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Volume 17, Issue 8 — August 1987


Changing the Nature of Federal Enforcement of Environmental Laws

by Charles A. Openchowski

Editors' Summary: When the federal government filed a Clean Water Act enforcement action in 1981 against a real estate developer for unauthorized filling activities on Chincoteague Island, Virginia, the government could not have realized that it had set in motion litigation that would change how federal environmental laws are enforced. Five years later, however, the developer's claim that he was entitled to a jury trial eventually reached the Supreme Court. In Tull v. United States, the Court ruled that the Seventh Amendment guarantees a jury trial in Clean Water Act enforcement actions for civil penalties. This Article examines the case and its implications for federal enforcement of environmental laws. The author explores the expanded role that administrative penalties will likely play after Tull and the potential of alternative dispute resolution techniques to resolve environmental controversies.

The Water Quality Act of 1987: A Major Step in Assuring the Quality of the Nation's Waters

by Elliot P. Laws and Lawrence R. Liebesman

In the most dramatic fashion possible, the centenary Congress of the United States made the Water Quality Act of 1987 (WQA)1 its inaugural piece of legislation. The law was enacted on February 4, 1987, after being vetoed by President Reagan on January 30, 1987.2 The law represents the first major revision to the Clean Water Act (CWA)3 since 1977 by clarifying certain areas of the law as well as granting new powers and responsibilities to the U.S. Environmental Protection Agency (EPA) and states.

The current framework for the Clean Water Act was established in the 1972 Federal Water Pollution Control Act Amendments. In response to the difficulties experienced with the water quality standard approach in effect since 1948, Congress created a technology-based program that is enforced through a permit program called the National Pollutant Dischcarge Elimination System (NPDES). The Act was amended significantly in 1977 to, inter alia, increase the emphasis on the control of toxic pollutants.