The U.S. Environmental Protection Agency (EPA) is in the process of redesigning the Clean Water Act's (CWA's) total maximum daily load (TMDL) program. Section 303 of the Act requires states and, if necessary, EPA to: (1) identify waters that do not meet water quality standards; (2) establish the TMDLs for pollutants discharged into these waters that will achieve these standards; and (3) incorporate these loads into state planning. These are of course the classic steps of ambient-based water quality management.

Congress passed the Clean Water Act on October 4, 1972, by overwhelming margins—unanimously in the Senate and with a bare 11 dissenters in the House of Representatives. Rising on the Senate floor that day a full quarter-century ago, Sen. Edmund S. Muskie (D-Me.), chairman of the Senate's Subcommittee on Air and Water Pollution and leader of the Senate's clean water forces, explained with simple gravity why Congress was about to pass by such large margins such a powerful and unprecedented law:

When the 103d Congress convened on January 5, 1993, many observers believed that it would make up for the dismal environmental record of its predecessor. The 102d Congress had tried and failed to reauthorize the Federal Water Pollution Control Act (FWPCA), the Endangered Species Act (ESA), and the Resource Conservation and Recovery Act (RCRA). Its attempt to elevate the U.S. Environmental Protection Agency (EPA) to a cabinet-level department had been blocked in the House of Representatives, and its attempt to reform the General Mining Law of 1872 had been blocked in both houses.

Environmental regulation of pollution in the United States is often maligned as costly and ineffective. Pollution continues to plague and degrade the natural resources in the United States, and U.S. waters in particular. Nonpoint source pollution is currently the most significant source of water pollution, but it is also the most unregulated. While other discharges into U.S. waters have been dramatically reduced since the Federal Water Pollution Control Act (FWPCA) was enacted, nonpoint source pollution—caused most by runoff from agricultural operations—has increased.

Few commentators doubt the value of clean, unadulterated waters teeming with varied and colorful aquatic life. The debate centers instead on more pragmatic concerns, that is, how to best accomplish the accepted imperative. Some maintain that the primary responsibility should fall on the federal government because of its insularity from regional economic and political pressures. Others suggest that states should take the lead because of their familiarity with and ability to respond to local environmental concerns. Both sides have valid points.

Editors' Summary: On February 28, 2005, the U.S. Court of Appeals for the Second Circuit vacated and remanded portions of EPA's concentrated animal feeding operations (CAFO) rule. The ruling was not a win for either side of the debate, as it requires permitting authorities to review and incorporate nutrient management plans into their permits, but prevents EPA from requiring CAFOs to apply for permits based solely on their potential to discharge pollutants to U.S. waters.