Clean Water Issues (12-12-08)

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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.

Recent Action

Congressional Briefing on Low-Level Organic Chemicals in Rivers and Streams: Implications for Drinking Water
The Environmental and Energy Study Institute (EESI) and the Water Environment Federation (WEF) hosted a briefing on December 5, 2008, to release new drinking water quality data collected by the U.S. Geological Survey (USGS). In his introductory address, Tim Miller, Chief of the USGS Office of Water Quality, explained to the audience that the new USGS data focuses on “emergent contaminants.” These are chemicals that, if present in water supplies, typically occur at low concentrations and have historically been unmonitored and unregulated. The term “contaminant,” as defined by the Safe Drinking Water Act is used to refer to anything in water besides H2O and does not necessarily imply that a substance is harmful to humans.

Greg Delzer, USGS scientist and lead author of the new study, presented the new data. The study analyzed source water and “finished” or treated water from nine sites around the U.S. for herbicides, gasoline related compounds, personal care products, and other toxic compounds. About half of all samples contained more than 15 of these compounds. Although none of the regulated contaminants reached average concentrations at or above the maximum contaminant levels (MCL) designed to preserve drinking water quality, about one half of the chemicals measured are unregulated by such benchmarks. Many compounds were detected in both source and finished water. In fact, some of the compounds were more commonly detected in finished water because they are byproducts of disinfectant processes used in the treatment plants. Water sources located close to agricultural or urban land had higher concentrations of contaminants than water sources surrounded by undeveloped land.

The results provide further evidence that a diverse group of compounds are present in low concentrations in source water. The fact that occurrence and concentrations are often similar in source and finished water emphasizes the importance of good management practices of watersheds because current treatment methods are not effective at removing these compounds from drinking water. Delzer recommended that work be done to identify the most common mixtures of compounds present and what sort of potential health effects they might have. He closed by saying he hopes this preliminary study will add to the impetus to develop a better understanding of these critical water issues.

Thomas Jacobus, General Manager of the Washington Aqueduct (the drinking water treatment agency for the District of Columbia and Northern Virginia) spoke from the perspective of a utility that had participated in the USGS study. He stressed that utility companies need comprehensive assessments to be conducted by national agencies like the USGS, U.S. Department of Agriculture (USDA), and Environmental Protection Agency (EPA) in order to be able to make the best choices about serving their customers.

During the discussion period, one audience member asked the panelists to identify what federal programs can help address these issues. In response, Jacobus and Miller talked about the importance of public education. Jacobus described, for example, how educated farmers might choose to participate in voluntary programs that would help preserve watershed water quality. He also explained that when a community makes decisions about things like de-icing roads, they need to be informed about what implications those actions will have on water quality.
Another audience member asked what the time frame might be for understanding if emergent contaminants affect human health. No one from the panel had a clear response.

In closing, Jacobus stressed the importance of looking upstream for solutions. Protecting watersheds of source water from pollution is much more effective than trying to treat already contaminated water. Purifying water of emergent contaminants requires the use of more chemicals which add other contaminants. (12/12/08, MAR)

EESI’s press release about the briefing is available here.

Previous Action

Federal Rule Making: Last Minute Environmental Actions
The Environmental Protection Agency (EPA) approved a rule on December 2, 2008, that affects mountaintop coal mining activity near bodies of water. Streams are currently protected by a 100-foot buffer zone and the rule change will extend that protection to lakes, ponds, wetlands, and all other waters. However, it will also permit other activities that are potentially damaging to the environment. For example, companies will be allowed to receive permits to dump waste within the 100-foot buffer if they show why an alternative is not reasonably possible.

The Environmental Protection Agency (EPA) issued a revised guidance clarifying the scope of “navigable waters” that are protected under the Clean Water Act on December 2, 2008. The guidance is for EPA and the U.S. Army Corps of Engineers and comes in response to the Supreme Court decisions in Rapanos v. United States and Carabell v. United States.

The agencies will assert jurisdiction over “traditional navigable waters”, adjacent wetlands, “relatively permanent” tributaries and wetlands adjacent to these tributaries. The agencies will decide on jurisdiction for non-permanent tributaries, adjacent wetlands and adjacent wetlands that do not abut a relatively permanent tributary. Agencies will not assert jurisdiction over swales, other erosional features or certain types of ditches. Furthermore the agencies will apply a “significant nexus standard” whereby an analysis will assess whether tributaries or wetlands significantly affect the environmental integrity of downstream navigable waters. Significant nexus includes hydrologic and ecologic factors. (11/08)

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:


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; Jill Luchner, 2008 AGI/AAPG Summer Intern; and Merilie Reynolds, AAPG/AGI Fall 2008 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 December 12, 2008.