New Sources, New Growth and the Clean Water Act

Abstract

This Article is discusses the means by which the federal Clean Water Act addresses the problem of growth in connection with the achievement and maintenance of water quality standards. The article discusses those existing water quality standards requirements that most directly affect the issue of growth. These include two distinct, and largely unrelated, sets of requirements. First, the Article discusses those provisions that affect the regulation of new or expanded discharges on waters not yet meeting water quality goals. These include, among others, the provisions of the TMDL process that address the allocation of waste loads to account for growth, and the EPA's aborted proposal to require “offsets” by new or expanding facilities. Second, the Article discusses the effect of the EPA's “anti-degradation” provisions on the ability of new or expanded facilities to discharge into waters that are now achieving water quality goals. The article then discusses the relationship between these sets of requirements. Finally, the article discusses some of the challenges faced in revising the water quality standards program to deal effectively with the issue of growth.

Keywords: Clean Water Act, anti-degradation, impaired waters, high quality waters, tmdl, waste load allocation