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Clean Water Issues (12-06-02)

Two major pieces of legislation regulate the nation's waters: the Clean Water Act (CWA) governs navigable waters including lakes, rivers, aquifers, and coastal areas and the Safe Drinking Water Act (SDWA) governs the nation's public drinking water supply.  The CWA was last authorized in 1987, but most of the provisions of that bill expired in 1990 and 1991.  There is general agreement that the law has been successful in greatly improving water quality throughout the nation, but reauthorization of the comprehensive bill has been difficult.  Congress has continued to appropriate funds to implement the Act while debating several issues, including the enforcement of Total Maximum Daily Load (TMDL) standards, wetland preservation, local wastewater treatment, and the contamination of many of the nation's aquifers with MTBE, a popular gasoline oxygenate. The SDWA, originally passed in Congress in 1974, authorizes the Environmental Protection Agency (EPA) to set national drinking water standards to protect against both naturally occurring and anthropogenic contaminants.  EPA is currently investigating several specific health risks including: arsenic, radon, microbial contaminants, and the byproducts of drinking water disinfection.

Most Recent Action

On October 8, 2002, the Senate Environment and Public Works Committee held a hearing commemorating the 30th anniversary of the Clean Water Act (CWA). Distinguished panelists presented their testimony. CWA is now heralded as the most important environmental legislation to date. The hearing promoted a discussion of the current state of the nation's waterways. At the time the statute was enacted the nation's waterways were in serious danger, today the situation is even worse. Panelists testified that the administration has taken steps to effectively reverse the successes of the CWA and consequently put the country's watersheds at risk. Congressional leaders have proposed legislation to amend the CWA. Some provisions of the Act have yet to be enacted most importantly is that of nonpoint source pollution control and the Total Maximum Daily Load (TMDL) Program.(12/06/02)

A statute celebrating its 30th anniversary, the Clean Water Act, a litigious environmental triumph faces a debate over detrimental redefinition and continued enactment. Arguments over polluted waters are the same as those dealt with in 1987 Amendments to the Act. Point source pollution control has seen many victories while the remedy for non-point source pollutants are contained in strong provisions of the CWA existing as cures. Environmentalists claim Bush Administration policy toward the Act has rolled back the clock on the CWA to a position this country was in 30 years ago in redefining "navigable waters" of the Act. Without federal protection rivers, lakes, estuaries, wetlands, and coastal areas would be threatened by unregulated pollution. Today, 45% of the nation's waters are not "swimmable or livable". The Total Maximum Daily Load (TMDL) program, part of the CWA is essential in non-point source remediation. The Bush Administration has requested the EPA delay revision of TMDL rules until May 2003. Recent congressional action on clean water includes the Administrations FY 2003 budget with $1.212 billion requested for the clean water State Revolving Fund (SRF) grants in addition to $20 million toward Targeted Watersheds Initiative that provide stakeholder incentives. Recent court decisions limiting the geographic extent of the Clean Water Act 404 program and two key terms of the rules could incite congressional attention. Environmental groups have criticized court decisions and there is legislation on the docket to overturn the rule changes HR 4683 and to clarify the geographic scope S 2780, HR 5194. In December 2002, the Supreme Court will argue a case concerning the CWA, Borden Ranch Partnership v. USACE and EPA, respondents. The case involves interpretation of agricultural land use practices and whether such practices constitute pollutant discharge under the Clean Water Act and whether the petitioners' action qualified for exemption under a provision of the CWA. (11/01/02)


On June 13th, the House Subcommittee on Water Resources and Environment held a hearing to discuss the use of water quality trading.  All witnesses agreed that a trading program could potentially provide great benefits for water quality, and could be the next needed step in cleaning up our nation's waters.  Its market-based incentives could be just the ticket to get the private sector, owner of two thirds of US land, involved in pollution reduction.  While the overall tenor of the hearing was in favor of the trading, concerns were raised regarding the possible creation of pollution "hot-spots", a lack of accurate pollution measurements and effective land-source locators, and the setting of a cap that was too high. A summary of this hearing is available on this web site. The subcommittee web site contains additional background and information on the witnesses. (6/17/02)

On June 6th, the Senate Environment and Public Works Subcommittee on Clean Air, Wetlands, and Climate Change held a hearing addressing the recent change in the Army Corps of Engineers definition of "fill material".  With the approval of the Bush Administration, the Army Corps of Engineers recently changed their definition to match the EPA's broader definition of the material.  Proponents of the definition change maintain that it improves consistensy between the Army Corps of Engineers and the EPA.  Opponents charge that this change effectively reverses part of the Clean Water Act, allowing waste from mountaintop mining to be disposed of in mountain waterways.  Both the courts and Congress appear to believe that the Corps does not have the authority to change the definition of fill material.  On May 8th, U.S. District Court Judge Charles Haden ruled in Kentuckians for the Commonwealth v. Corps of Engineers that the Corps could not legally make the definition change; a change like that would need to come from Congress because of its impact on the Clean Water Act.  However, Congress is also unlikely to support the expanded definition.  Before Haden's ruling a bipartisan group of House members, led by Reps. Chris Shays (R-CT) and Frank Pallone (D-NJ), presented a bill to maintain the original limits placed on fill material in the Clean Water Act.  Opposition to the change in definition has been expressed in the Senate as well. Mining industry representatives feel that the composition and structure of fills is largely misunderstood.  They abide by EPA standards and monitor for negative impacts on the affected streams. (6/7/02)

On May 23rd, the National Academy of Sciences (NAS) issued a press release announcing a new report entitled Oil in the Sea: Inputs, Fates, and Effects.  The presence of oil in ocean waters, even in small amounts, can have a large impact on marine life and ecosystems.  The Exxon Valdez oil spill in 1989 triggered change in regulations and policies concerning oil transportation and extraction in an effort to minimize these types of oil inputs into the ocean.  While oil spills tend to get the most attention, there are four inputs of oil to the sea: transportation, extraction, runoff from land sources related to human consumption, and natural seeps.  The most recent NAS report highlights the fact that the majority of oil inputed to the oceans each year is not due to large spills or oil extraction.  In fact, over 60% of the oil entering North American waters is due to natural processes, and of the oil input due to human activity almost 85% is from sources other than large spills and extraction.  These sources include land-based runoff, polluted streams, airplanes, and small watercraft.  Along with presenting the most recent estimates of oil inputs, the NAS report offers recommendations for prevention and response to these inputs.  One recommendation called for federal agencies to work with industry and academia to better understand what happens to oil released from natural seeps and the ecological effects associated with this. (6/4/02)

Current Congress
On February 28, 2001, the House Transportation and Infrastructure Committee's Water Resources and Environment Subcommittee held a hearing to discuss revision of Environmental Protection Agency (EPA) regulations related to several CWA issues with focus on TMDL standards and concentrated animal feeding operation requirements.  Testimony was heard from North Dakota Governor John Hoeven, Oregon Governor John Kitzhaber, Christopher Tulle of the Environmental Council of States, and Jon Craig representing the Association of State and Interstate Water Pollution Control Administrators.  These state officials expressed concern that EPA has too much power under the CWA to regulate the actions of states and managers in individual watersheds.  Each watershed has unique pollution problems that need unique solutions.  There was no talk of weakening environmental standards related to the CWA, only of revising the state federal partnership in enforcing the standards.  State officials stressed the importance of allowing states flexibility in priority setting, regulation of non-point source pollution, and grant allocation to bolster successful state programs.  The subcommittee chair did not announce further action. Testimony from the hearing is posted on the subcommittee web site. (3/5/01)

The National Research Council (NRC), the operating arm of the National Academy of Sciences (NAS), recently released Compensating for Wetland Losses Under the Clean Water Act, a critical assessment of a government program designed to maintain the total amount of wetlands in the United States, known as wetland mitigation or wetland "banking."  Part of the Clean Water Act, the program allows developers to fill in wetlands in exchange for creating or restoring others nearby in order to achieve a "no net loss" goal.  The goal was set forth in the previous Bush administration and aims for no change in total size and function of wetlands.  However, the report concluded that the "no net loss" goal is not being met because of inadequate instructions, standards, and monitoring of the mitigation projects.  For more on wetlands see the AGI wetlands page.

On June 28th, the House Subcommittee on Water Resources and Environment held a hearing on the recent National Research Council (NRC) report, Assessing the Total Maximum Daily Load (TMDL) Approach to Water Quality Management.  TMDL, established under the 1972 Clean Water Act, is the amount by which sources of pollution need to be reduced in order to comply with state standards.  The program was developed to deal with point source pollutants.  Measuring and determining evaluation standards for non-point source pollutants was one issue addressed in the NRC report.  The report also reviewed current TMDL standards and procedures, then provided recommendations for clearer and more accurate methods to assess and remediate polluted bodies of water. (6/28/01)

According to a press release from the National Research Council (NRC) -- operating arm of the National Academy of Sciences -- a new report contains strong evidence reaffirming the links between exposure to arsenic in drinking water and bladder and lung cancer. On October 4th, the House Science Subcommittee on Environment held a hearing on the report. The U.S. Environmental Protection Agency (EPA) used data from three reports--Arsenic in Drinking Water: 2001 Update, by the National Research Council (NRC); Arsenic Rule Benefit Analysis: An SAB Review, by the EPA Science Advisory Board (SAB); and Report on the Arsenic Cost Working Group to the National Drinking Water Advisory Committee, by the National Drinking Water Advisory Council (NDWAC)entitled Arsenic in Drinking Water: 2001 Update--to establish a new threshold level for arsenic in the nation's drinking water. On the last day of October, Environmental Protection Agency (EPA) Administrator Christie Todd Whitman announced that her agency would adopt a new limit for arsenic in drinking water of 10 parts per billion (ppb), down from 50 ppb.  The new limit was originally proposed by the Clinton Administration in January, suspended by the Bush Administration in March, and now officially reinstated in an October 31st letter from Whitman to Congress.  Explaining her decision, Whitman stated that a "standard of 10 ppb protects public health based on the best available science and ensures that the cost of the standard is achievable."  Environmental groups pushed for an even tighter standard of 3 ppb, while many business and mining groups opposed the stricter arsenic limits because of the high costs anticipated for small water systems and for municipal systems in areas with current or historical mining.  Senate Majority Leader Tom Daschle (D-SD) and House Science Committee Chairman Sherwood Boehlert (D-TX) praised Whitman's decision, calling it "a victory for the health of American families" and "a reasonable compromise," respectively.  The new standard will be met by 2006 with the aid of $20 million in earmarks to develop more cost effective technologies for small towns to meet the standard.  (11/02/01)

On November 14th, the House Science Committee held the fourth in a series of hearings on terrorism entitled, "H.R. 3178 and the Development of Anti-Terrorism Tools for Water Infrastructure."  Scientists, water agency officials, and the new Director of New York State's Office of Public Security gave testimony supporting the Water Infrastructure Security and Research Development Act, H.R. 3178.  They also discussed the need for increased research and development aimed at the prevention and mitigation of physical and cyber threats facing drinking water and wastewater systems, and how to respond if a threat became a reality.  H.R. 3178, introduced by Committee Chairman Sherwood Boehlert (R-NY) and Rep. Brian Baird (D-WA), would authorize $12 million dollars per year for the Environmental Protection Agency (EPA) to provide research and development grants for security of the nation's water infrastructure.  In a markup held on November 15th by the House Science Committee, the bill was approved by voice vote with only a technical amendment.  Companion legislation introduced by Senate Environment and Public Works Committee Chairman Jim Jeffords (I-VT), S. 1593, passed out of the committee last week and awaits floor action.  Jeffords's bill differs from the House version in that it would run for six years instead of five and include a $20 million authorization to aid smaller communities in meeting the new 10 parts per billion (ppb) arsenic standard.  For more details on the November 14th hearing, see the AGI hearing summary(11/16/01)

On November 15th, the House Transportation and Infrastructure Subcommittee on Environment and Public Works held a hearing on the future of the Total Maximum Daily Load (TMDL) program.  The Assistant Administrator for the Environmental Protection Agency's (EPA) Office of Water, G. Tracy Mehan, was the only witness.  He reported to the subcommittee on the agency's plan to manage the TMDL program in light of a congressionally requested review and a National Academy of Sciences (NAS) report's recommendations.  Mehan described EPA's re-evaluation of a controversial July 2000 rule and told the subcommittee that the agency plans to propose a new rule to comprehensively amend the TMDL program by the spring of 2002, and "promulgate a final rule before April 30, 2003."  In designing the new rule, EPA plans to provide states and tribes with "greater flexibility" and the ability to utilize market-based approaches, such as water pollution trading and economic incentives for early reductions, to minimize the cost of implementation.  EPA's rulemaking strategy also includes a series of listening sessions to gather ideas from the public on how to improve the TMDL program.  For more details, see the AGI hearing summary.  (11/26/01)

The Water Infrastructure Security and Research Development (WISARD) Act passed the House on December 18, 2001.  Introduced by Reps. Sherwood Boehlert (R-NY) and Brian Baird (D-WA), H.R. 3178 aims to enhance security at water supply and wastewater treatment systems.  The bill would authorize $12 million per year over five years to the EPA for research grants on ways to prevent, detect, and respond to threats to the water supply infrastructure.  Sens. James Jeffords (I-VT) and Robert Smith (R-NH) introduced a Senate companion bill, S. 1593, in November.  Both the House Science Committee, which Boehlert chairs, and the Senate Environment and Public Works Committee, which Jeffords chairs, held a hearing in November.  The Senate version still awaits time on the chamber floor and a final vote, but once that happens, the two sides will begin a conference committee to work out differences. (1/3/02)
 
 

Background
The Federal Water Pollution Control Act of 1972, commonly known as the Clean Water Act (CWA; PL 92-500), aims to restore and maintain the chemical, physical, and biological integrity of the nation's waters.  The Act contains provisions to control pollutant discharge and the dumping of dredged or fill material into waterways, as well as provisions for the authorization of federal financial assistance to municipal wastewater treatment plants, state non-point and point source pollution clean-up programs, and the National Estuaries Program.  Since the CWA was last reauthorized as the Clean Water Act of 1987 (PL 100-4), many of its programs have expired.  The capacity for states and localities to receive federal funding for clean water projects lapsed in 1991.  The authorization for grants for State Revolving Funds (Serfs) expired in 1994.  Programs instated under the CWA continue to be funded in appropriations bills while Congress attempts to reauthorize the comprehensive bill.  Reauthorization is made difficult by the many contentious issues dealt with in the bill -- wetland preservation measures, use of MTBE, and point source and non-point source pollution regulations including TMDL.  More information about the MTBE debate can be found on the AGI Update on Reformulated Gasoline and MTBE.

TMDL provisions (Section 303(d)) have been in place since the CWA was enacted in 1972.  TMDL essentially act as a tool to bring polluted waters into compliance with given water quality standards.  A TMDL is a calculation of how much of a particular substance a body of water can assimilate and still improve and eventually come into compliance with water quality standards.  The standards are based on monitoring and modeling of pollution sources.  The EPA's TMDL rules and proposals have become highly controversial, meeting resistance from agriculture, forestry, and industry groups due to potential negative economic and environmental impacts as well as the lack of resources to implement the proposed programs.  Since 1995, several citizen groups have filed more than 30 lawsuits against the EPA and states for failure to fulfill TMDL requirements.  In 1996, court orders and increased public attention forced the EPA to form a federal advisory committee in order to seek out regulatory and administrative changes to strengthen and clarify the TMDL program.  The May 2000 Political Scene column in Geotimes, entitled "Troubled Waters," was written by AGI Congressional Science Fellow Ellen McLellan on the TMDL issue.

Several bills to amend the Clean Water Act became law in the 106th Congress.  The Beaches Environmental Assessment and Coastal Health Act of 2000 (P.L. 106-284) contains provisions to upgrade water quality standards in coastal recreation waters.  The Estuaries and Clean Waters Act of 2000 (P.L. 106-457) reauthorizes funding for several existing coastal water quality programs. An act to authorize CWA grants for wet weather sewage projects was passed as a part of an omnibus appropriations bill (P.L. 106-554).  The EPA has also recently enacted several rules under the CWA related to TMDL, MTBE, and permitting for excavation or dredging of water bodies.  More information on action in the 106th Congress is available on the AGI Update on Clean Water Issues for that Congress  The Congressional Research Service Report Clean Water Act Issues in the 107th Congress contains a brief history of the Clean Water Act and an analysis of potential issues that the 107th Congress will face.

In 2000, the National Research Council's Committee on USG Water Resources Research published a report entitled Investigating Groundwater Systems on Regional and National ScalesThis report provides a framework for the USG for a program to provide an ongoing regional and national assessment of the nation's groundwater resources.  Part of the report focuses on sustain ability as incorporating four major areas: management decisions (such as pumping rates, use of ground and surface water), resource dynamics (such as climate change), environmental impacts, and emerging technologies.  The report focuses on assessments that are relevant to the formation of policy.  The report gives a list of lines of research which it believes should be prioritized within the study of regional and national groundwater.  The topics include aquifer management and storage and recovery projects, groundwater/surface water interaction, groundwater recharge, and characterization of heterogeneous aquifers, with an additional emphasis on development of modeling techniques which would aid in the study of these priority research areas.  The report ends with an outline of suggestions of how to best conduct this research within the context of the USG and its programs.



Sources:  Congressional Hearing Testimony, Congressional Research Service, E&E Daily News, Greenwire, National Research Council.

Please send any comments or requests for information to the AGI Government Affairs Program.

Contributed by AGI/AAPG Government Affairs Spring 2001 Intern Mary H. Patterson; AGI/AIPG Summer 2001 Interns Michelle Williams and Caetie Ofiesh; AGI/AAPG Fall Semester 2001 Intern Catherine Macris, AGI/AIPG Summer 2002 Intern Sarah Riggen, and AGI/AAPG Fall Semester 2002 Intern Annette M. Veilleux.

Posted March 8, 2001; Last Updated December 6, 2002


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