In this issue’s first Lead Article, “Emerging Trends in the Regulation of Stormwater,” Stefanie Pennington Albright highlights the recent changes to stormwater regulations, as well as emerging changes to both state and federal stormwater programs and their potential impacts. Ms. Albright provides an overview of the stormwater permitting program, including a background of the federal program and implementation by Texas. The article also discusses future trends in stormwater permitting. Ms. Albright’s article helps highlight how these emerging changes to stormwater permitting and policies could greatly affect regulated entities and why regulated entities should carefully monitor these developments.
In the second Lead Article, “The ‘Wetlands Adjacent to Non-Navigable Waters’ Less Traveled: Clean Water Act Jurisdiction and the Fifth Circuit,” Clifton Cottrell reviews the scope of jurisdiction retained by the federal government under the CWA for wetlands, six years after the Supreme Court’s controversial decision in Rapanos. Mr. Cottrell explores when wetlands adjacent to non-navigable waters of the United States are also a “navigable water” sufficient to establish jurisdiction under the CWA. After a brief regulatory overview of CWA jurisdiction, the article reviews a trio of Supreme Court cases interpreting this issue. Mr. Cottrell then discusses how federal circuit courts, including the Fifth Circuit, have handled the inherent issues created by Supreme Court precedent.
In the first of two Student Notes, “The Status of Environmental Class Action post Wal-Mart v. Dukes,” Callan Edquist discusses how this landmark case has the potential to affect class certification for all areas of law, including environmental litigation. This note evaluates how courts have applied the Wal-Mart decision, and how class certification post-Wal-Mart affects class certification for environmental cases. After evaluating the impact of Wal-Mart on three environmental cases, Mr. Edquist discusses the kinds of cases, if any, that stand a good chance of surviving the new heightened standard established by the Supreme Court in Wal-Mart.
In our second Student Note, “The Texas Oil and Gas Industry vs. the Dunes Sagebrush Lizard: How the Texas Habitat Conservation Plan Saved More Than Just a Lizard,” Nicolas Parke explores the controversy of whether to list the Dunes Sagebrush Lizard as an Endangered Species and the subsequent Texas Habitat Conservation Plan. The note provides a brief background on the resurgence of the oil and gas industry in the Permian Basin region of Texas and the Endangered Species Act. In addition, the note looks at past Habitat Conservation Plans (HCP) and their potential for success. The note then discusses the recent settlement agreement that gave rise to the controversial listing discussion regarding the Lizard and which has the potential to affect over 250 other species. Mr. Cottrell concludes that deciding to rely on the THCP rather than listing the Lizard may have saved both the Lizard and the longevity of the ESA.
Lyn Clancy Rachael K. Jones
Editor-in-Chief Recent Developments Editor
Molly L. Powers Shelby Gutierrez
Student Editor-in-Chief Managing Editor
Aaron Tucker Hannah Wilchar
Lead Articles Editor Symposium Editor
Student Notes Editor