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Four New CWA Cases Including Two Very Old Ones

The Pozsgai and Robertson cases below are two of the oldest wetlands cases around; both have been in litigation for decades. Only wetlands cases inspire that kind of passion. The courts handed down another six cases while I was away. I'll report out on those soon.

United States v. Pozsgai, 2020 WL 6562060 (E.D. Pa. 2020) (ordering defendant to comply with 2007 civil contempt order in wetlands enforcement case; rejected defendant’s argument that he was too old and penurious to comply where government had offered to hire contractor at no expense to defendant to remediate the site, and defendant declined)

Idaho Power Co. v. EPA, 2020 WL 6449166 (D. Idaho 2020) (denying plaintiff’s request for attorney fees under 505(d) in case where EPA failed to approved state submit site specific criteria within statutory deadline under 303(c) and plaintiff sued to force action; plaintiff was not a substantially prevailing party where it agreed to dismissal of case after EPA agreed to act on the state submission, but where there was no court order)

In re Clean Water Act Rulemaking, 2020 WL 6686370 (N.D. Cal. 2020) (in challenge to new 401 cert. rule, held that EPA is required to provide privilege log as part of the administrative record; EPA’s admission of that “a considerable number of documents had been excluded from the administrative record” satisfies plaintiff’s burden of proving the withheld deliberative documents should be disclosed)

United States v. Robertson, ___ F.3d ___, 2020 WL 6604323 (9th Cir. 2020) (affirming district court requirement that defendant in wetlands enforcement case partially reimburse costs of public defense where he was shown to have the assets; criminal conviction was vacated on appeal after the death of the defendant)



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Sackett 9th Circuit Oral Argument

Remember Sackett? Yes, that Sackett. Well, it's still alive after all these years, at least until the the 9th Cir. rules. [Full disclosure, I worked on the Sackett case while at EPA.] Quick summary.

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