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Clean Water Act (CWA)

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...

Hawkes v. U.S. Army Corps of Engineers: Is a Wetlands Jurisdictional Determination Reviewable Under the Administrative Procedure Act?

On March 30, 2016, the U.S. Supreme Court heard oral argument in Hawkes Co. v. U.S. Army Corps of Engineers. This case from the U.S. Court of Appeals for the Eighth Circuit asks whether a wetlands jurisdictional determination (...

Plain Meaning, Precedent, and Metaphysics: Lessons in Statutory Interpretation From Analyzing the Elements of the Clean Water Act Offense

This Article, the fifth in a series of five, completes the author’s detailed analysis of how federal courts have interpreted each element of the Clean Water Act (CWA) offense. Compiling statistics across the four prior articles, it...

Plain Meaning, Precedent, and Metaphysics: Interpreting the “Point Source” Element of the Clean Water Act Offense

This Article, the fourth in a series of five, examines the continuing struggles to define “point source” and “nonpoint source” under the Clean Water Act. State regulation of nonpoint sources is neither pervasive nor robust, and most...

EPA’s “Waters of the United States” Rule: Substance and Significance

Four hundred stakeholder meetings and one million comments later, the U.S. Environmental Protection Agency released the final Waters of the United States (WOTUS) rule on May 27, 2015. Response to the rule has been immediate, vocal, and...

Plain Meaning, Precedent, and Metaphysics: Interpreting the “Navigable Waters” Element of the Clean Water Act Offense

This Article, the third in a series of five, examines the meaning of “navigable waters” under the Clean Water Act. It traces the traditional judicial interpretation of navigable waters and how Congress and EPA attempted to extend its...

Key Issues in Setting Water Quality Standards

When setting water quality standards (WQS) for surface water, every state in the nation is faced with the question of “how clean is clean enough?” The standard set by the state is important to citizens, who rely upon a high level of...

Plain Meaning, Precedent, and Metaphysics: Interpreting the “Pollutant” Element of the Federal Water Pollution Offense

This Article, the second in a series of five, examines the meaning of “pollutant” under the Clean Water Act. Congress and EPA have defined “pollutant” to mean a list of specific substances and broad categories of materials and wastes...

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