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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.

Most Recent Action

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 per acre-foot.

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)

Previous Action

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 Works.

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. 170.

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. (6/3/2003)

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)

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.

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


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