Permit Writing in Litigation

The National Pollutant Discharge Elimination System (NPDES) permitting program—the key component of the Clean Water Act (CWA) for regulating point source pollution—is broken. NPDES permits are supposed to protect the receiving water quality by providing specific directives to dischargers in the form of water quality-based effluent limitations (WQBELs). These WQBELs provide dischargers, regulators, and the public with clear notice of what a discharger must do (or may not do) in order to protect water quality in receiving waters: They must either set numeric limits or prescribe best management practices (BMPs). Writing concrete, discharger-specific WQBELs into permits has the further benefit of keeping courts out of the business of making after-the-fact, ad hoc judgments about whether a discharge adversely impacts water quality to a degree that violates the CWA.

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