• Mark Ryan

A Bunch of New CWA Cases Addressing a Variety of Interesting Issues

Updated: Dec 2, 2020

The courts continue to turn out what seems like a record number of CWA cases. (Watch for my end-of-year summary later in December where I crunch the final numbers for 2020 cases.) The APM Terminals case addresses the important issue of owner/operator liability. Clarke v. Pacific Gas & Electric Co is one to watch if it goes up on appeal because the on-going discharge issue is a close one. The Columbia Riverkeeper case dives into the need to look at climate change in permitting, which is always contentious, and the government's position on that issue will likely change under the Biden administration. Blankenship is my favorite of the bunch below simply because defendant's arguments are so audacious. Enjoy.

Puget Soundkeeper v. APM Terminals, 2020 WL 6741967 (W.D. Wash. 2020) (on motions for summary judgment in industrial stormwater case against port and lessees, held that evidence supporting standing need not be substantial; rejected defense argument that de mimus violations are insufficient; Port is not liable for lessee’s violations where no Port control over the activities is established; where violations of party are not ongoing when complaint is filed, the court has no jurisdiction)

Clarke v. Pacific Gas & Electric Co., 2020 WL 68229112 (N.D. Cal. 2020) (on motion to dismiss in case involving on-going discharges from an historically-contaminated site, held that plaintiffs with allegations of on-going violations does not seek retroactive application of the CWA; alleged discharge is a “single, continuous violation” and therefore is time-barred by the 5-year statute of limitations)

Columbia Riverkeeper v. USACOE, 2020 WL 6874871 (W.D. Wash. 2020) (on motion for summary judgment in challenge to Corps-issued 404 permit for export terminal for methanol refinery, held that Corps was not arbitrary and capricious in its consideration of job creation in its public interest analysis; Corps failed to properly consider the cumulative impacts of the proposed project by relying on the benefits, but non considering the detriments resulting from climate change; court denied plaintiff’s ESA challenges to permit)

Sierra Club, Inc. v. Granite Shore Power LLC, 2020 WL 6946588 (D. N.H. 2020) (on motion for summary judgement in case against coal-fired powerplant for violations of its NPDES permit, held that case is not moot where new permit with relaxed limits is stayed while on appeal to the EAB; permit provision addressing data collection is ambiguous and therefore not subject to a finding on summary judgment)

United States v. Mashni, 2020 WL 6875598 (D. S.C. 2020) (in case involving allegations of unauthorized placement of fill material in conjunction with real estate development, denied defendant’s motion to bifurcate proceedings into liability and penalty for purposes of discovery; held that no time will be saved by bifurcating since only penalty issue is defendant’s ability to pay and defendant will not be prejudiced by failure to bifurcate; court granted EPA’s motion to compel on defendant’s financial records)

Kinny v. Three Arch Bay Community Services Dist., 2020 WL 6707493 (9th Cir. 2020) (unpublished) (affirming dismissal of pro se case where plaintiff failed to provide adequate 60-day notice; court did not abuse its discretion in entering pre-filing review order where plaintiff was found to be a vexatious litigant)

Blankenship v. United States, 2020 WL 6778761 (S.D.W.V. 2020) (denying motion to vacate sentence in criminal case involving unpermitted discharges of domestic wastes from portable toilet business into creek; held that defendant’s attorneys acted properly when they did not move to suppress evidence from warrantless search of sewage truck parked next to creek with hose running into creek)

Ecological Rights Foundation v. Hot Line Construction, Inc., 2020 WL 6802029 (C.D. Cal. 2020) (denying without prejudice motion for site inspections in stormwater case; held that although plaintiff’s motion for site inspections seeks relevant information, it was premature because it came before the Rule 26(f) conference)

Stone v. High Mountain Mining Co., LLC., 2020 WL 6799922 (D. Co. 2020) (on motion for summary judgment in placer mining case, held that triable issues of facts exists as to how and whether pollutants from the mine enter the nearby river and it is not clear from the record that water quality impacts in the river can be traced to the mine)

United States v. Bunn, 2020 WL 6798939 (D. Mt. 2020) (granting motion to enter consent decree in unauthorized discharge of fill material into wetlands case; this settlement only applies to contractor and not owner; requires payment of $10,000 penalty and no injunctive relief because contractor does not own the property at issue)

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