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Until recently, Oregon's public trust doctrine included both traditionally navigable-in-title as well as navigable-in-fact waters. However, in 2005, the Oregon Office of the Attorney General issued an opinion that drastically limited the public trust doctrine to include only navigable-in-title waters, reducing the state's fiduciary trust obligations through the creation of the so-called "public use" doctrine. In the wake of that opinion, the state denied state trust protection to a 400-acre navigable lake and to the atmosphere in two high-profile cases. Oregon has consistently denied any fiduciary obligations for the only trust resources the state acknowledges--navigable-in-title waters and the underlying submerged lands. The attorney general's 2005 opinion, denying public trust protection to waterbodies underlying private submerged lands, has created what is now among the narrowest public trust obligations in the United States, and one entirely out of step with public trust developments abroad. The role of the attorney general in denying public trust obligations that are widely recognized elsewhere stems from an inherent conflict between two of the attorney general's duties: defending state agencies in cases alleging breach of trust responsibilities and representing the public's interest in trust resources. Over a decade ago, the Oregon State Bar offered a potential solution to this conflict, when the Sustainable Future Section proposed the creation of the Office of the Legal Guardian to act as a custodian and advisor for the state's public trust resources. Building on that 2012 proposal, as well as the experiences of New Jersey's comparable former Department of the Public Advocate, this Article offers suggestions for establishing a Legal Guardian in Oregon today. This proposal would not only eliminate the attorney general's ongoing conflict of interest, but would give the Oregon public an unbiased advocate to protect important resources to which the state has denied trust protection., I. INTRODUCTION 174 II. OREGON'S PUBLIC TRUST DOCTRINE 179 A. A Brief History of the Public Trust Doctrine in Oregon 180 B. The Modern Public Trust Doctrine in Oregon 184 [...]

Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act. When Congress [...]

The Supreme Court has agreed to review the decision of the Ninth Circuit in Sackett v. Environmental Protection Agency. As framed by the Court, the Question Presented is: 'Whether the Ninth Circuit set forth the proper test for determining whether wetlands are 'waters of the United States' under the Clean Water Act.' Oral argument is set for the October 2022 term. The grant of review is surprising for many reasons. No constitutional issue is presented. There is no conflict among the courts of appeal requiring intervention by the Court. The Ninth Circuit, like every other circuit that has considered the question, looked to the 'significant nexus' test under Justice Kennedy's concurring opinion in the famously fractured decision in Rapanos v. United States. Petitioners argue that this was an error and that the Ninth Circuit should have applied the test articulated by the late Justice Scalia in the plurality opinion in Rapanos, requiring that there be a 'continuous surface connection' between a wetland and 'a relatively permanent body of water.' However, none of the circuit courts have ruled that the 'Scalia test'is controlling. Rather they have viewed the Scalia test as providing an additional basis for CWA jurisdiction in the event the Kennedy significant nexus test was not met. Moreover, the responsible agencies, EPA and the Corps of Engineers, are presently engaged in a two-step rulemaking process to develop a new definition of 'Waters of the United States.' Normally, the Court would await the outcome of a rulemaking before intervening and issuing an opinion on the scope of an agency's authority before the agency has adopted a final rule, based on a fully developed administrative record. Finally, petitioners are not facing any enforcement action and cannot point to any imminent threat of harm. EPA withdrew the compliance order that gave rise to the original controversy and has represented that it has no intention of taking any enforcement action. The Ninth Circuit ruled that the case was not moot because EPA might change its mind. What an agency might do in the future hardly meets the strict standards for Article III standing, and such a ruling raises questions about whether the case is even justiciable at this stage. Now that the Court has taken jurisdiction and is unlikely to dismiss the petition as improvidently granted, the question is: what will it do? It is safe to assume that it will reverse the Ninth Circuit and reject the significant nexus test for determining what constitutes a water of the United States. How much further it goes in limiting the geographic scope of the CWA is an open question. Conventional wisdom suggests the conservative majority will adopt Justice Scalia's test and thereby significantly shrink the scope of the Act. Other possibilities include a narrow, fact-based decision that sends the case back to the lower courts with instructions to reconsider the question based on several factors similar to what the Court did in the County of Maui v. Hawai'i Wildlife Fund case in 2020. Alternatively, should the Court adopt the Scalia test as the only permissible interpretation of the statute, what would be the consequences for water quality across the country? Some argue that the states will simply fill the gap. But the evidence is to the contrary. Over half of the states have laws on the books that prohibit regulations that are stricter than what federal law requires. There is no reason to think these states, many of whom have filed amicus briefs in support of petitioners' position that federal jurisdiction should be radically reduced, will suddenly have a change of heart and move quickly to change their laws and make the substantial investments required to replace the regulatory framework that EPA and the Corps have administered over the past 50 years. To the contrary, the loss of federal protection for as much as a third of the nation's headwater streams and over half of the remaining wetlands will mean little or no regulatory protection for these vital resources and make it virtually impossible to achieve the CWA's objective to 'restore and maintain the chemical, physical and biological integrity of the nations' waters.', I. Background: How Did It Come to This? 375 II. What Happens Now? 379 III. Best Case: A Narrow, Fact-Based Decision 380 IV. Worst Case: Adoption of the Rapanos Plurality [...]

There are two ways of ensuring that one person's use of his or her private property does not infringe upon the rights of others. On the approach taken by the [...]

Pennsylvania farmer Robert Brace was sued by the federal government in 1987 for repairs he made to an existing drainage system on his farm. The Third Circuit Court of Appeals held in 1994 that Brace's repair activities did not constitute 'normal farming activity' and were therefore subject to Clean Water Act regulation. After thirty years of contending with the government, Brace has now filed an $8 million administrative action against the Environmental Protection Agency, the Army Corps of Engineers, and the United States Fish and Wildlife Service requesting financial compensation for improper regulatory enforcement that has resulted in millions of dollars of lost profits. Mr. Brace should prevail in this lawsuit because he was wrongfully accused of violating federal regulations from which he was in compliance or exempt. Furthermore, to ensure that other farmers are not subjected to such a fate, structural changes must be made to the United States' environmental and agricultural regulatory systems. These changes include redefining 'normal farming activities' under the Clean Water Act to reflect a more realistic understanding of agriculture, reinforcing the original definition of Prior Converted Cropland to definitively exclude croplands converted prior to 1985 from Clean Water Act jurisdiction, and definitively recognizing the Commenced Conversion exemptions from Clean Water Act regulation given to farmers like Robert Brace. The Robert Brace case is a poignant reminder that failing to restrain regulatory overreach seriously threatens America's farmers. Agricultural and environmental interests must be balanced by policymakers and citizens alike, but regulatory frameworks divorced from the realities of farming are unhelpful on many levels. The story of Robert Brace shows that the shifting sands of the administrative state can pose a grave threat to individual freedoms if allowed to roam unchecked., I. INTRODUCTION On a cool morning in May 1987, twelve officials from the U.S. Environmental Protection Agency ('EPA'), U.S. Army Corps of Engineers ('Corps'), and the U.S. Fish and Wildlife [...]

Introduction American navigable waters are an important and strategic natural resource. Exploration, commerce, and navigation marked the early water history of the United States. (1) In the nineteenth century, Congress [...]

In this Article, we argue that, in their new Clean Water Rule, the U.S. Environmental Protection Agency and the US. Army Corps of Engineers illegally precluded waters being used by agricultural interests from being deemed 'adjacent' to other jurisdictional waters under the Clean Water Act (CWA). In so doing, the Agencies deny these waters the benefit of a conclusive presumption that they are themselves jurisdictional waters. Instead, in order to establish jurisdiction it is incumbent on the Government to show that these agricultural waters have a significant nexus with core jurisdictional waters, regardless of their proximity to those waters. This dynamic illegally injects into the statute the idea that the jurisdictional status of a water may depend on the use to which it is put. Further, such treatment of agricultural waters is inconsistent with the more limited favorable treatment that agricultural interests already receive under section 404(f) of the CWA., I. INTRODUCTION II. AGRICULTURE AND ITS IMPACT ON WETLANDS III. A BRIEF OVERVIEW OF HOW SECTION 404 APPLIED TO AGRICULTURE LEADING UP TO THE CLEAN WATER RULE IV. A SHORT [...]

This Article reviews the troubled history of the 'Waters of the United States' Rule of the Clean Water Act, and analyzes how its newest incarnation harnesses a surprising point of convergence between the conflicting Supreme Court interpretations in Rapanos v. United States that necessitated its development. While debate over the federalism implications of the Rule rages on, the framework it creates from the multiple Rapanos opinions suggests that the path forward hinges less on the substantive rule of jurisdiction and more on the regulatory architecture of presumptions, default rules, and burden shifting. Splitting the difference between competing judicial approaches, the new Rule alternates presumptions in favor of and against federal regulation in different hydrological contexts to appropriately support competing regulatory goals. By capitalizing on an elusive thread of continuity among seemingly irreconcilable judicial viewpoints, the new Rule may win safe passage through the next round of judicial review., I. INTRODUCTION II. THE CWA AND THE 'WATERS OF THE UNITED STATES' A. Wetlands Regulation Under the CWA B. Riverside Bayview Homes and Significant Nexus C. SWANCC and Hydrologically Isolated [...]

A growing body of science links hydraulic fracturing (fracking) to damage-causing earthquakes. Scientists and citizen groups fear these earthquakes could critically damage public civil works projects--e.g., dams, locks, and levees--that provide economic, environmental, and recreational benefits to the United States. This Comment argues that the U.S. Army Corps of Engineers (Corps), as caretaker of these public civil works projects and their associated navigable waters, has sufficient legal authority under section 10 of the Rivers and Harbors Act to manage the alleged risks. This Comment analyzes how section 10 has been successfully applied to regulate activities that, like fracking, take place outside of navigable waterways yet threaten the navigable capacity of U.S. waters. This Comment maintains that pursuant to section 10, the Corps could subject certain fracking operations to its existing permit program and seek to enjoin other similar operations. After acknowledging likely resistance to what would be an expansion of federal control over fracking, this Comment concludes that section 10 provides a strong legal foundation upon which the Corps could take action to protect its civil works projects from threats posed by fracking-caused earthquakes., I. INTRODUCTION II. BACKGROUND III. SECTION 10 OF THE RIVERS AND HARBORS ACT AS A POTENTIAL BASIS FOR AUTHORITY A. Courts Have Embraced Section 10's Upland Jurisdiction B. The Corps' [...]

It is an ancyent Mariner, And he stoppeth one of three: 'By thy long grey beard and thy glittering eye 'Now wherefore stoppest thou me? (1) I. Introduction 'Navigability' (2)--the [...]

D. The Federal Navigational Servitude Navigability is intuitively relevant in defining the geographic scope of a doctrine the Supreme Court has variously labeled a 'superior navigation easement,' (209) a 'dominant [...]

Oregon's public trust doctrine has been misunderstood. The doctrine has not been judicially interpreted in over thirty years but was the subject of an Oregon Attorney General's opinion in 2005. That opinion interpreted the scope of the doctrine to be limited to the beds of tidelands and navigable-for-title waters, and erected a separate 'public use' doctrine protecting public rights in other waters, including recreational waters. However, since Oregon courts have never limited public rights in the state's waters to those with publicly owned bedlands, the opinion should have recognized that the public trust doctrine provides broad public recreational rights in Ml waters. Indeed, since early statehood, Oregon courts and the legislature have recognized that water is publicly owned, and the Oregon Supreme Court has ruled consistently in favor of public rights in waterways, based on language in the Statehood Act that declared navigable waters to be public highways that would remain 'forever free,' not monopolized by private owners. Moreover, in the early twentieth century, the court explicitly ruled that the scope of public rights in publicly owned waters could and should evolve over time. This Article maintains that Oregon's public trust doctrine is grounded on public ownership of natural resources held in trust by the state in sovereign ownership. The state has always claimed ownership of water and wildlife within the state, so the courts should recognize both as public trust resources. Although the state can authorize private rights in those resources, Ml private rights are subject to the state's sovereign ownership--a public easement--requiring the state to maintain these resources as trustee for the public. Like the Statehood Act's declaration of public ownership of waterways, courts should interpret the public trust doctrine to be implicit in other statutory declarations of public ownership of natural resources. Similarly, use rights in ocean beaches, claimed by the public under the doctrine of custom, are public trust resources, necessary to enable public use of the adjacent publicly owned tidelands. This Article suggests that public ancillary rights exist in other uplands where necessary to provide public access to, or preservation of, public trust water and wildlife resources. Oregon's public trust doctrine is not of mere academic interest. The doctrine imposes duties on the state as sovereign owner of water, wildlife, and ancillary uplands. In an era of widespread skepticism of government management, the venerable public trust doctrine seems an especially appropriate mechanism to give citizens an opportunity to gain review of government action and inaction threatening unsustainable development of natural resources that are central to the state's identity, culture, and economy., I. INTRODUCTION II. THE 2005 ATTORNEY GENERAL OPINION III. PUBLIC WATER USE RIGHTS UNDER THE OREGON PTD A. Public Rights of Navigation, Fishing, and Commerce B. Public Recreational Rights IV. [...]

INTRODUCTION On June 4, 2009, the Eleventh Circuit in Friends of the Everglades v. South Florida Water Management District (1) held that the transfer of water by pumping contaminated water [...]