Clean Water Act Section 401: Background and Issues

Claudia Copeland
Specialist in Resources and Environmental Policy

Section 401 of the Clean Water Act requires that an applicant for a federal license or permit provide a certification that any discharges from the facility will comply with the act, including state-established water quality standard requirements. Disputes have arisen over the states’ exercise of this authority in protecting water quality. For the most part, the debate over the Section 401 certification issue has been between states and hydropower interests. A 1994 Supreme Court decision, which upheld the states’ authority in this area, dismayed development and hydropower interest groups. The Court revisited these issues in a 2006 ruling that unanimously upheld the authority of states to condition hydropower licenses by exercising Section 401. The dispute between states and industry groups about Section 401 authority has been a legislative issue on several occasions, but Congress has not modified the provision’s scope.

In addition, there has been interest in clarifying whether Section 401 certification applies to nonpoint source discharges, such as rainfall runoff, as well as point source discharges from pipes or ditches. This question was raised in lawsuits in Oregon, where a federal court ruled in 1998 and again in 2008 that Section 401 does not apply to nonpoint source discharges. Still, some interests continue to favor a broad reading of 401 that would apply to both nonpoint and point sources of pollutant discharges.


Date of Report: December 12, 2012
Number of Pages: 9
Order Number: 97-488
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H.R. 2273 and S. 3512: Analysis of Proposals to Create a Coal Combustion Residuals Permit Program Under RCRA

Linda Luther
Analyst in Environmental Policy

On October 14, 2011, the House passed the Coal Residuals Reuse and Management Act (H.R. 2273). The bill would amend Subtitle D of the Solid Waste Disposal Act, more commonly referred to as the Resource Conservation and Recovery Act (RCRA), by adding Section 4011, Management and Disposal of Coal Combustion Residuals. On August 2, 2012, the Coal Ash Recycling and Oversight Act of 2012 was introduced in the Senate (S. 3512). Both amendments would create a state-implemented permit program for the management and disposal of coal combustion residuals (CCRs).

Permit programs are used as a tool to ensure that certain federal regulations are consistently enforced. When created under RCRA, those federal regulations are intended to achieve a consistent standard of protection from threats associated with waste disposal facilities. Pursuant to directive in RCRA, the Environmental Protection Agency (EPA) has identified protective measures necessary to address such risks, promulgated regulations incorporating those criteria, and approved state-implemented programs to enforce the criteria. The resulting regulatory program entails two different, but related elements—federal standards intended to provide a required level of protection and the permit program that will implement the standards.

Section 4011, in both bills, would create both the federal standards and the program to implement them, under the umbrella of creating CCR permit program. Established entirely in statute, the program would be unique among environmental laws. The permit program would draw from the regulatory program applicable to municipal solid waste (MSW) landfills. In contrast to the statutory directives and resulting federal requirements associated with that program, the proposed amendments to RCRA include no provisions that would ensure state adoption and implementation of a CCR permit program that would result in the adoption and implementation of minimum federal standards necessary to protect human health and the environment from risks associated with CCR disposal.

Based on the structure of each bill, it would appear that the proposed amendments are intended to create a program similar to the one applicable to MSW landfills. However, it cannot be determined whether states would implement their programs as such. There are complex variables that make that determination difficult. The primary reasons stem from the limited authority that Congress has to require and, given the limits to its authority in the proposed amendments, EPA would have to compel states to implement the program. Also, provisions in each bill lack detail comparable to regulatory standards with regard to key issues such as how, when, or to which facilities the permit program would apply. As a result, program requirements would be subject to the interpretation of each state that chooses to implement it.

Due to the questions regarding how states may implement it, a CCR permit program would be similar to the program to regulate MSW landfill criteria, only in states that choose to implement it as such. That level of uncertainty defeats the purpose of a permit program and would not be consistent with other permit programs created under RCRA. This report is intended to provide Members of Congress and their staff with information to understand why that would be the case.


Date of Report: December 5, 2012
Number of Pages: 44
Order Number: R42847
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Legislative Options for Financing Water Infrastructure

Claudia Copeland
Specialist in Resources and Environmental Policy

William J. Mallett
Specialist in Transportation Policy

Steven Maguire
Specialist in Public Finance

This report addresses several options being considered by Congress to address the financing needs of local communities for wastewater and drinking water infrastructure projects and to decrease or close the gap between available funds and projected needs. Some of the options exist and are well established, but they are under discussion for expansion or modification. Other innovative policy options have recently been proposed in connection with water infrastructure, especially to supplement or complement existing financing tools. Some are intended to provide robust, long-term revenue to support existing financing programs and mechanisms. Some are intended to encourage private participation in furnishing drinking water and wastewater services.

Six options that are reflected in recent legislative proposals, including budgetary implications, are discussed.

• Increase funding for the State Revolving Fund (SRF) programs in the Clean Water Act (H.R. 3145 in the 112th Congress) and the Safe Drinking Water Act (H.R. 5320 in the 111th Congress), 
• Create a federal water infrastructure trust fund (H.R. 6249 and H.R. 3145 in the 112th Congress), 
• Create a “Water Infrastructure Finance and Innovation Act” Program, or WIFIA (S. 3626 and H.R. 3145 in the 112th Congress), 
• Create a National Infrastructure Bank (H.R. 402 and S. 652 in the 112th Congress), 
• Lift private activity bond restrictions on water infrastructure projects (S. 939 and H.R. 1802 in the 112th Congress), and 
• Reinstate authority for the issuance of Build America Bonds (included in the Administration’s FY2013 budget request). 

A number of these issues and options have been examined in hearings by the House Transportation and Infrastructure Subcommittee on Water Resources and Environment (on February 28 and March 21, 2012) and by the Senate Environment and Public Works Subcommittee on Water and Wildlife (December 13, 2011, and February 28, 2012).

Consensus exists among many stakeholders—state and local governments, equipment manufacturers and construction companies, and environmental advocates—on the need for more investment in water infrastructure. There is no consensus supporting a preferred option or policy, and many advocate a combination that will expand the financing “toolbox” for projects. Some of the options discussed in this report may be helpful, but there is no single method that will address needs fully or close the financing gap completely. For example, some may be helpful to projects in large urban or multi-jurisdictional areas, while others may be more beneficial in smaller communities. It is unlikely that any of the recently proposed options could be up and running quickly, meaning that, at least for the near term, communities will continue to rely on the existing SRF programs, tax-exempt governmental bonds, and tax-exempt private activity bonds to finance their water infrastructure needs.


Date of Report: December 5, 2012
Number of Pages: 23
Order Number: R42467
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Bee Health: The Role of Pesticides

Linda-Jo Schierow
Specialist in Environmental Policy

Renée Johnson
Specialist in Agricultural Policy

M. Lynne Corn
Specialist in Natural Resources Policy

Bees, both commercially managed honey bees and wild bees, play an important role in global food production. In the United States, the value of honey bees only as commercial pollinators in U.S. food production is estimated at about $15 billion to $20 billion annually. The estimated value of other types of insect pollinators, including wild bees, to U.S. food production is not available. Given their importance to food production, many have expressed concern about whether a “pollinator crisis” has been occurring in recent decades. In the United States, commercial migratory beekeepers along the East Coast of the United States began reporting sharp declines in 2006 in their honey bee colonies. The U.S. Department of Agriculture (USDA) reports that overwinter colony losses from 2006 to 2011 averaged more than 32% annually. This issue remained legislatively active in the 110th Congress and resulted in increased funding for pollinator research, among other types of farm program support, as part of the 2008 farm bill (P.L. 110-246). Congressional interest in the health of honey bees and other pollinators has continued in the 112th Congress (e.g., H.R. 2381, H.R. 6083, and S. 3240) and may extend into the 113th Congress.

This report:

• Describes changes in managed and wild bee populations, given readily available data and information. It focuses on managed and wild bees only, and excludes other types of pollinators, including other insects, birds, and bats. Data on managed honey bees are limited, and do not provide a comprehensive view of changes in bee populations. Data for wild bee populations are even more limited. 
• Provides a listing of the range of possible factors thought to be negatively affecting managed and wild bee populations. In addition to pesticides, other identified factors include bee pests and diseases, diet and nutrition, genetics, habitat loss and other environmental stressors, and beekeeping management issues, as well as the possibility that bees are being negatively affected by cumulative, multiple exposures and/or the interactive effects of each of these factors. 
• Briefly summarizes readily available scientific research and analysis regarding the potential role of pesticides among the factors affecting the health and wellbeing of bees, as well as the statutory authority and related regulatory activities of the U.S. Environmental Protection Agency (EPA) related to pesticide use. 

A 2007 report by the National Research Council of the National Academy of Sciences, Status of Pollinators in North America, provides a more detailed scientific context for this report and may be consulted for more in depth understanding about bee health. That study concluded that many factors contribute to pollinator declines in North America, and CRS accedes to that conclusion. Accordingly, the focus of this report on bee exposure to pesticides is not intended to imply that pesticides are any more important in influencing the health and wellness of bees than any of the other identified factors influencing bee health. Pesticides are only one of the many influences on bee health.

Because neonicotinoid pesticides have been the focus of concerns in Europe and in the United States, this report briefly describes recent scientific research related to possible effects of exposure to these pesticides on bees. The report concludes with a summary of recent regulatory activity regarding neonicotinoids at EPA, the federal agency charged with assessing risks and regulating U.S. sale and use of pesticides.


Date of Report: December 11, 2012
Number of Pages: 26
Order Number: R42855
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Water Quality Issues in the 112th Congress: Oversight and Implementation

Claudia Copeland
Specialist in Resources and Environmental Policy

Much progress has been made in achieving the ambitious goals that Congress established nearly 40 years ago in the Clean Water Act (CWA) to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. However, long-standing problems persist, and new problems have emerged. Water quality problems are diverse, ranging from pollution runoff from farms and ranches, city streets, and other diffuse or “nonpoint” sources, to toxic substances discharged from factories and sewage treatment plants.

There is little agreement among stakeholders about what solutions are needed and whether new legislation is required to address the nation’s remaining water pollution problems. For some time, efforts to comprehensively amend the CWA have stalled as interests have debated whether and exactly how to change the law. Congress has instead focused legislative attention on enacting narrow bills to extend or modify selected CWA programs, but not any comprehensive proposals.

For several years, the most prominent legislative water quality issue has concerned financial assistance for municipal wastewater treatment projects. House and Senate committees have approved bills on several occasions, but, for various reasons, no legislation has been enacted. At issue has been the role of the federal government in assisting states and cities in meeting needs to rebuild, repair, and upgrade wastewater treatment plants, especially in light of capital costs that are projected to be as much as $390 billion. In the 111th Congress, the House passed H.R. 1262 to reauthorize the CWA’s State Revolving Fund (SRF) program to finance wastewater infrastructure, and a companion bill, S. 1005, was approved by the Senate Environment and Public Works Committee. No legislation was enacted. Reauthorization legislation was introduced again in the 112th Congress (H.R. 3145).

Programs that regulate activities in wetlands also have been of interest, especially CWA Section 404, which has been criticized by landowners for intruding on private land-use decisions and for imposing excessive economic burdens. Environmentalists view this regulatory program as essential for maintaining the health of wetland ecosystems, and they are concerned about court rulings that have narrowed regulatory protection of wetlands and about related administrative actions. Many stakeholders desire clarification of the act’s regulatory jurisdiction, but they differ on what solutions are appropriate. In the 111th Congress, the Senate Environment and Public Works Committee approved a bill that sought to clarify but not expand the CWA’s geographic scope (S. 787). Because some stakeholders believe that the bills would expand federal jurisdiction—not simply clarify it—the bills were controversial, and no legislation was enacted. In contrast to approaches reflected in earlier proposals, bills in the 112th Congress would narrow the scope of the act’s jurisdiction (S. 2122/H.R. 4304).

These issues have drawn interest in the 112th Congress, as well. In addition, a number of other CWA issues have been the subject of congressional oversight and legislation, with some legislators highly critical of recent regulatory initiatives and others more supportive of EPA’s actions. Among the topics of interest are environmental and economic impacts of Chesapeake Bay restoration efforts, federal promulgation of water quality standards in Florida, regulation of surface coal mining activities in Appalachia, and other CWA regulatory actions. Congressional interest in several of these issues has been reflected in debate over policy provisions of legislation to provide appropriations for EPA in FY2012 (P.L. 112-74) and FY2013 (H.R. 6091).


Date of Report: December 10, 2012
Number of Pages: 27
Order Number: R41594
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