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Controlling Surface Water Toxics: The 304(1) Program and Beyond

Lawrence J. Jensen, Lawrence J. Wolfe, and Marcelle F. Shoop, Proceedings of 36th Annual Rocky Mountain Mineral Law Institute (1990)

The Environmental Protection Agency (EPA) describes the presence of harmful levels of toxic pollutants in the waters of the United States as one of the most significant national environmental problems.1 For example, according to EPA, the most recent national water quality inventory report indicates that one-third of monitored river miles, lake acres, and coastal waters have elevated levels of toxics.2 These high levels of toxics have resulted in numerous fish advisories and bans, some swimming bans, and the inability to use some surface waters to supply public drinking water systems. To address this problem, the Water Quality Act of 19873 (WQA), which amends the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act4 (CWA), significantly [23-3] strengthened federal authority to control the amount of toxics discharged from point sources into surface waters.5 Among other things, the WQA:

(1)requires states, in accordance with a strict schedule, to identify and cure waters not meeting state water quality standards due to the presence of toxics;

(2)requires states to adopt water quality criteria for toxics to serve as the basis for water quality-based discharge limits on toxics; and

(3)bolsters EPA's authority to require the use of whole effluent toxicity as a basis for water quality-based discharge limits.

The WQA emph