Integrated Approaches To Water Pollution - Lessons From Clean Air Act (Robert W. Ad

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23 Harv. Envtl. L. Rev. 203, *
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Copyright (c) 1999 President and Fellows of Harvard College

The Harvard Environmental Law Review
1999
23 Harv. Envtl. L. Rev. 203
LENGTH: 43402 words
ARTICLE: INTEGRATED APPROACHES TO WATER POLLUTION: LESSONS FROM THE CLEAN AIR
ACT
NAME: Robert W. Adler*
BIO:
* Associate Professor, University of Utah College of Law, B.A., Johns Hopkins University, 1977; J.D., Georgetown University Law
Center, 1980. This Article was inspired in part by the author's participation in the Environmental Protection Agency's ("EPA's") Federal
Advisory Committee Act ("FACA") Committee on Total Maximum Daily Loads, a subcommittee of the National Advisory Council for
Environmental Policy and Technology. The author is indebted to David Driesen, Michael Wenig, Oliver Houck, Lydia Taylor, Susan
Sylvester, and Michael S. Haire for comments on drafts of this Article, and to Vicki Baldwin for her able research assistance. The author also
wishes to thank all of the members of the TMDL FACA Committee for their useful insights. All opinions and errors, of course, are the
author's own. This Article was funded in part by the University of Utah College of Law Excellence in Teaching and Research Fund.
TEXT:
[*203] I. INTRODUCTION
A. The Water Pollution Problem and the Need for an Integrated Approach
Significant water pollution problems remain throughout the United States n1 a quarter-century after enactment of
the Nation's major water pollution-fighting statute, the Clean Water Act ("CWA"). n2 These problems stem in large part
from inadequate programs to address cumulative harm to aquatic ecosystems from disparate and diffuse pollution
sources. n3 One viable solution would be to adopt enforceable controls on the largest remaining source of water
pollution: runoff from farms and other generally unregulated sources (so-called "nonpoint source pollution"). n4
[*204] Even if stricter runoff controls are adopted, though, discrete controls on individual sources of pollution
taken alone are not likely to remedy the broad range of chemical, physical, and biological insults to our aquatic
ecosystems. To restore fully the integrity of these ecosystems, a more integrated approach that transcends single-source
controls and addresses the range of impairments that affect the health of a single water body is needed. This suggests the
need for a comprehensive, watershed-based approach to aquatic ecosystem restoration and protection to augment n5 the
nation's water pollution control strategy. n6 Indeed, a watershed approach is at the heart of the Clinton Administration's
newly announced national water quality initiative n7 and in recent years has increasingly been the focus of the U.S.
Environmental Protection Agency's ("EPA's") water pollution efforts. n8
The litany of past failures to plan and implement watershed programs n9 suggests that these renewed efforts must be
designed with more rigor and attention to pragmatic concerns such as specificity, accountability, and enforceability.
Aside from water body-specific initiatives, one provision in the CWA stands out as having sufficient promise to meet
this [*205] challenge. Section 303(d) of the Act n10 calls on the states or EPA to calculate "total maximum daily loads"
("TMDLs") from all sources contributing to the pollution of a single water body, and to allocate among those sources
the pollution reductions necessary to correct the problem. n11 This provision of the law has been used only sporadically,
consistent with EPA's historical de-emphasis of the water quality standards program. n12 Recently, however, the
provision has been rejuvenated due to EPA's realization that TMDLs can serve as the "backbone of watershed
protection" efforts n13 and, more pointedly, in response to a rash of citizen suit litigation. n14
[*206] B. The Clean Air Act Analogy
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Watershed-based pollution controls in general, and the TMDL program in particular, bear striking similarities to
"State Implementation Plans" ("SIPs") and related area-wide planning and pollution control allocation requirements of
the Clean Air Act ("CAA"). n15 The CAA and the CWA are "sister" statutes. Both statutes, which were largely written by
the same pivotal members of Congress, n16 were enacted in their modern forms in the early 1970s in response to a new
public awareness and outrage about the extent and dangers of air and water pollution. n17 The statutes also share certain
important ideas and provisions. n18
Most notably, each law requires the EPA and the states n19 to adopt pollution controls based on two concurrent but
philosophically different [*207] regulatory strategies: n20 "technology-based" standards and ambient air or water
quality standards. Technology-based standards consider the economic and technological feasibility of pollution control
strategies regardless of environmental impacts. These standards are based on various definitions of the best pollution
control technology available for an individual pollution source (or category of pollution sources) n21 and are
implemented and enforced against individual sources. In contrast, ambient air or water quality-based standards are set at
levels deemed necessary to protect human health and environmental quality, without regard to technological feasibility
or economic impacts. These ambient standards are designed to address aggregate releases from multiple, usually
diverse, pollution sources. n22
In spite of the underlying similarity between the CWA and the CAA, n23 implementation of the statutes has differed
significantly. Administration of the CAA focused on a system of planning and controls designed to attain and maintain
national ambient air quality standards. n24 Administration of the CWA concentrated more heavily on implementation of
technology-based standards applicable to individual point sources of water pollution -- primarily industrial facilities and
public sewage treatment plants. n25 As a result, by the late 1980s, more progress had been made in controlling point
sources of water pollution, and more progress had been made in controlling a diversity of sources of air pollution within
regional airsheds. n26
Recognizing this disparity, Congress borrowed several important ideas from the CWA in drafting the 1990 CAA
Amendments. n27 It is too early to assess the effectiveness of these changes, n28 but implementation of [*208] the
technology-based provisions of the CAA now tracks more closely that of the CWA provisions. No similar effort has
been made, however, to improve the ambient standards provisions of the CWA (which has not been amended in over a
decade n29 ) to take advantage of the more extensive CAA experience with ambient standards and related programs.
In this Article, I hope to facilitate future efforts to improve the CWA's ambient standards provisions by identifying
positive and negative lessons from the CAA that may improve implementation of water quality standards, and
particularly the evolving TMDL program. Given the historical failure of most pollution control programs that work
backward from ambient standards to individual source controls, n30 the failure of the CAA to address adequately diffuse
sources of pollution, and other problems with CAA implementation discussed below, the nation's intractable water
pollution problems cannot be "fixed" merely by copying the CAA model. In the current political environment, however,
Congress is unlikely to subject nonpoint source water pollution to enforceable federal controls. The watershed-based
TMDL process is therefore likely to be "the only game in town" for some time, so it is important that this process be
implemented as effectively as possible. One thing is abundantly clear: the TMDL program is certain to fail if its
implementers do not learn from the checkered history of the SIP process.
This Article first outlines similarities in, and differences between, the ambient standards provisions of the CAA and
the CWA, both as [*209] written and as implemented. Part II also highlights the various problems in implementing the
two laws that are the focus of the subsequent discussion. Part III then analyzes specific approaches adopted in the CAA
and its regulations that suggest potential improvements in the CWA and its implementing regulations and policies. This
analysis also discusses many problems with implementation of the CAA program that should be avoided and notes
important differences between air and water pollution problems that necessitate distinct approaches.
II. A COMPARISON OF AMBIENT STANDARDS AND IMPLEMENTATION IN THE CLEAN WATER ACT
AND THE CLEAN AIR ACT
A. The Clean Water Act
1. The Nature of Water Quality Standards

The CWA labels ambient environmental standards "water quality standards" ("WQS"). n31 The statute and the
regulations divide these WQS into two components: "designated" or beneficial uses, which constitute the purposes for
which a water body is to be protected, and water quality criteria ("WQC"), which establish the conditions deemed
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necessary to protect those beneficial uses. n32 Together, these components establish the goals for individual water bodies
and provide one legal basis for pollution control decisions under the Act. n33
a. Beneficial Uses
Designation of beneficial uses involves value-laden considerations that result, to some degree, in state-by-state
"zoning" of the Nation's surface waters. n34 The CWA prescribes certain minimum beneficial uses -- notably water
contact recreation and protection of fish and aquatic life n35 -- [*210] but aside from these, states have some latitude in
deciding the particular uses for which individual waters should be protected. n36 In some cases, states may base
beneficial use designations on scientific factors. n37 In other cases, states may decide which uses to protect based on
economic or social policy considerations. n38 In concert with other provisions in the CWA, this decision-making latitude
indicates that Congress intended that states rather than the federal government should make most basic decisions about
water policy and related land uses. n39
b. Water Quality Criteria
Consistent with the basic nature of ambient environmental standards, water quality criteria are supposed to be
based on objective, scientific considerations, rather than economic or value-based considerations. n40 EPA issues WQC
guidance n41 that must "accurately reflect[] the latest scientific knowledge . . . on the kind and extent of all identifiable
effects on health and welfare." n42
Reflecting the complexity of aquatic ecosystems and the diverse sources and types of impairment addressed by the
CWA, n43 WQC are [*211] adopted in different forms to serve different purposes. n44 "Narrative criteria" are verbal
descriptions of water quality and other conditions of aquatic ecosystems, such as "no toxics in toxic amounts," "no
floatable wastes," or no "putrescible wastes." n45 Such standards can identify a wide range of chemical, physical or
biological characteristics deemed necessary to protect various uses. Purely narrative criteria, however, are imprecise and
difficult to apply to specific sources of pollution. More precise "numeric criteria" establish limits on the concentrations
of specific chemical pollutants or other quantitative indicators of water quality, such as temperature or level of dissolved
oxygen. n46 While more amenable to specific application, many numeric criteria address only the impacts of individual
pollutants or other water quality parameters, rather than the cumulative and synergistic impacts of multiple pollutants.
"Whole effluent toxicity" ("WET") criteria attempt to fill this gap by using test species to measure the combined toxic
effects of pollutants in a discharger's effluent or in the water body itself. n47 WET criteria typically establish the
permissible level of mortality to defined test species at specified concentrations of effluent. n48
[*212] Historically, water quality criteria focused on pollutant concentrations in the water alone, and not in other
parts of the aquatic ecosystem. This measure fails to account fully for the fate of many pollutants. For instance, some
pollutants that are physically or chemically deposited in the sediment of water bodies can smother or poison bottom-
dwelling organisms or destroy habitat. EPA is currently developing sediment quality criteria to fill this gap. n49 Water
column pollutant concentrations also fail to reflect the harmful effects of bioconcentration, biomagnification, and
bioaccumulation n50 -- processes by which some pollutants pass through the food chain and accumulate in living
organisms, including human consumers of fish and wildlife.
Each of these types of WQC (narrative, numeric (water column, sediment or biota), and WET) defines the desired
condition of a water body in largely negative terms, i.e., by defining conditions that will result in harm to designated
uses. n51 In addition, all of these criteria are limited in scope. Even WET criteria address only lethality due to chemical
toxicity, rather than the full range of impacts to aquatic ecosystems. Recently, EPA and the states have begun to use a
fourth type of WQC known as "biological water quality criteria," or "biocriteria." n52 Biocriteria differ from other WQC
in two significant ways. First, rather than focusing on the "tolerable effects" of pollution, biocriteria establish an
affirmative statement of desired ecological attributes by reference to such indicators as population, species diversity, and
trophic n53 level structure and function. n54 These attributes "are aims to achieve, not ills to avoid." n55 Second, because
they measure the health of the entire aquatic ecosystem by reference to actual species and population health, biocriteria
constitute [*213] a far broader measure of pollution impacts than other types of criteria. n56
2. Promulgation of Water Quality Standards

Water quality standards are usually promulgated by individual states, with statutorily mandated oversight by EPA.
The CWA affords states the initial opportunity to adopt standards that apply to their waters. n57 EPA must review and
approve those standards for compliance with the goals and requirements of the Act and EPA regulations. If a state fails
to promulgate the requisite standards, or if EPA deems those standards inadequate in whole or in part, EPA must
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establish the requisite WQS. n58 EPA affords states considerable latitude, however, to set WQS that differ from EPA's
own recommendations, or from those established by other states. n59 Thus, from a national perspective the system of
ambient standards established under the CWA is characterized by considerable variation among states, even those in the
same geographic region with similar or identical environmental conditions, and even those that share a single, interstate
water body. n60
Under the CWA, WQS adopted by the states (or EPA if necessary) must "protect the public health or welfare,
enhance the quality of water and serve the purposes of this chapter." n61 By regulation, EPA has interpreted the words
"serve the purposes of this chapter" to incorporate by reference the goals established in section 101(a) of the statute,
including the requirement to ensure that waters are fishable and swimmable wherever attainable. n62
The last element of WQS is the antidegradation policy. By regulation, EPA defines antidegradation as a required
component of a state's WQS, n63 but the policy is really a set of rules designed to prevent or to limit additional pollution
of waters that meet or exceed other applicable [*214] WQC, and for which beneficial uses are already protected. n64
The antidegradation policy is divided into three "tiers." "Tier one" of the policy provides simply that "existing instream
water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." n65
This is more than a restatement of the basic principle that individual WQC must be attained and maintained, because it
requires that all existing uses be protected as well as uses identified specifically in the WQS. n66 "Tier two" of the policy
requires that water quality better than necessary to protect the fishable and swimmable uses be maintained, subject to
certain exceptions. n67 "Tier three" of the policy requires, without significant exception, n68 that high quality waters in
"outstanding National resource" waters ("ONRWs") "shall be maintained and protected." n69 Notably, in sharp contrast
to the analogous CAA program, n70 [*215] EPA's antidegradation regulation lacks any detailed statutory underpinning,
although it has a long and legitimate history. The antidegradation policy actually predated enactment of the 1972 law
and was retained by EPA when it inherited the program from its predecessor. n71 The general language and purpose of
the 1972 Act support the antidegradation policy; Congress provided more explicit support, but little substantive
direction, in 1987. n72
3. Implementation of Water Quality Standards

Before 1972, "implementation" was built into the water quality standards themselves. Under the Water Quality Act
of 1965, n73 water quality standards were required to include (1) designated uses of waters; (2) numeric or narrative
criteria to protect those uses; and (3) an implementation plan. These requirements, however, did not promote adequate
WQS implementation. n74
The 1972 Act removed the requirement for a single implementation plan from the definition of WQS and replaced
it with a series of somewhat confusing, overlapping planning and implementation requirements spread throughout
various sections and subsections of the Act. Implementation of water quality standards is now addressed generally by
subsections 303(d) and (e), with specific control requirements included in other provisions.
a. Identification of Impaired Waters and Development of TMDLs
First, the CWA requires each state to identify those waters for which the first round of the Act's technology-based
standards n75 were not strict [*216] enough to implement any applicable water quality standard, and to rank such waters
in order of priority. n76 In 1978, EPA identified all pollutants as suitable for the issuance of TMDLs. n77 Within 180 days
of this identification, states were supposed to submit the first set of lists, n78 with additional submissions required "from
time to time" thereafter. n79
Next, states must identify a TMDL for each pollutant at a level necessary to implement the standard. In essence, a
TMDL n80 is the aggregate amount of pollution a state believes a water body can accept, stated conservatively, n81
without exceeding the water quality standard. n82 The lists of waters and accompanying TMDLs must be submitted to
EPA, which must approve the submissions or promulgate its own lists. n83 Whether prepared by the state or by EPA,
TMDLs next must be incorporated into the state's "continuing planning process," n84 described below.
[*217] The process of listing waters and accompanying TMDLs is one of several issues for which the CWA (in
part as originally enacted, and in part due to subsequent, layered amendments) contains a confusing set of overlapping
or seemingly inconsistent provisions. n85 Moreover, the statute's provisions as to the type and magnitude of monitoring
required to identify polluted water bodies, n86 and particularly as to the criteria for determining what constitutes a WQS
violation or water body impairment, are quite vague. n87 EPA has not substantially filled these gaps by regulation. n88
Although the agency has published extensive guidance on water [*218] quality monitoring and assessment procedures,
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states are free to use their own methods. n90 Because each of these components of the listing process is left to
n89
individual state discretion, the scope of the statutory listing obligation is highly variable and is the subject of
considerable debate. n91
Further complicating matters, the CWA requires each state, in a separate process, to identify and calculate TMDLs
for all other waters in the state -- that is, those not identified as unable to meet water quality standards after application
of the initial technology-based standards. n92 The CWA is unclear, but this list logically should include all waters that
meet WQS, as well as those that are not in compliance but for which the first round of technology-based standards was
deemed sufficient to attain the WQS. n93 This list, however, is only required "for the specific purpose of developing
information" and does not have to be submitted to EPA for review and approval. n94
Thus, through the listing and TMDL processes outlined in the statute, the states (or EPA) are supposed to identify
the amounts of pollution that can be tolerated by individual water bodies before WQS are violated. The TMDL
provision alone, however, does not expressly require states to identify the sources of pollution, the means by which load
targets will be achieved, or even the deadlines by which WQS must be attained. n95 This daunting implementation
problem is addressed by various other provisions [*219] of the statute, and by EPA regulations that augment the
statutory TMDL process. n96 As a result, the CWA's TMDL process -- like its monitoring and listing processes -- is
plagued by numerous overlapping and at times inconsistent provisions, including both general planning programs and
requirements and specific implementing provisions for different pollution sources. The task of reducing pollution from
aggregate pollution sources was to be coordinated through a series of planning provisions in the statute.
b. The Continuing Planning Process
The 1972 law included planning provisions designed to encourage area-wide waste treatment management, n97
along with sections designed to coordinate the CWA with the basin planning process under the now defunct Water
Resources Planning Act, n98 and various waterbody-specific programs. n99 A new nonpoint source planning provisions
was added in 1987. n100
The link between WQS, TMDLs, and implementation is clearest, however, in section 303(e), which requires states
to adopt a "continuing planning process . . . which will result in plans for all navigable waters within such state." n101
Among other things, the plans must include: effluent limitations and compliance schedules for point sources, designed
to implement both the technology-based and the water quality-based requirements of the Act; n102 all elements of area-
wide waste management plans under section 208 (described below); n103 the TMDLs developed under section 303(d); n104
and procedures and schedules to implement WQS. n105 [*220] Thus, at least superficially, Congress envisioned that the
continuing planning process would include specific plans to implement WQS in all waters, with the necessary pollution
controls for point sources imposed through effluent limitations under section 301, n106 and for nonpoint sources through
section 208 n107 areawide plans. Aside from the basic requirement for "adequate implementation, including schedules of
compliance," though, the statute does not specify how and when the ambient water quality standards are to be translated
into source-specific pollution controls. n108
c. Regulatory Allocation Requirements
This statutory gap is filled in part by EPA regulations that expand the function of the TMDL process to include the
allocation of the "acceptable" load of pollution among point sources, nonpoint sources, natural background levels of
pollution, a statutorily mandated "margin of safety," n109 and, at the state's option, a reservation for future growth (new
sources of pollution). n110 In short, the TMDL must address "the effect of all activities or processes that cause or
contribute to the water quality-limited conditions of a waterbody." n111 The portion of the TMDL attributed to a point
source is called a "wasteload allocation" ("WLA"); n112 while the portion attributed to a nonpoint source (or category of
nonpoint sources), along with natural background pollution, is called a "load allocation" ("LA"). n113
[*221] This regulatory allocation requirement, of course, begs a number of difficult and serious questions. For
example: How much of the acceptable load (or conversely, the needed pollution reductions) should be allocated among
various sources of pollution, and according to what principles? How much allocation should be made for a margin of
safety, and how much for future growth? The stakes of this zero sum game are high, as ultimately they will dictate the
degree of pollution control that must be achieved, and the accompanying costs that must be borne, by various entities
whose actions affect water quality within a watershed. Yet little EPA guidance has been provided on these issues. n114
d. Addressing Differences Among Water Quality Criteria
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Moreover, while requiring listing and TMDLs for all pollutants "preventing or expected to prevent attainment" of
WQS, n115 and for violations of all types of WQS (including apparently antidegradation criteria n116 ), neither the statute
nor EPA's regulations address the significant differences between various types of WQC. The TMDL process is best
suited to implementation of quantifiable forms of WQC. The process is most straightforward for chemical-specific,
quantitative WQC (such as a maximum concentration of X mg/L for pollutant A). For these criteria, in theory, the state
or EPA can calculate the amount by which ambient water quality exceeds the criterion; determine the amount of
pollution discharged by all sources that must be reduced in order to attain compliance; and allocate pollution reductions
among the identified sources.
Even for this easiest case, the process is complicated by an array of daunting technical problems, which are
addressed with varying degrees of precision and accuracy with the aid of an arsenal of models and other technical tools,
the adequacy of which is subject to debate. n117 First, adequate instream data are necessary to calculate the deviation
from the applicable [*222] WQC, which can vary significantly as discharge, runoff and streamflow conditions change.
n118
Second, concentration-based WQC must be converted to the total mass of pollutant responsible for the WQC
violation, and this mass must be allocated among different sources, again with uncertainties based on variable flow and
discharge conditions. Additional complications include the uncertain persistence, fate and transport of many pollutants
once discharged into a water body. n119 These many problems, of course, formed the basic justification for the
technology-based approach to water pollution control adopted in the 1972 law. n120
Other forms of WQC are even less amenable to rigorous quantification in the TMDL process. For example, a
narrative criterion might be violated due to excess odors from factory or sewage treatment plant effluent. While
corrective measures for such odors may be possible, they are less likely to be amenable to precise TMDL or wasteload
allocation calculations. Many types of impairments of designated uses, which may constitute violations of narrative
water quality criteria, n121 are caused by physical rather than chemical changes to aquatic habitat, such as channelization
of streams, withdrawals of water or other hydrologic modifications, or elimination or alteration of riparian vegetation.
These forms of impairment [*223] can be quantified, for example, in terms of the numbers of miles of channelization
or the percentage by which average flows differ from natural conditions, but it is unclear how to translate such figures
into load allocations attributable to individual pollution sources.
Violations of WET criteria can be quantified in terms of the degree of impact that an effluent or the receiving water
has on test organisms, and the regulations indicate that TMDLs may be established through a WET (i.e., biomonitoring)
approach. n122 It is more difficult, however, to translate such numbers into reductions in the volume or characteristics of
particular effluents. Rather, violations of WET criteria are more likely to lead to a process of trial and error by which the
responsible dischargers reduce or alter releases of potentially harmful chemicals until the toxic effects are reduced or
eliminated. n123 Similarly, violations of biocriteria can be quantified in terms of the degree to which the water body
deviates from the selected reference stream, but corrective measures must rely more on professional judgment than on
specific, calculated pollution reductions tied directly to a TMDL. It is clear, however, that water quality-based effluent
limitations in some form, including WET limitations, are required in such cases. n124
e. Applying the TMDL Process to Antidegradation Policy
A different problem is posed by the application of the TMDL process to antidegradation water quality criteria.
Indeed, at first glance it would seem inconsistent to apply the TMDL process to antidegradation "criteria" at all, because
these criteria are designed to protect waters that currently meet or surpass minimum WQC, while TMDLs appear
designed largely to redress WQC violations. As written, though, the statute is not so narrow. States are required to
identify those waters for which the initial technology-based controls "are not stringent enough to implement any water
quality standard applicable to such waters." n125 Because the phrase "any water quality standard" includes the
antidegradation requirements, n126 [*224] the provision is not limited to waters that currently violate WQC. An
antidegradation standard is "implemented" by taking steps to ensure that new or expanded discharges or other activities
do not degrade water quality in a water body that supports a designated use ("Tier One"), that the water body has water
quality better than necessary to meet WQC or to support designated uses ("Tier Two"), or that the water body constitutes
an "outstanding National resources water" ("Tier Three"). n127 Application of technology-based standards may not be
adequate to protect high quality waters under the antidegradation regulation. That is, these standards may not be
stringent enough to implement the antidegradation requirements. n128 Regulations and guidance memoranda indicate that
EPA agrees. n129 Moreover, even if high quality waters are not listed under section 303(d)(1), subsection 303(d)(3)
requires the listing and calculation, "for the specific purpose of developing information," of TMDLs for "all waters"
within the state not otherwise listed under subsection 303(d)(1). n130
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The manner in which the TMDL process should apply to antidegradation WQC is not entirely clear, nor is it
addressed in the statute or in EPA regulations. Tier One and Tier Two of the antidegradation policy [*225] prohibit any
decrease in existing water quality unless certain substantive or procedural standards are met, n131 and require that water
quality adequate to protect existing uses is maintained (as specified in Tier One). For these tiers, an antidegradation
TMDL might be used to calculate the increment between current water quality and the level of water quality deemed
necessary to protect beneficial uses, which would equal the WQC for water quality parameters for which numeric
criteria exist. This "negative" TMDL would represent the maximum increase in pollution of the water body before use
degradation occurs, as compared with traditional TMDLs, which identify the necessary decrease in pollution in order to
meet WQC and attain beneficial uses. n132 TMDLs would appear to have no utility for Tier Three of the antidegradation
policy, which flatly prohibits degradation of ONRWs, except perhaps to identify in advance specific activities or types
of activities that would constitute unacceptable degradation.
f. Implementation of a TMDL
i. Point Sources
Once the TMDL and its various component allocations are calculated, n133 statutory mechanisms with varying
degrees of rigor and effectiveness [*226] exist to implement those allocations. From a procedural and enforcement
perspective, the provisions addressing point sources are strict and relatively clear. By July 1, 1977, point source controls
were supposed to include more stringent effluent limitations as needed to meet any WQS. n134 Such requirements were to
be included in the permits required of all point source dischargers, n135 and compliance with permit terms was to be
enforceable by states, EPA, and citizens through administrative, civil, and criminal sanctions. n136
The statute is silent, however, as to the actual content and stringency of water quality-based permit limitations. The
simplest case occurs when a WQS is violated entirely due to discharges from a point source of chemical pollutants
subject to numeric WQC, after implementation of applicable technology-based controls for that source. Presumably, in
this case, stricter water quality-based numeric effluent limitations would have to be imposed to eliminate the violation.
In cases in which WQS violations occur due to discharges from multiple point sources, the statute and regulations leave
it to the states to decide who will bear what share of the incremental pollution reduction burden. At a minimum,
however, the sum of the water quality-based effluent limitations for all contributing point sources must be adequate to
ensure compliance with the WQS.
ii. Nonpoint Sources

Implementation of TMDLs may be more complex for waters impaired in whole or in part by nonpoint sources. n137
Unlike the statute's analogous point source controls, the nonpoint source control provisions [*227] do not require the
states or EPA to impose pollution controls tied precisely to WQS, nor do these provisions include a statutory deadline.
Nonpoint source pollution was addressed in sections 201 and 208 of the 1972 Act, which required the preparation of
areawide waste treatment management plans designed to "provide control or treatment of all point and nonpoint sources
of pollution." n138 Such plans were subject to EPA review and approval, and inadequate plans could lead to denial of
federal grant funds and other tangential sanctions. n139 In sharp contrast to the analogous point source controls, EPA
lacked the authority to develop and implement a nonpoint-source plan if a state failed to do so, or if the state plan was
inadequate. n140
Section 208 required, inter alia, identification of various categories of nonpoint source pollution, and development
of "procedures and methods" to control those sources "to the extent feasible" -- known typically as "best management
practices" or "BMPs." n141 Section 208, however, included no specific requirement to match the controls selected or
implemented under the plan with what was necessary to attain or maintain WQS, as determined through TMDLs or
otherwise. n142 Moreover, the requirement that BMPs be "feasible" suggests a technology-based rather than water
quality-based approach to BMP selection. In other words, while requiring general nonpoint-source pollution control
practices, the [*228] law included no numeric, water quality-based effluent limitations for nonpoint sources.
In 1987, Congress added a new program to address nonpoint source pollution (section 319). n143 While requiring
new lists of waters impaired by nonpoint sources of pollution, n144 and new statewide plans to redress that pollution, n145
section 319 adds little rigor to the Act's nonpoint source controls. n146 The provision includes a general requirement that
states develop new programs on a watershed-specific basis "to the maximum extent practicable." n147 This requirement
suggests the need for states to focus on specific water quality problems, including WQS violations, in individual
watersheds. Aside from this vague admonition, however, section 319 did little to remedy the lack of a precise
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requirement for states to match specific management practices with the degree of control necessary (in combination
with new and existing controls on point sources) to meet WQS. Moreover, although section 319 authorizes EPA to
conduct listing and assessment if a state fails to do so, n148 like section 208, it contains no express authority for EPA to
prepare or implement a nonpoint source pollution control program if a state's program is nonexistent or inadequate. n149
For waters impaired by both point and nonpoint source pollution, this lack of precision in the nonpoint source
program adds significant uncertainty to water quality-based controls for point sources as well. Certain sections of the
statute could be read to require that, absent rigorous nonpoint source controls, water quality-based effluent limitations
must be set at levels adequate to meet WQS without any controls on nonpoint sources. n150 This interpretation would
score well in terms of efficacy, [*229] as point sources are subject to rigorous controls tied expressly to WQS
compliance, n151 but poorly in terms of equity, as point sources would be required to bear more than their share of
pollution control obligations. The legislative history of section 303(d) suggests, however, that Congress knew point
source controls likely would not be adequate to meet WQS for all waters. n152 Given this realization, and the simple fact
that nonpoint sources contribute significantly or predominantly to most remaining water quality problems, n153 a TMDL
process that neglected to impose controls on nonpoint sources would be insufficient to solve water quality problems in a
large percentage of water bodies. n154
With respect to whether new point source discharges may be allowed for waters that already violate WQS, n155 the
U.S. Supreme Court rejected the notion that an individual point source or, by implication, point sources taken together
must bear the burden of correcting the problem. n156 The Court's legal conclusion presents significant problems in
[*230] conjunction with the license that EPA has given states to allocate required pollution reductions through TMDLs
that include both WLAs for point sources and LAs for nonpoint sources. The WLAs for point sources can and must be
implemented with specificity and rigor through numeric effluent limitations in enforceable national pollutant discharge
elimination system ("NPDES") permits. Nevertheless, there appears to be no statutory or regulatory link between the
LAs for nonpoint sources and any management measures or practices adopted under sections 208 or 319. Even if such a
link is forged by the state, there is no clear requirement that such corrective measures be implemented through a
mandatory or enforceable approach. Thus, if a TMDL allocates half of the necessary pollution control to point sources
and half to nonpoint sources, there is reasonable legal assurance only that half of the problem will be solved. n157 As
argued below, n158 EPA could require more precision in the nonpoint source program as well, and for waters impaired by
both point and nonpoint sources, through a more expansive but still logical interpretation of the Act.
B. The Clean Air Act
1. The Nature of Air Quality Standards

In the CAA, ambient environmental standards are known as "National Ambient Air Quality Standards"
("NAAQS"). n159 The statute directs [*231] EPA to identify and to publish a list of pollutants "[the] emissions of
which . . . cause or contribute to air pollution which may reasonably be anticipated to endanger public health or
welfare." n160 Within one year after identification of any such pollutants, EPA is required to issue air quality criteria that
"accurately reflect the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on
public health and welfare." n161 The Act further requires EPA to promulgate NAAQS for all pollutants for which it has
issued air quality criteria. n162 In spite of congressional expectations that more NAAQS would be forthcoming, n163
however, EPA has only promulgated NAAQS for six air pollutants (the so-called "criteria air pollutants"). n164 The scope
of the SIP process and, in turn, regulation under the Act as a whole are therefore somewhat limited. n165
[*232] 2. Designation of Air Quality Control Regions

Attainment and maintenance of the NAAQS is governed by an integrated and comprehensive statutory program,
bound together largely by the state implementation planning process. n166 All airsheds in the country are to be assessed
for compliance with standards for each of the six criteria pollutants. States must then develop plans to ensure future
compliance, either through programs to correct existing violations or through prevention programs designed to maintain
air quality in clean areas.
Each State shall have the primary responsibility for assuring air quality within the entire geographic area
comprising such State by submitting an implementation plan for such State which will specify the
Page 10
manner in which national primary and secondary ambient air quality standards will be achieved and
maintained within each air quality control region in such State. n167
This general requirement must be met by dividing each state (and hence the entire country) into separate air quality
control regions ("AQCRs"). n168 The State and EPA n169 must then designate each AQCR as "nonattainment,"
"attainment" or "unclassifiable" for each criteria pollutant. n170 Once an area is designated nonattainment, strict, uniform
national rules govern any effort to redesignate the region to attainment status. n171 Through this comprehensive system,
the compliance status of each AQCR throughout the country is supposed to be known with respect to each criteria
pollutant, according to a uniform national set of criteria and rules for monitoring and for interpreting those criteria. The
"unclassifiable" [*233] designation, however, which is supposed to be limited to areas with inadequate data to
ascertain attainment status, apparently has been abused to avoid more stringent source controls, and has provided an
incentive to avoid collecting the data needed to determine attainment. n172
EPA has also issued uniform procedures for air quality monitoring and assessment and fixed rules for determining
when the NAAQS are violated. n173 In theory, this combination of uniform national standards and methods for
determining attainment assures that different parts of the country will be held to the same norms for clean air. In
practice, though, this uniformity can break down when states manipulate the attainment designation process based on
the number and location of monitors, and "game" air quality models to achieve the desired results (i.e., attainment). n174
Moreover, the existing monitoring network is far from sufficient to measure actual air quality in all locations. n175 EPA
addresses this problem in part by requiring areas to be designated nonattainment where violations are predicted by
modeling alone, even in the absence of actual data indicating criteria violations. n176 Even with this proviso, however,
there is evidence that some states avoid nonattainment status by manipulating their air quality models. n177 These many
problems have caused some [*234] to suggest that, while states should remain responsible for designing and
implementing programs to attain the NAAQS, EPA should establish a national air sampling and assessment network
with uniform monitoring methods and assessment criteria. n178
3. Implementation of Air Quality Standards

a. The State Implementation PlanProcess
Section 110 of the CAA requires each state to "adopt and submit to [EPA] . . . a plan which provides for
implementation, maintenance, and enforcement" of primary and secondary NAAQS in each AQCR of the state (i.e.,
SIPs). n179 In theory, states are given tremendous flexibility to choose whatever mix of controls they deem appropriate to
meet local economic and environmental conditions, so long as the standards are attained and maintained. n180 As
discussed later, however, the statute and regulations became more prescriptive as deadlines passed with continuing
NAAQS violations around the country. Ultimately, a state's failure to submit an approvable plan is supposed to result in
promulgation of a Federal Implementation Plan ("FIP") by EPA. n181
The SIP requirements are immensely detailed and complex and are beyond the scope of this Article. n182
Nevertheless, the most important aspects [*235] of the SIP process can be summarized fairly readily n183 for purposes
of identifying the major similarities to, and differences from, the analogous CWA programs. Most fundamentally, each
SIP must provide sufficient pollution controls for all sources in an airshed emitting a particular pollutant to ensure
attainment and maintenance of the NAAQS. n184 This demands a structured, quantitative approach whereby the State
must evaluate existing air quality; n185 develop a "detailed inventory of emissions from point and area sources,"
including measured or estimated (where data are unavailable) emissions from all sources; n186 and develop an inventory
of emissions projected to continue after implementation of the plan's control measures. n187 Based on these projections
and the use of air quality models, n188 each SIP must demonstrate that the combination of selected controls is sufficient
to attain and maintain the applicable standard in a timely fashion. n189 By regulation, the SIP must include expeditious
deadlines for attainment of the standards, althoughextensions are available both by rule and by statute. n190 The SIPs
must include demonstrations of attainment for areas that fail to meet the standard, maintenance of air quality in regions
currently in attainment, and preventive controls for threatened airsheds. n191 Finally, once approved by EPA, all elements
of a [*236] SIP -- whether they pertain to stationary, area, or mobile sources -- become legally enforceable, by
governments and citizens alike, as a matter of federal law. n192
b. Specific Requirements for Prevention of Significant Deterioration Areas and Nonattainment Areas
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The Prevention of Significant Deterioration ("PSD") program and the Nonattainment Plan Requirements,
respectively, and more specific substantive requirements to this basic framework for areas that currently meet the
applicable NAAQS or are designated "unclassifiable," n193 and for areas not yet in compliance. Each AQCR must fall
within one of these categories, so one of the sets of statutory rules applies to each AQCR in the country for each criteria
pollutant.
The PSD program includes a series of measures designed to ensure that clean airsheds remain in compliance with
the standards. n194 For example, under specific statutory requirements for sulfur oxides and particulates, n195 total
increases in emissions from all sources are limited by a system of "increments and ceilings." "Increments" are
"maximum allowable increases over baseline concentrations [of pollutants]." n196 The CAA sets these maxima for each
pollutant for different "classes" of airsheds. n197 [*237] Ceilings are "maximum allowable concentration[s]" of
pollutants in the airshed, defined simply as the lower of the primary or secondary NAAQS for that pollutant. n198 PSD
requirements for other pollutants are determined by EPA regulations, which must be "at least as effective as the
[statutory] increments established" for sulfur oxides and particulates. n199 Moreover, major new or modified sources in a
PSD airshed n200 are subject to "new source review" requirements that include a combination of technology-based and
air quality-based requirements. Such sources must use the "best available control technology" n201 and other controls
necessary to ensure that it does not "cause, or contribute to, air pollution in excess of" the applicable increments and
ceilings. n202 New source review must evaluate not only the direct emissions from the new or modified source, but also
"any air quality impacts projected for the area as a result of growth associated with such facility." n203
Additional requirements for nonattainment SIPs are prescribed in detail in Title I, Part D of the statute, with even
more detail added in the pollutant-specific amendments adopted in 1990. Most fundamentally, the statute requires that
nonattainment SIPs must "provide for attainment" of the primary standards, n204 according to specific interim and final
deadlines. n205 This entails a quantitative demonstration that identified control measures will succeed in meeting the
standard by the applicable attainment [*238] date, according to specified annual increments known as "reasonable
further progress." n206 In each SIP, states must develop a rigorous emissions inventory that calculates total emissions
from all existing sources, n207 and that projects future emissions from major new and modified sources after
implementation of identified control strategies, which must be "consistent with the achievement of reasonable further
progress" and attainment and subsequent maintenance of the standards. n208
Timely attainment was to be achieved through implementation of "all reasonably available control measures,"
including minimum technology-based requirements for major stationary sources, n209 along with "enforceable emissions
limitations, and . . . other control measures, means or techniques," n210 and contingency measures in the event that the
initial plans do not succeed. n211 Emissions limitations for major n212 existing and [*239] new or modified stationary
sources must be implemented through permits designed to ensure compliance both with the minimum technology-based
requirements of the Act, n213 and with a system of "offsetting emissions reductions" for new and modified sources under
which any new emissions must be offset by emissions reductions from other sources sufficient to attain the standards.
n214
This system accommodates economic growth in nonattainment areas as long as the net result is adequate progress
towards attainment. The law places the responsibility for finding (or purchasing) such offsets squarely on the shoulders
of the potential new sources, however, in ways that theoretically encourage economically efficient strategies for air
pollution control. n215
In the 1990 Clean Air Act Amendments, n216 Congress significantly augmented the requirements for nonattainment
SIPs, adopting extraordinarily detailed new requirements specific to individual criteria pollutants n217 and to different
degrees of nonattainment. n218 For the most part n219 the new provisions continued (with considerably more statutory
specificity) the basic nonattainment policies described above, including specific attainment deadlines, n220 detailed
emissions inventories, n221 the requirement of "reasonably available control measures" for major existing sources, n222
emissions offsets for new and modified sources, n223 and reasonable further [*240] progress. n224 In addition, while
Congress required specific control measures only for major existing and new stationary sources before 1990, n225 in the
1990 Amendments it prescribed specific required controls for other sources as well, especially mobile sources. n226 The
very fact that Congress elected to add so much more detail, however, indicates that it took careful note of the areas in
which the less detailed pre-1990 provisions failed to attain the standards n227 and adopted what it viewed as appropriate
midcourse corrections. Although some states may believe that such detailed requirements constitute unreasonable and
inflexible federal micromanagement of the SIP process, n228 Congress apparently believed that states, left to their own
devices, had not made sufficient progress towards attainment of the NAAQS on a national level.
c. Critiques of the SIP Process
Page 12
Despite its many attractive features, the SIP process suffers from some substantial flaws, leading to ongoing
nonattainment of the NAAQS in a large number of airsheds. n229 These problems fall roughly into three categories: (1)
the SIP process is extremely complex and burdensome; (2) the process of developing SIPs is amenable to "gaming"; and
(3) substantive requirements for indirect and mobile sources (e.g., automobiles) have been diluted politically, and
sanctions for inadequate state action have been weak or timidly applied.
[*241] i. Complexity and Delay in the SIP Process

The complexity of the SIP process arguably explains both its strengths and weaknesses. The level of detail and
mandatory nature of many SIP requirements ensures a significant amount of rigor and enforceability in the process and
in its resulting controls. n230 Indeed, some argue that the system is still too flexible to provide adequate enforceability,
and that program integrity and effectiveness will be compromised absent careful federal review of state programs. n231
On the other hand, this rigor -- which some call excessive rigidity -- stimulates significant criticism by the states and by
regulated parties. n232 Of course, states also complain, somewhat inconsistently, that flexible SIP approval criteria leads
to uneven and hence unfair treatment of different states. n233
Under the current system, SIP development and approval consumes an immense amount of state and federal
resources, n234 leading to multi-year program delays n235 that persist despite frequent attempts at program [*242] reform.
n236
Extensive delays are caused in part by the multi-layered, "double key" nature of the SIP approval process, n237
especially as applied to even the most minor SIP changes, n238 and by the need for a full new round of state revisions and
EPA approvals with every change in the underlying program. n239 All told, the complexity of the system, its frequent
changes, [*243] its omnipresent oversight regardless of the magnitude of the issue, and its chronic delays continue to
cause friction between EPA and the states and confusion on the part of both states and the regulated parties about actual
regulatory obligations. n240
ii. Gaming the SIP System

A second major concern about the SIP process is the extent to which the system can be "gamed." Mathematical
models provide a quantitative basis to predict whether the combination of controls chosen will achieve the statutory goal
of attainment and maintenance of the NAAQS. Nevertheless, model results are less than completely accurate, n241 and
reliance on models invites debates over which model is most appropriate for particular circumstances n242 and which
data and assumptions are most appropriate to use for a specific SIP. n243 The use of models in lieu of definitive proof is a
useful antidote to the financial and practical limitations of inadequate [*244] monitoring networks, allowing progress
in the face of inevitable uncertainty. n244 Yet the same characteristics lead critics to charge that models are abused to
avoid stricter obligations, n245 that states produce "cheater SIPs" that the state never intends to implement, n246 and that
emissions inventories base attainment or maintenance predictions on unrealistically optimistic assumptions, n247
questionable baselines, n248 paper offsets, n249 or emissions reductions that never materialize. n250 Moreover, the fact that
models and other assumptions are open to challenge on so many grounds [*245] injects still more potential for delay
into the SIP process and its resulting pollution controls. n251
iii. SIPs and Automobiles

A third major problem with the SIP process is the manner in which it addresses pollution from mobile sources. n252
Automobiles are probably the single biggest reason for continued NAAQS nonattainment in urban and suburban regions
throughout the country. n253 Moreover, both sets of problems are tied closely to land use policies that traditionally lie in
the state and local domain. n254 Hence, federal solutions to both problems are not only evasive from a technical
perspective, but are most likely to run into a wall of political resistance and legal challenges on federalism grounds.
In one major sense, the CAA has dealt with mobile source pollution quite effectively. Reductions in tailpipe
emissions through mandatory statutory controls on vehicle manufacturers n255 are credited with some of the most
dramatic overall reductions in emissions of several pollutants. n256 Similar benefits have been achieved through other
controls imposed at the national level, such as the elimination of leaded gasoline n257 and other [*246] mandatory
changes in fuel composition. n258 These controls have substantially reduced emissions per vehicle mile traveled
("VMT"). Unfortunately, the equally dramatic rise in VMTs as Americans become moredependent on cars have more
than offset the reductions in emissions per VMT. n259 This side of the problem has been far more difficult to address, n260
as has been the battle to require state programs to inspect existing motor vehicles and to require vehicle repairs
Page 13
necessary to maintain acceptable emissions levels ("I/M programs"). n261

For purposes of identifying lessons for the
budding TMDL program, the history of this effort is instructive.
Controlling the growth in VMTs requires complex strategies that go to the heart of land use, energy and
transportation policy in the United States. n262 These strategies include investment in public transit systems,
transportation policies such as parking fees and tolls that discourage reliance on automobiles, "indirect source reviews"
("ISRs") n263 to evaluate and account for the effects of new developments on traffic, and changes in land use that reduce
commuting distances n264 and facilitate the use of public transit and other modes of transportation. The CAA began with
an aggressive policy towards these issues. As originally written, section 110 of the Act required SIPs to include all
measures necessary to meet the [*247] NAAQS, including land use and transportation controls. n265 Early EPA
approval of SIPs without such measures was thwarted by litigation, n266 which led to the issuance of new SIP
regulations, the disapproval of every SIP in the country, n267 administrative and civil enforcement efforts by citizens n268
and EPA, n269 and the controversial EPA promulgation of FIPs with such measures as gasoline rationing in California. n270
While arguably faithful to legislative intent, n271 these aggressive judicial and administrative efforts to implement
the land use and transportation requirements of the CAA met with backlash at virtually every level. Land use, ISR, and
transportation provisions of SIPs were challenged on statutory n272 and constitutional n273 grounds, and through wars of
attrition, in which states avoided requirements through resistance, protracted litigation, and constant changes to SIPs.
n274
Moreover, even where EPA was winning in court, the political reaction was retreat both in the agency and in
Congress, resulting ultimately in the withdrawal of EPA's authority to disapprove SIPs without adequate ISR provisions,
and to promulgate [*248] FIPs that included them. n275 According to one commentator, this retrenchment caused "a
yawning breach in the effectiveness of clean air legislation." n276
EPA's ISR authority, along with its accompanying authority to enforce these requirements directly or to promulgate
transportation controls in FIPs in the face of chronic state inaction, was replaced in the 1977 amendments. In the revised
version of section 172 of the Act, n277 for example, stateswere given another decade to attain the NAAQS for autorelated
pollutants, but only if all reasonable control measures were implemented, n278 including the eighteen transportation
control measures ("TCMs") listed in section 108(f) of the law. n279 These requirements were backed up by a new set of
sanctions against delinquent states, including the withholding of federal highway funds n280 and prohibitions on the
construction or modification of major stationary sources in nonattainment areas. n281 Both types of sanctions were used
with only limited effect, however, n282 and EPA continued to approve inadequate SIPs, despite admonitions from the
courts, n283 in lieu of taking the politically difficult road of SIP disapproval and FIP promulgation. n284
EPA's authority to address traffic-related pollution was diluted further in the 1990 amendments, which disclaimed
any intent to displace local land use authority n285 and required states to consider the full set of [*249] TCMs only in
the most polluted airsheds. n286 For other areas, the 1990 Amendments replaced TCMs with a cross-compliance
requirement tied to federal funding of highways and other transportation projects. These provisions require states to
show that transportation programs "conform" to the SIP through a detailed mobile source emissions inventory and
projection. n287 At the same time, Congress provided more funding for mass transit in the federal transportation statute,
in an effort to assist states to improve air quality by reducing automobile traffic. n288 Unfortunately, the problems with
emissions inventories and modeling that plague SIPs in general n289 are compounded in the transportation conformity
process, which requires the use of transportation demand and traffic projection models that are every bit as amenable to
"gaming" as air quality models. n290 So far, the new program appears not to have worked any better than the old. n291
All told, although the mobile source control requirements of the CAA are substantially more rigorous than the
analogous nonpoint source pollution control provisions in the CWA, the requirements have been only moderately
successful in curbing auto-related air pollution. The most effective controls have been those adopted at the national
level, including the tailpipe emission standards imposed directly on automobile manufacturers and vehicle fuel
requirements imposed directly on gasoline refiners. n292 Requirements for state I/M programs have had some limited
success, in part because EPA has used the available statutory sanction of withholding federal transportation funding
effectively to prod states into compliance. n293 The requirement that states (and localities) address chronic vehicle-related
air pollution through fundamental changes [*250] in land use and transportation policy, however, have met with far
more serious political resistance, less political backbone in Congress, and more timid EPA reliance on available
sanctions. n294 To some, this political history simply reflects the "problems of incorporating air quality concerns into
local decisions, including the problem of making or directing local decisions from the national level." n295 To others, it
shows the inadequacy of the sanctions now included in the law and the difficulty of imposing adequate federal sanctions
against states for "collective political failures." n296 Finally, to still others, this history indicates EPA's lack of political
Page 14
fortitude in using the sanctions it does have in its arsenal. n297 Of course, the battle against increased auto use also
crashes head-on into almost a century of land use and transportation policy in the United States based almost entirely on
building highways. n298 Whatever the correct explanation, the checkered history of mobile source SIP controls under the
CAA does not bode well for the more vague and less enforceable provisions for nonpoint source control under the
CWA, even when fortified by the TMDL process. Still, through its arsenal of tailpipe controls, fuel requirements,
vehicle inspection and maintenance programs, transportation controls, and other measures, the SIP process is stronger
than corresponding programs to control nonpoint sources under the CWA. The SIP process should therefore be
considered by EPA and the states as the TMDL program evolves to address both point and nonpoint sources of
pollution.
III. LESSONS FROM THE CLEAN AIR ACT
EPA and the states are now working to design and implement more rigorous and comprehensive TMDL programs
to attain and maintain water quality standards. As this work proceeds, the more intensive experience with ambient
standards implementation under the CAA offers both positive and negative lessons. These lessons can be divided into
three general categories: (1) defining the problems: development of programs to adopt appropriate standards, to monitor
ambient environmental quality, and to identify the areas in which the standards are attained and violated; (2) planning to
solve the identified problems: translation of the ambient standards into meaningful controls to correct and prevent
violations; and [*251] (3) constraining the planning process: formulation and implementation of substantive rules
governing permissible amounts of pollution in both attainment and nonattainment areas. Lessons in each of these
categories are elaborated below, although several key differences between air and water pollution may qualify the
validity of these lessons.
A. Defining the Problem: Setting Ambient Standards and Identifying Threatened and Impaired Areas
1. Consistency in Standards, Monitoring, and Listing

Air quality criteria and NAAQS parallel water quality criteria and WQS in several important respects. Both are
designed to establish goals for ambient environmental quality and to address cumulative pollution from multiple and
diverse sources. Both are designed to protect against identifiable effects on human health and welfare. Both are
supposed to be based on purely scientific considerations, that is, to be set at levels requisite to protect human health and
the full range of environmental values irrespective of cost or technological feasibility.
A key distinction between the two types of criteria and standards, however, is the manner in which and uniformity
with which they are established. By statute, WQS are adopted primarily by individual states based on EPA guidance and
subject to EPA review and approval, and therefore vary widely given the significant latitude EPA has shown the states in
the approval process. Moreover, no uniform rules govern the methods and procedures by which compliance with these
disparate WQS must be determined, or even the rules that dictate when a violation of the WQS is triggered. n299 By
contrast, a single set of NAAQS adopted by EPA [*252] apply uniformly throughout the country. n300 Moreover, the
NAAQS are accompanied by a uniform set of procedures for monitoring and assessment, and fixed rules for
determining when the standards are met and when they are violated. n301 While the CAA system of monitoring and
attainment designation is vulnerable to considerable manipulation, n302 it is likely that much more parity exists under the
CAA than under the CWA, where the system is designed to vary greatly.
To some degree, this difference in approach is consistent with the different focus of the pollution control programs
under the two statutes, at least until the recent TMDL revolution. In the SIP regime, the stakes of designating an AQCR
as nonattainment rather than attainment are high. It is time-consuming and resource-intensive to prepare a
nonattainment SIP, and the plan itself likely will impose controls with serious economic consequences in the region.
Thus, it was imperative that the national system by which regions were classified was relatively fair and evenhanded, if
for no other reason than to ensure the political viability of the program. The SIP system was designed so that particular
states were not forced to implement a difficult, expensive, and politically divisive program of planning and controls
while other states, though similarly situated in terms of ambient pollution levels, faced fewer and weaker obligations.
n303
Until recently, the stakes were not so high under the CWA's ambient standards program, because EPA did not force
states to implement [*253] the TMDL requirements of the CWA in the same way that it forced them to implement
SIPs. Now that EPA and the states are being forced through litigation to implement the TMDL program
comprehensively, a similar level playing field is appropriate under the CWA.
Page 15
It is neither possible nor the purpose here to resolve the difficult philosophical debate about the wisdom of uniform
national ambient standards versus a system that produces fifty sets of disparate state standards, which sometimes results
in different standards applying to the same water body across an artificial geopolitical border. Each side in this debate
can draw on powerful arguments. n304 Clearly, however, the system of uniform national standards under the CAA has the
advantage of providing a single consistent norm by which to judge ambient environmental quality in each region of the
country. As a result, state air pollution control obligations are supposed to vary only according to actual differences in
ambient air quality.
In contrast, under the CWA system, states may choose widely divergent water quality standards based on different
economic and political judgments, which results in substantial differences in control obligations that are unrelated to
actual differences in water quality. For example, if State A has relatively strict WQS, it might face the prospect of listing
thousands of water bodies and the resulting obligation to develop, implement, and enforce TMDLs for each water body.
At the same time, State B, with weaker WQS, might have to list or develop TMDLs for few if any water bodies despite
equal or greater levels of "pollution." Aside from troubling issues of equity, this disparity can have real impacts on the
efficiency and efficacy of both federal and state water pollution control efforts. A state with stricter WQS and therefore
more listed waters must devote considerable time and effort to the TMDL process compared to its lax neighbor, despite
having water that is equally or more clean. Similarly, if EPA is drawn into the process via its mandatory duty to list
waters and to develop TMDLs for delinquent states, it might be forced to spend considerable time and money in some
states compared to others, in ways that relate poorly to actual levels of pollution. In short, as more resources are devoted
to the TMDL program in both the public and private sectors, the case for an evenhanded system of WQS among the
states becomes stronger.
Uneven implementation among states is exacerbated by the absence of a consistent set of rules and procedures by
which states monitor ambient quality and reach judgments about whether or not the standard is [*254] met. n305 Under
the CAA, each state is subject to the same requirements regarding the nature, amount and location of monitoring, and to
fixed rules for determining when a NAAQS violation occurs. Under the CWA, the EPA addresses such issues through
guidance, if at all. Thus, even if two states have identical WQS for a given pollutant, water bodies might be listed in one
state but not the other, based only on differences in the methods, frequency, and location of monitoring, or on different
criteria for deciding what constitutes a violation. n306
Of course, there are more legitimate reasons to establish variable water quality standards than variable air quality
standards. The nature of air does not differ greatly throughout the country, at least in ways relevant to the establishment
of air quality standards. Moreover, most of the air quality standards are designed to protect human health, and the
human health effects of air pollution are not likely to vary greatly, if at all, among citizens of different states. Water
bodies can differ significantly in many ways that might be relevant to the establishment of water quality standards, n307
especially for standards designed to protect ecological as opposed to human health. Unfortunately, however, many
differences among state WQS cannot be explained by objective differences in ecology, climate, and similar parameters.
n308
There are ways for EPA to ensure more consistency among state WQS even given legitimate differences in
conditions. For example, EPA can recognize differences between cold water and warm water fisheries, but not tolerate
significant differences between WQS designed to protect similar or identical aquatic resources. EPA can acknowledge
that different species exhibit varying sensitivities to pollution, but not allow different water quality standards for waters
with the same or similar species. EPA can insist that WQS designed to protect human health are based on the same or
similar assumptions on such issues as fish or water consumption, risk levels, bioaccumulation, and toxicity. n309 EPA can
require that uniform WQS apply to interstate waters, n310 absent legitimate scientific differences between different
portions of a waterway.
[*255] It can also be argued that adoption of uniform NAAQS was easier because so few criteria pollutants are
included in the system compared to the large number of individual chemicals for which numeric WQC exist. EPA has
published water quality criteria guidance for a large number of pollutants, n311 and states have promulgated WQS for
most of these. n312 In contrast, NAAQS have been promulgated for only six air pollutants (the criteria air pollutants), n313
despite a statutory definition of "air pollutant" that is as broad as the CWA definition of water "pollutant." n314 Moreover,
while WQS employ diverse approaches and methods (including narrative, numeric, whole effluent toxicity, and
biological criteria n315 ), the existing NAAQS employ a purely numeric approach. n316
Under the CWA, however, EPA must review state WQS every three years. It is unclear that an effort to promote
greater uniformity would be [*256] more burdensome than existing efforts to review the adequacy of disparate
Page 16
standards in each state. Moreover, EPA could move towards greater uniformity in steps. For example, it might choose to
tackle monitoring protocols and rules for determining attainment first, and then to begin with WQS for the most
ubiquitous pollutants, or for indicator pollutants that would sweep a range of narrower problems in their path. n317
Alternatively, EPA could establish and enforce more general definitions of conditions necessary to support the
minimum national statutory goals of fishable and swimmable waters, with some variations as necessary to address
different types of waters. In fact, great progress is being made in establishing scientifically defensible methods to assess
the overall biological health of diverse aquatic ecosystems using relatively standard methods. n318 This standardization
would not prevent states from adopting and maintaining stricter or additional WQS to address statespecific needs. In
addition, all state WQS would continue to be subject to the implementation provisions of the Act. Under this system,
however, all waters in the country would be measured against a uniform minimum benchmark, and TMDLs would be
required wherever statutory and regulatory minima were exceeded.
2. The Scope of the Designation and Listing Processes

Both statutes require the identification and classification of regions according to their attainment status. n319 The
comprehensive scope of this process serves two important functions. First, although the CAA designation process
certainly is not perfect in either scope or accuracy, n320 it appears to provide a nearly complete inventory of all regions of
the [*257] country in which the NAAQS are violated, and which require corrective measures as a result. While
nonattainment remains a daunting problem, at least the scope of the problem is reasonably well defined. Second, all
AQCRs are subject to either the nonattainment or the PSD provisions of the law, since even "unclassifiable" regions are
subject to mandatory PSD requirements. Thus, some regulatory program to ensure either attainment or maintenance of
the NAAQS is automatic throughout the nation.
In theory, the same should be true under the CWA. The goal of fishable and swimmable waters is a national one,
even if qualified by the words "wherever attainable." n321 Water quality standards are required, and for the most part have
been adopted, for all navigable waters. n322 Under various provisions of the Act all waters must be monitored and
characterized according to whether they meet the statutory water quality goals, and other WQS adopted by the states or
by EPA. n323 States must identify all waters that fail to meet water quality standards n324 and develop a continuing
planning process "for all navigable waters within [the] State." n325 Because these plans must include, inter alia, TMDLs
for waters identified under section 303(d)(1), the statute appears to envision at a minimum a comprehensive analogue to
the nonattainment process under the CAA. n326 The CWA does not, however, require that each state or region be divided
into a comprehensive set of watersheds analogous to AQCRs under the CAA. n327 Instead, states are directed to identify
"waters" that do not meet WQS, but the scope of the term "waters" is not defined clearly in the statute, and the
regulations imply that they should include only limited portions of water bodies. n328 This may, of course, cause
implementation [*258] problems where waters are polluted from a range of activities outside of the designated
"segment." n329 Moreover, since antidegradation requirements derive largely from regulations established by EPA and its
predecessor, n330 the CWA contains no comprehensive provision addressing antidegradation requirements. There is
therefore no statutory directive that all waters not covered by a TMDL or other corrective program (i.e., all waters that
meet or exceed the WQS) be covered by procedures to implement antidegradation requirements. n331
Even under the section 208 planning program, states were only required to write comprehensive pollution control
plans for areas deemed by the state to have "substantial water quality control problems." n332 With respect to other
waters, EPA apparently allowed states to meet the "all navigable waters" requirement in section 303(e) through generic
rather than watershed-specific approaches. n333 Unfortunately, there is a flaw in this logic, as it is practically impossible
to identify all water bodies with "substantial water quality problems" absent a requirement that all waters be assessed
and classified as to attainment status. Under the current system, only a fraction of all surface waters are assessed for
compliance with WQS, and an even smaller percentage is subject to quantitative monitoring. Further, even those waters
routinely sampled are only tested for a small number of the pollutants subject to WQS. n334 Moreover, current
monitoring focuses on numeric criteria to the exclusion of other indications of use impairment. n335 Additionally, most
data are collected in waters [*259] known to be polluted by point sources, such as factories and large sewage treatment
plants. n336 As a result, waters impaired by nonpoint sources often fall through the existing monitoring and assessment
net. Thus, a wall of inadequate data blocks the current effort to implement the Act's TMDL provisions. At least until
relatively recently, n337 there simply has not been the same insistence under the CWA as under the CAA that all areas be
assessed and classified as to whether they meet ambient standards.
Page 17
A number of factors have contributed to this difference in the scope of monitoring under the CWA versus the CAA.
First, from a practical perspective, it is easier to assess compliance with NAAQS in contiguous airsheds than to measure
attainment in watersheds that comprise a large number of components whose conditions may vary considerably in size,
pollution sources, geology, morphology, hydrology, chemistry, biology and other factors. One headwater stream might
be badly polluted from any number of sources, while its neighbor is relatively pristine. There are millions of water body
components in the country, n338 compared to the 247 airsheds into which the nation has been divided for purposes of
CAA compliance. n339 Monitoring each segment would be a monumental task that far exceeds available resources.
For purposes of the section 305(b) water quality inventory, EPA recommends that states close this monitoring gap
through the use of statistical surveying methods whereby only a percentage of water bodies of a particular type and
similar conditions need be monitored, and from which the state can draw "inferences about entire categories of waters."
n340
While this method might be useful for the water quality inventory (the goal of which is to provide general
information on progress in solving water pollution problems and the types and extent of problems that remain n341 ),
[*260] it does not suffice for section 303(d), which demands the identification and cleanup of specific impaired water
bodies.
For this reason, the WQS program should be designed to emulate the CAA practice of requiring that areas be
classified as nonattainment based on modeling predictions as well as actual monitoring data. n342 In a program that has
been driven by insistence on the need for real-world, quality-assured data, n343 and in the face of inevitable objections
that potentially affected sources will be forced to incur expensive control costs based on questionable proof of
impairment, this pill may be hard to swallow. One potential compromise would be to use modeling predictions to target
waters for more intensive monitoring and assessment, with waters in which impairment is predicted defaulting onto the
303(d)(1) list if impairment is not affirmatively disproven within a prescribed period of time. n344
Second, for the most part air quality problems are concentrated in the urban and heavily industrialized portions of
the country, which can be identified relatively easily. While rural areas clearly face visibility, acid precipitation, and
other air pollution problems due to long-range transport, a large percentage of air pollution monitoring efforts can be
concentrated in a relatively small number of areas. n345 One of the major historical limitations of water quality
monitoring efforts is that they were concentrated in urban and industrial areas most likely to suffer from "traditional"
water pollution problems from major point sources. n346 Given that so much water quality impairment is caused by
dispersed sources such as suburban and agricultural runoff, dams and other forms of hydrological modification, and
widescale rural land uses such as grazing and mining, such a highly focused monitoring effort is not possible in the
water quality arena.
Third, the air quality monitoring program is more comprehensive in geographic scope but not in its coverage of
contaminants, as it addresses only the six criteria pollutants in most cases. Whether or not this limited coverage is
appropriate, n347 it is certainly easier and less expensive to test regularly for six pollutants than for the wide range of
pollutants for which WQS have been promulgated. Moreover, the CAA program need [*261] only address individual
numeric indicators of pollution, compared to the broader array of narrative, use impairment, whole effluent toxicity and
biological criteria now used to address the full scope of water pollution problems. Some of these indicators require
human observation and subjective judgment, compared to straightforward, objective numeric measurements, which
often can be done by automatic monitoring methods. n348
More comprehensive water quality monitoring, while daunting, is possible and would enhance both the adequacy
and the fairness of the CWA's ambient standards program, especially now that all waters for which impairment is
identified will be subjected to more rigorous TMDL and control requirements. EPA began to address this issue by
requiring that environmental indicators of harm that go far beyond direct water quality measurements be used to identify
impaired water bodies under section 304(1). n349 However, aside from this one-time listing process, it is not clear
whether these broadened sources have the force of regulation or are simply guidance. n350 EPA has identified
comprehensive monitoring and assessment as a key goal of the section 305(b) and 303(d) processes, n351 but to date has
sought to implement this goal only through recommendations to the states. One step EPA could take to assure more
comprehensive identification of impaired waters would be to apply the more complete list of data sources set forth in
the section 304(1) regulations and in the recently developed Index of Watershed Indicators to the 303(d) process by
regulation rather than guidance. n352
Unlike the CAA, the CWA also contains no explicit requirement that the country be divided into a seamless system
of watersheds, each of which must be designated as meeting or not meeting the WQS. n353 Yet [*262] there is nothing
in the CWA that would prevent EPA from adopting such a regulatory requirement. EPA could require that states use a
Page 18
watershed approach to implement the more general statutory requirement that states assess the quality of all navigable
waters relative to the goals of the statute and the WQS. Each watershed could be subject to corrective TMDLs or
antidegradation requirements, as appropriate to assure attainment and maintenance of the WQS, respectively. n354 While
simply dividing the problem into a manageable system of watersheds does not cure the problems of complexity,
diversity and noncontiguity identified above, a watershed approach to monitoring and assessment would allow more
strategic scientific judgments about what type and degree of monitoring is needed to characterize a wider range of
waters in a more complete and orderly fashion. Many states have learned that by dividing their watersheds into parts,
they can concentrate monitoring efforts in one-fifth to one-third of the watersheds every year, and thereby achieve
comprehensive state coverage over a period of three to five years. n355 The process then could be repeated each decade,
so that each watershed is revisited at least once in every ten year cycle to measure progress and to reassess the
watershed designation. Moreover, by focusing on whole watersheds rather than individual water bodies, state
monitoring officials can tailor their monitoring as necessary to assess the health of the entire watershed. n356
Finally, given our poor performance to date in assessing the health and quality of so many waters, the WQS and
TMDL program should not repeat the mistake of the "unclassifiable" designation available under the CAA, which
provides states with an incentive not to assess ambient environmental quality adequately. One legitimate "action-
forcing" measure, whether adopted by statute or regulation, would be a presumption that a water body violates the WQS
after a fixed period of time, absent adequate monitoring to characterize the health of the watershed by that time.
Similarly, watersheds with some evidence of impairment but inadequate data should be presumed to violate the WQS if
the impairment is not affirmatively disproven, based on sound monitoring and assessment, during the next monitoring
and listing cycle. n357
[*263] The task of comprehensive water quality monitoring and assessment may be even more complex than is
true for the analogous CAA program. Nevertheless, such an approach is essential if the ambient standards program
under the CWA is to succeed, and if it is to be applied evenhandedly both in terms of those who must do the hard work
of pollution control and those who bear the brunt of the remaining pollution. Ultimately, if sufficient comprehensiveness
and consistency cannot be achieved in the state-dominated monitoring and assessment process, a uniform federal
monitoring network and assessment process might be warranted. n358
3. Redesignation, Maintenance Plans, and Contingency Measures

Aside from the requirement that TMDLs be incorporated into a state's continuing planning process, n359 the CWA
says nothing about how a water body is designated after listing and TMDL development. EPA's current guidance,
however, indicates that waters can be removed from the section 303(d) list once the TMDL is prepared, although some
other unspecified method to "track" the status of these waters is needed thereafter. n360 EPA assumes that states must
revise TMDLs that fail to accomplish the goal of WQS attainment, n361 but there is no firm requirement, in either EPA
regulations or guidance, for waters to be relisted if the standards are not met. Moreover, not only are there no firm
attainment deadlines against which to measure progress, n362 but there does not even appear to be a date certain by which
the standards must be met before TMDL revision or relisting is needed. n363 This uncertainty leaves the post-TMDL
process void of any significant accountability.
In contrast, the CAA includes many more procedural and substantive safeguards to ensure that nonattainment areas
are not forgotten once SIPs are written -- that is, to ensure that (1) the controls set forth in the SIP are implemented and
successful; (2) airsheds are not redesignated to attainment until the state proves both attainment and likely maintenance
of the standards; and (3) contingency measures are in place in case the initial controls prove inadequate. n364
Redesignation of an AQCR from nonattainment to attainment status requires more than a demonstration [*264] that the
applicable NAAQS have been met for a particular period. EPA may not approve a redesignation request unless all of the
following requirements are met: (1) the area has attained the standard; n365 (2) such attainment is due to "permanent and
enforceable reductions" in pollutants due to various applicable controls; n366 (3) the state has met, and EPA has approved,
all applicable planning and control requirements under the relevant SIPs; n367 (4) the state has submitted, and EPA has
fully approved, a maintenance plan, including adequate contingency measures in the event violations of the standard
recur; n368 and (5) the state has met all applicable requirements relating to nonattainment areas. n369
Each of these requirements has potential applicability to the evolving TMDL process. Although it should be
apparent that a state at some time must prove that an area's standards have been attained, (as in requirement (1) above),
the CWA currently lacks any such requirement. This lack, of course, stems in part from the problem identified earlier:
there is no clear mandate for all watersheds to bear any designation status, attainment, nonattainment or otherwise.
Page 19
Similarly, although EPA's current guidance suggests that state TMDLs must specify what controls will be implemented
when, n370 there is no similar process or deadline by which a state must demonstrate that all applicable statutory and
regulatory CWA requirements have been met (requirements (3) and (5) above). n371
The "permanent and enforceable" requirement in the CAA serves the useful purpose of preventing a game of
"leapfrog" whereby areas jump back and forth from attainment to nonattainment because emissions reductions are based
on changes in economic activity or other variables unrelated to actual, fixed pollution controls. n372 Congress included
this requirement to ensure not only that NAAQS are achieved at the time of redesignation, but that the standards will
continue to be achieved in the [*265] future. n373 In the CWA context, this requirement may be more difficult to apply
to nonpoint source controls, which do not have to be implemented through mandatory measures, than to the fixed
requirements for point sources. n374 For point sources, for example, EPA could require a showing that reduced discharges
are based on actual, enforceable permit requirements or treatment systems actually installed, rather than temporary
reductions in plant production. No such condition is possible where nonpoint source controls are based on voluntary
programs such as education or government subsidies. At a minimum, however, EPA could insist that reductions in
nonpoint source pollution used to demonstrate attainment be based on installed pollution controls, and not such factors
as temporary reductions in production or short-term changes in climate or hydrology.
Related to the "permanent and enforceable" provision is the CAA's requirement that redesignation proposals
include a "maintenance plan" designed to ensure that the NAAQS will continue to be met in the region for at least ten
years. n375 This showing must be made through a projected emissions inventory similar to that used to achieve
attainment, and an explicit set of contingency measures "to assure that the State will promptly correct any violation of
the standard which occurs after the redesignation of the area." n376 The obvious advantage of including contingency
measures in the original plan is that failures can be corrected quickly, rather than after an additional round of planning,
state rulemaking and EPA approval. n377
B. Planning to Solve the Identified Problems: SIPs Versus TMDLs
Decades of experience show that reliance on pure "planning" approaches to pollution control is misplaced absent
determinate, enforceable, substantive requirements on the responsible sources of pollution. n378 [*266] It is equally
clear that reliance on fixed source controls alone, however strict and well-enforced, will not achieve the desired ambient
environmental quality. n379 Some process is necessary to ensure that aggregate pollution from all controlled and
uncontrolled sources is appropriately limited. This is true in particular where problems stem from a large number of
diverse sources and causes, especially where some sources are not automatically subject to site-specific controls.
From both an equity and an efficiency standpoint, mandatory source controls are appropriate for nonpoint as well as
point sources of pollution, n380 but to date, Congress has treated this issue with great restraint. So long as the ambient
standards approach to environmental quality is maintained, therefore, whether as the principal regulatory strategy as in
the CAA or as a backstop to technology-based source controls as in the CWA, a rigorous, comprehensive and integrated
accounting system is needed. Because of numerous problems in design and implementation, SIPs hardly provide a
perfect model for the rejuvenated ambient WQS program. Nevertheless, designers of TMDLs and related water quality
programs can learn both positive and negative lessons from the SIP experience.
1. The Need for a Comprehensive, Integrated Process

Superficially, implementation of the ambient standards is similar under both statutes. The clear goal of both laws is
to ensure that aggregate pollution from diverse sources does not cause or threaten violations of the ambient air or water
quality standards. n381 Each statute includes a system by which the state identifies all relevant sources of pollution in the
region, assesses the total amount of pollution that can be tolerated consistent with attainment and maintenance of the
standards, and allocates these pollution loads (or conversely, incremental pollution control obligations, if any) among
sources. n382 Finally, both laws include multiple strategies to control pollution from various types of sources and one or
more planning programs under which the appropriate combination of strategies can be assembled and coordinated to
assure implementation of the standards (among other goals).
Moreover, as a result of these similarities, implementation of both laws is plagued by the same types of problems
and complexities. The states (or EPA) must address variability in background air and water [*267] quality, the type and
amount of pollution from various sources, and environmental conditions that affect the impacts of that pollution. n383
They also must consider pollution from distant sources n384 and the often uncertain fate and transport of many pollutants.
n385
To address these issues, they must choose, calibrate, and defend the use of computer models designed to predict the
Page 20
short and long-range effects of various combinations of pollution releases on ambient environmental quality, an effort
that historically has proven difficult. n386 Finally, they must address the difficult political question of which sources of
pollution should face incremental control obligations, and bear the corresponding costs, to achieve the ambient
standards.
The two statutes differ significantly in how these goals have been accomplished. The SIP process has been the
singular mechanism to coordinate NAAQS compliance for nearly three decades. During this same period,
"comprehensive" planning under the CWA has proceeded, either sequentially or simultaneously, under at least seven
separate statutory programs. n387 In many ways, of course, the SIP process is as fragmented as it is integrated. For
example, separate SIPs are prepared for individual criteria pollutants even where the sources responsible for the
emissions overlap considerably; n388 some sources may escape regulation altogether if [*268] they only emit substances
other than criteria pollutants; n389 and separate SIPs address geopolitically defined "airsheds" despite problems of mixing
and long-range transport between regions. n390
The water quality program should try to emulate those aspects of the SIP process that promote integration while
avoiding its inherent fragmentation and excessive complexity. One particularly desirable solution to the CWA's
fractured structure would be congressional action to replace all of the existing planning provisions with a single,
comprehensive process. In addition to making water quality planning more rational and more effective, this would
likely avoid duplication of effort and save scarce federal and state implementation resources. EPA could achieve similar
results through regulation, by requiring states to incorporate the individual planning components from existing
processes into a single document analogous to a SIP. n391
The water quality program should avoid the two principal ways in which the SIP process is irrationally fragmented.
First, plans should not be limited to pollutant-specific situations, n392 as is true for both SIPs and existing TMDLs. In
many cases, waters are impaired by multiple pollutants and other sources of pollution. When each source contributes to
multiple problems, it makes more sense to identify all of the controls that apply to each source in a single document. A
multiple-pollutant approach allows regulators to address cumulative and synergistic effects. Moreover, to the extent that
pollution TMDLs must allocate load reductions among sources, more efficient and equitable allocations are possible if
[*269] overall rather than isolated issues are considered. n393 Indeed, given that WQS cover so many more pollutants
than the NAAQS, in some situations pollutant-specific TMDLs could lead to an even larger number of planning
documents, each of which addresses the conduct of the same few players. n394 In other situations the same basic conduct
by a category of polluters could lead to multiple adverse water quality conditions; these conditions might be addressed
more effectively by a single rather than several TMDLs. n395
Second, plans should not be written within artificial geopolitical regions, but instead should reflect watershed
boundaries. Watershed-based efforts can account for "1) longitudinal (upstream-downstream); 2) lateral (floodplain-
uplands); 3) vertical (groundwater-surface water); and 4) temporal (all three spatial dimensions change over time)"
interactions that affect the health of aquatic ecosystems. n396 At a minimum, in order to promote complete and equitable
solutions, the geographic scope of a TMDL or other water quality plan should include all sources of pollution that
contribute to the problem and all areas of pollution impact, rather than an artificially determined water body "segment"
defined only by the reach of the measured WQS violation. n397
Similarly, the TMDL program must avoid the problems of excess review that persistently have bogged down the
SIP process. Given the many ways in which SIPs can be manipulated, careful EPA review of SIPs -- and for the same
reasons TMDLs -- is essential to the fairness and integrity of the programs. This accountability will achieve diminishing
returns, however, if applied to every minor modification of every SIP or every TMDL. Fortunately, EPA does not repeat
the SIP program mistake of adding a third key to the double-key TMDL process (state preparation and EPA review) by
insisting on headquarters review of every TMDL. On the other hand, state criticism of unfair and inconsistent treatment
in SIP [*270] reviews n398 provides evidence that EPA headquarters should serve the role of imposing general national
consistency through generally applicable regulations and guidance. Moreover, some rational line must be drawn
between major TMDL modifications (or series of modifications) that warrant EPA review, and those that are so
individually and cumulatively minor that federal review serves no useful purpose. n399
2. The Need for a Clear Nexus Between Pollution Controls and Attainment of the Ambient Standards
However imperfectly it may work in practice, the hallmark of the SIP process is that the combination of air
pollution controls chosen in a region must be tested against a fundamental and appropriate benchmark: attainment and
maintenance of the NAAQS. This is accomplished through explicit statutory commands, n400 and through the attainment
Page 21
demonstration process, by which states must (1) identify all sources of existing and projected pollution (emissions
inventories); (2) select the combination of controls needed to close the gap between existing air quality and the target
standards; and (3) demonstrate (through the use of models or otherwise) that those controls, once implemented, would
be adequate to meet the standards. n401
By contrast, to date EPA has interpreted the CWA to include this nexus for point sources, but not for nonpoint
sources. n402 In essence, point source controls are chosen first based on available technology. If those controls are
insufficient to meet water quality-based requirements, they must be strengthened n403 in what might constitute a
technology-forcing, n404 production-limiting, n405 location-limiting, n406 or growth-restricting n407 exercise. [*271] In
contrast, nonpoint source controls, which need not be mandatory or universal, n408 are selected only according to notions
of feasibility. While EPA's current TMDL regulations require states to calculate a load allocation for nonpoint sources,
n409
and while the TMDL as a whole must be "established at levels necessary to attain and maintain the applicable
narrative and numerical WQS . . .," n410 no provision of the statute or regulations clearly requires stricter requirements
where feasibility-based best management practices for nonpoint sources prove inadequate to achieve the WQS. Given
the difficulty in enforcing controls on diffuse sources under the SIP process, with its far more express and mandatory
provisions, it is difficult to have confidence in a process that establishes this link only through vague agency guidance.
n411
One solution would be for Congress to amend the statute to include this nexus more explicitly in the CWA, as it has
in the CAA. Alternatively, given EPA's wide discretion to engage in logical "gap-filling" to serve the goals and purposes
of the statute, n412 the agency defensibly could amend its regulations to make this legal nexus more clear. n413 Section
303(e) requires states to incorporate into the same continuing planning process water quality-based (as well as
technology-based) point source controls, all elements of the 208 plan, the TMDLs, and an adequate plan and schedule to
implement water quality standards. The Act includes an "interim goal" that at least the minimum (fishable and
swimmable) WQS be met by 1983. n414 The purpose of the TMDL process is to identify the degree to which ambient
water quality deviates from the applicable WQS; to identify the sources of pollution responsible for the violation; and to
allocate the responsibility for corrective action among those sources. The continuing planning process, in turn, must be
"consistent with" the Act as a whole, which EPA has consistently interpreted as including compliance with the statutory
water quality goals. n415 Section 303(e) includes a more specific requirement for "adequate implementation, including
schedules of compliance, for revised or new water quality standards." n416 Thus, EPA could implement section 303(e)
through specific [*272] regulations by requiring a state to demonstrate that its nonpoint source controls will be
sufficient to achieve the LAs calculated under section 303(d), regardless of what mechanisms the state chooses to
implement those controls. n417 Absent such a requirement to correlate the states' pollution controls with the LAs
calculated under section 303(d), there is a massive gap in the means chosen to achieve a principal goal of the statute.
Obviously, if the paper LAs identified in TMDLs are not implemented and enforced as part of approved nonpoint
source control programs, little real progress will be realized. Moreover, in "mixed" watersheds impaired by both point
and nonpoint sources, water quality-based effluent limitations imposed on point sources -- enforced through potentially
strict civil penalties and other sanctions -- will be viewed as ineffective and unfair. Worse still, because no mandatory
rules govern the load allocation process, a state is theoretically free to "allocate" much of the needed load reductions to
nonpoint sources, with no mandatory implementation requirements attached, weakening the effluent limitations on point
sources as well. n418 In short, absent a firm requirement that states show that both WLAs and LAs will actually be
implemented as a condition of TMDL approval, the process has no real accountability.
It is true that estimates of the efficacy of nonpoint source controls can be difficult to determine with great precision.
This problem is identified and addressed, however, both by the "margin of safety" language in the statute, n419 and by
EPA's regulatory definition of "load allocation," which permits "best estimates of the loading, which may range [*273]
from reasonably accurate estimates to gross allotments, depending on the availability of data and appropriate techniques
for predicting the loading." n420 The same pragmatic approach could be taken for predicted load reductions as for the
paper LAs in a TMDL. n421 Indeed, the need to proceed based on estimates has not restricted efforts to regulate "area
sources" under the CAA. Some progress, even if guided by estimates rather than precise calculations, is preferable to
none at all. n422
Moreover, while emulating the fundamental method of accountability in the SIP process, TMDLs should be
implemented in ways that avoid, to the extent possible, the SIPs' historical problems. Pollution source inventories and
projections must be complete, accurate, and conservative, and must also account fully for anticipated growth. While it
will always be difficult to prevent "gaming" in the modeling process, all reasonable steps must be taken to ensure that
the right models are used, with acceptable data and reasonable assumptions. History has shown that brinkmanship in the
Page 22
air quality program, supported by optimistic assumptions and projections, has led to continued nonattainment in many
areas. All controls identified for purposes of projecting future pollution loads must be specifically identified and fully
implemented and enforced. n423 Appropriate revisions to the TMDL must be required if controls are not implemented
properly, or if they fail to reduce pollution by the appropriate amount. n424 Similarly, discrete amendments to the TMDL
and other changes cannot be made in isolation. n425 Rather, any changes that reduce the pollution control obligations of
one party must be matched at [*274] the same time by equivalent or greater offsetting reductions elsewhere. n426 These
admonitions are much easier to state than to accomplish. If they are not heeded, however, the TMDL program will
suffer the same sorry history as the SIP program.
C. SubstantiveConstraints on the Planning Process
Aside from the ultimate legal requirement that all SIPs be sufficient to attain and maintain air quality standards, the
CAA includes a number of subsidiary substantive requirements that help to impose accountability on the process. These
include: deadlines; the requirement that progress towards attainment be met in a series of defined, quantitative
increments known as "reasonable further progress"; n427 the system of emissions offsets that limits new growth in
nonattainment areas; the system of emissions increments and caps designed to prevent significant deterioration in clean
air regions; the stricter if imperfect requirements to address diffuse sources of pollution; and ultimately, EPA authority
to design and enforce implementation plans if state action is inadequate. Each of these requirements is explained further
below.
1. Attainment Deadlines
The CWA deadlines for attainment of WQS are not a model of clarity. In section 101, Congress set a "national goal"
of water quality adequate to protect fish and aquatic life and contact recreation "wherever attainable" by July 1, 1983.
n428
Yet this overall 1983 goal is not given more precise application anywhere else in the statute. In fact, the statute
required water quality-based effluent limitations to be achieved by July 1, 1977, a full six years prior to the 1983
statutory water quality goal. n429 Two conclusions can be drawn from this mandate. First, because the July 1, 1977
deadline applies to "any more stringent limitation" necessary to meet WQS, n430 Congress apparently envisioned that by
that time, the TMDL process would be completed, and the water quality-based limits would be imposed. n431 Second,
because of the six-year gap between the [*275] 1977 deadline for achieving water quality-based point source controls
and the 1983 goal of fishable and swimmable waters, Congress obviously recognized that nonpoint sources contribute
heavily to water pollution problems and would require more time to fix. n432
Unfortunately, aside from the logical inference that Congress expected the task to be complete by 1983, none of the
original, amended, or added statutory provisions governing nonpoint sources or overall water quality planning and
control contained specific intermediate deadlines to ensure that this goal would be met. n433 Moreover,in contrast to other
CWA statutory deadlines that were amended after they were missed, n434 Congress revisited neither the 1977 deadline
nor the 1983 goal after they were passed, despite several statutory amendments thereafter. n435
This leaves WQS implementation in a curious state of regulatory limbo. Arguably, because both the 1977 statutory
deadline and the 1983 statutory goal have passed, TMDL programs must be redesigned to achieve WQS for all water
bodies as soon as possible. In the hands of some judges and some officials, this could result in tight schedules and swift
action. n436 Unfortunately, however, others interpret the absence of [*276] any firm prospective deadline as conferring
discretion on EPA and the states to develop protracted compliance schedules. n437
Faced with the same nonattainment dilemma in the air quality program, Congress has responded repeatedly with
revised deadlines coupled with stricter and more detailed compliance strategies. n438 In 1990, for example, in response to
chronic nonattainment of the NAAQS for most of the criteria pollutants, Congress enacted a detailed set of statutory
deadlines tied to the severity of nonattainment for individual pollutants, accompanied by detailed new requirements for
nonattainment SIPs. n439
Deadline extensions, of course, are a mixed blessing. The "absolutely as soon as possible" implications of the old,
now-passed deadline are replaced with a potentially longer compliance period in individual cases. Moreover, continual
extensions by Congress may cause both regulators and polluters to view all of the deadlines as infinitely malleable. n440
On the other hand, the "now that it has passed, the deadline is flexible" attitude is countered by a firm new target which
is once again enforceable by the courts. n441
On balance, in the case of the CWA, the latter benefit offsets the former danger. So many states lack comprehensive
TMDL programs, and so many waters still violate the WQS, that a firm new set of statutory timelines is appropriate.
Page 23
While judicial decrees can account for differences in the nature and magnitude of water quality problems in different
states, differing judicial approaches can result in widely disparate deadlines and required levels of effort across the
country. Both the goal of interstate equity and the imperative of WQS compliance (fifteen years after the original 1983
deadline) suggest the need for a fixed statutory attainment deadline. Noncompliance sanctions similar to those in the
[*277] CAA should be included as incentives for expeditious and effective state programs.
Opponents of this approach will likely point to thousands of miles of water for which remedial action likely will
take decades rather than years, such as waters impaired by abandoned mines, or by seriously degraded riparian habitat
requiring extensive restoration efforts and protracted recovery periods. n442 Moreover, the hundreds of individual
pollutants subject to WQS and the various nonchemical-specific approaches to WQS are not amenable to the detailed,
pollutant-specific approach of the Nonattainment Area Plan Requirements of the CAA. n443 While these concerns are
well-founded, they are best addressed by exception rather than general rule. Congress could establish a reasonable
generic deadline for WQS attainment, say five years from the date of statutory amendment. As states develop individual
TMDLs for degraded water bodies, however, they should have the opportunity in each case to demonstrate, subject to
EPA review at the time of TMDL approval, that a longer but fixed attainment deadline is necessary. Although statutory
rules tempered by variances and exceptions are susceptible to abuse, they are preferable to the existing regime under
which no water body is governed by a fixed benchmark, and attainment deadlines are either nonexistent or entirely
subjective. The statutory deadline would serve as a default against which all TMDLs would be measured, with the
burden of proof finally on the states to demonstrate why more time is needed.
Short of statutory amendment, EPA continues to have ample authority to impose time constraints on the WQS
program by regulation, again subject to a reasonable system of exceptions. If courts have the power to impose
compliance and attainment deadlines on states in the context of TMDL litigation in order to effectuate the long-passed
statutory goal, certainly EPA, under well-established principles of administrative deference, n444 can do so as well by
rule.
2. Reasonable Further Progress Requirements

Closely related to the issue of deadlines is the question of whether incremental milestones are required to assure
continued progress towards attainment. Not only do the CWA and the EPA implementing regulations lack clear final
deadlines for WQS compliance, but they lack any requirement [*278] that progress towards WQS compliance be made
in fixed increments.
The CAA includes not only ultimate but also incremental requirements, known as "reasonable further progress"
("RFP"), designed to require and to monitor movement towards attainment in steps. RFP is required in all nonattainment
SIPs, n445 and is defined generally as:
such annual incremental reductions in emissions of the relevant air pollutant as are required by this part
or may reasonably be required by the Administrator for the purpose of ensuring attainment of the
applicable ambient air quality standard by the applicable date. n446
This generic RFP requirement apparently did not suffice to ensure adequate progress towards universal attainment of the
NAAQS. n447 In the 1990 Amendments, therefore, Congress added far more specific RFP requirements as part of its
pollutant-specific approach to revised nonattainment SIPs, including mandatory overall percent reductions in pollutant
emissions, and in some cases mandatory annual incremental reductions as well. n448
RFP increments serve several useful purposes. First, they add more specificity to the SIP process because emissions
inventories and models must predict periodic rather than just overall pollution reductions tied to defined control
measures. Second, by delineating specific progress milestones, early warnings are possible if the selected combination
of controls is not sufficient to attain the standard, thus allowing for earlier midcourse corrections.
Again, given the large number of individual pollutants for which WQC exist, as well as the different forms in which
WQC are expressed and the diversity of variable conditions in aquatic ecosystems, it is probably not possible to take the
same targeted, pollutant-specific approach to the RFP concept in the water pollution context. In a more general form,
however, the RFP idea would likely improve the WQS program. TMDLs and associated pollution control plans likely
would be [*279] more useful and more effective if they were required to identify not only the final date by which
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attainment of WQS is expected, but specific annual or other periodic goals by which progress could be measured in the
interim. n449 As in the CAA program, this would allow better and earlier determinations of whether the assumptions,
predictions, and controls included in the TMDL were accurate and adequate, as well as greater opportunity for early
revisions if they are not. n450
3. Attainment Versus Growth: Offsets, Increments, and Caps

The ambient environmental quality approach to pollution control poses difficult problems in balancing economic
growth against attainment and maintenance of ambient standards. n451 Virtually all new economic activity is likely to
result in some increased impairment of water quality and aquatic ecosystem health due to either point or nonpoint
source pollution. Similarly, almost all economic growth produces more air pollution, including increased vehicle
emissions and added factory emissions. This new pollution further impairs degraded air or watersheds and may result in
backsliding in currently clean regions.
This dilemma suggests the further difficult problem of where to direct growth given the choice between attainment
and nonattainment regions. In nonattainment areas, added pollution will exacerbate existing problems and further delay
the task of cleanup. n452 At least in the case of point sources, some believe that all new discharges to surface waters
already in violation of WQS must be prohibited. n453 Unfortunately, this [*280] growth-limiting strategy could
potentially shift new pollution from dirty to clean waters. At worst, this could result in all waters (or airsheds) seeking a
common middle ground of "moderately polluted," or at best, "barely clean." Others suggest it would be preferable to
concentrate pollution in waters that are already impaired, in a "write them off" strategy that raises serious environmental
justice concerns n454 and creates obvious legal problems. n455 The purist solution to this dilemma would be to deny all
new pollution in any region, regardless of existing ambient environmental quality. While this hardball approach
certainly would force better pollution prevention methods, it is certain to fail politically. n456
The question of how to accommodate growth while attaining and maintaining WQS is not addressed with care and
precision either in the CWA itself or in EPA's implementing regulations. Accordingly, this dilemma plagues the TMDL
program. The Supreme Court's ruling in Arkansas v. Oklahoma n457 that new discharges to impaired waters are not
necessarily prohibited suggests that the absolute growth-limiting approach is not mandated under the CWA. n458 This
conclusion is supported [*281] by the fact that EPA's regulation applies only to new point source discharges.
Theoretically, new discharges to clean waters can be prohibited more easily under Tier One of EPA's antidegradation
regulation, which requires that existing instream water uses and water quality be protected. n459 Because the policies to
implement this prohibition are left to state design, however, EPA has not actually promulgated a firm rule or procedure
by which each new source of pollution is judged against this standard. n460 Where water quality is better than required by
the WQS, the EPA rule also requires protection of existing water quality, but subject to a virtually open-ended
regulatory exception. n461 Again, the actual procedures by which even this hazy standard is applied are left to state
design. Only in the case of "outstanding National resource" waters does the prohibition against new sources of pollution
appear reasonably firm. n462 Even here, however, the EPA regulation, at least as interpreted by EPA, leaves the
designation of ONRWs entirely to state discretion, which in practice has led to minimal use of this category. n463
Moreover, this requirement also demands state implementation procedures.
The CAA, by contrast, contains more specific substantive provisions that govern the conditions under which new
emissions can be allowed in nonattainment and attainment areas. In nonattainment areas, the apparent conflict between
growth and attainment is resolved in theory by prohibiting [*282] new emissions from "major sources" absent
offsetting emission reductions elsewhere. n464 A proposed new or modified source can achieve such offsets either by
reducing emissions elsewhere at the facility or at another facility owned by the same firm, or by purchasing emissions
offsets from another source. n465 If this strategy works, the net result is a win-win situation in which new growth is
accommodated while overall emissions are reduced.
Several potential problems can prevent this convenient result. First, because only major sources are covered by the
offset program, n466 gains achieved through major source offsets can be overcome by the cumulative effects of
uncontrolled growth-related emissions, including increased traffic or construction emissions. Unless such unrestricted
growth emissions are properly accounted for in the full projected emissions inventory or modeling output for an airshed,
the goal of attainment becomes a moving target. Second, care must be taken to avoid offset credits that do not amount to
real emissions reductions. These include taking credit for pollution reductions that are otherwise required, n467 and taking
credit for "paper" reductions, that is, reductions in allowable as opposed to actual emissions. n468 Even with these
safeguards, credit can still be taken for emissions reductions that would occur even absent the offset requirement. For
Page 25
example, if an old factory was scheduled to go out of business for economic reasons, a new source might be able to use
that reduction to justify new emissions even though the offsetting reduction would have occurred anyway, limiting
progress towards attainment. n469
[*283] A further problem with offsets in the CWA context is the extent to which pollution from one source is
localized. While localized hotspots can be a problem in the CAA context, for the most part the SIP process addresses the
ubiquitous criteria pollutants that combine to create harm within an airshed. The same is true for some pollutants under
the CWA, such as nutrients from multiple upstream sources that combine to cause eutrophication of a downstream lake
or estuary, but other pollutants, particularly toxics, cause harm in much more localized ways. In addition, many toxics
bioaccumulate within a system, meaning that mass trading alone may not adequately address the problem. n470 Thus, an
offset or trading program under the CWA raises different complexities that must be addressed to ensure that the real goal
of the program, to protect the beneficial uses of waters, is in fact achieved.
Despite these potential problems with the emissions offset program, it is still preferable to the existing CWA
approach, as interpreted by EPA and affirmed by the Supreme Court, under which new discharges can be approved to
waters that violate WQS absent any offsetting reductions from other sources. n471 Complete prohibitions on new or
increased discharges to already-polluted waters would makefar more sense from an environmental perspective, and
would provide a strong incentive for states to develop and to implement effective TMDLs to avoid the growth-limiting
impacts of nonattainment. As a compromise approach, however, an effective offset program would accommodate some
new growth while requiring continued further progress towards WQS attainment. n472 Indeed, EPA clearly sees TMDLs
as a mechanism for allowing pollution trading under the CWA with some degree of accountability. n473 If an offset
approach [*284] is added to the CWA program, however, either by statute or by regulation, n474 to be effective rather
than counterproductive the program must include strict rules designed to prevent self-dealing, paper offsets, trades
between enforceable and unenforceable requirements, and trades between noncomparable pollutants or sources of
pollution. n475
The CAA contains a different scheme that balances new growth against the goal of maintaining good air quality in
attainment areas. Rather than allowing new emissions only if offset by compensating reductions, as in nonattainment
areas, new emissions are allowed only up to certain increments specified by statute, and at a maximum up to a cap (or
"maximum allowable concentration") defined only as the concentration permitted under the primary and secondary
NAAQS. n476 As a strategy for maintaining existing air quality, this approach has both advantages and drawbacks. In
some respects, the idea of specified emissions increments is preferable to the almost entirely open-ended Tier Two of
the EPA's CWA antidegradation strategy. The antidegredation strategy could be employed to prohibit new discharges
altogether, but it includes exceptions sufficiently broad to allow new discharges to consume the entire increment
between existing water quality and the WQS. The increments approach in the CAA provides better protection if the
statutory increment is smaller than the difference between existing air quality and the NAAQS. In such cases, overall
emissions will be capped at levels that leave some margin of safety between the standard and prevailing air quality. This
approach appears to provide an automatic allowance of additional pollution up to the statutory increment, thus
envisioning some deterioration of air quality in all cases. Under Tier Two of the antidegradation policy, all new
discharges are prohibited unless the regulatory exception is met (however vague that exception might be). n477 Where the
statutory increment is larger than the current gap between pollution concentrations and the NAAQS, though, the CAA
approach appears to allow [*285] increased emissions up to, if not in excess of, the NAAQS. n478 This provides
protection equal only to Tier One of EPA's CWA antidegradation rule.
An additional problem with implementation of both the PSD and the antidegradation programs is that, for the most
part, procedural mechanisms exist only to address new pollution from large, discrete sources. n479 Thus, absent adequate
procedures to address cumulative impacts, additional pollution from more dispersed sources can eventually push clean
areas over the ambient standards.
Despite these problems, it is desirable to rethink the workings of the CWA antidegradation program and the TMDL
program as applied to waters that meet or exceed the WQS. n480 Whether or not one adopts some of the increments and
caps aspects of the PSD program as a substantive [*286] matter, the emissions inventory and predictive modeling
requirements of the CAA continue to provide important lessons for the water quality program. n481 This approach is
perhaps best exemplified by the CAA's maintenance plan requirements for areas that are redesignated from
nonattainment to attainment status. Under this requirement, states must affirmatively demonstrate, through an emissions
inventory or modeling approach, that the NAAQS will continue to be attained for two consecutive ten-year periods after
redesignation, and develop specific contingency measures in the event that violations recur. n482
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The existing planning provisions of the CWA and EPA's water quality regulations require no similar prospective
analysis. "Antidegradation TMDLs" thus would serve several important purposes. They would identify threatened
waters, potential pollution sources, and possible control methods in advance of new or recurring violations. TMDLs
would also quantify the increment between existing water quality and the prevailing WQS, providing a benchmark
against which to judge proposed new discharges or other new activities that could degrade existing water quality. This
quantification process would make the task of protecting clean waters both more effective and more equitable and
would would reduce the danger that water quality might be degraded as a result of discrete, uncoordinated decisions
within a watershed, combined with unaddressed pollution from dispersed nonpoint sources exempt from specific
antidegradation review. Calculating a quantitative benchmark would be particularly effective in reducing the threat of
pollution if each antidegredation TMDL were required to include an "adequate margin of safety" as well as a growth
allocation. In areas in which only limited growth is consistent with maintaining WQS, identifying a quantitative
benchmark would allow a state to make considered policy decisions about which additional sources of impairment
should be permitted.
Finally, for the most protected regions, the visibility protection provisions of the CAA are superior in some ways to
the Tier Three requirements of the antidegradation rule, but provide less protection in other respects. The Tier Three
program to protect ONRWs leaves designation entirely up to the States. Very few waters have received such protected
status, even among federally significant waters such as those in National Parks, National Wildlife Refuges, or Wild and
Scenic Rivers. n483 On the other hand, once a water body is so designated, the regulation demands virtually complete
protection from degradation of existing water quality. n484 [*287] The CAA, in contrast, includes mandatory Class I
(most protected) designation for parks and wilderness areas that meet certain size thresholds. n485 However, the statute
allows some degradation even for such important airsheds, although considerably less than for other areas. n486
Logically, some inverse relationship is appropriate between the scope of air or watersheds that must receive the
highest level of protection, and the stringency of controls that apply to those regions. As the reach of the ONRW or
Class I program expands, political resistance to absolutist, zero degradation standards will increase. Conversely, with
less exacting requirements for ONRWs or Class I airsheds, states will be relatively more willing to confer such
designation status. Leaving ONWR designation entirely to state discretion, however, clearly has not provided adequate
protection to the Nation's most important aquatic resources from a biological and recreational perspective. A revised
CWA antidegradation program should emulate the mandatory designation process of the CAA for waters in such areas
as National Parks, but avoid the automatic degradation features of the PSD program. n487 Nationally significant waters
deserve automatic and absolute protection from further degradation, especially in the case of those few waters that
remain in a relatively pristine state. If the increments approach is appropriate at all for Tier III waters, it should apply
only to those additional waters given Tier III status through state discretion. While this hybrid approach undoubtedly
will be assailed by advocates of absolute antidegradation protection, it would require or encourage significant expansion
of the existing Tier III program in two ways. Many waters currently omitted from the program would receive mandatory
Tier III designation and absolute protection. At the same time, the states would have an easier time politically in
designating other waters for the more limited scope of ONRW safeguards using a limited increments approach.
4. Mobile Versus Nonpoint Sources

Efforts to control nonpoint source pollution under the CWA have failed to produce significant progress. Without
other accompanying reforms, [*288] the hope that the TMDL process will provide the needed fix is probably overly
optimistic. n488 Analogous efforts to curb mobile source pollution under the CAA, even with stronger regulatory and
enforcement tools, are hardly a model of efficacy and have not fared significantly better. n489 Moreover, the most telling
lesson from the CAA experience is that by far the biggest reductions in automotive pollution resulted from direct
controls on the manufacture of vehicles and the production of vehicle fuels. Unlike gasoline and the car, however, in the
field of water quality there is no single pollution villain that presents such a logical target for direct federal regulation.
One possible focus for such an effort might be a national tax on the use of agricultural chemicals as a means to induce
reductions in the inputs that cause a great deal of our agricultural pollution. n490 Nevertheless, the history of efforts at
both the state and local level to curb the increase in auto pollution suggests some important lessons for the TMDL
program.
The philosophy of nonpoint source pollution policy under the CWA has largely been one of complete flexibility in
which states have been allowed to design individualized programs suited to localized needs. In contrast, analogous
programs under the CAA have been most successful when they identified specific control measures that states are
required to adopt, or at least to consider, as part of their overall SIPs. Such control measures have included I/M
Page 27
programs, mandatory regional changes in vehicle fuels or fuel dispensing techniques, or mandatory consideration or
adoption of specific transportation control measures. Water pollution policy is moving in this direction through the
identification of more specific nonpoint source pollution controls under the Coastal Zone Act Reauthorization
Amendments of 1990, n491 which require states to adopt enforceable management measures to curb runoff pollution,
based on guidance issued by EPA and the National Oceanic and Atmospheric Administration. n492 For the rest of the
country, the TMDL program is likely to retain its dull edge unless more precise controls are at least identified, if not
required, at the federal level. n493
Unfortunately, the biggest lesson from the CAA's efforts to control urban automobile emissions is that pollution
control strategies per se are [*289] not likely to solve problems that are rooted in more fundamental questions of land
use and transportation policy. n494 Likewise, the TMDL program alone, even if competently implemented and enforced,
is not likely to solve problems that are rooted in so many elements of land use and agricultural policy. Just as the SIP
process alone has not provided the necessary stimulus to change land use and transportation policy, the TMDL process
alone is not likely to result in major structural changes in federal, state, or local land use and agricultural policies. n495
5. EPA Implementation Authority and Sanctions

Finally, there is an important difference between the scope of EPA implementation and enforcement authority under
the CAA and that allowed by the CWA. With limited but important statutory exceptions regarding transportation and
land use, n496 if a state fails to prepare an acceptable SIP, EPA has full authority to promulgate, to implement, and to
enforce a federal implementation plan aimed at any and all sources of pollution that EPA deems necessary to address the
problem, including both major stationary sources and smaller, more dispersed area sources. n497 Moreover, although used
more by way of brandishment than actual thrust and parry, EPA can prod states into compliance with SIP requirements
n498
by threatening to withhold federal highway aid and other sources of federal funding. n499 The mere existence of the
FIP card provides a strong incentive for states to avoid both the stigma and the intrusiveness of federal intervention.
Under the CWA, EPA authority is far more seriously constrained. EPA can withdraw state authority to implement
the NPDES program, and implement the strictest possible federal water quality-based controls against point sources.
Where water quality problems stem largely or entirely from nonpoint sources, though, EPA is essentially powerless. It
may deny grant funding from the state's nonpoint source control program, but no crossover sanctions allow other federal
funds to be withdrawn or withheld. n500 Most importantly, except with respect to activities [*290] on federal lands, EPA
has no authority to design, implement or enforce control programs to curb nonpoint source pollution. In short, no
federal "gorilla in the closet" exists to stimulate effective state nonpoint source water pollution controls.
Of course, EPA has the authority, if not the duty, to implement many aspects of the CWA program if a state fails to
do so adequately. EPA must promulgate WQS where state-issued rules are deficient. n501 EPA also must develop and
promulgate TMDLs when a state fails to do so properly, n502 but its authority to implement all components of such
TMDLs is less clear. With respect to point sources, EPA has full authority to ensure that WLAs developed pursuant to
this process are adopted and enforced. n503 Yet nowhere does the statute confer express authority to EPA to implement
and enforce LAs for nonpoint sources, or to operate any of the planning and nonpoint source control programs of the
statute (including sections 208, 303(e) and 319). Whether EPA has the authority to design and implement nonpoint
source controls under section 303(d) of the statute remains an open question. n504
Unless Congress gives EPA the authority to design and implement nonpoint source controls for states that fail to do
so, or to impose stricter sanctions n505 or stricter new source barriers, states are unlikely to feel adequate pressure to take
the hard political steps necessary to tackle this problem. n506 In the CAA arena, states have been far more likely to adopt
vehicle I/M programs, for which EPA has direct implementation authority, than more broadly focused transportation and
land use measures, over which EPA has no authority.
A statutory amendment that conferred such authority to EPA would represent a major political step for Congress,
which has avoided the implications [*291] of such intrusive federal action in the context of state and local land and
water use. The intergovernmental implications of such an amendment, however, would be no larger than those already
suggested by the CAA. In return, such an statutory amendment would increase dramatically the incentives for states to
design adequate nonpoint source controls.
IV. CONCLUSION
In summary, as EPA and the states refine and implement the rejuvenated TMDL, they should attend to four central
lessons of the CAA SIP process.
Page 28
First, EPA should require greater consistency both in the WQS themselves and in the rules and procedures used to
determine attainment. EPA should allow only those variations reflecting actual diversity among ecosystems that
warrants different ambient conditions. Once this consistency is established, EPA should develop a comprehensive
system for evaluating the health of every watershed in the country within a reasonable period of time. This system
would replace the existing patchwork that allowed a large percentage of the Nation's waters to remain unmonitored for
over a quarter of a century after passage of the 1972 CWA. n507 In addition, following the CAA example, watersheds in
which WQS are violated should retain a nonattainment designation until the health of the watershed is fully restored,
and until permanent and enforceable controls and contingency measures are in place to ensure that the standards will be
maintained.
Second, these goals, which address the scope and degree of integration inherent in the program, suggest that
Congress should consolidate the many disparate planning and management provisions of the CWA n508 into a single,
integrated plan similar to a SIP in the CAA. This concept would be most effective if organized according to natural
watershed boundaries, rather than artificially defined water body "segments" that bear no relation to ecological reality.
Such plans, like SIPs, must include the basic requirement to match quantitatively the aggregate pollution reduction
necessary to attain and maintain the WQS to specific, identified pollution controls. This task might be somewhat
subjective in the case of narrative WQS and some forms of water pollution that defy precise quantification. Yet the
matching process could proceed according to a trial-and-error (i.e., "adaptive management") approach -- any objective
method of matching selected control measures to specific pollution problems is better than none.
[*292] Third, to strengthen the TMDL program, either Congress or EPA should adopt substantive rules similar to
those that govern the SIP process. The TMDL effort would profit, for example, from a firm deadline for attainment of
WQS, either through statutory change or through regulation, with a reasonable but narrowly tailored variance provision
for waters that cannot be expected to meet standards expeditiously. Borrowing the CAA's requirement to demonstrate
incremental progress in the form of "reasonable further progress" milestones n509 would increase program accountability.
The difficult tension between accommodating growth and attaining and maintaining WQS could be eased by emulating
the system of emissions offsets from the CAA nonattainment program, and the system of emissions increments and caps
from the PSD program. n510 A system of offsets would allow new and increased sources of pollution in areas that
currently violate the standards, but only if there are concurrent offsetting emissions that will produce net progress
towards water quality restoration. While not as strict as a "no increase" policy for currently dirty waters, such a policy
would represent an improvement over the Supreme Court's decision that new discharges to nonattainment waters do not
require offsets. n511 Similarly, while emissions increments and caps might legitimize some new pollution in violation of a
purist approach to antidegradation policy, they would represent an improvement over the current program, which is so
vague as to defy clear explanation.
Fourth, under the CAA, EPA has authority to adopt enforceable implementation plans in areas where a state fails to
do so adequately. n512 The CWA would be strengthened if Congress clarified EPA's authority analogously to adopt and
implement nonpoint source control programs in the absence of adequate state controls. Little progress has been made in
curbing runoff pollution absent the threat of federal intervention in this arena. n513
The lessons from the CAA SIP process have not all been positive. The TMDL program is vulnerable to many of the
errors that have plagued the SIP program for nearly thirty years. Designers of the TMDL program should not allow the
open-ended loophole of recognizing an "unclassifiable" category for waters about which available data are inadequate.
n514
So long as a reasonable schedule is provided for comprehensive monitoring and assessment of the Nation's
watersheds, each waterway or system of waterways should be designated as healthy or unhealthy, so the appropriate
remedial or preventive programs can be designed [*293] for each region. Moreover, while seeking to emulate the
inherent integration provided by the SIP model, the TMDL program should reject those SIP attributes that do more to
fragment than to coordinate air pollution control. In particular, TMDLs should address all problems within a polluted
watershed rather than copying the pollutant-specific approach of the SIP program. A more integrated approach might
result in more efficient and economical solutions to problems facing an entire watershed. Similarly, while EPA review
and oversight of the state TMDL process are necessary to provide adequate accountability, the piecemeal, fragmented
review that has plagued the SIP program should be avoided in favor of a combination of ongoing consultation and
comprehensive review of watershed-based TMDLs.
From a substantive perspective, the key problem with the SIP process has been the tendency to "game" the system
through incomplete and inadequate emissions inventories and models based on flawed assumptions. Such "gaming"
results either in false predictions of attainment, or in marginal attainment that is quickly offset by new growth. n515 To
Page 29
ensure that the TMDL process is truly effective, therefore, EPA should require that TMDLs include complete
inventories of all sources of pollution contributing to the target problem, and specific, conservative assumptions about
what pollution reductions are likely to be achievable. Moreover, the TMDL rules should make proper use of the
statutory requirement that TMDLs contain a "margin of safety," to avoid the brinkmanship that characterizes the "barely
meet the standards" philosophy of the CAA, and to prevent the resulting game of leapfrog whereby regions jump back
and forth between attainment and nonattainment of air quality standards. n516 This oscillation between attainment and
nonattainment could be avoided if EPA demanded that states include realistic allowances for growth in TMDLs, and
required that states use antidegradation TMDLs to prevent clean waters from sliding slowly towards nonattainment.
In the long run, the most intractable problem facing both the CAA and the CWA programs is pollution from diffuse
sources, such as farm and urban runoff targeted by the CWA, and sprawl-driven automotive air pollution addressed by
the CAA. For these diffuse sources, the lessons to be learned from the CAA experience are harder and more ambiguous.
Clearly, the CAA has been most successful in finding for automotive pollution control methods that can be applied and
enforced through rifle shots rather than shotgun blasts. n517 These methods include tailpipe emission standards and
gasoline formulation requirements that can be enforced directly against manufacturers. Similarly focused controls aimed
at polluted runoff might be more effective than the existing system of [*294] diffuse and ambiguous "best management
practices" that has failed to achieve significant reductions in agricultural pollution for over twenty-five years. Such
controls could be aimed directly at manufacturers of agricultural chemicals or imposed indirectly through taxes on the
use of such chemicals. To the extent that both air pollution and polluted runoff stem from widespread changes in land
use, like the paving and hydrological alteration of watersheds, and from Americans' ever-increasing reliance on
automobiles, narrowly targeted solutions are less likely. Both SIPs and TMDLs have the potential to promote the more
profound changes in land use planning necessary to tackle these more difficult problems, but they will not be successful
without a strong political commitment at the federal level to force state air and water quality planners to address the
hard issues (land use) as well as the relatively easy ones (discrete individual sources of pollution). To date, such a
commitment has been woefully lacking in the SIP program.
In his 1983 critique of the Clean Air Act, Professor David Schoenbrod wrote, "when the 1970 Act was being
debated, relatively few people could have had any clear idea of what its formulae, stated in terms of ambient air
standards and time schedules for state implementation plans, would logically require by way of controls on conduct."
n518
While the NAAQS themselves were relatively straightforward, the SIP process by which they were to be
implemented was too indeterminate. Similarly, while the CAA seemed to strike a reasonable balance between setting
forth uniform national targets and allowing states to meet the standards as they chose, no one could have predicted how
likely that system was to achieve its ambitious goals.
A quarter-century later, with the rebirth of watershed-based approaches to pollution control in general, n519 and the
litigation-forced resurrection of the TMDL program in particular, implementation of the CWA stands at a similar
juncture. It is difficult to predict what types of new or improved pollution controls will be imposed through this process,
and on whom. It is even harder to foresee whether the TMDL experiment, which will result in massive investments of
time and money, will produce better results than past efforts to restore watersheds degraded by a diverse range of diffuse
sources of pollution.
No one would propose to repeat the problems of delay, uncertainty, complexity, and political divisiveness that have
plagued the SIP process over the years. On the other hand, one can conclude that the SIPs "have had their problems but
have succeeded to some degree in reducing pollution of the environment at large." n520 This tension between the
problems and successes of the SIP program can only be judged fairly in the context [*295] of the less successful efforts
to attain ambient water quality under the CWA, and the largely impotent existing programs to redress water pollution
from nonpoint sources. At least until Congress adopts a system of mandatory controls on these diffuse sources of
pollution, the TMDL process may provide the best hope for significant progress towards attaining the Nation's twenty-
five-year-old water quality goals. Given the intractable nature of the problems to be solved and the history of failed
similar efforts, it would be foolish to project that watershed programs driven by the TMDL process are certain to
achieve those goals. Unless those who design and implement this program heed the many lessons learned during the SIP
process over the past quarter century, the program is almost certain to fail.
Legal Topics:
For related research and practice materials, see the following legal topics:
Page 30
Environmental LawAir QualityState Implementation PlansEnvironmental LawWater QualityClean Water ActWater

Quality StandardsReal Property LawWater RightsBeneficial Use
FOOTNOTES:
n1 See generally U.S. EPA, NAT'L WATER QUALITY INVENTORY, 1994 REP. TO CONG. (EPA 841-R-95-005 1995) [hereinafter 1994
WATER QUALITY INVENTORY]; U.S. EPA, ENVIRONMENTAL INDICATORS OF WATER QUALITY IN THE UNITED STATES
(EPA 841-R-96-002, 1996); see also ROBERT W. ADLER ET AL., THE CLEAN WATER ACT, TWENTY YEARS LATER (1993); Drew
Caputo, A Job Half Finished: The Clean Water Act After 25 Years, 27 Envtl. L. Rep. 10,574 (1997). In this Article the term "pollution" is
used in the broad sense envisioned in the Clean Water Act, to include all detrimental alterations of aquatic ecosystems and not merely the
discharge of chemical pollutants. See infra note 43 (comparing the statutory terms "pollutant" and "pollution").
n2 33 U.S.C. §§ 1251-1387 (1994). The modern version of the Act was passed in October 1972. Pub. L. No. 92-500, 86 Stat. 816 (1972);
see Caputo, supra note 1, at 10,574.
n3 See 1994 WATER QUALITY INVENTORY, supra note 1, at 30-31, 35, 52-53, 64-65, 70-71 (characterizing sources of pollution for
rivers and streams, lakes, coastal, and ocean waters).
n4 See ADLER ET AL., supra note 1, at 171-98, 241-42; Oliver A. Houck, TMDLs: The Resurrection of Water Quality Standards-Based
Regulation Under the Clean Water Act, 27 Envtl. L. Rep. (Envtl. L. Inst.) 10,329, 10,337 n.100 (1997). The traditional statement that
nonpoint sources are subject only to voluntary controls, see, e.g., Debra L. Donahue, The Untapped Power of Clean Water Act Section 401,
23 ECOLOGY L.Q. 201, 283 (1996) (discussing section 401 of CWA and how it should be extended to nonpoint source control); David
Zaring, Agriculture, Nonpoint Source Pollution, and Regulatory Control: The Clean Water Act's Bleak Present and Future, 20 HARV.
ENVTL. L. REV. 515, 528 (1996) (analyzing failure of nonpoint source pollution controls), is no longer entirely correct, see generally
ENVTL. LAW INST., ENFORCEABLE STATE MECHANISMS FOR THE CONTROL OF NONPOINT SOURCE WATER POLLUTION
(1997) (noting that "nearly all of the states have some general statutory authority to deal with nonpoint source discharges"). Control of runoff
pollution, however, still falls far short of the comprehensive program of controls imposed on point sources.
n5 To prevent any possible misinterpretation, the Article does not propose to eliminate existing, source-specific requirements or to abandon
the floor of technology-based controls in favor of a system based entirely on ambient standards. But see William F. Pedersen, Jr., Turning the
Tide on Water Quality, 15 ECOLOGY L.Q. 69 (1988) (urging a return to a largely water quality-based focus in the CWA).
n6 See Robert W. Adler, Addressing Barriers to Watershed Protection, 25 ENVTL. L. 973 (1995); Michael C. Blumm, The Amphibious
Salmon: The Evolution of Ecosystem Management in the Columbia River Basin, 24 ECOLOGY L.Q. 653 (1997) (discussing history of
manipulation of Columbia Basin ecosystem, current efforts to restore Columbia Basin salmon, and effects on hydroelectric operations and
public land management); William E. Taylor & Mark Gerath, The Watershed Protection Approach: Is the Promise About to be Realized?, 11
NAT. RESOURCES & ENV'T 16 (1996) (analyzing watershed approach for improving water quality); Long's Peak Working Group on Nat'l
Water Policy, America's Waters: A New Era of Sustainability, 24 ENVTL. L. 125 (1994) (exploring new approaches for managing America's
waters).
n7 U.S. EPA, U.S. DEP'T. OF AGRIC., CLEAN WATER ACTION PLAN: RESTORING AND PROTECTING AMERICA'S WATERS II,
73-88 (EPA 840-R-98-001, 1998).
n8 See generally 1994 WATER QUALITY INVENTORY, supra note 1, at 301-59; U.S. EPA, NPDES WATERSHED STRATEGY (EPA
833-R-96-002, 1994); U.S. EPA, OFFICE OF WATER, WATERSHED APPROACH FRAMEWORK (EPA 840-S-96-001, 1996); U.S. EPA,
OFFICE OF WATER, DRAFT FRAMEWORK FOR WATERSHED-BASED TRADING (EPA 800-R-96-001, 1996) [hereinafter DRAFT
TRADING FRAMEWORK].
Page 31
n9 See Adler, supra note 6, at 1003-37; William Goldfarb, Watershed Management: Slogan or Solution?, 21 B.C. ENVTL. AFF. L. REV.
483, 497 (1994) (observing that "watershed management is as ambiguous in theory as it has been in practice.").
n10 33 U.S.C. § 1313(d) (1994).
n11 " The TMDL program is crucial to success because it brings rigor, accountability, and statutory authority to the process." Memorandum
from Robert Perciasepe, Assistant Administrator for Water, U.S. EPA, to Regional Administrators and Regional Water Division Directors,
New Policies for Establishing and Implementing Total Maximum Daily Loads (Aug. 8, 1997) [hereinafter Perciasepe TMDL Memorandum]
(on file with author). See also Oliver A. Houck, TMDLs III: A New Framework for the Clean Water Act's Ambient Standards Program, 28
Envtl. L. Rep. 10,415, 10,424 (1998) ("TMDLs . . . are the basis of watershed planning . . . because they are objective, measurable, and the
only approach that can be enforced by law."). See generally Michael M. Wenig, How 'Total' Are 'Total Maximum Daily Loads'? -- Legal
Issues Regarding the Scope of Watershed-Based Pollution Control Under the Clean Water Act, 12:1 TUL. ENVTL. L.J. (forthcoming 1998)
(discussing the new TMDL "experiment" and arguing for an ecosystem approach to TMDL program evolution).
n12 See also WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW 135, 252-53 (2d ed. 1994); Jeffrey M. Gaba, Federal Supervision
of State Water Quality Standards Under the Clean Water Act, 36 VAND. L. REV. 1167, 1185 (1983); Oliver A. Houck, TMDLs, Are We
There Yet?: The Long Road Toward Water Quality-Based Regulation under the Clean Water Act, 27 Envtl. L. Rep. 10,391, 10,392-93 (1997).
Indeed, EPA frankly admitted the deemphasis in its litigation-forced federal register notice on the TMDL program: "EPA has not considered
the development of TMDL's as a high priority since many of the practical results are being achieved through State water quality management
processes. EPA does not consider the establishment of TMDL's as essential to setting of water quality based effluent limits." U.S. EPA, Total
Maximum Daily Loads Under the Clean Water Act, 43 Fed. Reg. 60,664 (1978).
n13 Memorandum from Robert Perciasepe, Assistant Administrator for Water, U.S. EPA, to Regional Water Division Directors and Water
Program Office Directors (Aug. 9, 1996) [hereinafter Perciasepe Watersheds Memorandum] (on file with author).
n14 See, e.g., Sierra Club v. Hankinson, 939 F. Supp. 865 (N.D. Ga. 1996); Idaho Sportmen's Coalition et al. v. Browner, 951 F. Supp. 962
(W.D. Wash. 1996) (citizen suits moving for orders to establish TMDL schedules). As of early 1998, citizen groups had filed at least 20 such
cases around the country, and filed five additional notices of intent to sue. See Office of Water, U.S. EPA, TMDL Litigation by State (last
modified Apr. 10, 1998) <http://www.epa.gov/OWOW/tmdl/lawsuitl.html>; see also Dianne K. Conway, TMDL Litigation: So Now What?,
17 VA. ENVTL. L.J. 83 (1997); Houck, supra note 4, at 10,329-30; John H. Cushman, Jr., Courts Expanding Effort to Battle Water
Pollution: New Enforcement Tactic,N.Y. TIMES, Mar. 1, 1998, at A1 (discussing lawsuits challenging EPA to enforce water quality at a
watershed level); Houck, supra note 11, at 10,416-17. Most of these cases were brought to force EPA to prepare TMDL calculations for
polluted water bodies pursuant to section 303(d) of the statute. Some of these cases prompted significant judicial intervention into EPA and
state efforts to implement the water quality standards program. Partly in response to the litigation, EPA convened a Committee under the
Federal Advisory Committee Act, 5 U.S.C. app. 2 §§ 1-15 (1988 & Supp. V 1993) [hereinafter the TMDL FACA Committee], on which I
served, to recommend changes to this program. See OFFICE OF THE ADM'R, U.S. EPA, REPORT OF THE FEDERAL ADVISORY
COMMITTEE ON THE TOTAL MAXIMUM DAILY LOAD (TMDL) PROGRAM 1-2 (EPA 100-R-98-006, 1998) [hereinafter FACA
REPORT]. More information about the membership and activities of the FACA Committee can be found at Office of Water, U.S. EPA, Total
Maximum Daily Load (TMDL) Program: TMDL Federal Advisory Committee (last modified July 29, 1998)
<http://www.epa.gov/owow/tmdl/advisory.html>.
n15 42 U.S.C. §§ 7401-7671q (1994); see also RODGERS, supra note 12, at 253, 347 (drawing an analogy between SIPs and water quality
implementation plans).
n16 See RODGERS, supra note 12, at 248.
n17 Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816 (codified as amended at 33 U.S.C. §§
1251-1387 (1994)); Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (codified as amended at 42 U.S.C. §§ 7401-7671q
(1994)). Both statutes had antecedents that will be discussed only as important to this inquiry.
Page 32
n18 See Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 701-02 (D.C. Cir. 1974); Ethyl Corp. v. EPA, 541 F.2d 1, 17 (D.C.
Cir. 1976). Compare 42 U.S.C. § 7661c (1994) (air pollution permit requirements and conditions including enforceable emission limitations,
standards, and schedule of compliance) with 33 U.S.C. § 1342 (1994) (national pollution discharge elimination system ("NPDES") permit
requirements and conditions). Compare 42 U.S.C. § 7412 (1994) (listing of hazardous air pollutants and requirements for emissions
standards applicable to new or existing sources of hazardous air pollutants) with 33 U.S.C. § 1317 (1994) (authorization of toxic pollutants
list, effluent limitation standards, and regulations establishing pretreatment standards for introduction of pollutants into publicly owned
treatment works). Compare 42 U.S.C. § 7416 (1994) (retention of state authority to adopt and enforce air pollutant emission standards so
long as not less stringent than federal standards) with 33 U.S.C. § 1370 (1994) (retention of state authority to adopt and enforce effluent
standards so long as not less stringent than federal standards). Compare 42 U.S.C. § 7411 (1994) (standards of performance for new
stationary sources) with 33 U.S.C. § 1316 (categories of sources and requirements for new sources of pollution). Compare 42 U.S.C. § 7410
(1994) (SIPs for national ambient air quality standards) with 33 U.S.C. § 1313 (implementation of state water quality standards).
n19 Both laws authorize and encourage EPA to delegate the implementation of various programs to state agencies. In the CWA, see 33
U.S.C. § 1342(b) (1994) (state permit programs for NPDES); id. § 1344(g) (state administration of permits for dredged or fill material); id. §
1313 (state water quality standards and implementation plans); id. § 1370 (retention of state authority). In the CAA, see 42 U.S.C. § 7410
(1994) (state implementation plans for national primary and secondary ambient air quality standards); id. § 7412(1) (state programs for
hazardous air pollutants); id. § 7411(c) (state implementation and enforcement standards of performance for new stationary sources); id. §
7416 (retention of state authority).
n20 See RODGERS, supra note 12, at 134, 259.
n21 See, e.g., 33 U.S.C. §§ 1311(b), 1314(b), 1316 (1994) (defining various degrees of "best technology" for existing and new point sources
of water pollution); 42 U.S.C. §§ 7411, 7412 (1994) (same for sources of air pollution).
n22 See e.g., 33 U.S.C. §§ 1313(c), 1314(a) (1994) (providing for ambient water quality standards); 42 U.S.C. §§ 7408, 7409 (1994)
(providing for ambient air quality standards). See generally RODGERS, supra note 12, at 133-34 (ambient air quality standards), 252-53
(water quality standards).
n23 For purposes of this analysis, it is not important whether the different directions in air and water pollution control stemmed mainly from
statutory or regulatory differences.
n24 See RODGERS, supra note 12, at 135; Craig N. Oren, The Clean Air Act Amendments of 1990: A Bridge to the Future, 21 ENVTL. L.
1817, 1825 (1991); William F. Pederson, Jr., Why the Clean Air Act Works Badly, 129 PA. L. REV. 1059, 1063, 1072 (1981).
n25 See RODGERS, supra note 12, at 135; Houck, supra note 4, at 10,329-30; Michael P. Healy, Still Dirty After Twenty-Five Years: Water
Quality Standard Enforcement and the Availability of Citizen Suits, 24 ECOLOGY L.Q. 393, 395 (1997).
n26 See generally ADLER ET AL., supra note 1 (Clean Water Act); see also Howard Latin, Regulatory Failure, Administrative Incentives,
and the New Clean Air Act, 21 ENVTL. L. 1647 (1991) (Clean Air Act).
n27 For example, the major stationary source control provision in the CAA designed to address hazardous air pollutants was revised to
parallel the technology-based controls in the CWA. 42 U.S.C. § 7412(g)(2)(A)-(B) (1994).
n28 According to one relatively early assessment, EPA proposed more regulations in the wake of the 1990 amendments than in any other
similar period in EPA history, with the expectation that the new controls would reduce national air emissions by up to 47 billion pounds per
year. See U.S. GEN. ACCOUNTING OFFICE, AIR POLLUTION: PROGRESS AND PROBLEMS IN IMPLEMENTING SELECTED
ASPECTS OF THE CLEAN AIR ACT AMENDMENTS OF 1990 1 (1993) [hereinafter GAO REPORT]. The same report, however,
indicated that realization of these goals depended on solutions to unresolved implementation issues. See id. Many others questioned whether
Page 33
the new law would cure some of the intractable problems that have plagued the CAA from the outset. See, e.g., Arnold W. Reitze Jr., A
Century of Air Pollution Control Law: What's Worked; What's Failed; What Might Work, 21 ENVTL. L. 1549, 1554 (1991) (arguing that
efforts to tinker with the law will not work absent comprehensive changes in land use and energy policy); Oren, supra note 24, at 1823
("There is room for doubt about the likely success of the 1990 Amendments."); Latin, supra note 26 (arguing generally that the 1990
amendments will be plagued by the same implementation problems as earlier versions).
n29 The last major amendments were enacted in 1987, see Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 (codified as amended
at 33 U.S.C. §§ 1251-1387 (Supp. 1996)), while recent reauthorization efforts have failed politically. See Bureau of Nat'l Affairs,
Legislation: Consensus Among Interested Parties Seen as Crucial for CWA Reauthorization, 27 Env't Rep. (BNA) 2143 (1997) (discussing
failed CWA reauthorization attempt by 104th Congress); Bureau of Nat'l Affairs, Water Pollution: States Continuing Work on Water Package
Despite Hill Inaction, NGA Official Says, 27 Env't Rep. (BNA) 25 (1996) (discussing continuing efforts to develop a CWA reauthorization
package).
n30 See Houck, supra note 4, at 10,329-30; see also RODGERS, supra note 12, at 260; Houck, supra note 11, at 10,415. This historical
failure includes some notable deficiencies in the CAA's SIP process. See RODGERS, supra note 12, at 211. See also infra Part II.B.3.c.
n31 33 U.S.C. § 1313(c) (1994).
n32 Id. § 1313(c)(2)(A) ("Such revised or new water quality standard shall consist of the designated uses of the navigable waters involved
and the water quality criteria for such waters based upon such uses."); 40 C.F.R. §§ 130.2(d), 131.3(i) (1997).
n33 See 40 C.F.R.. §§ 130.3, 131.2 (1997).
n34 See Mississippi v. Costle, 625 F.2d 1269, 1275 (5th Cir. 1980).
n35 These minimum requirements are known colloquially but imprecisely as "fishable and swimmable" uses, a commonly used shorthand
term of uncertain origin. See, e.g., RODGERS, supra note 12, at 344 n.9; U.S. EPA, Total Maximum Daily Load Program (last modified
Nov. 5, 1998) <http://www.epa.gov/region09/water/tmdl/index.html>. The "fishable and swimmable" shorthand is evocative but not fully
inclusive of the statutory text, which reads,
It is the national goal that wherever attainable, an interim goal of water quality which provides for the protection and
propagation of fish, shellfish, and wildlife and provides for recreation in and on the water be achieved by July 1,
1983 . . . .
33 U.S.C. § 1251(a)(2) (1994). There is some ambiguity about the meaning of the words "wherever attainable." Conceivably, Congress
meant that the minimum uses were to be achieved wherever attainable by 1983, but later where the 1983 date was not attainable. However,
EPA has interpreted this phrase to indicate that fishable and swimmable uses may not be attainable at all for certain water bodies, in which
case those uses may be deleted from the applicable WQS. See 40 C.F.R. § 131.10(g) (1997).
n36 The relevant statutory language provides:
Such standards shall be established taking into consideration their use and value for public water supplies, propagation of
fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration
their use and value for navigation.
33 U.S.C. § 1313(c)(2)(A) (1994); see also 40 C.F.R. § 131.10 (1997).

Page 34
n37 For example, states often distinguish between different categories of fishery uses based on the existing or natural habitat and its
characteristic species. See generally 40 C.F.R. § 131.10(c) (1997).
n38 For example, a state may elect to protect all of its waters for public drinking water supply, or only those waters upstream from existing
intakes.
n39 See, e.g., 33 U.S.C. §§ 1251(g), 1370 (1994).
n40 This is consistent with the notion that ambient standards are set at levels necessary to protect health and the environment without regard
to economics or technological attainability. See supra text accompanying notes 21-22.
n41 See 33 U.S.C. § 1314(a) (1994); 40 C.F.R. § 131.3(c) (1997). State adoption of criteria recommended by EPA under section 304(a) is
usually sufficient, but is not always necessary, to meet the minimum requirements of the Act. See id. § 131.11(b).
n42 33 U.S.C. § 1314(a)(1) (1994).
n43 The CWA aspires to "restore and maintain the chemical, physical and biological integrity of the Nation's waters" from a wide array of
impairments. Id. § 1251(a). Compare id. § 1362(6) (1996) (definition of "pollutant" limited to discharged materials, although defined
broadly) with id. § 1362(19) (1994) (definition of "pollution" includes more broadly the "man-made or man-induced alteration of the
chemical, physical, biological, and radiological integrity of water"). Thus, "pollution" can include depletion of minimum water flows
necessary to protect fisheries, see PUD NO. 1 of Jefferson Co. v. Washington Dep't. of Ecology, 511 U.S. 700, 723 (1994), and other
impairments of aquatic habitat. See generally Donahue, supra note 4 (arguing that section 401 should apply to any federally permitted
activity that may cause water pollution whether as a result of a point source or nonpoint source).
n44 See 40 C.F.R. § 131.3(b) (1997) (criteria may be "expressed as constituent concentrations, levels, or narrative statements . . . .").
n45 See Environmental Defense Fund v. Costle, 657 F.2d 275, 288 (D.C. Cir. 1981) (approving the use of narrative rather than numeric
salinity criteria); Healy, supra note 25, at 400; Gaba, supra note 12, at 1205.
n46 See Natural Resources Defense Counsel, Inc. v. EPA, 915 F.2d 1314 (9th Cir. 1990) (describing WQC as "the maximum concentration
of pollutants that could occur without jeopardizing the use"); Westvaco Corp. v. EPA, 899 F.2d 1383, 1384 (4th Cir. 1990) (describing WQC
as the "amount of various pollutants" that may be present in a water body).
n47 By regulation, EPA defines WET as "the aggregate toxic effect of an effluent measured directly by a toxicity test." 40 C.F.R. § 122.2
(1997). The legality of WET criteria was upheld in two separate decisions by the U.S. Court of Appeals for the D.C. Circuit. See American
Paper Inst., Inc. v. EPA, 996 F.2d 346 (D.C. Cir. 1993); Natural Resources Defense Council, Inc. v. EPA, 859 F.2d 156 (D.C. Cir. 1988).
Congress promoted the use of WET criteria in the 1987 Water Quality Act through amendments to sections 303(c)(2)(B) and 304(a)(8) of the
statute; the amendments expressly recognized, and in some cases required, the use of "biological monitoring or assessment methods,"
synonymous nomenclature for WET testing procedures. 33 U.S.C. §§ 1313(c)(2)(B), 1314(a)(8) (1994).
n48 For example, the criterion might establish that an effluent would "fail" the test if more than 50% of the test organisms (such as fathead
minnows) died after exposure to a 10% dilution of the effluent after 24 hours. This would be known as a 24-hour LC[50] (with "LC"
denoting "lethal concentration"). See 60 Fed. Reg. 53,529, 53,533 (1995); 40 C.F.R. § 136.3(a) (1998).
Page 35
n49 See 62 Fed. Reg. 58,114 (1997); U.S. EPA, CONTAMINATED SEDIMENT MANAGEMENT STRATEGY (EPA 823-R-98-001,
1998).
n50 Bioconcentration refers to the process by which fish and aquatic animals accumulate chemicals and toxins from contaminated water in
their tissues directly through the skin and gills. Biomagnification is the process by which the food chain compounds the effects of chemicals
and toxins. Bioaccumulation refers to the concentration of chemicals and toxins in the tissues of aquatic life that results from
bioconcentration and biomagnification. See JEFFERY A. FORAN & LARRY E. FINK, REGULATING TOXIC SUBSTANCES IN
SURFACE WATERS 64 (1993); ADLER ET AL., supra note 1, at 43-44, 123-25.
n51 An early U.S. Supreme Court decision is consistent with this characteristic of most WQC. See EPA v. State Water Resources Control
Bd., 426 U.S. 200 (1976) (finding WQS "focused on the tolerable effects . . . of water pollution").
n52 For an extensive review of this effort, see BIOLOGICAL ASSESSMENT AND CRITERIA: TOOLS FOR WATER RESOURCE
PLANNING AND DECISION MAKING (Wayne S. Davis & Thomas P. Simon eds., 1995).
n53 An organism's "trophic level" refers to its position in the food chain. "Trophic structure" is the "organization of the community based on
feeding relationships of species." ROBERT E. RICKLEFS, ECOLOGY 795 (1974).
n54 More specifically, biocriteria employ ecological indexes to compare the ecological conditions in an impaired water body with those in a
reference system that is relatively free from pollution. See id. at 3-6.
n55 Robert W. Adler, Filling the Gaps in Water Quality Standards: Legal Perspectives on Biocriteria, in BIOLOGICAL ASSESSMENT
AND CRITERIA, supra note 52, at 346.
n56 As a result, far more water bodies typically are identified as impaired by reference to biocriteria than by using more traditional criteria.
See, e.g., Mark T. Southerland & James B. Stribling, Status of Biological Criteria Development and Implementation, in BIOLOGICAL
ASSESSMENT AND CRITERIA, supra note 52, at 88 (citing Ohio as an example of a state where "twice as many impaired waters have
been discovered by using biological criteria and chemistry assessments together than were discovered using chemistry assessments alone").
n57 See 33 U.S.C. § 1313(c)(2) (1994); 40 C.F.R. § 131.4 (1997).
n58 See 33 U.S.C. § 1313(c)(2)-(4) (1994); 40 C.F.R. § 131.5(b) (1997).
n59 See 40 C.F.R. § 131.11 (1997) (flexibility in adoption of individual criteria), 131.13 (flexibility in implementation of criteria).
n60 See FORAN & FINK, supra note 50, 22, 27-31; ADLER ET AL., supra note 1, at 126-27.
n61 33 U.S.C. § 1313(c)(2)(A) (1994).

Page 36
n62 See 40 C.F.R. §§ 130.3, 131.2 (1997). For a discussion of the term "fishable and swimmable," see supra note 35.
n63 See 40 C.F.R. § 131.6(d), 131.12 (1997).
n64 Thus, in many respects, the antidegradation policy is really an implementation mechanism rather than a component of the standards, as
is true of the analogous "Prevention of Significant Deterioration" ("PSD") program in the CAA. See infra text accompanying notes 193-228.
The policy is discussed in this subsection, however, to be consistent with EPA's regulatory nomenclature.
n65 40 C.F.R. § 131.12(a)(1) (1997).
n66 " Designated uses are those uses specified in water quality standards for each water body or segment whether or not they are being
attained." Id. § 131.3(f) (1997) (italics in original). "Existing uses are those uses actually attained in the water body on or after November 28,
1975, whether or not they are included in the water quality standards." Id. § 131.3(e) (italics in original).
n67 See id. § 131.12(a)(2). Degradation may be allowed, so long as the minimum Tier One requirements continue to be met, and after
appropriate public participation and intergovernmental coordination, where the state concludes "that allowing lower water quality is
necessary to accommodate important economic or social development in the area in which the waters are located." Id. In addition, where
such degradation is allowed, the "highest statutory and regulatory requirements" must be imposed on all existing and new sources of
pollution to those waters. Id.
n68 The qualifier "significant" is necessary because EPA policy guidance indicates that some degree of minor or temporary degradation in
fact may be permissible for Tier Three waters under very limited circumstances. Section
131.12(a)(3) dealing with the designation of outstanding National resource waters ("ONRWs") was changed to provide a
limited exception to the absolute "no degradation" requirement. EPA was concerned that waters which properly could
have been designated as ONRW were not being so designated because of the flat no degradation provision, and therefore
were not being given special protection . . . . States may allow some limited activities which result in temporary and short-
term changes in water quality.
Office of Water Regulations and Standards, U.S. EPA, Questions and Answers on Antidegradation ii (1985); see also John Harleston, What
is Antidegradation Policy: Does Anyone Know?, 5 S.C. ENVTL. L.J. 33, 54 (1996).
n69 40 C.F.R. § 131.12(a)(3) (1997). ONRWs include waters "such as waters of National and State parks and wildlife refuges and waters of
exceptional recreational or ecological significance." Id. While the words "such as" could be read to mean that waters of parks and wildlife
refuges, as well as other significant waters, automatically qualify as ONRWs, EPA has left site-specific designation of all ONRWs up to
individual states. See Memorandum from James A. Rogers, EPA Office of General Counsel, to Kenneth M. Mackenthun, Director of EPA's
Office of Water, Criteria & Standards Division, Outstanding National Resource Waters (Aug. 15, 1979), quoted and cited in NAT'L
WILDLIFE FED'N, WATERS AT RISK: KEEPING CLEAN WATERS CLEAN 4, 13, 33 (1992); see also Memorandum from Catherine A.
Winer, EPA Office of General Counsel, to William Diamond, Director of EPA's Water Criteria & Standards Division, EPA Designation of
Outstanding National Resource Waters (May 8, 1989), cited in WATERS AT RISK: KEEPING CLEAN WATERS CLEAN 33 (noting the
continued validity of this opinion of EPA's statutory authority).
n70 See infra text accompanying notes 193-208.
n71 The antidegradation program originated in a 1968 press release by Interior Secretary Udall requiring states to adopt antidegradation
policies. See Harleston, supra note 68, at 39-42; Gaba, supra note 12, at 1188-92.
Page 37
n72 See 33 U.S.C. § 1313(d)(4)(B) (1994) (referring to the "antidegradation policy established under this section").
n73 Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903, § 5(c)(1).
n74 See ADLER ET AL., supra note 1, at 6-7.
n75 Under the CWA, technology-based source controls were implemented in phases. "Best Practicable Technology" ("BPT") for industrial
sources, and secondary treatment for municipal sources, were supposed to be in place by 1977. See 33 U.S.C. § 1311(b)(1)(A), (b)(1)(B)
(1994). Stricter technology-based controls for industrial sources were required later. See, e.g., id. § 1311(b)(2)(A) (requiring "Best Available
Technology" ("BAT")).
n76 Section 303(d)(1) refers expressly only to BPT for industrial sources and secondary treatment for municipal sources. See id. § 1313(d)
(1)(A). By somewhat confusing and internally inconsistent regulations, EPA has (perhaps illegally) expanded the list of existing and
proposed future controls that can be used to exclude a water body from listing under section 303(d)(1). A "water quality limited segment" is
defined as waters that cannot meet WQS after application of all technology-based effluent limitations under sections 301(b) and 306 of the
Act, not just the first (and weakest) round of such requirements. 40 C.F.R. § 130.2(j) (1997). TMDLs, in turn, must be developed only for
"water quality limited segments" that are not expected to meet WQS after imposition of technology-based standards under sections 301(b),
306, 307, or other sections of the Act; stricter effluent limits imposed under state authority; and other pollution controls, such as best
management practices ("BMPs") for nonpoint sources. Id. § 130.7(b). See also U.S. EPA, GUIDANCE FOR WATER QUALITY-BASED
DECISIONS: THE TMDL PROCESS 11 (EPA 440/4-91-001, 1991) [hereinafter THE TMDL PROCESS]; FACA REPORT, supra note 14,
at 16 (both discussing waters that do not or may not meet WQS).
n77 See 43 Fed. Reg. 60,662 (1978).
n78 See 33 U.S.C. §§ 1313(d)(2) (1994) (submission of lists), 1314(a)(2)(D) (EPA identification of pollutants).
n79 See id. § 1313(d)(2).
n80 Under EPA's alternative regulatory terminology, a TMDL refers to the "loading capacity" of a water body. This "loading capacity"
represents the "greatest amount of loading that a water can receive without violating water quality standards." 40 C.F.R. § 130.2(f) (1997).
As explained further below, a TMDL is the sum of the individual allocations of the loading capacity among various sources. From a numeric
perspective, because the TMDL equals the loading capacity, the difference in terminology is not significant. As discussed below, however,
the evolving concept of a TMDL envisions a comprehensive water body restoration plan, rather than a single number. See FACA REPORT,
supra note 14, at 44-50 (urging EPA to require TMDLs to include comprehensive implementation plans, despite lack of express statutory
mandate); see also Lawrence S. Bazel, Water Quality Standards, Maximum Loads, and the Clean Water Act: The Need for Judicial
Enforcement, 34 HASTINGS L.J. 1245, 1270-71 (1983) (presciently arguing 15 years ago that TMDLs should consist of "comprehensive
cleanup plans, not numbers").
n81 TMDLs must be established "with seasonal variations and a margin of safety." 33 U.S.C. § 1313(d)(1)(C) (1994).
n82 See id. § 1313(d)(1)(C); 40 C.F.R. § 130.7 (1997). A separate set of TMDLs is supposed to be prepared for waters impaired by thermal
discharges. See 33 U.S.C. § 1313(d)(1)(B), (d)(1)(D) (1994).
Page 38
n83 See 33 U.S.C. § 1313(d)(2 (1994)); 40 C.F.R. § 130.7(d) (1997).
n84 33 U.S.C. § 1313(e) (1994).
n85 Other provisions of the 1972 statute that require states to monitor water quality and to identify waters that comply or do not comply
with WQS include sections 208(a), id. § 1288(a) (requiring states or EPA to identify waters which, "as a result of urban-industrial
concentrations or other factors, have substantial water quality control problems"), and 305(b), id. § 1315(b) (requiring biennial monitoring
and reports on the quality of all waters of the state, including a correlation with the WQS and analysis of compliance with the minimum
fishable and swimmable goals of the law). In 1987, without modifying the three existing requirements significantly, Congress added section
304(1), id. § 1314(1) (dubbed "individual control strategies for toxic pollutants" but requiring three more broadly focused lists of water
bodies, including (1) waters for which BAT standards "cannot reasonably be expected to attain or maintain" WQS due to toxic pollutants; (2)
waters for which BAT standards "cannot reasonably be expected to attain or maintain" various beneficial uses; and (3) waters for which the
combination of BAT, new source performance standards ("NSPSs") under section 306, and pretreatment standards under section 307(b) for
indirect industrial dischargers of pollution through sewage treatment plants, are not expected to meet WQS due entirely or substantially to
point source discharges of toxic pollutants), section 319(a)(1)(A), id. § 1329(a)(1)(A) (requiring states to identify waters that, "without
additional action to control nonpoint sources of pollution, cannot reasonably be expected to attain or maintain applicable water quality
standards" or beneficial uses), and section 314(a), see id. § 1324(a) (requiring assessments of lake water quality).
n86 Section 303(d) is silent on the type and extent of monitoring required to support the listing process. Section 305(b) requires states to
submit biennially a report including, inter alia, (1) a "description" of water quality in all waters of the state, "correlated with the quality of
water required by the objective of" the Act; and (2) an analysis of the extent to which all waters meet the minimum fishable and swimmable
requirements of the Act. Id. § 1315(b)(1)(A)-(B). Read broadly, this provision requires complete testing of all surface waters to determine
whether WQS are met. However, the word "description" begs the question of whether all waters must be tested through quantitative
methods, or whether less rigorous analysis is needed. Section 106(e)(1) is equally vague, prohibiting EPA from issuing program grants to any
state that does not conduct "appropriate" monitoring. Id. § 1256(e)(1).
n87 Neither sections 303(d) nor 305(b), nor any of the other statutory listing provisions or applicable regulations, defines or expressly
requires EPA to establish uniform criteria on these issues. See id. §§ 1313(d), 1315(b); 40 C.F.R. § 130.7 (1997).
n88 The regulation governing state 305(b) reports, 40 C.F.R. § 130.8 (1997), does little more than paraphrase the language of the statute.
Another regulation governing the TMDL listing and development process, id. § 130.7, identifies the type of information the state must
consider in deciding which waters to list, including "all existing and readily available water quality-related data and information," id. §
130.7(b)(5), and describes the methodology and the data and information used to develop the lists, see id. § 130.7(b)(6), but fails to specify
any minimum requirements for such data and information collection. Finally, the regulation governing water quality monitoring in general,
see id. § 130.4, parrots the vague statutory requirement for "appropriate monitoring methods and procedures . . .," id. § 130.4(a), adding only
that states must collect and analyze "physical, chemical and biological data," id. § 130.4(b). The lack of EPA guidance on this issue has
produced considerable inconsistency in state monitoring and reporting systems. See INTERGOVERN-MENTAL TASK FORCE ON
MONITORING WATER QUALITY, THE STRATEGY FOR IMPROVING WATER-QUALITY MONITORING IN THE UNITED STATES
(1995) [hereinafter WATER QUALITY MONITORING STRATEGY] at 5 (citing the need for comparable data, common terminology,
methods, definitions and quality assurance programs).
n89 U.S. EPA, GUIDELINES FOR PREPARATION OF THE COMPREHENSIVE STATE WATER QUALITY ASSESSMENTS (305(b)
REPORTS) AND ELECTRONIC UPDATES (EPA 841-B-97-002A, 1997) AND SUPPLEMENT (EPA 841-B-97-002B, 1997) [hereinafter
305(b) REPORTING GUIDANCE].
n90 For example, the 305(b) REPORTING GUIDANCE includes extensive recommendations on what degrees of use impairment and what
percentage of sample exceedences might constitute a WQS violation. See id., Supplement Ch. 3. Ultimately, however, the only mandatory
"requirement" is that states "provide information on the methods they used to assess data for determining use support status." Id. at 4-4.
n91 This issue consumed a considerable amount of the FACA Committee's energy. See FACA REPORT, supra note 14, at 11-19.
Page 39
n92 See 33 U.S.C. § 1313(d)(3) (1994); 40 C.F.R. § 130.7(e) (1997).
n93 Of course, while this distinction may have made sense in 1972, it is now a logical anachronism. Either secondary treatment and BPT
controls on point sources have resulted in the attainment of WQS, or they have not. Thus, 303(d)(3) lists compiled at this point should be
limited to waters that meet WQS. In reality, and not surprisingly given that states have been dragged into the 303(d)(1) process, apparently
no state has prepared a 303(d)(3) list.
n94 33 U.S.C. § 1313(d)(3) (1994); 40 C.F.R. § 130.7(e) (1997).
n95 Section 101(a)(2) establishes a "national goal that wherever attainable" the minimum fishable and swimmable WQS be achieved by
July 1, 1983. 33 U.S.C. § 1251(a)(2) (1994). While point source controls necessary to meet WQS were supposed to be met by July 1, 1977,
see id. § 1311(b)(1)(A), no similar statutory deadlines apply to other controls needed to meet the WQS. Moreover, both the 1977 deadline
and the 1983 goal have long passed without modification, leaving no effective statutory deadlines for future compliance.
n96 See 40 C.F.R. § 130.1(d) (1997) ("These control measures [necessary to meet WQS] are implemented by issuing permits, building
publicly owned treatment works ("POTWs"), instituting best management practices for nonpoint sources of pollution and other means.").
n97 See 33 U.S.C. §§ 1281, 1288 (1994).
n98 Id. § 1252(a)-(d) (providing for coordination with 42 U.S.C. § 1962 et seq.); see Adler, supra note 6, at 1041 n.407).
n99 For a survey of these individual watershed-based programs, see Adler, supra note 6, at 1070-78.
n100 See 33 U.S.C. § 1329 (1994).
n101 Id. § 1313(e)(3); see also 40 C.F.R. § 130.5 (1997) (essentially paraphrasing the statute). While EPA has authority to approve or
disapprove a state's continuing planning process, it has no authority to prepare its own plan if the state fails to do so, or does so inadequately.
For states without an adequate continuing planning process, however, EPA can withhold grant funding, see 33 U.S.C. § 1284(a)(2) (1994), or
deny approval of the state's NPDES permitting program under section 402, see id. § 1313(e)(2).
n102 Effluent limitations required by section 303(e)(3) must be "at least as stringent as any requirements contained in any applicable water
quality standard . . . ." 33 U.S.C. § 1313(e)(3)(A) (1994).
n103 See id. § 1313(e)(3)(B).
n104 See id. § 1313(e)(3)(C).
n105 See id. § 1313(e)(3)(F). This subsection requires "adequate implementation, including schedules of compliance, for revised or new
water quality standards . . . ." Id. The plans also must include procedures for revision and intergovernmental coordination, controls over the
Page 40
disposal of residual waste from water treatment processing, and an inventory and ranking of needs for the construction of public waste
treatment works. See id. § 1313(e)(3)(D), (E), (G), (H).
n106 Id. § 1311.
n107 Id. § 1288.
n108 This gap may have been entirely intentional, consistent with Congress' express intent to leave many of the details of the water
pollution control program to state discretion as possible. See id. §§ 1251(b), 1251(g), 1370. In addition, because states testified consistently
during the legislative hearing process that they had the technical capabilities to translate WQS into adequate specific pollution controls, see
Houck, supra note 4, at 10,332-34, 10,336, Congress may have seen no need to impose more specific federal requirements.
n109 33 U.S.C. § 1313(d)(1)(C), (D) (1994).
n110 40 C.F.R. § 130.2(g), (i) (1997).
n111 See The TMDL Process, supra note 76, at 19.
n112 See 40 C.F.R. § 130.2(h) (1997).
n113 See id. § 130.2(g). Thus, a TMDL can be represented by a simple formula: TMDL = LC = [RHO]WLA + [RHO]LA + BL + MOS +
FG
where:
TMDL = total maximum daily load
LC = loading capacity
[RHO] = "sum of"
WLA = wasteload allocation (point source contribution)
LA = load allocation (nonpoint source contribution)
BL = natural background level of pollution
MOS = margin of safety
FG = allocation for future growth.
While the regulation combines pollution loads from multiple sources into the definition of load allocation, "wherever possible, natural
and nonpoint source loads should be distinguished." Id.
n114 See THE TMDL PROCESS, supra note 76, at 16, 50 (leaving the allocation process largely to the states, but describing "three
common methods for allocating loads"). A more complete list of possible allocation methods is included in U.S. EPA, TECHNICAL
SUPPORT DOCUMENT FOR WATER QUALITY-BASED TOXICS CONTROL 69 (EPA 505/2-90-001, 1991), but again, the guidance
indicates that "regulatory authorities may use any reasonable allocation scheme that meets the antidegradation provisions and other
requirements of State water quality standards." THE TMDL PROCESS, supra note 76, at 16, 50.
n115 40 C.F.R. § 130.7(c)(1)(ii) (1997).
n116 See id. § 130.7(b)(3); infra notes 125-132 and accompanying text.
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n117 See OFFICE OF WATER, U.S. EPA, COMPENDIUM OF TOOLS FOR WATERSHED ASSESSMENT AND TMDL
DEVELOPMENT (EPA 841-B-97-006, 1997) [hereinafter TMDL COMPENDIUM]; Bazel, supra note 80, at 1246, 1254, 1270; Houck,
supra note 12, at 10,398.
n118 For criteria based on concentrations of pollutants in the water column, ambient concentrations will increase as point source discharges
and runoff increase, and as instream flow decreases, while ambient concentrations will decrease as discharges decrease and instream flow
increases. Discharge and flow conditions can vary according to highly predictable (such as typical seasonal variations in flow), less
predictable (such as unusual droughts or storms), or entirely unpredictable (such as sudden increases or decreases in factory or sewage
treatment plant effluent due to production changes or plant upsets) variables. Consistent with the statutory command to calculate TMDLs
with a "margin of safety," 33 U.S.C. § 1313(d)(1)(C) (1994), the regulation requires that TMDL determinations "take into account critical
conditions for stream flow, loading, and water quality parameters." 40 C.F.R. § 130.7(c)(1) (1997). Of course, the words "take into account"
are not entirely prescriptive.
n119 For example, some pollutants degrade after a particular amount of time in the water body, possibly depending on conditions such as
temperature or the presence of other substances. Others may be converted into more or less harmful forms. For instance, metals can become
more or less bioavailable depending on temperature and hardness, and organic compounds can react to become more or less toxic (for
instance, through the formation of more toxic chlorinated organic compounds due to the interaction of organic matter and residual chlorine
discharges from sewage plants). Others, such as organic compounds or metals, may build up in sediment or living organisms and may be
resuspended in the water column under certain conditions. See ADLER ET AL., supra note 1, at 124-25 (discussing generally the fate and
persistence of water pollutants). For a more detailed discussion of the use of computer models to address the interaction of pollutants in the
environment, see TMDL COMPENDIUM, supra note 117, at 23-26.
n120 See Gaba, supra note 12, at 1169, 1185; Healy, supra note 25, at 397-99; Bazel, supra note 80, at 1248.
n121 For example, if a narrative criterion prohibits "toxics in toxic amounts," evidence that fish are experiencing sublethal morbidity (such
as the presence of tumors) violates the narrative water quality criterion even absent any exceedence of a numeric criterion. Similarly, if a
biological stream survey shows an abnormal prevalence of pollution-tolerant species, a narrative criterion requiring protection of natural
ecosystem diversity would be violated.
n122 See 40 C.F.R. § 130.7(c)(1)(i) (1997).
n123 See U.S. EPA, TOXICITY REDUCTION EVALUATION PROTOCOL FOR MUNICIPAL WASTEWATER TREATMENT PLANTS
1-1 to 1-4, 8-1 (EPA 600/2-88-062, 1989) (defining a toxicity reduction evaluation as "'a step-wise process which combines toxicity testing
and analysis of the physical and chemical characteristics of causative toxicants to zero in on the toxicants causing effluent toxicity and/or on
treatment methods which will reduce the effluent toxicity.'"); U.S. EPA, METHODS FOR AQUATIC TOXICITY IDENTIFICATION
EVALUATIONS: PHASE II IDENTIFICATION PROCEDURES 1-1 (EPA 600/3-88-035, 1989) ("An experiment frequently will allow us
only to accept but not reject the hypothesis . . . . If the effluent is still toxic, you can conclude that there are additional toxicants present. If
the effluent is not toxic, you cannot conclude that there are no additional toxicants . . . . Frequently the issue will not be resolved until at least
one toxicant is identified and measured analytically.").
n124 See 40 C.F.R. § 122.44(d)(1) (1997).
n125 33 U.S.C. § 1313(d)(1)(A) (1994) (emphasis added).
n126 See 40 C.F.R. § 131.6(d) (1997).

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n127 See supra notes 63-69 and accompanying text.
n128 This interpretation is supported by section 303(d)(4) of the statute, added in 1987. This provision specifically distinguishes between
waters listed under section 303(d)(1)(A) "where the applicable water quality standard has not yet been attained," 33 U.S.C. § 1313(d)(4)(A)
(1994), and waters for which "the quality of waters equals or exceeds levels necessary to protect the designated use . . . or otherwise required
by applicable water quality standards," in which case any revised effluent limitations must be "subject to and consistent with the
antidegradation policy established under this section," id. § 1313(d)(4)(B). This view, of course, raises the question of which water bodies
must be listed under section 303(d)(1)(A). It may not be possible to predict which high quality waters may be subject to new or expanded
discharges. Moreover, technology-based requirements may not be adequate to implement the antidegradation requirements in any waters.
Thus, the state is left with the choice of identifying all high quality waters under section 303(d)(1), identifying no such waters, or identifying
only those waters with known threats.
n129 Uncertainty regarding antidegradation derives from apparent inconsistencies within EPA regulations. For example, the C.F.R. lists
antidegradation among the types of criteria for which listing is required. See 40 C.F.R. § 130.7(b)(3) (1997). However, section 130.7(b)(1)
requires listing and calculation of TMDLs only for certain "water quality limited segments." Id. EPA defines such segments as including only
segments where WQS are violated as opposed to waters that meet or surpass applicable WQS. See id. § 130.2(j). This may have been an
unintentional oversight when EPA promulgated the definition of "water quality limited segments." EPA guidance on the TMDL program,
however, clearly requires "threatened waters," defined as waters likely to exceed WQS in the next two-year listing cycle, to be listed under
section 303(d)(1) of the CWA. See Memorandum from Robert H. Wayland III, Director, Office of Wetlands, Oceans and Watersheds, to
Water Division Directors, Regions I-X, Directors, Great Water Body Programs, and Water Quality Branch Chiefs, Regions I-X, National
Clarifying Guidance for 1998 State and Territory Section 303(d) Listing Decisions (Aug. 17, 1997) [hereinafter Wayland Memorandum] at 7
(on file with author).
n130 33 U.S.C. § 1313(d)(3) (1994).
n131 See supra note 67 and accompanying text.
n132 To distinguish a Tier One antidegradation TMDL from a TMDL for existing violations, the former could be expressed mathematically
as a negative as opposed to a positive increment (or vice versa).
n133 This description of how the CWA is supposed to work in theory presents a somewhat misleading picture of actual implementation. As
discussed below, TMDLs have not actually been calculated for most impaired water bodies, yet steps to attain WQS have been taken through
various controls on point and nonpoint sources. For example, absent a full-blown TMDL, individual water quality-based permit limits
routinely are (and are required to be) imposed on individual point sources through NPDES permits. See 33 U.S.C. § 1311(b)(1)(C) (1994);
40 C.F.R. § 122.44(d) (1997). See also Arkansas v. Oklahoma, 503 U.S. 91 (1992) (upholding EPA regulations requiring that upstream
discharges must meet water quality standards of downstream states, but deferring to EPA's interpretation of Oklahoma's water quality
standards); Trustees for Alaska v. EPA, 749 F.2d 549 (9th Cir. 1984) (holding that the EPA Administrator erred by failing to require effluent
limitation needed to meet turbidity WQS). The manner in which both the necessity and adequacy of such permit limits is judged, of course,
is open to question in the absence of a TMDL. Nevertheless, efforts by point sources to challenge water-quality based permits in the absence
of a TMDL have uniformly failed. See Upper Chattahoochee Riverkeeper Fund, Inc. v. City of Atlanta, 986 F. Supp. 1406 (N.D. Ga. 1997)
(holding that city violated NPDES permits by failing to obtain approved sampling plan, to maintain accurate records, to conduct first flush
monitoring, to conduct composite sampling, to provide adequate staffing, to treat waste in accordance with combined sewer overflow
("CSO") plan, and to meet water quality standards as to water in culverts and fecal chloroform bacteria levels in receiving streams); City of
Las Vegas v. Clark Co., 755 F.2d 697 (9th Cir. 1984) (holding that federal officials were not required to calculate TMDLs for waters in
question before NPDES permits were issued); United States v. Homestake Mining Co., 595 F.2d 421 (8th Cir. 1979) (holding that CWA
extension of deadline for achievement of effluent limitations through use of BPT does not authorize extensions regarding water quality based
effluent limitations).
n134 See 33 U.S.C. § 1311(b)(1)(C) (1994); also id. §§ 1312 (providing separate but heretofore unused procedure by which EPA may
impose stricter water quality-based effluent limitations), 1313(e)(3)(A) (requiring water quality-based effluent limitations as part of the
continuing planning process), 1341 (allowing states to impose additional conditions on any federal licenses or permits, including EPA-issued
permits under the CWA, as necessary to implement water quality standards). EPA regulations prohibit the issuance of NPDES permits when
Page 43
"conditions cannot assure compliance with applicable water quality requirements of all affected States," and require permits to include
conditions "necessary to . . . achieve water quality standards." 40 C.F.R. § 122.4(d) (1997).
n135 See 33 U.S.C. § 1342 (1994) (requiring point source permits issued by states or EPA to meet "all applicable requirements" of section
301, among others); Trustees for Alaska, 749 F.2d 549 (9th Cir. 1984); Am. Mining Congress v. EPA, 965 F.2d 759 (9th Cir. 1992); Armco,
Inc. v. EPA, 869 F.2d 975 (6th Cir. 1989). Absent a specific statutory exemption, permits are required for all point sources, regardless of size
or significance. See 33 U.S.C. § 1311(a) (1994) (prohibiting "the discharge of any pollutant by any person" except as in compliance with the
permitting requirement of section 402, and applicable substantive controls); Natural Resources Defense Council, Inc. v. Costle, 568 F.2d
1369 (D.C. Cir. 1977) (rejecting EPA's de minimis exception to permit requirement). By statutory definition, agricultural stormwater and
irrigation return flows are exempted from this requirement. See 33 U.S.C. § 1362(14) (1994) (containing the definition of point source).
n136 See 33 U.S.C. §§ 1319 (1994) (containing enforcement provisions generally), 1365 (containing citizen suit provision).
n137 See Perciasepe TMDL Memorandum, supra note 11, at 5-6.
n138 33 U.S.C. § 1281(c) (1994).
n139 See 33 U.S.C. § 1288(b)(4)(D)(i), (f) (1994).
n140 This difference undoubtedly reflected Congress' reluctance to subject a wide range of land use practices to federal control. See
generally Lawrence P. Wilkins, The Implementation of Water Pollution Control Measures -- Section 208 of the Water Pollution Control Act
Amendments, 15 LAND & WATER L. REV. 479 (1980).
n141 33 U.S.C. § 1288(b)(2)(F)-(K) (1994). The categories of nonpoint source pollution required to be addressed under section 208
included agriculture and silviculture, abandoned mines, construction activities, salt water intrusion, disposal of residual waste, and land
disposal and land filling of pollutants. See id. In its water quality management regulations, EPA defines BMPs as "methods, measures or
practices selected by an agency to meet its nonpoint source control needs," which "include but are not limited to structural and nonstructural
controls and operation and maintenance procedures," and which "can be applied before, during and after pollution-producing activities to
reduce or eliminate the introduction of pollutants into receiving waters." 40 C.F.R. § 130.2(m) (1997). Curiously, in its NPDES regulations
EPA has a similar but separate definition of BMPs imposed to address types of industrial pollution such as "plant site runoff, spillage or
leaks, sludge or waste disposal, or drainage from raw material storage." Id. § 122.2.
n142 Various provisions suggest some additional linkage between sections 208 and 303. For example, a state was required to impose the
nonpoint source control requirements developed under section 208 categorically throughout the state when it determined it was necessary to
ensure "consistency with a statewide regulatory program" under section 303. 33 U.S.C. § 1288(b)(4)(A) (1994). Given the lackluster
implementation of the nonpoint source control provisions of section 208 generally, it is highly doubtful that any state ever implemented this
provision. See ADLER ET AL., supra note 1, at 183-85; Houck, supra note 4, at 10,342. In any event, neither of these provisions expressly
required states to evaluate the combination of point and nonpoint source controls developed under section 208 with the overall load
reductions found necessary under section 303(d).
n143 See 33 U.S.C. § 1329 (1994).
n144 See id. § 1329(a) (requiring state nonpoint source assessment reports).
n145 See id. § 1329(b) (requiring new statewide management programs).

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n146 See ADLER ET AL., supra note 1, at 188-91; Houck, supra note 4, at 10,342.
n147 33 U.S.C. § 1329(b)(4) (1994).
n148 See id. § 1329(d)(3).
n149 EPA does have the authority to disapprove an inadequate state program, see id. § 1329(d)(2), and to deny grant funding for the
program in such cases, see id. § 1329(d)(2), (h). Denial of program funding to a state with inadequate desire or will to implement that
program, however, is hardly a potent incentive for tougher state action. EPA also suggests that where states fail to address nonpoint sources
in TMDLs, it will subject NPDES permits in the watershed to greater scrutiny. See Perciasepe TMDL Memorandum, supra note 11, at 7.
Where applicable, the affected point sources might pressure the state to adopt stricter nonpoint source controls, so that point sources do not
bear the entire pollution control burden. This strategy obviously has little utility, however, for waters impaired largely or entirely by runoff
pollution.
n150 Section 301(b)(1)(C), for example, requires simply that effluent limitations include "any more stringent limitation, including those
necessary to meet water quality standards . . . ." 33 U.S.C. § 1311(b)(1)(C) (1994). Similarly, section 303(e)(3)(A) requires "effluent
limitations and schedules of compliance . . . at least as stringent as any requirements contained in any applicable water quality standard . . . ."
Id. § 1313(e)(3)(A) (1994). Of course, this could mean limitations necessary, in combination with applicable controls on other point and
nonpoint sources, to meet WQS.
n151 This assumes that pollution load reductions from the point sources alone are adequate to attain the standards, a dubious proposition in
many cases.
n152 The 1972 House Report indicated, "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." H.R. REP. No. 92-911, at 106 (1972). Section 303(d)
derived from the House bill, over opposition in the Senate, which favored reliance on technology-based controls. See Houck, supra note 4, at
10,337.
n154 Other commentators appear to agree with this conclusion. See Houck, supra note 4, at 10,337; Bazel, supra note 80, at 1260-61.
n155 EPA regulations prohibit the issuance of a permit to a new source or discharger "if the discharge from its construction or operation will
contribute to the violation of water quality standards." 40 C.F.R. § 122.4(i) (1997). This prohibition can be avoided if the applicant shows
that "there are sufficient remaining pollutant load allocations to allow for the discharge," and existing dischargers are subject to schedules
designed to assure compliance with the applicable standards. Id. § 122.4(i)(1), (2). See Houck, supra note 11, at 10,420 (urging EPA to use
this regulation more frequently).
n156 The Court wrote:
Although the Act contains several provisions directing compliance with state water quality standards, see, e.g., 33 U.S.C.
§ 1311(b)(1)(C), the parties have pointed to nothing that mandates a complete ban on discharges into a waterway that is in
Page 45
violation of those standards. The statute does, however, contain provisions designed to remedy existing water quality
violations and to allocate the burden of reducing undesirable discharges between existing sources and new sources. See,
e.g., [33 U.S.C.] § 1313(d). Thus, . . . the Clean Water Act vests in the EPA and States broad authority to develop long-
range, area-wide programs to alleviate and eliminate existing pollution. See, e.g., [33 U.S.C.] § 1288(b)(2).
Arkansas v. Oklahoma, 503 U.S. 91, 108 (1992). Either the Court ignored or overlooked 40 C.F.R. § 122.4(i) (1997), see supra note 155, or
this broad language is dictum in the limited context of a case in which there was a new source that increased discharges but did not
measurably change ambient water quality at the point downstream at which the WQS applied. The Court's reference to section 208 as the
source of authority for a comprehensive approach to pollution control, while dictum as well, suggests that controls on point sources alone
need not be sufficient to redress WQS violations where nonpoint sources contribute to the problem. In making this ruling, of course, the
Court did not take note of the fact that section 208 itself was viewed as a widespread failure, leaving a major gap in the comprehensive
planning process relied on by the Court in reaching its conclusion. See Adler, supra note 6, at 1047-48; RODGERS, supra note 12, at 291-92
(both criticizing the result in Arkansas v. Oklahoma).
n157 EPA regulations provide no help in this regard, and may in fact encourage the allocation of as much pollution to nonpoint sources as
possible. The TMDL regulation indicates that if BMPs "or other nonpoint source pollution controls make more stringent load allocations
practicable, then wasteload allocations can be made less stringent. Thus, the TMDL process provides for nonpoint source control tradeoffs."
40 C.F.R. § 130.2(i) (1997). Of course, in reality this process allows states to trade enforceable point source controls for unenforceable
nonpoint source BMPs. The NPDES permitting regulations, in turn, allow nonpoint source controls to be considered both in deciding
whether water quality-based effluent limitations are needed and in calculating the content of those limitations. See id. § 122.44(d)(1)(ii), (vii)
(B). EPA guidance documents attempt to close this gap by indicating that approvable TMDLs cannot rely on reductions in nonpoint source
pollution unless the plan includes "specific assurances" or "reasonable assurances" that those improvements will be realized. See THE
TMDL PROCESS, supra note 76, at 2, 15; Perciasepe TMDL Memorandum, supra note 11, at 5-6. Aside from the rather subjective nature of
this language, guidance documents, which are not issued using notice and comment rulemaking, simply do not have the force of law of
regulations.
n158 See infra notes 402-417 and accompanying text.
n159 42 U.S.C. § 7409 (1994).
n160 Id. § 7408(a)(1)(A). To be included on the list, the pollutant also must result from "numerous and diverse mobile or stationary
sources," and not have been subject to criteria before 1971. Id. § 7408(a)(1)(B), (C).
n161 Id. § 7408(a)(2). As such, in issuing NAAQS, EPA is supposed to consider health and environmental effects but not cost and feasibility
of attainment. See Am. Petroleum Inst. v. Costle, 665 F.2d 1176 (D.C. Cir. 1981); Lead Indus. Ass'n., Inc. v. EPA, 647 F.2d 1130 (D.C. Cir.
1980). But see Joseph M. Feller, Non-Threshold Pollutants and Air Quality Standards, 24 ENVTL. L. 821, 833 n.75 (1994) (expressing view
that costs are implicitly considered in setting NAAQS where no threshold level of harm is discernable).
n162 See 42 U.S.C. § 7409(a) (1994). For those pollutants for which criteria existed when the Act was passed, NAAQS were to be
promulgated shortly after enactment. For those pollutants subject to later identification, the standards are to be published simultaneously
with the air quality criteria under section 108. See id. § 7409(a)(1), (2). The NAAQS are developed in two forms. Primary air quality
standards are established at levels that, "allowing an adequate margin of safety, are requisite to protect the public health." Id. § 7409(b)(1).
Secondary air quality standards are set at levels "requisite to protect the public welfare from any known or anticipated adverse effects" other
than threats to human health. Id. § 7409(b)(2). Such impacts are defined broadly to include "effects on soils, water, crops, vegetation,
manmade materials, animals, wildlife, weather, visibility, and climate, damage to and deterioration of property, and hazards to transportation,
as well as effects on economic values and on personal comfort and well-being, whether caused by transformation, conversion, or
combination with other air pollutants." Id. § 7602(h).
n163 See RODGERS, supra note 12, at 157 (noting that EPA has issued only one new criterion on its own initiative since 1970 (NOx), and
another forced by litigation (lead) and identifying fluorides, polynuclear organic material and odors as other candidates); see also Natural
Resources Defense Council, Inc. v. Train, 411 F. Supp. 864 (S.D.N.Y. 1976), aff'd, 545 F.2d 320 (2d Cir. 1976) (forcing issuance of a lead
criterion); David Schoenbrod, Goals Statutes or Rules Statutes: The Case of the Clean Air Act, UCLA L. REV. 740, 776-77 (1983)
(observing that Congress expected at least five additional ambient standards); Reitze, supra note 28, at 1593 (noting that administrative
Page 46
decisions limit the pollutant list). EPA has also been reluctant to modify existing standards to reflect new scientific information absent the
compulsion of citizen suit litigation. See, e.g., American Lung Ass'n. v. Browner, 884 F. Supp. 345 (D. Ariz. 1994) (forcing accelerated
schedule to modify standard for particulate matter).
n164 The criteria air pollutants are sulfur oxides, particulate matter, carbon monoxide, ozone, nitrogen dioxide, and lead. See 40 C.F.R. § 50
(1998).
n165 The number of pollutants governed by the Act as a whole was expanded in part by the enactment of technology-based controls for a
wider range of hazardous air pollutants in 1990. See 42 U.S.C. § 7412 (1994). In response to EPA's failure to regulate so many hazardous air
pollutants, Congress went so far as to include in the statute itself a massive list of substances to regulate. See id. § 7412(b). However, these
pollutants are subject only to individual source controls, and not to the air quality-based SIP process.
n166 See 42 U.S.C. § 7410 (1994).
n167 Id. § 7407(a) (emphasis added).
n168 See id. § 7407(b).
n169 Designations are made initially by the States, and promulgated by EPA thereafter, with any changes deemed necessary by EPA. See id.
§ 7407(d)(1)-(2).
n170 A nonattainment area "does not meet (or . . . contributes to ambient air quality in a nearby area that does not meet)" the primary or
secondary NAAQS. Id. § 7407(d)(1)(A)(i). An attainment area is one that meets the primary and secondary standards. See id. § 7407(d)(1)
(A)(ii). An area is unclassifiable if it "cannot be classified on the basis of available information as meeting or not meeting" the applicable
standards. Id. § 7407(d)(1)(A)(iii). The 1990 Amendments further divided nonattainment areas by level of noncompliance for each criteria
pollutant. See infra note 218 and accompanying text.
n171 Areas cannot be redesignated from nonattainment to attainment unless EPA finds both that the NAAQS have been attained as a result
of "permanent and enforceable reductions in emissions" due to controls in an approved SIP (discussed infra), and that the State has adopted
an adequate maintenance plan to ensure continued compliance. 42 U.S.C. § 7407(d)(3)(E) (1994). A maintenance plan must demonstrate
projected continued future compliance with the NAAQS for at least 10 years, with a commitment to make another 10-year showing a decade
hence. See id. § 7505(a)-(b). The plan also must include contingency measures that will be employed if the AQCR fails to meet the
applicable standard. See id. § 7505(d).
n172 See Schoenbrod, supra note 163, at 776; LESTER B. LAVE & GILBERT S. OMENN, CLEARING THE AIR: REFORMING THE
CLEAN AIR ACT, 42-43 (1981) (citing evidence that states learned they could "qualify" for unclassifiable designation by discontinuing
monitoring, and that 61% of all new coal-fired power plants were located in counties so classified). As evidenced by a quick perusal of 40
C.F.R. pt. 81 (1997), a large number of airsheds throughout the country remain "unclassifiable" or "unclassifiable/attainment" despite more
than a quarter century in which to conduct the necessary monitoring and assessment.
n173 See 40 C.F.R. pt. 50, Appendices A-K (1998). The rules require the standards to be measured using these established reference
methods or an equivalent method. See, e.g., id. § 50 (sulfur dioxide), 50.6 (particulates). Additional ambient air quality test methods are
prescribed in id. pt. 53. Rules governing the state and federal air quality monitoring networks are included in id. pt. 58.
Page 47
n174 See Schoenbrod, supra note 163, at 771-73 (noting states' failure to monitor the worst locations as well as their manipulation of air
quality projections); LAVE & OMENN, supra note 172, at 14, 19 (discussing questions about monitoring methods and locations and what
form of chemicals to measure, variability in measurements due to changes in natural conditions, and potential for states to report data
selectively by "losing" high readings); RODGERS, supra note 12, at 167-68 (describing how standards can be considered achieved through
averaging techniques in measurement). Gaming is discussed in more detail below. See infra Part II.B.3.c.ii.
n175 See RODGERS, supra note 12, at 212 ("the monitors pick up only grab samples from a sea of information that otherwise goes
undetected"); LAVE & OMENN, supra note 172, at 46 (claiming that attainment designation process "depends entirely on a monitoring
system that is in shambles," with problems including unreliable methods, arbitrary siting, lax quality control, and deliberate manipulation by
localities seeking to avoid nonattainment status).
n176 See Wisconsin Electric Power Co. v. Costle, 715 F.2d 323 (7th Cir. 1983); Cincinnati Gas & Elec. Co. v. Costle, 632 F.2d 14 (6th Cir.
1980); PPG Indus., Inc. v. Costle, 630 F.2d 462 (6th Cir. 1980) (all upholding nonattainment designations based on modeling predictions).
n177 See infra notes 245-250 and accompanying text.
n178 See LAVE & OMENN, supra note 172, at 19.
n179 42 U.S.C. § 7410(a)(1) (1994). The submissions are due within three years (or less if EPA so prescribes) after promulgation of new or
revised NAAQS. See id.
n180 According to the seminal U.S. Supreme Court ruling, "so long as the ultimate effect of a State's choice of emissions limitations is
compliance with the national standards for ambient air, the State is at liberty to adopt whatever mix of emission limitations it deems best
suited to its particular situation." Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 79 (1975). See also Steve Novick & Bill
Westerfield, Whose SIP Is It Anyway? State-Federal Conflict in Clean Air Act Enforcement, 18 WM. & MARY J. ENVTL. L. 245, 250
(1994); Reitze, supra note 28, at 1597.
n181 See 42 U.S.C. § 7410(c) (1994). In addition, state failures to implement various SIP and other CAA requirements can result in various
federal sanctions, including the withholding of federal highway aid and other federal assistance. See id. § 7509. See also Virginia v. Browner,
80 F.3d 869 (4th Cir. 1996) (holding that CAA's highway sanction, offset sanction, and requirement for FIP in absence of adequate SIP did
not violate spending power or Tenth Amendment).
n182 The complexity of the law prompted Justice Rehnquist to write -- even before the massive 1990 amendments -- that the provisions
"virtually swim before one's eyes." United States Steel Corp. v. EPA, 444 U.S. 1035, 1038 (1980) (Rehnquist, J., dissenting). One of the
leading CAA experts surmised that the 1990 Amendments "may be the most complex piece of environmental legislation ever enacted."
Reitze, supra note 28, at 1550-51. The basic requirements for SIP submissions are laid out in section 110(a)(2) of the Act. See 42 U.S.C. §
7410(a)(2) (1994). In addition to the numerous and detailed requirements in Section 110(c)(2), SIPs must incorporate by reference detailed
standards and procedures to implement much of the rest of the CAA, including the Prevention of Significant Deterioration ("PSD") program
for attainment regions, see id. §§ 7470-7492 (also known as "Part C" for Title I, Part C of the Act), and the often detailed and pollutant-
specific requirements for Nonattainment Areas, see id. §§ 7501-7515 (also known as "Part D" for Title I, Part D of the Act). These statutory
commands are augmented by extensive EPA regulations. Even the basic requirements for the preparation, adoption and submittal of SIPs
consumes over 300 pages in the Code of Federal Regulations, see 40 C.F.R. § 51 (1998), with additional requirements in other regulations.
The statewide SIPs alone (not including each of the attainment or maintenance SIPs for individual AQCRs, and not including state
regulations and procedures that are incorporated by reference) consume an entire volume (roughly 1,000 pages) of the C.F.R. See id. pt. 52.
n183 Most of the key concepts and requirements are contained in 40 C.F.R. pt. 51, Subpt. G (Control Strategy) (1998).
Page 48
n184 As provided for by EPA's regulations, "each plan must demonstrate that the measures, rules, and regulations contained in it are
adequate to provide for the timely attainment and maintenance of the national standard that it implements." Id. § 51.112(a). This requires a
summary of the degree of emissions reductions that will result from implementation of the control strategy, see id. § 51.112(b)(2), and
ambient air quality levels, see id. § 51.112(b)(3).
n185 See id. § 51.115(a), (c).
n186 Id. § 51.114(a).
n187 See id. § 51.112(b)(1)-(2), 51.114(b).
n188 These models are designed to predict the relationship between projected total emissions and ambient air quality, taking into account
variability in climate and other factors. See Charles D. Case, Problems in Judicial Review Arising from the Use of Computer Models and
Other Quantitative Methodologies in Environmental Decisionmaking, 10 B.C. ENVTL. AFF. L. REV. 251, 252-268 (1982). States may use
either specific models identified by EPA by regulation, or alternative models approved by EPA on a generic or case-by-case basis. See 40
C.F.R. § 51.112(a)(1), (2) (1998).
n189 See id. § 51.112(a)-(b), 51.115(b) (1998).
n190 See id. § 51.110(a) (requiring each plan to specify the projected attainment date), 51.112(a) (requiring "timely attainment and
maintenance" of the standards). Regulatory extensions are available through id. pt. 51, Subpt. R, however, and numerous statutory
extensions have been granted in the face of widespread nonattainment of many of the standards. See, e.g., 42 U.S.C. §§ 7511 (1994)
(extended deadlines for ozone), 7512 (extended deadlines for carbon monoxide).
n191 See 40 C.F.R. § 51.110, 51.112 (1998).
n192 See United States v. AM Gen. Corp., 808 F. Supp. 1353, 1358 (N.D. Ind. 1992) (explaining that approved SIPs are enforceable by both
EPA and the states as a matter of federal law), aff'd, 34 F.3d 472 (7th Cir. 1994); Baughman v. Bradford Coal Co., Inc., 592 F.2d 215 (3d Cir.
1979); Buckeye Power, Inc. v. EPA, 481 F.2d 162, 167 (6th Cir. 1973) (noting that SIPs are enforceable by states and by EPA); Glazer v.
American Ecology Envtl. Servs. Corp., 894 F. Supp. 1029 (E.D. Tex. 1995) (finding a SIP provision enforceable even though broader than
the federal requirement); Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 1448 (N.D. Cal. 1990), reconsideration granted in part, 746
F. Supp. 976 (N.D. Cal. 1990); Council of Commuter Orgs. v. Metropolitan Transp. Auth., 683 F.2d 663, 665 (2d Cir. 1982) (recognizing the
availability of citizen suits in federal district court to compel compliance with SIPs); Coalition Against Columbus Ctr. v. City of New York,
967 F.2d 764 (2d Cir. 1992). But see Conservation Law Found., Inc. v. Busey, 79 F.3d 1250 (1st Cir. 1996) (finding that the citizen suit
provision is not applicable to conformity requirements); Ogden Projects, Inc. v. New Morgan Landfill Co., Inc., 911 F. Supp. 863 (E.D. Pa.
1996) (holding the citizen suit provision not applicable to SIP requirement grounded in state law); Wilder v. Thomas, 854 F.2d 605 (2d Cir.
1988) (noting that elimination of carbon monoxide hot spots, although in NAAQS and SIP, was not a condition or requirement relating to
transportation control measure for purposes of permitting citizen suit).
n193 42 U.S.C. § 7471 (1994).
n194 Each PSD SIP must include "emission limitations and such other measures as may be necessary . . . to prevent significant deterioration
of air quality in each region." Id. § 7471. The PSD program was actually forced on EPA by citizen suit litigation, see Fri v. Sierra Club, 412
U.S. 541 (1973) (upholding judicial invalidation of EPA regulation allowing states to permit pollution to rise to secondary standards as
contrary to legislative policy), but was subsequently adopted by Congress in the 1977 amendments to the Act, see Schoenbrod, supra note
163, at 779-82; Pederson, supra note 24, at 1074.
Page 49
n195 See 42 U.S.C. § 7473 (1994).
n196 Id. § 7473(a).
n197 Id. § 7473(b). Class I areas include international parks and national parks and wilderness areas that meet prescribed size requirements;
all other areas are class II unless redesignated as class III by a State. See id. §§ 7472, 7474. Section 163 of the Act establishes separate
specific numeric increases above baseline concentrations for each of the two pollutants and each of the three classes of airshed (with the
tightest increments for Class I areas). See id. § 7473(b). Class I areas also are subject to additional "visibility protection" requirements. Id. §§
7491-7492.
n198 Id. § 7473(b)(4). For the definition of primary and secondary NAAQS, see supra note 162.
n199 42 U.S.C. § 7476 (1994); see, e.g., 40 C.F.R. § 51.166(p)(4) (1997) (establishing maximum allowable increase for nitrogen oxide in
Class I airsheds).
n200 For this purpose, a "major emitting facility" includes any source that emits, or has the potential to emit, 100 tons per year or more of
any air pollutant from a specific statutory list of source types, or 250 tons per year from any other source. 42 U.S.C. § 7479(1) (1994). The
constraint applies to modified as well as new sources because the term "construction" includes the "modification . . . of any source or
facility" as defined in section 7411(a) of the law. Id. § 7479(2)(C). "Modification" is defined broadly to include "any physical change in, or
change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which
results in the emission of any air pollutant not previously emitted." Id. § 7411(a)(4).
n201 Id. § 7475(a)(4). Best Available Control Technology is defined in section 169(3). See id. § 7479(3).
n202 Id. § 7475(a)(3).
n203 Id. § 7475(a)(6).
n204 Id. § 7502(c)(1).
n205 Under section 172 of the statute, attainment of primary standards was required "as expeditiously as practicable," but no later than 5
years from the date of designation, with the possibility of an additional 10 years at EPA's discretion; and "as expeditiously as practicable" for
secondary standards. Id. § 7502(a)(2)(A), (B). Additional one-year extensions are possible as well. See id. § 7502(a)(2)(C). As explained
below, however, a more complex set of deadlines was adopted for specific pollutants in the 1990 Amendments.
n206 Id. § 7502(c)(2). For a complete definition of reasonable further progress, see infra text accompanying note 446.
n207 See 42 U.S.C. § 7502(c)(3) (1994) (requiring "a comprehensive, accurate, current inventory of actual emissions from all sources of the
relevant pollutant or pollutants in such area . . . .").
Page 50
n208 Id. § 7502(c)(4).
n209 The minimum controls include "reasonably available control measures" ("RACTs") for existing stationary sources of pollution, id. §
7502(c)(1), and the "lowest achievable emissions rate" ("LAER") for new or modified sources, id. 7503(a)(2). LAER is defined as:
that rate of emissions which reflects
(A) the most stringent emission limitation which is contained in the implementation plan of any State for such class or
category of source, unless the owner or operator of the proposed source demonstrates that such limitations are not
achievable, or
(B) the most stringent emission limitation which is achieved in practice by such class or category of source, whichever is
more stringent.
In no event shall the application of this term permit a proposed new or modified source to emit any pollutant in excess of
the amount allowable under applicable new source standards of performance.
Id. § 7501(3).
n210 Id. § 7502(c)(6).
n211 See id. § 7502(c)(9).
n212 The term "major source" varies depending on its applicability in the statute. In general, a "major stationary source" is one that "directly
emits, or has the potential to emit, one hundred tons per year or more of any air pollutant." Id. § 7602(j). But cf. id. § 7412(a)(1) (defining
"major source" for purposes of hazardous air pollution standards as:
any stationary source or group of stationary sources located within a contiguous area and under common control that
emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air
pollutant or 25 tons per year or more of any combination of hazardous air pollutants[,]
and including a discretionary provision for EPA to adopt lower thresholds for some pollutants).
n213 That is, RACT and LAER. See supra note 209.
n214 42 U.S.C. § 7503(a)(1)(A), (c) (1994) (requiring sufficient offsets "so as to represent . . . reasonable further progress" and "an equal or
greater reduction, as applicable, in the actual emissions of such air pollutant from the same or other sources in the area"). The requirement
that offsets be expressed in actual rather than potential emissions, and that they come from the same nonattainment area or another
nonattainment area that contributes to pollution of the source area ensures real-world rather than paper reductions in total emissions. See id.
n215 See Reitze, supra note 28, at 1626-28.
n216 The CAA, as amended in 1990, was roughly ten times longer than the original 1970 law. See RODGERS, supra note 12, at 140.
n217 See 42 U.S.C. §§ 7511-7511e (1994) (ozone), 7512-7512a (carbon monoxide), 7513-7513a (particulate matter), 7514-7514a (sulfur
dioxide, nitrogen dioxide and lead).
Page 51
n218 See, e.g., id. § 7511(a) (classifying ozone nonattainment areas from "marginal" to "extreme"). Different, incrementally strict
compliance requirements attach depending on the assigned level of nonattainment. See id. § 7511a(a)-(e) (establishing accelerating
requirements for marginal, moderate, serious, severe, and extreme ozone nonattainment areas).
n219 A full recitation of these new requirements is not essential to this Article. For a complete explanation of the 1990 nonattainment
provisions, see RODGERS, supra note 12, at 210.
n220 See, e.g., 42 U.S.C. §§ 7511(a), 7512, 7513 (1994) (imposing new attainment deadlines for ozone, carbon monoxide, and particulate
matter nonattainment areas, respectively).
n221 See, e.g., id. §§ 7511a(a)(1), (3) (requiring new emissions inventories for ozone in accordance with EPA guidelines, with revisions
every three years until redesignation of an area to attainment status), 7512a(a)(1), (5) (same for carbon monoxide).
n222 Id. § 7502(c)(1); see also, e.g., id. § 7511a(a)(2)(A) (requiring RACT corrections for marginal ozone areas), 7511a(b)(2) (requiring
RACT revisions for specified sources of pollution for ozone nonattainment areas designated as moderate and above).
n223 See, e.g., id. § 7511a(a)(4), (b)(5), (c)(8), (d)(2), (e)(1) (establishing mandatory minimum offset ratios for various categories of ozone
nonattainment, ranging from 1.1:1 for marginal areas to 1.5:1 for extreme areas).
n224 See, e.g., id. § 7511a(b)(1), (c)(2)(B) (requiring more detailed RFP demonstrations for ozone, including a minimum of 15% reductions
in ozone precursors for areas designated as moderate and above, and additional minimum reductions of 3% per year in areas designated as
serious and above), 7512a(g) (requiring minimum carbon monoxide reductions of 5% per year in areas designated as serious).
n225 Notable examples include RACT and LAER. See supra note 209.
n226 See, e.g., 42 U.S.C. § 7511a(a)(2)(B) (1994) (automobile inspection and maintenance ("I/M") programs for marginal ozone areas), §
7511a(b)(3) (gasoline vapor recovery programs for moderate ozone areas), § 7511a(c)(3)-(5) (enhanced I/M, clean-fuel vehicle programs and
transportation control measures for serious ozone areas), § 7511a(e)(3) (requiring electric utility and commercial boilers to switch to clean
fuels or to implement advanced controls in extreme ozone areas).
n227 See S. REP. No. 101-228, at 5-13 (1990).
n228 See State Implementation Plan Processing Reform, 54 Fed. Reg. 2214, 2216 (1989) [hereinafter SIP Processing Reform].
n229 As of EPA's 1996 air quality trends report, despite reductions in levels of ambient pollution over the previous decade, approximately
80 million people still lived in areas that did not meet the NAAQS for at least one pollutant, and 127 million people lived in nonattainment
areas. See OFFICE OF AIR QUALITY PLANNING AND STANDARDS, U.S. EPA, NATIONAL AIR QUALITY AND EMISSIONS
TRENDS REPORT, 1995, at 1-2 (EPA 454-R-96-005, 1996) [hereinafter EMISSIONS TRENDS REPORT] (noting the distinction between
areas with measured NAAQS violations and those that were not formally redesignated to attainment due to other statutory requirements).
Page 52
n230 See RODGERS, supra note 12, at 146 ("The scheme is complex, to be sure, but it is also more specialized, informed, and carefully
adjusted than early and preliminary legislative thrusts . . . . Complexity is the price of escape from awkward universality"); Memorandum
from J. Craig Potter, Assistant Administrator for Air and Radiation, Thomas L. Adams Jr., Assistant Administrator for Enforcement and
Compliance Monitoring, Francis S. Blake, General Counsel, to Addressees, Review of State Implementation Plans and Revisions for
Enforceability and Legal Sufficiency (Sept. 23, 1987) (last modified Jan. 11, 1996) <http://www.epa.gov/oeca/ore/aed/comp/ccomp/c8.html>
(indicating that SIPs must meet stricter criteria of clarity to enhance their enforceability and legal sufficiency); Schoenbrod, supra note 163,
at 750 (arguing that increased detail was needed as an antidote to the inaction caused by excessive flexibility).
n231 See RODGERS, supra note 12, at 184 ("The SIPs are the source of most of the legal duties and they are notoriously vague, not to
mention fickle and misleading"); Novick & Westerfield, supra note 180, at 247, 284 (arguing SIPs should be more clear and unambiguous to
enhance their enforceability); Schoenbrod, supra note 163, at 761.
n232 See RODGERS, supra note 12, at 148 ("The SIP process is widely recognized as unwieldy and cumbersome, dependent as it is upon
institutional mechanisms of the most difficult kind."); Schoenbrod, supra note 163, at 749-50 (quoting former EPA Administrator Douglas
Costle that "the system is so cumbersome and problematical that it almost literally forces us to focus on the trees instead of the forest");
Oren, supra note 24, at 1828, 1836-37 (1990 SIP amendments turned the Act into a "monster of complexity," quoting J. QUARLES & W.
LEWIS, THE NEW CLEAN AIR ACT at v (1990)); Elizabeth M. Morss, Clean Air Act Implementation: An Industry Perspective, 14 PACE
ENVTL. L. REV. 63, 65 (1996) (SIP complexity makes it difficult to identify what requirements apply); GAO REPORT, supra note 28, at 3
(noting that the SIP process, "while simple in concept" has become extremely complex in application); SIP Processing Reform, supra note
228, at 2214, 2216; Pederson, supra note 24, at 1059.
n233 See OFFICE OF INSPECTOR GENERAL, U.S. EPA, EPA's AIR STATE IMPLEMENTATION PLAN PROGRAM
CONSOLIDATED REPORT ch. 2 (1996) [hereinafter OIG REPORT].
n234 See SIP Processing Reform, supra note 228, at 2214; Schoenbrod, supra note 163, at 792.
n235 Major delays occur at both the state and federal levels. According to EPA, 40% to 50% of state submissions are late. See GAO
REPORT, supra note 28, at 5 (indicating 40% of SIP revision submissions late in 1992); OIG REPORT, supra note 233, at ch. 3 (indicating
almost half of a selected sample were late). But at the same time, EPA systematically violates its statutory deadlines for SIP approval. See 42
U.S.C. § 7410(k) (1994). For example, the 730 ozone SIPs under review by EPA at the end of 1992 had been at the agency for an average of
nearly two years, and half took over a year for approval. See GAO REPORT, supra note 28, at 6; see also OIG REPORT, supra note 233, at
ch. 3 (stating reviews often take longer than EPA's current 14-month schedule). The backload in SIP approvals was already serious in 1989,
see SIP Processing Reform, supra note 228, at 2214, 2215 (identifying over 1600 SIP-related approvals from 1983 to 1989, and predicting
many more based on NAAQS changes for particulates and ozone), but was exacerbated dramatically by the additional workload imposed by
the 1990 amendments, see GAO REPORT, supra note 28, at 2 (indicating the need for approximately 1000 additional SIP revisions over four
years). For the same reasons, more revisions still will be required to address EPA's recently revised NAAQS for ozone and particulate matter.
n236 The same basic problems were identified in EPA's 1989 SIP Processing Reform and in EPA's 1995 SIP Improvement Workgroup
Report. Compare SIP Processing Reform, supra note 228, at 2216 (describing inordinate delay at headquarters due to concern over
establishing national precedents, detailed review regardless of significance of the submittal, and multiple levels of review), with OIG
REPORT, supra note 233, at ch. 3 (describing headquarters review on matters of national significance holding up regional review).
n237 See Pederson, supra note 24, at 1060, 1065. In fact, the review process could be considered "triple-key" since separate review and
approval occurs at the state, EPA region and EPA headquarters levels. Each proposed SIP development and approval entails (1) state
preparation and approval after full public notice and comment; (2) a comprehensive evaluation by the EPA region, along with the preparation
of a proposed rule and signature by the EPA Regional Administrator; (3) full review by multiple offices within EPA headquarters; (4)
concurrence by the Assistant Administrator for Air, and in the case of disapprovals or partial approvals, by the Office of Management and
Budget in the White House; and (5) approval by the Administrator of EPA before publication in the Federal Register, with steps (2) through
(4) repeated after receipt of public comments before final EPA action can occur. See SIP Processing Reform, supra note 228, at 2215. Where
the SIP is fully or partially disapproved, the entire cycle begins again. While some of these problems may be avoided through the new
system, under which a (theoretically) abbreviated "completeness review" is conducted in advance to avoid disapprovals for minor reasons,
42 U.S.C. § 7410(k)(1) (1994), in fact, this added layer of review may cause further delays. See OIG REPORT, supra note 233, at ch. 3. For
example, oneMaryland SIP submission had to be revised three times, with each requiring a new completeness review, causing overall EPA
action to take 44 months. Id. See GAO REPORT, supra note 28, at 6.
Page 53
n238 See SIP Processing Reform, supra note 228, at 2214, 2216 (noting that full review and EPA Administrator approval occurs for all SIP
revisions regardless of significance, including such small actions as changes in emission limits for a local printing plant or changes in state
board composition); Morss, supra note 232, at 66 (noting that every minor change requires dual federal-state review); Latin, supra note 26,
at 1688-92 (criticizing the duplicate review process as inefficient and allowing both state and federal agencies to shift blame for failures).
n239 See Pederson, supra note 24, at 1065-66 (noting that each step "is subject to continual change" based on changes in emissions, new
sources, new air quality and meteorological data, changes in models, etc.). Often, changes require SIPs to be revised multiple times during
the approval process. See SIP Processing Reform, supra note 228, at 2217 (identifying a "moving target syndrome"); OIG REPORT, supra
note 233, at ch. 4 (noting the need for SIP revisions whenever EPA guidance changes). This problem is particularly acute in states with their
own lengthy approval processes, some of which require legislative approval. See id. (noting that the West Virginia rulemaking process takes
nearly a year, with approval by the state legislature after committee review and public hearing; also noting a similar process in Ohio).
n240 See RODGERS, supra note 12, at 207-09 (noting the problem of "indeterminacy," and that many SIPs are so long and continuously
changing that contents are obscure even to the regulators); Morss, supra note 232, at 65 (noting that complexity of the process makes it
difficult to identify what requirements apply); OIG REPORT, supra note 233, ch. 4 (noting that EPA guidance continually changes and is
issued in multiple forms, making it hard for states to determine what rules apply, and when). For example, between November 1990 and the
November 1992 deadline for submission of new SIPs required by the 1990 Amendments, EPA issued 19 separate guidance documents
governing emissions inventories for ozone and carbon monoxide. See id.
n241 See generally Case, supra note 188 (discussing the many problems of applying air quality models to different circumstances);
Pederson, supra note 24, at 1104 (discussing that modeling is difficult and expensive, leading to uncertainty and large margins of error);
David M. Driesen, Five Lessons from the Clean Air Act Implementation, 14 PACE ENVTL. L. REV. 51, 56 (1996) (modeling of air quality
does not offer precise answers); Latin, supra note 26, at 93 (modeling is complex and uncertain, causing EPA to approve questionable SIPs).
Models are useful only if they accurately predict the manner in which the system actually works. See Case, supra note 188, at at 254-55. Yet
air quality models have been upheld even when they have not been calibrated, see Northern Plains Resource Council v. EPA, 645 F.2d 1349
(9th Cir. 1981), and even in the face of error ranges as high as 150 to 200%, see Mission Indus., Inc. v. EPA, 547 F.2d 123 (1st Cir. 1976).
n242 See, e.g., Texas v. EPA, 499 F.2d 289 (5th Cir. 1974) (upholding EPA's use of straight rollback model with simplified assumptions);
Cleveland Elec. Illuminating Co. v. EPA, 572 F.2d 1150 (6th Cir. 1978), clarified in 578 F.2d 666 (6th Cir. 1978) (upholding EPA's use of
urban rather than rural model).
n243 See, e.g., Cincinnati Gas & Elec. Co. v. Costle, 638 F.2d 910, 912 (6th Cir. 1980) (upholding modeling results against challenge due to
inadequate data); Texas v. EPA, 499 F.2d 289 (5th Cir. 1974) (rejecting EPA's assumptions about reactivity of photochemical oxidants);
South Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir. 1974) (upholding EPA's choice of model but rejecting results based on inadequate data);
Citizens Against Refinery's Effects, Inc. v. EPA, 643 F.2d 178 (4th Cir. 1981) (holding that EPA guidelines that recommend using five years
of meteorological data in model did not prohibit using only one year); see also 40 C.F.R. § 51.112(b)(1) (1998) (requiring a "summary of the
computations, assumptions, and judgments used to determine the degree of reduction of emissions (or reductions in the growth of emissions)
that will result from the implementation of the control strategy"), 51.112(b)(4) (requiring a "description of the dispersion models used to
project air quality and to evaluate control strategies").
n244 See Nat'l Steel Corp., Great Lakes Steel Div. v. Gorsuch, 700 F.2d 314 (6th Cir. 1983) (upholding new requirements on known sources
of particulate matter); Sierra Club v. Thomas, 658 F. Supp. 165 (N.D. Cal. 1987) (holding uncertainties regarding reliability of dispersion
models and availability of only rough estimates of potential future growth innitrogen oxides are not reason for delay in EPA promulgation of
regulations); Case, supra note 188, at 263, 271 (noting that models often most useful where data are sparse and extrapolations are needed).
n245 See SIP Processing Reform, supra note 228, at 2216 (noting that persons interviewed by EPA claimed that some states abuse system to
relax source limits); Novick & Westerfield, supra note 180, at 272 (citing workshop held by Office of Technology Assessment in which state
officials acknowledged the use of models to "cheat in developing their implementation plans, a process known as 'gaming.' States were able
to choose favorable model assumptions and inputs to arrive at the least stringent predictions of emission reduction requirements."). Models
can produce inaccurate results based on inadequate data, subjective choices among assumptions and methods, differing interpretations of
results, and presentation methods that obscure the manner in which the decision is made. See Case, supra note 188, at 274. Skeptics note that
Page 54
engineers can "model anything, any time, any place, for anyone." Id. at 279 n.150. As former EPA Administrator Douglas Costle said:
"Modeling is becoming elevated to the same high art of gamesmanship as lawyering, and often a company finds it cheaper to hire modelers
and lawyers than to put in pollution control equipment." Schoenbrod, supra note 163, at 773 n.191.
n246 See Latin, supra note 26, at 1689.
n247 See Schoenbrod, supra note 163, at 768, 775 (quoting National Academy of Sciences report that EPA approved virtually all predictions
of attainment even though federal, state and local officials acknowledged privately that projections were based on imprecise inventories and
inadequate techniques); RODGERS, supra note 12, at 204 (citing problems identified in 1989 Senate Report, including incomplete or
inadequate emissions inventories and the failure to recognize growth in emissions or numbers of sources).
n248 See Paul R. Portney, Air Pollution Policy, in PUBLIC POLICIES FOR ENVIRONMENTAL PROTECTION 27, 74-75 (Paul R.
Portney et al. eds., 1990); see also Citizens Against Refinery's Effects, Inc. v. EPA, 643 F.2d 183 (4th Cir. 1981) (upholding use of year of
PSD application, in which emissions were particularly high, as base year against which to measure offsets).
n249 See RODGERS, supra note 12, at 217-18; Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901 (7th Cir. 1990) (finding that EPA
improperly used "potential to emit" concept in calculating emissions increase); City of Seabrook v. EPA, 659 F.2d 1349 (5th Cir. 1981)
(holding that it is not unreasonable to set "allowable" emissions rather than actual emissions as baseline). The "potential to emit" problem in
offsets was addressed by the 1990 amendments. 42 U.S.C. § 7503(c)(1) (1994) (requiring offsets based on actual as opposed to potential
emissions).
n250 See RODGERS, supra note 12, at 204 (describing failures to implement controls or to achieve projected emissions limitations); City
of Seabrook, 659 F.2d at 1349 (holding that no "enforceable mechanisms" were required, since EPA was entitled to presume the state would
enforce its regulations). But see Riverside Cement Co. v. Thomas, 843 F.2d 1246 (9th Cir. 1988) (holding that a state rule containing elusive
and illusory emissions reductions did not satisfy CAA requirement for emissions limitations as necessary to assure attainment).
n251 See Case, supra note 188, at 314 (describing a Pennsylvania SIP remanded to EPA four times for additional hearings), 322-23
(detailing the saga of an Ohio SIP that was the subject of 13 judicial opinions, eight of which involved challenges to models); Schoenbrod,
supra note 163, at 795 (arguing that sources have incentive to contest at every stage in effort to convince regulator that one of many
variables were wrong or had changed); Driesen, supra note 241, at 56 (observing that sources can always seek delay by urging more or
better modeling).
n252 See generally Craig N. Oren, Getting Commuters out of Their Cars: What Went Wrong?, 17 STAN. ENVTL. L.J. 141 (1998); Penny
Mintz, Transportation Alternatives Within the Clean Air Act: A History of Congressional Failure to Effectuate and Recommendations for the
Future, 3 N.Y.U. ENVTL. L.J. 156 (1994); Patrick Del Duca & Daniel Mansueto, Indirect Source Controls: An Intersection of Air Quality
Management and Land Use Regulation, 24 LOY. L.A. L. REV. 1131 (1991); Philip E. Rothschild, The Clean Air Act and Indirect Source
Review: 1970-1991, 10 UCLA J. ENVTL. L. & POL. 337 (1992); Alan L. Mitchell, Transportation Planning and the Clean Air Act, 25
ENVTL. L. 927 (1995).
n253 See Mintz, supra note 252, at 179; Del Duca & Mansueto, supra note 252, at 1139 (arguing that "indirect source" controls that reduce
auto travel are "arguably critical" to clean Southern California's polluted air); GAO REPORT, supra note 28, at 3 (stating that motor vehicles
emit about 90% of all carbon monoxide in cities, half of all hydrocarbons and almost a third of all nitrogen oxides).
n254 See Rothschild, supra note 252, at 341-42; Del Duca & Mansueto, supra note 252, at 1132, 1135-37, 1148-49.
n255 See 42 U.S.C. § 7521 (1994).

Page 55
n256 See Mintz, supra note 252, at 166; EMISSIONS TRENDS REPORT, supra note 229, at 11 (citing role of tailpipe controls in reducing
carbon monoxide emissions).
n257 See Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Cir. 1976) (en banc) (explaining and upholding EPA's lead phase-down regulation). Ambient
levels of lead in air have dropped substantially as a result, see MARK SQUILLACE, ENVIRONMENTAL LAW: AIR POLLUTION 423
(2d ed. 1992), and the sale of leaded gasoline is now prohibited by statute, see 42 U.S.C. § 7545(n) (1994). Interestingly, this step also
resulted in perhaps the largest single improvement in water quality as well, since eliminating lead from gasoline virtually eliminated the
runoff of lead from roads and parking lots. See Richard B. Alexander & Richard A. Smith, Trends in Lead Concentrations in Major U.S.
Rivers and Their Relation to Historical Changes in Gasoline-Lead Consumption, 24 WATER RESOURCES BULL. 557, 568 (1988).
n258 See 42 U.S.C. § 7545 (1994); see also EMISSIONS TRENDS REPORT, supra note 229, at 11; SQUILLACE, supra note 257, at 419-
25 (discussing other regulations governing fuel composition, and the resulting air quality benefits).
n259 See Mintz, supra note 252, at 166-67 (noting a 67% increase in VMTs from 1970 to 1991); GAO REPORT, supra note 28, at 3 (noting
that VMTs increased from about one trillion in 1970 to well over two trillion in 1993, with estimates of four trillion by the year 2000);
Reitze, supra note 28, at 1593 (observing that mobile sources still account for half of all emissions of volatile organic compounds, and
significant amounts of carbon monoxide and nitrogen oxides, despite reductions in emissions per mile traveled).
n260 See Mintz, supra note 252, at 167; Del Duca & Mansueto, supra note 252, at 1136.
n261 See 42 U.S.C. § 7511a(a)(2)(B) (1994) (savings clause for I/M requirements was imposed by 42 U.S.C. § 7502(b)(11)(B) prior to the
1990 amendments). Nevertheless, vehicle inspection programs can reap tremendous air pollution control benefits. For example, EPA
estimates that improved I/M programs (known as "enhanced" I/M or EIM) under the 1990 amendments, see id. § 7511a(c)(3) (providing for
EIM programs for nonattainment areas designated serious or above), will reduce about 6.4 billion pounds of pollutants per year, see GAO
REPORT, supra note 28, at 4.
n262 See generally Reitze, supra note 28, at 1554 (arguing that air pollution policy will not succeed until it is "integrated into an energy
policy and a land use policy that brings society into harmony with the carrying capacity of the ecosystem").
n263 ISRs require the permitting of facilities that attract or produce additional vehicle trips, although they do not generate emissions
themselves. Congress specifically defined indirect sources in the 1977 amendments, see 42 U.S.C. § 7410(a)(5)(C) (1994), in the context of
prohibiting EPA from requiring such controls, see id. § 7410(a)(5)(A)(i). See also Del Duca & Mansueto, supra note 252, at 1132-33;
Rothschild, supra note 252, at 337-39.
n264 See Mitchell, supra note 252, at 935 (noting substantial air quality benefits of reducing average home-to-work commuting distance by
25%).
n265 See Mintz, supra note 252, at 165 (citing section 110(a)(2)(B) of the 1970 Act, 84 Stat. at 1680); Rothschild, supra note 252, at 339.
n266 See Natural Resources Defense Council, Inc. v. EPA, 475 F.2d 968 (D.C. Cir. 1973) (holding that EPA regulations ignored
congressional intent by allowing states to exclude indirect source and transportation controls); see Rothschild, supra note 252, at 340-41; Del
Duca & Mansueto, supra note 252, at 1149.
Page 56
n267 See Rothschild, supra note 252, at 341-42.
n268 See, e.g., Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 1448 (N.D. Cal. 1990), reconsideration granted in part, 746 F. Supp.
976 (N.D. Cal. 1990); Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976); Council of Commuter Orgs. v. Metro. Transit Auth., 683
F.2d 663 (2d Cir. 1982).
n269 See Mintz, supra note 252, at 169, 171.
n270 See id. at 171 (describing California's FIP as including rationing, I/M, automobile retrofit devices, limited use of motorcycles, parking
surcharges, restricted use lanes on highways, carpool measures, and mass transit planning).
n271 See id. at 167 (quoting Senator Muskie's intent that the law would force urban areas to develop better transportation systems).
n272 See South Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir. 1974) (upholding EPA's authority to promulgate transportation control
measure in Boston reducing or freezing parking supply).
n273 Compare Brown v. EPA, 521 F.2d 827 (9th Cir. 1975) (rejecting EPA authority to force state to adopt automobile inspection and
maintenance program), vacated per curiam, EPA v. Brown, 431 U.S. 99 (1977) (vacating after voluntary EPA withdrawal of regulatory
authority), with Pennsylvania v. EPA, 500 F.2d 246 (3d Cir. 1974) (upholding EPA authority to force state to adopt specific transportation
controls).
n274 New York City, for example, has avoided more dramatic transportation controls by continually changing its strategies rather than
implementing them. See RODGERS, supra note 12, at 209 (citing Council of Commuter Organizations v. Thomas, 799 F.2d 879 (2d Cir.
1986)). It has also done so through lengthy, multi-stage litigation. See Mintz, supra note 252, at 173-74 (explaining how the city ultimately
avoided compliance with many measures through litigation). New York has also avoided such controls through sheer political clout, see id.
at 176 (explaining how New York's representatives in Congress eliminated EPA's ability to force bridge tolls). In a similar vein, the South
Coast Air Quality Control District in Southern California, arguably the most polluted airshed in the country, has never had an approved SIP
due in large part to its failure to address land use and transportation issues adequately. See Del Duca & Mansueto, supra note 252, at 1139,
1148.
n275 In the face of EPA's victory in the South Terminal case, Congress temporarily suspended EPA's authority to regulate parking supply in
1974. EPA responded by suspending its own ISR regulations, which in turn were removed by Congress altogether in the 1977 CAA
amendments. See Rothschild, supra note 252, at 345-46.
n276 Mintz, supra note 252, at 175.
n277 42 U.S.C. § 7502 (1994).
n278 See id. § 7502(c)(1).
n279 See id. § 7408(f). TCMs were first defined by regulation in 1973. See Mintz, supra note 252, at 177.
Page 57
n280 This barrier was originally codified in 42 U.S.C. § 7506(a)-(b) (1978) but was later repealed by Pub. L. No. 101-549, § 110(a)(4), 104
Stat. 2470 (1990). See Mintz, supra note 252, at 178.
n281 See 42 U.S.C. § 7410(a)(2)(I) (1988) (amended by Pub. L. No. 101-549, § 101(b), 104 Stat. 2404-06 (1990)); David P. Currie,
Relaxation of Implementation Plans Under the 1977 Clean Air Act Amendments, 78 MICH. L. REV. 155, 187 (1979) (describing these
sanctions as "blackmail"); see also Del Duca & Mansueto, supra note 252, at 1131 n.4.
n282 See Mintz, supra note 252, at 178 (noting that sanctions are used to force I/M programs but not TCMs); see also Del Duca &
Mansueto, supra note 252, at 1147 (less EPA success in using disapprovals and sanctions to achieve TCMs than stationary source controls);
Latin, supra note 26, at 1708-09 (criticizing EPA's failure to implement the 1977 construction ban sanctions aggressively).
n283 See, e.g., Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990) (rejecting EPA approval of Arizona SIP that failed to include all required
TCMs). But see Trustees for Alaska v. Fink, 27 F.3d 1363 (9th Cir. 1994) (allowing SIP's transit provisions to be conditioned on future
funding).
n284 See Mintz, supra note 252, at 169; see also Latin, supra note 26, at 1717 (complaining that FIPs take too long to write and defend).
n285 See 42 U.S.C. § 7431 (1994).
n286 See, e.g., id. § 7512a(b). See also Mintz, supra note 252, at 183. The 1990 Amendments also included mandatory trip reduction
provisions requiring businesses with over 100 workers to reduce the number of their employees who drive to work. See generally Oren,
supra note 252; Comment, The Clean Air Act's Mandate of Employer Trip-Reduction Programs: Is This a Workable Solution to the
Country's Air Pollution Problems?, 49 U. MIAMI L. REV. 827 (1995). This requirement, however, was made voluntary in 1995. See 42
U.S.C. § 7511a(d)(1)(B) (Supp. 1996).
n287 40 C.F.R. §§ 51 (1998), 93 (1997) (establishing EPA and DOT conformity requirements); see also Rothschild, supra note 252, at 350;
Mintz, supra note 252, at 180-81. The sanction of withholding federal highway money was retained, although EPA and DOT have
interpreted this provision liberally in favor of direct enforcement actions against states, along with potentially higher offset ratios for areas
remaining in nonattainment after the new statutory deadlines. See Mintz, supra note 252, at 181-83.
n288 See The Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. No. 102-240, 105 Stat. 1914 (codified in scattered sections
of 23 U.S.C.); 23 U.S.C. § 133 (1994); Mintz, supra note 252, at 183.
n289 See supra notes 185-189, 241-251 and accompanying text.
n290 See Case, supra note 188, at 264, 347-55 (discussing judicial review of transportation and air pollution models in Movement Against
Destruction v. Trainor, 400 F. Supp. 533 (D. Md. 1975)).
n291 See Mintz, supra note 252, at 184-88.

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n293 See Mintz, supra note 252, at 178.
n294 See id.
n295 Del Duca & Mansueto, supra note 252, at 1148.
n296 RODGERS, supra note 12, at 229 (decrying the 1990 amendments, "which offer a traditional roster of impotent sanctions"); see also
Latin, supra note 26, at 1710-11.
n297 See Driesen, supra note 241, at 56 (arguing that EPA frequently violates the law to avoid imposing sanctions); see also Latin, supra
note 26, at 1708-09 (citing EPA's failure to implement construction ban requirements of the 1977 Act with teeth).
n298 See generally Mintz, supra note 252, at 157-59, 181.
n299 See supra notes 86-88 and accompanying text; 305(b) REPORTING GUIDANCE, supra note 89, at 4-4, Supp. ch. 2 (noting that
although EPA provides guidance, each state determines methods and criteria for determining attainment). EPA believes that the 305(b)
process, rather than 303(d), is the "principal means by which EPA, Congress, and the public evaluate whether U.S. waters meet water quality
standards." Id. at 1-3. While EPA advises that the criteria for 303(d) listing are different from those for 305(b) listing, see id. at 3-3, logically
the 303(d) list should be a subset of the 305(b) list, i.e., those waters that do not meet standards and will not after application of existing
pollution controls. See supra note 86. EPA is no more prescriptive about which waters must be listed under section 303(d), however, than it
is with respect to the 305(b) process. While EPA's regulation identifies the types of information states must consider in compiling their
303(d) lists, and while states must explain what criteria they used to decide which waters to list or not to list, see 40 C.F.R. § 130.7(b)(5)-(6)
(1997), ultimately the criteria used are left to the individual states. See Memorandum from Geoffrey H. Grubbs, Director, Assessment and
Watershed Protection Division, to Water Management Division Directors, Guidance for 1994 Section 303(d) Lists (Nov. 26, 1993)
[hereinafter Grubbs Memorandum] (on file with author) (identifying data requirements but not prescriptive listing criteria); see also Wayland
Memorandum, supra note 129 (supplementing the 1994 Guidance but adding no mandatory listing criteria requirements).
n300 While the statute does not expressly prohibit EPA from issuing separate NAAQS for different regions, it does require EPA to
promulgate "a national primary ambient air quality standard and a national secondary ambient air quality standard for each air
pollutant . . . ." 42 U.S.C. § 7409(a)(1)(A) (1994) (emphasis added). There are some legitimate reasons for this distinction. Aquatic
ecosystems vary considerably around the country in their chemistry, biology, hydrology, physical structure, and other factors that may affect
both water body uses and sensitivity to various types of pollution. Differences among regions thus may legitimately support different WQS.
Of course, to the extent that the secondary NAAQS address effects on human welfare that may vary similarly around the country (such as
impacts on crops, wildlife, or aquatic ecosystems), the same reasoning might apply. By contrast, especially with respect to the primary
NAAQS that are designed entirely to protect human health, citizens in different parts of the country are not likely to differ substantially, if at
all, in their sensitivity to the adverse effects of air pollution. To the extent that WQS address the human health effects of water pollution, it is
not clear why the same reasoning does not apply. By allowing states to establish their own WQS at varying levels with respect to the same
human health effects, see Natural Resources Defense Council, Inc. v. EPA, 16 F.3d 1395 (4th Cir. 1993) (upholding state water quality
standards for dioxin roughly 100 times weaker than EPA's recommendation), Congress and EPA implicitly allow different states to make
different tradeoffs between the stringency of water pollution control and the level of public health risks deemed acceptable or appropriate.
Perhaps the reason for the distinction lies in the fact that air, and therefore air pollution, can mix throughout the country, while interstate
water flow is more confined. But very few watersheds or large waterbodies are purely intrastate. Thus, the different statutory approaches
must reflect some less tangible difference in Congress' view of the appropriate balance of federalism in the two contexts.
n301 See 40 C.F.R. § 50, Appendices A-K (1997).

Page 59
n303 But see RODGERS, supra note 12, at 208 (noting that states with strict SIPs had to implement them as matter of federal law, while
states with poor SIPs benefitted).
n304 See RODGERS, supra note 12, at 161-63 (itemizing the arguments for both sides). Compare James E. Krier, The Irrational National
Ambient Air Quality Standards: Macro- and Micro-Mistakes, 22 UCLA L. REV. 323 (1974), and Feller, supra note 161 (both arguing against
the NAAQS system), with Pederson, supra note 24 (defending the concept of NAAQS in general, while discussing "serious problems of
implementation").
n306 It is true that some types of WQC, especially those based on narrative criteria and basic use attainment, inherently involve more
subjective judgments than those based on objective numeric indicators. This does not excuse the lack of uniform, objective standards for
those criteria for which it is appropriate; nor does it eliminate entirely the possibility of more uniformity in procedures for determining
attainment of the more subjective forms of criteria.
n307 See supra note 36.
n308 See Adler, supra note 60, at 126-27.
n309 See Natural Resources Defense Council, Inc. v. EPA, 16 F.3d 1395 (4th Cir. 1993) (allowing states to vary in use of risk levels and
cancer potency factors).
n310 This is one goal of the Great Lakes Water Quality Initiative. See 33 U.S.C. § 1268(c)(2) (1994) (requiring EPA to promulgate water
quality guidance for the Great Lakes); see also American Iron & Steel Inst. v. EPA, 115 F.3d 979 (D.C. Cir. 1997) (largely upholding EPA's
Great Lakes guidance). Even under this program, however, states are required only to adopt water quality standards, antidegradation policies,
and implementation procedures "which are consistent with such guidance." 33 U.S.C. § 1268(c)(2)(C) (1994) (emphasis added).
n311 For example, in 1980 EPA published 64 criteria documents for toxic pollutants. See 45 Fed. Reg. 79,318 (1980). As of 1994, criteria
had been issued under section 304(a) (codified as 33 U.S.C. § 1314(a) (1994)) for 109 of 126 listed toxic pollutants. See ADLER ET AL.,
supra note 1, at 121.
n312 Under section 303(c)(2)(B) of the statute, see 33 U.S.C. § 1313(c)(2)(B) (1994), added in 1987, states were required, during their next
triennial reviews of their WQS, to adopt standards for all toxic pollutants for which EPA had published criteria. By 1992, many states had
done so, and EPA promulgated federal water quality standards for those states that had not done so. See 40 C.F.R. § 131.36 (1997); 60 Fed.
Reg. 22,229 (1995) (promulgating new aquatic life metals criteria for nine States, Puerto Rico, and the District of Columbia, that failed to
comply fully with section 303(c)(2)(B) of the CWA including numeric criteria for 11 metals: arsenic, cadmium, chromium (III), chromium
(VI), copper, lead, mercury, nickel, selenium, silver, and zinc); 57 Fed. Reg. 60,910 (1992) (promulgating, for 14 States, the chemical-
specific, numeric criteria for 126 priority toxic pollutants necessary to bring all states into compliance with the requirements of section
303(c)(2)(B) of the CWA).
n314 Compare 42 U.S.C. § 7602(g) (1994) with 33 U.S.C. § 1362(6) (Supp. 1996). Clearly a far larger diversity of harmful pollutants is
emitted into the air than is reflected in the list of six existing NAAQS, as suggested by the long list of hazardous air pollutants required to be
regulated under section 112 of the Act as amended in 1990. See 42 U.S.C. § 7412(b)(1) (1994); see also Emissions Trend Report, supra note
Page 60
229, at 32 (noting that 347 toxic air pollutants were identified in Toxics Release Inventory, totaling 4.4 million tons of emissions per year).
Unless released by only a small number or diversity of sources, see 42 U.S.C. § 7408(a)(1)(B) (1994), many of these additional pollutants
probably are eligible for listing under section 108 and promulgation of NAAQS under section 109. EPA may have elected not to promulgate
additional NAAQS because it believes that the effects of these other pollutants are more localized than the effects of the criteria pollutants,
and therefore are less amenable to controls under the comprehensive and complex implementation process described below. Alternatively,
EPA may believe that control of the criteria pollutants results in the effective control of other pollutants as well. A more cynical view is that
implementation of the CAA for the six existing criteria pollutants has been extremely controversial and divisive; promulgation of a new
criterion triggers a new round of resource-intensive and politically difficult monitoring, designation, and SIP submissions for every airshed
in the country; and promulgation of additional NAAQS would risk serious political backlash.
n315 See supra Part II.B.1 (discussing the nature of air quality standards).
n316 See 40 C.F.R. § 50.4-.12 (1997).
n317 In its 1978 Federal Register notice, EPA displayed a clear understanding of the value of indicator pollutants in the TMDL process. See
43 Fed. Reg. 60,662 (1978).
n318 See 305(b) REPORTING GUIDANCE, supra note 89, Supp. at 3-1 to 3-3 (discussing the Intergovernmental Task Force on
Monitoring Water Quality's development and recommended use of a model for stream monitoring and assessment based on a combination of
biological, physical, and chemical factors); supra note 88.
n319 See supra notes 34, 168 and accompanying text. As discussed above, under the CAA, the ambient air quality in all regions of the
country is designated as either attainment, nonattainment, or unclassifiable. See supra note 170 and accompanying text. While the
"unclassifiable" category appears to provide a major potential loophole in the sweep of this system, it does not defeat the comprehensiveness
of the system either as a matter of law or in practice. "Unclassifiable" AQCRs are subject to PSD requirements in the same way as
attainment regions, along with all of the accompanying procedures and substantive controls (such as increments and caps on new emissions).
See 40 C.F.R. § 81.300 (1997). Moreover, regions cannot simply become "unclassified" by default, as is true under the analogous CWA
system, but rather are subject to EPA designation review in the same manner as attainment or nonattainment designations. Id. Thus, none of
the nation's airsheds fall within a true regulatory void in terms of ensuring attainment and maintenance of the NAAQS. Nevertheless, given
that so many airsheds remain "unclassifiable" over a quarter of a century after the 1970 CAA, it would not be wise to formalize and
legitimize this type of designation under the CWA as well.
n321 To its credit, EPA has interpreted the scope of this exception quite narrowly. See 40 C.F.R. § 131.10(g) (1997).
n322 See RODGERS, supra note 12, at 345 (noting the "comprehensive" nature of WQS).
n323 See 33 U.S.C. §§ 1314(a), 1315(b), 1329 (Supp. 1996).
n324 Section 303(d) requires states to "identify those waters" that fail to meet the WQS. Id. § 1313(d)(1)(A) (emphasis added). It is difficult
to see how this could be interpreted to mean "some of those waters" rather than "all of those waters."
n325 Id. § 1313(e)(3).

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n326 The plans also must incorporate applicable area-wide waste management plans under section 208, see id. § 1313(e)(3)(B), which are
supposed to address all regions with "substantial water quality problems," id. § 1288(a). However, as discussed above, the 208 program is
largely defunct. See supra note 155 and accompanying text. Moreover, in what may have been a drafting error, section 319 of the Act, added
in 1987 as section 208's functional replacement as a vehicle for nonpoint source controls, was not added to section 303(e)'s list of items that
must be included in the continuing planning process.
n327 For a description of failed efforts to adopt comprehensive watershed or basin approaches, see generally Adler, supra note 6.
n328 The statute contains no guidance on whether "waters" means only those portions of a water body in which violations occur, an entire
component of a watershed, such as an entire tributary or mainstream stream, or at least the portion thereof within a single state, or an entire
watershed, the size and scope of which could be defined in various ways. See Adler, supra note 6, at 1088-92 (discussing the problem of
defining the appropriate scale for watershed programs). EPA's regulations refer to "water quality limited segments" (emphasis added),
suggesting that states list only the polluted portions of individual water bodies, but providing no rules for the appropriate size of such
segments. See 40 C.F.R. §§ 130.2(j), 131.3(h) (1997) (circularly defining a "water quality limited segment" as "any segment where it is
known that water quality does not meet applicable water quality standards . . .").
n329 See Adler, supra note 6, at 981-83 (discussing geographic linkages as a rationale for more integrated watershed-based programs).
n330 But see 33 U.S.C. § 1313(d)(4)(B) (1994) (preventing backsliding in NPDES permits and specifically acknowledging with approval
the "antidegradation policy established under this section").
n331 The regulations require states to develop and adopt not only an antidegradation policy but also "the methods for implementing such
policy." 40 C.F.R. § 131.12(a) (1997). Nowhere, however, is the scope and nature of this requirement specified further, and to date EPA has
been quite lax in insisting that such implementing policies actually be applied to all high quality waters. See Raymond Profitt Found. v. EPA,
930 F. Supp. 1088, 1092-93, 1103 (E.D.Pa. 1996).
n332 33 U.S.C. § 1288(a)(1) (1994); see Natural Resources Defense Council, Inc. v. Costle, 564 F.2d 573 (D.C. Cir. 1977).
n333 See 40 C.F.R. § 130.5 (1997) (implementing the continuing planning process under section 303(e) with reference to plans established
under section 208 for impaired waters, but not for all watersheds).
n334 During the last 305(b) reporting cycle, for example, only 17% of all river and stream miles, 42% of all lake acreage, and 78% of all
coastal waters were monitored to any degree for compliance with the standards. See 305(b) Report, supra note 89, at 25, 47, 59. See also
ADLER, supra note 1, at 129-35; Water Quality Monitoring Strategy, supra note 88, at 4.
n335 See WATER QUALITY MONITORING STRATEGY, supra note 88, at 5; TMDL COMPENDIUM, supra note 117, at 4 (noting "the
lack of integrated, scientifically sound approaches to identify problems in watersheds and to predict the results of potential control actions on
receiving water quality and aquatic habitat").
n336 See WATER QUALITY MONITORING STRATEGY, supra note 88, at 2-3. With the addition of section 319 of the Act in 1987, states
were urged to conduct studies designed specifically to identify waters impaired by nonpoint sources. See 33 U.S.C. § 1319(a) (1994).
However, because section 319 expressly allowed states to base these reports on preexisting information rather than new monitoring and
assessment methods designed specifically to identify waters impaired by nonpoint sources, see id. § 1319(a)(2), this effort was similarly
impeded in its likely reach. Nevertheless, the first round of the reinvented TMDL program seems to be having an impact. States appear to
have doubled the number of impaired waters identified under the program. See Houck, supra note 12, at 10,391.
Page 62
n337 See infra notes 349-351, 464 for a description of EPA's ongoing reform efforts.
n338 See Wayland Memorandum, supra note 129, at 9 (identifying 3.2 million "stream segments" in EPA's data base).
n339 See RODGERS, supra note 12, at 131.
n340 305(b) REPORTING GUIDANCE, supra note 89, at 1-18. More detailed guidance on this methodology is provided in 305(b)
REPORTING GUIDANCE (Supp. 1997) at 2-6.
n341 See id. at 1-3.
n343 See FACA REPORT, supra note 14, at 10-12.
n344 This idea is similar to the FACA Committee's proposal for a list of high priority candidate waters for which some data indicate
impairment but data do not meet applicable quality assurance/quality control requirements or otherwise are not conclusive. See id. at 12.
n345 See EMISSIONS TRENDS REPORT, supra note 229, at 8.
n346 See WATER QUALITY MONITORING STRATEGY, supra note 88, at 3; 305(b) REPORTING GUIDANCE, supra note 89, at 1-12
(noting that historically, water quality monitoring focused on known problems).
n347 See Schoenbrod, supra note 163, at 768, 776-77 (arguing that EPA failed to promulgate NAAQS even for all pollutants envisioned by
Congress in 1970).
n348 See WATER QUALITY MONITORING STRATEGY, supra note 88, at 5.
n349 These include, for example, waters with fishing or shellfishing bans or advisories, waters with reported fishkills or observed fish
abnormalities, waters with recreational restrictions, waters expected to violate WQS based on predictive modeling (rather than direct
measurement), and waters impaired by hazardous waste discharge sites. See 40 C.F.R. § 130.10(d)(6) (1997).
n350 The list of data sources states are required to consider for section 303(d) listing is not as detailed as the one compiled for the one-time
section 304(1) listing process. Compare id. § 130.7(B)(5) (section 303(d) listing requirements) with id. § 130.10(d)(6) (section 304(1) listing
requirements).
Page 63
n351 See Perciasepe TMDL Memorandum, supra note 11, at 3; Wayland Memorandum, supra note 129, at 2, 5-6; 305(b) REPORTING
GUIDANCE, supra note 89, at 1-1, 1-8, 4-3 (identifying monitoring and assessment as a goal of section 305(b) processes); see also FACA
REPORT, supra note 14, at 12-14 (making recommendations on list comprehensiveness).
n352 If EPA does not take such action or some similar step to improve the scope of the water quality assessment and listing process,
Congress should consider amending the law to make this approach mandatory. Another step that Congress could take to improve the
efficiency of monitoring and assessment efforts would be to combine the multiple existing provisions (especially sections 303(d), 304(1),
305(b) and 319(a) into one clear and comprehensive program that requires each state to classify each of its watersheds according to a
prescribed statutory schedule.
n353 The Intergovernmental Task Force on Monitoring Water Quality recommended that water bodies be divided into three categories:
remediation and restoration, maintenance, and special protection. See WATER QUALITY MONITORING STRATEGY, supra note 88, at 8.
n354 In many watersheds a combination of corrective and preventive measures would be appropriate.
n355 Approximately half of the states have already adopted this type of process. See 305(b) REPORTING GUIDANCE, supra note 89, at 1-
8, 4-5. To date, however, EPA has only recommended but not required such a strategy. See also WATER QUALITY MONITORING
STRATEGY, supra note 88, at 7; The TMDL Process, supra note 76, at 15.
n356 See 305(b) REPORTING GUIDANCE, supra note 89, at App. B (Benefits of Rotating Basin Monitoring and Assessment: South
Carolina), App. E (Example of Basin-level Assessment Information: Arizona).
n357 See FACA REPORT, supra note 14, at 12 (recommending high priority monitoring lists).
n358 See supra text accompanying note 178 (mentioning proposal for EPA to establish a national air monitoring network).
n359 See 33 U.S.C. § 1313(e)(3)(C) (1994).
n360 See Wayland Memorandum, supra note 129, at 8-9.
n361 See The TMDL Process, supra note 76, at 15 (discussing "phased" TMDLs). While such revisions are required by guidance in the
CWA program, they are mandated by statute in the CAA. See 42 U.S.C. § 7502(d) (1994) (containing mandatory SIP revisions following
EPA deficiency findings).
n362 See supra note 95 and accompanying text; supra Part III.C.1.
n363 The statute itself only requires TMDL lists to be revised "from time to time" after the initial listing process. 33 U.S.C. § 1313(d)(2)
(1994).
n364 See supra Part II.B.3.b.

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n365 See 42 U.S.C. § 7407(d)(3)(E)(i) (Supp. 1996).
n366 Id. § 7407(d)(3)(E)(iii).
n367 See id. § 7407(d)(3)(E)(ii).
n368 See id. § 7407(d)(3)(E)(iv).
n369 See id. § 7407(d)(3)(E)(ii), (v).
n370 See The TMDL Process, supra note 76, at 2.
n371 This relates in part to the fact that the TMDL process contains fewer mandatory requirements than the SIP program. See infra note 400
and accompanying text. This requirement could nevertheless be useful in the CWA context. For example, in order for a watershed to be
blessed with a clean bill of health, EPA could require states to prove that all point sources are permitted, and include the appropriate effluent
limitations and other requirements.
n372 As with other apparently firm aspects of the CAA program, however, EPA allows exceptions that, at times, allow states to rely on
actual rather than permitted emissions in predicting future attainment of the standards. See Memorandum from John Calcagni, Director, Air
Quality Management Division to Regional Air Directors, Procedures for Processing Requests to Redesignate Areas to Attainment, at 4 (Sept.
4, 1992) (on file with author) (requiring use of permitted or historic peak levels, "unless evidence is presented that such an assumption is
unrealistic."). Since the stationary source is legally allowed to emit up to the permit limits, attainment of the standards may be jeopardized if
all such sources increase their emissions to allowable levels.
n373 See S. REP. No. 101-228, at 11-12, 14, 26-30 (1990), reprinted in 1990 U.S.C.C.A.N. 3385, 3397-98, 3400, 3412-16.
n375 42 U.S.C. §§ 7407(d)(3)(E), 7505a (1994).
n376 Id. § 7505a(d). This type of contingency measure should not be confused with contingency measures required to be included in SIPs
for nonattainment areas, which are additional measures to be taken if an area fails to meet RFP requirements, or to attain the standard, by the
prescribed date. See id. § 7502(c)(9).
n377 The closest the FACA Committee came to this concept is a recommendation that TMDL implementation plans include the
"ramifications of failing to meet [the plan's identified] milestones . . . . The ramifications should explain the TMDL corrective mechanism,
including how and when it would be necessary to modify each component of the TMDL . . . ." FACA REPORT, supra note 14, at 40-41. This
proposal amounts to more of a procedure whereby deficiencies would be corrected in the future, rather than the advance identification of
actual control measures that are ready to be deployed as soon as they are needed.
Page 65
n378 See generally Schoenbrod, supra note 163 (discussing the many flaws in the SIP-based CAA program); Wilkins, supra note 140
(discussing the failures of the Section 208 program); Latin, supra note 26, at 1655 (same); Adler, supra note 6 (discussing past failures in
watershed planning programs generally).
n383 These include, for example, variable meteorological conditions (such as temperature, humidity, and wind speed and direction) in the
CAA program, see supra note 188 and accompanying text, and variable hydrological conditions (such as seasonal or daily variations in
precipitation, runoff and streamflow) in the CWA program, see supra note 118 and accompanying text.
n384 This includes interstate or international transport of pollutants or pollutant precursors in the air program, and upstream discharges or
runoff and air deposition in the water program.
n385 In the water program, for example, program managers must evaluate the degree to which certain pollutants (such as oxygen-
demanding pollutants or pathogens) degrade, and over what time; the fate and persistence of metals, organic chemicals and other toxics in
biota and sediments, as well as the degree to which they may later resuspend in the water column; and synergistic impacts among multiple
pollutants (such as chlorine and organic chemicals that may combine to form more toxic compounds). See supra note 119 and accompanying
text. In the air program, officials must consider interactions between volatile organic compounds ("VOCs") and nitrous oxides ("NO[x]") in
the formation of tropospheric ozone. See S. REP. No. 101-228, at 13 (1989), reprinted in 1990 U.S.C.C.A.N. 3385, 3399.
n386 See Houck, supra note 11, at 10,398; Bazel, supra note 80, at 1246 n.12; Healy, supra note 25, at 421-22; Gaba, supra note 12, at
1175; Schoenbrod, supra note 163, at 764; Oren, supra note 24, at 1825; Pederson, supra note 24, at 1104; Latin, supra note 26, at 1309,
1312.
n387 These include, at a minimum, sections 102 (basin planning), 208 (comprehensive waste management planning), 303(d) and (e)
(TMDLs and continuing planning processes), 304(1) (individual control strategies), 314 (clean lakes program), 319 (nonpoint source
pollution control plans), and 320 (National Estuary Program). See 33 U.S.C. §§ 1288, 1313(d), (e), 1314(e) (1994), 1252, 1324, 1329 (Supp.
1996). This laundry list does not include the myriad geographically targeted programs, such as sections 116-120 (Hudson River, Chesapeake
Bay, Great Lakes, Long Island Sound, and Lake Champlain). See id. §§ 1266-1268 (1994), 1268-1270 (Supp. 1996).
n388 See supra notes 184-192 and accompanying text; State of N.Y. v. Administrator, EPA, 710 F.2d 1200 (6th Cir. 1983) (upholding EPA
approval of SIP revision increasing acceptable sulfur dioxide emission limits despite failure to consider impact on sulfates); Connecticut
Fund for the Env't v. EPA, 696 F.2d 179 (2d Cir. 1982) (holding that EPA was not required to consider impact of sulfur dioxide revision on
particulate pollution levels); Pederson, supra note 24, at 1076 (noting that sources emitting multiple pollutants are subject to multiple SIPs).
n389 See RODGERS, supra note 12, at 197. The major exception is now section 112, 42 U.S.C. § 7412 (1994), which was expanded
extensively in 1990 to require regulation of a long list of hazardous air pollutants. Such regulation is achieved through individual source
controls, however, rather than SIPs. See id.
Page 66
n390 See Connecticut v. EPA, 696 F.2d 147 (2d Cir. 1982) (concerning interstate pollution from New York). But see Ohio v. Ruckelshaus,
776 F.2d 1333 (6th Cir. 1985) (holding that it is proper to classify county as nonattainment based on contributions to nonattainment in
downwind areas).
The CAA includes provisions to address these interstate and regional problems, see 42 U.S.C. § 7426 (1994), but these provisions have
had questionable effect, see Air Pollution Control Dist. of Jefferson Co. v. EPA, 739 F.2d 1071 (6th Cir. 1984) (holding that a three percent
contribution to nonattainment is not "significant").
n391 EPA did this to some degree by allowing states to combine their efforts under sections 208 and 303(e) of the statute into a single
"water quality management plan." 40 C.F.R. § 130.6 (1997). See Gaba, supra note 12, at 1173. An integrated approach would be much more
effective if it included all of a state's listing, designation, planning, restoration, and protection efforts under sections 303(c), 305(b), 319, etc.
n392 This does not mean that pollutant-specific TMDLs are necessarily inappropriate where only one pollutant must be addressed within a
target watershed.
n393 To pose a hypothetical example: suppose pollution source A can reduce pollutant X at very low cost, but additional controls on
pollutant Y are expensive, while the opposite is true for Source B. A multiple-pollutant TMDL and plan could "allocate" the costs and
burdens of overall reductions more efficiently and probably more effectively than a TMDL and plan addressing a single pollutant.
n394 Consider, for example, a heavily industrialized river in which WQS violations are measured for ten toxic pollutants discharged largely
from three chemical factories. It would make more sense to prepare a single TMDL covering all toxic pollutants in the river than 10 separate
TMDLs (as would be true in the SIP process), each of which might regulate the three dischargers in different ways.
n395 For example, the same silvicultural practices could cause numeric turbidity violations, adverse changes to physical habitat (such as
smothering of spawning beds), and measured use impairment by reference to biocriteria. A single TMDL identifying the appropriate changes
in logging practices might solve all three problems.
n396 Adler, supra note 6, at 982, 1043 n.419 (noting that watershed programs could facilitate implementation of the TMDL program).
n397 Geographically focused TMDLs are recommended but not required by EPA guidance. See THE TMDL PROCESS, supra note 76, at
15.
n399 The FACA Committee recommends that the degree of EPA review of both initial and modified TMDLs should vary depending upon a
number of factors, such as controversy, complexity, degree of multijurisdictional issues and impacts, past state performance, and stakeholder
interest. See FACA REPORT, supra note 14, at 59. In addition, the Committee recommends that less EPA scrutiny might be needed for states
that adopt and implement uniform procedures, rather than site-specific variations. Id. See also THE TMDL PROCESS, supra note 76, at 32
(advising that, while EPA is required to review all TMDLs, EPA might conduct sample reviews only under certain conditions).
n401 See supra Part II.B.3.

Page 67
n403 See 33 U.S.C. § 1311(b)(1)(C) (1994).
n404 A factory might need to develop new pollution controls stricter than what EPA or the State has determined is the "best available" in
order to meet a water quality -- based effluent limit.
n405 If new controls are not available to meet stricter water quality-based limits, plant production might have to be limited or reduced.
n406 If production limits are not adequate to meet stricter water quality-based limits, a firm might be forced to relocate, or in an extreme
case, to shut down.
n407 If a sewage treatment plant faces stricter water quality-based limits, it might be forced to seek alternative treatment strategies, such as
land application, or to limit additional connections to the public sewerage system.
n409 See 40 C.F.R. §§ 130.2(g), 130.7 (1997).
n410 Id. § 130.7(c)(1).
n411 Through guidance on the TMDL program, EPA has indicated that it will not approve TMDLs that rely on nonpoint source controls
unless "reasonable assurances" are provided that those controls will actually be implemented, and will achieve the desired load reductions.
See Perciasepe TMDL Memorandum, supra note 11, at 4-6.
n412 See 33 U.S.C. § 1361(a) (1994) (granting authority to EPA Administrator to make rules as broad "as are necessary to carry out his
functions under this chapter"); American Paper Inst., Inc. v. EPA, 890 F.2d 869, 875-78 (7th Cir. 1989).
n414 33 U.S.C. § 1251(a)(2) (1994).
n415 40 C.F.R. §§ 130.3, 131.2 (1997).
n416 33 U.S.C. § 1313(e)(3)(F) (1994).

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n417 While the Act does not impose mandatory implementation of nonpoint source controls, neither does it prohibit them. Thus, a state
could choose to make this demonstration through the adoption of enforceable nonpoint source controls, as some states have done. See, e.g.,
PA. STAT. ANN. tit. 3, s. 22-1701 (West 1995) (mandatory nutrient management measures). See generally ENVTL. LAW INST., supra note
4. Even absent such a choice, a state could demonstrate that the management practices adopted are likely to achieve the necessary pollution
reductions, if implemented through voluntary programs. If voluntary implementation proves inadequate, more enforceable approaches might
be required later.
n418 For example, a state is free to allocate only 40% of the requisite load reductions to identifiable point sources, and to enforce those
reductions through revised NPDES permits. Although the remaining 60% of the necessary pollution reductions may be assigned to a variety
of nonpoint sources, none of the existing programs, at least as currently interpreted and implemented by EPA and the states, requires any
quantitative showing of how and when those pollution reductions will be accomplished. Similarly, despite the EPA regulation that ostensibly
prohibits new sources of pollution where WQS violations already exist, see 40 C.F.R. § 122.4(i) (1997), section 208 of the CWA permits new
sources of pollution without any quantitative showing that the new pollution will be offset by existing or proposed controls, see Arkansas v.
Oklahoma, 503 U.S. 91 (1992).
n419 33 U.S.C. § 1313(d)(1)(C) (1994); see also Natural Resources Defense Council, Inc. v. Fox, 909 F. Supp. 153, 157 (1995) (explaining
that the mandate for a "margin of safety" is meant to address the concern that tight deadlines may lead to TMDLs established on imperfect
data); Houck, supra note 12, at 10,398; Bazel, supra note 80, at 1254; Healy, supra note 25, at 405.
n420 40 C.F.R. § 130.2(g) (1997); see also The TMDL Process, supra note 76, at 2 (allowing LAs based on gross allotments where
necessary).
n421 As discussed above, the LA refers to the loading from nonpoint sources at which the WQS are attained. The load reductions, on the
other hand, are the pollution reductions necessary to reduce the current loadings to the LA. See supra note 157 and accompanying text.
n422 The FACA Committee recommended that this uncertainty be addressed through a "hierarchy approach" under which the best
quantification possible is used at every phase of the TMDL process, but progress is not limited where full and precise quantification is not
possible. Rather, the "next best" method of identifying, allocating and reducing pollution loads is employed, with increasedfollow-up
monitoring, assessment, and TMDL revision procedures used when less precision is possible up front. FACA REPORT, supra note 14, at 30-
34 and App. G.
n423 SIPs designed to address mobile source pollution have been criticized when they do not clearly and specifically identify who is
responsible for implementation; what control measures will be taken; by when; and what happens in the case of failure. See Del Duca &
Mansueto, supra note 252, at 1173 (criticizing proposed Los Angeles SIP). The FACA Committee sought to address these issues by requiring
TMDL implementation plans, especially for nonpoint sources, to include such "who, what, when, and what if" specificity. See FACA
REPORT, supra note 14, at 36-41.
n424 The FACA Committee recommended a mandatory iterative component to TMDLs. While making it clear that the initial TMDL is not
approvable unless it is designed to achieve WQS, the Committee recommended a process whereby deficiencies detected later must be
corrected expeditiously. See FACA REPORT, supra note 14, at 43-45.
n425 See RODGERS, supra note 12, at 203 (likening piecemealing in the SIP process to "individual givers of . . . tickets [who] easily lose
track of the capacity of the stadium").
n426 This type of analysis is required for changes to water quality-based effluent limits for point sources by the "antidegredation"
provisions of the law. 33 U.S.C. § 1313(d)(4) (1994). The same must be true for nonpoint sources, however, and the point source
requirement must be implemented through an effective process. The FACA Committee recommended that TMDLs be designed to predict,
and to remain effective despite, changes in "economic, demographic and/or physical" variables. FACA REPORT, supra note 14, at 44.
Page 69
n428 33 U.S.C. § 1251(a)(2) (1994).
n429 See id. § 1311(b)(1)(C).
n430 Id.
n431 See Bazel, supra note 80, at 1260. While in practice water quality-based effluent limitations have been imposed routinely absent
complete TMDLs, and while progress towards WQS attainment undoubtedly results from such stricter limits, a state cannot really determine
which degree of additional control is "necessary" to meet WQS absent a complete TMDL.
n432 On the other hand, Professor Gaba argues that the 1977 and 1983 deadlines are inconsistent. See Gaba, supra note 12, at 1203-04. In
reaching this conclusion, Professor Gaba may have failed to consider the relationship between point and nonpoint source contributions to
WQS violations.
n433 Section 208 included various deadlines governing when the 208 plans would be in place, but none that governed control
implementation or WQS attainment. See 33 U.S.C. § 1288(a)-(b) (1994). Section 303(d) required states to establish a "priority ranking" for
water quality-limited waters, but no deadlines by which those waters must be cleaned up. Id. § 1313(d)(1)(A). The provision also required
that the "first . . . submission" of TMDLs be made within six months after EPA identified the pollutants that were amendable to TMDLs.
Because the initial list was of unspecified size, and future submissions were required only "from time to time" thereafter, id. § 1313(d)(2),
until deadlines began to be imposed judicially, this process had become truly open-ended. While EPA in 1972 could have interpreted the Act
to require all listed waters to be addressed in time to meet the 1977 deadline for water quality-based effluent limitations and the 1983
statutory water quality goal, it chose not to do so. Section 303(e) required each state's continuing planning process to be submitted for
approval within a half year of the law's enactment, and again "from time to time" thereafter. Id. § 1313(e)(1). Again, however, the provision
included no specific deadline for WQS attainment. Section 319, added in 1987, again included various bureaucratic deadlines for planning
and approval, but no substantive deadlines for implementation of nonpoint source controls or resulting attainment of the WQS. Pub. L. No.
100-4, 101 Stat. 52 (1987).
n434 The deadline for compliance with Best Achievable Technology, for example, was amended both in 1977, see Pub. L. No. 95-217, §
42(b), 91 Stat. 1583 (1977), and in 1987, see Pub. L. No. 100-4, § 301(a), (b), (d), 101 Stat. 29 (1987).
n435 The law was amended, either in major or in minor ways, in 1977, 1982, and 1987 (not counting discrete changes in appropriations bills
and similar legislative vehicles). See supra note 434.
n436 See, e.g., Idaho Sportsmen's Coalition v. Browner, 951 F. Supp. 962, 969 (W.D. Wash. 1996) (discussing swift compliance schedules
for TMDL development in Idaho); Sierra Club v. Hankinson, 939 F. Supp. 872, 873 (N.D. Ga. 1996) (same for Georgia); see also Conway,
supra note 14, at 95-96 (discussing both above cases).
n437 See Conway, supra note 14, at 95 (discussing other cases in which more lenient government deadlines were upheld); Alaska Ctr. for
the Env't v. Browner, 20 F.3d 981, 986 (9th Cir. 1994). The FACA Committee recommended that all TMDLs and implementation plans be
completed within 15 years. See FACA REPORT, supra note 14, at 20. However, the committee declined to address the issue of deadlines for
ultimate compliance with WQS despite an invitation from this author to do so.
Page 70
n438 See RODGERS, supra note 12, at 210-11.
n439 See supra notes 216-227 and accompanying text; see also RODGERS, supra note 12, at 223 (noting that in the 1990 Amendments,
"Congress confronted the problem of three deadlines having come and gone by enacting no less than sixteen new and improved deadlines").
n440 See RODGERS, supra note 12, at 223 (expressing skepticism at the utility of deadlines that are not self-enforcing); Del Duca &
Mansueto, supra note 252, at 1151 (explaining that states largely ignored CAA deadlines); Feller, supra note 161, at 866 (arguing that
repeated extensions reinforce public view that CAA deadlines are not to be taken seriously, and predicting violations of 1990 deadlines as
well).
n441 See Delaney v. EPA, 898 F.2d 687 (9th Cir. 1990); Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987); Citizens for a Better Env't v.
Costle, 610 F. Supp. 106 (D. Ill. 1985).
n442 See FACA REPORT, supra note 14, at 46-48 (discussing so-called "extremely difficult problems").
n443 See 42 U.S.C. §§ 7501-7509a (1994).
n444 See Chevron, USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-66 (1984); Appalachian Power Co. v. EPA,
135 F.3d 791, 817-19 (D.C. Cir. 1998) (using Chevron analysis, the court upheld an EPA decision to set a new compliance deadline,
replacing a deadline that has passed on sulfur dioxide emissions).
n445 See 42 U.S.C. § 7502(c)(2) (1994).
n446 Id. § 7501(1).
n447 See S. REP. NO. 101-228, supra note 227, at 41-42 (describing the failure of the more generic RFP requirements in the earlier statute).
n448 In moderate ozone nonattainment areas, for example, RFP included total reductions in volatile organic compounds ("VOCs," an ozone
precursor) of "at least 15 percent from baseline emissions, accounting for any growth in emissions after 1990" within six years, along with
"such specific annual reductions in emissions of volatile organic compounds and oxides of nitrogen [another ozone precursor] as necessary
to attain" the primary NAAQS by the attainment date. 42 U.S.C. § 7511a(b)(1)(A)(I) (1994). In serious ozone nonattainment areas the statute
is more specific, requiring reductions of "at least 3 percent of baseline emissions each year," averaged over consecutive three-year periods
until the attainment date. Id. § 7511a(c)(2)(B) (with exceptions available where the state is using "all measures that can feasibly be
implemented in the area").
n449 See FACA REPORT, supra note 14, at 40 (recommending that TMDL implementation plans include specific "measurable milestones
for determining whether the implementation plan is being properly executed"). Under the FACA proposal they would have to include both
measurable water quality improvement targets and schedules for specific implementation actions, such as numbers of permits modified or
nonpoint source pollution control actions taken. See id. EPA may adopt such regulations under the CWA's broad grant of rulemaking
authority. See supra note 412 and accompanying text.
Page 71
n450 This strategy inevitably provokes the criticism that nonpoint source controls cannot be predicted with sufficient certainty. But the same
problems faced area pollutants and similar dispersed sources covered under the CAA. The solution is to rely on the best possible estimates of
the efficacy of various control strategies, with likely improvements in predictive accuracy as the program matures. See supra notes 419-421
and accompanying text. Moreover, the ramifications of inaccurate predictions involve program corrections rather than regulatory sanctions.
n451 Cf. 42 U.S.C. § 7470(3) (1994) (establishing a congressional goal "to insure that economic growth will occur in a manner consistent
with the preservation of existing clean air resources").
n452 Cf. Arkansas v. Oklahoma, 503 U.S. 91 (1992) (holding that "what matters is not the river's current status, but whether the proposed
discharge will have a detectable effect on that status").
n453 See 40 C.F.R. § 122.4(i) (1997). This, of course, was the approach advocated by the plaintiffs, and adopted by the Tenth Circuit, but
rejected by the Supreme Court without reference to this regulation, in Arkansas v. Oklahoma. See 503 U.S. at 97; supra note 452 and
accompanying text.
n454 Often, the dirtiest waters are those used by the poorest segments of the population, with high percentages of people of color. See
ADLER ET AL., supra note 1, at 36-37 (beach pollution), 56-58 (fish and shellfish contamination).
n455 Neither the CAA nor the CWA envision that large numbers of individual airsheds or water bodies can simply be abandoned as too far
gone. The CAA includes no provisions to abandon or modify the NAAQS regardless of how hopeless attainment may seem, to the lament of
some commentators. See, e.g., Portney, supra note 248, at 32-33, 88; Currie, supra note 281, at 155 ("The most striking feature of this
scheme is its absoluteness"); Feller, supra note 161, at 865-70 (decrying unrealistic use of NAAQS where standards cannot be met, and use
of the same standards to limit further improvement in areas where it could be achieved). Under the CWA, water bodies can be "downgraded"
where minimum uses are not attainable, see 33 U.S.C. § 1251(a)(2) (1994), but as interpreted by EPA in regulations, only under narrowly
prescribed circumstances, see 40 C.F.R. § 131.10(g) (1997).
n456 The only absolute prohibitions that have received adequate political support have involved discrete geographic reaches, such as
wilderness areas, see 16 U.S.C. §§ 1131-1136 (1994), and the habitat for threatened and endangered species, see id. § 1538. Moreover, even
those programs face continuing political challenges and include numerous qualifying exceptions. See Regulatory Reform: State Legislators
from West Ask Congress to Rewrite Environmental Laws, 1995 Daily Env't Rep. (BNA) 113 d6 (noting Western legislators' request that
Congress pass "legislation that would designate as wilderness only lands meeting the definition found in the 1964 Wilderness Act");
Endangered Species: Greater State Role, 'Good Science' Focus of Bill, No Full Commitment from DOI, 180 Daily Env't Rep (BNA) A-8
(1997) (noting that the bill promises "a greater role for the states in species recovery" and "represents a comprehensive rewrite of the
existing law"); 16 U.S.C. § 1133(d) (1994) (providing for exceptions and grandfathered uses within wilderness areas); id. § 1539 (a)-(b)
(listing various exceptions to Endangered Species Act prohibitions).
n457 503 U.S. 91 (1992).
n458 This does not mean, however, that individual states cannot elect to employ such an approach in some or all cases. See 33 U.S.C. §
1370 (1994) (allowing stricter state standards). Oregon, for example, implements prohibitions on new or increased point source discharges
for waters listed as impaired under section 303(d)(1). See OR. ADMIN. R. 340-41-026(3)(a)(C) (generally prohibiting new or increased
point source discharges to impaired waters until TMDLs and compliance plans are developed).
n459 See 40 C.F.R. § 131.12(a)(1) (1997) ("Existing instream water uses and the level of water quality necessary to protect the existing use
shall be maintained and protected.") (emphasis added). Because of the mandatory language of this provision and the absence of any
exception, any new discharge that would impair an instream use or cause a WQS violation is strictly prohibited. See id.
Page 72
n460 Of course, these implementation procedures are subject to EPA review and approval as part of the state WQS submissions. Given the
absence of firm EPA rules that define the adequacy of implementation procedures, however, this scrutiny can hardly be called exacting.
n461 The rule provides in relevant part:
(2) Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and
recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction
of the intergovernmental coordination and public participation provisions of the State's continuing planning process, that
allowing lower water quality is necessary to accommodate important economic or social development in the area in which
the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate
to protect existing uses fully. Further, the State shallassure that there shall be achieved the highest statutory and regulatory
requirements for all new and existing point sources and all cost-effective and reasonable best management practices for
nonpoint source control.
40 C.F.R. § 131.12(a)(2) (1997). The term "important economic or social development" is almost entirely subjective. See Gaba, supra note
12, at 1193 (arguing that the Tier Two-style exception is too vague).
n462 40 C.F.R. § 131.12(a)(3) (1997).
n463 See NAT'L WILDLIFE FED'N, supra note 69, at 13 (noting that only 16 states use the federal ONRW classification).
n466 It could be difficult administratively to include large numbers of individually small but cumulatively significant new emissions sources
in the offset program.
n467 The CAA prohibits credits for "emissions reductions otherwise required" by the statute. 42 U.S.C. § 7503(c)(2) (1994).
n468 For example, if an existing factory is allowed to emit 100 tons of pollution per year, but historically has emitted only 80 tons of
pollution, allowing an "offset" of 20 tons per year by reducing the permit limit to 80 tons would result in no actual emissions reductions. If a
new or modified source were allowed to add 15 new tons of pollution per year, the net result would be an increase of 15 tons of pollution per
year, rather than the expected net reduction of five tons per year (20 offset minus 15 new). Congress addressed this problem in the 1990
CAA Amendments by requiring offset "in the actual emissions of such air pollutant from the same or other sources in the area." Id. § 7503(c)
(1) (emphasis added).
n469 If the old factory emitted 100 tons per year of pollution, and the new factory emitted 80 tons after installation of LAER controls, the
net result would be a reduction of 20 tons of pollution per year rather than over 100 tons per year (the reductions achieved through closure of
the old factory plus additional reductions due to the new source offset requirement, depending on the specific offset ratio required for that
pollutant and that airshed). See supra notes 214-215 and accompanying text. Because the sum of old and new emissions is supposed to be
"sufficiently less than total emissions from existing sources . . . so as to represent . . . reasonable further progress," 42 U.S.C. § 7503(a)(1)
(A) (1994), offsets are set at ratios of greater than 1:1. Specific offset ratios vary according to pollutant and nonattainment severity.
Compare, e.g., id. § 7511a(a)(4) (offset ratio of 1.1:1 for volatile organic compounds in marginal zone nonattainment areas) with id. §
7511a(b)(5) (volatile organic compounds offset ratio of 1.15:1 in moderate ozone nonattainment areas). See also RODGERS, supra note 12,
at 228.
Page 73
n470 See Esther Bartfeld, Point-Nonpoint Source Trading: Looking Beyond Potential Cost Savings, 23 ENVTL. L. 43 (1993); Robert I.
Fassbender, Reducing Great Lakes Toxics: Can We Do More for Less Through Wastewater Effluent Trading?, 1 WIS. ENVTL. L.J. 57, 83
(1994) (raising issues of hotspots and bioaccumulation).
n471 See RODGERS, supra note 12, at 291-92 (criticizing Arkansas v. Oklahoma for allowing the equivalent of the CAA nonattainment
policy without the offset requirement). Ironically, offsets were proposed early in EPA's development of the antidegradation program but were
never actually adopted. See Gaba, supra note 12, at 1188-89 n.112.
n472 The FACA Committee supported full application of EPA's new discharge prohibition to waters listed under section 303(d)(1), but
recognized that it does not apply to existing point sources or to nonpoint sources. See FACA REPORT, supra note 14, at 17. However, in
addition to proposing that states be required to implement a short-term "stabilization plan" to "stop the bleeding" pending development and
implementation of a fullblown TMDL to restore the patient to full health, the Committee also proposed that states consider an "optional
stabilization planning effort" under which the new point source prohibition could be avoided "upon demonstration that the optional
stabilization plan results in parameter-specific net progress in water quality through means other than the prohibition," such as through
offsets. Id. at 19. Given the loopholes that have plagued the CAA offset program, and because of the limits of negotiated policy dialogues
under FACA, this language is disturbingly vague but would at least require some demonstrated forward progress before new or increased
discharges are allowed for listed waters.
n473 See Draft Trading Framework, supra note 8, at 2-5, 2-6 (effluent trading must meet WQS, as determined through TMDLs).
n474 EPA probably has the latitude to design a CWA offset program by regulation as a means of implementing section 303 of the law. In
fact, the CAA offset program also started as a regulation which was then adopted by Congress in 1977. See Pedersen, supra note 24, at 1069.
n475 See Reitze, supra note 28, at 1624.
n476 See 42 U.S.C. § 7473 (1994); see also supra notes 194-203 and accompanying text.
n477 The "preconstruction review" requirement for major new or modified sources demands not only a showing that the increments and
caps will be met, but also the mandatory installation of Best Available Control Technology and an evaluation of air quality impacts,
alternatives to the new emissions, and "other appropriate considerations." 42 U.S.C. § 7475(a)(2)-(6) (1994). However, best technology
requirements apply to all new point source discharges to surface waters as well, see 33 U.S.C. § 1316 (1994), and the Tier Two regulation
similarly requires an analysis of alternatives to the proposed new discharge, see 40 C.F.R. § 131.12(a)(2) (1997). Moreover, a requirement to
"evaluate" alternatives falls far short of a substantive mandate to prohibit new pollution where viable alternatives exist.
n478 In addition to installing Best Available Control Technology and meeting certain other procedural requirements, major new or modified
sources must prove that their emissions will not cause or contribute to pollution in excess of the statutory increments and caps "more than
one time per year." 42 U.S.C. § 7475(3)(A) (1994). Thus, the emissions caps run right up to, and slightly above, pollution levels defined by
the NAAQS. Moreover, because the policy applies only to major stationary sources, additional emissions from area or mobile sources can
push air quality above the standards if the full available increment is given to stationary sources. See Schoenbrod, supra note 163, at 782
n.257.
n479 While total allowable increments and caps must account for all sources of pollution, the preconstruction review requirements in the
PSD program apply only to major emitting facilities. See 42 U.S.C. § 7475(a) (1994). The review must analyze other secondary, growth-
related pollution from each such facility, id. § 7475(a)(6), but this does not account for cumulative area and mobile source emissions not
directly associated with a major new or expanded stationary source. Presumably, such overall increased emissions are addressed in the SIP
itself, and in the maintenance plan for areas that previously violated the NAAQS. See supra notes 204-208 and accompanying text. On its
face, the antidegradation regulation addresses new pollution from all sources, since it speaks to the maintenance and protection of water
quality rather than limits on discrete types of sources. See 40 C.F.R. § 131.12 (1997). However, the regulation has been applied most often to
Page 74
new point source discharges, with some exceptions. See Jefferson Co. v. Washington Dep't of Ecology, 511 U.S. 700 (1994) (upholding
imposition of minimum stream flow rates as part of certification requirements under CWA for building hydroelectric power plant). Where
additional discharges are allowed into Tier Two waters, the rule does require the implementation of "all cost-effective and reasonable best
management practices for nonpoint source control." 40 C.F.R. § 131.12(a)(2) (1997). This requirement, however, has largely been ignored,
and in any event imposes loose technology-based rather than water quality-based controls on nonpoint sources, and thus does not prevent
cumulative increased non-point source pollution from degrading existing clean water.
n480 Some members of the FACA Committee questioned whether TMDLs apply to antidegradation waters, see TMDL Fed. Advisory
Comm. Report 22-24 (Apr. 24, 1998) at 22-24 (on file with author), despite EPA's view that they do apply, see Wayland Memorandum,
supra note 129, at 7 (waters must be listed if expected to violate standards due to deteriorating conditions by the next reporting deadline).
However, the statute clearly provides for both attainment and antidegradation TMDLs. Compare 33 U.S.C. § 1313(c)(1) (1994) with id. §
1313(c)(3); compare id. § 1313(c)(4)(A) with id. § 1313(c)(4)(B). Ultimately, the Committee reached a compromise on this issue, proposing
that EPA adopt a definition of threatened waters by regulation; that EPA strengthen its implementation of federal antidegradation policies;
that threatened waters be placed on a discrete list for "focused attention"; and that states perform a "watershed-based loadings analysis" for
threatened waters as soon as possible, and at least before new or modified permits are issued. FACA REPORT, supra note 14, at 14.
n481 See Gaba, supra note 12, at 1194 (proposing also that the CWA antidegradation program should emulate the CAA PSD program).
n482 See 42 U.S.C. § 7505a (1994).
n483 See supra note 69. While Congress has deferred to states generally in establishing WQS and use designations, the states' rights
rationale for this approach is difficult to maintain with respect to waters of such national significance.
n484 See 40 C.F.R. § 131.12(a)(3) (1997).
n485 See 42 U.S.C. § 7472 (1994).
n486 See id. § 7473. For example, the allowable increments for particulate matter, expressed as an annual geometric mean, are five
micrograms per cubic meter for Class I airsheds, compared to 19 for Class II and 37 for Class III areas. See id. Other provisions of the
statute, however, demand additional controls as necessary to correct visibility impairment in Class I airsheds. See id. §§ 7491-92.
n487 Such status could be conferred either by statute or by regulation. Indeed, a fair reading of EPA's existing ONRW regulation could
include mandatory ONRW status for "waters of National and State parks and wildlife refuges." 40 C.F.R. § 131.12(a)(3) (1997). This result
could be assured through a simple modification of that regulation to replace the words "such as" with "including." Such a change would be
easier to justify for national than for state parks and refuges.
n488 See RODGERS, supra note 12, at 250 (expressing general pessimism about the efficacy of nonpoint source pollution controls).
n490 See JUSTIN R. WARD, ET AL., REAPING THE REVENUE CODE 47-58 (1989).
n491 Pub. L. No. 101-508, § 6217, 104 Stat. 1388 (1990) (codified as amended at 16 U.S.C. § 1455(b) (1994)).
Page 75
n492 See Adler, supra note 6, at 1068-70.
n493 The predictable response is that nonpoint source pollution is so varied, as are conditions such as soil and crop types, climate, etc., that
uniform controls are infeasible and inefficient. While true to some extent, this argument rings hollow in the face of such universally
applicable control measures as soil testing to prevent unnecessary or excessive fertilizer application or buffer strips to prevent bank erosion.
n494 See Reitze, supra note 28, at 1549, 1554.
n495 See Latin, supra note 26, at 1656 (noting that section 208 was never viewed as a mandate for comprehensive land use planning).
n498 See Del Duca & Mansueto, supra note 252, at 1147 ("Without this power of substitution, states would be unlikely to take seriously the
EPA's disapproval of their SIPs . . .").
n499 See supra note 280 and accompanying text. Here, too, EPA has used its authority quite sparingly. See supra note 293 and
accompanying text.
n500 The authority to withhold program funding is hardly a sanction at all. If a state does not have the political desire to implement
effective nonpoint source controls, it is not much punishment to withhold funding to implement such a program. EPA's power to increase its
scrutiny over point source permits in the affected watershed, see Perciasepe TMDL Memorandum, supra note 11, at 7, might have some
impact, but only where point sources contribute significantly to the problem.
n501 See 33 U.S.C. § 1313(c)(4) (1994).
n502 See id. § 1313(d)(2).
n503 States only implement the NPDES program for point sources with EPA approval, which can be withdrawn for various reasons. See id.
§ 1342(b)-(c). Moreover, EPA can veto individual NPDES permits and issue Federal permits in their place. See id. § 1342(d). And EPA has
full authority to enforce the requirements of both state and federally issued permits. See id. § 1329.
n504 The FACA Committee agreed to disagree on whether TMDL implementation plans should be submitted under section 303(d) or
303(e). See FACA REPORT, supra note 14, at 36 & App. H. The clear import of this debate, however, is whether EPA could implement
nonpoint source measures absent an approvable TMDL implementation plan prepared by the state.
Page 76
n505 For example, Congress could allow EPA to require the Department of Agriculture to withhold farm program benefits in states that fail
to implement nonpoint source controls. This would provide a more appropriate and more potent incentive to regulate nonpont sources of
water pollution than withholding highway funds, which have closer logical ties to air pollution.
n506 It is difficult to devise and implement sanctions against states for "collective political failures," as opposed to sanctions against the
polluters themselves. See RODGERS, supra note 12, at 229.
n510 See supra notes 196-198, 214-215 and accompanying text.
n512 Unfortunately, EPA has been disturbingly hesitant to use this statutory authority. See supra notes 293-294 and accompanying text.
n517 See supra Part II.A.1 (discussing SIPs and automobiles).
n518 Schoenbrod, supra note 163, at 791.
n520 RODGERS, supra note 12, at 298.

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Copyright (c) 1999 President and Fellows of Harvard College

23 Harv. Envtl. L. Rev. 203

LENGTH: 43402 words

NAME: Robert W. Adler*

1. The Nature of Water Quality Standards

2. Promulgation of Water Quality Standards

3. Implementation of Water Quality Standards

ii. Nonpoint Sources

1. The Nature of Air Quality Standards

[*232] 2. Designation of Air Quality Control Regions

3. Implementation of Air Quality Standards

[*241] i. Complexity and Delay in the SIP Process

ii. Gaming the SIP System

iii. SIPs and Automobiles

necessary to maintain acceptable emissions levels ("I/M programs"). n261

1. Consistency in Standards, Monitoring, and Listing

2. The Scope of the Designation and Listing Processes

3. Redesignation, Maintenance Plans, and Contingency Measures

1. The Need for a Comprehensive, Integrated Process

2. Reasonable Further Progress Requirements

3. Attainment Versus Growth: Offsets, Increments, and Caps

4. Mobile Versus Nonpoint Sources

5. EPA Implementation Authority and Sanctions

Environmental LawAir QualityState Implementation PlansEnvironmental LawWater QualityClean Water ActWater

n10 33 U.S.C. § 1313(d) (1994).

n16 See RODGERS, supra note 12, at 248.

n20 See RODGERS, supra note 12, at 134, 259.

n31 33 U.S.C. § 1313(c) (1994).

n33 See 40 C.F.R.. §§ 130.3, 131.2 (1997).

n36 The relevant statutory language provides:

33 U.S.C. § 1313(c)(2)(A) (1994); see also 40 C.F.R. § 131.10 (1997).

n39 See, e.g., 33 U.S.C. §§ 1251(g), 1370 (1994).

n42 33 U.S.C. § 1314(a)(1) (1994).

n57 See 33 U.S.C. § 1313(c)(2) (1994); 40 C.F.R. § 131.4 (1997).

n58 See 33 U.S.C. § 1313(c)(2)-(4) (1994); 40 C.F.R. § 131.5(b) (1997).

n61 33 U.S.C. § 1313(c)(2)(A) (1994).

n63 See 40 C.F.R. § 131.6(d), 131.12 (1997).

n65 40 C.F.R. § 131.12(a)(1) (1997).

n70 See infra text accompanying notes 193-208.

n74 See ADLER ET AL., supra note 1, at 6-7.

n77 See 43 Fed. Reg. 60,662 (1978).

n79 See id. § 1313(d)(2).

n83 See 33 U.S.C. § 1313(d)(2 (1994)); 40 C.F.R. § 130.7(d) (1997).

n84 33 U.S.C. § 1313(e) (1994).

n92 See 33 U.S.C. § 1313(d)(3) (1994); 40 C.F.R. § 130.7(e) (1997).

n94 33 U.S.C. § 1313(d)(3) (1994); 40 C.F.R. § 130.7(e) (1997).

n97 See 33 U.S.C. §§ 1281, 1288 (1994).

n100 See 33 U.S.C. § 1329 (1994).

n103 See id. § 1313(e)(3)(B).

n104 See id. § 1313(e)(3)(C).

n106 Id. § 1311.

n107 Id. § 1288.

n109 33 U.S.C. § 1313(d)(1)(C), (D) (1994).

n110 40 C.F.R. § 130.2(g), (i) (1997).

n111 See The TMDL Process, supra note 76, at 19.

n112 See 40 C.F.R. § 130.2(h) (1997).

n115 40 C.F.R. § 130.7(c)(1)(ii) (1997).

n122 See 40 C.F.R. § 130.7(c)(1)(i) (1997).

n124 See 40 C.F.R. § 122.44(d)(1) (1997).

n125 33 U.S.C. § 1313(d)(1)(A) (1994) (emphasis added).

n126 See 40 C.F.R. § 131.6(d) (1997).

n127 See supra notes 63-69 and accompanying text.