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The Clean Water Act: New Regulatory Requirements For the Mining and Energy Industries

Jerry W. Raisch, Proceedings of 37th Annual Rocky Mountain Mineral Law Institute (1991)

Prior to 1972, the Federal Water Pollution Control Act2.1 used ambient water quality standards specifying acceptable levels of pollution in a state's interstate navigable waters as the primary mechanism for the control of water pollution.3 This program was based on the establishment and implementation of water quality standards, the purpose of which was to guide performance by dischargers and to trigger legal action to abate [4-3] pollution. The program proved to be inadequate to meet expected water quality improvements. The problems with the program stemmed largely from the awkwardly shared federal and state responsibility for promulgating the standards and from the cumbersome enforcement procedures.4 As a result, it was difficult to develop and enforce standards to govern the conduct of individual dischargers.

In 1972, Congress passed the CWA, which consisted of significant amendments to the nation's water pollution laws. The amendments placed limits on what individual dischargers could discharge regardless of whether the water quality standards of the receiving water were met. Dischargers were required to use progressively more advanced technology. By 1977, they were to use best practicable control technology, (BPT)5 and by 1987 at the latest, they were to use more demanding best available technology (BAT)6 to limit the discharge of pollutants. The limits on discha