Journals featured in this issue of the Law and Policy Digest. For more information, click on the name of the journal.

TABLE OF CONTENTS

Part 1 (on another web page for speed and convenience)
I.ALTERNATIVE ENERGY
II.    AQUACULTURE
III.   CLIMATE CHANGE
IV. COASTAL HAZARDS
V.   COASTAL MANAGEMENT
VI. CORAL REEFS
VII. ECOSYSTEM MANAGEMENT
VIII.    ENDANGERED SPECIES
IX. ENVIRONMENTAL LAW

X.   FISHERIES MANAGEMENT  
XI.   LAW OF THE SEA
XII.      MARINE MAMMALS
XIII. MARINE PROTECTED AREAS  
XIV.    MARINE SECURITY
XV.     MARITIME BOUNDARIES
XVI.    OCEAN GOVERNANCE 
XVII.    POLLUTION   
XVIII.  SHIPPING
XIX.    TRIBAL AFFAIRS  
XX. WATER LAW
XXI.    WETLANDS 

X. FISHERIES MANAGEMENT
Kuperan, K., et al. “Measuring Transaction Costs of Fisheries Co-Management.” 36 Coastal Management 225 – 240 (2008).
Fisheries co-management as an alternative to centralized command and control fisheries management is often suggested as a solution to the problems of fisheries resource use conflicts and overexploitation. Various researchers have talked of the importance of studying the role of transaction costs between different institutional arrangements for managing fisheries resources. Kuperan and co-authors provide an analysis of measurements of the transaction costs under a fisheries co-management system in San Salvador Island, Philippines. The results obtained for the period 1988-1996 indicate that the difference in the total costs of fisheries management between centralized government management and co-management is not that significant. However, the downstream or implementation costs are lower for a co-managed approach. This is because the cost of monitoring and enforcement are lower, and there is higher compliance with rules and regulations. This is important from a policy perspective as the implementation costs are the costs encountered on a perpetual basis as the management institutions are implemented. This could result in an overall lower cost of managing the fisheries resources for the society.
Abstract Courtesy of Coastal Management

Murray, Grant. “Lessons from a Multi-Scale Historical Reconstruction of Newfoundland and Labrador Fisheries.” 36 Coastal Management 81 – 108 (2008).
Murray uses a multi-scale, multi-method historical reconstruction of post-World War II social-ecological interactions within fisheries in Newfoundland and Labrador to explore the dynamics of intensification, expansion, and resource degradation in managed fisheries. The case study draws on landings statistics, other archival information, and the Local Ecological Knowledge of fish harvesters to explore these linked dynamics at the macro, meso, and micro levels. There are large scale trends toward intensification of effort leading to over-harvesting at macro (province-wide) levels. At the same time, at the local level (micro-scale) and across sectors and regions (the meso-scale), there are highly fluid fishing practices and a complex suite of stated motivations for change. As a basis for effective governance, an understanding of the dynamics of interactive restructuring in social ecological systems will require multi-scale analyses that are sensitive to this complexity.
Abstract Courtesy of Coastal Management

Stephens, Tim. “Fisheries-Led Development in the South Pacific: Charting a ‘Pacific Way’ to a Sustainable Future.” 39 Ocean Development and International Law 257 – 286 (2008).
Considerable debate surrounds the appropriate mix of policies to drive fishing-led development among the developing nations in the South Pacific. Since the 1970s, South Pacific small island states have committed themselves to policies of tuna industry domestication, but serious doubts have emerged as to whether these can deliver improvements to the well-being of Pacific peoples. An alternative policy approach has been suggested by development economists that would see Pacific Island nations largely abandon direct involvement in the industry and return to collective efforts to secure reasonable access fees from distant water fishing nations that take the majority of the region’s tuna catches. Stephens argues that one reason that this policy shift has not been taken is that tuna industry domestication policies remain bound up within the influential discourse of “resource nationalism.” It is contended that any movement toward a more environmentally and developmentally sustainable ocean fisheries policy will require close engagement and transformation of this sovereignty-focused narrative.
Abstract Courtesy of Ocean Development and International Law

Wellman, Katharine F. “Potential Benefits of Coastal Ocean Observing Systems to Alaskan Commercial Fisheries.” 36 Coastal Management 193 – 207 (2008).
Wellman attempts to illustrate the potential benefits to Alaskan commercial fisheries expected from enhancements to the Alaska Ocean Observing System (AOOS) through changes in fishery management strategies. The study shows how the use of improved AOOS data in research, stock assessment, and ultimately fisheries management has the potential to result in significant benefits in the Bering Sea and Gulf of Alaska groundfish and Kodiak king crab fisheries. A case study approach shows that information such as might be provided by an enhanced AOOS could conceivably contribute over $600 million in additional annual revenue in Alaska’s groundfish fishery. It is estimated that had the information from such a system been available in the 1970s and 1980s the Kodiak king crab stock collapse could have been avoided and $60 million in annual revenues generated. Benefit estimates (as measured by revenue increases) are based on the assumptions that when better data is delivered those data will be integrated into stock assessment models; when better data are integrated into the models the new data will actually improve the reliability of the models; and when the reliability of the models is improved predictions will be accepted by managers or industry members.
Abstract Courtesy of Coastal Management

Wyman, Katrina M. “The Property Rights Challenge in Marine Fisheries.” 50 Arizona Law Review 511 – 543 (2008).
With wild fish stocks declining and a growing aquaculture industry, fisheries policymakers currently face a complicated challenge of identifying and applying the best possible property rights regime for marine fisheries. Wyman performs an economic analysis of property rights in marine fisheries. While noting the objective to devise property rights in fisheries that will produce the greatest net benefits, she concedes that there is no single property agreement that is best for fisheries in general. Wyman concludes that that the most advantageous arrangements will likely be context-specific combinations of different kinds of property rights.

XI. LAW OF THE SEA
Blakely, Laurence. “The End of the Viarsa Saga and the Legality of Australia’s Vessel Forfeiture Penalty for Illegal Fishing in its Exclusive Economic Zone.” 17 Association Pacific Rim Law and Policy Journal 677 – 705 (2008).
With many of the world’s fish stocks suffering from overfishing, nations have begun to enforce their rights in their exclusive economic zones established under the 1982 United Nations Convention on the Law of the Sea (UNCLOS). Specifically, Blakely examines Australia’s Fisheries Management Act that provides for the automatic forfeiture of any foreign vessel caught fishing illegally in its exclusive economic zone. She concludes that Australia should interpret the provision to comply with UNCLOS.

Del Vecchio Capotosti, Angela. “In Maiore Stat Minus: A Note on the EEZ and the Zones of Ecological Protection in the Mediterranean Sea.” 39 Ocean Development and International Law 287 – 297 (2008).
Del Vecchio Capotosti examines the different attitudes taken by Mediterranean states in implementing their 200-nautical-mile exclusive economic zone (EEZ). After the United Nations Convention on the Law of the Sea was signed in 1982, some Mediterranean coastal states unilaterally extended their jurisdiction over sea areas establishing a “virtual” EEZ adjacent to the territorial sea. Recently, other states have been extending their jurisdiction by establishing fisheries zones, Special Protected Areas, or both. These zones represent a partial implementation of the EEZ, as the Mediterranean states are only exercising certain powers provided by the LOS Convention regarding the environment.
Abstract Courtesy of Ocean Development and International Law

XII. MARINE MAMMALS
Adam, Rachelle. “The Japanese Dolphin Hunts: In Quest of International Legal Protection for Small Cetaceans.” 14 Animal Law 133 – 178 (2008).
It is estimated that over 2,500 small cetaceans—dolphins, porpoises, and small whales—are killed annually in Japan during drive hunts. Adam examines the international legal status of those dolphins targeted by these hunts. She argues that there should be an international legal duty to stop the drive hunts and to protect the species targeted by these hunts.
 
Anton, Donald K. “False Sanctuary: The Australian Antarctic Whale Sanctuary and Long-Term Stability in Antarctica.” 8 Sustainable Development Law and Policy 17 – 21 (2008).
Anton examines the effect of a recent court case on the Antarctic Treaty System, a compilation of international legal agreements governing Antarctica. The case, Humane Society International, Inc. v. Kyodo Senpaku Kaisha Ltd., involved the assertion of maritime jurisdiction by Australian courts over acts in the south Antarctic Ocean.

XIII. MARINE PROTECTED AREAS
Ding, Hui. “An Overview of Spatial Management and Marine Protected Areas in the East China Sea.” 36 Coastal Management 443 – 457 (2008).
Marine ecosystems of the East China Sea are rich in biodiversity, with 12,933 species of which approximately 47.7% are endemic. As anthropogenic impacts are intensifying, fishery resources and biodiversity in the East China Sea are under threat from overfishing, habitat loss, pollution, and biological invasions. Marine protected areas (MPAs) and other spatial management measures are believed to be useful tools to protect and restore biological resources. Seventeen nature reserves, seven special marine reserves, and three fishery resource conservation zones covering a combined area of 102,156 km2 have so far been established in the Chinese East China Sea in order to protect fishery resources, biodiversity, and marine landscapes. Ding provides a review and inventory of MPAs in the Chinese East China Sea as implemented by the People’s Republic of China.
Abstract Courtesy of Coastal Management

Weible, Christopher M. “Caught in a Maelstrom: Implementing California Marine Protected Areas.” 36 Coastal Management 350 – 373 (2008).
The first attempt to implement the 1999 California Marine Life Protection Act (MLPA) to establish marine protected areas (MPAs) ended contentiously in 2002. The initial MLPA process is examined by a statutory analysis and an analysis of stakeholder network relationships and beliefs. The failure of the initial MLPA process can be understood by a combination of factors: (i) insufficient financial support from the California State government; (ii) unclear, unranked and inconsistent statutory objectives; (iii) the application of a science-based process that excluded affected stakeholders; (iv) implementing officials who lacked expertise in designing and managing political processes; and (v) a community of stakeholders who were polarized into coalitions of proponents and opponents of MPAs. Weible concludes by discussing limitations of its methods and analysis and by offering strategies for learning from policy failures.
Abstract Courtesy of Coastal Management

XIV. MARINE SECURITY
Burke, Marcilynn A. “Green Peace? Protecting Our National Treasures While Providing for Our National Security.” 32 William and Mary Environmental Law and Policy Review 803 – 874 (2008).
Burke discusses how the United States may protect its natural resources while providing national security. She reviews legislative proposals to amend natural resources statutes post 9/11 in the name of national security and notes the reactions to those proposals from various groups. Next, she presents the amendments that Congress enacted and evaluates how they have functioned. She also discusses the role of the Department of Defense in the decisionmaking process. Burke emphasizes the importance of continuing the dialogue regarding the appropriate balance between protecting our natural resources and providing for national security.

Reynolds, Joel R. “Submarines, Sonar, and the Death of Whales: Enforcing the Delicate Balance of Environmental Compliance and National Security in Military Training.” 32 William and Mary Environmental Law and Policy Review 759 – 802 (2008).
Reynolds explores the delicate balance of environmental protection and national security in the Navy’s use of sonar in its testing and training activities. The article gives an overview of the range of impacts on marine life exposed to high-intensity ocean noise. Reynolds explains efforts to identify and reduce those impacts, specifically on the federal courts’ response to litigation filed by conservation groups endeavoring to protect the marine environment.

XV. MARITIME BOUNDARIES
Bork, Katharina, et al. “The Legal Regulation of Floats and Gliders—In Quest of a New Regime?” 39 Ocean Development and International Law 298 – 328 (2008).
Bork and co-authors analyze the legal status of unmanned instruments (particularly, floats and gliders) for observation purposes in the ocean environment. These new kinds of instruments are being deployed by the thousands into the oceans, not the least as part of the Argo Project of the International Oceanographic Commission. Their uncontrolled drifting has raised legal questions, especially when such instruments enter waters subject to the jurisdiction of foreign states. The authors argue that the current international legal framework is insufficient to address the pertinent issues, and that a new legal regime is needed.
Abstract Courtesy of Ocean Development and International Law

Eagle, Josh. “The Practical Effects of Delegation: Agencies and the Zoning of Public Lands and Seas.” 35 Pepperdine Law Review 835 – 894 (2008).
Eagle examines public property zoning, arguing that the delegated zoning model is not likely to produce the beneficial effects that public property zoning is intended to create. He describes the purposes of zoning and how its mechanisms relate to those purposes. Noting the incentives of agencies and agency officials in zoning decisions, Eagle predicts how agencies will respond when faced with zoning public lands and seas. He also includes case studies of delegated zoning, including the National Marine Sanctuaries Act and California’s Marine Life Protection Act. Eagle also provides an in-depth analysis of the role of Congress and state legislatures in drafting future ocean zoning statutes.

XVI. OCEAN GOVERNANCE
Morrison, Kate Killerlain. “Toward More Integrated Ocean Governance in Massachusetts: A Progress Report.” 36 Coastal Management 421 – 430 (2008).
Since 2000, recent proposals for new offshore uses such as wind and wave energy projects and liquefied natural gas (LNG) terminals have highlighted areas where the Commonwealth of Massachusetts’ ocean management process could be improved in order to move away from the first come, first served approach the state has historically taken to a more coordinated ocean governance regime. Massachusetts proposes to convert the largely reactive case-by-case permitting system to a more proactive governance regime. Morrison reviews past efforts under two main regulatory frameworks, the Public Waterfront Act and the Ocean Sanctuaries Act, proposes six key components of a planning approach, discusses recent legislative history, and reflects on Massachusetts’ experience to date through Cicin-Sain’s (1990) “Factors Conducive to Ocean Management Initiatives.” Initially proposed over fifteen years ago, in a review of California’s Ocean Management efforts, Cicin-Sain (1990) described “four major variables that influence the likelihood that ocean management initiatives will emerge and be sustained in particular states.” They include: (1) degree of severity of ocean and coastal governance problems and the role of focusing events, (2) political readiness, (3) governmental readiness, and (4) state ocean heritage and popular opinion variables.
Abstract Courtesy of Coastal Management

XVII. POLLUTION
Hansen, Robin F. “Multinational Enterprise Pursuit of Minimized Liability: Law, International Business Theory and the Prestige Oil Spill.” 26 Berkeley Journal of International Law 410 – 451 (2008).
The Prestige oil spill off the Spanish coast contaminated 3,000 kilometers of the coastline and devastated marine life in the area. The Spanish government was left to pay for the majority of the clean-up. Hansen discusses the liability exposure of the multinational enterprises involved in the oil spill. The article emphasizes the importance of holding multinational enterprise parent companies liable for actions such as devastated marine life in the area.

Hartman, Richard, et al. “The Spread of Fertilizer Ordinances in Florida.” 1 Sea Grant Law and Policy Digest 98 – 114 (2008).
Local governments have enacted ordinances to deal with harmful algal blooms caused by increased nutrient loading resulting from fertilizer use. Hartman and coauthors discuss the role of Florida fertilizer ordinances in coastal resiliency. The authors review several local fertilizer ordinances, noting the trends and the successes and failures of each. The authors also examine the role of homeowners associations in fertilizer use.

Kirk, Elizabeth A. “Noncompliance and the Development of Regimes Addressing Marine Pollution from Land-Based Activities.” 39 Ocean Development and International Law 235 – 256 (2008).
The primarily action-oriented nature of obligations in regimes designed to address marine pollution from land-based activities makes establishing whether or not states are complying with their obligations difficult. At the same time, a lack of knowledge about and understanding of the marine environment and effectiveness of responses to pollution make noncompliance likely. These threats might undermine the legitimacy of any regime. However, they do not appear to do so here. Instead, they prompt action to improve on all counts. This effect appears to be largely a result of the tacit recognition of the distinction between willful, norm-generating and operational noncompliance by those party to the regimes, with each type of noncompliance generating a different response.
Abstract Courtesy of Ocean Development and International Law

Parker, Geoffrey Y., et al. “Pebble Mine: Fish, Minerals, and Testing the Limits of Alaska’s ‘Large Mine Permitting Process.’” 25 Alaska Law Review 1 – 50 (2008).
In the face of two foreign mining companies’ plan to develop one of the world’s largest copper and gold mines on mining claims on state land in Alaska, Parker and coauthors examine the potential impact of the mines on the area’s fisheries. The article looks at the state’s large mine permitting process and finds it insufficient to deal with large metallic sulfide mines. Next, the authors examine current legislative responses to the proposed project and discuss their strengths and weaknesses. Finally, the authors conclude that these legislative solutions would not rise to the level of an unconstitutional taking of the mining claims.

Pendleton, Linwood. “The Economics of Using Ocean Observing Systems to Improve Beach Closure Policy.” 36 Coastal Management 165 – 178 (2008).
Beach closure policies in the United States suffers from two shortcomings. Type I errors, in which clean beaches are closed, results when managers resort to extensive beach closures because they are unsure of the spatial extent of water contamination. Type II errors, in which contaminated beaches remain open, occur because the time from sampling to public notification can be between two and nine days. Coastal Ocean Observing Systems (COOS) could reduce the impact of both Type I and II errors. The COOS could reduce the spatial extent of beach closures by better predicting the fate of contaminants in coastal waters. An improved COOS also could reduce the time from sampling to public notification of contamination events. Pendleton estimates the lost recreational value associated with Type I errors (unnecessary closures) and the public health costs associated with Type II errors (unnecessary exposure to waterborne illnesses) for beaches in Southern California.
Abstract Courtesy of Coastal Management

Riley, Timothy. “Piercing the Regulatory Veil: The Need to Expand Federal Clean Water Act NPDES Permit Coverage to Include Municipal ‘Satellite’ Sewer Collection Systems.” 26 Virginia Environmental Law Journal 615 – 654 (2008).
Riley suggests that the National Pollutant Discharge Elimination System (NPDES) program should include municipal satellite sewer systems. First, he identifies how inadequate satellite systems may threaten public capital infrastructure, human health, and the environment. He also describes the purpose of the Clean Water Act and the background of the NPDES program. Riley outlines the development of the EPA’s 2001 proposed rule governing satellite systems and describes state and local-level activities regulating satellite systems. The article provides a thorough description of how the EPA could implement regulations for satellite systems under the NPDES program.

XVIII. SHIPPING
Muir, Magdalena A. K. “Hydrocarbon Development and Maritime Shipping for the Circumpolar Arctic in the Context of the Arctic Council and Climate Change.” 8 Sustainable Development Law and Policy 38 – 39 (2008).
Muir notes that future changes in the Arctic sea ice cover will impact shipping practices in the Arctic region. She predicts that the reduction in sea ice will result in a lengthened navigation season and increased access to the Arctic’s natural resources. Muir provides an overview of the challenges the region will face due to the increased shipping activity.

Pietri, Diana. “The Arctic Shipping and Environmental Management Agreement: A Regime for Marine Pollution.” 36 Coastal Management 508 – 523 (2008).
Climate change is predicted to have particularly challenging impacts throughout the Arctic. For instance, there is a great probability of sea ice melting, leading to increased vessel traffic and oil pollution. Eight major nation-states have vested concerns in the potential opening of Arctic sea routes. They each have pledged to take protective action through the Arctic Council. However, there is still a need to develop an international institution to simultaneously address Arctic marine pollution and protect the needs of these states. Pietri seeks to design a legally binding regime for oil pollution control in the Arctic. The design uses several shared design elements of historically effective international regimes and takes advantage of the legal innovations of these agreements. The new regime, entitled the Arctic Shipping and Environmental Management Agreement (ASEMA), will take into account both the economic and environmental interests of the parties involved.
Abstract Courtesy of Coastal Management

Remsberg, Loren. “Too Many Cooks in the Galley: Overlapping Agency Jurisdiction of Ballast Water Regulation.” 76 George Washington Law Review 1412 – 1428 (2008).
Remsberg discusses the Northwest Environmental Advocates v. Environmental Protection Agency opinion regarding the EPA’s regulation of the release of ballast water from ships in U.S. ports. The author explains the Coast Guard’s regulation of ballast water and the source of the Coast Guard’s authority to regulate. Remsberg concludes that Congress, not the courts, should resolve questions about overlapping agency authority.

XIX. TRIBAL AFFAIRS
O’Neill, Catherine A. “Environmental Justice in the Tribal Context: A Madness to EPA’s Method.” 38 Environmental Law 495 – 536 (2008).
O’Neill discusses the problem of mercury contamination in many fish species that serve as a food source for tribal members on the Bad River Reservation. She specifically examines the effects of the Environmental Protection Agency’s regulation of mercury emissions from coal-fired utilities. She concludes that the EPA should have considered the tribe’s fishing rights in its assessment and decisions.

Sanders, Marren. “Ecosystem Co-Management Agreements: A Study of Nation Building or a Lesson on Erosion of Tribal Sovereignty?” 15 Buffalo Environmental Law Journal 97 – 176 (2008).
Sanders explores ecosystem management and species co-management agreements between tribes and federal and state agencies. She uses case studies to discuss tribal sovereignty and tribal approaches to ecosystem management. Sanders concludes that co-management agreements can result in challenges, as well as opportunities.

Wood, Mary Christina, and Zachary Welcker. “Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement.” 32 Harvard Environmental Law Review 373 – 432 (2008).
Wood and Welcker explore the tribal role in the conservation trust movement. The authors argue that a tribal trust movement could both strengthen the movement and advance the Native environmental sovereignty effort. The authors set forth four broad templates of the tribal role in the conservation trust movement.

Wood, Mary Christina, and Matthew O’Brien. “Tribes as Trustees Again (Part II): Evaluating Four Models of Tribal Participation in the Conservation Trust Movement.” 27 Stanford Environmental Law Journal 477 – 544 (2008).
This article is the second in a series by Wood and O’Brien discussing the tribal use of conservation trust mechanisms. In this article, the authors examine four models of Native American engagement in the conservation trust movement, each with a different holder of conservation title, including the tribal holder, the Native land trust holder, the public agency holder, and the non-Native land trust holder.

XX. WATER LAW
Baker-Branstetter, Shannon. “The Last Stand of the Wild West: Twenty-First Century Water Wars in Southern California.” 38 Environmental Law Reporter 10726 – 10762 (2008).
Baker-Branstetter discusses the Imperial Irrigation District’s (IID) agreement to transfer water to urban southern California cities. Baker-Branstetter argues that because the water was held in trust for the residents of Imperial Valley, the IID breached its trust to those residents when it sold the rights to the water.

Burleson, Elizabeth. “Water Is Security.” 31 Environs Environmental Law and Policy Journal 197 – 214 (2008).
Burleson discusses various water quality and quantity policies. She presents suggestions on good water governance that will lower transaction costs and strive for optimal use. Burleson concludes that the just use of water resources will help sustain international security.

Colangelo, Sara. “Transforming Water Transfers: The Evolution of Water Transfer Case Law and the NPDES Water Transfers Proposed Rule.” 35 Ecology Law Quarterly 107 – 142 (2008).
Colangelo looks at water transfer case law preceding the NPDES Water Transfers Proposed Rule. She explores the evolution of the rule, evaluates the proposed rule in view of the Miccosukee case, and assesses its feasibility based on the plain meaning of related CWA provisions, statutory construction, and Congressional intent.

Doremus, Holly, and Michael Hanemann. “The Challenges of Dynamic Water Management in the American West.” 26 UCLA Journal of Environmental Law and Policy 55 – 75 (2008).
Doremus and Hanemann discuss water management in the American West, in light of the impacts of climate change. The authors consider the implications of an adaptation response to western water projects. They predict that adaptation will be difficult for the West, due to infrastructure and institutional constraints. 

Hosking, S.G. “An Economic Approach to Allocating River Water to Estuaries in South Africa.” 36 Coastal Management 35 – 46 (2008).
Estuaries are last in line as a recipient of river water and for this reason they are particularly vulnerable to negative environmental impacts due to water scarcity and pollution. They only receive the runoff that has not been abstracted or prevented from reaching rivers. When this runoff is substantially reduced their functionality is undermined and they often become less attractive for recreational use. Hosking explores some aspects entailed in efficiently managing the allocation of water to estuaries problem and some associated problems. It is shown that efficient management requires the marginal social costs of the inflows to be brought into equivalence with the marginal social values of the inflows, and these values may be estimated, but that there are the challenges in this estimation and in linking these estimates to the welfare of the people in whom the managers of river systems are (presumed to be) interested.
Abstract Courtesy of Coastal Management

Rose, Carol M. “From H2O to CO2: Lessons of Water Rights for Carbon Trading.” 50 Arizona Law Review 91 – 110 (2008).
Rose proposes that water rights regimes may serve as examples for cap-and-trade programs to control greenhouse gases. The article explains cap-and-trade regimes used in water rights law, including how the rights are defined and traded. She also explains the obstacles that have faced the water rights regimes and how programs to control greenhouse gases may face those same obstacles.

Singarella, Paul N., and Kelly E. Richardson. “When Water Becomes Waste: A Call for a Practical Approach to Regulating Stormwater Discharges.” 31 Environs: Environmental Law and Policy Journal 123 – 154 (2008).
Stormwater management is a daunting issue facing municipalities and other dischargers in the United States. Singarella and Richardson look at California’s State Water Resources Control Board’s role in regulating discharges of runoff into Areas of Special Biological Significance (ASBS). The authors explore the legal basis for an effects-based approach to stormwater regulation and propose potential solutions that would lead to a comprehensive regulatory program that is protective of ASBS.

Walston, Roderick E. “California Water Law: Historical Origins to the Present.” 29 Whittier Law Review 765 – 826 (2008).
Walston gives a comprehensive overview of California water law from its historical origins to the present. He discusses both the state and federal water regulation laws and current state and federal projects that involve California water supply. Walston also examines the relationship between water supply planning and land use planning in the state and the effects of California’s laws on the planning efforts.

XXI. WETLANDS
Axtell, Matthew A. “Last Lake Standing: Clean Water Act Jurisdiction in the Alaskan Frontier after Rapanos v. United States.” 38 Environmental Law Reporter 10473 – 10488 (2008).
Axtell discusses the impact of the U.S. Supreme Court’s decisions in Rapanos and SWANCC on Clean Water Act (CWA) authority in Alaska. Using Justice William Q. Douglas’ description of Alaska’s Last Lake, he hypothesizes whether the lake would be considered a water of the United States subject to the CWA.

Craig, Robin Kundis. “Justice Kennedy and Ecosystem Services: A Functional Approach to Clean Water Act Jurisdiction after Rapanos.” 38 Environmental Law 635 – 667 (2008).
Reviewing Rapanos v. United States, Craig looks at the impact the case may have on Clean Water Act (CWA) jurisprudence. She examines how the CWA protects aquatic ecosystems. She also describes CWA jurisdiction and looks at how Justice Kennedy’s opinion has shaped jurisdictional analysis, including an in-depth examination of a recent case regarding wetlands jurisdiction, United States v. Cundiff.

Flournoy, Alyson C. “The Impact of Information Flow on Individual Permitting Decisions under Section 404 of the Clean Water Act.” 83 Indiana Law Journal 537 – 582 (2008).
Flournoy gives an overview of A7 404 of the Clean Water Act and its related provisions, identifying the goals A7 404 was enacted to advance. Using the example of wetlands loss, she suggests that the section may not be achieving its goals. Finally, Flournoy examines the permitting process in more detail, focusing on information flow and noting how well the demand/supply/consequences scheme fits with the goals of A7 404.

Redder, Adam. “Protecting America’s Wetlands under Rapanos: Defining “The Waters of the United States.” 23 St. John’s Journal of Legal Commentary 293 – 353 (2008).
Redder presents the history of federal regulation of the nation’s waters and evaluates the United States Supreme Court’s decision in Rapanos. Next, he explains his belief that the plurality incorrectly interpreted the CWA and explains why Justice Kennedy’s standard has received widespread support by both commentators and courts.

Wilson, Augusta. “Of Ponds and Pot: How Rapanos Ignored Raich and the Potential Role for Cooperative Federalism.” 17 Cornell Journal of Law and Public Policy 453 – 479 (2008).
Wilson examines the Supreme Court’s decision in Rapanos in light of both the purposes of the Clean Water Act and the Court’s own recent Commerce Clause jurisprudence in Gonzales v. Raich. In the article, Wilson explains the functions and importance of wetlands, traces the history of federal wetlands regulation, and discusses the Court’s interpretation of the Army Corps of Engineers jurisdiction over wetlands. Wilson suggests that Congress should regulate wetlands using cooperative federalism and state-based approaches to preserve wetlands.

University of Mississippi