When Congress enacted the Federal Water Pollution Control Act, commonly known as the Clean Water Act, it established a pollution control regime that imposed a baseline level of technology-based pollution control, and was designed to ensure that water quality would not fall below certain standards. Twenty-five years after the enactment of the Clean Water Act, success may be claimed with regard to technology-based controls. Achieving water quality standard (WQS) compliance has proved much more difficult. Indeed, evaluated from a variety of perspectives, the enforcement of the water quality-based system of pollution control must be viewed as a failure.
In light of this failure, this Article considers whether the Clean Water Act permits citizen suit enforcement of state WQSs and whether allowing such suits constitutes good public policy. The Article concludes that the text, legislative intent, and broad purpose of the Act only allows citizen suits when compliance with state WQSs is a condition of a point source's National Pollution Discharge Elimination System (NPDES) permit. Only in this circumstance is it good public policy to allow citizen suits to enforce WQSs.
The Article begins its analysis by describing the regulatory structure of the Clean Water Act and focusing particularly on how the Act was designed to protect the quality of the nation's waters. Several provisions of the Act require that permits allowing discharges into waters include limitations that are more stringent than those normally required by the applicable technology-based standards. The Article also discusses how and why this scheme for ensuring WQS compliance has failed. Empirical evidence indicates that many of America's waterways fail to meet the applicable WQSs. This is in part because the Act has not been implemented and administered in a manner that ensures that WQSs are met. Moreover, even if the Act were implemented more effectively, it would be quite difficult to ensure that WQSs are met.
After describing the degraded quality of waters, notwithstanding twenty-five years of technology-based emissions limitations on point sources, the Article considers the role that direct citizen enforcement of WQSs might play in promoting WQS compliance. In a recent controversial decision, Northwest Environmental Advocates v. Portland, the Ninth Circuit Court of Appeals held that a citizen suit may be brought to enforce WQSs. After describing the Ninth Circuit decision and the strong dissenting views of some members of the court, this Article considers the legal issue of whether and under what circumstances the Clean Water Act authorizes citizens to enforce WQSs. It then discusses whether and when such actions ought to be permitted as a matter of public policy. The Article concludes that citizen suit enforcement of WQSs should be allowed only when the defendant source's NPDES permit requires WQS compliance as a permit condition. Although this is a somewhat limited scope, enforcement in that circumstance should help to improve water quality in some cases. More importantly, however, the availability of citizen suits should help to encourage all interested parties to transform the WQSs for waterways into specific effluent limitations for the point sources along those waterways, and to include more stringent emissions limitations in the point sources' NPDES permits. Compliance with these specific limitations will be easier to monitor and evaluate than is compliance with WQSs. Penalties for noncompliance will also be fairer to permitted point sources.
Michael P. Healy, Still Dirty After Twenty-Five Years: Water Quality Standard Enforcement and the Availability of Citizen Suits, 24 Ecology L.Q. 393 (1997).