Congress passed the Clean Water Act on October 4, 1972, by overwhelming margins—unanimously in the Senate and with a bare 11 dissenters in the House of Representatives. Rising on the Senate floor that day a full quarter-century ago, Sen. Edmund S. Muskie (D-Me.), chairman of the Senate's Subcommittee on Air and Water Pollution and leader of the Senate's clean water forces, explained with simple gravity why Congress was about to pass by such large margins such a powerful and unprecedented law:

Our planet is beset with a cancer which threatens our very existence and which will not respond to the kind of treatment that has been prescribed in the past. The cancer of water pollution was engendered by our abuse of our lakes, streams, rivers, and oceans; it has thrived on our half-hearted attempts to control it; and like any other disease, it can kill us.

We have ignored this cancer for so long that the romance of environmental concern is already fading in the shadow of the grim realities of lakes, rivers, and bays where all forms of life have been smothered by untreated wastes, and oceans which no longer provide us with food.

The last 18 months have produced particularly interesting juridical and administrative pronouncements in the areas of Clean Water Act (CWA or Act) jurisdiction, permits, standards, citizen suits, and other enforcement. On the jurisdictional front, we learned that "deep ripping" constitutes an "addition" of a pollutant by a "point source." We also learned that 25-year-old cases from the U.S. Court of Appeals for the D.C. Circuit hold less sway insofar as "addition" includes polluted water diverted from one water to another, and "pollutant" includes parts, foods, and medicines from fish farms and other operations that are discharged, unless exempted. We learned more about when combined animal feeding operations (CAFOs) are point sources. Post Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), we learned "navigable water" still means more than strictly navigable for commerce, and includes wetlands adjacent or hydraulically connected to non-navigable tributaries that flow into actual navigable waters.

Permit issues were less eventful. Courts still defer broadly to the U.S. Environmental Protection Agency (EPA) establishment of technology-based standards. Pollutants contemplated but not regulated by agencies can be discharged without a permit, and water quality standards not addressed by a permit can be violated under the Act's "permit shield" provision. States can waive the requirement that renewal applications need be submitted 180 days before permit expiration. Under limited circumstances, EPA must withdraw delegated national pollutant discharge elimination system (NPDES) permitting authority.

Few commentators doubt the value of clean, unadulterated waters teeming with varied and colorful aquatic life. The debate centers instead on more pragmatic concerns, that is, how to best accomplish the accepted imperative. Some maintain that the primary responsibility should fall on the federal government because of its insularity from regional economic and political pressures. Others suggest that states should take the lead because of their familiarity with and ability to respond to local environmental concerns. Both sides have valid points. The fundamental question, however, is not whether the states or Washington is better positioned to protect the environment, but which part of the federalist structure has authority to regulate in this area.

This inquiry is necessary because our republic rests upon purposeful divisions of power. "Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front." For that reason, the federal government was granted a limited number of specific powers and the balance left to the states.