Law Commons^™

Vol. 7 No. 2, Spring 2016; Muddy Waters: Why Polluted Groundwater Infiltrating Navigable Waters Should Not Be Excluded From National Pollutant Discharge Elimination System Permitting, Tad Juilfs

Northern Illinois Law Review Supplement

The debate over whether the Clean Water Act has jurisdiction over migratory groundwater in the same way that it does over navigable waters of the United States (regarding effluent standards) has left a wide split among courts attempting to interpret and apply the policy, goals, and language of the law. The problem lies in the difference between applying the law given its objectives and goals, or in a strict fashion using simply the language in the text of the Clean Water Act, while supplementing support from legislative and case law history. First in this Note, background information is provided regarding …

Nationwide Permit 13, Shoreline Armoring, And The Important Role Of The U.S. Army Corps Of Engineers In Coastal Climate Change Adaptation, Travis Brandon

Law Faculty Scholarship

The ongoing armoring of the nation’s coastlines with seawalls and bulkheads causes the inevitable destruction of miles of coastal wetlands. Armoring increases the rate of shoreline erosion and blocks the long term migration of wetlands inland, a process that will be necessary for coastal wetlands to survive sea level rise. Coastal armoring also reduces the habitat available to coastal species, and blocks access to the upper reaches of the beach for sea turtles and other species that depend on the beach for nesting. And yet, despite these well established and significant environmental harms, the United States Army Corps of Engineers …

Federalism, Regulatory Architecture, And The Clean Water Rule: Seeking Consensus On The Waters Of The United States, Erin Ryan

Scholarly Publications

This article reviews the troubled history of the “Waters of the United States” Rule of the Clean Water Act, and analyzes how its newest incarnation harnesses a surprising point of convergence between the conflicting Supreme Court interpretations in Rapanos v. United States that necessitated its development. While debate over the federalism implications of the Rule rages on, the framework it creates from the multiple Rapanos opinions suggests that the path forward hinges less on the substantive rule of jurisdiction and more on the regulatory architecture of presumptions, default rules, and burden shifting. Splitting the difference between competing judicial approaches, the …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In 2015, the United States Court of Appeals for the Eleventh Circuit decided novel issues in two cases under the Clean Water Act (CWA). In Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Engineers, the court held remand of a Corps of Engineers permitting decision for reconsideration without also vacating the permit is a remedy within the court's discretion and was appropriate under the circumstances. In Riverkeeper v. U.S. Environmental Protection Agency, the court held appellate review of a non-final response by the Environmental Protection Agency (EPA) to a petition to withdraw Alabama's authority to administer the National Pollution …

Plain Meaning, Precedent, And Metaphysics: Lessons In Statutory Interpretation From Analyzing The Elements Of The Clean Water Act Offense, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This Article, the fifth in a series of five, completes the author’s detailed analysis of how federal courts have interpreted each element of the Clean Water Act (CWA) offense. Compiling statistics across the four prior articles, it draws conclusions about statutory interpretation in general, finding that the depth of legal analysis increases with the level of court; that environmentally positive results decrease with the level of court; that courts use only a small number of canons and other interpretive devices; that their uses of interpretive devices change over time; and that interpretive devices are not all outcome-neutral. The author also …

Drinking Water Protection And Agricultural Exceptionalism, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

Providing safe drinking water is a basic responsibility of government. In the United States, local water utilities shoulder much of this burden, but federal drinking water law sets these utilities up to fail. The primary problem arises in the context of nonpoint source pollution, where federal drinking water law favors end-of-line clean up by water utilities over pollution prevention by farmers and other nonpoint source polluters. This system is both inefficient and unfair.

Although the Safe Drinking Water Act requires local utilities to provide safe water, it gives them few tools to engage in water pollution prevention and instead emphasizes …