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Full-Text Articles in Law
Section 404 At Thirty-Something: A Program In Search Of A Policy, Alyson C. Flournoy
Section 404 At Thirty-Something: A Program In Search Of A Policy, Alyson C. Flournoy
Alyson Flournoy
This article focuses on three controversies that have dominated debate over wetlands -- jurisdiction, delineation, and the scope of activities regulated by section 404 -- and shows how the limitations inherent in section 404 have contributed to endless conflict over these issues, with little long-term benefit to policy development. This article examines why wetlands policy has failed to mature in its first thirty years.
On Integrity: Some Considerations For Water Law, Christine A. Klein
On Integrity: Some Considerations For Water Law, Christine A. Klein
Christine A. Klein
Expanding upon the aspects of integrity protected under the Clean Water Act, this Article will explore the relevance to water law of chemical,physical, ecosystem, social, and ethical integrity. Just as the Clean Water Act intended to prevent unacceptable "perturbations" of ecosystems, so also this Article will consider the extent to which the law itself may work an unacceptable perturbation of fundamental hydrologic and social principles. In many instances, water policy compartmentalizes the law in ways that have little to do with hydrologic reality and in ways that are antithetical to wholeness and integrity. Examples include the legal bifurcation of surface …
Compartmentalized Thinking And The Clean Water Act, Christine A. Klein
Compartmentalized Thinking And The Clean Water Act, Christine A. Klein
Christine A. Klein
Modern water pollution control traces back to the Federal Water Pollution Control Act of 1972 (Clean Water Act or CWA). Like other statutes of its period, the CWA addresses pollution of a single medium, water. Despite its goal of achieving aquatic integrity, the CWA succumbs to what this article refers to as “compartmentalized thinking.” That is, in drafting the CWA, Congress created a series of regulatory boxes that separate water into constituent parts recognized by law, but not by nature. Undertaking a deeper examination of the fragmentation instinct, this article turns to political theory and cognitive psychology for explanations. In …
A Difference Of Significance: How The Supreme Court Clouded Wetlands Jurisdiction., Michael Hasty
A Difference Of Significance: How The Supreme Court Clouded Wetlands Jurisdiction., Michael Hasty
Michael D. Hasty
Recent opinions by the Supreme Court have disrupted the scheme envisioned by Congress to regulate wetlands (see § 404 of the Clean Water Act). This article explores this issue by tracing the development of wetlands law. It then assesses current application of the Court’s tests, through the lens of two recent opinions in the Fourth and Sixth Circuits. The paper then summarizes outcomes in the circuits, with emphasis on their lack of uniformity in application. Further, the paper assesses the agencies response to clarify wetland jurisdiction through rulemaking. Finally, the underlying constitutional issues in the Court’s opinions are explored.