• Mark Ryan

Two New CWA Cases

The first case below, Sawtooth Mountain Ranch, is an interesting one. Plaintiffs bought a piece of property with an existing easement for a bike path. They sued to stop construction of the path, first under NEPA, then under the ESA and the CWA. They lost both of their PI motions. The Corps permitted the small fills for the path under NWP 42. Unable to challenge NWP 42 directly, they attempted to challenge the completeness of the applicants' NOI, and lost. The court also kept out plaintiff's expert report on the grounds that it was an APA record-review case and supplementation of the record was not warranted. In an interesting twist, plaintiff is represented by a BIGLAW firm (with multiple partners listed as counsel) to stop a bike path, using arguments usually made by the enviros.

Sawtooth Mountain Ranch LLC v. United States, 2020 WL 3549159 (D. Idaho 2020) (denying motion for PI in case challenging Forest Service construction of bike path on easement across plaintiff’s property, held that CWA does not authorize plaintiffs to challenge thoroughness of NOI submitted to Corps under NWP 42; nature of wetlands and their alleged connection to WOTUS is irrelevant under NWP 42, which authorizes discharges under ½ acre; NWP 42 does not impose on the Corps an obligation to review the ESA assumptions made by F.S. when applying for the NWP; plaintiffs may not challenge a preliminary JD, which is advisory and not a final agency action; plaintiffs may not supplement the administrative records with expert affidavits challenging the completeness of the NOI)

OVEC v. ERP Envt’l Fund, Inc., 2020 WL3470509 (S.D.W.V. 2020) (ordering joining the receivership estate of defunct coal mine as defendant for purposes of complying with prior CWA consent decree entered into by coal mine)

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