Historically, the United States has utilized a command-and-control strategy for addressing environmental risks. This strategy utilizes the top-down application of performance standards and permits to deal with specific environmental contaminants. A good example of this type of approach can be found in the passage of the CWA. Water protection efforts up until the early 1970s all centered on protection of stream uses and attainment of specific water quality standards within water bodies. The setting of goals and implementation procedures was to be determined on a state-by-state basis. This approach failed for a variety of reasons.

In 1971, the Senate Public Works Committee issued a report that spelled out the various problems with the nation's water pollution control program up to that point. The problems identified by the committee included:

• an almost total lack of enforcement under the 1948 Water Pollution Control Act abatement procedures;

• weaknesses in the permit program established under the Refuse Act in that it applied only to industrial polluters, authority was divided between two federal agencies, and procedures for issuing permits were slow and cumbersome;

• a lack of funding for construction projects;

• lack of research on treatment technologies; and

• the slow progress of states in establishing standards and setting up enforcement programs.

As a result of the weaknesses identified by this Senate Committee inquiry, the national approach to water pollution changed with the enactment of the 1972 Amendments to the Federal Water Pollution Control Act (FWPCA) (Federal Water Pollution Control Act Amendments of 1972, Public Law 92-500, 86 Stat. 816 codified as amended at 33 U.S.C. §§ 1251 to 1387 [2000]), commonly referred to as the CWA. The 1972 CWA contained numerous new provisions. The most important items were the new discharge permit requirements and the implementation of discharge limitations based upon the application of the best treatment technology available at the time, independent of the dischargers' impact upon the receiving stream. The purpose of the new technology-based regulatory approach was to quickly force the installation of the best water pollution control technology in the shortest time. In order to implement the regulatory program, it was necessary to create a permitting program. The CWA required the EPA to issue permits for all "point source" discharges into the nation's waters, upon the condition that the discharge met the requirements of the applicable sections of the CWA (33 U.S.C. § 1342[a][l] [(2000]). Each state was specifically granted the authority to administer its own permit program as long as that program complied with all applicable sections of the CWA (33 U.S.C. § 1342[b] [2000]).

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