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Eastern Water Law & Policy Reporter

February 2013

Volume 8, Number 2 February 2013


EPA Provides Progress Report for Ongoing Study of Hydraulic Fracturing’s Impacts on Drinking Water35

News from the West37


NOAA Issues Proposal to List 66 Coral Species under the Endangered Species Act—Ocean Temperature Rise and Acidification Implicated39


Recent Investigations, Settlements, Penalties and Sanctions41


U.S. Supreme Court:

U.S. Supreme Court Holds that Temporary or Recurrent Flooding Is Not Categorically Exempt from Constitutional Takings Clause Liability43

Arkansas Game and Fish Commission v. U.S., Case No. 11-597, 568 U.S. ______ (U.S. 2012).

U.S. Supreme Court Reverses Ninth Circuit and Reaffirms Water Transfer Precedent45

Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., ___U.S.___, Case No. 11–460 (U.S. Jan. 8, 2013).

Circuit Court of Appeals:

Seventh Circuit Upholds Protection of Consultant Reports under FOIA Exemption for Work Product46

Appleton Papers, Inc. v. U.S. Environmental Protection Agency, ___F.3d___, Case No. 12-2273 (7th Cir. Dec. 26, 2012).

Fourth Circuit Finds Golf Course Water Features Are Not Waters of the United States Triggering CWA Jurisdiction48

Deerfield Plantation Phase II-B Property Owners Association v. U.S. Army Corps of Engineers, ___F.3d___, Case Nos. 11-1871, 11-2253 (4th Cir. Dec. 26, 2012).

Second Circuit Finds Continuing-Coverage Provision in Insurance Policies Obligates Excess Insurer

to Indemnify Insured for 21 Years of Contamina-


Olin Corp. v. American Home Assurance Co., ___F.3d___, Case No. 11-4055-CV (2nd Cir. Dec. 19, 2012).

District Court:

District Court Decision Supports CWA Challenge Based upon Failure of One of the Joint Permitees to Comply with Storm Water Management Plans52

Citizens for Pennsylvania’s Future v. Pittsburg Water & Sewer Authority and City of Pittsburg, ___F.Supp.2d___, Case No. 12-943 (W.D. Penn. Dec. 3, 2012).

District Court Holds Clean Water Act Conviction for Providing False Reports to Environmental Agencies Not Subject to Reconsideration53

Hagerman v. U.S., ___F.Supp.2d___, Case No. 1:10-cv-272-LJM-DKL (S.D. Ind. Dec. 20, 2012).

District Court Finds Battle between Neighbors Is an Example of the Limits of the Clean Water Act’s


Parker v. Carey, ___F.Supp.2d___, Case No. 12-4267 (D. Penn. Dec. 12, 2012).

District Court Holds Virginia Wins Suit over EPA Clean Water Act TMDL Authority to Regulate Stormwater56

Virginia Department of Transportation v. U.S. Environmental Protection Agency, ___F.Supp.2d___, Case No. 1:12-CV-775 (E.D. Va. Jan. 3, 2013).

District Court Holds Clean Water Act Citizen Suit Fails Due to Insufficient Evidence of Discharge58

Waterkeeper Alliance, Inc. v. Hudson, ___F.Supp.2d___, Case No. WMN-10-487 (D. Md. Dec. 20, 2012).