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Clean Water Issues in the 106th Congress (8-15-00)

**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.



Sources:  Congressional Hearing Testimony, Greenwire, Philadelphia Inquirer

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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