Pollution Without Solution: Flow Impairment Problems Under Clean Water Act Section 303

Abstract

This Article deals with one section of the CWA, section 303, and its implications for flow-impaired streams and related policy issues. While the CWA's main thrust is controlling pollution from 'point sources' through a system of permits and technology-based effluent limits, section 303 takes a different approach, focusing on the quality of individual waterbodies and requiring corrective steps for each one that falls below standards. Section 303 addresses not only point source discharges, but other human activities that affect the chemical, physical, and biological integrity of the nation's waters, including pollution from non-point sources, and perhaps even flow impairment. Thus, more than any other part of the CWA, section 303 may help bridge the management gap between water quality and quantity. Section 303 provides a means of making real progress in addressing the problem of flow-impaired streams, but it is not the complete answer. Part II deals generally with the CWA's potential to regulate water quantity-specifically, its ability to affect water allocations and uses that are generally governed by state law. Part III briefly reviews the text and implementing regulations of section 303, emphasizing their requirements for protecting and restoring the quality of individual waterbodies. Part IV looks specifically at how EPA and the states have applied-or more commonly, declined to apply-these section 303 requirements to flow-impaired streams. Part V examines the legal and policy rationale for addressing flow impairment problems under section 303, and offers suggestions on how EPA and the states can begin to make progress toward resolving these problems.