Environmental Engineering Reference
In-Depth Information
Underlying the development of legal theory in the United States is a body of rules
and principles related to the government and security of persons and property which
had its origin, development and formulation in England. Brought to the American
colonies by peoples of Anglo-Saxon stock, these basic rules were formally adopted
in the states in which they were in force after the American revolution. Known
as the “common law,” these principles are derived from the application of natural
reason, an innate sense of justice and the dictates of conscience. The common law
is not the result of legislative enactment. Rather, its authority is derived solely
from usages and customs which have been recognized, affirmed and enforced by
the courts through judicial decisions.
It is important to realize that “common law” is not a fixed or absolute set of written
rules in the same sense as statutory or legislatively enacted law. The unwritten
principles of common law are flexible and adaptable to the changes which occur
in a growing society. New institutions and public policies; modifications of usage
and practice; changes in mores, trade, and commerce; inventions; and increas-
ing knowledge, all generate new factual situations which require application and
reinterpretation of the fundamental principles of common law by the courts.
As the courts examine each new set of facts in the light of past precedent, an
orderly development of common laws occurs through a slow and natural process.
Thus the basic principles underlying American jurisprudence remain fundamentally
constant, evolving slowly and progressively in scope as they absorb the surface
ripples produced by the winds of social change.
The American legal system has evolved two very different bodies of law that
define how the public (and private) interest is protected when land is developed
as compared to when water resources are affected. The regulatory processes and
the administrative systems that guide decisions concerning land use and water use
are separate and independent of each other, with state and federal laws protecting
water, and local units of government deciding exactly how the land is to be used.
Of course, there are some overlapping areas, but for the most part, the decision
makers for land use are different from those who control the use, allocation, and
quality of our water resources. To illustrate, we consider how environmental law
has evolved with respect to water quality and land use in the United States.
Federal Water Quality Law
Prior to 1970, the states set standards that established allowable concentrations
of pollutant parameters for various water bodies. In 1972, the federal effort to
restore water quality began with the passage of the Federal Water Pollution
Control Act [2] and the Marine Protection, Research and Sanctuaries Act [3]. In
1977, the Federal Water Pollution Control Act was renamed the Clean Water Act
(CWA), and Congress changed the regulatory focus to rigorous control of toxic
water pollutants. In 1987, extensive amendments were made to assure attainment
of water quality goals in areas where compliance was insufficient. From this
foundation, a large set of regulations related to various permitting processes has
become the primary guidance throughout the country, with the delegation of most
programs to state agencies.
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