Clean Water Issues (4-21-04)
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.
On April 21st Representatives Richard Pombo (R-CA), Jim Davis (D-FL)
and Heather Wilson (R-NM), working with the U.S. Desalination Coalition,
introduced a bill (H.R.
3834) to establish within the Department of Energy a program to
provide Energy Assistance Payments to desalination projects. All three
Representatives agree that water shortages are becoming a national
problem and need to be addressed proactively by the federal government.
H.R. 3834 would authorize $200 million over five years for Energy
Assistance Payments. Desalinized water costs about $900 per acre-foot
(the unit used to measure large volumes of water). The subsidies from
H.R. 3834 would decrease that cost to $600-650 per acre-foot. Currently,
importing water into Southern California costs approximately $500
The U.S. Desalination Coalition held a press conference in conjunction
with the announcement of H.R. 3834 to make the public aware of desalination
technology. Hal Furman, Executive Director of the U.S. Desalination
Coalition, opened the conference by saying that there have been recent
significant cuts in the cost of desalination and that the federal
government needs to invest in the new water infrastructure that is
desalination. Bernie Rhinerson, chairman of the U.S. Desalination
Coalition and head of the San Diego Water Authority said that San
Diego prefers desalination as the method of acquiring water. He believes
that the federal government needs to start participating in water
problems on a national level, rather than leaving the problems up
to state governments. (4/21/04)
The New York Times reported on June 21, 2003, that a federal appeals
court has upheld the Environmental Protection Agency's (EPA) standard
for arsenic levels in drinking water, rejecting a legal challenge
brought by the state of Nebraska, the Competitive Enterprise Institute,
and several municipal water districts. The standard was lowered from
50 to 10 parts per billion (ppb) under the Clinton Administration,
and survived a suspension by the Bush Administration and critical
review by the National Academy of Sciences. Opponents of the stricter
standard argued that the Constitution does not grant the federal government
the authority to regulate arsenic concentrations in drinking water
because negative health effects typically result from long- term exposure
that does not affect interstate commerce. Plaintiff attorneys cited
contaminants that carry contagious diseases as examples of pollutants
that could immediately affect interstate travelers. The groups also
contended that the entire Safe Drinking Water Act (SDWA) is unconstitutional
for reaching beyond interstate commerce and contagion, and that both
the arsenic standard and the SDWA violate the 10th Amendment because
they provide federal authority on issues not delegated to the federal
government by the Constitution. Additionally, the plaintiffs asserted
that requiring water districts to provide water consumers with notification
of failures to comply with the standard, and the risks of even low
concentrations of arsenic, is a violation of the First Amendment right
not to speak.
The District of Columbia Circuit Court of Appeals rejected these
arguments chiefly on the procedural grounds that the petitioners did
not first present their objections directly to EPA. The ruling suggested
that EPA might have responded positively to the complaint with a national
standard applicable to public water systems that crossed state lines,
or a rule excepting intrastate waters. Plaintiff attorneys and other
groups watching the case noted that the ruling leaves open the possibility
that intrastate water systems could be excluded from SDWA protections
in the future, and that other EPA regulations could be successfully
challenged. These parties predicted that the beginning of EPA enforcement
of the arsenic standard in 2006 will provide another opportunity to
contest the rule. While the court's ruling centered on procedural
reasons, it also indicated that it found little merit in the claim
that SDWA violates the constitution. (6/24/03)
Congressional efforts to clarify federal jurisdiction over the nation's
water bodies through the CWA have not seen any action since February,
2003. The Clean Water Authority Restoration Act (S.
473 and H.R.
962), which would have replaced the CWA language "navigable
waters" with a more broadly defined "waters of the United
States" was referred to the Committee on Environment and Public
The introduction of several bills in the 108th Congress followed
Environmental Protection Agency (EPA) estimates that up to $390 billion
will be required in the next 20 years to rebuild, repair, and upgrade
wastewater treatment plants. No further action has resulted from these
bills, which include H.R.
20 and S.
Without amending the SDWA, several bills addressed drinking water
contamination from the gasoline additive MTBE. On June 3, 2003, the
Senate Committee on the Environment and Public Works placed S.
791 on the Senate Legislative Calendar and now awaits consideration
on the Senate floor. The bill would ban MTBE and authorize $200 million
for remediation of MTBE and other ether additive contamination. On
May 1, 2003, the Senate passed S.
195, which is aimed at promoting cleanup of underground storage
tank leaks. The bill also authorizes the appropriation of $125 million
from the Leaking Underground Storage Tank (LUST) Trust Fund for MTBE
remediation efforts. The broad energy bill passed by the House on
April 11, H.R.
6, authorizes $850 million from the LUST Trust Fund to respond
to releases of MTBE and other fuel oxygenates, including ethanol.
Legal challenges to the Environmental Protection Agency's (EPA) newly
revised oil pollution response rule have opened a new front in the
battle over the reach of federal Clean Water Act (CWA) regulations,
Greenwire reported on June 18, 2003. Lawsuits filed in D.C. District
Court by the American Petroleum Institute and Marathon Oil charge
that recent changes to Spill Prevention, Control, and Countermeasure
(SPCC) rules overstep the bounds of federal authority. The revisions
were proposed in 1991, 1993, and 1997 and became effective August
16, 2002. The new language defines the waters subject to SPCC rules
under the CWA more broadly than strictly "navigable" waters,
and includes "intrastate lakes, rivers and streams, mudflats,
sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa
lakes, or natural ponds
, the destruction of which would affect
interstate or foreign commerce." The legal challenges to this
policy contend that the regulations applied so broadly ignore the
limitations placed on the CWA by the 2001 Supreme Court decision in
Solid Waste of Northern Cooke County v. Army Corps of Engineers (SWANCC),
which ruled that "navigable" was intended to be taken literally.
The plaintiffs seek to limit the burden on oil facilities of preparing
detailed oil spill prevention and response measures in locations not
adjacent to navigable waters.
In response, the Sierra Club and the National Resource Defense Council
filed intervention motions against the lawsuits on June 10, 2003.
The environmental groups claim that a ruling favorable to the oil
companies could remove federal CWA protection from up to 80% of U.S.
waters, and charge that the lawsuits are attacks on the larger goals
of the CWA. Under such a ruling, the groups argue, large oil processing
facilities located adjacent to non-navigable waterways would not be
required to take measures to prevent and contain spills, even though
these waterways generally flow into navigable bodies.
The lawsuits concerning the SPCC rules are not the only recent actions
in the struggle over federal authority to regulate the nation's waterways.
The Fourth Circuit Court of Appeals ruled on June 13, 2003, that the
federal Clean Water Act applies to wetlands and small water bodies
located far from large waterways, including drainage ditches and culverts,
reaffirming the authority of the federal government to regulate such
wetlands, which had been limited by the SWANCC decision (see Wetlands
Policy Most Recent Action). The Bush Administration announced in January
2003 that it is considering a rulemaking that would remove CWA protection
(and therefore SPCC requirements) from isolated wetlands and small
or seasonal streams. (6/18/03)
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 Scales. This
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.
For additional information see AGI's Clean
Water Issues and Wetlands
Legislation from the 107th Congress, and AGI's Wetlands Issues
from the 108th Congress.
Sources: Environmental Protection Agency, E&E News, Greenwire,
Thomas website, and hearing testimony.
Contributed by Brett Beaulieu, AGI/AIPG 2003 Summer Intern and Gayle
Levy, AGI/AAPG 2004 Spring Semester Intern
Background section includes material from AGI's Clean
Water Issues for the 107th Congress.
Please send any comments or requests for information to AGI Government Affairs Program.
Last updated on April 21, 2004