Section 208 and Section 303 Water Quality Planning and Management: Where is it Now?

Diane L. Donley ^**

This article is based on work done on a consultant basis for the National Association of Attorneys General, Committee on the Office of Attorney General, Environmental Control Committee.

[6 ELR 50115]

After long delays, implementation of § 208 of the Federal Water Pollution Control Act Amendments (FWPCA) of 1972 is now underway in every state and most major metropolitan areas. The § 208 program was designed to provide a comprehensive umbrella for the FWPCA's water quality planning and management provisions. This program is one of the most innovative and complex elements of the FWPCA and has tremendous potential for improving water quality and land use practices by requiring states and localities to produce enforceable water quality management plans.

Any discussion of the § 208 planning process must include an analysis of § 303 of the FWPCA, which provides for review and revision of water quality standards and for reform of antidegradation policies. The planning and management requirements of §§ 208 and 303 are specifically directed toward achieving the main goal of the FWPCA: "water quality which provides for protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water,"¹ better known as the "1983 goal" or "fishable, swimmable goal."

Almost a year ago the Environmental Protection Agency (EPA) promulgated substantially revised regulations² outlining the elements of water quality planning and management required by §§ 208 and 303.³ These regulations are now being implemented by state and local or regional § 208 agencies.

The New Regulations

In general, the regulations require (1) broad regional analyses of pollution problems, including the implications of growth for water quality and the long-term need for new sewage treatment plant capacity; (2) control of pollution from point and nonpoint sources by means of land management controls; (3) significant upgrading of state water quality standards to a level reflecting the fishable, swimmable goal; and (4) strict new policies in each state to prevent any further degradation of high quality waters.

The new regulations can be broken into three component parts: (1) requirements for a continuing planning process and a water quality management plan to be implemented by state and local agencies, (2) requirements for periodic water quality standards review and revision, and (3) requirements for reformation of state antidegradation policies. In addition, the regulations outline public participation requirements, reflecting the FWPCA's mandate⁴ that a high degree of involvement by all elements of the public in the planning process is necessary to assure the plan's acceptability.

The planning processes and plans including regulatory programs are to fill in the gap between what the technology standards under the National Pollutant Discharge Elimination System (NPDES) can accomplish and the 1983 goal. In many instances, limitations on point sources of pollution will not be sufficient to achieve the 1983 goal. According to the Council on Environmental Quality, "… even if all discharges of municipal and industrial pollution were stopped, many streams would still be polluted as a result of discharges from runoff sources."⁵ Section 208 is the only section of the FWPCA which addresses these hard-to-manage water quality problems from nonpoint (runoff) sources of pollution.⁶

Section 208

The purpose of § 208 planning is to develop and then implement new management and regulatory programs which clean up the waters in polluted areas and basins and prevent pollution from spoiling relatively unpolluted areas. The § 208 planning process is to result in a management plancontaining:

management programs capable of handling the long-term (20-year) sewage treatment needs of an area, including sewage treatment plant construction, sludge management, and land treatment;

regulatory programs (including land use requirements) to control runoff and other pollution associated with agriculture, mining, forestry, construction, urban stormwater, and residual waste;

regulatory programs to control the location, modification and construction of any facilities that can result in pollution; and

regulatory programs to protect groundwaters and prevent salt water intrusion.

These constituents, aggregated in the § 208 plans, must assure the achievement of the 1983 goal of the Act.

In each state there will be two kinds of § 208 Water [6 ELR 50116] Quality Management Plans — plans for specially designated local areas and state § 208 plans for the water basins covering the remainder of the state.⁷ Plans in the designated areas will be prepared by local authorities; the state water pollution control agency is responsible for § 208 planning in the non-designated areas of the state.⁸ Each type of plan must meet all of the requirements of § 208, and the state is ultimately responsible for the outcome of both state and local planning efforts. However, designated areas are primarily urban-industrial areas, whereas state plans will focus more on non-urban problems such as agricultural, forestry or mining runoff.

A crucial part of the § 208 planning program — and a factor that distinguishes § 208 from many other plans required by federal grant-in-aid programs (such as the Department of Housing and Urban Development's § 701 plans⁹) — is the requirement that these plans be implemented.¹⁰ While water quality management plans are being developed in most instances by agencies with primarily planning responsibilities, the plans are to be implemented by separate management agencies which must have substantial authority to carry out the plan, including the authority to incur indebtedness and construct (either directly or by contract) waste treatment works.¹¹ These management agencies are to be selected by the governor of each state.

Among those elemets which will be necessary for implementation is the establishment of appropriate regulatory programs.¹² Each § 208 plan, both state and areawide, must include a program which will regulate the location, modification, and construction of any facility which may result in the discharge of any pollutant.¹³ All point sources and all structural changes resulting in nonpoint source pollution must be regulated. Several different methods could be used to implement this section of the law, including, for example, zoning and subdivision controls by state or areawide agency review of local decisions, a permit system for individual point sources, or direct state or areawide zoning or subdivision control. Regulatory programs must also be developed for the nonpoint sources of pollution enumerated in § 208(b)(2)(F)-(K), as necessary.¹⁴

The § 208 plan must include the necessary regulatory authority to implement the plan when it is submitted on November 1, 1978.¹⁵ To assure that the necessary regulatory programs are effective at that time, states and areawide agencies should have already begun to examine existing laws and regulations to determine their ability to resolve water quality management problems, assess the need for changes or new legislation or regulations, and propose necessary changes or new legislation.¹⁶ A task force on § 208 regulatory programs or a similar group might be established to develop the necessary proposals.¹⁷

Since no other federal law, and few state laws, effectively regulate or even address the problem of nonpoint source water pollution, the requirements for nonpoint source controls in § 208 are especially important. The nonpoint source program in EPA's regulations requires areawide planning agencies and the state to develop a planning and regulatory program which includes

processes to identify, where appropriate, nonpoint agricultural, silvicultural, mine-related, and construction-related sources of pollution, and "procedures and methods (including land use requirements) to control to the extent feasible such sources;"

a process to control all residual waste disposal within the area which could affect water quality (residual waste is dredge-and-fill material, sludge from waste treatment facilities, and other solids or liquid wastes remaining after collection and treatment);

a process to control land or subsurface disposal of wastes that might affect ground or surface water quality;

a process to identify, where appropriate, salt water intrusion into rivers, lakes and estuaries, along with procedures and methods to control intrusion "where such procedures and methods are otherwise a part of the waste treatment management plan."¹⁸

The state may assume authority for the nonpoint source control program from local agencies when necessary to insure consistency with water quality standards and waste load allocations established in § 303 of the Act.¹⁹

EPA's approach to nonpoint sources is to require planning agencies to develop and implement Best Management Practices (BMP's) in the § 208 plan for certain sources of pollution, including nonpoint sources.²⁰ EPA defines Best Management Practices as:

… a practice or combination of practices that is determined by [a designated planning agency] after problem [6 ELR 50117] assessment, examination of alternative practices, and appropriate public participation to be the most effective, practicable (including technological, economic and institutional considerations) means of preventing or reducing the amount of pollution generated by nonpoint sources to a level compatible with water quality goals.²¹

An agency's evaluation of the appropriate BMP strategy should include proposed regulatory plans, management agencies, and projected costs.

In other words, BMP's for nonpoint sources use an approach similar to that required for point sources — identification of the appropriate uniform level of "management practice." However, the BMP approach differs in that it is designed to recognize local institutional and water quality differences, and the uniform approach is only required within a defined planning area. The BMP approach also recognizes that land use requirements may, in some instances, be the most effective practices for nonpoint source pollution control.

One of the most serious issues involved in the water quality management process is how EPA's revised regulations will be enforced, i.e., what sanctions are available should a state or local agency fail, in one way or another, to comply with the regulations or the FWPCA. An issue not yet fully resolved is what federal sanctions are available. An ideal federal sanction would be to use the § 208 grant program itself as well as the related funding programs under §§ 106 and 201 of the FWPCA.²² In each of these three programs the EPA Administrator has the authority, indeed the responsibility, to condition the federal grant upon the development and implementation of an adequate § 208 plan. To this end, each grant agreement under §§ 106, 201, and 208 of the FWPCA should include the following understandings: that § 208 plans must be prepared which are timely and adequate in compliance with the implementing regulations, and that the states and local governments will implement the § 208 plans that they prepare in order to achieve the objectives of the Act. In short, a funding agreement under the FWPCA should make it clear that federal funding is based on the achievement of the national objective of preparing and implementing adequate water pollution abatement and prevention programs under § 208. Such agreements could then be enforced either by financial sanctions or directly by court action, that is, EPA could sue the state or local agency for specific performance of the grant agreement. The agreements are also subject to citizen suits.

The states, however, do not need federal sanctions to enforce their own policy. Each state should establish the policy that other water program grants will not be given to areawide agencies that are unwilling to implement their approved § 208 plan.

The first step required under the regulations has already been taken — the submission of state Continuing Planning Processes (CPP's), which were due on April 26, 1976. The CPP's were to have given a broad outline of proposed state action with time schedules, priorities, and assignment of responsibilities. With few exceptions, CPP's were submitted by the states in timely fashion. However, in many instances the CPP's either lacked the required information of were insufficiently detailed regarding the proposed actions. Because of these deficiencies, some states will find corrections necessary before the second step — submission of detailed work plans by October 31, 1976.

A preliminary look at CPP's already submitted by states pursuant to these regulations indicates the kind of problems likely to occur in the planning process as it goes on. Section 208 requires existing pollution, problems to be ranked and addressed. Many states have failed to address meaningfully serious pollution problems as required by the FWPCA and the Part 130/131 regulations. They have failed to mention nonpoint sources of pollution or have given scanty information about the nonpoint sources to be regulated. In other cases, states failed to indicate a commitment to instituting the necessary regulatory programs to implement and enforce the plans and control the pollution problems. Some states have also neglected to address properly the formulation of wasteload allocations. Few states have recognized that wasteload allocations must be formulated with an allowance for future growth.

Yet another problem is the failure of states to provide meaningful avenues for public participation. A Citizen Advisory Board²³ was, in one instance, deliberately reformed to avoid participation by environmentalists. State CPP submissions in many cases failed to outline any provision at all for public participation.

These deficiencies, if not corrected in future state planning, will greatly weaken value of the planning process. In addition, they will subject the state to possible cutoffs of federal funds, as described above,²⁴ and citizen suits. Of immediate concern are the detailed work plans, due October 31, 1976, which must contain a State/EPA agreement setting forth the method, priorities, and level of detail of each state's plan to resolve its water quality management problems.

Section 303

Water quality standard revisions and state antidegradation policies are an important beginning point for the rest of the § 208 management plan for control of both point and nonpoint sources. The water quality standard for a stream segment will indicate whether the segment can or cannot achieve that standard through effluent limitations on point source dischargers. If effluent limitations are insufficient, then the stream segment will be classified as water quality limited and a determination of the total maximum daily load of pollutants for the segment must be made, for both point and nonpoint sources. Then wasteload allocations for point sources and nonpoint sources must be made for each segment. To assume that effluent limitations and wasteload allocations are sufficient to attain and maintain water quality standards upgraded to the 1983 goal, consistent with state antidegradation policy, the state must establish, pursuant to these regulations, a planning process containing a state-EPA agreement and a plan including regulatory programs for all point and nonpoint [6 ELR 50118] sources as appropriate. NPDES permits must be consistent with the plan.²⁵

Developing wasteload allocations will become more important as the § 208 plan takes shape. A large percentage of all stream segments are likely to be water quality limited, and making wasteload allocations for each of these segments means that for both point and nonpoint sources the amount of pollutants to be allowed into the stream must be determined; in order to achieve the water quality standards for each particular segment.²⁶ (According to EPA only a gross allotment for nonpoint sources is necessary.) Allocations of pollutants must also be estimated for future growth of population and employment centers which would affect stream quality.²⁷ The existing industries must also project future wasteload allocations based on proposed plant expansions. Thus, once water quality standards are set and wasteload allocations are determined, the amount of future growth for a given area will be established, unless new technology or practices are developed which can reduce the pollution from a particular source.

Revision of State Water Quality Standards

Water quality standards are the combination of designated uses of a stream segment (such as fishing, drinking water, etc.) and pollutant criteria necessary to achieve those uses. In essence, water quality standards serve as a planning objective for the states, define effluent limitations more stringent than the 1983 "best available technology" requirement where needed to meet the goals of the Act, and provide a basis for controlling nonpoint sources of pollution.

The water quality standards policy promulgated in the new regulations was the source of much controversy within EPA and the Administration. Unfortunately, the policy is not as strong as it should be, nor as strong as the law requires. The preamble to the regulations contains a strong statement on upgrading water quality standards to the level of the 1983 goal:

EPA strongly supports the establishment of water quality standards which will support the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water. In furtherance of this objective, EPA believes that water quality standards should be established at levels consistent with the [1983] goal of section 101(a)(2) of the Act for every stream segment wherever those levels are attainable.²⁸

In brief, the new regulations provide that:

States must review their water quality standards every three years and revise them where appropriate.²⁹

Water quality standards must protect public health and welfare³⁰ and provide protection for downstream water quality standards.³¹

States must upgrade existing water quality standards where current water quality supports higher uses than those presently designated.³²

States must upgrade existing water quality standards to achieve the Act's 1983 goal of fishable, swimmable waters, where attainable, with attainability premised on environmental, technological, social, economic, and institutional factors.³³

States may downgrade existing water quality standards upon a demonstration that (a) existing standards are not attainable because of natural conditions (such as high background due to leachate from natural heavy metal deposits); (b) existing standards are not attainable because of irretrievable man-induced conditions (such as where known control methods are incapable of restoring the water to the designated uses); or (c) application of existing standards would result in substantial and widespread adverse economic and social impact (such as a large increase in unemployment not due to other factors in a large area for over one year).³⁴

The strong declaration of the preamble is weakened by regulations, which define a concept of "attainability," contingent upon considerations of environmental, technological, social, economic and institutional factors.³⁵ Undoubtedly, some parties will try to use this definition of attainability as a loophole to avoid upgrading water quality standards to meet the 1983 fishable, swimmable goal. Such attempts must be carefully examined, however, and exceptions to the 1983 requirements should be confined in area and time.³⁶

The provision allowing water quality standards to be downgraded is another weakness in the regulations. The criteria outlined above for downgrading should be applied very infrequently. Essentially these same criteria were applied in developing the existing water quality standards only three years ago.³⁷ Accordingly, except in those very unusual circumstances where new information has been brought out, there is no justification for downgrading standards. Full, written justification for the downgrading which meets the criteria outlined in [6 ELR 50119] EPA's regulations and guidelines³⁸ must accompany any downgrading proposal. After public hearing, water quality standards revisions must be submitted to EPA for approval no later than December 31, 1976.

State Antidegradation Policies

The new antidegradation policy required by the regulations, if properly implemented, can protect high-quality waters from becoming polluted, and can curb further pollution where it already occurs. The regulations carry out the basic objective of the 1972 FWPCA, which is "to restore and maintain the chemical, physical and biological integrity of the Nation's waters."³⁹ The antidegradation policies protect inland and coastal waterways from potential pollution problems besides those caused by industrial expansions and sewage treatment plants; they also apply to point and nonpoint source pollution from commercial, agricultural, construction, and forestry sources.

The new national antidegradation policy differs from the antidegradation policies currently used by most states and has several important elements. First, the new EPA regulations provide — without qualification — that "No further water quality degradation which would interfere with or become injurious to existing instream water uses is allowable."⁴⁰ Thus, if a particular water body in its existing condition could be used for sport fishing, it cannot be degrated in any way which, would reduce its quality as a sport fishery. Similarly, if the waters are suitable for propagation of fish, shellfish or wildlife or for swimming or for drinking water supply, then they must remain suitable for these possible uses and for any others for which they are now suited.⁴¹

Second, the new EPA regulations, with one exception, do not permit any increase in pollutant loads in those high-quality waters which are currently better than levels needed "to support propagation of fish, shellfish and wildlife and recreation in and on the water."⁴² The exception is that the state can decide, after public participation, "to allow lower water quality as a result of necessary and justifiable economic or social development."⁴³

This exception is narrowed in two very important respects. First, it can never be applied to "high quality waters which constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance."⁴⁴ Second, the exception cannot be applied in any way that allows water quality to fall below the 1983 goal — the level needed to protect fish and wildlife and recreation in and on the water.⁴⁵

Between April and December 1976, each state must, after public hearings, adopt a new statewide policy on antidegradation. This policy must then be submitted to EPA for its approval and must be at least as protective as the national policy. State antidegradation policies go into effect on July 1, 1977. After that date, all proposed activities resulting in increased water pollution will have to be screened for consistency with the federal-state antidegradation requirements.⁴⁶

The Continuing Planning Process and an already-issued public notice of a proposed downgrading of water quality standards by the state of Ohio indicate problems in the revision of state water quality standards and establishment of new state antidegradation policies. Some states, for instance, have indicated that they will not abide by the December 31, 1976 deadline for submission of revisions. In addition, a large number of states intend to downgrade water quality standards. Because of the narrow scope of the criteria under which downgrading is allowed,⁴⁷ it is doubtful whether most of the proposed downgrading will in fact meet the statutory and regulatory requirements.

A further problem is the fact that many states have indicated that their present antidegradation policies are sufficient to meet the new requirements in the regulations,⁴⁸ when they clearly are not. Adequate public participation in the process of revising state water quality standards and antidegradation policies is also likely to be a problem, since some states apparently do not intend to provide for public participation. As in the case of § 208 plan development, failure to correct these deficiencies will subject the state to sanctions by the federal government and private citizens suits.

A group of ten power companies has challenged the regulations' antidegradation policy in Commonwealth Edison v. Train.⁴⁹ The power companies had originally sought a declaratory judgment and an injunction against further implementation of most sections of the regulations, challenging the constitutionality of the planning process under the Fifth, Tenth, and Fourteenth Amendments to the U.S. Constitution, the lawfulness of the antidegradation and water quality standards requirements, the failure to provide opportunities for public participation, the combination of §§ 208 and 303 planning into one, and thermal load requirements. The plaintiffs have now narrowed their claims to the antidegradation issue and the related policy of requiring NPDES permits to be issued in accordance with the state's antidegradation policy. This retrenchment resulted from EPA's motion to dismiss on ripeness grounds. Future challenges by regulatees, however, will probably come only after more definite regulatory action has occurred — such as final promulgation of water quality standards, the imposition of Best Management Practices on the operator of a nonpoint source, or the establishment of a land use management technique.

Public Participation

Opportunities and provisions for meaningful public participation are an extremely important facet of all [6 ELR 50120] phases of the water quality planning process and are necessary from both a legal and practical point of view. The FWPCA itself requires public participation in both the planning and implementation stages to be "provided for, encouraged and assisted."⁵⁰ EPA has stated: "The success of a water quality plan depends on its acceptance by the public."⁵¹

The public participation mandate is spelled out in EPA's public participation regulations,⁵² as well as in the planning process regulations and the draft guidelines interpreting the regulations. The regulations explicitly state that the § 208 process must contain a broad-based effort to inform and involve the public during plan development, review and adoption⁵³ and to develop public support that will lead to acceptance and implementation of the plan.⁵⁴ In addition, public participation is required before approval of the state-EPA agreement on the extent of § 208 planning⁵⁵ and before formal adoption of the plan.⁵⁶ Public involvement in the preparation of the § 208 plan should be a part of the development of regulatory programs and the wasteload allocation process as well as a part of the process to determine the best practices for managing nonpoint source pollution.

In addition, the process of reviewing and revising state water quality standards and antidegradation policies must provide for meaningful public participation, including public hearings.⁵⁷ Public participation means keeping interested citizens informed and soliciting and providing for citizen input at all stages. In addition, public participation means involving all interested persons whether they be local, state, or federal officials, environmentalists, property owners, or industrialists.⁵⁸

A new handbook on public participation being prepared by EPA suggests that ten percent of the § 208 grants to a state should be expended to meet public participation requirements.⁵⁹ This money can be expended for such things as a newsletter for keeping interested citizens informed of developments and meetings, sending timely notices of hearings and meetings to interested persons, and providing an active outreach program.

Conclusion

Water quality management offers a new and comprehensive approach for evaluating water quality problems and developing solutions through a management plan. The plan must assure that water quality standards and state antidegradation policies revised to meet the 1983 goal of "fishable, swimmable" water will be achieved through, as necessary, enactment of enforceable legislation and regulatory programs for point and nonpoint sources of pollution. The plan, as well as the planning process itself, provides a wide-open opportunity for citizens and public officials to improve state and local efforts to achieve this clean water.

** Co-Director, Project on Clean Water, Natural Resources Defense Council. B.A. 1970, J.D. 1974, University of Kansas.

1. FWPCA § 101(a)(2), 33 U.S.C. § 125(a)(2), ELR 41101.

2. 40 C.F.R. pts. 130, 131, 40 Fed. Reg. 55334 (Nov. 28, 1975), ELR 46341-50:4.

3. 33 U.S.C. §§ 1288, 1313, ELR 41110-11, ELR 41112-13.

4. FWPCA § 101(e), 33 U.S.C. § 1251(e); see also text at notes 50-51 infra.

5. Council on Environmental Quality, Third Annual Report 16 (1972). See also Council on Environemental Quality, Sixth Annual Report 358 (1975).

6. Nonpoint sources include those activities, such as agriculture, silviculture, construction, etc., resulting in runoff of sediment and other pollutants.

7. A very few states such as Rhode Island designated the entire state.

8. As of June 30, 1975, 149 areas were designated, all receiving 100 percent funding. During fiscal year 1976, 27 more designations have been made, all receiving 75 percent funding.

9. See 40 U.S.C. § 461.

10. 40 C.F.R. § 131.20(h).

11. FWPCA § 208(c)(2)(A)-(I), 33 U.S.C. § 1288(c)(2).

12. Section 208 of the FWPCA requires 208 plans to include regulatory programs when submitted. However, the EPA regulations only require that the planned regulatory programs accompany the plans, an apparent departure from the FWPCA's requirements.

13. FWPCA § 208(b)(2)(C)(ii), 33 U.S.C. § 1288(b)(2)(C)(ii).

14. The term nonpoint source is sometimes used in this article for those types of pollution sources which are listed in § 208(b)(2)(F)-(K). In fact, several of the sources to be controlled are not, strictly speaking, nonpoint sources.

15. 40 C.F.R. § 130.15(d).

16. The Draft Guidelines for State and Areawide Water Quality Management program development (prepared by the Water Planning Division of EPA, Feb. 1976) contain some further explanation of the sort of regulatory programs needed but unfortunately devote only three pages to this crucial element of 208 management.

17. A useful background document is Compilation of Federal, State and Local Laws Controlling Nonpoint Pollutants (U.S.: EPA Document No. EPA-440/9-75-011).

18. FWPCA § 208(b)(2)(I), 33 U.S.C. § 1288(b)(2)(I).

19. FWPCA § 208(b)(4), 33 U.S.C. § 1288(b)(4).

20. 40 C.F.R. § 131.11(J)(1).

21. Id. § 130.2(q).

22. 33 U.S.C. §§ 1288, 1256, 1281, and 1284. Section 106 provides for a state water quality monitoring program and § 201(g) provides for funding publicly-owned waste treatment plants.

23. In San Antonio, Texas.

24. Text following note 22 supra.

25. FWPCA § 208(e), 33 U.S.C. § 1288(e). Grants for the construction of publicly-owned treatment works must also be in conformity with the plan. § 208(d), 33 U.S.C. § 1288(d).

26. 40 C.F.R. § 131.11(f)(1).

27. 40 C.F.R. § 131.11(g)(3).

28. Several people within the Agency felt the restrictions should more closely reflect the strong language that appears in the preamble and require the establishment of water quality standards that in all instances meet the 1983 goal. However, consideration of a previous legal position on water quality standards (see Letter from Alan G. Kirk, Assistant Administrator for Enforcement and General Counsel, EPA to Edward Dunkelberger, Covington & Burling, Dec. 18, 1974) and considerable pressure from the Office of Management and Budget (see Attachments to Letter from Russell Train, Administrator, FPA, Nov. 1976) forced the Agency to take the weaker position.

29. 40 C.F.R. § 130.17(a).

30. Id. § 130.17(b)(1).

31. Id. § 130.17(c)(4).

32. Id. § 130.17(c)(2).

33. Id. § 130.17(c)(1).

34. Id. § 130.17(c)(3).

35. Id. § 130.17(c)(1).

36. Environmental Protection Agency, Draft Guidelines for State and Areawide Water Quality Management Program Development, Ch. 5 at 5-6 (1976) (hereinafter EPA Guidelines).

37. See Environmental Protection Agency, Guidelines for Developing and Revising Water Quality Standards, April 1973.

38. EPA Guidelines, supra note 36, at 5-7 to 5-8.

39. FWPCA § 101(a), 33 U.S.C. § 1251(a).

40. 40 C.F.R. § 130.17(e)(1).

41. Note that this policy does not mean that water quality cannot go down at all: small increases in pollutant loads may be consistent with protecting the uses to which a water body could be put.

42. 40 C.F.R. § 130.17(e)(2).

43. Id.

44. Id.

45. Id.

46. 40 C.F.R. §§ 130.10(c)(5), 130.17(c), 130.40-43.

47. See text at note 34 supra.

48. See text at notes 39-40 supra.

49. Commonwealth Edison v. Train, No. 75-64127 (N.D. Ill., filed Dec. 5, 1975), summarized at ELR 65324.

50. FWPCA § 101(e), 33 U.S.C. § 1251(e).

51. EPA Guidelines, supra note 36, at 4-1.

52. 40 C.F.R. pt. 105.

53. Id. §§ 130.1(d)(3), 130.10(a)(1).

54. Id. § 130.20(a)(1).

55. Id. § 130.11(a).

56. Id. § 131.30.

57. Id. §§ 130.10(a)(3), 130.17(a)(1).

58. EPA Guidelines, supra note 36, at 4-5.

59. This document is not yet available from EPA as of this writing.