Browner signed a rule to revise the TMDL program prior to enactment
of a congressional rider that would have blocked funding for the rule.
The rider, authored by Sens. Tim Hutchinson (R-AR) and Blanche Lambert
Lincoln (D-AR), was attached to H.R.
4425, the Military Construction Appropriations Act for fiscal year
(FY) 2001. Their amendment stated that no funds would be made available
for FY 2000 and 2001 for the EPA to make a final determination on or implement
any new rule concerning TMDLs. Because the TMDL rule was not "new"
prior to President Clinton's signature on the appropriations bill on July
13th, the rider had become irrelevent. EPA promulgation of TMDL rules
will become effective on October 1, 2001, in accord with congressional
intent of the rider. EPA also has upgraded this final action to "major
rule" status under the Congressional Review Act, allowing Congress 60 days
for review. EPA stated also that a number of changes were made to
the program in response to comments received after its initial proposal,
including those from members of Congress. Among the changes were
the removal of new permitting requirements for forestry, aquaculture, and
livestock feeding operations; enhancement of state flexibility; allowance
of states to have four years instead of two to update inventories of polluted
waters; and the allowance of states to establish their own schedules for
when polluted waters will achieve health standards within a 15 year time
period. The TMDL program, however, still faces the threat of delay
from Senator Hutchinson who has acknowledged that he may push for new restrictive
language to be added to the Senate VA-HUD appropriations bill (H.R.
4635), which has not yet undergone markup. Also, S.
2417, sponsored by Mike Crapo (R-ID) was introduced in April calling
for an 18-month moratorium on new TMDL regulations. A hearing was
held on S. 2417 in the Committee on Environment and Public Works Subcommittee
on Fisheries, Wildlife, and Drinking Water on May 18th, but no further
action has ensued. (7/18/00)
Previous Action in the 106th Congress
MTBE Groundwater Contamination
The MTBE issue, which is also tied to the Clean Air Act, was a hot
topic in the press, as well as in congressional committees during the months
of March and April, 2000. Although the use of MTBE has significantly
cleaned up the nation's air, it has wreaked havoc on its groundwater aquifers,
mainly because it is a highly soluble chemical that is not easily broken
down, and because it is often stored in leaky underground storage tanks.
On March 20th, EPA Administrator Carol Browner and Agriculture Secretary
Dan Glickman unveiled a proposal to phase out the use of MTBE as a gasoline
additive. Included in this proposal was the framework for legislation
that would reduce or eliminate the use of MTBE, and encourage the use of
renewable biomass fuels such as ethanol. Along with the proposed
legislation was a regulatory plan for EPA to ban MTBE through the Toxic
Substances Control Act (TSCA). For more on MTBE issues, see the AGI update
at http://www.agiweb.org/gap/legis106/mtbe.html.
(4/16/00)
TMDL and Non-Point Source Regulation Under the Clean Water Act
More directly linked to the Clean Water Act itself is EPA's proposal
to enforce TMDL provisions within the Clean Water Act. TMDL provisions
(Section 303(d)) have been in place since the CWA was enacted in 1972.
TMDLs essentially act as a tool that the CWA provides to bring polluted
waters into compliance with given water quality standards. Thus,
a TMDL acts as a pollution budget in that it is a calculation of how much
pollution a body of water can assimilate and still improve and eventually
come into compliance with water quality standards based on monitoring and
modeling of pollution sources. Since 1995 several citizen groups
have filed more than 30 lawsuits against the EPA and states for failure
to fulfill TMDL requirements. Court orders and increased public attention
forced the EPA, in 1996, to form a federal
advisory committee in order to seek out regulatory and administrative
changes to strengthen and clarify the TMDL program. On June 20th,
the EPA submitted a draft of the final rule to revise the TMDL program
to the OMB for a 60 day review before implementation. The EPA proposals
have become highly controversial, meeting resistance from agriculture,
forestry, and industry groups due to the potential negative impacts that
may occur and due to the lack of resources needed to implement the proposed
EPA programs. EPA has responded to these concerns by pointing out
additional funding requests in the Administration's 2001 budget proposal,
and by extending the time restrictions on states to plan and implement
the program.
Two subcommitte hearings occurred on March 21 and 23, 2000 within the Senate Committee on Environment and Public Works Subcommittee on Fisheries, Wildlife, and Water. The two hearings addressed the impact that the new EPA rules would have on states and the regulated community. Peter Guerrero, Director of Environmental Protection Issues of the General Accounting Office, noted that a large majority of the states do not have the majority of the data needed to assess their waters and implement TMDL programs. Two full committee hearings occurred as well in Whitefield, NH on 5/6/00, and Hot Springs, AR on 6/12/00 in response to the proposed rules and regulations issued by the EPA as well as S. 2417. Sponsored by Chairman Mike Crapo (R-Idaho), S. 2417, would increase authorizations for nonpoint source management and state implementation funds to assist in TMDL development. This bill also would delay implementation of new TMDL rules for up to 18 months, pending a study by the National Academy of Sciences. Testimony from all four hearings is available on the Committee Webpage. (6/12/00)
On June 28, the Senate Agriculture Committee held a hearing to review H.R. 4502, the Water Pollution Program Improvement Act of 2000, and the EPA's proposed TMDL rules on agriculture and silviculture. The hearing was heated with many criticizing remarks directed toward the EPA, USDA and their handling of the proposed TMDL rule and lack of public input from relevent stakeholders. Ranking Member Charlie Stenholm (D-TX) stated that "The EPA has clearly not done enough to convince the public that these rules are good policy, nor has the EPA adequately addressed the technical, financial and scientific issues surrounding the rules." Testimony was given by a number of people including Mr. J. Charles Fox, Assistant Administrator for Water U.S. Environmental Protection Agency, and Mr. James Lyons, Under Secretary for Natural Resources and Environment at the U.S. Department of Agriculture. Mr. Fox was quoted in his testimony as saying, "based on the comments we received on the proposed TMDL rule and on input from other interested parties, we have revised the proposal and expect to publish a final TMDL rule early this summer." Testimony from the hearing is available on the Committee Webpage. (6/28/00)
Clean Water Act Hearings in 1999
October 6, 1999 Senate Environmental and Public Works Committee Hearing
S.
914, the Combined Sewer Overflow (CSO) Control and Partnership Act,
was the subject of an October 6, 1999 hearing of the Senate Environment
and Public Works (EPW) Committee. According to Sen. Bob Smith (R-NH),
who introduced the bill in April of 1999, CSOs are a serious problem for
small communities that cannot afford to fix them. These communities do
not meet EPA regulatory standards that were set in 1994 when they issued
the Combined Sewer Overflow Policy. S. 914 would extend the deadline
on compliance until EPA has completed the water quality standards designated
use review that is called for in the 1994 policy. S. 914 also gives
communities 15 years to comply with standards, and allows exceptions in
cases where it is not economically feasible. States would receive
$500 million in FY '00, $750 million in FY '01, and $1 billion in FY '02
to finance updating their combined sewer systems. A companion bill,
H.R. 828, was introduced in the House by Rep. James Barcia (D-MI) in June
of 1999.
S. 968, introduced by Sen. Bob Graham (D-FL) in March of 1999, was also discussed during the October 6th hearing. The bill would would authorize EPA to give states $75 million in four years to increase available water supplies and to develop alternative sources. Money could only be granted for long-range water resource management projects, and to efforts to meet critical water supply needs.
The administration witness at the hearing, EPA Assistant Administrator for Water Chuck Fox, noted that the administration opposes both bills because they create new grant programs. According to Environment and Energy Daily, Fox said that a new program would take money away from the already existing Clean Water Act State Revolving Loan Fund.
S. 1699, introduced by Sen. George Voinovich (R-OH) would reauthorize the State Revolving Loan Fund for five years and put $3 billion in the fund each year. The bill would also make more programs eligible for money, and make some administrative changes.
October 12, 1999 Senate Environmental and Public Works Committee
Hearing
On October 12th, again at a Senate EPW Committee hearing, EPA had the
opportunity to comment on several other bills related to the Clean Water
Act. Fox, who again represented the administration, spoke favorably
of S.
669, the Federal Facilities Clean Water Compliance Act, introduced
by Sen. Paul Coverdell (R-GA). S. 669 would make federal facilities
responsible for CWA violations instead of granting them federal sovereign
immunity.
He spoke less favorably, or indifferently, about S. 188, which was introduced by Sen. Ron Wyden (D-OR) with bi-partisan support from Sen. Conrad Burns (R-MT). S. 188 would allow the State Revolving Loan Fund to be used for water conservation and water quality improvement projects. The main purpose of the bill would be to increase the flow of irrigation water through more conservative irrigation techniques. This would dilute the contaminants and high water temperatures in run-off to streams, bringing streams closer to meeting water quality standards. The administration speculated that the program would have limited environmental effects, and also pointed out some technical problems that it had with the bill.
Finally, Fox spoke out against S.
1706, introduced by Sen. Kay Bailey Hutchison (R-TX). S. 1706 would
amend CWA to exclude some areas and activities from storm water regulation.
The administration felt that the bill would wipe out the regulations that
have been developed in response to the 1987 amendments to CWA. According
to Environment and Energy Daily, Fox said that the bill would not only
undermine a program that has been developed to address similar concerns,
but would also create situations in which no entity is legally responsible
for storm water pollution.
Background
The Federal Water Pollution Control Act of 1972 is commonly known as
the Clean Water Act (PL 92-500). Its purpose is to restore and maintain
the chemical, physical, and biological integrity of the nation's waters.
The Act consists of two main areas of emphasis: (1) regulatory provisions
that impose progressively more stringent controls on the discharge of pollutants,
and permit the discharge of dredged or fill material into waterways and
wetlands, and (2) funding and planning provisions that authorize Federal
financial assistance for municipal wastewater treatment plants, state administration
grants, nonpoint source programs, the Great Lakes and Chesapeake Bay Programs,
the National Estuaries Program, and other purposes.
The most recent reauthorization of the Act became law after Congress
overrode President Reagan's veto by votes of 401-26 in the House and 86-14
in the Senate. Since the bill became law on February 4, 1987 (PL 100-4),
authorization for many of its programs has expired, particularly the capacity
for states and localities to receive federal funding for clean water projects
which lapsed in 1991. The authorization for grants for State Revolving
Funds (SRFs) expired in 1994. Funding has continued to be provided
through annual appropriations. More information on reauthorization
efforts is available in a Congressional Research Service (CRS) report.
Under the SRF program, states must deposit into the SRFs at least 20
percent of the amount of federal grants in matching funds. The SRFs are
available to make low interest loans, buy or refinance local debt, subsidize
or insure local bonds, make loan guarantees, act as security or guarantee
of state debt, earn interest, and pay administrative expenses. All projects
must be those which will assure maintenance of progress towards the goals
of the Act and meet the standards and enforceable requirements of the Act.
After states achieve those requirements, SRF monies may be used to implement
other water pollution control programs such as nonpoint source pollution
management and national estuary programs. EPA has approved 57 states and
territories for funding under the SRF program. A CRS report on implementing
the Clean Water Act is available on the National Council for Science and
the Environment website.
Please send any comments or requests for information to the AGI Government Affairs Program.
Contributed by Alison Alcott, 1999-2000 AGI/AAPG Geoscience Policy Intern and 2000 AGI/AIPG Geoscience Policy Intern Nathan Morris
Posted April 27, 1999; Last updated August 15, 2000
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