Environmental Law Commons^™

Putting The Public Back In The Public Trust Doctrine: A Reinterpretation To Advance Native Hawaiian Water Rights, Steven Hindman

Washington Law Review

The public trust doctrine guarantees that the government will hold natural resources in trust and protect them for the common good. The doctrine has played a key role in the allocation of water rights, particularly for Native American and Native Hawaiian interests in the United States. State and federal courts often consider the doctrine when deciding if certain use rights should be granted. In Hawai‘i, the doctrine has taken on a particularly robust form because the State Constitution expressly provides that all public natural resources are to be held in trust for the benefit of all Hawaiians. Unfortunately, the doctrine’s …

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

Water Banks In Washington State: A Tool For Climate Resilience, Jennifer J. Seely

Washington Law Review

Water banks—a tool for exchanging senior water rights and offsetting new ones—can address multiple problems in contemporary water law. In the era of climate change, water banks enable needed flexibility and resilience in water allocation. As growing cities require new water rights, water banks can repurpose old water for new uses. These advantages should lead the Washington State Legislature to incentivize water banks, but in the 2018 “Hirst fix” it embraced habitat restoration as a false equivalent for water. The Legislature is rightfully concerned about the speculation that some private water banks allow. But overall, water banks enable new and …

Treading Water: How Citizens, States, And The Environmental Protection Agency Can Restore Proper Criminal Enforcement Of The Clean Water Act's National Pollutant Discharge Elimination System, Marley Kimelman

Washington Journal of Environmental Law & Policy

Upon the passage of the Clean Water Act (“CWA”) in 1972, primary responsibility for protecting the United States' water quality and preventing water pollution shifted from the states to the Environmental Protection Agency (“EPA”). The program at the heart of the Clean Water Act, the National Pollutant Discharge Elimination System (“NPDES”), requires anyone who discharges pollutants into the waters of the United States to abide by the terms of a permit issued under the program. If a discharge occurs in violation of the permit or without a permit, and prosecutors are able to prove the responsible party acted with ordinary …

From Loon Lake To Chuckanut Creek: The Rise And Fall Of Environmental Values In Washington's Water Resources Act, Rachael Paschal Osborn

Washington Journal of Environmental Law & Policy

The year 2021 marks the 50th anniversary of the Water Resources Act of 1971, Washington’s program to protect instream flows in state rivers. Implementation has been controversial and, even a half century later, incomplete. Part 1 introduces the Act. Part 2 examines its legislative history, and administrative development by the Department of Ecology. The Act innovated water allocation, putting instream flows and public uses of rivers on par with out-of-stream water rights. But river protection labors under serious limitations, chief among them the subordination of instream flows to pre-existing water rights. And, although only half of Washington’s watersheds are protected …

Indigenous Rights To Water & Environmental Protection, Robert T. Anderson

Articles

This article examines the rights of Indian nations in the United States to adequate water supplies and environmental protection for their land and associated resources. Part I of this article provides a brief background on the history of federal-tribal relations and the source and scope of federal obligations to protect tribal resources. Part II reviews the source and nature of the federal government’s moral and legal obligations to Indian tribes, which are generally referred to as the trust responsibility. Indian reserved water rights and the difficulty tribes experience in protecting habitat needed for healthy treaty resources is discussed in Part …

Using The Clean Water Act To Tackle Ocean Acidification: When Carbon Dioxide Pollutes The Oceans, Miyoko Sakashita

Washington Journal of Environmental Law & Policy

Carbon dioxide is an invisible pollutant that threatens water quality and entire marine ecosystems. The oceans absorb carbon pollution from the atmosphere, which reacts with seawater causing it to become more acidic. Ocean acidification impairs the growth, survival and reproduction of marine animals, and if unabated will massively disrupt entire ecosystems. One of the most powerful tools that we have to combat ocean acidification is the Clean Water Act—a law that has successfully solved difficult water pollution problems for decades. This article will discuss how the Clean Water Act can be leveraged to address ocean acidification and to protect our …

Dealing With Ocean Acidification: The Problem, The Clean Water Act, And State And Regional Approaches, Robin Kundis Craig

Washington Journal of Environmental Law & Policy

Ocean acidification is often referred to as climate change’s “evil twin.” As the global ocean continually absorbs much of the anthropogenic carbon dioxide produced through the burning of fossil fuels, its pH is dropping, causing a plethora of chemical, biological, and ecological impacts. These impacts immediately threaten local and regional fisheries and marine aquaculture; over the long term, they pose the risk of a global mass extinction event. As with climate change itself, the ultimate solution to ocean acidification is a worldwide reduction in carbon dioxide emissions. In the interim, however, environmental groups such as the Center for Biological Diversity …

Dealing With Ocean Acidification: The Problem, The Clean Water Act, And State And Regional Approaches, Robin Kundis Craig

Washington Law Review

Ocean acidification is often referred to as climate change’s “evil twin.” As the global ocean continually absorbs much of the anthropogenic carbon dioxide produced through the burning of fossil fuels, its pH is dropping, causing a plethora of chemical, biological, and ecological impacts. These impacts immediately threaten local and regional fisheries and marine aquaculture; over the long term, they pose the risk of a global mass extinction event. As with climate change itself, the ultimate solution to ocean acidification is a worldwide reduction in carbon dioxide emissions. In the interim, however, environmental groups such as the Center for Biological Diversity …

The Decline And (Possible) Renewal Of Aspiration In The Clean Water Act, Robert W. Adler

Washington Law Review

In the approximately four decades since Congress adopted sweeping amendments to the Federal Water Pollution Control Act—creating what is commonly known as the Clean Water Act (CWA)—the United States has made significant progress in reducing many kinds of water pollution. It is clear, however, that the United States has not attained the most ambitious of the statutory goals and objectives, including the overarching objective to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.”1 Indeed, although discrete water quality improvements continue in some places and for some forms of pollution, on a national scale progress toward …

All Carrot And No Stick: Why Washington's Clean Water Act Assurances Violate State And Federal Water Quality Laws, Oliver Stiefel

Washington Law Review

Current Washington State rules governing timber activities—including logging, road construction, and timber processing—were achieved through negotiated compromise. In response to growing concern over the decline of several salmonid species, stakeholders from government agencies, environmental groups, and the timber industry negotiated a plan for regulating timber activities to better meet the needs of aquatic species, while maintaining a robust and sustainable timber industry. The rivers and streams flowing through Washington’s forests provide habitat for numerous aquatic species, including several species of anadromous salmonids. Timber activities, however, pose a threat to healthy habitat. In the 1990s, degraded forest habitat in Washington necessitated …

Murky Waters: Courts Should Hold That The "Any-Progress-Is-Sufficient-Progress" Approach To Tmdl Development Under Section 303(D) Of The Clean Water Act Is Arbitrary And Capricious, Kelly Seaburg

Washington Law Review

Congress enacted the 1972 Amendments to the Clean Water Act (CWA) to combat water pollution stemming from both discrete and diffuse sources. Section 303(d) of the CWA reduces both types of pollution by requiring each state to promulgate "total maximum daily loads" (TMDLs) of pollutants for all waters that are unable to meet water quality standards. A TMDL is the maximum amount of a pollutant that can be discharged from all combined sources into a given body of water if that water is going to comply with water quality standards. Although section 303(d) required states to promulgate TMDLs by 1979, …

Treatment As Tribe, Treatment As State: The Penobscot Indians And The Clean Water Act, William H. Rodgers, Jr.

Articles

No abstract provided.

All Together Now: Legal Responses To The Introduction Of Aquatic Nuisance Species In Washington Through Ballast Water, Jason R. Hamilton

Washington Law Review

Aquatic nuisance species (ANS) are a substantial threat to the global environment, causing harm to ecosystems and costing U.S. industry billions of dollars per year. To combat ANS, legal regimes are being established on the international, federal, and state levels. In some western states, advocates have proposed legislation that is more stringent than the international and federal legal regimes' voluntary ballast-water-exchange regulations. This Comment argues that Washington and the United States should remain in conformity with the international legal regime and should not enact regulations calling for mandatory ballast water-exchange at this time. Instead, the U.S. Coast Guard should strengthen …

Ferc's Dam Decommissioning Authority Under The Federal Power Act, Beth C. Bryant

Washington Law Review

The Federal Energy Regulatory Commission (FERC) asserted in a 1994 Policy Statement that it has the authority under the Federal Power Act to deny a new license for a hydroelectric dam or impose environmental conditions on a new license that may render a project unprofitable, when doing so is in the public interest. In addition, FERC stated that it would impose decommissioning costs on the dam owner. The hydroelectric industry claims that FERC lacks the authority to take these actions, and that if maintaining a dam is no longer in the public interest, either the federal government or another party …

The Rhetoric And Reality Of Water Quality Protection In China, W. Scott Railton

Washington International Law Journal

With the majority of its freshwater sources polluted, and the pursuant incurrence of significant economic losses, and substantial health risks, China has reached a critical stage in its water resource management. Past efforts to legislate for water quality protection, although promising in content, have been less than effective. Four modes of enforcement—administrative controls, economic incentives, legal responsibility, and campaigns—have achieved only moderate success. This Comment examines the statutory and regulatory framework for water pollution control in China and suggests that if China's water pollution controls are ever to be more than mere rhetoric, China must focus on eliminating conflicts of …

Tribal Water Quality Standards Under The Clean Water Act: Protecting Traditional Cultural Uses, William C. Galloway

Washington Law Review

Since 1987, the Clean Water Act has allowed Indian tribes to be treated as states for various purposes under the Act. Among the regulatory powers of states under the Clean Water Act is the ability to set water quality standards, subject to approval by the Environmental Protection Agency (EPA). Upstream pollution dischargers must comply with a downstream state's water quality standards once it is established that an upstream discharge demonstrably impacts downstream water quality. The power to set water quality standards represents a new and potentially powerful tool to protect traditional uses and enhance reservation environments, but only if tribes …

Protecting Puget Sound: An Experiment In Regional Governance, Katherine Fletcher

Washington Law Review

The 1985 Puget Sound Water Quality Act set in motion an ambitious experiment in regional problem-solving: a comprehensive and coordinated approach to protecting Puget Sound from pollution and degradation. This Article summarizes the challenges of regional governance, reviews the background and implementation of the 1985 Act, and discusses some of the controversies and challenges associated with the effort to protect Puget Sound. Dedication: This Article is dedicated to my father, who raised me with a sense of place.

The Clean Water Act: When Dumping Dead Fish Is Not The Discharge Of A Pollutant—National Wildlife Federation V. Consumers Power Co., 862 F.2d 580 (6th Cir. 1988), Cheri Y. Cornell

Washington Law Review

The Clean Water Act defines "discharge of a pollutant" as "any addition of any pollutant to navigable waters from a point source." This Note examines National Wildlife Federation v. Consumers Power Co., in which the court held that an addition occurs only when a pollutant is introduced into water from the outside world. The Note argues that legislative history and the structure of the Clean Water Act demand an interpretation of "addition" which includes causing a pollutant to appear in water.

Pollution Control By Effluent Charges: It Works In The Federal Republic Of Germany, Why Not In The U.S., Gardner M. Brown Jr., Ralph W. Johnson

Articles

This article describes the recent Federal Republic of Germany effluent charge law and the political and legal background that permitted this law to be enacted. The impact of that law is assessed, although the assessment is necessarily tentative in view of the short experience with the law to date. The economic and legal implications of enacting an effluent charge law in the United States also are analyzed. Included in this discussion are the advantages and disadvantages of state vs. federal enactment, the constitutional objections that might be raised to such a law, and how it might be coordinated with existing …

Federalism And The Wild And Scenic Rivers Act: Now You See It, Now You Don't, Sally K. Fairfax, Barbara T. Andrews, Andrew P. Buchsbaum

Washington Law Review

This article investigates the proposed designation of the North Coast rivers under WSRA. It chronicles developments in the legal controversy and relates them to the larger issues of land and water management. The shifting legal framework and changing economic and political interests in the North Coast controversy are particularly enlightening to students of federalism. Lawyers are among those who may be tempted to view the North Coast controversy in terms of federal-state conflict or intergovernmental cooperation run amuck, and to view the courts as an umpire in a dispute over authority.

The Washington Shoreline Management Act Of 1971, Geoffrey Crooks

Washington Law Review

With approval of the Shoreline Management Act of 1971 (SMA), Washington has joined the increasing ranks of states which are attempting to influence legislatively the course of development of their coastal resources. The Washington Act, unusually broad in scope, concerns not merely "coastal" areas but also shorelines of bodies of water of virtually every description, including lakes and streams so small or so obscure as to be nameless. This article, after briefly describing the circumstances of the SMA's enactment and the prior law, examines and evaluates (to the extent possible based on two years of operation) the resource management program …