• Mark Ryan

Five New CWA Cases

Here are five new CWA cases from the past week. The Acquest Transit LLC case appears to be finally heading to trial after many years of litigation, and it is apparent from the two decisions reported below that it remains very contentious. The judge is allowing much of defendant's proffered expert testimony, but he did signal at the end of the summary judgement opinion that he had his doubts about defendant's case.

National Wildlife Federation v. DOT, ___ F.3d ___, 2020 WL 3026541 (6th Cir. 2020) (reversing district court, held that § 1321(j)(5) does not require EPA consultation under the ESA or to comply with NEPA in approving an oil spill response plan submitted by a pipeline company; the Act provides that EPA “shall” approve any response plan that meets the requirement of the Act; NOTE dissent)

OVEC v. Bluestone Coal Corp., 2020 WL 2949782 (S.D.W.V. 2020) (denying motion to dismiss, held that prior consent decree did not shield defendant from allegations of violating NPDES permit conditions that were not in place at time of filing of decree in 2016 because the decree was not designed to require compliance with the permit plaintiffs seek to enforce and the court is not convinced that the decree will ensure compliance with the permit)

Center for Biological Diversity v. Swift Beef Co., 2020 WL 2914868 (D. Colo. 2020) (denying motion to dismiss, held that citizen group had standing to sue meat packing plant for NPDES permit violations where it alleged that the violations were likely to recur owing to the lack of a workable solution to the underlying problems with the wastewater treatment at the plant; held that plaintiffs showed harm, causation and redressability for purposes of establishing standing)

United States v. Acquest Transit LLC, 2020 WL 3042673 (W.D.N.Y. 2020) (on motion for summary judgment in wetlands case, held that Kennedy significant nexus test applies; triable issues of fact exist regarding site hydrology; CWA is not void for vagueness on definition of WOTUS; recent Supreme Court decision in Maui is not dispositive on what is WOTUS; triable issues of fact exist on whether site meets significant nexus test; neighboring creek is a TNW; EPA retains the right to declare PCC abandoned even when USDA no longer determines abandonment; rejected argument that as a matter of law PCC status cannot be abandoned; triable issue of fact exists whether PCC on subject property was abandoned; EPA properly classified construction activity was an industrial activity under the stormwater regs; triable issues of fact exist whether defendant engaged in construction activities at the site; defendant exceeded the scope of the NOI in its state stormwater permit)

United States v. Acquest Transit LLC, 2020 WL 2933168 (W.D.N.Y. 2020) (on motions to exclude expert testimony is wetlands case, held that objections to well testing by defense expert goes to weight, not admissibility of evidence, but held that dye test performed on well did not meet Daubert standard for admissibility; expert testimony of status of land as PCC not admissible where witness was proffered as expert on soil and geology, and not farming practices; decease witness’ grand jury testimony regarding construction activities at the site is not admissible where it was based on hearsay)

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