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Clean Water Issues (5-4-06)

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 Drisnking 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 July 20, 2005, the Senate Committee on Environment and Public Works approved the Water Infrastructure Financing Act (S.1400). Originally introduced by Senator Lincoln Chafee (R-RI), S.1400 amends the Federal Water Pollution Control Act (FWPCA) and the Safe Drinking Water Act to improve water and wastewater infrastructure. "S. 1400 begins to address some of our nation’s most difficult water quality concerns by placing greater emphasis on watershed planning, assistance for small and disadvantaged communities, and innovation and technological advancement in the drinking water and clean water fields," Chafee said.

The primary purpose of the bill is to reauthorize through 2010 the Clean Water and Drinking Water State Revolving Loan Funds (SRF) which provide funding for the creation and maintenance of water infrastructure projects. This legislation would expand the fund to allow SRF spending on source water protection projects; replacement or rehabilitation of aging treatment, storage, or distribution facilities of public water systems; and capital projects to upgrade the security of public water systems. The bill also reauthorizes through 2010 the FWPCA and amends the FWPCA to expand the list of projects eligible for water pollution control assistance and streamline administration for smaller projects. It also sets aside up to $1 million for conducting water pollution needs surveys and establishes a grant program for watershed restoration projects. A final provision in the legislation directs the USGS to conduct an assessment of water resources every two years; coordinate federal and state agencies to develop and publish a list of water resource research priorities; and develop an effective information delivery system to communicate information on water resources.

The act is now ready for consideration by the Senate.

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 (SRF) 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. 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.

On June 21, 2003, a federal appeals court 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. The Court rejected these arguments chiefly on the procedural grounds that the petitioners did not first present their objections directly to EPA. Plaintiff attorneys and other groups watching the case noted that the ruling leaves open the possibility that intrastate water systems could be excluded from Safe Drinking Water Act 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.

On June 3, 2003, the Senate Committee on the Environment and Public Works placed S. 791 on the Senate Legislative Calendar. The bill would have banned MTBE and authorized $200 million for remediation of MTBE and other ether additive contamination. On May 1, 2003, the Senate passed S. 195, which was aimed at promoting cleanup of underground storage tank leaks. The bill also authorized the appropriation of $125 million from the Leaking Underground Storage Tank (LUST) Trust Fund for MTBE remediation efforts.

For additional information on water policy issues in the 109th Congress, see AGI's Wetlands and Coastal Resources Policy, Water Resources, and Great Lakes and Other Watersheds pages.

Sources: Environmental Protection Agency, E&E News, Greenwire, Thomas website, Press Releases for Senator Chafee, and hearing testimony.

Contributed by David Millar, 2004AGI/AAPG Fall Intern, and Jenny Fisher, 2006 AGI/AAPG Spring Intern.

Background section includes material from AGI's Clean Water Issues for the 108th Congress.

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

Last updated on May 4, 2006.

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