Editors' Summary: The Federal Water Pollution Control Act, sometimes known as the Clean Water Act, prohibits the discharge of pollutants into waters of the United States without a permit. One of the keys to the Act is thus the permit system, the National Pollutant Discharge Elimination System (NPDES). The Environmental Protection Agency's NPDES program has had a checkered career in moving toward the goal of "fishable and swimmable" water throughout the United States. It is a pattern of hard-fought political compromises as Congress drafted the legislation, followed by hard-fought courtroom battles over the EPA regulations intended to implement the law.

In this Article, a veteran environmental litigator analyzes the results of the D.C. Circuit's recent decision on EPA's NPDES regulations. Several key issues now seem resolved, providing a measure of stability and predictability to the nation's water pollution control program. At the same time, the D.C. Circuit consciously left several issues open for case-by-case review later. The author thus outlines what we can now say about the NPDES program, and points to areas for continued disagreement.