• Mark Ryan

A Slew of New CWA Cases

As I mentioned in my October 3 blogpost, the courts have been on a tear. Since October 3, I've blogged about 15 new cases, and today I add seven more to that number (plus a summary of the SF Baykeeper case I blogged about on October 6).

Stevens v. St. Tammany Parish, 2020 WL 6075908 (E.D. La. 2020) (denying motion for reconsideration of dismissal of case involving alleged permit violations and failure of the state to enforce the permit, held that plaintiffs’ suit is barred by res judicata related to prior state court action and failure to state a claim under the CWA)

Taylor Energy Co. LLC v. United States, 2020 WL 6075693 (in case challenging NPFC’s denial of claim for access to OPA fund related to post-hurricane offshore oil & gas platform leak, court denied plaintiffs’ motion to compel answer from government that it contented “lacked sufficient responses” and denied plaintiff’s motion to strike documents from the record)

American Rivers v. EPA, 2020 WL 5993229 (N.D. Cal. 2020) (granting industry groups motion to intervene citizens’ APA challenge to new 401 cert. rule; held that intervenors hold substantially difference interests than the current government defendants justifying their right to intervene)

OVEC v. Bluestone Coal Corp., 2020 WL 5914524 (S.D.W.V. 2020) (denying motion for stay of litigation on eve of trial, held that state’s administrative consent order that defendant argued is imminent and will moot the case does meet the Landis factors supporting a stay; “By stepping aside to allow WVDEP to attempt to fashion a remedy in a venue that the CWA does not contemplate (an administrative venue), complicated questions are likely to arise about how the court can fashion additional relief (if appropriate) around an administrative consent order.”)

Okanogan Highlands Alliance v. Crown Resources Corp., 2020 WL 5899400 (E.D. Wash. 2020) (on motion to dismiss in case alleging NPDES permit violations by mine, held that plaintiffs properly alleged ongoing violations of permit and CWA)

Optimus Steel, LLC v. USACOE, 2020 5881828 (E.D. Tex. 2020) (denying motion for PI in case challenging Corps’ issuance of NWP 12 to pipeline project, held that plaintiff has standing to sue under the CWA; plaintiffs did not unreasonably delay in bringing motion; where project will transform wetlands from forested to scrub-shrub wetlands, there is no loss of wetlands; where project will result in only 0.25 acres of impact on plaintiff’s property, it did not violate the ½ acre limit of NWP 12 and other impacts on the same pipeline project outside of plaintiff’s property are not considered as part of the “single and complete project”; Corps given Kisor deference in its interpretation of the terminal “minimal impact”; 404(b)(1) guidelines are applied at that time of approval of NWPs and not at each individual authorization under the NWP; plaintiff failed to show the irreparable harm necessary to obtain a PI)

Tan Phu Cuong Investment LLC v. King County, 2020 WL 6059694 (9th Cir. 2020) (unpublished) (affirming summary judgment in favor of defendants, held that county’s identification of wetlands on plaintiff’s property without proof of any economic injury does not constitute a regulatory taking; plaintiffs CWA citizen must be dismissed where plaintiffs failed to send a 60-day notice letter; court rejected argument that CWA violations alleged in the complaint are not brought under the citizen suit provisions of the CWA and therefore not subject to the 60-day notice requirement)

San Francisco Baykeeper v. EPA, ___ F. Supp. 3d ___, 2020 WL 5893392 (N.D. Cal. 2020) (on motion for summary judgment in case challenging EPA’s determination that salt ponds in S.F. Bay are “fast land” and therefore not WOTUS, held that EPA had misinterpreted prior 9th Cir. case law when it reached the conclusion that the ponds, which hold water and have important connections to the Bay, were nonjurisdictional uplands; because the land at issue would, absent the installed dikes, have been subject to tidal inundation in 1972, they are covered by the CWA)

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