Water Law Commons^™

Sackett V. U.S. Environmental Protection Agency: "Waters Of The United States" Defined By 0.63 Acres, Brian Gillis

Golden Gate University Law Review

This case note analyzes Sackett v. U.S. Env’t Prot. Agency, 8 F.4th 1075, 1080 (9th Cir. 2021), a case wherein the U.S. Court of Appeals for the Ninth Circuit set forth the proper test for determining whether wetlands are “waters of the United States” within the meaning of the Clean Water Act (33 U.S.C. §1251 et seq. (1972)). In 2007, the Sacketts had purchased a 0.63 acre lot in Idaho, obtained building permits, and began constructing a house, which resulted in the deposit of sand and gravel in areas of standing water on the property. Soon thereafter, the Environmental …

Water Quality: Successes, Shortcomings, And The Future, Jaley F. Adkins

The Cardinal Edge

No abstract provided.

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array …

A Unified Theory Of Clean Water Act Jurisdiction, Robert W. Adler

Utah Law Faculty Scholarship

As it reaches its half century mark, the modern version of the federal Clean Water Act (CWA) remains a definitional quagmire. The U.S. Supreme Court, lower courts, and the two federal agencies charged with implementing the law have struggled to interpret its scope ever since its 1972 enactment. As a result, we still lack clarity regarding the most basic questions about the law’s reach. That causes massive uncertainty for regulated businesses and landowners, the federal and state agencies that implement the law, and members of the public Congress intended to protect. A unified interpretive approach focuses on the statutory text …

A Clean Water Act, If You Can Keep It, Sean G. Herman

Golden Gate University Environmental Law Journal

The Clean Water Act has traveled a successful but tortuous path. From combustible beginnings on the Cuyahoga River; through the Lake St. Clair wetlands; to reservoirs near the Miccosukee; and eventually discharged (or “functionally” discharged) off the Maui coast. With each bend, the nearly fifty-year-old Act has proven to be not just resilient, but among our most successful environmental laws. Much of that success stems from an effective enforcement structure that focuses more on treating pollutant sources rather than just impaired waters. The text creating that structure has largely remained untouched by Congress for decades.

This article begins by posing …

Safeguarding Water Quality In Federal Licensing Decisions: California’S Response To Recent Constraints On Clean Water Act Section 401 Certification Authority, Kristin Peer, Stacy Gillespie

Golden Gate University Environmental Law Journal

Pursuant to Clean Water Act section 401, state water quality certification authority to regulate federally-licensed energy projects has been relatively well settled for decades. Long-standing precedents from the U.S. Supreme Court, other federal courts, the U.S. Environmental Protection Agency (“U.S. EPA”), and implementation of certification authority by the states, have repeatedly reinforced the cooperative federalism principle of the Clean Water Act: state section 401 certification authority is essential to preserve the states’ ability to address a wide range of pollution problems caused by federally-permitted energy facilities. In recent years, however, state section 401 certification authority has come under siege in …

Preview— Montana And Wyoming V. Washington: The Commerce Clause And The Clean Water Act Collide Over Coal Exports, Rachel L. Wagner

Public Land & Resources Law Review

The Supreme Court of the United States has not scheduled oral arguments for this matter. In October 2020, the Court asked for the federal government’s views on the case but has not yet decided whether it will exercise its jurisdiction over the challenge.

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 …

Salmon And The Clean Water Act: An Unfinished Agenda, Michael Blumm, Michael Benjamin Smith

Faculty Articles

Salmon are perhaps the quintessential indicator species for water quality, as they require both sufficient quality and quantity to migrate and spawn. Columbia Basin salmon have been listed under the Endangered Species Act (ESA) for over a quarter-century in large part due to inadequate water flows and poor water quality. A half-century ago, long before the listings, the modern Clean Water Act promised fishable waters. This article explains that this is a promise largely unkept due to implementing agencies’ evasion and disinterest. Recent litigation, however, offers some hope that the statute may yet provide a viable path towards protecting and …

The Hallmarks Of A Good Test: A Proposal For Applying The "Functional Equivalent" Rule From County Of Maui V. Hawaii Wildlife Fund, Damien M. Schiff, Glenn E. Roper

Pace Environmental Law Review

The Clean Water Act generally requires a federal permit for the discharge of pollutants “from any point source” to navigable waters. It is undisputed that permits are required for discharges of pollutants from point sources that proceed “directly” to regulated waters. But there is much disagreement over the extent to which indirect point-source discharges are regulated. In an attempt to clarify, the United States Supreme Court in County of Maui v. Hawaii Wildlife Fund ruled that permits are required not just for direct point-source discharges, but also for any point-source discharge that is the “functional equivalent” of a direct point-source …

County Of Maui, Hawaii V. Hawaii Wildlife Fund, Rachel L. Wagner

Public Land & Resources Law Review

The Supreme Court of the United States was recently asked to decide whether the Clean Water Act requires a permit for the discharge of pollutants that originate from a point source but are conveyed to navigable waters by a nonpoint source. Vacating the Ninth Circuit’s “fairly traceable” test, the Court held the Clean Water Act requires a permit when there is a direct discharge of pollutants from a point source into navigable waters or when there is the “functional equivalent of a direct discharge.”

National Wildlife Federation V. Secretary Of The United States Department Of Transportation, Holly A. Seymour

Public Land & Resources Law Review

The Sixth Circuit Court of Appeals recently ruled in favor of the Department of Transportation in considering whether the district court erred in holding that an agency took a discretionary action when it approved oil spill response plans to a pipeline under the Clean Water Act. The Sixth Circuit reversed the district court’s decision. It held the Department of Transportation does not need to consider the Endangered Species Act and the National Environmental Policy Act requirements in their response plans as long as the Clean Water Act criteria for such plans are met.

California Should Lead The Nation In Controlling Agricultural Pollution, Helen H. Kang, Deborah Sivas

Publications

Agricultural runoff is one of the largest sources of pollution in the nation’s waterways. In recent years, scientific journals and the media have been filled with reports of toxic algae blooms and dead zones near and far: The Everglades, Great Lakes, Gulf of Mexico, Chesapeake Bay, and San Francisco Bay-Delta. Agricultural pollution also threatens public health in communities that rely on tainted groundwater. In California alone, more than a quarter million residents in largely agricultural areas are served by water systems with degraded groundwater quality.

Using Citizen Suits To Remedy Environmental Injustice And Achieve Clean Water In California, Paul Kneitz

Poverty Law Conference & Symposium

Nearly fifty years since the passage of the Clean Water Act (“CWA”) in 1972, widespread pollution of California’s surface and groundwater continues across the state. “Over half of California’s lakes, bays, wetlands, and estuaries are too polluted to swim, drink, or fish,” according to the State Water Resources Control Board. Poor and working-class communities suffer disproportionately from the negative externalities and environmental impacts of water pollution, including effects on human health and wellness.

With a focus on the CWA citizen suit provision, this paper examines how the legal and administrative processes for water pollution control have not effectively addressed the …

Montana Environmental Information Center V. Department Of Environmental Quality, Anthony P. Reed

Public Land & Resources Law Review

The DEQ renewed a 1999 MPDES Permit on September 14, 2012 that allowed Western Energy Company to discharge pollutants from the Rosebud Mine into streams. Environmental groups MEIC and the Sierra Club sued, arguing this violated both the Montana Water Quality Act and federal Clean Water Act because the DEQ’s interpretation of its own regulations that exempted waters with ephemeral characteristics from water quality standards was arbitrary and capricious. The district court agreed, but the Montana Supreme Court reversed. It held the DEQ’s interpretation was lawful and remanded for further fact finding to assess how the DEQ applied the interpretation …

Transboundary Waters, Annie Brett

UF Law Faculty Publications

In 2018, toxic algae spread from Lake Okeechobee through the State of Florida, leading to a state of emergency and costing the state over $17 million. Similar toxic algal blooms have become an annual occurrence throughout the country and highlighted the pervasive issues with the US. water supply. Inadequate and incomplete monitoring data means that state and federal managers, as well as the public, know shockingly little about water quality in most of the waters in the United States despite the fact that the Clean Water Act requires extensive water quality monitoring and assessment. Academics have widely discussed failings of …

Preview—County Of Maui, Hawaii V. Hawaii Wildlife Fund: Clean Water Act Regulation Of Point Source Pollution Conveyed Through Groundwater, Connlan W. Whyte

Public Land & Resources Law Review

The Supreme Court of the United States will hear oral arguments in this matter on Wednesday, November 6, 2019, at 10:00 a.m. at the Supreme Court Building in Washington, D.C. Elbert Lin will likely appear for the Petitioner. David Lane Henkin will likely appear for the Respondents. Solicitor General, Noel J. Francisco, will argue on behalf of the United States.

Water, Water, Anywhere?: Protecting Water Quantity In State Water Quality Standards, Julie F. Youngman

Indiana Law Journal

Although much of the earth’s surface is covered with water, less than one percent of water is available for human use. Water is becoming progressively scarcer worldwide, as demand increases and pollution, drought, and climate change jeopardize access to clean water. The United States is no exception to that trend. Effective regulation of water supplies can blunt the impacts of water scarcity. This Article suggests that states can—and should—regulate instream flows and lake levels in their federally-mandated water quality standards, with an eye toward conserving scarce water resources. Regulating water quantity as an element of water quality is not only …

Bounding Forward, Robert L. Fischman

Articles by Maurer Faculty

In the race to save the planet from climate change, resilience has been misconstrued as sustaining historic conditions. But some of them are undesirable and others no longer feasible. Adaptive governance can promote transformation to help communities frustrated with current conditions.

When Industry Knocks: Ohio Department Of Agriculture's Fight To Control Pollution Permits For Concentrated Animal Feeding Operations, Alexis Woodworth

Cleveland State Law Review

The Clean Water Act requires that a permit be obtained before discharging pollutants into bodies of water in the United States. In Ohio, these permits are issued by the Ohio Environmental Protection Agency. But in 2002, after growing pressure from agriculture lobbyists, the Ohio Legislature passed legislation to transfer permitting authority over industrial farms to the Ohio Department of Agriculture. To date, this transfer has not been approved by the United States Environmental Protection Agency (EPA). The U.S. EPA has demanded legislative and regulatory changes before it will grant the Ohio Department of Agriculture (ODA) permitting authority. Concerned citizens and …

Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V

Public Land & Resources Law Review

The Fourth Circuit Court of Appeals recently ruled in favor of several governmental agencies seeking to construct a new bridge in the Pamlico Sound adjacent to North Carolina’s Outer Banks. For years, state and federal agencies have put forth a massive coordinated effort to address the constant weather damage and erosion which occurs to a section of North Carolina Highway 12. The court found the agencies properly cleared NEPA’s environmental review requirements for the bridge’s construction. Additionally, the opponent-litigants’ efforts to add claims challenging the project, based on new information about a shipwreck in the bridge’s path, were futile.

Sierra Club V. Virginia Electric & Power Company, Thomas C. Mooney-Myers

Public Land & Resources Law Review

The Sierra Club alleged Dominion violated the Clean Water Act by allowing arsenic to leak from coal ash storage pits into state waters. The Fourth Circuit Court of Appeals found for the polluter, using a narrow definition of point source. Additionally, the Fourth Circuit deferred to agency interpretation of the polluter’s permit to find no violation occurred.

Florida's Impaired Waters Rule: Is There A "Method" To The Madness?, Cynthia D. Norgart

Florida State University Journal of Land Use and Environmental Law

No abstract provided.

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Hawai'i Wildlife Fund V. County Of Maui, Lowell J. Chandler

Public Land & Resources Law Review

In Hawai’i Wildlife Fund v. County of Maui, the Ninth Circuit held that the plain language of the Clean Water Act provides jurisdiction over indirect discharges of pollutants from a point source into groundwater that is shown to be connected to navigable waters. The court found that studies confirmed pollutants entering the Pacific Ocean were fairly traceable to the County of Maui’s sewage disposal wells. In affirming the district court’s ruling, the Ninth Circuit held that Maui County violated the Clean Water Act by discharging pollutants into a navigable water without the required permit. The court also concluded the …

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

Catskill Mountains Chapter Of Trout Unlimited, Inc. V. United States Environmental Protection Agency, Benjamin W. Almy

Public Land & Resources Law Review

Trout Unlimited’s effort to overturn the EPA’s Water Transfers Rule was stifled by the Second Circuit. The court’s comprehensive Chevron analysis determined that while the NPDES Water Transfers Rule may be at odds with the Clean Water Act’s mission, it was based on a reasonable interpretation of the statute’s ambiguous language, and therefore it did not violate the Administrative Procedures Act.

Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno

Public Land & Resources Law Review

A peat mining company will not be required to obtain a permit under the Clean Water Act to discharge dredged and fill material into wetlands. The United States District Court for the District of Minnesota held that the United States Army Corps of Engineers fell short in its attempts to establish jurisdiction over the wetlands by twice failing to show a significant nexus existed between the wetlands and navigable waters. Further, the district court enjoined the Corps from asserting jurisdiction a third time because it would force the mining company through a “never ending loop” of administrative law.

United States Army Corps Of Engineers V. Hawkes Co., Jonah Brown

Public Land & Resources Law Review

When landowners seek to determine if a permit is required from the Army Corps of Engineers to discharge dredged or fill material into waters within their property boundaries, they may first obtain a jurisdictional determination specifying whether “waters of the United States” are present. In an 8-0 judgment, Army Corps of Engineers v. Hawkes was a victory for landowners, concluding that an approved jurisdictional determination is a final agency action reviewable under the Administrative Procedure Act.

Water, Growth And The Endangered Species Act, Holly Doremus

Holly Doremus

24 pages.