• Mark Ryan

Two Interesting New CWA Cases

The two cases below (including the earlier-reported 2019 Puget Sound case) are both interesting reads. The Puget Sound case shows a court struggling with a clear violation of the law and the harsh consequences of vacatur. I think the judge did a good job of playing Solomon. The second case also illustrates judicial moderation in keeping desperation defense tactics at bay. Plaintiffs and defendants both overreach at times. The courts keep us in line.

Coalition to Protect Puget Sound Habitat v. USACOE, 2020 WL 3100829 (W.D. Wash. 2020) (in case challenging NWP 48, held that the permit should be vacated because the permit record did not support conclusion that the permit would have minimal impacts and the Corps did not comply with NEPA; held that the Corps did not show that District-level verification of projects would overcome seriousness of its failure to comply with the CWA and NEPA; court spent considerable time weighing the equities of vacatur; court stayed vacatur for 60 days to allow appeal and stayed parts of vacatur as applied to certain producers to avoid economic hardship)

United States v. E.R.R. LLC, 2020 WL 3063898 (E.D. La. 2020) (on motion in limine in OPA cost recovery case, held that defendant may not bring up the timeliness or completeness of the Coast Guard’s response to defendant’s FOIA requests because those issues are irrelevant to the underlying OPA claims in the case)

Coalition to Protect Puget Sound v. USACOE, 2019 WL 5103309 (W.D. Wash. 2019) (held that Corps was arbitrary and capricious in reissuing NWP 48 where there was insufficient evidence in the record to support the conclusions that the permit would have minimal individual and cumulative adverse impacts on the aquatic environment; the Corps must analyze the individual and cumulative impacts of the proposed activity against the environmental baseline, not as a percentage of the decades or centuries of degrading activities that came before it)

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