• Mark Ryan

A Corps JD Challenge, a Trash TMDL and a Good Judicial Tongue Lashing

Here are three new CWA cases. And here's judicial ire you never want to see directed at you: "The staggering irony underlying [defendant's motion to strike] is that Frontier's own arguments in its motion for judgment on the pleadings demonstrate its consistent failure to grasp even the most fundamental concepts of the applicable law, as the court has been compelled to reiterate in this order ad nauseum." Or, "[h]ad Frontier grasped this elementary principle of civil procedure, the court imagines it might have thought better than to file the instant motion." Ouch. See Waterkeeper v. Frontier Logistics below.

NRDC v. EPA, 2020 WL 5632410 (D. D.C. 2020) (on motion for reconsideration on EPA’s discretion as to how to establish a trash TMDL for the Anacostia River, held where the states have not clearly and unambiguously decided to not submit a TMDL, the court will not intervene with a deadline where the CWA does not impose one; multi-year delay in preparing TMDL alone is not enough to warrant ordering EPA to take over preparation of the TMDL)

Lewis v. USACOE, 2020 WL 5542665 (E.D. La. 2020) (denying motion for reconsideration of order remanding JD to Corps for further fact finding, held that Corps should reconsider the JD and put together an administrative record for the court to review on the merits)

Charleston Waterkeeper v. Frontier Logistics, L.P., 2020 WL 5629717 (D. S.C. 2020) (denying motion to dismiss in case involving discharges of small plastic pellets from production facility, held that plaintiffs had pled sufficient facts to show standing; third-party subpoena to Port Authority was not blocked by sovereign immunity; plaintiffs pled sufficient facts to support a claim of an ongoing unauthorized discharges of pollutants (plastic pellets) from a point source to WOTUS; plaintiff can simultaneously allege CWA and RCRA claims if some of the discharges are not covered by the CWA; denying motion to strike affidavits in support of standing)

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