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Clean Water Act (CWA)

Functional Equivalency? Assessing Groundwater Discharges Under County of Maui

The U.S. Supreme Court issued its ruling in County of Maui v. Hawaii Wildlife Fund on April 23, 2020. Until then, there was a split among the circuit courts as to whether discharges to navigable waters through groundwater...

How the Trump Administration Eased Destruction of the Nation's Wetlands and Streams

On June 22, 2020, the Navigable Waters Protection Rule (NWPR), the most significant rollback of the jurisdictional scope of the Clean Water Act (CWA) since its passage almost 50 years ago, went into effect. Supported by the American...

Salmon and the Clean Water Act: An Unfinished Agenda

Salmon require cool temperatures to migrate and reproduce. The Clean Water Act (CWA) requires states to develop and implement water quality standards sufficient to produce fishable waters. Nearly a half-century after its 1972 enactment...

Jumping Through Hoopa: Complicating the Clean Water Act for the States

Section 401 certification and permit conditioning under the Clean Water Act is one of the most significant tools for states to influence federally permitted activities involving discharges into navigable waters. However, states are...

Overboard? The Complexity of Traditional TMDL Calculations Under the Clean Water Act

The Clean Water Act (CWA) requires states to calculate total maximum daily loads (TMDLs) of individual pollutants that impair their waters. But the means by which TMDLs are calculated are imprecise, because (1) it is difficult to...

CWA In-Lieu Fee Mitigation: Project and Programmatic Risks

In 2008, after prompting by the U.S. Congress, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) issued a regulation governing compensatory mitigation under the Clean Water Act (CWA). The...

Ten Years of the Compensatory Mitigation Rule: Reflections on Progress and Opportunities

In 2008, the U.S. Army Corps of Engineers (the Corps) and the U.S. Environmental Protection Agency (EPA) overhauled federal policy governing how impacts to wetlands, streams, and other aquatic resources authorized under §404 of the...

Natural Resource Damages, Mitigation Banking, and the Watershed Approach

This Article examines potential opportunities for state and tribal natural resource trustees to integrate restoration and compensation for natural resource damages with other ecological restoration programs and coordinating with...

Practicable Alternatives for Wetlands Development Under the Clean Water Act

Section 404(b) of the Clean Water Act authorizes a “practicable alternatives” requirement for dredge and fill permits. EPA has adopted guidelines that set out and interpret that requirement, but the U.S. Army Corps of Engineers has...

“Waters of the United States” and the Agricultural Production Sector: Sweeping Change or More of the Same?

EPA and the Corps’ promulgation of a new definition of “waters of the United States” under the CWA has prompted a fierce rhetorical and legal debate. EPA maintains that the agencies’ jurisdiction may actually be limited by the new...

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