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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — August 1999


Essential Fish Habitat: A New Regulatory Hurdle for Development

by Eldon V.C. Greenberg

Editors' Summary: By combining environmental assessment obligations parallel to those of NEPA with consultation requirements similar to those of the ESA, the essential fish habitat provisions set forth in the 1996 amendments to the Magnuson-Stevens Fishery Conservation and Management Act created a new regulatory process for federal actions that may adversely affect essential fish habitat. Consequently, the provisions represent a potentially powerful new tool for influencing coastal development. In addition, the amendments have become fully operational over the past few months as the Secretary of Commerce has made final decisions designating essential fish habitat in our nation's waters. This Article begins with an overview of the statutory requirements of the Magnuson-Stevens Act's essential fish habitat provisions and the legislative history behind these provisions. Next, the Article addresses issues surrounding the development of the rules that implement the provisions' requirements. It then highlights those rules most likely to impact coastal development. The Article ends with a look at where the regulatory process stands today.

Disposal and Remediation Options Under the PCB Mega Rule

by James A. Vroman

Editors' Summary: On June 29, 1998, EPA published its PCB Mega Rule, a comprehensive revision of TSCA regulations that govern the remediation and disposal of PCB-contaminated material. The PCB Mega Rule affords the regulated community the option of remediating such material under self-implementing provisions or developing risk-based site-specific remedial measures that generally require Agency approval.

This Article examines the PCB Mega Rule, focusing particular attention on the provisions that address the disposal of PCB-contaminated waste resulting from spills and similar events and on the self-implementing provisions that address the remediation of PCB-contaminated porous surfaces. The Article compares the regulations applicable to such niaterials both before and after the promulgation of the PCB Mega Rule and concludes with an evaluation of the Mega Rule's benefits and shortcomings.

TMDLs IV: The Final Frontier

by Oliver A. Houck

Editors' Summary: The Clean Water Act is undergoing a dramatic shift toward water quality-based regulation. Leading the charge, and taking their share of opposing fire, are the long-dormant provisions of §303(d) calling for the development of total maximum daily loads (TMDLs) for impaired waters. Earlier Articles in this series described the legislative and regulatory history of TMDLs, the litigation surrounding them, and the Administration's current efforts to redesign the program. This final Article attempts to step back and assess the potential of the TMDL program. It concludes that, while TMDLs are a highly resource-intensive and indirect way to approach the significant remaining water pollution problems of this country, they hold the promise of progress with sufficient time and money, more active state leadership, and the retention of elements that have proven key to the success of the Act's point source discharge program as well: numerical targets, fixed plans, and the ability of people concerned about clean water to ensure that they are met.