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Dredge and fill, §404

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...

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...

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 (...

Koontz v. St. Johns River Water Management District: Will It Impact Mitigation Conditions in §404 Permits?

Required mitigation of wetlands impacts is a mandatory feature of many Clean Water Act §404 permits. In Koontz v. St. Johns River Water Management District, the U.S. Supreme Court held that government agencies must show a...

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...

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...

Clean Water Act

In my capacity as Director of the U.S. Environmental Protection Agency's (EPA's) Wetlands program, I oversee efforts to enhance state and tribal wetlands programs, including state and tribal assumption of the Clean Water Act (CWA)...

The ECOS Proposal for Expanded State Assumption of the CWA

Editors' Summary

The Environmental Council of the States (ECOS) recently proposed that Clean Water Act §404 be amended to "remove the barriers" to state assumption of the §404 program. ECOS' specific proposals...

The Float a Boat Test: How to Use It to Advantage in This Post-<i>Rapanos<d> World

Editors' Summary: Since the Supreme Court's decision in Rapanos v. United States, courts, practitioners, and scholars have continued to discuss Justice Anthony M. Kennedy's significant nexus test. Under this test, to protect a wetland...

The Historic Navigability Test: How to Use It to One's Advantage in This Post-<I>Rapanos</I> World

Editors' Summary: Since the Supreme Court's decision in Rapanos v. United States, courts, practitioners, and scholars have continued to discuss the socalled Kennedy test and its significant nexus criterion. In this Article, authors...