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Full-Text Articles in Law

Can A State’S Water Rights Be Dammed? Environmental Flows And Federal Dams In The Supreme Court, Reed D. Benson May 2019

Can A State’S Water Rights Be Dammed? Environmental Flows And Federal Dams In The Supreme Court, Reed D. Benson

Michigan Journal of Environmental & Administrative Law

Interstate rivers are subject to the doctrine of equitable apportionment, whereby the Supreme Court seeks to ensure that all states that share such rivers get a fair portion of their benefits. The Court has rarely issued an equitable apportionment decree, however, and there is little law on whether the doctrine protects river flows for environmental purposes. The ongoing Florida v. Georgia litigation in the Supreme Court raises this issue, as Florida seeks to limit consumptive uses by upstream Georgia to preserve flows in the Apalachicola River, which provide both economic and environmental benefits. This Article summarizes both the equitable apportionment ...


National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack Mar 2018

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 ...


Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno Apr 2017

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.


Changing Winds And Rising Tides On Beach Renourishment In Florida: Short-Term Alternatives And Long-Term Sustainable Solutions Using Law And Policy From Florida And Nearby States, Lewis Van Alstyne Iii Jan 2016

Changing Winds And Rising Tides On Beach Renourishment In Florida: Short-Term Alternatives And Long-Term Sustainable Solutions Using Law And Policy From Florida And Nearby States, Lewis Van Alstyne Iii

Florida A & M University Law Review

Sandy beaches make up 825 miles of Florida's 1,260 total miles of coastline around the Sunshine State's peninsula. These beaches are changing over time due to the natural erosional forces of wind and water. Coastal engineering attempts to halt natural forces with man-made structures such as buildings, piers, groins, jetties, breakwaters, sea walls, ports, inlets, and in some cases, it creates new sandy beaches and world-class cities where none existed. In an effort to protect the new real estate from the erosion that has always existed, engineers created beach nourishment. This Article focuses on building up beaches ...


The Standing Rock Sioux Indians: An Inconvenience For Black Gold, Alina Yohannan Jan 2016

The Standing Rock Sioux Indians: An Inconvenience For Black Gold, Alina Yohannan

University of Baltimore Journal of Land and Development

The issue of the Native American (“Indian”) tribes’ rights to their lands started with the application of the European doctrine of discovery, continued with series of wars and population decimations, and finished with broken treaties and territorial occupations. After centuries of struggle for land and sovereignty, Indians still fight for their rights to the North American territories.

The lawsuit brought by the Standing Rock Sioux Tribe against the U.S. Army Corps of Engineers (“the Corps”) is the latest and most publicized in recent years. The Tribe’s main concerns are the passing of a major crude-oil pipeline (Dakota Access ...


Panel: Ethical Dilemmas: Finding Common Ground On Controversial Issues, Lesley Blackner, Richard C. Foltz, Brion Blackwelder, Lisa C. Schiavinato, Alyson C. Flournoy Aug 2015

Panel: Ethical Dilemmas: Finding Common Ground On Controversial Issues, Lesley Blackner, Richard C. Foltz, Brion Blackwelder, Lisa C. Schiavinato, Alyson C. Flournoy

Alyson Flournoy

This panel discussion applied ethics to the theme of the 8th Annual Public Interest Environmental Conference. Panelists examined ways ethics may help reconcile industry (such as business and development) with environmentalism.


Reddall V. Bryan And The Role Of State Law In Federal Eminent Domain Jurisprudence, Shannon Frede Jan 2015

Reddall V. Bryan And The Role Of State Law In Federal Eminent Domain Jurisprudence, Shannon Frede

Legal History Publications

Prior to 1875, the standard federal takings procedure had been for state governments to condemn property on behalf of the federal government. As a result, the majority of interpretative work in the early history of eminent domain jurisprudence was undertaken by state courts. In 1853, the Maryland General Assembly granted the United States Government the power to condemn land in Maryland for an aqueduct across the Potomac to supply water to two District cities. In Reddall v. Bryan, the Maryland Court of Appeals upheld the aqueduct supplying the city of Washington with water as a public use. The Court reasoned ...


Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Christine A. Klein, Sandra B. Zellmer Nov 2014

Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Christine A. Klein, Sandra B. Zellmer

Christine A. Klein

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a "manmade" disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This Article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood ...


The Failure And Future Of Lake Okeechobee Water Releases: A Quasi-Governmental Solution, Jacquelyn A. Thomas Oct 2014

The Failure And Future Of Lake Okeechobee Water Releases: A Quasi-Governmental Solution, Jacquelyn A. Thomas

Florida State University Law Review

No abstract provided.


Slides: Session 2, Water Supply And Quality: The Regulatory Framework, Richard E. Schwartz Jun 2014

Slides: Session 2, Water Supply And Quality: The Regulatory Framework, Richard E. Schwartz

Water and Air Quality Issues in Oil and Gas Development: The Evolving Framework of Regulation and Management (Martz Summer Conference, June 5-6)

Presenter: Richard E. Schwartz, Crowell & Moring LLP

38 slides


Army Corps Of Engineers, U.S., Bert Chapman May 2013

Army Corps Of Engineers, U.S., Bert Chapman

Libraries Faculty and Staff Scholarship and Research

Provides an overview of how the U.S. Army Corps of Engineers has influenced historical and contemporary economic, environmental, and political developments in the American West.


Fish And Federalism: How The Asian Carp Litigation Highlights A Decifiency In The Federal Common Law Displacement Analysis, Molly M. Watters Apr 2013

Fish And Federalism: How The Asian Carp Litigation Highlights A Decifiency In The Federal Common Law Displacement Analysis, Molly M. Watters

Michigan Journal of Environmental & Administrative Law

In response to the growing threat posed by the progress of Asian carp up the Mississippi River toward the Great Lakes, and with increased frustration with the federal response to the imminent problem, in 2010, five Great Lakes states sued the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to force a more desirable and potentially more effective strategy to prevent the Asian carp from infiltrating the Great Lakes: closing the Chicago locks. This Note examines the federal common law displacement analysis through the lens of the Asian carp litigation. Both the Federal District Court ...


Permits For Puddles? The Constitutionality And Necessity Of Proposed Agency Guidance Clarifying Clean Water Act Jurisdiction, Jennifer L. Baader Apr 2013

Permits For Puddles? The Constitutionality And Necessity Of Proposed Agency Guidance Clarifying Clean Water Act Jurisdiction, Jennifer L. Baader

Chicago-Kent Law Review

The Clean Water Act, enacted and amended in the mid-20th century, was a significant development in the protection and restoration of the Nation’s waters. The Act authorized the Environmental Protection Agency and the Army Corps of Engineers to regulate the discharge of pollutants into many types of bodies of water. However, this wide-spread jurisdictional authority was challenged by the Supreme Court in two turn of the century cases which limited the application of the Act to certain waters. In 2011, a draft guidance document was released by the Environmental Protection Agency and the Army Corps of Engineers, which would ...


Judicial Limitation Of The Epa's Oversight Authority In Clean Water Act Permitting Of Mountaintop Mining Valley Fills , Christopher D. Eaton Sep 2012

Judicial Limitation Of The Epa's Oversight Authority In Clean Water Act Permitting Of Mountaintop Mining Valley Fills , Christopher D. Eaton

Michigan Journal of Environmental & Administrative Law

Mountaintop removal mining operations in the Appalachian region have expanded significantly in recent decades. The practice decimates the mountain ecosystems by leveling forests, filling headwater streams, and producing significant runoff of heavy metals, sediment, and other pollutants that impair the aquatic environment of entire watersheds. Yet environmental permitting of the practice is relatively limited. A recent trend in litigation aimed at halting mining operations has involved challenging permits that authorize the discharge of mining overburden into headwater streams pursuant to the Clean Water Act (CWA). The Army Corps of Engineers has assumed jurisdiction over such discharges under section 404 of ...


Slides: Rapanos And The Courts: Navigating Through The Fog, Jim Murphy Jun 2009

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


Water Federalism And The Army Corps Of Engineers' Role In Eastern States Water Allocation, Robert Haskell Abrams Apr 2009

Water Federalism And The Army Corps Of Engineers' Role In Eastern States Water Allocation, Robert Haskell Abrams

University of Arkansas at Little Rock Law Review

No abstract provided.


Water Federalism And The Army Corps Of Engineers' Role In Eastern States Water Allocation, Robert Haskell Abrams Jan 2009

Water Federalism And The Army Corps Of Engineers' Role In Eastern States Water Allocation, Robert Haskell Abrams

Journal Publications

It is black letter constitutional theory that the several states are the masters of their property law, and hence their water law. For that reason, states have been free to adopt regimes as widely different as reasonable use riparianism and prior appropriation, depending on local conditions and perceived needs. Superimposed on the same physical water resource network, is the United States Army Corps of Engineers (Corps). The presence of Corps' facilities in basins now experiencing short supply opens the door to state and federal water allocation conflict that calls for mediation under the principles of water federalism, a doctrine that ...


From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace Jul 2007

From "Navigable Waters" To "Constitutional Waters": The Future Of Federal Wetlands Regulation, Mark Squillace

University of Michigan Journal of Law Reform

Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under section 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters, " defined by law to mean "waters of the United ...


Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond Jun 2007

Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond

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

8 pages.

Includes bibliographical references

"Sally Fairfax, UC-Berkeley, Helen Ingram, UC-Irvine, and Leigh Raymond, Purdue University" -- Agenda


Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Christine A. Klein, Sandra B. Zellmer Jan 2007

Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Christine A. Klein, Sandra B. Zellmer

UF Law Faculty Publications

In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a "manmade" disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This Article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood ...


Can Congress Regulate Intrastate Endangered Species Under The Commerce Clause?, Bradford Mank Jan 2004

Can Congress Regulate Intrastate Endangered Species Under The Commerce Clause?, Bradford Mank

Faculty Articles and Other Publications

In Spring 2003, both the 5th Circuit and the D.C. Circuit agreed that Congress has the authority under the Commerce Clause to protect intrastate endangered species on private lands under the Endangered Species Act (ESA), but used completely opposite reasoning to reach the same result. The 5th Circuit in GDF Realty v. Norton rejected the government's argument that the economic impact of the commercial development regulated under the statute was the appropriate focus for whether the statute has a substantial effect on interstate commerce. Instead, the 5th Circuit concluded that intrastate spiders and beetles, which have no economic ...


Panel: Ethical Dilemmas: Finding Common Ground On Controversial Issues, Lesley Blackner, Richard C. Foltz, Brion Blackwelder, Lisa C. Schiavinato, Alyson C. Flournoy Apr 2002

Panel: Ethical Dilemmas: Finding Common Ground On Controversial Issues, Lesley Blackner, Richard C. Foltz, Brion Blackwelder, Lisa C. Schiavinato, Alyson C. Flournoy

UF Law Faculty Publications

This panel discussion applied ethics to the theme of the 8th Annual Public Interest Environmental Conference. Panelists examined ways ethics may help reconcile industry (such as business and development) with environmentalism.


The Maine Shore And The Army Corps: A Tale Of Two Harbors, Wells And Saco, Maine, Joseph Kelley, Walter Anderson Jan 2000

The Maine Shore And The Army Corps: A Tale Of Two Harbors, Wells And Saco, Maine, Joseph Kelley, Walter Anderson

Maine Policy Review

By discussing the problems of beach erosion and sand movement at Wells and Saco, Maine, Joseph Kelley and Walter Anderson demonstrate how single-minded, engineering approaches to complex, interdisciplinary coastal issues can create bigger problems than previously existed. As Kelley and Anderson explain, at both Wells and Camp Ellis, the Army Corps of Engineers was brought in to construct a harbor at no local cost to the community. This was accomplished by constructing jetties, and the result has been a persistent and serious problem of beach erosion. Over the years, the Army Corps has offered further technical solutions that have served ...


The Native American Graves Protection And Repatriation Act: The Death Knell For Scientific Study?, Renee M. Kosslak Jan 1999

The Native American Graves Protection And Repatriation Act: The Death Knell For Scientific Study?, Renee M. Kosslak

American Indian Law Review

No abstract provided.


Initiatives And Conflicts In Changing Federal Facility Operation, Lawrence J. Macdonnell Jun 1997

Initiatives And Conflicts In Changing Federal Facility Operation, Lawrence J. Macdonnell

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

18 pages.

Contains references.


Missouri River Basin: Balancing Upstream And Downstream Uses, John E. Thorson Jun 1997

Missouri River Basin: Balancing Upstream And Downstream Uses, John E. Thorson

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

20 pages (includes illustrations and maps).

Contains 1 page of references.


A Comparison: Lessons From The Columbia Basin And The Upper Colorado Basin Fish Recovery Efforts, Mary Christina Wood Jun 1996

A Comparison: Lessons From The Columbia Basin And The Upper Colorado Basin Fish Recovery Efforts, Mary Christina Wood

Biodiversity Protection: Implementation and Reform of the Endangered Species Act (Summer Conference, June 9-12)

47 pages.

Contains 5 pages of references.


Changing The River’S Course: Western Water Policy Reform, David H. Getches Jan 1996

Changing The River’S Course: Western Water Policy Reform, David H. Getches

Articles

Throughout the history of the West, water law and policy have had a profound influence on the environment of the region. Power production, agricultural irrigation, and economic expansion of the Columbia River Basin have depended upon the institutions of water policy, including the prior appropriation doctrine and major water development in the form of large dams and diversions. This has rendered the river incapable of sustaining the rich salmon populations that once were the mainstay of Northwest Indian culture and supported a major fishing industry. Professor Getches concludes that traditional instruments of water policy in the West--the beneficial use requirement ...


Federal Minimums: Insufficient To Save The Bay, Roy A. Hoagland, Jean G. Watts Jan 1995

Federal Minimums: Insufficient To Save The Bay, Roy A. Hoagland, Jean G. Watts

University of Richmond Law Review

In this era of deregulation, streamlining, and government reform, the voices of state government often ring out the philosophy of "no stricter than federal law" when discussing environmental initiatives. The argument that federal minimums can serve as a minimalistic, one-size-fits-all framework for environmental protection not only contradicts the same voices' arguments for flexibility and site-specific solutions, but also ignores the reality that federal minimums alone simply cannot and will not restore our waters, conserve our land, or protect our air.


Federal Minimums: Insufficient To Save The Bay, Roy A. Hoagland, Jean G. Watts Jan 1995

Federal Minimums: Insufficient To Save The Bay, Roy A. Hoagland, Jean G. Watts

University of Richmond Law Review

In this era of deregulation, streamlining, and government reform, the voices of state government often ring out the philosophy of "no stricter than federal law" when discussing environmental initiatives. The argument that federal minimums can serve as a minimalistic, one-size-fits-all framework for environmental protection not only contradicts the same voices' arguments for flexibility and site-specific solutions, but also ignores the reality that federal minimums alone simply cannot and will not restore our waters, conserve our land, or protect our air.