The House in May is expected to take up revisions to the Clean Water Act that supporters promise will ease costly regulatory burdens on industry, agriculture and local communities but opponents label a "polluter's bill of rights."
The bill, which was passed out of the House Transportation and Infrastructure Committee on a 42-16 vote April 6, would overhaul wetlands regulations, eliminate mandatory nonpoint source pollution controls in coastal areas and require that regulators prove that their actions will produce more benefits to society than they cost.
Committee Chairman Bud Shuster, R-Pa., argued that the Clean Water Act has been overly burdensome and needs to be revised to remove what Shuster called the "heavy-handed ... intervention" of federal bureaucrats.
"In many areas (the law) has had unintended consequences, placing unacceptable costs and regulatory burdens on the public for ... marginal gains in water quality improvements," Shuster said.
But critics charged the legislation was crafted by industry lobbyists and would gut major portions of the Clean Water Act, a landmark environmental protection law in the United States.
"It's a polluter's bill of rights," said Rep. Norman Mineta of California, the committee's ranking Democrat. He criticized the way the bill was drafted, with heavy involvement by the interest groups it would regulate, while Democrats, environmentalists and administration officials were locked out.
Environmental groups, the EPA and the Association of State Wetlands Managers have said the proposed changes could reduce the nation's wetlands by more than 50 percent. The bill's supporters contend it only establishes a more reasonable definition to reduce abuses on landowners.
"We are not going to be losing wetlands," said Margaret Ann Reigle, chairwoman of the Cambridge-based Fairness to Land Owners Committee. "There will be deregulation of dry land when this passes."
Rep. Wayne Gilchrest, R-Md., who opposed the bill, said he wants Congress to wait for the results of a three-year wetlands study due soon from the National Academy of Sciences."The productivity of the Bay is highly dependent on this filtration system that nature has created over the past 10,000 years," he said.
Indeed, many officials are concerned that the bill could significantly weaken programs that protect the Bay. For example, requirements to control stormwater runoff - one of the largest sources of toxics to the Chesapeake - are substantially rewritten in the legislation.
"The basic federal framework on which the Bay Program is built is undermined by the bill," said Robert Perciasepe, assistant EPA administrator for water and Maryland's former environment secretary.
In an interview with Greenwire, a daily environmental newsletter, Perciasepe expressed concern that the House bill grants flexibility in implementing many clean water programs without providing safeguards to ensure that environmental protection does not backslide. "We're very much in favor of more flexibility, but we feel there have to be some rules of the road applied," he said.
Among other concerns, he said, was the bill's provisions dealing with nonpoint source pollution - runoff from land activities - which is seen as the biggest threat to the Bay and many other waterways. Perciasepe said the legislation "rolls back existing deadlines under current programs and would probably delay by almost a generation, up to 20 years, progress on curbing this kind of pollution."
The bill approved by the committee would authorize $3 billion a year for the federal revolving fund that helps pay for state and local water pollution control activities. That would be more than double this year's funding, though Shuster acknowledged at a news conference that Congress is unlikely to appropriate that much.
Some of the major provisions of the committee bill include:
Wetlands: The bill creates three categories of wetlands, including a "least valuable" classification that would no longer be protected, an intermediate category that would still require a permit, and a "Type A" category that would receive absolute protection. To be classified as a wetland, an area would have to meet three criteria, based on soil conditions, hydrology and vegetation. Only one of those conditions now must be met for an area to be classified as a wetland. The government would have to compensate landowners if their property was devalued because of wetland restrictions.
Nonpoint source pollution: State nonpoint source programs would have to achieve federal water quality standards but would be given flexibility in choosing how those goals are met. The bill does not require states to set enforcement mechanisms, and it delays compliance deadlines for each year Congress does not fully fund nonpoint source grants to the states. The bill would allow states to apply unused parts of their State Revolving Funds, primarily used for sewage plant upgrades, to nonpoint source programs. Any farmer who successfully implements a U.S. Department of Agriculture natural resources management plan would automatically be considered in compliance with state nonpoint source management plans.
Coastal Zone Act: The bill revokes the nonpoint source control programs established in the Coastal Zone Management Act Reauthorization of 1990. That program requires states with federally funded coastal zone management programs to develop nonpoint source control programs with enforceable mechanisms in coastal areas.
Stormwater management: Since the last Clean Water Act, passed in 1987, storm water discharges have been treated as point source pollution and are regulated by discharge permits. The House bill would instead define stormwater discharges as nonpoint source pollution. As such, states would develop voluntary management programs for different categories of discharges, though they would have power to maintain permit programs if those efforts are unsuccessful.
Pretreatment: Some industries would no longer be required to pretreat waste before releasing it to a publicly owned sewage treatment facility. Existing law requires that industries sending wastewater to a public treatment plants meet the same industry standards that would be required if it were discharging directly into the water. The House bill would allow industries to be waived from those pretreatment requirements if they show that they effectively treat industrial waste and consistently comply with water quality standards.
Risk assessment/cost-benefit analysis: The bill requires the EPA to conduct risk assessment and cost-benefit analyses for any rules that could cost more than $25 million. The EPA would be prohibited from issuing regulations unless it can show that the actions maximize benefits to society.
If it passes the House, the bill faces an uncertain fate in the Senate. Sen. John Chafee, R-R.I., chairman of the Senate Environment and Public Works Committee, told a meeting of environmental journalists earlier this year that he did not favor a major overhaul of the bill and instead supported only "targeted reforms" in the law. He called the Clean Water Act "perhaps our most successful environmental law," noting that it had allowed many polluted waterways - including the Potomac River - to make "remarkable recoveries."
The Clean Water Act was originally passed in 1972. It was last reauthorized in 1987. That authorization lapsed in 1991, though Congress has continued to fund the act's programs, including funding assistance to state and local governments for clean water improvements.
Shuster has said he was willing to negotiate on provisions in the House bill, but warned that the House would not approve new funding for clean water programs unless the Clean Water Act is reauthorized.