Law Commons^™

Sackett V. Environmental Protection Agency, Meridian Wappett

Public Land & Resources Law Review

In 2007, the Sacketts began developing a property a few hundred feet from Priest Lake in Northern Idaho by filling their lot with gravel. The EPA determined the lot constituted a federally protected wetland under the WOTUS definition because the lot was near a ditch that fed into a creek flowing into Priest Lake, a navigable intrastate lake. The EPA halted the construction. The Sacketts sued the EPA, arguing the CWA did not apply to their property. The Supreme Court held that the CWA did not apply to the Sacketts property because the CWA only covers wetlands and streams that …

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 …

Harmonizing ‘Converted Wetland’ Under The Clean Water Act And Food Security Act Would Reaffirm Congress’S Intent To Limit Epa And Army Corps 404 Jurisdiction, Lawrence A. Kogan

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Avoiding Maladaptations To Flooding And Erosion: A Case Study Of Alaska Native Villages, Elizaveta Barrett Ristroph

Ocean and Coastal Law Journal

This article offers perspective on how Alaska Native Villages (ANVs), which are small and rural indigenous communities, are adapting to changes in flooding and erosion. It considers which adaptations might be maladaptations and what might be done to facilitate adaptation short of relocating entire communities. It outlines the United States' legal framework applicable to flooding and erosion and considers why this framework may do little to assist ANVs and similarly situated small and rural communities. Findings regarding adaptation strategies and obstacles are drawn from my Ph.D. research, which involved a review of plans for fifty nine ANVs and 153 interviews …

Swamp Money: The Opportunity And Uncertainty Of Investing In Wetland Mitigation Banking, Elan L. Spanjer

Northwestern University Law Review

In recent years, the wetland mitigation banking program has emerged as a favored mechanism for protecting the nation’s aquatic resources while allowing for economically beneficial development projects to proceed. Mitigation banks generate wetland credits, which in turn can be sold at a profit to developers who need them to offset wetland impacts. The number of mitigation banks has grown significantly in recent years, and the market has seen an influx of institutional investment. However, investors face significant risks and uncertainty, and many prospective investors lack access to information about wetland credit prices—which are neither reported to the regulatory authorities nor …

Survey Says: Army Corps No Scalian Despot, Kim Diana Connolly

Kim Diana Connolly

Justice Antonin Scalia and others have described the U.S. Army Corps of Engineers ('the Corps') administration of the permitting process as burdensome and inefficient. Empirical data gathered from the Corps, however, do not bear out this assessment. In this Article, Kim Diana Connolly evaluates data collected from Corps Customer Service Surveys as well as the apparent disconnect between applicant experiences and the public's negative perception of the permitting process. She begins the Article with an overview of the Corps' regulatory permitting process, then lays out the history of and context for the Corps' Customer Service Surveys. Next, she summarizes available …

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.

Slides: Flpma In Its Historical Context, John D. Leshy

FLPMA Turns 40 (October 21)

Presenter: John D. Leshy, Sunderland Distinguished Professor of Law Emeritus, U.C. Hastings College of the Law

36 slides

This session traces the history of FLPMA including, among other things, its legislative, administrative, and historical antecedents, including for example, the Public Land Law Review Commission’s 1970 report, One Third of Our Nation’s Lands. It then considers FLPMA’s unique public lands policies and requirements and how they are reflected in the BLM’s management of public lands today.

See: https://www.nps.gov/parkhistory/online_books/blm/history/contents.htm

A Muddy Decision - The High Court Fails To Define The Corps' Wetland Jurisdiction In Rapanos V. United States, Jill Lambird

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Slides: Master Development Plans (Mdps) / Geographic Area Plans (Gaps): Comprehensive Planning Tools For Oil And Gas Projects, Allen B. Crockett

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Mary Bloomstran, Edge Environmental

20 slides

Slides: Rifle, Silt, New Castle Community Development Plan: A Collaborative Planning Approach To Natural Gas Development, Peggy Utesch

Best Practices for Community and Environmental Protection (October 14)

Presenter: Peggy Utesch, Movin' Forward Consulting

25 slides

Slides: Rapanos And The Courts: Navigating Through The Fog, Jim Murphy

Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)

Presenter: Jim Murphy, Wetlands and Water Resources Counsel, National Wildlife Federation, VT

25 slides

Sustainable Water Policies In The Rocky Mountain West: An Action Agenda, Sarah Bates

Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)

Presenter: Sarah Bates, Western Progress

10 pages.

Includes bibliographical references

"Review Draft, May 15, 2008"

The Role Of Case Studies In Natural Resources Law [Summary], John Copeland Nagle

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

4 pages.

"John Nagle, Univ. of Notre Dame Law School" -- Agenda

Survey Says: Army Corps No Scalian Despot, Kim Diana Connolly

Journal Articles

Justice Antonin Scalia and others have described the U.S. Army Corps of Engineers ('the Corps') administration of the permitting process as burdensome and inefficient. Empirical data gathered from the Corps, however, do not bear out this assessment. In this Article, Kim Diana Connolly evaluates data collected from Corps Customer Service Surveys as well as the apparent disconnect between applicant experiences and the public's negative perception of the permitting process. She begins the Article with an overview of the Corps' regulatory permitting process, then lays out the history of and context for the Corps' Customer Service Surveys. Next, she summarizes available …

Agenda: Introduction To The Legal Foundation Of Federal Land Management, University Of Colorado Boulder. Natural Resources Law Center

Introduction to the Legal Foundation of Federal Land Management (December 1-3)

Materials prepared for the course held at the National Center for Atmospheric Research in Boulder, Colorado on December 1-3, 2004

Course instructors: Charles Wilkinson; Sarah Krakoff; Kathryn Mutz; Ann Morgan; Maggie Fox

Contents:

Introduction -- Agenda -- Summaries of laws -- Case studies. Travel management; Oil and gas development; Timber/fuels reduction -- How to influence agency decision makers -- Natural resource related legal and policy resources for the non-legal professional

Introduction To The Legal Foundation Of Federal Land Management, University Of Colorado Boulder. Natural Resources Law Center

Introduction to the Legal Foundation of Federal Land Management (December 1-3)

1 v. (various pagings) : ill., maps ; 28 cm

Materials prepared for the course held at the National Center for Atmospheric Research in Boulder, Colorado on December 1-3, 2004

Course instructors: Charles Wilkinson; Sarah Krakoff; Kathryn Mutz; Ann Morgan; Maggie Fox

Contents:

Introduction -- Agenda -- Summaries of laws -- Case studies. Travel management; Oil and gas development; Timber/fuels reduction -- How to influence agency decision makers -- Natural resource related legal and policy resources for the non-legal professional

Toward Normative Rules For Agency Interpretation: Defining Jurisdiction Under The Clean Water Act, Robert R.M. Verchick

Robert R.M. Verchick

Wetlands advocates, from environmentalists to duck hunters, dodged a bullet last year when the Bush Administration dropped plans to narrow its jurisdiction over streams and wetlands. The decision marked a key chapter in a story that began in 2001, when the Supreme Court invalidated part of the Migratory Bird Rule, a regulation that for many years had supported federal protection over some intrastate wetlands. The Court's broad rejection of this narrow rule sent federal jurisdiction under the Clean Water Act into a tailspin. The decision opened debates about tributaries and intermittent streams in the Southwest. It also appeared to narrow …

Damming The West: Development Of Western Water Resources, Gilbert F. White

Dams: Water and Power in the New West (Summer Conference, June 2-4)

8 pages.

Washington State Initiatives For Sustainable Water Use, Kenneth O. Slattery

Sustainable Use of the West's Water (Summer Conference, June 12-14)

8 pages.

Regulation Of Wetlands In Western Washington Under The Growth Management Act, Alison Moss, Beverlee E. Silva

Seattle University Law Review

Wetlands protection has long been an important issue in the central Puget Sound. With the passage of the Growth Management Act (GMA), all counties and cities within the state are now required to adopt regulations "protecting" critical areas, including wetlands. This requirement furthers the GMA's environmental goal to "[p]rotect the environment and enhance the state's high quality of life, including air and water quality, and the availability of water." This Article will explore these and related issues arising under the wetlands regulatory scheme in Washington following the adoption of the GMA. It will show how this complex, multi-layered regulation scheme …

The Protection Of Wildlife Under Washington's Growth Management Act, Alan D. Copsey

Seattle University Law Review

Will critical areas and resource lands, as implemented under the GMA, effectively contribute to the conservation of wildlife and wildlife habitat in Washington? The remainder of this Article will address that question. First, this Article briefly describes some aspects of biological diversity that must be understood before proceeding further. Second, it sets forth several central principles from modern conservation biology that are essential for maintaining habitat integrity and species viability and considers their applicability to critical areas and resource lands, as defined by the GMA. Third, it explains how these principles could be used to identify and protect habitat remnants …

Loveladies Harbor, Inc. V. United States: Application Of Traditional Regulatory Taking Law To The Regulation Of Wetlands, Judith A. Johnson

Villanova Environmental Law Journal

No abstract provided.

The 1990 Fort Hall Water Rights Agreement: A Study In The Federal Trust Responsibility, Indian Self-Determination, And Water Rights Settlement, John S. Bushman

Innovation in Western Water Law and Management (Summer Conference, June 5-7)

171 pages.

International Environmental Issues [Outline], Zheng-Kang Cheng, Daniel Magraw

New Challenges for Environmental Protection: Second Sino-American Conference on Environmental Law (October 12-13)

2 pages.

Enforcement Issues In Water Pollution Control, Henry W. Ipsen

Water Quality Control: Integrating Beneficial Use and Environmental Protection (Summer Conference, June 1-3)

29 pages.

The Homestake Project & Water Quality Issues, Tad Foster

Water as a Public Resource: Emerging Rights and Obligations (Summer Conference, June 1-3)

5 pages (includes 1 map).