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Water

“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...

The Mythology of Mitigation Banking

Fragile but economically, culturally, and ecologically important, Louisiana’s wetlands comprise 40% of all wetlands in the United States, but its wetland loss is 80% percent of the national total. The state loses the equivalent of a...

Regulating Groundwater in California: Will Groundwater Sustainability Agencies Change the Landscape?

“The history of California is written on its waters. . . .” These words by California appellate justice Ronald B. Robie in State Water Resources Control Board Cases reflect the state’s reputation for epic water wars, past and...

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...

Deployment of Ocean Renewable Energy Through Area-Based Management: Finding an Adequate Legal Framework

Renewable energy projects located in the ocean are likely to play an increasingly important role in supplying electricity worldwide. Experience in ocean management indicates that, as new uses of the seas are made available, ocean space...

Liquid Gold or Water for Pecans? Valuation of Groundwater in Regulatory Takings Law

In 2012, the Texas Supreme Court’s decision in Edwards Aquifer Authority v. Day reversed 100 years of state water law by changing the principle that establishes groundwater ownership rights from a “rule of capture” to a rule of...

Pesticides, Water Quality, and the Public Trust Doctrine

The public trust doctrine is an ancient legal principle undergoing a modern resurgence. Under it, governments hold certain natural resources in trust for the benefit of present and future generations, and have a judicially enforceable...