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Clean Water Act (CWA)

Nutrients in the Courts: Cooperative Federalism Entangles EPA Actions on Nitrogen and Phosphorus

For over a decade, the regulation of nutrients (nitrogen and phosphorus) under the Clean Water Act has been a focus of the U.S. Environmental Protection Agency's (EPA's) attention. Now, it is a focus of litigation. Hypoxia in the Gulf...

Goodbye Fourth of July: Are Fireworks Displays Now Subject to CWA Regulation?

The federal Clean Water Act (CWA) has been instrumental in restoring the health and safety of the nation’s bays, harbors, and beaches from industrial and municipal discharges during the past 40 years. But does the CWA now regulate...

Can TMDLs Serve as ARARs?

The CWA and CERCLA were passed to clean up the environment and protect public health. Both statutes required Congress to set a standard for cleanliness. Under
CERCLA, Congress determined that Superfund sites had to meet applicable...

The U.S. Supreme Court's Decision in South Florida Water Management District v. Miccosukee Tribe of Indians: Leaving the Scope of Regulation Under the Clean Water Act in "Murky Waters"

In an 8-to-1 decision authored by Justice Sandra Day O'Connor, the U.S. Supreme Court reversed the U.S. Court of Appeals for the Eleventh Circuit's decision that the South Florida Water Management District's (District's) operation of a...

A Detailed Look at the Effects of Sackett v. EPA on Administrative Enforcement Orders

On March 21, 2012, the U.S. Supreme Court issued its opinion in Sackett v. U.S. Environmental Protection Agency and settled the question of whether “pre-enforcement” judicial review is available for an administrative compliance...

Preenforcement Judicial Review After Sackett: Implications Beyond the Clean Water Act

On March 21, 2012, the U.S. Supreme Court decided the Clean Water Act (CWA) case Sackett v. Environmental Protection Agency. The Sacketts were private property owners in Idaho who had dredged and filled a portion of their...

Must the Public Pay Miners Not to Pollute? A Takings Analysis of a Proactive §404(c) Action in Bristol Bay, Alaska

A potential federal action under §404(c) of the Clean Water Act to prohibit or restrict the disposal of mine wastes from large-scale hardrock mines like the proposed Pebble Mine in waters of the Bristol Bay Watershed, which supports the...

Rapanos Guidance III: “Waters” Revisited

On May 2, 2011, EPA andthe Corps issued draft joint guidance for the interpretation of the phrase “waters of the United States” under the CWA. Determinations of CWA jurisdiction are critical for the agencies in issuing permits to fill...

Real Environmental Protection: Not a Paper Exercise

In an Article published in the October issue of the Environmental Law Reporter, Elisabeth Holmes and Charles Tebbutt argued that H.R. 872, a bill that would amend FIFRA and the CWA as they pertain to aquatic pesticide...

The Intended Scope of Clean Water Act Jurisdiction

In an unnecessarily exaggerated response to U.S. Supreme Court decisions over the past decade, the agencies that implement the Clean Water Act have substantially reduced the scope of waters that are considered jurisdictional “waters of...