Deborah M. Smith United States Magistrate Judge District of Alaska

1. Laws and law enforcement Related to Freshwater ecosystems Deborah M. SmithUnited States Magistrate JudgeDistrict of Alaska • Second Asian Judges Symposium on Environment • Manila, Philippines • December 4, 2013

2. Right to Common Use of Natural Resources • Roman Law: Resources such as air, flowing water and the seaswere common to all. To harm these resources was to violate the public trust. The public trust doctrine was used to protect waterways. • Right of Access to Waters in the U.S.: At state-hood, title to certain lands beneath navigable waters vested in the states. Most states recognize the public right to access waterways including tidelands. Courts recognize the public’s right of access and that states hold the resources in trust for the public.

3. Right to Common Use of Natural Resources (cont’d) • State of Alaska Constitution: • “Wherever occurring in their natural state, fish, wildlife and watersare reserved to the people for their common use.” Article 8, § 3 • “No person shall be involuntarily divested of his right to the use of waters, his interest in lands or improvements affecting either,except for a superior beneficial use or public purpose and then only with just compensation and by operation of law.” Article 8, § 16

4. Three Laws Protecting Water and Wetlands National Environmental Protection Act (NEPA) 42 U.S.C. §§ 4321- 4370 • Established national environmental policy goals in 1970 • Sets up procedure for all federal government agencies to prepare Environmental Assessments (EA) and Environmental Impact Statements (EIS) to review environmental effects of proposed major agency action • Requires agencies to consider possible alternatives which are less damaging to the environment

5. National Environmental Protection Act (cont’d) • Protects against uninformed decision making by government officials • The EIS must be disclosed publicly; the public can comment on it and citizens have standing in court to sue an agency to force compliance with the law • Adequacy of EA and EIS can be reviewed by federal judge pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701-706

6. National Environmental Protection Act(cont’d) • 85 countries have similar statutes • Many U.S. states, cities and native tribes have NEPA-like laws • Many multilateral lending agencies require NEPA-type analysis of major infrastructure projects before extending credit

7. National Environmental Protection Act (cont’d) • NEPA directs all federal agencies to “recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment.”

8. Rivers and Harbors Act of 189933 U.S.C. §§ 401-467n • Purpose is to avoid interference with navigation in U.S. waters • Law prohibits discharge of most refuse into navigable waters without a permit from the Secretary of the Army • Over time, courts have defined “navigable waters” broadly to cover any tributary connected with a physically navigable waterway • Focus of the law is on specific, individual discharges

9. Clean Water Act33 U.S.C. §§ 1251-1387 • Purpose is to eliminate pollution from rivers and lakes • Two-pronged attack: • Regulate specific, individual discharges by requiring a permit • Establish water-quality standards for waters receiving the discharge • Generally, discharge of any pollutant into a U.S. navigable water is illegal, unless the discharge is permitted (certain exceptions apply) • U.S. navigable water includes “all waters that could be used in interstate commerce. . . . . ”

10. Clean Water Act(cont’d) • U.S. waters can include intrastate lakes, rivers, streams and wetlands that are tributaries of navigable waters • U.S. states are the primary enforcers of the federal regulations • Environmental Protection Agency (EPA) and U.S. Department of Justice also have enforcement powers • Law provides for civil and criminal penalties • Law allows citizens and non-governmental organizations to sue to enforce the law, challenge issuance of permits or refusal to issue a permit

11. Clean Water Act and Wetlands • Law regulates discharge of dredged or fill material into certain wetlands. • A permit is necessary from the Secretary of Army to discharge into wetlands (certain exceptions apply). The EPA can veto issuance of the permit if the fill will have adverse environmental impacts. • In addition to a permit, discharger must have a Water Quality Certification, finding that the proposed fill will not degrade the applicable water quality standard

12. Enforcement of Environmental Laws by Government • Environmental Protection Agency (EPA) establishes regulations controlling pollution and sets standards for discharges • EPA enforces regulations and laws with compliance orders, administrative penalties, initiation of civil actions • EPA also conducts criminal investigations, reporting to the U.S. Department of Justice if prosecution is warranted • Many local, state and federal government agencies are involved in administrative, civil and criminal enforcement of numerous environmental laws

13. Enforcement of Environmental Laws Through Citizen Suits • Some environmental laws, such as the Clean Water Act, authorize citizens to sue to enforce the law. • A state can also sue the EPA administrator if the EPA fails to enforce the law and the state is harmed. • Certain citizens and non-governmental groups may sue and seek judicial review of most agency actions, such as establishment of a specific regulation to enforce an environmental law, pursuant to the Administrative Procedures Act. • Federal courts have authority to compel agency action required by law which has been unreasonably delayed or denied. Administrative Procedures Act, § 706(1).

14. Protection of the Environment Through Common Law Suits • Private civil suits based on common law supplement federal statutory enforcement. • Monetary damages and/or injunctive relief are available remedies. • Civil suits alleging personal injury due to environmental harm are often based on common law theories of negligence and strict tort liability. Negligence per se can be claimed when a defendant violated a statutory standard. • Civil suits alleging property damage due to environmental harm are often based on common law theories of nuisance, trespass and contract law.