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Clean Water Act Programs of the Next Millennium—Predicting the Flow of Things to Come

Lisa A. Kirschner, Kevin C. Harvey, Proceedings of 45th Annual Rocky Mountain Mineral Law Institute (1999)

The Clean Water Act (CWA or Act)2 may be the single most important environmental statute, reportedly doubling the [17-4] numbers of waterways safe for fishing and swimming.3 Accordingly, the impact of its regulatory programs on the mining industry have been considered in six of the last ten annual institutes.4 The programs implementing the CWA continue to be anything but static. Despite the fact that the Act should have been reauthorized in the early 1990s and that comprehensive reauthorization currently seems unlikely, CWA requirements are undergoing dramatic evolution for the new century. Numerous developments related to litigation and administrative initiative may soon trigger sweeping CWA program changes. In that regard, the Environmental Protection Agency (EPA) has acknowledged those changes citing the Administration's Clean Water Action Plan as giving all federal agencies an opportunity to build on core clean water programs with a new commitment to action.5 This agency momentum is evident in the litany of proposals currently being considered; the emphasis on water quality regulation is likely to result in more stringent water quality obligations, [17-5] accompanied by increased cost and increased permitting complexities for mining and other natural resource industries.

This paper evaluates, from a legal and technical perspective, potential changes to (1) the wa