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Clean Water Act (CWA)

Waters Protected by the Clean Water Act: Cutting Through the Rhetoric on the Proposed Rule

On March 25, 2014, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers proposed to revise their rules defining which water bodies are protected by the Clean Water Act. As with so much of our public...

Cooperative Federalism, Nutrients, and the Clean Water Act: Three Cases Revisited

Cooperative federalism varies widely from program to program, and depends on the relationship each statute prescribes. The Clean Water Act (CWA), while providing ample room for state participation, is heavily federal and leaves little...

The Newest Player in the Climate Change/Renewable Energy Game: EPA’s $100+ Billion Clean Water State Revolving Fund

On August 13, 2013, the state of New York set an important legal precedent that could help to retard climate change and reduce greenhouse gas (GHG) emissions in the United States. On that day, the New York State Energy Research...

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...