27 ELR 10329 | Environmental Law Reporter | copyright © 1997 | All rights reserved

TMDLs: The Resurrection of Water Quality Standards-Based Regulation Under the Clean Water Act

Editors' Summary: The Clean Water Act (CWA) has rediscovered water quality standards. More accurately, environmentalists have discovered this oldest of pollution control strategies lying dormant in the Act and have litigated it into motion. How this strategy now succeeds will have a profound impact on the future of the Act and its long march toward restoration of the nation's waters. This Article reviews the nature of water quality standards-based regulation. It also explores the evolution of CWA § 303 and the positions that states, industry, and other stakeholders have taken on this method of regulation.

The author is a Professor of Law at Tulane University. The research assistance of Deborah A. Clarke, Tulane Law School '98, Danielle R. Cover, '97, and R. Brent Walton, '97 is acknowledged with gratitude.

[27 ELR 10329]

The Clean Water Act (CWA)¹ is changing course, again. Originally predicated on state programs to achieve water quality standards, the Act was overhauled in 1972² to require technology standards for point source dischargers, an approach that would go on to revolutionize environmental law.³ For the past 25 years, the U.S. Environmental Protection Agency (EPA) and its state counterparts have labored to adopt, apply and enforce technology-based limits on water dischargers, supplemented by additional standards for toxic pollutants⁴ and by massive funding for municipal waste treatment systems.⁵ By any measure, the technology approach has produced significant results. Industrial pollution has plummeted;⁶ municipal loadings have dropped, [27 ELR 10330] despite the doubling and more of the populations they serve.⁷ Water quality standards, meanwhile, lay buried in the books, largely forgotten, taken for dead.

In the 1990s, water quality standards regulation has returned to the Clean Water Act and its players like the appearance of Banquo's ghost. Driven forward by environmental litigation, the Act's vestigial requirements for upgrading polluted waters by the application of standards have sprung out of the courtroom to catch EPA and the states by surprise. More than 20 such lawsuits were pending at the time of this Article. Several had led to judgments ordering accelerated schedules for the inventory of polluted water segments and the development of cleanup plans. Many others were working their way toward settlement and consent decrees. EPA was issuing guidance and memoranda on water quality regulation as fast as they could be prepared. The Agency also convened a Federal Advisory Committee Act panel of state agencies, dischargers, and environmentalists in an attempt to reach a consensus on goals and timetables for the coming years.

It will take years, for the news coming out of these cases and the resulting inventories of the nation's waters is sobering. States that were listing a handful of polluted water bodies are now listing several hundred. Idaho went from 32 listed waters to 960, and climbing. Following the inventories come the cleanup plans for each waterway. EPA wants neither job. A few states seem ready to take up the challenge. Others are throwing up their hands and looking to Congress for relief. Environmentalists are spurring the action forward. Nonpoint sources, largely responsible for the pollution now being identified and largely immune to date from the requirements of the Clean Water Act, are openly nervous about facing tangible abatement requirements. Municipal and industrial sources are unhappy with the prospect of getting tagged with nonpoint sources' share. From all of these groups and more, EPA is seeking an accommodation.

At the bottom of these developments is an approach to pollution control—regulating dischargers by their impact on receiving water quality—that never really worked in the first place and is back for another try. One could have legitimate doubts about it this time as well. It is no small irony that the reason the Clean Water Act retained this approach, and directed its use for the upgrade of polluted waters, is that both the states and pollution dischargers insisted on it. Adamantly. In a very real sense, this is the ghost they wanted.

This Article will try to clarify the recent flurry of attention to water quality standards. It begins by reviewing the nature of water quality standards-based regulation, and then examines the evolution of § 303 of the Clean Water Act and the positions of states, industry and other stakeholders, at the time and subsequently, on this method of regulation. A subsequent article will describe the implementation of § 303, the recent explosion of litigation surrounding it, and the issues that are emerging as EPA, states, point and nonpoint dischargers, water users, and environmentalists wrestle it forward. Each article will offer its own conclusions, with the full understanding that this is a work in progress and there are no easy answers.

Water Quality Standards Regulation and TMDLs TMDLs

It is, perhaps, the oldest argument in environmental law. Assuming there is a consensus that some attention should be paid to the environment, there is no consensus on why, and, therefore, by whom and how. The root question is whether we are protecting the environment or managing it for our use.⁸ The question rose early to the national level in water pollution control.

The theory of water quality standards-based regulation rests squarely on human use.⁹ Water is meant to be used, as is any other natural resource, and one legitimate function is the assimilation of wastes. Decisions about water use should be made by people who use it, local communities, industries, and authorities. To control pollution, local authorities (1) determine the use they want, e.g., recreation or waste transport; (2) determine what biological criteria, e.g., four parts per million of oxygen, are needed to support this use; (3) assess the impacts of dischargers on these criteria; and (4) abate those discharges that cause the criteria to be exceeded. This was the nation's first strategy for pollution control, and it was an approach that states, municipalities, and industrial dischargers could all support. It relied on the preferences and decisions of local authorities, staffed agencies of water quality technicians, empowered water pollution control boards, and limited pollution controls to those that were needed to meet a proven problem. It was elegant, straightforward, and logical. Unfortunately, it did not work very well.¹⁰

By 1972, with reports on deteriorating water quality from every quarter, the nation was ready for a new strategy of pollution control. There was a new ethical premise, that water should simply be clean. There was a new political view, that [27 ELR 10331] pollution was a national problem and required federal intervention. And there was a new mechanism, technology standards. Retained in the Act, however, were the vestiges of a water quality standards-based program, codified in § 303.¹¹ While the initial provisions of § 303 amplified on the process of establishing state water quality standards, § 303(d) added a prescription for using these standards to upgrade waters that remained polluted after the application of technology-based requirements.¹² It has become a battleground.

In brief, § 303(d) requires three steps. The states will:

1. identify waters that are and will remain polluted after the application of technology standards;¹³

2. prioritize these waters, taking into account the severity of their pollution;¹⁴ and

3. establish "total maximum daily loads" (TMDLs) for these waters at levels necessary to meet applicable water quality standards, accounting for seasonal variations and with a margin of safety to reflect lack of certainty about discharges and water quality.¹⁵

States are to submit their inventories and TMDLs to EPA for approval. If EPA does not approve, the Agency is to promulgate them itself for incorporation into state planning.¹⁶ Under § 303(e),¹⁷ states are to develop plans for all waters that include, inter alia, (1) discharge limitations at least as stringent as the requirements of its water quality standards¹⁸ and (2) TMDLs.¹⁹

The TMDL process represents, in the short life of environmmental law, an ancient approach to pollution control. As this Article proceeds to discuss how these requirements evolved and, in a subsequent article, how they have been implemented, it is useful to understand their assumptions and their constituencies. From the very first hint of federal involvement in water pollution control 50 years ago, states and pollution dischargers have fought a running battle to defend and, where lost, return to the local primacy and utilitarianism of regulation by water quality standards. Whatever else might be said about the ineffectiveness and difficulties of this regulation in practice, this has been their Camelot, the land from which we were unceremoniously wrenched and to which we should return. To their dismay, we have.

The Rise of Water Quality Standards in Federal Law

In the beginning, and for the greater part of this century, water pollution control was based on principles of nuisance and the balance of competing uses by local water boards and occasionally local courts.²⁰ With a growing awareness of pollution following World War II, the federal government entered these waters only lightly and with the greatest deference to state and local prerogatives. Affirming the "primary responsibilities and rights of the states" in managing water quality,²¹ the Water Pollution Control Act of 1948²² provided money for state and municipal programs, the good offices of the U.S. Surgeon General to "coordinate" state and interstate programs, and a cumbersome abatement process for interstate pollution when it rose to the level of a public nuisance. Amendments authorizing the Surgeon General to promulgate water quality standards for interstate waters were proposed in 1956, and rejected on the grounds that many states were regulating through the use of these standards anyway; federal standards would confuse the issue and usurp state authority.²³ Federal legislation in 1956 and for the next 10 years was largely restricted to technical assistance and funding. Even in this role, the possible federal intrusion was making industrial dischargers anxious.²⁴

Water quality standards came into federal law with the Water Quality Act of 1965,²⁵ which required federally approved standards on interstate waters.²⁶ In its debates, Congress rejected a national policy of "keeping waters as clean as possible," a policy heavily criticized by industry, in favor of recognizing their function for "waste assimilation" and other uses.²⁷ It also considered, and rejected, a proposal for federal "effluent limitations," forerunners of the 1972 amendments to come.²⁸ For the moment, state water quality standards were at their apex, the center of the federal-state water pollution control program. States would have first option to develop interstate standards for federal review and approval.²⁹ States could gear these standards to accommodate a wide latitude of permissible uses, from drinking water supply, wildlife, and recreation to "agricultural, industrial, and other legitimate uses."³⁰ If a state did not act, however, the U.S. Secretary of Health, Education, and Welfare could adopt standards, after further consultation with the state and the opportunity for a full administrative hearing.³¹ Even this latter provision was opposed by the House, which advocated the milder sanction of precluding funding for states that failed to submit water quality standards;³² federal standards, the House argued, would lead to federal "zoning" and discourage state initiative.³³

[27 ELR 10332]

In part on their own initiative, but lured forward by increased federal funding in 1966 and the threat of federal intervention if water quality standards were not forthcoming, states moved slowly over the next five years to adopt standards for interstate waters.³⁴ The 1965 Act, however, said little about the content of these standards and less about what came next. The standards were to be based on "water quality criteria," and have a "plan for (their) implementation and enforcement."³⁵ By the turn of the 1970s, minimum standards—in the eyes of some observers, subminimum³⁶—had been approved for nearly all of the states. Taken alone, they might have satisfied Congress but the step that was to follow, the implementation plans, did not materialize.³⁷ Indeed, state implementation and enforcement exhibited a "preference," in the words of one commentator quite partial to state programs, for "education and informal persuasion to enforcement in attacking water quality problems."³⁸ It was this lack of progress in linking the standards to the actual abatement of pollution, coupled with the lightning-quick appearance of an alternative enforcement scheme under the federal Refuse Act,³⁹ that so discredited the water quality standards approach and led to its near—but not total—eclipse in 1972.

The 1972 Amendments: The States and the Regulated Community Make Their Case

The Federal Water Pollution Control Amendments of 1972⁴⁰ were not foreordained. The product of years of wrangling in both houses of Congress,⁴¹ they were resisted strongly by most states, by a wide spectrum of industry, and by high-level members of the Administration up to and including the President. They were enacted because of an unusual spectrum of bipartisan Senate leadership and strong public opinion. Throughout this fight, the Senate was ready for federal permits based on best available technology. The House was holding firm on state programs based on water quality standards. The legislative history of the Act has been well-written by, among others, the Congress itself and bears no repeating.⁴² What is relevant today is who was arguing for state water quality programs and what they represented about their ability to do the job.

New York Governor Nelson Rockefeller was the principal witness for state interests on the House bill. He complimented the House approach that "would leave the permit granting up to the States and limit federal intervention into [sic] interstate cases."⁴³ As between water quality or effluent standards, he continued, "I prefer the present system of water quality standards…. I think the present system is a good one, because we classify waters and set standards rather than determine arbitrary emission standards."⁴⁴ The governor's written testimony elaborated: "The states are in a far better position to know the numerous local and natural variables that must determine the final setting of detailed numeric standards for water quality."⁴⁵ While the federal government should set "general guidelines," states should be given a "reasonable degree of latitude" to take local and natural conditions into account in setting these standards, and the same latitude "in the implementation of State abatement orders."⁴⁶

Governor Rockefeller's statements were accompanied by the written testimony of nearly a dozen state governors and associations, all clearly concerned with retaining their programs and authority. The first was Governor Moore of West Virginia, Chairman of the National Governor's Conference:

In the past, States and their political subdivisions have taken the lead in environmental protection. The Governors of the States are increasingly distressed over Federal legislation which ignores the many remarkable achievements of the States and preempts their efforts to improve upon the past performances. [The Congress should be concerned with] strengthening state programs rather than their preemption.⁴⁷

Governor Exon of Nebraska:

As I understand the proposed legislation it will extend the Federal Government's regulations over water pollution control matters which are internal to the State. Already we have seen the 1899 Refuse Act bill used far [27 ELR 10333] beyond the original intent as a subterfuge to encroach upon the constitutional authority of the State. The proposed legislation appears to be one more unjustified step in the road to complete Federal takeover.⁴⁸

Governor Smith of Texas:

As now written, HR 11896 would remove the major responsibility for water pollution control from the states and place it at the federal level…. Modification of existing state standards by the EPA Administrator to make them more stringent in order to comply with the unrealistic 1981 goal could create more problems than it would cure.⁴⁹

Governor Burns of Hawaii:

There are instances in both HR 11896 and in S 2770 in which the language is inconsistent with the important responsibility which states must have to define and direct their water pollution control programs. Hawaii, as well as other states, possesses unique characteristics in terms of problems and opportunities. Blanket standards for effluent sources control cannot logically have the same performance in each state.⁵⁰

Governor Carter of Georgia:

The record should clearly show that the State of Georgia and Georgia people place a high priority on a quality environment…. We are in the midst of a water pollution abatement program that will, when fully implemented, restore the quality of our polluted streams to provide for multiple uses of our resources…. If the State is not provided an opportunity to conduct such a permit program without duplicative reviews by inexperienced bureaucrats who are reluctant to make decisions required for complex problems, the total pollution abatement program will be hampered.⁵¹

Governor Andrus of Idaho:

The virtual takeover by the federal government in the water pollution field by providing the Environmental Protection Agency (EPA) veto power over discharge permits issued by the states would effectively strip the states of the policy-making authority in this field. Establishing water quality standards and implementation programs to meet these standards can best be done at the state and local levels where personnel have full knowledge of local conditions and problems.⁵²

The National Legislative Conference concluded:

It [is] unwise for Federal legislation to preempt State efforts where these, in many cases, have been even stronger than Federal programs.⁵³

These state views were supported by an impressive array of water quality engineers and technocrats. In their view, state water quality standards regulation was not only politically optimal; it was logical, feasible, and in fact at hand. Leading the charge was the Ad Hoc Advisory Task Force to the National Governors' Conference, which included water pollution control managers from California, Washington, Illinois, Pennsylvania, New York, the Western States Water Council, and the New England Interstate Pollution Control Commission.⁵⁴ They stated:

The diversity of water quality control problems existing in the United States today poses problems that are not amenable to the simple, generalized solutions that generally flow from a centralized agency. State water quality control agencies have acquired a background of information, experience and extremities in dealing with the problems of their respective areas. This knowledge, experience and expertise should not be bypassed by the Administrator in the formulation of information and guidelines necessary for the achievement of the environmental goals of the senate bill.⁵⁵

In separate testimony, the Chairman of the California Water Resources Control Board, accompanied by the Chairman of the Water and Power Committee of the Los Angeles Chamber of Commerce:

Present water pollution law that assigns the primary responsibility to the States is, we believe, very sound in principle and should be expanded and strengthened…. National [technological] standards, such as "secondary treatment," become fixed and therefore eliminate objective judgment based on proven fact and not emotional rhetoric, particularly where complex environmental problems are involved. The ability to respond to changing social, economic, technological, and ecological constraints is mandatory we believe, if a water quality program is to be at all viable. The jurisdiction of the Federal Government should not extend beyond those waters included today; that is interstate and coastal waters….⁵⁶

The President of the American Water Works Association:

We would favor both water and water pollution legislation that provides that the states establish and enforce water quality standards, with the federal government stepping in only when the states fail…. This policy specifically calls upon the states "to provide water quality management, including pollution abatement and control."⁵⁷

The Director of the Dallas, Texas, Water Utilities Department:

I would point out to you that a blanket water quality standard and permit system which is not flexible or allows for the changes in the nature of streams cannot succeed…. Each stream must be evaluated and reevaluated in terms of its assimilative capacity…. I think EPA will confirm that in the final analysis the permit system will have to be based on pounds of pollution which is placed in the streams at various points and these will be based on the ability of the stream to assimilate the residual oxygen demand of such effluents.⁵⁸

[27 ELR 10334]

The Deputy Secretary for Environmental Protection and Regulation for Pennsylvania:

We are one of the states that utilize predictive mathematical models in the development of water quality implementation plans so as to do the best job possible in insuring that water quality criteria are met…. Our experience has been that some minimum treatment or effluent requirements are desirable but that, to meet water quality criteria, it is necessary to consider watersheds as a whole and, by mathematical modeling, determine how much treatment must be provided to protect water quality and leave room for future growth.⁵⁹

The Administration was represented by the Chairman of the President's Council on Environmental Quality (CEQ), accompanied by the Chairman of the Council of Economic Advisors (CEA) and attaching statements of two Professors of Civil Engineering at Manhattan College, New York. CEQ Chairman Train:

I would be truly amazed if the nation that has sent men to the moon, and achieved dazzling technological accomplishments in other areas of national concern could not within the next five years muster the ability to determine and predict relationships between what is discharged into the water and the resultant quality of the water…. Indeed, if we are unable to relate effluents to water quality accomplishment, it raises fundamental questions about all aspects of our water quality management efforts…. A permit program unrelated to impacts of discharges on water quality simply cannot work effectively.⁶⁰

CEA Chairman McCracken:

CEA is in agreement with the use of water quality targets appropriate to the conditions and expected uses of water in particular areas of the country. That is basic to the concept of relating the costs of programs to the benefits received from them. To abandon that concept for a nationally legislated standard which focuses on the level of pollutants removed and is unrelated to water quality uses and standards is economically unwise because it means a necessary misallocation of our inevitably scarce economic resources.⁶¹

Professor Thomann:

With the ability to relate effluent waste load to resulting water quality, the maximum allowable waste discharge to meet the objective can be estimated. Administrative and enforcement devices can be employed at this point. This procedure incorporates in a rational way the interaction between water utility and waste discharge recognizing the nature of the water body (e.g., size, configuration), the water quality goal and the amount of residue discharged.⁶²

Professor O'Connor:

What is most basically required is a comprehensive analysis of sources of pollution…. Given a set of water quality criteria, the model would analyze alternate engineering solutions to achieve this goal…. Examples of this model effort have been accomplished in many areas throughout the country in which the effects on water quality have been quantitatively determined in light of various water resources and waste treatment planning.⁶³

Representatives of American industry also strongly favored water quality-based regulation.⁶⁴ The Chairman of the American Iron and Steel Institute:

The Senate is now considering a bill that would make all streams in the country so clean that they would be suitable for fishing and swimming. This is a laudable objective, but it is unworkable and unrealistic in an industrial society like ours. We propose that the Committee specify in the bill it will shortly be drafting that the Environmental Protection Agency promulgate water quality standards for a specified water use. This could be done by classifying streams for existing uses, depending on local requirements. Thus, in highly industrialized areas, streams that are not used for public water supply could be classified for industrial use, with one set of quality criteria.⁶⁵

The Senior Vice President of the American Petroleum Institute:

There have been suggestions that water legislation follow the lead set in air legislation. We do not believe that the parallel is a valid one. Minimum national air quality standards for the protection of human health are a logical and necessary requirement. All of us must breath the air every single moment of the day no matter where we happen to be. We do not have to drink from any and all bodies of water, which presently serve a wide variety of uses. Rarely do we actually drink water directly from a river or lake. Nor must we swim in every available body of water…. This does not mean, of course, that we recommend being content with maintaining the quality of water at a stated minimum for a use category. Any state which determines that it is desirable to enhance water quality from agricultural use classification to recreational use classification should be free to take appropriate action.⁶⁶

Taken as a whole, this testimony constituted a powerful [27 ELR 10335] plea for the continuation of a federal program based on state water qualaity standards. For state governors, it respected state sovereignty. For state water quality managers, it respected their expertise. For academics, it was rational. For municipal and industrial dischargers, it avoided overkill. And for fiscal conservatives, it could be done within budget. Their strong and united message was that water quality standard-based regulation could be done, and was being done: models were out there all across the country. The states were ready and willing to go.

For the record, not all states agreed. The Governor of Minnesota, paired somewhat awkwardly before the House Public Works Committee with Governor Rockefeller, saw the merit, indeed the need, for uniform federal standards that would discourage a race to the bottom and the loss of industry to more accommodating states.⁶⁷ The National Farmers Union—perhaps feeling itself untouched by the issue—also testified strongly in favor of national effluent limits and strong federal enforcement: "Experience with interstate compacts in this country shows that more often than not they have been used as a smoke screen to ward off overdue action by the Federal government, rather than as a means of solving the problems over which they are given jurisdiction."⁶⁸ At one point, responding to testimony from the Los Angeles Chamber of Commerce, the Acting Chair of the House Public Works Committee, a body known for its sympathies with state interests through the debate, exploded:

We have heard that from the Chamber of Commerce from the very beginning, "Don't pass any Federal law; just let us keep it at home in the State." So consequently, we didn't get anything done. We left it to the States, year after year, and we didn't get a single thing but a bunch of nursery rhymes as to the Constitution, and we didn't get any clean water until the Federal Government insisted upon it and made some dollars available to the State for that use.⁶⁹

He could have been speaking for the Senate, whose report on prior federal water pollution control legislation read like a bill of indictment against a program based on state water quality standards.⁷⁰ The Senate found the standards weak, late, widely disparate, scientifically doubtful, largely unenforced, and probably unenforceable.⁷¹ The Senate's perspective would pass its chamber by a vote of 89-0,⁷² and would go on to sweep the House conferees. Given the views of the Senate leadership on water quality standards—and the views of many in the House as well—it was no miracle that federal technology standards prevailed. If there was a surprise, it was that water quality standards stayed alive.

Congress Disposes: § 303(d)

The Senate began work on a new federal water act in April of 1970.⁷³ By early 1971, it had a prototype bill in place and began eight days of hearings, leading by October of that year to S. 2770.⁷⁴ The Senate bill contained all the essential elements of the Federal Water Pollution Control Act (FWPCA)—its aspirational goals, technology standards, and permit and enforcement systems—save one: state water quality standards.⁷⁵ To the Senate leadership, and to Sen. Edmund Muskie (D-Me.) in particular, water quality standards had so utterly failed that they had no remaining role to play.⁷⁶ Environmentalists, however, cautious about resting the new Act on any one approach alone, secured an amendment that would reserve a role for water quality standards, although hardly an active one.⁷⁷ Under the Senate bill as amended, EPA would publish water quality criteria reflecting the "latest scientific information on factors needed" for restoring the nation's waters,⁷⁸ and, in a separate section, both the states and EPA were to prepare reports that would "correlate existing water quality with the water quality criteria";⁷⁹ the criteria would thus become an index rather than a driver for the abatement of water pollution. However, § 302 also authorized EPA to impose a more stringent discharge limitation where technology-based limits [27 ELR 10336] would interfere with the attainment of water quality suitable for fish, wildlife, and recreation.⁸⁰

Playing catch up from the start, the House did not begin its markup until November 1971.⁸¹ By this time, the Senate had passed S. 2770, and to state, administration, and industry representatives the mission now was to regain state primacy and the water quality standards program.⁸² The House, perhaps by its nature, was historically more influenced by state and industry views on environmental protection.⁸³ As the House Public Works Committee Chairman John A. Blatnik explained of his committee members:

They are all men of good intentions, but they get beat over the head by powerful interests back home. I won't mention any names, but say somebody is from South Carolina or Georgia, and the Georgia Power Co., gets after them…. You can't find finer men, or men of more integrity. But you can only go so far.⁸⁴

They were also by inclination more inclined to state authority, and the committee leadership, Republican and Democratic alike, supported the view that water should be regulated by local uses rather than by national effluent standards.⁸⁵ Speaker after speaker emphasized the capability of the states to do the job. Public Works Committee Chairman Blatnik:

To argue that State administration of State programs somehow weakens the legislation is to argue that the people in our State capitals, in our towns and cities across the country are not entitled to a voice in the conduct of their own affairs.⁸⁶

Congressman Roe:

Mr. Chairman, simply put, the amendment which we have just heard declares in loud, shrill tones that the States cannot be trusted…. I have had considerable experience working on this program at the State level as a cabinet officer in New Jersey, and I can attest to the fact that State officials are as capable as their counterparts in EPA. And they enjoy an advantage not shared by those who work in our Nation's Capital in that they are closer to the problems and, in many cases, have a better understanding of what has to be done.⁸⁷

Congressman Robison:

[H.R. 11896] retains the wealth of organization, expertise and experience that the individual States have built up over the years—while—proponents of a complete take over by the Washington bureaucracy would consign that wealth to the scrap heap.⁸⁸

Congressman Frenzel:

Some of us may be attracted to the "papa knows best" theory. Centralism always dies hard, I suppose, but if enough of us still believe in State land local governments—in their ability to solve local problems—we can, by passing this amendment, give our States the authority to solve their rightful responsibilities.⁸⁹

H.R. 11896, reported by the committee and passed by the House in March 1972, retained the emphasis on state water quality standards and deflected the Senate's approach by adopting the idea of effluent limitations but postponing their implementation until the completion of a study by a congressionally appointed National Water Commission. The House leadership was careful, however, in a climate of rising public demand for environmental protection, to characterize its approach as supplemental to, and indeed stronger than, the Senate bill. Rep. William Harsha (R-Ohio), the ranking Republican member of the House committee, pointed out that H.R. 11896 required the states to adopt water quality standards for intrastate as well as interstate waters which, in conjunction with effluent limitations, made it "imminently [sic] stronger than the bill before the other body."⁹⁰ He noted, further, that water quality standards would be controlling for any given discharger only "if they are more stringent than the effluent limitations" determined by best available technology.⁹¹ In these representations, he failed to note that technology limits would be postponed until after the National Water Commission study, after which, of course, anything might happen. The only certainty for the foreseeable future would be the continuation of a federal program based on state water quality standards.

In its efforts to make its water quality standards program more defensible, however, the House committee had added provisions that strengthened the 1965 Act in several significant ways. The first, noted above, was to extend the standards, under federal review and approval, to intrastate waters.⁹² A second was to require the states to submit a continuing planning process that would coordinate its pollution control efforts.⁹³ The third, a sleeper that lay low for the next 20 years, was § 303(d).⁹⁴

On its face, there was and is nothing remarkable about § 303(d). According to the House staff member who drafted it, § 303(d) was a conscious response to the perceived failings of the 1965 Act and to the barrage of criticism that state performance and water quality standards regulation were receiving from both the Senate and a strong minority of House members.⁹⁵ Representative Harsha, who would [27 ELR 10337] carry this end of the debate, knew that it would be a difficult sell to keep a states-only, standards-based approach in the Act; he needed both a rationale and a strategy that would work.⁹⁶ The rationale was that water quality standards would clean up waters which remained substandard after the application of technology-based limits. The strategy was (1) to involve both the states and EPA, and (2) to lay out the steps that anyone intending such a cleanup would logically take: identify the polluted waters, prioritize them, identify the maximum pollution loads they could take, and apply them.⁹⁷ To an environmentalist involved in the drafting of this section, this process was the key.⁹⁸ The 1965 Act had provided neither a mandate nor a blueprint for using standards to clean up polluted waters. Section 303(d) provided both.

The House committee report described § 303(d) with care. It recognized and ruled on the difficulties involved; they would not defeat the process:

The Committee heard extensive testimony during the oversight and legislative hearings to the effect that it is extremely difficult to apportion the discharge load from all point sources along a waterway or section of a waterway. However, testimony was also heard from the more experienced States that they already have this capability. The Committee feels that with appropriate support from the Administrator, the required analysis can be completed by the States in a timely fashion.⁹⁹

It also recognized the contributions of nonpoint sources; all sources would have to be abated:

Any required more stringent effluent limitations will be set on the basis of that reduction in the quantity and quality of the discharge of pollutants which would be required to make the total discharge load in the receiving waters from municipal and industrial sources consistent with water quality standards. This should not be interpreted to mean that such more stringent industrial and municipal effluent limitations will, in themselves, bring about a meeting of water quality standards for receiving waters. The Committee clearly recognizes that non-point sources of pollution are a major contributor to water quality problems.¹⁰⁰

It, lastly, recognized the need for implementation, through plans that include "effluent limitations and schedules of compliance at least as stringent as any required to meet any applicable water quality standard,"¹⁰¹ including the "total maximum daily load for pollutants in accordance with Section 303(d)."¹⁰²

It may be surprising, at first blush, that § 303, and in particular the prescriptive language of § 303(d), offspring of the House of Representatives, received no more attention in the House committee report or the House floor debates. The House hearings on H.R. 11896—2,343 pages in length¹⁰³—contain virtually no discussion of, and no disagreement over, the requirements of § 303(d).¹⁰⁴ That the process was, nonetheless, intended and deliberate is clear from both the manner of its drafting and its description in the committee report. Perhaps the best explanation for its minimal discussion is that the process was so obvious. Section 303(d) simply made the implicit explicit. It took the states at their word. States wanted this responsibility; they could now take the lead in cleaning up polluted waters. Here was how.

It would not persuade the Senate. Among the many differences at issue in the conference to reconcile the Senate and House bills, the role of state water quality standards versus technology standards was the crux of the matter. The Senate would not yield on the technology approach, but it would have to make a tradeoff. House § 303 with its water quality criteria and standards, total maximum daily loads for polluted waters, and implementation plans would be retained, although relegated to a backup role where technology standards were insufficient to meet water quality goals.¹⁰⁵ House staff saw § 303 as [27 ELR 10338] providing a "game plan for the next generation."¹⁰⁶ The Senate was less sanguine: in the words of one Senate staff member, "We didn't take it seriously and thought it would be foolish for EPA to waste time and money to implement it."¹⁰⁷ Senator Muskie, principal author of the Senate bill and Chair of its Public Works Committee, was equally direct, telling the EPA Administrator to "assign secondary priority" to § 303 when it came to allocation of resources in the years ahead.¹⁰⁸ EPA—and the states, whose program, in essence, this really was—would take this advice to heart.

The Backlash: Congress Stays the Course

The passage of the 1972 Amendments did not end the water quality versus technology standards debate. Over the next few years, two prestigious national commissions would issue reports that reflected, inter alia, the continuing preference of states and the development community for a state-based water quality standards approach.

The Commission Reports

The first such report was produced by the National Water Commission, created by Congress in 1968 and authorized to study a range of water policy issues, including pollution.¹⁰⁹ The seven commissioners had backgrounds in public utilities, agribusiness, and state water management.¹¹⁰ The commission's conclusions on pollution control were staffed and edited by a separate panel chaired by the Deputy Commissioner of the New York State Department of Conservation with representatives from water departments in California, Ohio, and Pennsylvania.¹¹¹ One is where one comes from, and the commission's final report, issued in 1973, reads like a cry of anguish from states and industry against the onset of a federal, technology-based program. Asking itself at the start, "When is water polluted?" the commission answered, in italics that emphasized the strength of its feelings:

Water is polluted if it is not of sufficiently high quality to be suitable for the highest uses people wish to make of it at present or in the future. Such uses should be determined by responsible public authorities.¹¹²

These responsible authorities were, furthermore, local.¹¹³ The "major advantage" of water quality standards was their "adaptation … to a wide variety of local needs and conditions" which should not be "lost through misguided desires for nationwide, or even statewide uniformity."¹¹⁴ Granted, state water quality programs had been slow in developing, but the administrative machinery and technology for a standards-based program was now in place. State water quality standards were up to snuff, and "scientifically-based predictive models" for making water quality impact calculations and relating them to dischargers were both "available" and "rapidly developing."¹¹⁵ As for enforcement, "recent studies of state and local pollution control programs documented a new resolve to regulate forcefully and comprehensively."¹¹⁶ The 1972 Amendments made a strategic error in superimposing a federal program; "sound political theory supports the notion that the level of government closest to the problem should deal with it, if competent to do so."¹¹⁷ Congress should reverse its course and "reaffirm its commitment to the water quality standards approach and economically presentable minimum treatment requirements."¹¹⁸ Whatever the merits of these conclusions, they constitute a powerful statement from state agencies and the regulated community that pollution control by water quality standards was workable and that states were ready to go forward with the job.

By 1973, of course, the views of the National Water Commission were about two years behind the curve. Congress had opted for technology standards as its lead vehicle. As described above, however, Congress also retained the water quality approach and created yet another commission to study the implementation of the Act and determine if any "mid-course correction" were necessary.¹¹⁹ The National Commission on Water Quality (1976 Commission) differed from its predecessor in its exclusive focus on water quality, and in its composition: chaired by the Vice President of the United States (and former Governor of New York, Nelson Rockefeller), 10 of its 15 members were also members of Congress, two represented industry, and one represented [27 ELR 10339] a state pollution control agency.¹²⁰ Their divergence of views is instructive.

The 1976 Commission had considerable difficulty reaching consensus,¹²¹ and its report contained the separate concurring-in-part and dissenting-in-part views of no fewer than 13 of its 15 members.¹²² Of its six principal recommendations, the two bones of contention were whether the Act's goals should be retained and whether its technology standards should go beyond the best practicable technology levels to best available technology (BAT). Overall, the commission recommended a new goal of "conservation and reuse"¹²³ and a delay in the adoption of BAT standards,¹²⁴ over the vigorous dissents of Senator Muskie, Sen. Howard Baker (R-Tenn.), and others;¹²⁵ Governor Rockefeller appears to have won his point, if a little late in the day. In a Letter and Supplemental Views, S. Ladd Davies of the Arkansas Department of Pollution Control and Ecology, the sole designated state representative on the commission, agreed "generally" with the majority, but then added his own perspective:

Personal preference, although probably prejudiced and biased, would dictate the use of Water Quality Standards since I am strongly opposed to treatment for treatment sake. In water quality limited waters, water quality standards are the controlling factor, not effluent limitations. Effluent limited waters provide some flexibility in utilizing the waters as a resource for providing assimilative capacity for stabilizing certain waste.¹²⁶

Assuming that Mr. Davies was a fair representative of state views at the time, states continued to view, and were willing to argue for, a return to state water qualitystandards as the proper basis for the national program.

These recommendations did not persuade Congress. When Congress revisited the Act in 1977, it modified only slightly its approach to technology standards, tightening the controls on toxic discharges and loosening them for conventional ones.¹²⁷ Certain conventional-but-toxic pollutants could also qualify for less stringent technology controls, but with a floor at meeting water quality standards in any given waterway.¹²⁸ This small concession to water quality impacts was as far as Congress was willing to go. But there was always the possibility of a more friendly administration.

The New Federalism, 1982

The next important movement was not what Congress did but what Congress refused to do, and then threatened to do, in the early 1980s. It was a dramatic showdown between a new administration in Washington, urged forward by state agencies and regulated industry, and a Congress that still remembered the lackluster showing of the FWPCA. At issue was a return to water quality standards.

Under the banner of "New Federalism,"¹²⁹ in January 1982 the incoming EPA Administrator announced that, while the Clean Water Act was "fundamentally sound" and "without a need for major or extensive revision at this time," the Agency would "suggest changes only in those few areas where obvious statutory problems have emerged."¹³⁰ An EPA issues paper outlined what those "few areas" might be by suggesting, inter alia, waivers from treatment requirements for communities that discharge sewage into "major rivers where that discharge is diluted," and waivers for industrial dischargers "where there would be no negative impact on the quality of the receiving waters."¹³¹ More globally, the paper asked, was the "continued development" of effluent guidelines "without respect to receiving water quality the wisest course, or should the Act be changed to allow consideration of receiving water quality?"¹³² This was a question that states and industry were ready to hear.

Sensing that such a virtual repeal of the 1972 Act was not in the cards on Capitol Hill, EPA moved at the same time both to return as much of the action to water quality standards as possible, and to relax its requirements for water quality-based decisions. Speaking to an organization of state water pollution agencies, EPA's Assistant Administrator for Water declared that the Administration "strongly supports the water-quality based approach to regulating pollutants."¹³³ It was time to "reassess the appropriateness of technology-based standards" that "offend one's sense of fair play and stifle the intellectual curiosity that has made this nation the most advanced technological society on earth."¹³⁴ As for the standards themselves, they had been hampered by "the nature of federal involvement, the role and technical validity of water quality criteria, inadequate consideration of economic impacts and unrealistic use designations."¹³⁵ The answer, an agency official told the Water Management Association of Ohio, was "greater flexibility" for the states.¹³⁶ The new EPA was playing to a state audience, and the script would be new water quality regulations.

[27 ELR 10340]

A January 1982 EPA draft proposed regulations that would provide considerable flexibility indeed.¹³⁷ Among the many proposals were those for downgrading existing uses, permitting degradation of water quality within existing uses, eliminating protection for outstanding "natural resource waters," allowing for "site-by-site" rather than statewide water quality criteria, and requiring benefit-cost analyses, for the standards themselves.¹³⁸ These proposals were enthusiastically endorsed by the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) providing "a more workable framework" for state regulation on a site-specific basis.¹³⁹ In fact, states had played a lead role in developing the proposed revisions and, according to EPA's Assistant Administrator for Water, a subcommittee of ASIWPCA had "revised five drafts of the regulation and met with EPA on numerous occasions."¹⁴⁰ ASIWPCA was particularly intent on retaining state authority over nonpoint source pollution, and over water quality monitoring and assessments; state staffs were "knowledgeable about water quality impact assessments" that require a "high degree of technical and professional judgment."¹⁴¹ The undeclared but obvious predicate to this argument was, once again, that water quality impact assessments and regulation was a drill the states were perfectly capable of executing. This said, ASIWPCA's Executive Director also cautioned that "there must be continued recognition that fishable/swimmable water quality may not always be attainable due to natural conditions or affordability."¹⁴² Not surprisingly, these positions were endorsed with no less enthusiasm by the Chemical Manufacturers Association ("the standards [would] reflect the realities of site-specific conditions"),¹⁴³ Union Carbide, and the American Mining Congress.¹⁴⁴

Congress was not pleased. Nor was it silent. It summoned EPA officials to a steady grilling on their philosophies and proposals, returning again and again to the weaknesses of state controls.¹⁴⁵ Despite EPA representations that state agencies had been vigorous in cleaning up water pollution and that they now had water quality regulation technology at their fingertips,¹⁴⁶ the Agency's proposals were characterized in House hearings as "dangerous" and "an absolute disaster."¹⁴⁷ In April 1983, five senior members of Congress wrote EPA urging that its proposals be scrapped,¹⁴⁸ and the Senate threatened to codify its own version of water quality regulations.¹⁴⁹ The Agency backed down. By October 1983, EPA was under new management and had written revised regulations that retained stringent requirements for existing uses and water quality.¹⁵⁰ For the moment, the fight was over but the states and the regulated community had showed their hand, insisting once again that state water quality standards were a ballgame they could and should play. There was no mention of the fact that nothing in the Clean Water Act prevented them from playing it right then, to the extent that it would lead to water quality improvements. Or that, in fact, § 303(d) required them to do so.

The Water Quality Act of 1987

Undeterred by their reception in Congress to date, states continued to urge modifications to the Clean Water Act that would increase their authority and flexibility to regulate based on ambient water quality. In 1985, the ASIWPCA proposed amendments to allow the substitution of "narrative" water quality criteria for numerical criteria, and the elimination of permits for stormwater discharges where they would not "impair designated water uses."¹⁵¹ Against continuing state and industry complaint, however, Congress would hold the line on downgrading, antidegradation and relaxation of the standards themselves. But by 1986, a remarkable consensus was also growing among the states, Congress, environmentalists, and industry over improvements to the Clean Water Act. Front and center among them was a return to water quality standards for the regulation of two chronic and unsolved problems of the national pollutant discharge elimination system program: toxic and non-point source pollution.

Fifteen years after the FWPCA of 1972, it was clear that BAT controls on limited categories of industries for a limited (if large) number of toxic pollutants was going to be insufficient for waters impacted by multiple dischargers, some technology-limited and some not, and by multiple [27 ELR 10341] pollutants, some regulated, some not.¹⁵² News from the states themselves showed toxic pollution to be pandemic, with more than 124,000 stream miles, a half million acres of lakes and nearly 1,000 square miles of estuaries showing "acute" toxic problems,;¹⁵³ information on toxicity in Boston Harbor, Puget Sound, and other high profile water-bodies was even more disturbing.¹⁵⁴ Expressing its concern with the "historic ineffectiveness of the water quality approach,"¹⁵⁵ the Senate proposed to upgrade technology limitations for toxins and expand the categories of industries to which they applied.¹⁵⁶ In keeping with its historic perspective, the House proposed to upgrade toxic water quality criteria, and to address toxic "hot spots" through permit revisions based on water quality standards.¹⁵⁷ The bills converged as they evolved, and by the time the Administrator of EPA, his eyes dutifully focused on their budgetary impact, testified that additional toxic controls were "neither necessary nor desirable,"¹⁵⁸ the momentum had passed him by.

The Water Quality Act of 1987 had something for everyone concerned with toxic pollution.¹⁵⁹ One section provided for new rounds of technology standards.¹⁶⁰ Another called for the development of numerical (which all knew meant, enforceable) toxic water quality criteria.¹⁶¹ The third, of most relevance to this Article, § 304(l), provided a blue-print with a tight, five-year timetable for the accelerated cleanup of toxic hotspots.¹⁶² The blueprint looked familiar: states would (1) identify and list toxic polluted waters,¹⁶³ (2) identify each point source of toxic pollutants into these waters and the loadings from each source,¹⁶⁴ and (3) prepare an "individual control strategy" (ICS) achieving toxic standards for each listed water through additional permit limitations.¹⁶⁵ If states did not execute, as in § 303(d), EPA would.¹⁶⁶ This was, of course, the same water quality-upgrade process that states were supposed to be performing under § 303(d), but that had been shelved in the face of other priorities; the hotspot ICSs were TMDLs, limited to point sources and toxins. Environmentalists supported the bill.¹⁶⁷ ASIWPCA supported the bill: the technology for water quality was at hand, it said.¹⁶⁸ The pulp and paper industry said likewise.¹⁶⁹ With a cheery enthusiasm perhaps influenced by the fact that the Agency perceived it as a program that, for a change, the states were going to have primary responsibility for implementing, EPA's Deputy Assistant Administrator for Water stated that whatever problems were experienced in the past with water quality-based permitting, "we've learned something in the last 20 years." She explained, "Our monitoring technology is much better than it was 20 years ago … we've got a lot of information we didn't have 20 years ago."¹⁷⁰ In sum, "the combination of the much better information and the much better permitting and enforcement base means that I think we have a chance we didn't have then."¹⁷¹

In fact, § 304(l) delivered a substantial number of new toxics controls, along with some lessons for § 303(d). There was an enormous variation in state responses to the requirements for explicit numerical water quality criteria. Some states responded quickly; others, three years after passage of the amendments, still had no aquatic life criteria for priority pollutants.¹⁷² The criteria adopted showed even greater variety, with permitted concentration levels for certain toxins more than 10,000 times as protective in one state than another.¹⁷³ The FWPCA experience of 20 years earlier remained: for dischargers and for the environment, water quality standards regulation would mean a highly uneven playing field.

Instructive and new, however, was the pace and output of the hotspot offense. Under prodding from environmental groups and against resistance from affected industries, EPA put states on aggressive timetables to identify toxic-polluted waters and propose ICSs.¹⁷⁴ Within the two-year statutory deadline, all but one state had submitted lists that, in the aggregate, identified nearly 500 toxic polluted waters (EPA would add 100 more), and more than 750 facilities contributing to their pollution.¹⁷⁵ By July 1994, states had converted 588 ICSs into permit limitations, with another [27 ELR 10342] 120 identified as outstanding.¹⁷⁶ As of 1997, the game all but over, more than 675 ICSs had been completed under the toxic hotspot program.¹⁷⁷ No records are available on the quality of these ICSs, or the pollution loadings actually abated under this program. One has to assume, if only by their number and by the vigor with which some dischargers resisted the process,¹⁷⁸ that in at least some cases the reductions were significant. If this conclusion is sound, then the toxic hotspot process provides some evidence that—at least for specific pollutants and for point source dischargers—water quality impact assessments could be made, traced to sources and abated.

The 1987 Amendments provide no such evidence, yet, for the abatement of nonpoint source pollution. By the mid-1980s it had also become apparent to Congress and everyone else that, as much progress as had been made in abating point source pollution generally, nonpoint sources were outstripping these hard-won (and expensive) gains.¹⁷⁹ Both state and EPA reports identified nonpoint sources (e.g., farm run-off, municipal run-off, clearcuts, and logging roads) as a major—and growing—cause of water pollution nationwide.¹⁸⁰ A 1972 program to address this type of pollution through state and watershed planning under § 208 of the CWA had produced volumes of studies and no measurable improvement.¹⁸¹ In its 1984 Water Quality Inventory, EPA listed several reasons for this lack of progress, among them the diffuse nature of nonpoint sources, difficulties in tracing pollution to sources, and the lack of baseline data on stream conditions.¹⁸² Not mentioned, perhaps out of tact, was the more fundamental political difficulty of dealing with agriculture, sylviculture, and municipalities.¹⁸³

With support, again, from both the states and the environmental community and, again, over opposition from the Administration ("experience argues against a federal responsibility in non-point source control implementation" which involves "site-specific conditions and sensitive land-use issues"),¹⁸⁴ Congress added § 309 to the Act to fund and stimulate state nonpoint programs.¹⁸⁵ At first blush, this process, too, looked familiar. States would prepare reports to: (1) identify waters polluted by nonpoint sources,¹⁸⁶ (2) identify nonpoint sources to these waters,¹⁸⁷ (3) identify management practices applicable to these sources,¹⁸⁸ and (4) prepare a management program¹⁸⁹ for EPA approval.¹⁹⁰ Here, however, the similarities to the programs under §§ 303(d) and 304(l) end. The nonpoint management plans could include regulatory or nonregulatory methods such as training, demonstration projects, and financial assistance.¹⁹¹ There were no standards or performance criteria; no abatement had to happen.¹⁹² There were, further, no consequences if no management planning happened at all.¹⁹³ Unlike TMDLs and ICSs, the federal government would not step in.¹⁹⁴ This was the epitome of a voluntary program, and it produced about the same results as its predecessor had in 1972: a volume of studies, a number of voluntary programs, and little noticeable cleanup of nonpoint source pollution.¹⁹⁵

The relative success of the 1987 Act in addressing toxic pollution through water quality standards, and its failure to come to grips with nonpoint pollution through a similar-looking strategy, carry an important message for the improvement of water quality in the late 1990s and beyond. As user-friendly as voluntary approaches to pollution control are, for pollution control to work something should happen when it does not. Spurred forward by the need to [27 ELR 10343] act because otherwise the federal government would, states adopted toxic water quality criteria and developed control strategies for toxic hotspots in a surprisingly short period of time. Without a similar spur, nonpoint controls—even though separately funded—have languished. On the ground, face to face with a source, pollution control is hard and, without technology-based limitations to support them, nonpoint sources are the hardest of all. This lesson would soon lead to pressure from another quarter: § 303(d).

The Argument Continues

And so the Clean Water Act moved into the 1990s, its federal technology standards working significant reductions in pollution discharges, its state water quality standards, with a few notable exceptions, a distant and lightly attended second. As the Act came up for reauthorization in 1992 and 1993, the lead vehicle was S. 1114,¹⁹⁶ which provided another, 1987-like menu for strengthening both the technology and water quality programs, and for eliminating the discharge of bioaccumulative toxins altogether.¹⁹⁷ The water quality provisions proposed to upgrade and standardize state water quality criteria and the flow and mixing zones through which these criteria were applied to discharge permits; EPA criteria would be presumed applicable unless a state could show cause for departure.¹⁹⁸ The net effect would have been a more level playing field for water quality-based regulation, but a federal machine would do the leveling.

The states were not pleased. On July 1, 1993, the ASIWPCA testified on S. 1114, largely in opposition, and number one on its agenda were the water quality standards provisions.¹⁹⁹ The bill went "too far[,] interfering with state decision making authority."²⁰⁰ States needed "flexibility to develop WQS, tailored to meet individual hydrology, geology, topography, ecosystem and climate considerations."²⁰¹ A top-down approach "inhibits innovation and thwarts aggressive and/or creative approaches" which would lead to national improvements.²⁰² This needed flexibility included the substitution of "narrative" criteria (e.g., "no toxics in toxic amounts," "no unreasonable adverse effects on aquatic life") for numerical criteria (e.g., 0.015 milligrams per liter of zinc), relaxation of minimum standards of "fishable/swimmable" for the nations waters, and relaxation of the antidegradation policy.²⁰³ This same flexibility should be provided for nonpoint source programs, and requirements for technology-based, nonpoint controls should be repealed from the Coastal Zone Management Act as well.²⁰⁴ Water quality management was the state's game; EPA should step out of the way and let them play.²⁰⁵

S. 1114 was overtaken by the elections of 1994, and the next proposed amendments to the Clean Water Act would look very different indeed. The lead this time came from the House, and H.R. 961 was the Contract With America's first priority for environmental law reform.²⁰⁶ Industrial dischargers, state agencies, and agricultural interests liked this bill, because they largely wrote it.²⁰⁷ Echoing a catch-phrase of the 1990s, the U.S. Chamber of Commerce stated that, among its greatest concerns with the Clean Water Act was its "departure from sound science" and its "unrealistic" and "rigid" numerical standards.²⁰⁸ H.R. 961 introduced realism to the Act through a benefit-cost requirement for all water quality criteria and standards.²⁰⁹ States were encouraged to set their standards based on "economic and social considerations" (not further defined),²¹⁰ and to publish a "cost of compliance" analysis of all new criteria;²¹¹ EPA would need to certify that each of its standards "maximizes net benefits to society" (not further defined).²¹² Specifically targeting TMDLs, states would be allowed to set their own rates of progress with an end date for load allocations by the year 2016.²¹³ Nonpoint sources would be addressed through a "Bi-Partisan Initiative" of federal funding for nonregulatory approaches, stretched out over the next 20 years.²¹⁴ To the ASIWPCA, testifying largely in favor of H.R. 961, this approach in particular represented a "major break through" in nonpoint source management, giving states "broad flexibility" while retaining their "accountability."²¹⁵ More broadly, the states were in the "best position to define the standards and other regulatory controls" needed to achieve the goals of the Act; the states had the "vast majority of the monitoring data, stream surveys and other information" necessary for standards development.²¹⁶ [27 ELR 10344] The proper federal role was technical support, and more money.²¹⁷

Does the argument ever change? H.R. 961 passed the House, but failed in the Senate and—more dramatically—before the general public.²¹⁸ Within a year it had been labeled by some of its own proponents a poster child for how not to pass environmental legislation. But the issues both H.R. 961 and S. 1114 addressed, albeit quite differently, remain. At their heart is where the Clean Water Act goes next, beyond a program applying technology limitations to industrial and municipal dischargers. Congress already spoke to this question, as early as 1972. It is, of course, why the House drafted § 303(d) and held onto it throughout the conference. Section 303(d) was going to be the program for the "next generation." We are now that generation.

Reflections on Water Quality Standards Legislation and Its Stakeholders

Water quality standards regulation has a 25-year history in federal law, and a longer history yet in some state programs. As national attention on water pollution intensified, states resisted federal supervision of their standards in 1965, and then fought a hard battle to retain these standards in the 1972 Amendments, which became the Clean Water Act. Water quality-based permitting was the last bastion of state authority in a program that was otherwise going rapidly to EPA. State governors, state agency heads, state water quality engineers, municipal authorities, and their representatives in Congress expressed their confidence—witness by witness, over and over—that states had the technology and the expertise to regulate by water quality standards. They could do this job, if only the federal government would let them.

Industry agreed with this position, although one suspects that industry may have been motivated less by confidence that water quality standards regulation would work as by confidence that it would not. Several administrations agreed, although one suspects they were motivated more by budget considerations, and by relief that this was one less chore for the federal government. Whatever their motives, both industry and federal administrators added their opinions that water quality regulation was something the states could and should be doing.

Congress agreed, barely. It retained state water quality-based regulation, but in a fashion that has gone largely unnoticed in the literature and, until recently, almost equally unnoticed in practice. Congress did not simply retain the underperforming water quality program of the 1965 Act. In § 303(d), it completely rewrote the program, and in the rewrite spelled out a blueprint for compliance that is as specific in its detail as any other provision of the Act. While there was no debate on § 303(d), the provision was no sleeper to either the House or the Senate. Water quality standards were the House's major issue, and the House report describes the § 303(d) process with clarity and at some length. After that recitation, what was there really to debate? If a water quality-based program was going to be retained, this was, and remains, about the only way it could work.

For the next 25 years, states, industry, and various administrations have taken their runs at the Clean Water Act, and a consistent theme from these quarters has been the impropriety of "top down" controls, the wastefulness of "treatment for treatment sake," and the need to place more reliance on water quality-based regulation and provide more "flexibility" for state implementation based on the knowledge of local conditions. Whatever the merits of these arguments, they sidestep an important aspect of the Clean Water Act, which is its very explicit reservation of state authority to control water pollution more protectively than the federal program. Nothing in federal law prohibits a state from abating any discharge it wants, virtually any way it wants. This being so, and not surprisingly, the state arguments for greater flexibility invariably center on permission to relax criteria, use standards, testing, and monitoring requirements. Both implicit and explicit in these state, industry, and, at times, administration arguments are their representations that water quality-based regulatory programs make sense and that the states are well qualified, indeed uniquely qualified, to conduct them. Which brings this discussion to a great disconnect.

For the past 25 years, states and their adherents in and out of Congress have been arguing for recognition of their ability and authority to regulate based on water quality standards. And for the same 25 years states have had not only the authority under § 303 to do so, they have had a rather well-prescribed mandate to do so. They did not do so. By and large, they did not do anything called for under § 303(d): (1) they did not submit inventories of polluted waters, (2) they did not prioritize these waters for cleanup, (3) they did not promulgate TMDLs, and (4) they did not incorporate them into point source or nonpoint source discharge controls. They did not do it in the 1970s. They did not do it in the 1980s. They did not do it at the outset of the 1990s, nor did EPA—until a series of citizen suits rocked EPA and the states into a hasty rereading of § 303(d) and the current scramble to comply.

These compliance efforts are at an early stage, but they could have a dramatic impact on the course and future of the Clean Water Act. The § 303(d) litigation and its aftermath are the subject of an ensuing article.

1. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607. Technically the "Federal Water Pollution Control Act," in 1977 Congress ceded to common usage and recognized the "Clean Water Act" as well. See Clean Water Act of 1977, Pub. L. No. 95-217, § 2, 91 Stat. 1566 (1977) ("This Act may be cited as the 'Federal Water Pollution Control Act' (commonly referred to as the Clean Water Act.)").

2. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended in scattered sections of 33 U.S.C.).

3. The CWA's technology standards approach has been subsequently adopted by the Clean Air Act, 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618 (technology standards for stationary sources in nonattainment areas, id. § 7503, ELR STAT. CAA § 173); by the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012 (technology standards for land disposal, 51 Fed. Reg. 40572 (Nov. 7, 1986)); and the pollution control programs of the European Union, see Council Directive 76/464, 1976 O.J. (L 129/23) (technology standards for toxic water discharges). For a discussion of the coalescing of environmental law around technology standards, see Oliver A. Houck, Of Bats, Birds and BAT: The Convergent Evolution of Environmental Law, 63 MISS. L.J. 403 (1994).

4. Additional standards for toxic substances are found in §§ 303(c)(3), 304(l), and 307 of the Act. 33 U.S.C. §§ 1313(c)(3), 1314(l), 1317, ELR STAT. FWPCA §§ 303(c)(3), 304(l), 307. For a discussion of these standards and their effectiveness, see Oliver A. Houck, The Regulation of Toxic Substances Under the Clean Water Act, 21 ELR 10528 (1991).

5. Between 1972 and 1985, the federal government spent more than $ 40 billion for the construction of municipal sewage treatment systems. See OFFICE OF TECHNOLOGY ASSESSMENT, U.S. CONGRESS, WASTES IN THE MARINE ENVIRONMENT 209 (1987). This sum was topped by another $ 9.6 billion through 1990, followed by an $ 8.4 billion revolving loan fund. 33 U.S.C. §§ 1287, 1387, ELR STAT. FWPCA §§ 207, 607.

6. Between 1987 and 1990 alone,during which technology standards for toxic pollutants were implemented for many industrial categories, direct toxic discharges dropped from 417 to 197 million pounds per year, and discharges into municipal sewage systems from 610 to 447 million pounds. ROBERT W. ADLER ET AL., THE CLEAN WATER ACT 20 YEARS LATER 18 (Natural Resources Defense Council 1993).

7. Between 1970 and 1987, the U.S. population served by sewage treatment plants rose from 40 to 74 percent; this treatment reduced municipal discharges of organic pollutants by 46 percent. Id. at 14.

8. The ethical dimensions of these points of view are explored in, inter alia, MICHAEL E. ZIMMERMAN, CONTESTING EARTH'S FUTURE (University of California Press 1994), and sources cited therein. They are seen in the writings of American authors as early as Henry David Thoreau, came to the fore in the rupture between Gifford Pinchot and John Muir over "multiple-use management" of the nation's forests, see STEWART L. UDALL, THE QUIET CRISIS 97-125 (1963), and crop up constantly in environmental and administrative law in concepts ranging from standing-to-sue to the designation of wilderness areas. They would be seen again in the sharp division between the House and the Senate as the Clean Water Act evolved. See infra text accompanying notes 70-105.

9. This description of water quality-based regulation is taken from N. William Hines, Nor Any Drop to Drink: Public Regulation of Water Quality Part I: State Pollution Control Programs, 52 IOWA L. REV. 186 (1966). For a full discussion of the theory, see id.; see generally 2 WILLIAM H. RODGERS, ENVIRONMENTAL LAW: AIR & WATER (1986).

10. The failures of water quality-based regulation under the federal Water Quality Act of 1965 have been fully described by Congress, see infra note 70; the courts, See Weyerhauser Co. v. Costle, 590 F.2d 1011, 9 ELR 20284 (D.C. Cir. 1978); and commentators, see RODGERS, supra note 9, at 242-52. No step in the process worked; use determinations were highly variable, leaving protective states at a distinct disadvantage, and a race-to-the-bottom; information on those biological conditions necessary to support aquatic life was spotty and insufficient; impact assessment was equally imprecise, and the chore of tracing impacts from multiple-dischargers was overwhelming; and abatement in the face of these uncertainties was ephemeral and rarely achieved. Id. For two differing views on the continuing usefulness of water quality-based regulation, compare Jeffrey M. Gaba, Federal Supervision of State Water Quality Standards Under the Clean Water Act, 36 VAND. L. REV. 1167 (1983) (urging abandonment of the effort as futile), with William F. Pedersen, Turning the Tide on Water Quality, 15 ECOLOGY L.Q. 69 (1988) (urging greater emphasis on water quality standards).

11. 33 U.S.C. § 1313, ELR STAT. FWPCA § 303.

12. Id. § 1313(d), ELR STAT. FWPCA § 303(d).

13. Id. § 1313(d)(1)(A), ELR STAT. FWPCA § 303(d)(1)(A).

14. Id.

15. Id. § 1313(d)(1)(C), ELR STAT. FWPCA § 303(d)(1)(C).

16. Id. § 1313(d)(2), ELR STAT. FWPCA § 303(d)(2).

17. Id. § 1313(e), ELR STAT. FWPCA § 303(e).

18. Id. § 1313(e)(3)(A), ELR STAT. FWPCA § 303(e)(3)(A).

19. Id. § 1313(e)(3)(C), ELR STAT. FWPCA § 303(e)(3)(C).

20. For comprehensive histories of local, state, and federal efforts toward water pollution control, see Hines, supra note 9; N. William Hines, Nor Any Drop to Drink: Public Regulation of Water Quality Standards Part III: The Federal Effort, 52 IOWA L. REV. 799 (1967).

21. See Water Quality Act, ch. 758, tit. III, § 303, 62 Stat. 1155 (1948) (codified as amended in scattered sections of 33 U.S.C.).

22. Id.

23. See Hearings on S. 890 & S. 923 Before a Subcomm. of the Senate on Public Works, 84th Cong. 45 (1955); see generally Hines, supra note 20, at 814, 815.

24. See Hearings on H.R. 11714 Before the Subcomm. on Rivers and Harbors of the House Comm. on Public Works, 85th Cong. 14-15 (1958). The National Association of Manufacturers advocated the termination of federal monies and the limitation of federal assistance to research and advice. Id.

25. Pub. L. No. 89-234, 79 Stat. 903 (1965) (codified as amended in scattered sections of 33 U.S.C.).

26. See id.

27. S. REP. NO. 88-649, at 1 (1963). For a discussion of industry criticism, see H.R. REP. NO. 86-294, at 6 (1959).

28. S. 4, 89th Cong. (1965); H. CONF. REP. NO. 89-1022 (1965).

29. See supra note 25.

30. See id.

31. See id.

32. See H.R. 215, 89th Cong. (1965).

33. See H.R. 1885, 88th Cong. (1964).

34. The pace and rigor with which the states moved was the subject of some discussion. See U.S. SENATE COMM. ON PUBLIC WORKS, 93RD CONG., 2D SESS., A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972 (1972) [hereinafter A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972]. By 1972, all states had at least submitted water quality standards for EPA approval. See HARVEY LIEBER, FEDERALISM & CLEAN WATERS 13 (1975). In addition, 45 states had instituted some form of permit system for industrial dischargers. See id.

35. Supra note 25.

36. See LIEBER, supra note 34, at 14 (quoting Gus Speth, Natural Resources Defense Council (NRDC)).

37. RODGERS, supra note 9, at 242 ("The enforcement plans typically were vague directives to a particular source, such as to install secondary treatment or its equivalent, with the details of the obligation a subject of barter between state officials and plant engineers.").

38. Hines, supra note 20, at 230-31.

39. Mar. 3, 1899, c. 425, § 13, 30 Stat. 1152 (codified at 33 U.S.C. § 407). For a discussion of the sudden appearance of the Refuse Act as a tool for water pollution control, see William H. Rodgers, Industrial Water Pollution and the Refuse Act: A Second Chance for Water Quality, 119 U. PA. L. REV. 761 (1971); Oliver A. Houck, The Water, the Trees, and the Land: The Nearly Forgotten Cases That Changed the American Landscape, 70 TUL. L. REV. 2279, 2289-91 (1996).

40. Pub. L. No. 92-500, 86 Stat. 816 (codified as amended in scattered sections of 33 U.S.C.).

41. The Senate Public Works Committee held 33 days of public hearings on the 1972 legislation, resulting in 6,400 pages of testimony from 170 attorneys and 470 additional written statements; the senators met in an additional 45 executive sessions to hammer out its positions. The House Public Works Committee held 38 days of hearings, heard from 294 witnesses, and received 135 additional statements. The House committee report ran to 424 pages, and the House and Senate conferees wrangled for five more months before arriving at the final bill. The process took more than two years. See LIEBER, supra note 34, at 31-75.

42. A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, supra note 34.

43. Water Pollution Control Legislation—1971: Hearings on H.R. 11896, H.R. 11895 Before the Comm. on Public Works, 92d Cong. 483 (1971) [hereinafter House Hearings I] (statement of Nelson A. Rockefeller, Governor of New York).

44. Id. at 489.

45. Water Pollution Control Legislation—1971: Hearings on H.R. 11896, H.R. 11895 Before the Committee on Public Works, 92d Cong., 1st Sess. 667 (1971) [hereinafter House Hearings II] (statement of Nelson A. Rockefeller, Governor of New York).

46. Id.

47. House Hearings I, supra note 43, at 511 (statement of Arch A. Moore Jr., Governor of West Virginia).

48. House Hearings I, supra note 43, at 52 (letter of J. James Exon, Governor of Nebraska).

49. Id. at 523 (letter of Preston Smith, Governor of Texas).

50. Id. at 525 (letter of John A. Burns, Governor of Hawaii).

51. Id. at 527 (letter of Jimmy Carter, Governor of Georgia).

52. Id. (letter of Cecil D. Andrus, Governor of Idaho).

53. Lieber, supra note 34, at 66.

54. House Hearings II, supra note 45, at 512 (listing membership of the Ad Hoc Task Force to the National Governors' Conference).

55. Id. at 520.

59. Id. at 995 (statement of Wesley E. Gilbertson, Deputy Secretary for Environmental Protection & Regulation, Department of Environmental Resources, commonwealth of Pennsylvania).

60. House Hearings I, supra note 43, at 202-03 (statement of a panel composed of Russell E. Train, Chairman, Council on Environmental Quality, and Paul V. McCracken, Council of Economic Advisors).

61. Id. at 213.

62. Id. at 205 (letter of Robert V. Thomann, Associate Professor of Civil Engineering, Manhattan College, Bronx, New York).

63. Id. at 206-08 (letter of Donald J. O'Connor, Professor of Civil Engineering, Manhattan College, Bronx, New York) (citing models for the Sacramento-San Joaquin Delta, the Delaware River, the Mohawk River, the Houston Ship Canal, and several large metropolitan areas).

64. While it may not be fair to judge an argument by the company it keeps, in this case the industry arguments in favor of water quality standards were tied so closely to its arguments against federal oversight, citizen suits, and other implementation and enforcement requirements that it is hard not to conclude that industry, like the Senate in 1972, saw water quality standards as minimally enforceable and that it was this viewpoint—rather than considerations of federalism or state expertise—that motivated industry's full court press to retain a state water quality standards-based program. Industry knew water quality standards did not work, and that is exactly why it wanted them. For the position of the U.S. Chamber of Commerce, see generally H.E. Dunkelberger, Federal-State Relationships in the Adoption of Water Quality Standards Under the Federal Pollution Control Act, 2 NAT. RESOURCES LAW 47 (1969).

65. House Hearings II, supra note 45, at 1726 (statement of Reynold C. MacDonald, Chairman, American Iron & Steel Institute).

66. Id. at 741 (statement of P.N. Gammelgard, Senior Vice President, Public & Environmental Affairs, American Petroleum Institute). Similar testimony was received from representatives of General Mills, Martin Marietta, the National Association of Manufacturers, and the Weyerhauser Corporation. Id. at 1088-33, 1796-1812.

67. House Hearings I, supra note 43, at 484 (statement of Wendell R. Anderson, Governor of Minnesota). Governor Anderson told Congress:

I think the greatest problem that the Governor has and members of the State legislature have is this, that any time you try to pass a tough piece of legislation in the area of the environment, that obviously could not only cost the taxpayers some money, but clearly it makes it difficult for industry to compete and the argument that we hear so often is on the part of the business community, that it will be very, very difficult to do business in Minnesota if we have these tough environmental standards because all the other States are not doing the same thing, so the only thing they need do is move to another State. They won't have to incur that expense, and they will be able to compete more easily. So it seems to me that what is absolutely necessary in my judgment is for the Congress to establish uniform standards of pollution control in all 50 states.

Id.

68. House Hearings II, supra note 45, at 698 (statement of Weldon Barton, Assistant Director of Legislative Services, National Farmers' Union).

69. Id. at 273 (question of Mr. Jones during testimony by James Krieger, Chairman Water & Power Committee, Los Angeles Chamber of Commerce).

70. S. REP. NO. 92-414 (1972), reprinted in 1972 U.S.C.C.A.N. 3668. This said, the committee was careful to preface its report as intending "no criticism" of the state's performance, and as seeking "to restore the balance of federal-state efforts in the program as stipulated by the 1965 and 1966 Acts." S. CONF. REP. NO. 92-1236 (1971). It is difficult to swallow either statement without a tall glass of water.

71. See S. REP. NO. 92-414.

72. LIEBER, supra note 34, at 41.

73. Id. at 31.

73. Id. at 31.

74. Id. at 35-39.

75. S. 2770, 92d Cong. (1971).

76. LIEBER, supra note 34, at 39-40. A Senate member and Senator Muskie's legislative assistant at the time recall that the senator had lost faith both in the science necessary to link pollution sources to impacts and in the states' willingness to do it. Telephone Conversation with Leon Billings (Mar. 31, 1997).

77. Telephone Conversation with David Zwick, Clean Water Fund (Apr. 21, 1997). Mr. Zwick lobbied actively on behalf of the environmental community throughout the 1971-72 reauthorization process. See Lieber, supra note 34, at 14-16, 37, 54, 66, 88, 91. He recalls enlisting the support of Sen. John Tunney (D-Cal.) for the introduction of an amendment to keep water quality standards in the Senate bill. The Tunney Amendment was adopted in June 1971. For a discussion of Senator Tunney's proposals, see Lieber, supra note 34, at 44, 51. According to Mr. Zwick, environmentalists were well aware that the amendment "lacked teeth"; it would, however, provide the opportunity for something stronger in the House.

78. S. 2770, § 304.

79. Id. § 302.

80. Id. These more stringent limitations were qualified, however, by required consideration of economic and social impacts. Id.

81. LIEBER, supra note 34, at 60. House efforts were thrown into disarray by the heart attack suffered by this committee chair.

82. Id. at 59-60. For an example of the pressure applied by the National Association of Manufacturers, see 118 CONG. REC. 10788 (1972).

83. LIEBER, supra note 34, at 60.

84. See LIEBER, supra note 34, at 59 (quoting Jamie Heard, Environment Report: Water Pollution Proposals to Test Blatnik's Strength as Public Works Chairman, 3 NAT'L J. 1719 (1971)).

85. LIEBER, supra note 34, at 61.

86. Heard, supra note 84.

87. Id. at 578.

88. Id. at 727.

89. Id. at 549. This statement was made in relationship to an amendment authorizing states to regulate more stringently than federal standards.

90. Id. at 675.

91. A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, supra note 34, at 245-46.

92. H.R. 11896, 92d Cong. § 303(b) (1972).

93. H.R. 911, 92d Cong. § 303(e) (1972).

94. Id. § 303(d).

95. Telephone Conversation with Gordon Wood (Mar. 28, 1997). Mr. Wood was Minority Professional Staff Assistant to the House Committee on Public Works, and primarily responsible for drafting § 303 of the House bill. Committee Counsel Lester Edelman recalls Mr. Wood standing at a blackboard before the committee, briefing members on the workings of this provision. Telephone Conversation with Lester Edelman (Mar. 27, 1997). Lending support to these recollections is the fact that H.R. 11846, as introduced in the House in November 1971, contained no § 303(d) language. See H.R. 11896, 92d Cong. (Nov. 19, 1971). The section first appears in the bill reported out by the committee and voted on by the House in March 1972. See H.R. 11896, 92d Cong. § 303(d) (Mar. 11, 1972). This is to say, § 303(d) happened in committee.

96. Telephone Conversation with Gordon Wood, supra note 95.

97. See supra text accompanying notes 13-15.

98. Telephone Conversation with David Zwick, supra note 77. Both Mr. Wood and Mr. Zwick recall collaborating on the drafting of § 303(d). See also Telephone Conversation with Gordon Wood, supra note 95. The previous year, Mr. Zwick had published a book on the implementation of the Federal Water Pollution Control Act of 1965, identifying its shortcomings in the application of water quality standards and in their enforcement. DAVID ZWICK, WATER WASTELAND (1971). The objective was to remedy those problems.

99. H. REP. NO. 92-911, at 105 (1972) (emphasis added).

100. Id. (emphasis added). It is unclear from this statement alone whether the committee envisaged that the TMDLs include nonpoint sources. One the one hand, the first sentence quoted refers only to emissions limitations for municipal and industrial dischargers; they would have to be "consistent" with water quality standards, for which a reasonable paraphrase would be "not contribute to the violation" of water quality standards. Cf Arkansas v. Oklahoma, 503 U.S. 91, 22 ELR 20552 (1992) (states may not contribute to the violation of water quality standards of neighboring states). It is logical that the committee report describes only municipal and industrial sources as needing additional "emissions limitations" because these are the only sources directly subject to emissions limitations under the Act. The committee goes on to recognize, however, that water quality standards were also violated by nonpoint sources in a "major" way. This sentence implies the obvious: there is no way to determine the appropriate contributions from, and limitations on, municipal and industrial point sources without considering these nonpoint sources as well. How a state would choose to allocate its limits among point and nonpoint source contributors would, at least in the first instance, be up to states to decide. But the only logical interpretation of this legislative history behind § 303(d) is that nonpoint sources were a big fact of life in achieving water quality standards, and they would have to be included in the assessments of polluted waters and their TMDL allocations. Were they not included, a process to ensure that municipal and industrial limits were "consistent with water quality standards" would make no sense; it, literally, could not be done.

101. H. REP. NO. 92-911, at 108 (1972).

102. Id. It further noted the importance of developing TMDLs for waters not yet polluted, for future permitting. Id. at 106; see 33 U.S.C. § 1313(d)(3), ELR STAT. FWPCA § 303(d)(3). These TMDLs have yet to materialize in fact or in litigation.

103. See H. REP. NO. 92-911, at 69 (1972) (report of the House Committee on Public Works).

104. The only direct reference found by this author was the remarks of Representative Harsha outlining the bill in its entirety and explaining the intent of § 303 to upgrade polluted waters: "HR 11896 requires that if the application of 'best applicable control technology available' is not sufficient to meet water quality standards, further and more stringent controls must be imposed." A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, supra note 34, at 246.

105. H.R. CONF. REP. NO. 92-1465 (1972). Incongruously, and indicative of the cut-and-paste nature of this compromise, the conference committee also retained the similar-sounding § 302, allowing the EPA to upgrade point source discharge permits to meet with quality standards. See supra text accompanying note 80. EPA has yet to invoke its authority under this section. See RODGERS, supra note 9, at 285-88.

106. Telephone Conversation with Gordon Wood, supra note 95.

107. LIEBER, supra note 34, at 78. Another Senate staff member at the time recently stated: "there is no one more surprised than I am" by the recent renaissance of § 303, given his view of the provision at the time. Telephone Conversation with Leon Billings, supra note 76.

108. A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, supra note 34, at 171.

109. National Water Commission Act, Pub. L. No. 90-515, 82 Stat. 868 (1968). The commission issued a final report, Water Policies for the Future (June 1973), and a summary of its conclusions and recommendations, New Directions in U.S. Water Policy (June 1973).

110. The commission board included the Chairman and CEO of Consolidated Edison Co.; the President of Independent Distributors (a wholesale farm equipment distribution firm) and former Oregon Secretary of State; an attorney and past President of the Municipal League of Seattle and King County, Washington; a consultant to the Arizona Public Service Company and President of the Central Arizona Water Conservation District; a professor of hydraulic engineering; an attorney and past member of the Missouri House of Representatives; and an attorney and Counsel to the Texas Water Quality Board. New Directions in U.S. Water Policy, supra note 109, at 109, 110.

111. The Panel on Water Pollution Control was composed of the Deputy Commissioner of the New York State Department of Environmental Conservation; a consultant to the Ohio River Valley Sanitation Commission; the Director of the Water Resources Research Institute at North Carolina State University; the Director of the Pennsylvania Bureau of Sanitary Engineering; the Chief Engineer and General Manager of the Sanitation Districts of Los Angeles, California; a professor of entomology at the University of Minnesota; and two attorneys. Water Policies for the Future, supra 109, at 559.

112. Id. at 70.

113. Id. at 86, 91. With some inconsistency, however, the commission recommended federal standards for toxic dischargers. Id. at 91.

114. Id. at 91.

115. Id. at 85-86.

116. Id. at 86.

117. Id.

118. Id. at 88.

119. 33 U.S.C. § 1325, ELR STAT. FWPCA § 315. The commission's charge was to "make a full and complete investigation of all of the technological[,] … economic, social, and environmental effects of achieving or not achieving" the best available technology (BAT) limitations and goals of the 1972 Act. Id.

120. See NATIONAL COMMISSION ON WATER QUALITY, COMMISSION MEMBERS, REPORT TO THE CONGRESS iv (Mar. 18, 1976). The commission was composed of five members approved by the Senate, five by the House, and five by the Administration. 33 U.S.C. § 1315(b), ELR STAT. FWPCA § 305(b). This composition virtually guaranteed a rehash of the arguments of 1971 and 1972.

121. "The members of the Commission have unanimously voted to submit the attached report with the understanding that the members have not necessarily endorsed every detail of the report …." NATIONAL COMMISSION ON WATER QUALITY, supra note 120, at 2.

122. See id., Commission Comments, at v.

123. Id. at 29.

124. Id. at 29.

125. Id. at 18, 19, 124; id. at 43-44 (Senator Muskie), 65-66 (Senator Randolph), 69-74 (Senator Baker).

126. Id. at 62-63.

127. Federal Water Pollution Control Act, Pub. L. No. 95-217, 91 Stat. 1566. For a discussion of these amendments, see Houck, supra note 4, at 10534-35; RODGERS, supra note 9, at 411-21.

128. Pub. L. No. 95-217, § 43, 91 Stat. 1566 (adding § 301(g), BAT waiver for conventional pollution, but not beyond water quality standards).

129. 'New Federalism,' Water Act Goals Do Not Mix, House Panel Tells Hernandez, [12 Current Developments] Env't Rep. (BNA)1363 (Feb. 26, 1982).

130. Gorsuch Outlines Water Act Issues in January 19 Letter to Members of Congress, [12 Current Developments] Env't Rep. (BNA) 1211 (Jan. 22, 1982).

131. Id.

132. Id.

133. Eidsness Says Administration Favors Water Quality-Based Pollutant Controls, [13 Current Developments] Env't Rep. (BNA) 805 (Oct. 15, 1982).

134. Id.

135. Id.

136. Hernandez Says EPA Seeks to Return Management of Water Programs to States, [13 Current Developments] Env't Rep. (BNA) 850 (Oct. 22, 1982).

137. Revisions to Water Quality Rule Moving Through EPA Review Process, [12 Current Developments] Env't Rep. (BNA) 1391 (Mar. 5, 1982).

138. Id.

139. Proposed Water Quality Standards Changes Subject of 11 Public Meetings, EPA Announces, [13 Current Developments] Env't Rep. (BNA) 915 (Nov. 5, 1982).

140. Testimony of Eric Eidsness, EPA Assistant Administrator for Water, Before the Subcommittee of Water Resources of the Committee on Public Works and Transportation, House of Representatives 124 (1983). It should be noted, however, that not all states supported the revisions. See California Officials Attack Proposal by EPA to Revamp Water Quality Rules, [13 Current Developments] Env't Rep. (BNA) 1445 (Dec. 24, 1982) (the revisions "will make it harder for them to mention the state's strong water quality protection"); Changes to Standard-Setting for Water Would Hamper States, EPA Officials Told, [13 Current Developments] Env't Rep. (BNA) 1616 (Jan. 21, 1983) (Assistant Director of New Jersey's EPA testifying that the revisions would make state standards "indefensible and perhaps unenforceable.").

141. Revised Procedures for Water Standards, Local Pretreatment Option Backed by ASIWPCA, [14 Current Developments] Env't Rep. (BNA) 811 (Sept. 9, 1983).

142. Proposed Water Quality Standards Changes Subject of 11 Public Meetings, EPA Announces, supra note 139, at 915.

143. Proposed Water Quality Standards Changes Praised, Criticized at EPA Public Meetings, [13 Current Developments] Env't Rep. (BNA) 1667 (Jan. 28, 1983).

144. Id.

145. See 'New Federalism,' Water Act Goals Do Not Mix, House Panel Tells Hernandez, supra note 129; No 'Mid Course Corrections' Needed in Clean Water Act, Chafee Tells EPA, [13 Current Developments] Env't Rep. (BNA) 397 (July 23, 1982).

146. Id.

147. 'New Federalism,' Water Act Goals Do Not Mix, House Panel Tells Hernandez, supra note 129.

148. Five in Congress Urge EPA to Scrap Proposed Water Quality Standard Charges, [13 Current Developments] Env't Rep. (BNA) 2182 (Apr. 1, 1983).

149. Id. The congressional letter explained that withdrawing the proposal "might also avoid the need to consider corrective legislation." Id.

150. Final Water Quality Rule by EPA Endorsed by Four Key Senators, [14 Current Developments] Env't Rep. (BNA) 1246 (Nov. 4, 1983).

151. Mattingly Offers Amendments to Water Act to Ease Cost, Management Burdens for States, [15 Current Developments] Env't Rep. (BNA) 2120 (Apr. 5, 1985).

152. SENATE COMM. ON ENVIRONMENT AND PUBLIC WORKS, 100TH CONG., 2D SESS., A LEGISLATIVE HISTORY OF THE WATER QUALITY ACT OF 1987 1323 (1987) [hereinafter 1987 ACT LEGISLATIVE HISTORY] (remarks of Sen. Stafford).

153. Id.; see also The Clean Water Act Amendments of 1987, [18 Current Developments] Env't Rep. (BNA), Special Rep., 39 (Sept. 4, 1987) [hereinafter Special Report].

154. See Special Report, supra note 153, at 42-43.

155. See 1987 ACT LEGISLATIVE HISTORY, supra note 152, at 1422.

156. S. 1128, 99th Cong. (1985); 131 CONG. REC. S8030 (daily ed. June 20, 1986); see also Special Report, supra 153, at 181-82.

157. See Special Report, supra 153, at 182-83.

158. Id. at 27-28.

159. Pub. L. No. 100-4, 102 Stat. 1018. For a discussion of these provisions, see Houck, supra note 4, at 10550-59. The hotspots were to be identified within two years, and abated within three more years.

160. 33 U.S.C. § 1314(m), ELR STAT. FWPCA § 304(m).

161. Id. § 1313(c)(2)(B), ELR STAT. FWPCA § 303(c)(2)(B).

162. Id. § 1314(l), ELR STAT. FWPCA § 304(l).

163. Id. The listing process was in fact a little more complex; within two years, states were to submit three lists to EPA, a "long" list of waters not meeting water quality standards, id. § 1314(l)(1)(A)(ii), ELR STAT. FWPCA § 304(l)(1)(A)(ii); a "medium" list of waters polluted by toxins, id. § 1314(l)(1)(A)(i), ELR STAT. FWPCA § 304(l)(1)(A)(i); and a "short" list of waters polluted by toxins from past sources, id. § 1314(l)(1)(B), ELR STAT. FWPCA § 304(l)(1)(B).

164. Id. § 1314(l)(1)(C), ELR STAT. FWPCA § 304(l)(1)(C).

165. Id. § 1314(l)(1)(D), ELR STAT. FWPCA § 304(l)(1)(D).

166. Id. § 1314(l)(3), ELR STAT. FWPCA § 304(l)(3).

167. See Special Report, supra note 153, at 31 (citing an NRDC attorney).

168. Id. see also Statement of the Association of State and Infrastructure Water Pollution Control Administrators Before the Subcommittee on Environmental Protection of the Senate Committee on Environment and Public Works, 98th Cong., 1st Sess. 418 (Apr. 1983) ("since 1972, the states have gained more than ten years experience in water quality management"; "state water quality programs have blossomed reaching substantial levels of sophistication and effectiveness.").

169. See Hearings Before the Subcommittee on Water Resources of the House Committee on Public Works and Transportation, 99th Cong. 285 (1985) (statement of Rodney C. Glover, Procter & Gamble Corp.) ("states now have a greatly expanded database and more experience.")

170. See Special Report, supra note 153, at 4 (quoting EPA Deputy Assistant Administrator for Water Rebecca Hanner).

171. Id.

172. Three years after the 1987 Amendments, 45 states and territories had at least "some" freshwater aquatic life criteria for toxics. See Houck, supra note 4, at 10543.

173. Id. at 10544.

174. Id. at 10547-48.

175. Id. at 10548.

176. See EPA, ICS STATUS REPORT (July 1994) (a compilation of all implemented and outstanding ICSs).

177. Telephone Conversation with Deborah Clovis, Office of Wastewater Management, EPA (Jan. 31, 1997).

178. For reference on industry opposition and litigation opposing ICS requirements, particularly that of the pulp and paper industry, see Houck, supra note 4, at 10548.

179. The Senate Environment and Public Works Committee concluded that "nonpoint source pollution control could no longer be ignored." As point sources are bought under control, nonpoint source pollution looms as a larger problem. The evidence of nonpoint pollution continues to grow. It has been estimated that 50 percent of all water pollution comes from nonpoint sources. Report of the Senate Committee on Environment and Public Works, Clean Water Act Amendments of 1985, 99th Cong., 1st Sess. in 1987 ACT LEGISLATIVE HISOTRY, supra note 152, vol. 2, at 1428-29.

180. EPA's 1984 water quality inventory reports that, of 47 states surveyed, 24 have identified nonpoint source pollution as a "major source of water degradation." Special Report, supra note 153, at 40. A 1985 ASIWPCA survey showed 11 percent of the nation's rivers, 30 percent of its lakes, and 17 percent of its estuaries affected by nonpoint source pollution. Id.

181. 33 U.S.C. § 1288, ELR STAT. FWPCA § 208. For discussions of § 208 and its performance, see RODGERS, supra note 9, at 319-30; FREDERICK R. ANDERSON ET AL., ENVIRONMENTAL PROTECTION LAW AND POLICY 384-86 (1990).

182. See Special Report, supra note 153, at 40-41.

183. See ANDERSON ET AL., supra note 181, at 385, and sources cited therein. These politics have gotten no easier. See David Zaring, Agriculture, Nonpoint Source Pollution, and Regulatory Control: The Clean Water Act's Bleak Present and Future, 20 HARV. ENVTL. L. REV. 515 (1996).

184. Special Report, supra note 153, at 27.

185. 33 U.S.C. § 1319, ELR STAT. FWPCA § 309.

186. Id. § 1319(a)(1)(A), ELR STAT. FWPCA § 309(a)(1)(A).

187. Id. § 1319(a)(1)(B), ELR STAT. FWPCA § 309(a)(1)(B).

188. Id. § 1319(a)(1)(C), ELR STAT. FWPCA § 309(a)(1)(C).

189. Id. § 1319(a)(1)(D), (b), ELR STAT. FWPCA § 309(a)(1)(D), (b).

190. Id. § 1319(d), ELR STAT. FWPCA § 309(d).

191. Id. § 1319(b)(2)(B), ELR STAT. FWPCA § 309(b)(2)(B).

192. Senate leaders expressed their concern for the lack of regulatory standards, and considered § 319 to be only a first step in tackling the problem. 1987 ACT LEGISLATIVE HISTORY, supra note 152, at 619 (remarks of Sen. Stafford).

193. Upon receipt of a state program, EPA may approve or disapprove the program. 33 U.S.C. § 1329(d)(2), ELR STAT. FWPCA § 319(d)(2). If it disapproves, however, no consequences follow other than the possible loss of eligibility for nonpoint source grant funding. Id. § 1329(h), ELR STAT. FWPCA § 319(h). EPA's Assistant Administrator for Water recognized the risks of this approach in 1987, but expressed optimism that the states were up to the job; although EPA lacked authority to mandate specific approaches and would require only that states submit their proposed control plans to EPA for approval, he predicted that "this approach can succeed now because state water pollution control programs are far more developed than they were when the Water Act was enacted in 1972." Jensen Predicts Early Loan Guidance, Cites EPA Shift to Water Quality Standards, [17 Current Developments] Env't Rep. (BNA) 2002 (Mar. 27, 1987).

194. If a state fails to submit a nonpoint source report, EPA would undertake the first two steps only: to identify nonpoint polluted waters and to identify nonpoint sources to these waters. 33 U.S.C. § 1329(d)(3), ELR STAT. FWPCA § 319(d)(3). No further planning requirement follows.

195. See Zaring, supra note 183. The author concludes, "Unfortunately, Section 319 has failed to reduce nonpoint source pollution. Its failings can be characterized as not enough carrot, not enough stick, and too much of the same planning imperatives that had characterized Section 208." Id. at 526; see also ROBERT W. ADLER ET AL., THE CLEAN WATER ACT TWENTY YEARS LATER 241 (1993) ("Implementation of § 319 has failed to stem the flow of polluted runoff; the majority of state programs are ineffective and unfocused.").

196. S. 1114, 103d Cong. (1993).

197. Id. § 203 (toxic pollution phaseout).

198. Id. § 202 (water quality criteria and standards).

199. See Testimony of the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA) Before the Senate Subcommittee on Clean Water, Fisheries, and Wildlife (July 1, 1993) [hereinafter July 1993 ASIWPCA Testimony] (remarks by Bruce Baker, Director, Water Resources Management, Wisconsin Department of Natural Resources).

200. Id. at 3.

201. See Testimony of the Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), Before the House of Representatives Transportation and Infrastructure Subcommittee on Water Resources and the Environment 4 (Feb. 9, 1995) [hereinafter February 1995 ASIWPCA Testimony] (remarks by Bruce J. Baker et al.).

202. July 1993 ASIWPCA Testimony, supra note 199, at 2.

203. Id. at 3, 4.

204. See Clean Water Act Reauthorization Priorities, February 1995 ASIWPCA Testimony, supra note 201, at 14, 15 (entitled The States' Perspective on Non-point Sources (NPS)). The Coastal Zone Management Act requires states to develop technology-based management measures for nonpoint source control in coastal areas. 16 U.S.C. § 1455b(g)(2), (5), available in ELR STAT. CZMA.

205. July 1993 ASIWPCA Testimony, supra note 199, at 2.

206. H.R. 961, 104th Cong. (1995).

207. See Claudia Copeland, Clean Water: Summary of H.R. 961 (Cong. Res. Service Apr. 11, 1995); Gary Lee, House Transportation Panel Coalition Proposes Scaling Back of Clean Water Act, WASH. POST, Mar. 23, 1995, at A11.

208. Hearings Before the Subcomm. on Water Resources and the Environment, House Comm. on Transportation and Infrastucture, 104th Cong. 221 (1995) (testimony of Carol Bennet Lindsey for the U.S. Chamber of Commerce).

209. H.R. 961 § 303(a)(3) (requiring a "reasonable relationship" between costs and benefits).

210. Id. § 303(c)(2)(A)(iv).

211. Id. § 303(a)(12).

212. Id. § 324(a)(1)(B).

213. Id. § 306.

214. Id. § 319(b)(2)(B).

215. See Hearings of the Subcomm. on Water Resources and the Environment, House of Representatives Comm. on Transportation and Infrastructure, 104th Cong. 86 (1996) (testimony of the ASIWPCA).

216. Id. at 80.

217. Id. at 80, 84.

218. See Issue: Clean Water Act, 1966 CONG. Q. NEWS 3147 ("The wave of criticism that followed House passage of [H.R. 961] pushed Republican lawmakers to reassess their efforts to revise environmental laws and helped drown HR 961 in the process.").

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