American Geological Institute

Government Affairs Program


Clean Water Act Update (12-10-98)

The Federal Water Pollution Control Act of 1972, better known as the Clean Water Act, has been reauthorized since its inception, most recently by the Water Quality Act of 1987. That act's authorization expired several years ago, and efforts have been underway in the past three Congresses to pass a new reauthorization. In the interim, many provisions outlined in the 1987 reauthorization have been phased out. Issues surrounding wetlands can be contentious and are central to the delay in Clean Water Act reauthorization. The following material pertains to issues surrounding the Clean Water Act within the House of Representatives, Senate, and the Administration. It details the latest actions on wetlands hearing summaries, stand-alone legislation, and related language incorporated into transportation bills, as well as the Administration's Clean Water Initiative. A brief history of the Clean Water Act is also provided.

House
The Wetlands Restoration and Improvement Act, H.R. 1290, is a bill addressing one aspect of development on wetlands. H.R. 1290 was passed by the House Subcommittee on Water Resources and Environment on June 4th, 1998, but move out of committee. This bill, sponsored by Rep. Walter Jones (R-NC), would codify statues concerning mitigation banking. Mitigation banks are entities that create or restore wetlands. A developer can pay a mitigation bank for the withdrawal of wetlands "credits". These credits are used to "compensate" for the "unavoidable" damage done to wetlands protected under Section 404 of the Clean Water Act. The National Wetlands Coalition, a group with representatives from the petroleum and mining industries, utility companies, developers, and mitigation banks, supports this bill. Opposing this bill is the Natural Resources Defense Council and other environmental groups. The bill has been forwarded to the House Committee on Transportation and Infrastructure. A detailed summary on this bill and the issue of mitigation banking is available on the AGI website at www.agiweb.org/legis105/mitbank.html.

The Transportation Reauthorization Bill (TEA 21 or ISTEA), H.R. 2400, was signed into law by the President on June 9th, 1998. One section of this bill gives preference to the usage of mitigation banks to compensate for damage done to wetlands as a result of highway construction. If there is a mitigation bank within the wetlands' service area that holds enough available credits to offset the damage, then the mitigation bank is to be used under this law.

Another wetlands bill was introduced in the House by Rep. Wayne Gilchrest (R-MD), entitled the Wetlands and Watershed Management Act. According to the bill summary, H.R. 2762 "amends the Federal Water Pollution Control Act to include wetlands in the definition of "navigable waters;" Defines "wetlands" as areas that are inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted to life in saturated soil conditions; Requires any new manual to specifically consider the recommendations of the 1995 National Academy of Sciences report concerning the characteristics and boundaries of wetlands; Requires applicants for Federal permits (for potential discharges into, or alterations of, navigable waters) to provide a certification from the State where the discharge or alteration originates that the discharge or alteration will comply with applicable provisions of the Act and allow for protection, achievement, and maintenance of designated uses included in applicable water quality standards." A hearing on the bill was held on December 9, 1997 by the Subcommittee on Water Resources and Environment, where the bill remained.

Before the introduction of the bill, the House Transportation and Infrastructure Committee Water Resources and Environment Subcommittee held a series of investigative oversight hearings that began on April 23, 1997, which were intended to assist in the development of CWA reauthorization legislation. The Act was last amended in 1987 and is in need of further direction from Congress to address water quality deficiencies. Changes that have occurred in the past ten years, including a shift in principal pollution sources from traditional point sources to wet weather pollution, increased abilities of states and their evolving relationship to the Federal program, and the emergence of new scientific, policy, and management tools, need to be reflected in the Act. A House panel prepared for reauthorization of the Act by urging stakeholders to find "as much common ground as possible" by the time it gets around to rewriting. A meeting was held on May 20, 1997 to urge interested parties to compromise their policy differences. More meetings were planned for the session, but the efforts lost steam in 1998.

House Hearing on Meeting Clean Water and Drinking Water Infrastructure Needs-April 23, 1997
This hearing focused on EPA's upcoming CWA needs survey, implementation of Title IV and other provisions of the Safe Drinking Water Act Amendments of 1996, and various approaches to infrastructure funding such as State Revolving Funds and grants for hardship communities. Also, the hearing addressed the privatization of infrastructure assets and operations. Privatization includes not only asset sales but also leasing of assets and service arrangements.

House Hearing on Wetlands - Recent Regulatory and Judicial Developments-April 29, 1997
This hearing was an investigative/oversight hearing on recent regulatory and judicial developments regarding the U.S. Army Corps of Engineers' and EPA's wetlands programs, primarily under Section 404 of the CWA. The focus was on recently-reissued and revised Nationwide Permits (NWP) and the invalidation of the Tulloch/excavation rule. Section 404 is the primary Federal law for the regulation of activities occurring in wetlands, and provides that any person who discharges dredged material or fill material into a water of the U.S. must have a permit from the Secretary of the Army. The EPA has the authority to review and deny permits where the discharge will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas.

Recent events have increased the interests of some to amend Section 404. On December 13, 1996, the Corps of Engineers published in the Federal Register its reissuance and revision of its Nationwide Permits under Section 404 of the CWA. The revised permits became effective on February 11, 1997. The Corps has made a number of major modifications to the NWP program and is taking other actions which hold significant implications for wetlands protection and the regulated community.

The hearing also addressed the invalidation of the Tulloch Rule. On January 23, 1997, a federal district court struck down the so-called Tulloch or excavation rule issued three-and-a-half years ago by the Corps and the EPA that expanded the activities regulated under Section 404 of the Clean Water Act to include mechanized land clearing, ditching, channelization, and other excavation. Under the court's order, the rule is not to be applied nor enforced by the Corps or the EPA.

Senate
A draft bill, the "Wetlands Protection Act," was written and circulated in late July by Senators Kit Bond (R-MO) and John Breaux (D-LA), but was not introduced. The draft bill aims to improve the federal wetlands permitting program by amending Section 404 of the Clean Water Act. According to the summary, the measure provides new incentives for wetlands conservation, authorizes mitigation banking, covers the drainage and excavation of wetlands, focuses federal regulatory authority on the most valuable wetlands, streamlines the regulatory process, and bolsters the role of state and local governments in implementing the program. The discussion draft requires formal public notice and comment rulemaking procedures under the Administrative Procedures Act to change the federal manual and regulations for delineating wetlands. However, it does not mandate that water must be on the surface for 21 days for an area to be classified as "wet," as the last measure to come out of the Senate, S. 851, did.

The discussion draft also expands the activities regulated under Sec. 404, providing that activities will be regulated if they "would have the effect of significantly degrading any of the navigable waters." Thus, the draft includes partial restoration of the so-called "Tulloch rule," which would allow the U.S. Army Corps of Engineers to regulate "drainage, channelization, and excavation" of wetlands. The measure puts wetlands into three categories for regulatory purposes according to their relative ecological significance. Finally, the draft legislation provides incentives for wetlands protection, including a federal tax exemption for income from compatible uses of wetlands, such as fishing and hunting. It also provides a tax deduction for contributions of wetlands for conservation and establishes a "grant program for wetlands restoration and enhancement projects."

The draft language evolved at the same time regulatory confusion between the Army Corps of Engineers and the EPA was being taken up in federal courts and is in part intended to clarify that issue. The draft bill allows the EPA to veto permits issued by the Corps, a provision threatened by legislation introduced in the 104th Congress. However, the draft also contains a new provision requiring the President to report to Congress on consolidating Sec. 404 under one federal agency.

Reaction to the circulated draft has been mixed. The National Wetlands Coalition (NWC) has indicated strong support for the measure. The Coalition, which represents oil companies, local governments, and other groups involved in wetlands reform, was involved in the formulation of the draft from the early stages. In contrast, reactions from the Natural Resources Defense Council (NRDC) have been uniformly negative. According to the NRDC, the draft bill "is virtually indistinguishable from the legislative agenda of the NWC, an umbrella group of anti-wetland business interests that exists for the purpose of weakening the wetlands protections contained in Section 404 of the Clean Water Act." The NRDC maintains that the bill uses "bad science" as the basis for many definitions and regulations and creates a "new bureaucracy that will tie federal regulators up in knots."

Senate hearing on Wetlands Regulations-June 26, 1997
Scheduled by the Senate Committee on Environment and Public Works Subcommittee on Clean Air, Wetlands, Private Property, and Nuclear Safety, this hearing addressed administrative changes and judicial decisions relating to Section 404 of the Clean Water Act, the section containing wetlands regulations. Witnesses testifying included representatives from the EPA, the U.S. Department of the Army, and the National Association of Homebuilders.

Administration
In his State of the Union address on January 27, President Clinton announced a new Clean Water Initiative, "a far-reaching effort to clean our rivers, our lakes, our coastal waters for our children." The initiative grew from an October 1997 directive from Vice President Al Gore to federal agencies, led by the Secretary of Agriculture and EPA Administrator, to develop a comprehensive action plan to improve and strengthen water pollution control efforts across the country. He listed several specific goals of the program, including enhanced protection of public health, more effective control of polluted runoff, and increased community participation in local watershed management. More information on the Clean Water Initiatives is available on the EPA website. The President also is challenging Congress to join him in strengthening and reauthorizing the Clean Water Act.

To carry out the initiative, the President's budget proposes $568 million in new resources in Fiscal Year 1999 -- a 35 percent increase -- and a total increase of $2.3 billion over five years. In FY99, Congress fully funded EPA's portion of the Clean Water Action Plan, providing $645 million. Most of the money will go toward water quality grants and nonpoint sources grants. When announcing the plan at the Living Classroom Foundation in Baltimore, Maryland, Clinton stated, "Every child deserves to grow up with water that is pure to drink, lakes that are safe for swimming, rivers that are teeming with fish. We have to act now to combat these pollution challenges with new protections to give all our children the gift of clean, safe water in the 21st century." He provided four challenges:

According to the Daily Regulatory Reporter, John Meagher, head of the interagency steering committee, announced that several "action teams" will be created to implement the Administration's initiative. Meagher said that action teams will be created to address 111 specific actions that are outlined in the plan. The actions fall within the areas of research; standards, monitoring and evaluation; watershed framework; coastal areas; wetlands; federal land management; and polluted runoff. Three special committees will address communications, unified watershed assessment, and animal feedlots. Finally, an implementation team will oversee the progress of the teams in addressing the 111 actions. The teams and committees will be made up of representatives from EPA, the US Department of Agriculture, the National Oceanic and Atmospheric Administration, the Department of the Interior, and the US Army.

On May 13th, there was a House hearing held on the Clean Water Action Plan regulations of concentrated animal feeding operations (CAFO's). Such proposed standards on these operations follow the administration's goal, announced back in January, of curbing runoff pollution. The primary purpose of the joint hearing of the Agriculture Committee's Forestry, Resource Conservation and Research Subcommittee and the Livestock, Dairy, and Poultry Subcommittee was to discuss a section of the Clinton administration's Clean Water Action Plan. Part of this plan includes enforcing CAFO's. The Environmental Protection Agency (EPA) and U.S. Department of Agriculture (USDA) insist that federal involvement is necessary to regulate the increased amount of CAFO wastes and to develop practical and cost-effective systems that will dispose of animal wastes. State authorities such as John Baker of the Texas Natural Resource Conservation Committee and Peter Rooney of the California Environmental Protection Agency contend that sufficient authority already exists at the state level to control CAFOs without needing federal intervention. In this sense, state advocates have had the latest say.

On February 6, 1997, President Clinton presented the Administration's budget request for FY 1998. In it, the President requested $1.353 billion for clean water infrastructure (State Revolving Fund capitalization grants and earmarked project grants). In the area of general water quality spending, the budget requested $275 million, level funding compared with FY 1997 enacted levels. The Administration's Clean Water Action Plan announced during President Clinton's January 27th, 1998 State of the Union address, includes $568 million in resources for FY 1999.

Clean Water Act background
The Federal Water Pollution Control Act of 1972 is commonly known as the Clean Water Act (PL 92-500). Its purpose is to restore and maintain the chemical, physical, and biological integrity of the nation's waters. The Act consists of two main areas of emphasis: (1) regulatory provisions that impose progressively more stringent controls on the discharge of pollutants, and permit the discharge of dredged or fill material into waterways and wetlands, and (2) funding and planning provisions that authorize Federal financial assistance for municipal wastewater treatment plants, state administration grants, nonpoint source programs, the Great Lakes and Chesapeake Bay Programs, the National Estuaries Program, and other purposes.

The most recent reauthorization of the Act became law after Congress overrode President Reagan's veto by votes of 401-26 in the House and 86-14 in the Senate. Since the bill became law on February 4, 1987 (PL 100-4), authorization for many of its programs has expired, particularly the capacity for states and localities to receive federal funding for clean water projects which lapsed in 1991. The authorization for grants for State Revolving Funds (SRFs) expired in 1994. Funding has continued to be provided through annual appropriations.

Under the SRF program, states must deposit into the SRFs at least 20 percent of the amount of federal grants in matching funds. The SRFs are available to make low interest loans, buy or refinance local debt, subsidize or insure local bonds, make loan guarantees, act as security or guarantee of state debt, earn interest, and pay administrative expenses. All projects must be those which will assure maintenance of progress towards the goals of the Act and meet the standards and enforceable requirements of the Act. After states achieve those requirements, SRF monies may be used to implement other water pollution control programs such as nonpoint source pollution management and national estuary programs. EPA has approved 57 states and territories for funding under the SRF program.

Actions in the 104th Congress
Both the 102nd and 103rd Congresses tried and failed to reauthorize the Clean Water Act, but the 104th Congress made reauthorization a high priority. The house acted quickly, passing a major overhaul on May 16, 1995, but controversies arose over whether and how the Act should be made more flexible and less burdensome on regulated entities. H.R. 961 , the Clean Water Amendments of 1995, was developed and introduced by a bipartisan coalition of Committee members. The legislation would have reauthorized and amended the CWA. H.R. 961's ten titles included, among other things, reauthorization of the Clean Water Act programs (such as the SRF), establishment of new programs and authorities to provide financial and technical assistance, regulatory and planning provisions, and amendments to coastal nonpoint source pollution and ocean dumping programs. H.R. 961 reflected efforts to make the CWA more flexible and less prescriptive.

H.R. 961 was introduced by House Transportation and Infrastructure Committee Chairman Bud Shuster (R-PA) on February 15, 1995. Although H.R. 961 addresses many aspects of the Clean Water Act, the wetlands provisions within the bill were the most controversial. Drawing on a proposal by Rep. Jimmy Hayes (R-LA), the bill was intended to completely revamp the federal wetlands protection program, establishing a classification system under which wetlands are categorized into three types. The least valuable wetlands would no longer be federally protected, the next type would receive limited protection, and "Type A" wetlands would be strictly regulated. In addition, the bill would utilize an inundation test which defines wetlands by requiring land to be underwater for 21 consecutive days.

Although many of the regulatory proposals of H.R. 961 were controversial, the funding provisions enjoyed much broader, although not universal support. Funding provisions of the House-passed bill included: $11.45 billion over 5 years for a reauthorized SRF; expanded eligible uses of the SRF; provisions to encourage privatization; $1 billion over 5 years for a reauthorized section 319 nonpoint source program; $87.5 million over 5 years for the Great Lakes Program; $90 million over 5 years for the Chesapeake Bay Program; $95 million over 5 years for the National Estuaries Program; $750 million over 5 years for section 106 administration grants; $300 million over 5 years for a coastal communities grant program; and $250 million over 5 years for a rural community hardship grants program.

On the Senate side, S. 851 was introduced by Senators Lauch Faircloth (R-NC) and J. Bennett Johnston (D-LA). The bill would have repealed and replaced Section 404. The Administration strongly opposed the measure, saying it would have removed most of the nation's wetlands from federal protection. The bill was referred to the Senate Environment and Public Works Committee on May 25, 1995, and remained there for the duration of the 104th. Committee Chairman John Chafee (R-RI) stated that the measure was too sweeping and declined to move forward with the legislation. Although the Senate Environment and Public Works Committee did not take up a comprehensive reauthorization bill, an oversight hearing was held on issues affecting municipalities in December 1995. Senate subcommittee hearings on wetlands legislation were also held.

Additional Sources of Information
To obtain more background information on the Clean Water Act, visit the Committee for the National Institute for the Environment's National Library for the Environment site, which has on-line reports from the Congressional Research Service on this and other environmental issues. CRS reports are also available by calling your local representative or senator. CRS publications of interest include:
CRS Report 95-427; Clean Water: Summary of H.R. 961, As Passed
CRS Issue Brief 89102; Water Quality: Implementing the Clean Water Act
CRS Issue Brief 97001; Clean Water Reauthorization in the 105th Congress

Sources: Energy and Environment Weekly; Natural Resources Defense Council, National Wetlands Coalition


Please send any comments or requests for information to the AGI Government Affairs Program at govt@agiweb.org.

Contributed by Kasey Shewey White, AGI Government Affairs; and Shannon Clark, Jenna Minicucci, and Joy Roth, AGI Government Affairs Interns

Last updated December 10, 1998


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