In traditional administrative law, agencies pass rules and courts review them. But what if agencies stopped acting by rule and started leading by example? The federal response to agricultural water pollution offers a case study in how this increasingly popular form of administration can work, by regulating not through rule, but through suggestion--specifically suggestion via best practices.
In 1987, the U.S. Congress amended the Clean Water Act (CWA) to establish a national nonpoint source (NPS) program under §319.1 The statute allows states meeting preliminary criteria to receive federal grant money from the U.S. Environmental Protection Agency (EPA) to address NPS pollution. To be eligible for grants, first, each state must identify and report which of its water bodies have not attained or will not maintain state water quality standards, the sources of nonpoint pollution into those waters, and the potential for remedial action.
Editor's Summary: The Klamath Basin of southern Oregon and northern California is the setting of a water rights conflict that is about much more than just water. In this Article, Esther Westbrook examines a recent decision of the Court of Federal Claims, Klamath Irrigation District v. United States, that addresses some of the legal issues implicated when water rights, unsustainable land use, and endangered species collide.
Editors' Summary: The wetland mitigation banking business has grown dramatically in the last decade. But as is true with any business, mitigation banks are subject to risk, including the risk of going bankrupt. This Article looks at how bankruptcy law can affect the rights and obligations of the mitigation banker and government agencies. After providing an overview of wetland mitigation banking and a primer on bankruptcy law, the Article examines two ongoing bankruptcy actions that involve mitigation banks.
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Editors' Summary: Many parties and factors are participating in shaping the future of wetland loss mitigation. Considerations of the status and viability of the "no net loss" wetlands policy are urgent in light of increasing population and urban development. In this Article, Holly Campbell examines U.S. wetlands law and policy, particularly the role of mitigation. She begins the Article with some background information on wetlands compensatory mitigation and where it fits within the law.
Editors' Summary: Humpback whales are endangered marine mammals, protected by the Marine Mammal Protection Act (MMPA) and the ESA. Hawai'i's seasonal thrill craft ban in humpback habitat provides additional protection. In 2004, a federal court ruled that the state's seasonal ban was preempted by the MMPA and the ESA. Below, Koalani Kaulukukui discusses the interplay of these two statutes, concluding that when a marine mammal is listed under the ESA, the more protective MMPA or ESA provision applies.
I. Military Training Versus Endangered Species Protection
Executive Summary
Editor's Summary: The exact contours of wetlands jurisdiction has been in dispute ever since the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. Today, the Court has been given the chance to clarify this area of law as it faces two cases dealing with wetlands jurisdiction. In Rapanos v. United States, the Court must decide whether CWA jurisdiction extends to a series of wetlands that do not abut a navigable-in-fact water. And in Carabell v. U.S.