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Chapter 2
Water, Coastal & Marine Resources

Perhaps the one area where the 106th Congress made the most progress is in the long neglected area of protecting our oceans and coasts. In its closing days, the 106th Congress was able to pass a number of smaller ocean and coastal bills, including a comprehensive beach monitoring and notification bill, and a coral protection bill. Sen. Ernest Hollings' (D-S.C.) Oceans Act, establishing an ocean commission to help develop national ocean policy, passed easily, as did the late Sen. John Chafee's (R-R.I.) estuary restoration bill.

There were also some disappointments. On several occasions, the Senate passed a coastal management bill with dedicated funding for polluted runoff, but House Resources Committee Chairman Don Young (R-Alaska) and House Transportation Committee Chairman Bud Shuster (R-Pa.) blocked this important bipartisan legislation sponsored by Rep. Jim Saxton (R-N.J.) in the House. There were other low points, as congressional leaders allowed the Alaska delegation and Sen. Mary Landrieu (D-La.) to give $150 million each year from federal offshore oil and gas drilling revenues to seven states, without environmental protections. As a result, this money, which is designed for coastal and water related conservation projects, may well end up being used by the states for projects such as roads, beach construction, jetties and bulkheads that cause more damage to the environment rather than mitigate it. Opponents also mounted attacks on the Clean Water Act and the new water quality regulation issued by the EPA for the total maximum daily load program, successfully blocking implementation of the new rule for one year. Finally, in the fiscal year 2001 final omnibus spending bill, Congress passed a bill that is intended to address the severe problems with combined sewer and sanitary sewer overflows, but it fails to strengthen clean water protections.


"Beaches Environmental Awareness, Cleanup, and Health Act of 1999"
S. 522, Sen. Frank Lautenberg (D-N.J.); H.R. 950, Rep. Frank Pallone (D-N.J.); H.R. 999, Rep. Brian Bilbray (R-Calif.)
Status: Enacted on 10/10/2000 (Pub. L. No. 106-284)
NRDC releases an annual beach report that documents the locations of, and reasons for, beach closures nationwide. Each year, statistics show that beaches are closed due to unhealthy levels of pathogens and other pollutants. The Beaches Environmental Awareness, Cleanup, and Health Act of 1999, known as the BEACH bill, will help reduce the number of beach closures, authorize funding for states both to establish uniform testing and monitoring procedures for coastal waters, and ensure notification of the public when beach waters are contaminated. Under the BEACH bill, the EPA is charged with developing indicators for detecting pathogens, as well as publishing performance criteria by which beaches can be monitored. Grants are then provided to state governments to develop individual state monitoring programs. This system provides flexibility to coastal states to develop their own monitoring programs based on federal standards. This authorizes $150 million over 5 years ($30 million per year) to establish and implement monitoring programs.

The House bill, H.R. 999, was approved by the House on April 22, 1999 after Rep. Sherwood Boehlert (R-N.Y.) improved the bill on the floor by ensuring that, among other things, state criteria for pathogens or pathogen indicators for coastal recreation waters is as protective of human health as EPA's federal criteria. The Senate bill (S. 522), introduced by Sen. Lautenberg (D-N.J.), unanimously passed on September 21, 2000. The House approved the Senate version on September 26, 2000, and President Clinton signed the bill on October 10, 2000.

"Estuary Habitat Restoration Partnership Act of 1999"
S. 835, the late Sen. John Chafee (R-R.I); H.R. 1775, Rep. Wayne Gilchrest (R-Md.)
Status: Enacted on 11/7/00 (Pub. L. No. 106-457)
Both the Senate and the House passed an estuary restoration bill, S. 835 and H.R. 1775 respectively, that will fund local estuary restoration projects and require a national strategy for estuary restoration and preservation. The final bill, which passed the House and Senate at the end of the session, will restore one million acres of estuary habitat in the next decade and provide $275 million in grants to local groups for coastal conservation. The bill also reauthorizes $40 million in EPA funding over the next five years for the Chesapeake Bay Program, which for the first time will provide money for estuary management. The bill also authorizes $40 million for Long Island Sound restoration and $50 million for the Clean Lakes Program, both over the next five years.

"Shark Finning Prohibition Act"
H.R. 3535, H.R. 5461, Rep. Randy Cunningham (R-Calif.); S. 2831, Sen. John Kerry (D-Mass.)
Status: H.R. 5461 enacted on 12/21/00 (Pub. L. No. 106-557); S. 2831 referred to the Senate Commerce Committee
An Asian delicacy known as "shark fin soup" can cost $100 a bowl, fueling the practice of shark finning by fishermen in the central and western Pacific Ocean. In 1991, the percentage of sharks caught for finning was approximately 3 percent; by 1998, it had grown to 60 percent. After a shark's fin has been cut off, the animal is discarded into the ocean where it dies helplessly. Unregulated shark finning results in a poorly managed shark population. Most shark species grow slowly, experience late maturation, and produce small litters.

Sen. John Kerry introduced a bill (S. 2831) that would have prohibited shark finning in the U.S., mandated fishing restrictions, banned importation of improperly caught shark, and initiated efforts to ban shark finning internationally. Sen. Kerry's bill was referred to the Senate Commerce Committee, amended, incorporated in a larger coastal package and passed the Senate.

The House bill, H.R. 5461, prohibits the removal of fins of a shark, including the tail, and the discard of the carcass into the sea. While Rep. Cunningham's bill does not prohibit the subsequent sale of shark fins, it does discourage the waste of the other valuable components of sharks by mandating that no fin may be landed without its corresponding carcass.

H.R. 5461 passed overwhelmingly in the House by a vote of 390-1 on June 6, 2000. H.R. 5461, a later version of H.R. 3535, passed by unanimous consent in the Senate on December 7, 2000, and was signed by President Clinton on December 21, 2000. While environmentalists believe that H.R. 5461 is an effective first step, it does not go far enough in encouraging sensible shark management. More information is needed on the status of different shark populations. Funding should be directed to the National Marine Fisheries Service (NMFS) for more shark research, and a fishery management plan should be established.

"Sanctuaries and Reserves Act" and "National Marine Sanctuaries Amendments Act"
HR 1243, Rep. Jim Saxton (R-N.J.); S. 1482, Sen. Olympia Snowe (R-Maine)
Status: Enacted on 11/13/2000 (Pub. L. No: 106-513)
Both H.R. 1243 and S. 1482 amend and reauthorize the Natural Marine Sanctuaries Program, which was established in 1972 to preserve the nation's valuable marine resources. Since then 12 areas covering a wide range of marine habitats have been designated as national marine sanctuaries, half of which occurred in the last decade. While a number of new marine sanctuaries have been established in recent years, funding has not kept pace with the expansion of the sanctuary system. As a result, the sanctuaries have failed to enforce adequately and manage these areas to provide full resource protection. In fact, the extent of the natural resources within each sanctuary are not known. At the very end of the session, the House passed the Senate bill. This bill, passed by the Senate on October 17, 2000, was signed by the president on November 13, 2000.

While the marine sanctuary bill hinders the establishment of new sanctuaries, it also authorizes significant new increases in funding for the program, from $32 million in fiscal 2001 up to $40 million in fiscal 2005. This funding should be forthcoming because the sanctuary program's funding cannot be used for any other purposes under an agreement in the omnibus funding bill to provide hundreds of millions of dollars to certain coastal and ocean programs. This bill also gave the president the authority to designate a coral reef ecosystem reserve in the Northwest Hawaiian Islands. The president did exercise this authority, when on December 4, 2000 he signed an executive order creating the reserve and putting far-reaching protections into place for the most ecologically significant coral reefs in the United States.

Coral Reef Restoration Bills
"Coral Reef Conservation and Restoration Partnership Act of 2000," H.R. 3919, Rep. Jim Saxton, (R-N.J.); "Coral Reef Protection Act of 1999," HR 3133, Rep. Eni Faleomavaega (D-AS); "Coral Stewardship Act," S. 2223, Sen. John Kerry (D-Mass.); "Coral Reef Resource Conservation and Management Act of 1999," S. 1888, Sen. Daniel Akaka (D-Hawaii); "Coral Reef Protection Act of 1999," S. 1253, Sen. Daniel Inouye (D-Hawaii); "Coral Reef Conservation Act of 1999," S. 725, Sen. Olympia Snowe (R-Maine)
Status: Enacted on 12/23/00 as part of H.R. 1653 (Pub. L. No. 106-562)
The 106th Congress saw the introduction of a plethora of bills in both chambers on the restoration and conservation of the nation's coral reefs and reef ecosystems. While most of these bills did not advance, at the tail end of the legislative session, Sens. Snowe, Inouye, and Kerry, and Reps. Saxton and Faleomavaega worked together and developed a bill that passed as part of H.R. 1653, an unrelated fishing bill. This coral bill provides $8 million in grants for coral conservation and $8 million per year for 4 years for a national coral management program that includes mapping, assessment and monitoring of corals; increasing education; removing gears and debris from reefs; and improving cooperative management between local, regional, and international parties.

"Coastal Zone Management Act of 2000,"and "Coastal Community Conservation Act of 1999"
S. 1534, Sens. Olympia Snowe (R-Maine), John McCain (R-Ariz.); H. R. 2669, Rep. Jim Saxton (R-N.J)
Status: S. 1534 passed the Senate; H.R. 2669 approved by the House Resources Committee
Although the Senate passed a bill reauthorizing a popular grant program for state coastal management on several separate occasions, House Resources Committee Chairman Don Young (R-Alaska) and House Transportation Committee Chairman Bud Shuster (R-Pa.) conspired to block the bill in the House. These two representatives blocked a bipartisan, widely supported bill, because of their feelings about the $10 million coastal nonpoint program. To environmentalists, this nonpoint or polluted runoff program is the most significant piece of the coastal program.

Created in 1972, the Coastal Zone Management Act (CZMA) allows for states to develop management plans for competing uses of their coastal areas. When CZMA authorization expired this year, environmentalists supported reauthorization legislation primarily because it contained dedicated funding for polluted runoff, the single biggest threat to water quality and the health of coastal and ocean ecosystems and natural resources. Nonpoint source pollution has resulted in many offshore environmental problems. For instance, the number of shellfish beds that have been closed for harvesting due to coastal pollution increased 40 percent between 1966 and 1990. A 'dead zone' now extends for 7000 square miles from the Mississippi delta into the Gulf of Mexico. Pfiesteria microbe outbreaks that cause lesions and death in fish, and neurological disorders in humans, have been linked to nonpoint sources. To deal with these types of problems, in 1990 Congress directed the States to develop nonpoint pollution control plans. Many of these plans are beginning to be implemented now with $22 million in federal funds to help address state concerns.

While Sen. Snowe's and Kerry's bill retained the dedicated nonpoint pollution funding, the House bill that originally contained this important funding was decimated in the full resources committee by Rep. Richard Pombo (R-Calif.) who attached a controversial takings provision (discussed in the takings section below) and by Rep. James Hansen (R-Utah) who removed the polluted runoff funding. These controversial changes stopped the House bill in its tracks, because the bill's supporters refused to advance with these changes, and Chairman Young refused to move the bill without the changes.

"Magnuson-Stevens Fishery Conservation and Management Act"
S. 2832, Sen. Olympia Snowe (R-Maine) and S. 2973, Sen. John Kerry (D-Mass.); H.R. 4046, Rep. Wayne Gilchrest (R-Md.)
Status: S. 2832, S. 29763 referred to the Senate Commerce Committee; H.R. 4046 referred to the House Resources Committee
Congress took no action on any of the three significant bills introduced this Congress (H.R. 4046, S. 2973 and S. 2832) reauthorizing the Magnuson-Stevens Fishery Conservation and Management Act. In 1996, when Magnuson was last reauthorized, a number of major changes were made to try to address conservation issues. One of these changes, involving a moratorium on individual fishing quotas (IFQs), continues to be controversial, with debate over whether IFQs should be allowed with some restrictions or if the current moratorium should stand.

Introduced by Rep. Gilchrest on March 21, 2000, H.R. 4046 is supported by many members of the environmental community because it would add new language to Magnuson to reduce bycatch, strengthen fisheries' observer and rebuilding plans, and require the use of the precautionary principle where fisheries are declining. While there was talk that the chair and ranking minority member of the Oceans & Fisheries Subcommittee, Sens. Snowe and Kerry respectively, would produce a joint bill, in the end the two senators introduced separate bills. The Snowe bill (S. 2832) contains a few ill-advised provisions that would restrict the use of science in fisheries management and observer programs. The Kerry bill (S. 2973), favored by the environmental community, incorporates some of the recommendations of the National Academy of Sciences panel on ecosystem management and also contains language similar to that in the House bill on strengthening essential fish habitat and bycatch reduction.


"Conservation and Reinvestment Act of 2000" (CARA)
H.R. 701, Reps. Don Young (R-Alaska), George Miller (D-Calif.); S. 25, Sens. Mary Landrieu (D-La.) and Frank Murkowski (R-Alaska)
Status: Funding included in H.R. 4578, the FY 2001 Interior Appropriations bill (Pub. L. No. 106-291); Damaging coastal impact provisions attached as a rider to H.R. 4942, the FY 2001 Commerce, Justice, State Appropriations bill (Pub. L. No. 106-553)
While an historic partnership between House Resources Chairman Young and Ranking Member Miller gave birth to a landmark bill to authorize close to $3 billion each year for 15 years for land and water conservation purposes, this bill contained provisions that could have significant negative effects on important ocean and coastal resources. The bill's conservation funds come from federal royalties from offshore oil and gas leases, and unfortunately the bill provides incentives for oil development off the ecologically sensitive and significant Alaskan coast, even though Rep. Sherwood Boehlert (R-N.Y.) heroically amended it on the floor to improve the provision that creates the greatest incentives for increased oil and gas drilling. Moreover, hundreds of millions of dollars in federal funds may be used by states to build environmentally damaging projects such as roads, jetties, ports, or bulkheads. For this reason, federal oversight over the use these federal funds by state and local governments should be strengthened.

The House approved H.R. 701 by a landslide vote of 315-102 on May 11, 2000. Although a number of Senate bills surfaced in 1999 and 2000, including a bill introduced by Sen. Bingaman (S. 2181), favored by the environmental community because it ensured that these CARA funds do not encourage more offshore drilling and cannot be used for activities which would damage coastal areas, only one version made it out of the Senate Environment and Public Works Committee. This bill ultimately stalled on the Senate floor. Strong opposition from Western senators against federal land acquisition and from the appropriations committee members who fear losing control over these funds blocked further movement in the Senate.

Because of the Senate stalemate on CARA, the president worked out an agreement through the regular appropriations process with both House and Senate appropriators to fund most of the same programs for 6 years starting at over $1 billion per year, and increasing to over $2 billion. Any funds that are not appropriated for land and water conservation cannot be used for other purposes and must be rolled over into the next year. Moreover, this deal does not contain any incentives to drill the Arctic. While the appropriations language for the land projects was satisfactory, the coastal and ocean project funding contained language that could allow hundred of millions of dollars each year to be used for damaging coastal projects such as roads, jetties, bulkheads, and beach construction.

"Atlantic Highly Migratory Species Conservation Act of 1999"
S. 1911, Sen. John Breaux (D-La.)
Status: Approved by the Senate Commerce Committee
The North Atlantic swordfish stock is over-fished. In addition, tuna, sailfish, marlin, and sharks have also suffered decreases in population due to longline fishing techniques. A bill that attempted to mitigate this situation and rebuild these stocks, the Atlantic Highly Migratory Species Conservation Act of 1999 (S. 1911), however, was seriously flawed. Even though it would create a conservation area greater than 160,000 square nautical miles in the Atlantic Ocean and the Gulf of Mexico, it would have improperly deprived fishery managers of the ability to protect species other than swordfish in that area by preventing the National Marine Fisheries Service (NMFS) from closing it to protect other species for four years. Moreover, the area closures in the bill are not as effective as those recently put into place by NMFS. Fishermen supported this bill because it authorized a "buy back" program for commercial fishing permits and boats. Although this bill made it out of committee, it did not pass the Senate or the House and efforts to attach it as a legislative rider were defeated.

"CALFED Extension Act of 2000"
H.R. 5130, Rep. John Doolittle (R-Calif.)
Status: Approved by the House Resources Committee
Water flowing through the delta of the Sacramento and San Joaquin Rivers into the San Francisco Bay is not only the water supply for California's 20 million people, but also home to 120 wildlife species, some of them endangered. For decades, though, water has been increasingly diverted from these rivers for agricultural and residential uses, resulting in the collapse of sensitive ecosystems and the devastation of numerous species. The CALFED Bay-Delta Program was established in 1995, following the 1994 Bay-Delta Accord between state and federal agencies, to restore the Bay-Delta ecosystem and develop an environmentally and economically sustainable water policy. The original 1996 CALFED authorization, which is now expired, was supported by a strong, bipartisan coalition from all parts of California and is making progress. In August of 2000, Interior Secretary Bruce Babbitt and California Governor Gray Davis solidified an agreement as a record of decision (ROD) to extend the CALFED program into the future.

On Capitol Hill, however, legislation was introduced in the House that would reauthorize the CALFED program but would directly undermine the ROD without hearings or the full involvement of a range of stakeholders. This bill, H.R. 5130 introduced by Rep. Doolittle (R-Calif.), represents an attack on the core principles of CALFED, the Clean Water Act and the Endangered Species Act. Furthermore, the bill would undermine the environmental restoration efforts of this project by shifting the balance of water allocation toward powerful agricultural users and away from environmental needs. Fortunately, this bill never made it to the House floor and had no Senate counterpart.

Although the 106th Congress missed the opportunity to pass a clean extension of the expired CALFED program, the FY 2001 Energy and Water Appropriations bill includes $20 million in unauthorized funding to continue the program.

Contaminated Sediment Rider
Sponsor: Rep. James Walsh (R-N.Y.), Rep. John Sweeney (R-N.Y.)
Status: Enacted on 10/27/00 as part of H.R. 4635, the FY 2001 VA-HUD and Independent Agencies Appropriations bill (Pub. L. No. 106-377)
In the House EPA funding bill, Rep. Walsh included a provision that prevents the EPA from dredging up contaminated sediments on river bottoms during cleanups to protect the health of those who use the river. There was no Senate counterpart. Dubbed the "General Electric (GE) relief" rider, GE had highly paid lobbyists advocating for this rider so that the company could delay paying for dredging to cleanup the polychlorinated biphenyls (PCB) pollution in the Hudson River. The original version of the rider inserted into the FY 2001 VA-HUD appropriations bill would delay the EPA from initiating or ordering the dredging of polluted waterways across the entire country for the third consecutive year. This year's rider was considerably worse than prior versions because it "directs," rather than urges, the EPA to incorporate the results of a yet to be released National Academy of Science (NAS) report on dredging into EPA's decision-making process, thus delaying these cleanups and dictating a decision that should be left to the expertise of the agency.

An amendment offered by Reps. Maurice Hinchey (D-N.Y.), Sherrod Brown (D-Ohio) and Henry Waxman (D-Calif.) to removed this "contaminated sediment" rider language from the bill was rejected on the House floor by a vote of 208-216. Rep. Hinchey, calling the rider anti-environmental, said, "The intention of [rider] is to make it impossible for the EPA to proceed with its program to remediate these bodies of water, I believe, which are in dire need of that remediation." Unfortunately, in the House, concern for polluters' profits won out over concern for the people who live and play on severely contaminated rivers. In conference, however, this House rider was modified to restrict its application to sites where the EPA did not have a record of decision. The final effect of the rider is to delay the cleanup of contaminated sediments at least 6 sites nationwide until another report is completed.

Salmon Rider
Sponsor: Sen. Slade Gorton (R-Wash.)
Status: Rejected from the H.R. 4578, the FY 2001 the Interior Appropriations conference committee
Sen. Gorton shamelessly and unsuccessfully tried to attach a rider prohibiting federal agencies from studying whether dam removal could save four species of endangered salmon and steelhead. This rider would have barred the government from even considering the option - dam removal - that offers the best chances of success in restoring wild salmon. Fortunately, the administration refused to accept this provision in the Interior funding bill.

Up to 15 million wild salmon and steelhead once returned each year to the Columbia and Snake Rivers. However, largely due to the construction of hydropower dams, that number has plummeted to only a few thousand per year. Presently, the migration up river through these dams proves fatal to 80-95 percent of migrating young salmon and steelhead. At the same time, these dams produce only 5 percent of the Northwest's electricity while affordable sources of renewable energy are available elsewhere. The National Marine Fisheries Service (NMFS) recently released a plan directing agencies to undertake a series of actions to rebuild the Snake River salmon population. This plan also calls for promoting further engineering and economic studies of dam removal. The Gorton salmon rider directly contradicted the findings and goals of the NMFS recovery plan.

Army Corps of Engineers Rider
Status: Removed from H.R. 4461, the FY 2001 Agriculture Appropriations bill in conference committee
This provision would have blocked any efforts to reform management and oversight functions of the Army Corps of Engineers, an agency that manages the nation's rivers and harbors and oversees wetlands regulatory and restoration programs. The rider was a reaction to recent efforts by Secretary of the Army Louis Caldera to reform the Corps internally by reasserting civilian oversight over the agency. Efforts to reform the Corps emerged after the Washington Post reported earlier this year that top level Corps military leadership ordered personnel to manipulate a study to justify a $50 million seven-year project to expand barge facilities in the Upper Mississippi River. It also came to light that top military officials had launched a plan to grow the Corps budget to $2 billion by aggressively approving new water development projects without the knowledge of civilian personnel.

Oregon Inlet Rider
Sponsor: Sen. Jesse Helms (R-N.C.)
Status: Originally included in S. 2536, the FY 2001 Agriculture Appropriations bill; Satisfactorily amended on the Senate floor
This provision would have removed at least 93 acres from Cape Hatteras National Seashore and 33 acres from Pea Island National Wildlife Refuge and given it to the Corps of Engineers to construct two huge jetties into the ocean, one of which would be two miles long. The project is unnecessary and fiscally wasteful, costing an estimated $108 million. Periodic dredging allows fishing to continue in the area for more than thirty years and costs about the same as just the estimated annual maintenance of the jetties. This project would accelerate beach erosion along the national seashore and refuge in the Outer Banks of North Carolina. Similar jetties built 70 years ago have had a devastating effect on Assateague National Seashore.

During consideration of the FY 2001 Agriculture Appropriations bill, Sen. Max Baucus (D-Mont.) successfully removed this rider by voice vote on the Senate floor on July 20, 2000, and replaced it with an acceptable substitute that stops the land transfer and requires an evaluation of alternatives to the jetties.

Steller Sea Lion Rider
Sponsor: Senator Ted Stevens (R-Alaska)
Status: Enacted on 12/21/00 as part of the FY 2001 Omnibus Appropriations bill (Pub. L. No. 106-554)
Since 1960, the adult Steller sea lion population has crashed - declining by more than 80 percent. Sea lions in western Alaska are locked in a life or death battle with the commercial fishing industry. Pollock, the primary food in the Steller sea lion's diet, is also a groundfish targeted by the industrial fishing fleets of Alaska with giant factory ships that take more than 2 billion pounds of groundfish per year to furnish McDonald's with its fish sandwiches and Gorton's with its fish sticks. Sea lions simply cannot compete with these trawlers for food. As a result, fewer and fewer sea lion pups survive to adulthood. The National Marine Fisheries Service issued a biological opinion that the massive pollock fishing industry is jeopardizing the steller sea lion's critical habitat by decimating its food source. As a result, NMFS regulations would restrict fishing in the sea lion's critical habitat.

Flouting the Endangered Species Act, Sen. Stevens attached a pro-fishing industry, anti-Steller sea lion rider into the FY 2001 Commerce, Justice, State appropriations bill, which was included in an omnibus spending bill at the very end of the Congress. In its original form, this rider would have overridden the application of the Endangered Species Act by mandating renewed fishing in this critical sea lion habitat. The Clinton Administration threatened to veto the entire omnibus spending package, because this rider would be endorsing - indeed, encouraging - the extinction of a unique and magnificent species.

During final negotiations on the omnibus bill, Sen. Stevens and the Administration agreed to modify this rider so that it no longer overrides the application of the endangered species act, and provides economic protections to the fishermen and the fish processing facilities, however, it makes it more difficult for NMFS to protect the sea lion. The final version of the rider still delays implementation of strong new protections for the sea lions until January 1, 2002.


"Oceans Act of 2000"
S. 2327, Sen. Ernest Hollings (D-S.C.); H. R. 4410, Rep. Jim Saxton (R-N.J.)
Status: Enacted on 8/7/2000 (Pub. Law 106-256)
Sen. Hollings' bill creates a commission on national ocean policy, which will consider the protection of the marine environment, prevention of marine pollution, enhancement of maritime commerce and transportation, response to natural hazards, and ocean science and research. Unfortunately, in the charge to the commission, environmental issues are not given precedence over economic uses of the oceans. The 16-member commission is appointed by the president and is charged with producing a report for the president within 18 months. Within 120 days of receiving the report, the president will publish proposals to implement the Commission's recommendations. This bill was signed into law by President Clinton after easily passing the Senate on June 26, 2000 and the House on July 25, 2000.




While direct attacks were unsuccessful, indirect attacks on the clean water act and wetlands protections proliferated. While ultimately these attacks were repelled, members tried to exempt polluting activities such as mountaintop removal strip mining, logging, and agriculture from the Clean Water Act's purview.

Mountaintop Removal Mining Rider
H.J. Res. 82, Sen. Robert Byrd (D-W.V.)
Status: Failed to get included in the FY 2000 omnibus funding bill, but was added, in a largely symbolic roll call vote of 56-33, to a continuing resolution (H.J. Res. 82) that was never enacted.
A blatant, broadside attack on the Clean Water Act spearheaded by the senior West Virginia senator occurred at the very end of the first session. Sen. Byrd, angered by a recent federal court case that held West Virginia mountain top removal mining to be in violation of the Clean Water Act and environmental requirements of the Surface Mining Control and Reclamation Act, tried to exempt mountaintop removal mining from federal environmental law.

Sen. Byrd's attempts to attach a legislative provision to an appropriations bill were ultimately unsuccessful, due largely to effective, vocal opposition of moderate republicans led by Rep. Christopher Shays (R-Conn.). Although his legislative efforts failed, Sen. Byrd ultimately was satisfied by a proposal from the Clinton Administration to change the definition of "fill" in the Clean Water Act, allowing mountaintop removal mining to continue under the more lax eye of the Army Corps of Engineers. Section 404 of the Clean Water Act gives the Army Corps of Engineers the authority to issue permits for the dumping of "fill material" into waters of the United States. However, the current definition of "fill material" specifically excludes waste. The Army Corps and EPA proposed to eliminate this "waste exclusion" from the definition of fill material. Environmental organizations oppose this rule change because eliminating the waste exclusion, the Corps would be authorized to issue permits for the dumping of waste (including mining waste from mountaintop removal) into our waters.

Other bills to exempt polluters from Clean Water Act requirements
H.R. 3625, Rep. Jay Dickey (R-Ark.); S. 2041, Sen. Blanche Lincoln (D-Ark.)
Status: Referred to Environment and Public Works Committee
Other bills were introduced this Congress that would have exempted entire polluting industries from some key requirements of the Clean Water Act. For example, H.R. 3625 sponsored by Rep. Jay Dickey (R-Ark.) (with 197 cosponsors), would have exempted the logging industry from requirements to obtain point source discharge permits. Sen. Blanche Lincoln (D-Ark.) introduced S. 2041, a similar bill to exempt the logging industry from Clean Water Act requirements.

"Water Pollution Program Enhancements Act of 2000"
S. 2417, Sen. Crapo (R-Idaho)
Status: Passed the Senate unanimously; referred to the House Transportation Committee
As originally introduced, the Crapo bill attempted broadly to block EPA's new regulations to control polluted runoff. These rules were issued in an attempt to provide uniformity, clarity and structure to the Total Maximum Daily Load (TMDL) program, a cornerstone of the original 1972 Clean Water Act. S. 2417 would have prohibited EPA from finalizing the TMDL rule for at least 18 months until the National Academy of Sciences (NAS) completed a study of the TMDL program. In addition, the bill contained a section of one-sided findings hostile to the TMDL program, emphasizing its costs and ignoring potential benefits and wrongly suggesting that many states were implementing programs that were "functionally equivalent" to the TMDL program.

EPA finalized the TMDL rule before S. 2417 was voted out of the Environment and Public Works Committee, and in response Congress slipped a rider into the military construction appropriations bill prohibiting EPA from implementing the new rule during FY 2001. Before it was approved by the committee, S. 2417 was significantly amended. The "findings" section was dropped and the requirements for the NAS study were significantly modified. A second study by the National Academy of Public Administrators to examine various programs to reduce discharge from point and nonpoint sources was also added.

Nonpoint Pollution Controls (TMDL) Rider
Status: Enacted on 7/13/00 as part of H.R. 4425, the FY 2001 Military Construction Appropriations bill (Pub. L. No. 106-246)
Despite the fact that over 20,000 individual river segments, lakes, and estuaries across America are still polluted by sedimentation, nutrients, and pathogens, this Congress slipped a provision into the military construction funding bill, blocking the EPA from implementing a new rule to clean up polluted waters until October 2001.

In 1972, the drafters of the Clean Water Act created the Total Maximum Daily Load (TMDL) program for cleaning up the nation's waters where technology controls on sewage plants and factories were not sufficient to achieve applicable water quality standards. States and EPA are required to identify rivers, lakes and coastal waters that are polluted, rank them for priority attention, and then develop pollution limits or "pollution budget" called a TMDL for each body of water. The TMDL program has been virtually ignored by the states and EPA for over 20 years.

Now, after more than 30 citizen lawsuits across the country, EPA and the states are taking steps to begin implementing this cornerstone Clean Water Act program. EPA recently finalized a new regulation providing a mandatory duty for EPA to step in when a state fails to establish TMDLs. For the first time, states will be required to develop implementation plans as part of their TMDLs to determine how pollution controls will be allocated and how the state will ensure that waterbodies maintain water quality standards. States are required to track whether waterbodies will attain water quality standards and those waterbodies that will not meet these standards must have a revised TMDL. Sensibly, the new rule focuses immediate attention on waterbodies that are sources of drinking water or habitat for threatened or endangered species.

Permitting Guidance for Impaired Waters Rider
Status: Enacted on 10/27/00 as part of H.R. 4635, the FY 2001 VA-HUD and Independent Agencies Appropriations bill (Pub. L. No. 106-377)
A rider was slipped into the report language for the EPA funding bill that undermines implementation of the TMDL program by encouraging EPA to revoke a Clean Water Act guidance document issued by Region IX. This document is deemed by the House Appropriations Committee to be too "stringent" for the business community.

Joint Resolutions of Disapproval of the TMDL Rule
"TMDL Regulatory Accountability Act of 2000"

H.J. Res. 105, Rep. Marion Berry (D-Ark.); S.J. Res. 50, Sen. Michael Crapo (R-Idaho); H.R. 4922, Rep. Charlie Stenholm (D-Texas)
Status: Referred to the House Transportation Water Resources Subcommittee; Senate Environment and Public Works Committee
The new TMDL rule quickly came under attack from both riders and bills designed to block its implementation. Rep. Marion Berry (D-Ark.) and 23 others introduced House Joint Resolution 105 to undo the TMDL rule, by invoking a procedural mechanism in the "Congressional Review Act" passed by Congress as part of the Contract with America to provide Congress with an expedited process to nullify administrative rules. Sen. Crapo also introduced a joint resolution to strike down the new TMDL rule.

Another attack came in the form of H.R. 4922, sponsored by Rep. Charlie Stenholm (D-Texas) and supported by Rep. Sherwood Boehlert (R-N.Y.), a bill that would have diverted EPA's resources from implementing the rule by reopening the regulatory comment period and mandating additional public meetings, and would have created new opportunities to delay or kill the rule without following the normal administrative procedures. The bill mandated a cost-benefit study and a study by the National Academy of Sciences of the scientific basis underlying TMDLs and required the EPA to determine whether or not to alter the new rules based upon the results of these new studies. While this bill foundered, several of its provisions were included as report language in the EPA funding bill's conference report. This report language requires additional studies by the National Academy of Sciences and National Academy of Public Administration.


"Combined Sewer Overflow Control and Partnership Act of 1999"
S. 914, Sen. Robert Smith (R-N.H.); H.R. 828, Rep. James Barcia (D-Mich.)
Status: Enacted on 12/21/00 as part of H.R. 4577, the FY 2001 Omnibus Appropriations bill (Pub. L. No. 106-554)
On 9/28, the House Transportation Committee approved Rep. Barcia's H.R. 828, the "Combined Sewer Overflow Control and Partnership Act of 1999." The bill, as originally drafted by a consortium of cities with combined sewer systems, contained many objectionable provisions, but before markup, the bill was revised and improved substantially. A very similar bill, S. 914, was introduced in the Senate in April by Sen. Smith. However, neither bill, nor the final version that was enacted, will do that much to strengthen protections for water from combined sewer overflows (CSO).

Combined sewers carry both domestic "sanitary" sewage and industrial wastes, as well as runoff from city streets. Combined systems are designed to carry sewage to wastewater treatment plants, but, these systems become overloaded and overflow, dumping untreated sewage directly into waterways. CSO discharges contain raw sewage, floatable garbage, industrial waste, oil and grease pollution from autos and trucks, and many other pollutants. CSO discharges are a principal cause of shellfish bed closures, beach advisories, odors and other aesthetic problems in cities with combined sewer systems.

Despite the development of a national policy guidance supported by environmental groups, very little progress has been made by cities and towns to address these overflows. In communities where progress has been made, credit is largely due to lawsuits filed by a state agency, a citizen organization or the Federal government. The rider as passed contains some poorly worded provisions, but in general, it will not greatly change the state of the law on combined sewer systems. It fails, however, to address the widespread noncompliance with the CSO policy or the need for substantial federal funding to update our clean and safe water infrastructure across the country.



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