ABSTRACT
Before it was amended in 1972, the Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA), required the setting of various ambient water quality standards that, in turn, were to afford a basis for determining acceptable levels of pollution in interstate navigable waterways. As the Supreme Court has noted, federal and state regulators operating under the early CWA approach found it “very difficult to develop and enforce standards to govern the conduct of individual polluters.” 1 This difficulty was caused in substantial part by informational demands, scientific uncertainties, and valuation questions that accompanied the task of establishing acceptable water quality standards. Thus, “prompted by the conclusion of the Senate Committee on Public Works that ‘the Federal water pollution control program has been inadequate in every vital respect,'” 2 Congress dramatically overhauled the CWA, requiring the placement of maximum effluent limitations on point sources of water pollution in addition to the achievement of water quality standards, and creating the National Pollutant Discharge Elimination System (NPDES) as a means of enforcing effluent limitations. Primary authority for implementing the CWA and for issuing and overseeing NPDES permits was vested in the U.S. Environmental Protection Agency (EPA), although states could continue to play a substantial role if they developed EPA-approved permitting programs. 3 Significantly, effluent limitations were to be determined by regulators with reference not to ambient water quality standards, but to the level of pollution reduction that could be achieved through the application by industry of identified high-performing technologies.
