The Clean Water Act

Drinking water standards are not the only regulations we need to comply with in the U.S. Today's Clean Water Act has its origins from the late 1940s. The original 1948 statute (Chapter 758; PL 845), the Water Pollution Control Act, authorized the Surgeon General of the Public Health Service, in cooperation with other federal, state, and local entities, to prepare comprehensive programs for eliminating or reducing the pollution of interstate waters and tributaries and improving the sanitary condition of surface and underground waters. Since 1948, the original statute has been amended extensively to authorize additional water quality programs, standards and procedures to govern allowable discharges, and funding for construction grants or general programs. Amendments in other years provided for continued authority to conduct program activities or administrative changes to related activities. This legislation was originally enacted as the Federal Water Pollution Control Act of 1972, and was amended in 1977 and renamed the Clean Water Act. It was

reauthorized in 1991.

The Clean Water Act strives to restore and maintain the chemical, physical, and biological integrity of the nation's water. The act sets up a system of water quality standards, discharge limitations, and permits. If a project may result in the placement of material into waters, a Corps of Engineers' Dredge and Fill Permit (Section 404) may be required. The permit also pertains to activities in wetlands and riparian areas. Certain Federal projects may be exempt from the requirements of Section 404, if the conditions set forth in section 404(r) are met. Before either a National Pollutant Discharge Elimination System (NPDES) (Section 402) or Section 404 permit can be issued, the applicant must obtain a Section 401 certification. This declaration states that any discharge complies with all applicable effluent limitations and water quality standards.

If the water quality of a water body is potentially affected by a proposed action (e.g., construction of a wastewater treatment plant), a NPDES permit may be required. The Environmental Protection Agency is responsible for this program; however, in most cases, has turned this responsibility over to the states as long as the individual state program is acceptable. Section 319, Nonpoint Source Management Programs, was added to the Clean Water Act by PL 100-4 to have the states establish nonpoint source management plans designed. Section 319 (k) requires each Federal department and agency to allow states to review individual development projects and assistance applications and accommodate, in accordance with Executive Order 12372, the concerns of the state regarding the consistency of these applications or projects with the state nonpoint source pollution management program.

Congress enacted the most recent major amendments to the Clean Water Act in 1987 (P.L. 1004). Since then, the EPA, states, and others have been working to implement the many program changes and additions mandated in the law. At issue today, as it has been for some time, is what progress EPA and the states are making. In general, many states and environmental groups fault EPA for delays in issuing guidance and assistance needed to carry out the provisions of the law. EPA and others are critical of states, in turn, for not reaching beyond conventional knowledge and institutional approaches to address their water quality problems. Environmental groups have been criticized for insufficient recognition of EPA's and states' need for flexibility to implement the Act. Finally, Congress has been criticized for not providing adequate funding and resources to meet EPA and state needs.

Three issues have predominated recently in connection with implementation of the law. The first involves implementation of requirements under current law for states to develop total maximum daily loads (TMDLs) to restore pollution-impaired waters. The second issue involves the nonpoint pollution management provisions added in 1987. States are developing management programs describing methods that will be used to reduce nonpoint pollution, which may be responsible for as much as 50% of the nation's remaining water quality problems. Most observers agree that implementation of nonpoint source control measures is significantly hindered by lack of resources, including federal assistance. EPA adopted program guidance intended to give states more flexibility and to speed up progress in nonpoint source control. The third issue is funding to construct municipal wastewater treatment plants under the State Revolving Fund provisions of the 1987 amendments. Budgetary constraints on federal aid for wastewater treatment and large remaining funding needs are a continuing concern. Since 1993, EPA has begun a number of agency-wide and program-specific reforms focusing on flexibility and "common sense" approaches to regulation. Many of these will affect implementation of water quality programs. In February 1998, the Clinton Administration released a multi-agency Clean Water Action Plan intended to build on the environmental successes of the Act and address the nation's remaining water quality challenges. But a new administration in the White House may alter this. Reauthorization of the Act was on the agenda of the 104th Congress, when the House passed H.R. 961, but no Clean Water Act amendments were enacted. Comprehensive legislation was not introduced in the 105th Congress, and no major House or Senate committee activity occurred. Similarly, no major activity occurred in the 106" Congress, although there was action on individual program areas within the Act. Recent attention has focused on new EPA rules for the Act's TMDL program. Congressional oversight of the TMDL program is llkely in the 107" Congress (see CRS Issue Brief IB10069, Clean Water Act Issues in the 107th Congress.)

For our discussion, it is important to recognize that the Federal Water Pollution Control Act, or Clean Water Act, is the principal law governing pollution in the nation's streams, lakes, and estuaries. Originally enacted in 1948, it was totally revised by amendments in 1972 (P.L. 92-500) that gave the Act its current form and spelled out ambitious programs for water quality improvements that are now being put in place by industries and cities. Congress made certain fine-tuning amendments in 1977 (P.L. 95-217) and 1981 (P.L. 97-117). The Act consists of two major parts: regulatory provisions that impose progressively more stringent requirements on industries and cities in order to meet the statutory goal of zero discharge of pollutants, and provisions that authorize federal fmancial assistance for municipal wastewater treatment construction. Industries were to meet pollution control limits first by use of Best Practicable Technology (BPTs) and later by improved Best Available Technology (BAT). Cities were to achieve secondary treatment of municipal wastewater (roughly 85% removal of conventional wastes), or better if needed to meet water quality standards. Both major parts are supported by research activities authorized in the law, plus permit and penalty provisions for enforcement. These programs are administered by the EPA, while state and local governments have the principal day-today responsibility for implementing the law. The most recent amendments, enacted in February 1987, are the Water Quality Act of 1987 (P.L. 100-4). These amendments culminated 6 years of congressional efforts to extend and revise the Act and are the most comprehensive amendments to it since 1972. They recognize that, despite much progress to date, significant water quality problems persist. Among its many provisions, the 1987 legislation:

• established a comprehensive program for controlling toxic pollutant discharges, beyond that already provided in the Act, to respond to so called "toxic hot spots; ''
• added a program requiring states to develop and implement programs to control nonpoint sources of pollution, or rainfall run off from farm and urban areas, plus construction, forestry, and mining sites; 
• authorized a total of $18 billion in aid for wastewater treatment assistance under a combination of the Act's traditional construction grants program through FY1990 and, as a transition to full state funding responsibility, a new program of grants to capitalize State Revolving Funds, from FY 1989- 1994; 
• authorized or modified a number of programs to address water pollution problems in diverse geographic areas such as coastal estuaries, the Great Lakes, and the Chesapeake Bay; and authorized or modified a number of programs to address water pollution
• revised many of the Act's regulatory, permit, and enforcement programs.

Section 303(d) of the Clean Water Act requires states to identify pollutantimpaired water segments and develop "total maximum daily loads" (TMDLs) that set the maximum amount of pollution that a water body can receive without violating water quality standards. If a state fails to do so, EPA is required to develop a priority list for the state and make its own TMDL determination. Most states have lacked the resources to do TMDL analyses, which involve complex assessment of point and nonpoint sources and mathematical modeling, and EPA has both been reluctant to override states and has also lacked resources to do the analyses. Thus, there has been little implementation of the provision that Congress enacted in 1972. In recent years, national and local environmental groups have filed more than 40 lawsuits in 38 states against EPA and states for failure to fulfill requirements of the Act. Of the suits tried or settled to date, 19 have resulted in court orders requiring expeditious development of TMDLs. EPA and state officials have been concerned about diverting resources from other high-priority water quality activities in order to meet the courts' orders. In October 1996, EPA created an advisory committee to solicit advice on the TMDL problem. Recommendations from the advisory committee, received in June 1998, formed the basis of program changes that EPA proposed in August 1999. The 1999 proposal set forth criteria for states, territories, and authorized Indian tribes to identify impaired waters and establish all TMDLs within 15 years. It would require more comprehensive assessments of waterways, detailed cleanup plans, and timetables for implementation.

The 1987 amendments added a new Section 319 to the Act, under which states were required to develop and implement programs to control nonpoint sources of pollution, or rainfall runoff from farm and urban areas, as well as construction, forestry, and mining sites. Previously, the Act had largely focused on controlling point sources, while helping states and localities to plan for management of diverse nonpoint sources. Yet, as industrial and municipal sources have abated pollution, uncontrolled nonpoint sources have become a relatively larger portion of remaining water quality problems -- perhaps contributing as much as 50% of the nation's water pollution.