Lesson Plan for 2/21 (1) Adminstrative Stuff: Idea for long paper due Feb. 28 next Thursday.

y. We have office hours tonight for those who want to meet with us about it. Short paper #2 will be due Tuesday, March 12, and well have the prompts to you by Saturday. (?) Tuesday reading will be posted by Saturday morning: pp. 539-556 Thursday will be fracking day w/ Christina; Laura will be at PIELC. (2) Environmental Issue of the Day: Wolverine Protections / Review of Federal Register (a) http://video.pbs.org/video/1642358743/ (watch to minute 4:55) (5 minutes) (b) http://www.gpo.gov/fdsys/pkg/FR-2013-02-04/pdf/2013-01478.pdf (proposed listing of wolverines under ESA) (project on overhead?) Questions: Where was this document published? (Federal Register) What is the document? (proposed rule) Who is the author of the document? (Department of the Interior) What is the statute at issue? (Endangered Species Act) What will happen after the proposed rule? (notice and comment process, final rule, possible challenges in court) Clean Water Act (3) Intro Discussion -Question: If the Clean Water Act (1972) was modeled on the Clean Air Act (1970), what would the statute look like? (water quality criteria -> water quality standards -> SIPs) Note to students that this was one proposal for the form of the Act. See p. 532: The House wanted a water-quality-based approach; the Senate wanted a tech-based approach. Final bill was both tech-based and water-quality based stronger than either the House or Senate envisioned. -Question: What are the pros and cons of harm-based and tech-based approaches? Criticisms of the harm based approach: o Environmental movement criticized the harm-based approach and its philosophy that there exists a right to discharge up to the assimilative capacity of the environment. o Freezes technology at least until water quality standards have been violated Criticisms of the tech-based approach: o (1) it does too little (does not protect acutely impacted waterbodies); o (2) it does too much (requires greater treatment than necessary to maintain desired uses for waterbodies);

o (3) in practice, permissible technologies are limited to available ones that meet the standards so tech-based standards are insufficiently technology-stimulating Note that some of the criticisms are addressed by the fact that the CWA has tech-based approach, topped off by a harm-based approach. See p. 524. o Under NPDES, all point source dischargers of pollutants are assigned EPApromulgated performance standards based on best technology available. o These are called TBELs: Technology-based effluent limitations. o Point source dischargers on water quality-limited stretches must meet, in addition to TBELs, harm-based effluent limitations, called water quality-based effluent limitations.

-Question: Look at the language from the Act that is quoted on p. 529. Can someone put to me in plain language what the goals of the Act are? Note to students how huge these goals are fishable/swimmable by 1983, and elimination of discharge of pollutants by 1985. -Question: Who has to get a permit? Look at p. 523 (FN1) and p. 534. SEC. 301. (a) Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful. discharge of a pollutant = any addition of any pollutant to navigable waters from any point source. -Question: What is a point source? See p. 536: a discrete and confined conveyance, such as a pipe, ditch or channel. -Question: What is a navigable water? See p. 534 (discussion of Rapanos) Explain what plurality means: When the majority splits, the plurality is the part of the majority with the most justices signing on. Question: What waters does Scalia say fall under the CWA? o Requirement of a continuous surface connection with a water of the United States meaning only relatively permanent, standing or flowing bodies of water. Explain that Justice Kennedys single opinion is important even though hes just one justice because it is technically a concurrence with Scalias opinion, and so together they are in the majority. Question: What waters does Kennedy say fall under the CWA? o must be significant nexus between the wetlands and the navigable waters if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable. Question: Who do you think has the better argument? Question: Scalia says that The Corps interpretation stretches the outer limits of Congresss commerce power and raises difficult questions about the ultimate scope of that power. What does he mean?

o The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." o Congress has power over navigable waters because they are channels of commerce. But how far does this power go? -Question: What is not covered by the CWA? Nonpoint sources

(4) Putting It in Context: Florida Algae Outbreaks http://earthjustice.org/slideshows/images-of-florida-nutrient-pollution-and-algaeblooms#/sites/default/files/santa-fe-slime1.jpg -Question: Does the Clean Water Act regulate this? What would you need to know about the pollution to answer that question? What is the source? Point or nonpoint? Discharged into navigable waters? -Question: Given what you know, why might this be a problem? Maybe the source of the pollution is nonpoint pollution not regulated under the CWA. Maybe the EPA has not set TMDLs for the pollutant that is causing the slime. Maybe EPA is not enforcing the limits it set.