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Vanderbilt Law Review

Jeffrey M. Gaba

First Page

1167

Abstract

Renewed interest in an expanded role for water quality standards in the regulatory scheme has developed recently. This inter-est is due in part to the perception that the use of water quality standards is a particularly "cost-effective" approach to pollution control. At least in theory, water quality standards are set no higher than necessary to achieve the desired environmental goal.Further, as more and more industrial facilities achieve compliance with technology based requirements, attention has begun to focus on additional techniques including water quality standards, for imposing more stringent limitations." Finally, since states set water quality standards a regulatory scheme centered upon water quality standards may be more responsive to the concerns of the "new federalism ...

Part II of this Article will review the role of water quality standards in pollution control under the Clean Water Act. Part III will examine the history of federal involvement in water quality standards. Part IV will focus on three major questions relating to minimum federal water quality standards requirements under the Act: (1) the scope of an antidegradation requirement under the Act, (2) the propriety of a federally mandated minimum designated use, and (3) the standards for federal review of state established pollutant levels. This Article argues, based on the provisions and history of the Clean Water Act and the problems of federal implementation of minimum requirements, that states essentially should have a freehand in the designation of uses and that the federal role in water quality standards should be limited to enforcing a stringent antidegradation requirement and supervising the states' scientific judgments in establishing pollutant levels. This policy does not mean abandonment of an effective federal program of pollution control; to the contrary, reliance on water quality standards can act to divert efforts from the essential task of continued enforcement of stringent technology based limitations. Options to water quality standards exist under the Act to augment effectively these limitations. Part V concludes with a discussion of an alternative strategy for an effective and cooperative federal-state program of water pollution control.

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