• Mark Ryan

Two New CWA Cases

These two new cases are largely procedural in nature, but the Telford case addresses some interesting (and aggressive) attacks on the underlying record supporting a TMDL.

Telford Borough Auth. v. EPA, 2020 WL 605666 (E.D. Pa. 2020) (granting in part and denying in part motion to amend complaint, held that new claims re EPA’s denial of request to reconsider TMDL were not futile were record wasn’t clear whether EPA had acted on the request; record was unclear whether EPA’s denial of request to have the science underlying the TMDL independently peer-reviewed was a final agency action; public notice and comment not required for nutrient report that supported TMDL because the report was not a rulemaking)

Kelly v. City of Poway, 2020 WL 619567 (S.D. Cal. 2020) (granting motion to amend complaint to add claims from 60-day notice letter in case against city for violations of CWA (plaintiff was pro se at start of litigation); held that defendant can show no prejudice where much of work on motion to dismiss could be reused in new motion based on new alleged facts where additional facts are substantially related to those already in the complaint)

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