ABSTRACT
The language of Section 316(b) is quite short and easily subject to wide interpretation. Legislative history may prove to be a powerful tool for ascertaining the congressional intent behind Section 316(b). Legislative history consists of all legislative events that transpired throughout the process of enacting or defeating proposed legislation. The documentation generally includes the bill, the drafts, and the preceding markup documents; the testimony at hearings; the reports or studies commissioned by the legislature; the chronology of voting; the floor debates; and the message of the executive accompanying the signature or veto of the bill. Little legislative history exists with respect to Section 316(b). A recent law journal article discusses this history[4]. The language appeared suddenly, without any further explanation, in the Federal Water Pollution Control Act (the law that was modified in 1972 to become the CWA) Conference Report under the heading “Regulation of Thermal Discharges” in “Title III – Standards and Enforcement.” The Conference Report provided no additional commentary but merely included the language that was to become law. Neither the Senate nor House bill had included intake-structure language like the Section 316(b) language that the conference committee added. Except for one contribution, subsequent floor debates failed to shed more light on the dynamics that led to the conference substitute. Representative Clausen, during the House consideration of the Conference Report, summarized Section 316(b) in his own words. In departure from the actual conference language, he used the word “any” in connection with “adverse environmental impact.” He added that “the reference [in Section 316(b)] ... to ‘best technology available’ is intended to be interpreted to mean the best technology available at an economically practicable cost[5].” Section 316(b) has never been amended. Although reform bills were periodically introduced over the years, no legislation has been passed. Thus, the minimalist language of Section 316(b) remains as initially enacted.
