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A New Coal Dust Case and More on States Seeking 404 Assumption

Updated: Mar 13, 2020

The case below, 350 Montana, which didn't end well for the enviro plaintiffs, shows that the train-cars-as-a-point-source argument is still alive.


Following up on my last blogpost regarding the Florida 404 program, EPA is also actively working with Oregon, Maine and Nebraska to authorize 404 programs in those states. Other states have apparently made inquiries. It will be interesting to watch if the assumption approval process accelerates through 2020 as the Trump Administration's first term comes to a close. States likely view a Republican administration friendlier to granting 404 authority than a Democratic one, and will push to get their programs in place before the election in case Trump is not reelected.


350 Montana v. Bernhardt, 2020 WL 1139674 (D. Mt. 2020) (granting government’s motion for summary judgment in case challenging NEPA analysis for proposed coal mine, held that administrative record did not support allegations that coal trains would violate the CWA by discharging coal dust, so no EIS was required)

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