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Clean Water Act (CWA)

Unnecessarily Hesitant Good Samaritans: Conducting Voluntary Cleanups of Inactive and Abandoned Mines Without Incurring Liability

Until the 1970s, federal and state laws did little to control the harmful water quality impacts of mining exploration, and mine wastes were regularly deposited wherever was convenient, including directly into streams. As a result, one...

The Rise and Repose of Assimilation-Based Water Quality, Part I: TMDL Litigation

The Clean Water Act (CWA) is designed to "protect and maintain" the "chemical, physical[,] and biological integrity" of the nation's waters. How to get there? Three steps. First, establish water quality standards (...

Could SWANCC Be Right? A New Look at the Legislative History of the Clean Water Act

For over two decades, courts and agencies have assumed that the Clean Water Act (CWA) grants the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jurisdiction over the nation's waters to the full...

The Myths and Truths That Threaten the TMDL Program

Thirty years in the making, the total maximum daily load (TMDL) program of §303(d) of the Clean Water Act (CWA) has never seemed farther from implementation. As state governments increasingly have flexed their regulatory muscles with...

Beyond Section 404: Corps Permitting and the National Environmental Policy Act

Wetlands permitting under § 404 of the Clean Water Act (CWA)1 presents many complex and challenging issues, ranging from the extent of the federal government's jurisdiction over potential "waters of the...

The Clean Water Act TMDL Program V: Aftershock and Prelude

The U.S. Environmental Protection Agency (EPA) is in the process of redesigning the Clean Water Act's (CWA's) total maximum daily load (TMDL) program. Section 303 of the Act requires states and, if necessary, EPA to: (1) identify waters...

The Curious Flight of the Migratory Bird Rule

Few, if any, issues have divided environmental lawyers more than the legitimacy of the Migratory Bird Rule (Rule). Ever since its adoption in 1986 by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (...

Textualism's Limits on the Administrative State: Of Isolated Waters, Barking Dogs, and Chevron

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (...

The Court, the Clean Water Act, and the Constitution: SWANCC and Beyond

Environmentalists are no strangers to disappointment in the U.S. Supreme Court, but the recent case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) is particularly disappointing....

Federal Regulation of Isolated Wetlands After SWANCC

This past January, the U.S. Supreme Court held that the Clean Water Act (CWA) did not authorize the federal government to prohibit a landfill operator from filling isolated ponds on its property merely because the ponds were used as...