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Abstract:
On December 13, 2005, the Governors and Premiers of the Great Lakes states and provinces signed a Compact and Agreement that commits the parties to a rigorous program to regulate individual water uses, with citizen suits to enforce the requirements. While the Great Lakes-St. Lawrence River Basin Water Resources Compact and companion Agreement are commendable in many respects, this Article argues that people who care about the future of the Great Lakes should urge policymakers to reject the current proposals and rethink the entire approach. The proposed compact is fundamentally flawed and will not achieve the ultimate stated goal of protecting and conserving the water resources of the Great Lakes.

To support its argument, this Article briefly recounts the background of the law relating to the water resources of the Great Lakes, with a particular focus on the recent negotiations that led to development of the proposed compact. It then describes the terms of the proposed compact and its structural flaws and limitations. Finally, it suggests an alternate framework that is more likely to achieve the important and widely-shared goals for promoting the sound management of the water resources of the Great Lakes Basin.

Great Lakes, water resources law, natural resources law, water resources management, water resources compact, water resources policy

Abstract:
Public participation processes in agency decision-making are commonplace today and they consume substantial portions of agency budgets. But agencies often struggle to design processes that meaningfully engage the public. The lack of meaningful engagement is often excused as the fault of the other side. The agency faults the public for comments that lack specificity or that fail to account for the factual and legal constraints underlying the proposal, and the public faults the agency for ignoring its comments or failing to take them into account in making its final decision. Public frustrations with agency process often exacerbate public disenchantment with agency decisions.

This paper offers a prescription for making public processes more meaningful in the context of policy decisions impacting natural resources. It begins by tracing the history of public participation in government action. It then reviews the arguments that support public participation, as well as several reasons that may counsel against it. Participation processes will surely endure, but a better appreciation of the challenges that participation processes present can help agencies tailor their processes to be more meaningful.

The chapter then analyzes the theoretical foundations for public participation, concluding that the civic republican tradition offers the only viable approach for meaningfully engaging the public in natural resources decision-making. Various modes of participation are then evaluated in light of the civic republican model, with suggestions for modifying these processes to enhance their utility in engaging the pubic. Finally, the chapter discusses some of the ongoing problems with current public processes and suggests possible reforms.

public participation, administrative law, natural resources, environmental law, civic republican

Abstract:
Wetlands regulation in the United States has a tumultuous history. The early European settlers viewed wetlands as obstacles to development, and they drained and filled wetlands and swamps at an astounding rate, often with government support, straight through the middle of the twentieth century. As evidence of the ecological significance of wetlands emerged over the last several decades, programs to protect and restore wetlands became prominent. Most notable among these is the permitting program under § 404 of the Clean Water Act. That provision prohibits dredging or filling of "navigable waters," defined by law to mean "waters of the United States." Since 1975, the United States Army Corps of Engineers (the Corps), which is primarily responsible for the § 404 permitting program, has construed "navigable waters" expansively to encompass most wetlands that could affect interstate commerce. In three decisions over the course of twenty years, the Supreme Court has expressed increasing skepticism that the phrase "navigable waters" supports the Corps' broad claim of regulatory authority. In its most recent decision, United States v. Rapanos, 126 S.Ct. 2208 (2006), a majority of the Court found that the phrase "navigable waters" encompassed only those waters that met the traditional test for navigability.

This Article considers the state of federal wetlands regulation after Rapanos. It begins by describing the significant role that wetlands play in the ecological health of the planet, and the impracticality of setting standards to protect those wetlands at the state or local level. It then examines the history of wetlands regulation, focusing in particular on the Clean Water Act, and the problems encountered with regulating wetlands by federal agencies and in the courts. The Article concludes with recommendations for improving the § 404 program. While the Corps can and perhaps should adopt rules to clarify the law, the time is long overdue for Congress to amend the Clean Water Act to clarify the scope of federal authority over wetlands. In doing so, Congress should affirm its original intent to establish a comprehensive federal program for wetlands regulation under the Clean Water Act. This can best be accomplished by abandoning the ill-fated use of the phrase "navigable waters" and substituting a new phrase such as "constitutional waters," which will clearly convey Congress' intent to encompass all waters that are subject to federal jurisdiction under the constitution.

wetlands, Clean Water Act, navigable waters

Abstract:
The Antiquities Act of 1906 authorizes the President of the United States "to declare by public proclamation, historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon [federal] lands . . . to be national monuments . . . " The law was passed during the Theodore Roosevelt administration, and Roosevelt quickly set about designating a wide range of lands and resources as national monuments, including notably, the 800,000 acre Grand Canyon National Monument. Roosevelt's expansive interpretation of the law was embraced by later presidents and ultimately by the Supreme Court. In the latter part of the 20th century the use the law waxed and waned, reaching new heights with President Carter's spectacular designation of 56 million acres of land in Alaska as National Monuments, then falling dormant, only to become resurgent again at the end of President Clinton's first term with the designation of the Grand Staircase-Escalante National Monument, and the designation of 21 new or expanded monuments in Clinton's second term. This article traces the history of the Antiquities Act and its remarkable legacy. It describes the many special places that have received protection under the law, and the many controversies that the law has sparked. It also addresses the myriad legal and policy issues raised by the law and its evolution as a conservation management tool. Finally, the article discusses proposals for reforming the Antiquities Act, ultimately concluding that the law should remain just as it is.

national monuments, natural resources, national parks, Antiquities Act