• Mark Ryan

Two New CWA Cases

Here are two new decisions from the courts. The Melton Properties case is an interesting one dealing with the old question of jurisdiction over residual discharges from a one-time accident. The Court dives into the weeds on that one, and does a fair job on the analysis.

Sierra Club v. USACOE, 2020 WL 7389744 (D. Me. 2020) (denying motion for PI in case challenging Corps issuance of 404 permit to power company without an EIS, held that plaintiffs could not show likelihood of success on the merits in their various challenges to the permit; Corps was not required to extend its analysis to non-WOTUS impacts)

Melton Properties, LLC v. Illinois Central Railroad Co., 2020 WL 7335018 (N.D. Miss. 2020) (on motion for reconsideration and for interlocutory review after dismissal of case involving ongoing discharges from train derailment, held that 4th Cir. authority on Gwaltney was not overturned by Maui; it is insufficient for Gwaltney purposes for plaintiff to simply allege that there are continuing effects from a past discharge - the issue is continuing discharges from a point source; court also denied motion for interlocutory appeal)

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