Clean Water Issues in the 104th Congress

Claudia Copeland
Specialist in Environmental Policy
Environment and Natural Resources Policy Division

Updated December 1, 1994

94-825 ENR

SUMMARY

For the 104th Congress, reauthorization of the Clean Water Act would seem likely to be a priority, since the Act was last amended in 1987 and authorizations expired on September 30, 1990. But legislative prospects in the 104th Congress are uncertain. Clean water also was a priority for the 103rd Congress, but, in 1994, Congress ran out of time and did not act on comprehensive amendments. Many of the issues proved to be too complex and controversial to be resolved easily, while Congress also was considering a large agenda of environmental and other bills. Controversies arose in connection with issues specific to the Clean Water Act and a trio of regulatory relief issues that became barriers to a number of bills in the 103rd Congress. How the changes in Congress resulting from the 1994 election will affect consideration of the Act in the 104th Congress is not yet known.

RECENT ACTIVITY

The Clean Water Act (CWA) is the principal law governing pollution in the Nation's streams, lakes, estuaries, and coastal waters. Originally enacted in 1948 and significantly revised in 1972 (P.L. 92-500), the Act was last amended in 1987 (P.L. 100-4). These amendments are now being implemented by States, cities, the Federal Government, and regulated industries. Some believe that additional changes are not yet needed. Others, including some environmental groups, believe that further fine-tuning to strengthen the Act is needed. States and cities have traditionally favored reauthorization in order to obtain more funding to carry out the law, but recently many have opposed CWA measures that might impose new unfunded mandates.

The Act consists of two major parts: regulatory provisions that impose progressively more stringent requirements on industries and cities to abate pollution and meet the statutory goal of zero discharge of pollutants; and provisions that authorize Federal financial assistance for municipal wastewater treatment construction. Both major parts are supported by research activities, plus permit and penalty provisions for enforcement. Congressional efforts to amend the Act have dealt with all of these aspects, with the objective of strengthening water quality programs.

Senate and House committees held hearings and considered water quality issues during the 102d Congress but did not act on a reauthorization bill. This activity resumed and accelerated during the 103rd Congress, and more than 100 bills to amend the Act were introduced.

In the Senate a comprehensive reauthorization bill, S.2093, was reported by the Senate Environment and Public Works Committee in May 1994 (S. Rept. 103-257). S. 2093 consisted of 10 separate titles to revise the Clean Water Act. It included provisions to reauthorize assistance for wastewater treatment through FY 2000, further regulate industrial toxic pollutant discharges, expand and increase funding for the Act's nonpoint source management program, establish new procedures to comprehensively manage pollution sources in watershed areas, and clarify regulation of combined stormwater and sanitary sewers and separate stormwater discharges. Senate committee leaders did not bring the bill to the Senate floor when it became clear that legislation in the House was stalled.

In the House, similar legislation was introduced in March 1994 (H.R. 3948), following oversight hearings by a Public Works and Transportation subcommittee in 1993. While less ambitious in scope than S. 2093, it likewise included provisions on wastewater infrastructure funding, nonpoint pollution and watershed management, standard setting, enforcement, regulatory requirements, and regulation of activities in wetlands areas. Due to controversies over a number of provisions in H.R. 3948, in September, leaders of the Public Works Committee abandoned efforts to seek a broad reauthorization of the CWA. (For further information, see Clean Water Legislation in the 103rd Congress: A Legislative Rollercoaster, Report 94-750 ENR, Sept. 15, 1994.)

BROAD ISSUES AFFECTING CLEAN WATER REAUTHORIZATION

Legislative prospects for the Clean Water Act in the 104th Congress are uncertain, in part because the issues and controversies which were unresolved in the 103rd Congress are likely to recur. Some are specific to the clean water statute. Three others which emerged prominently in 1993 became barriers to virtually every environmental bill during the 103rd Congress and are expected to similarly challenge Congress' environmental agenda in 1995. The three are: unfunded mandates (how the Federal Government imposes requirements on States and cities without providing sufficient money to pay for those actions or flexibility in achieving them), private property "takings" (Federal regulatory actions considered to infringe on property rights and diminish the value of private property holdings), and risk assessment (defined as whether EPA should be required to conduct risk and cost/beneflt analysis in developing regulations or in setting regulatory priorities).

None of these issues is limited to the Clean Water Act. Likewise, none is uniquely environmental, and they appeared during debate on a variety of proposals during the 103rd Congress. Unfunded mandates occur in relation to other Federal requirements as diverse as Medicaid, occupational safety and health, and wages and employment. Private property takings arises in connection with many regulatory activities having the potential to restrict use of an individual's property (from zoning to protection of threatened or endangered species). Support for greater consideration of the costs and benefits of regulation is similarly not exclusive to environmental standards and rules; in fact, a risk assessment requirement was included in legislation to reorganize the U.S. Department of Agriculture (P.L. 103-354).

These three issues, referred to as the regulatory relief agenda, affected consideration of the Clean Water Act during the 103rd Congress. The legislation became a flash point for State and local officials opposing Government mandates that lack sufficient Federal financing and flexibility. The issue of private property takings found a specific focus in the CWA debate because of growing concern about wetlands policies and pressure to reform the wetlands permit program in section 404 of the Act. Many expected that a risk amendment would be offered in connection with the CWA and could complicate debate on the legislation, as it did on bills to amend the Safe Drinking Water Act and to elevate EPA to a Cabinet-level agency.

Overall legislative prospects in the 104th Congress are uncertain because of changes resulting from the 1994 election. With Republicans now holding majority status in the Senate and House, new Committee chairmen and leaders are expected to pursue a different agenda than in the 103rd Congress, but details will not be fully known for some time. However, the regulatory relief agenda of unfunded mandates, private property takings, and risk, which affected a large number of legislative proposals, is expected to be addressed early. The House of Representatives, in particular, is expected to take legislative action on these issues. Along with other reforms, they are included in the Republican "Contract with America," which the incoming leadership has pledged to bring to the House floor during the first 100 days of the 104th Congress. It is also possible that these issues could emerge in specific connection with the CWA or other environmental bills, as well.

CLEAN WATER-SPECIFIC ISSUES

Despite the legislative uncertainties, reauthorization of the CWA may, nonetheless, receive congressional attention, since authorizations for most current programs expired Sept. 30, 1990. If the 104th Congress does take up the Act, a number of specific CWA issues which were debated in the 103rd Congress are likely to be the core of clean water legislative activity, although the dynamics of debating even core issues may well differ, reflecting greater emphasis on a more conservative, less ambitious policy agenda. One likely focus is programs concerning municipal wastewater treatment. The 103rd Congress considered but did not resolve whether to continue Federal funding beyond 1994 and, if so, at what levels, State-by-State funding allotments, and categories of wastewater treatment projects eligible for Federal aid. Other prominent clean water issues include whether additional fine-tuning of taxies and nonpoint provisions of the law is needed; impacts of water quality programs on small communities; and regulation or protection of wetlands.

Wastewater Funding

The 1987 amendments authorized $18 billion in wastewater treatment assistance through FY 1994. The amendments extended the program of grants for wastewater treatment projects through FY 1990 and additionally authorized for FY 1989-94 a new program of State grants to capitalize State Water Pollution Control Revolving Funds, or State loan programs (SRFs).

Congressional oversight of the States' SRF activities occurred during the 102nd and the 103rd Congresses. Particular issues included the status of State assumption of the new financing programs and progress towards reducing the existing backlog of wastewater treatment facilities needed to achieve the Act's water quality objectives. The most recent survey by States and the Environmental Protection Agency estimates that total national wastewater treatment funding needs are $137 billion to be spent over the next two decades. Congress has appropriated $2.3 billion as an annual average in recent years. Current authorizations were due to expire at the end of fiscal year 1994 (and did expire, because legislation was not enacted). However, because remaining funding needs are still so large, policy makers have recently focused on extending SRF assistance to address those needs and modifying the SRF program to aid priority projects.

The principal CWA bills in the 103rd Congress, S. 2093 and H.R. 3948, would have extended funding and program authorities through FY 2000 and expanded eligibility to address a wider range of projects needed to meet water quality goals. Special assistance for small towns and hardship communities was to be provided by allowing extended SRF loan repayments. Other 103rd Congress bills proposed additional measures to aid economically distressed rural areas, such as a separate grant program. Two proposals would have established a new Federal effluent discharge fee and excise taxes as a revenue source for State wastewater spending.

Nonpoint Pollution Management

The 1987 amendments required States to develop programs to manage nonpoint source pollution (runoff from farm and urban areas and construction sites, as well as forestry and mining activities) and authorized $400 million for the four-year period FY 1987-1990 in State grants to control such pollution. Since FY 1990, when the implementation grants were first funded, $368 million in nonpoint grant funds have been appropriated (one-half of the total was appropriated in the last two years, FY 1994-1995). Legislative review by the 103rd Congress focused in particular on the adequacy of State activities to implement nonpoint pollution control programs and the possible need for additional Federal guidance on programs to manage runoff pollution, which is estimated to represent more than 50 percent of the Nation's remaining water pollution problems.

Both S. 2093 and H.R. 3948 included provisions to modify the nonpoint source management program, the Section 319 program. S.2093 would have required States to revise programs to manage nonpoint source pollution. It also authorized significantly increased funding for nonpoint programs (a total of $3 billion). H.R. 3948, while similar, would have required State nonpoint programs, at a minimum, to provide for best management practices that conform with EPA guidance, while requiring States to make these plans legally enforceable. This bill also would have authorized but not required States to develop watershed protection plans, so that within a designated watershed all pollution control requirements and watershed planning would be coordinated on the same five-year interval. S. 2093 included watershed provisions, as well. In connection with the nonpoint provisions in these bills, controversies focused on the extent to which the legislation should mandate actions by landowners (particularly farmers) to control runoff pollution, as opposed to giving them incentives to do so voluntarily. Possible legislation in the 104th Congress is likely to favor voluntary measures over mandates.

Wetlands

How best to protect the Nation's remaining wetlands and regulate activities taking place in wetlands has become one of the most contentious environmental policy issues, especially in the context of the CWA which contains a key wetlands regulatory tool, the permit program in Section 404. Efforts to reform and extensively modify Section 404, which environmentalists and committee leaders opposed in the 103rd Congress, are expected to be viewed more favorably in the 104th Congress and could receive early attention. A number of legislative proposals in the 103rd Congress addressed topics such as activities and areas subject to regulation, changes to the permit process, differential classification of wetlands, and enhanced role for States. S. 2093 and H.R.3948 included wetlands reform provisions intended to streamline permitting through deadlines and a new administrative appeals process, provide Federal guidance on wetlands mitigation, and clarify interagency roles (especially concerning agricultural lands). Neither bill included more controversial provisions from other bills (such as providing financial compensation to landowners if a wetlands permit is denied). Some of these other bills may be reintroduced in the 104th Congress.

Other Issues

Other provisions of the 1987 amendments dealt with control of toxic pollutant discharges from industries and cities, estuarine management programs, and clarification of areas of current law such as wastewater sludge disposal, penalties and enforcement, and permit issuance. Implementation of these and other aspects of the amendments continues to be of interest. Other issues include proposals to address pollution and resource management problems of coastal regions and new or modified programs to target special areas such as Chesapeake Bay, the Great Lakes, or major river systems.

Refinement and modification of many of these issues was reflected in legislation in the 103rd Congress and may be addressed in the 104th Congress, as well. Legislation to strengthen enforcement provisions of the law was proposed, as were proposals to further control toxic pollutant discharges from industrial facilities. Several bills, including S. 2093 and H.R. 3948, contained provisions concerning two key sources of urban water pollution, overflows from combined stormwater and sanitary sewers (CSOs) and municipal separate stormwater discharges. The legislative proposals were intended to modify current law and provide regulatory relief in two program areas cited by municipalities in connection with unfunded Federal mandates. Attention to these issues is likely to be a priority in the 104th Congress.

Congressional interest has continued to focus on budgetary questions (adequacy of funding for existing and new activities), as well. Water quality programs have received continuing support, despite the fact that authorizations in the CWA have expired.(l) Congress' final action on EPA's FY 1995 budget (P.L. 103-327) provided approximately the same funding level for water quality programs (e.g., general program grants and administrative funds) as in FY 1994 ($395 million). For sewage treatment assistance, the President requested $1.85 billion, consisting of $1.6 billion for clean water SRFs and $250 million for several special projects. The requested amount for wastewater treatment was slightly less than the $1.88 billion enacted for FY 1994. In P.L. 103-327 Congress enacted FY 1995 appropriations totaling $1.2 billion for clean water SRFs, $782 million earmarked for 45 specified projects in 22 States, and $52 million in grants for other earmarked projects.

For more information, see CRS Issue Brief 93013, Clean Water Act Reauthorization .

CONCLUSION

Legislative prospects for the Clean Water Act will become clearer when the 104th Congress convenes. Most observers believe it unlikely that the comprehensive proposals that were pending at the end of 1994, viewed by many as reflecting an environmentalist agenda, will be the basis for new legislation. Some expect Congress to pursue a smaller CWA agenda limited to funding and relatively noncontroversial statutory modifications (dealing with stormwater permits, for example), while others believe that major amendments focusing on a more flexible, less prescriptive CWA could be enacted. It also is not yet clear whether the 104th Congress will consider regulatory relief issues (unfunded mandates/takings/risk) in legislation separate from the CWA (in connection with the Contract with America legislation), as part of CWA legislation, or both. Finally, the environmental agenda might include fewer bills than in the 103rd Congress. If so, it is possible that reauthorization of the Safe Drinking Water Act and Superfund will receive the priority attention, with action on the Clean Water Act being considerably delayed.

Endnotes

1. Rules of the House of Representatives require enactment of an authorization before funds can be appropriated for a Federal activity, although that requirement can be waived. Thus, even though the authorization for Clean Water Act appropriations did expire, programs under the Act do not lapse, and Congress has continued to appropriate funds to carry out the Act.