EPA’s New Regulation Would Impact the Clean Water Act

Editorial: 50 years later, the Clean Water Act is under assault

On June 26, 1969, the Environmental Protection Agency (EPA) published its proposed rule for the Clean Water Act. In the words of the new legislation, “clean waters are those that are free from impairment by pollutants.”

Congress acted to establish the Clean Water Act in 1972, and the new legislation included a provision requiring the EPA to regulate discharges from point sources of pollutants—including those that discharge wastewater and treated sewage—to waters that serve interstate commerce. For nearly 50 years after 1972, Congress amended the Clean Water Act to add federal standards to address various types of discharge of pollutants.

Congress also authorized the EPA to issue regulations that the EPA promulgated, as appropriate. And Congress directed the EPA to promulgate regulations “designed to assure compliance with the Act” by point sources, such as drinking water supplies and wastewater treatment plants. The EPA has long defended its authority to issue general rules that apply to all point sources, not just those regulated under the Clean Water Act. The EPA has also asserted—and has maintained—that the authority granted to it by Congress is a “general statutory power” rather than a “limited subject matter rulemaking power.”

But in April, EPA Administrator Gina McCarthy unilaterally changed course and announced that the agency would limit the scope of its regulation of point sources of pollution under the Clean Water Act, and she would promulgate a regulation that would regulate point sources that discharge or discharge wastewater in excess of the discharge limits in a national-pollution-control program. McCarthy’s action would have a significant impact on the Clean Water Act. Although the new EPA regulation would increase the number of pollutants regulated under the Clean Water Act, it would leave the Clean Water Act without authority to establish nationwide standards for point sources discharging wastewater into waters that serve interstate commerce.

In April, EPA Deputy Administrator Dan Glos and EPA Region V Administrator Thomas J. Pyle joined

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