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Clean Water Issues (7-28-08)

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. Congress has been unable to reauthorize the CWA in its entirety, but continues to appropriate funds for its implementation while debating several issues, such as wetland preservation and local wastewater treatment. The SDWA 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.

Congress May Try to Clean-up Definition of Water
The House and the Senate have introduced similar bills that would replace the term "navigable waters," throughout the Clean Water Act, with the term "waters of the United States," defined to mean “all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting them, are subject to the legislative power of Congress under the Constitution”.

The House bill was introduced in May 2007 and a hearing was held on July 19, 2007, but since then no action has been taken. The Senate bill, which is the same as the House bill was introduced on July 25, 2007 and no additional action has been taken. On December 13, 2007, the Senate Environment and Public Works Committee held a hearing to discuss the effect of recent Supreme Court decisions on wetland protections in the
Clean Water Act and how the court chose to deal with the meaning of “navigable waters” versus “waters of the United States”. Chairwoman Barbara Boxer (D-CA) described the hearing as the “opening round” of discussions on the court decisions and the legislation.

Proponents of the bills favor including all waters under the Clean Water Act, not just waters that you could float a boat in. Opponents counter that attempting to protect all waters would be impossible. Senator Boxer promised more discussions in 2008 and Ranking Member James Inhofe (R-OK) said he would insist on more hearings before the Senate bill could be brought to the floor for a vote. Stay tuned as the statutory definition of waters that are protected by the Clean Water Act is likely to be a hot topic this spring.(2-14-08)

The full text of the bill is available from Thomas at: http://thomas.loc.gov/cgi-bin/query/z?c110:S.1870

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. The CWA was last authorized in 1987 with most of provisions of the bill expiring in 1990 and 1991. However, 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, a common gasoline additive, and point source and non-point source pollution regulations including total maximum daily load (TMDL).

In the 110th Congress two bills that have received attention are the Water Quality Financing Act (H.R. 720) and the Clean Water Restoration Act of 2007 (H.R. 2421, S. 1870). H.R. 720 would make funds available to those non-profit agencies providing assistance to small and rural water and wastewater projects with information gathering, funding and technical assistance.  

The Clean Water Restoration Act (CWRA) would replace the term "navigable waters," throughout the CWA, with the term “waters of the United States." The changes come in light of two Supreme Court cases which concerned the distinction between the two phrases. The U. S. Congress and Army Corps of Engineers had interpreted the term “navigable waters” to include wetlands and other shallow water bodies draining into or affecting navigable waterways; however the Supreme Court, in two cases Rapanos vs. U.S. and SWANCC vs. Army Corps, more narrowly defined the term. The CWRA proposes to change the terminology and includes a refined definition for “the waters of the United States” to clarify the original intent of  the CWA.

The Safe Drinking Water Act ( SDWA) originally enacted in 1974, considers health effects, analytical detection limits and the availability and cost of treatment technologies in order to establish enforceable water pollution standards known as the Maximum Contaminant Level (MCL). Under the SDW A, the EPA is required to publish a Contaminate Candidate List (CCL) every five years. The criteria for contaminate designation include the : adverse health effects, occurrence at levels of health concern, and a meaningful opportunity for health risk reduction if regulated.

In February 2008, the EPA published a draft of the 2008 CCL, which contains 93 chemicals and 11 microbiological contaminants. The EPA is reconsidering its evaluation process after a National Academy of Sciences recommendation to include the review pharmaceuticals as possible drinking water contaminants.Other contaminants receiving attention in the 110th Congress include lead (H.R. 2076), perchlorate (S. 24, S. 150, H.R. 1747), pharmaceuticals (H.R. 6451), and trichloroethylene (S. 1911).

Water use and reuse, conservation and efficiency, and rural infrastructure are also major concerns of the 110th Congress, numerous pieces of legislation in these areas have been proposed.  Specifically, the Climate Change Drinking Water Adaptation Research Act (H.R. 6297, S. 2970) would provide funding for research in water quality and supply with regard to the expected effects of climate change including extreme natural events, soil drying and subsidence and climate change mitigation policies such as carbon sequestration. The Small Community Drinking Water Funding Act (S. 1933) would change the Safe Drinking Water Act to require the EPA to establish a Small Public Water System Assistance Program for help with compliance in small systems.

For additional information on water policy issues in the 110th Congress, see AGI's Water Resources, and Great Lakes and Other Watersheds pages.

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

Contributed by David Millar, 2004AGI/AAPG Fall Intern, Jenny Fisher, 2006 AGI/AAPG Spring Intern and Jill Luchner, 2008 AGI/AAPG Summer Intern.

Background section includes material from AGI's Clean Water Issues for the 108th, 109th Congress.

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

Last updated on July 28, 2008.

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