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Eastern Water Law & Policy Reporter

February 2014

Volume 9, Number 2 February 2014


U.S. Army Corps of Engineers Issues Report—Provides Options to Keep Asian Carp From Great Lakes Invasion31

News from the West33


Recent Investigations, Settlements, Penalties and Sanctions35


Federal District Court in Washington Allows Clean Water Act Case to Proceed Based on Allegations of Widespread Discharges from Coal Trains38

New Orleans Authorities at Odds over Lawsuit Seeking Billions in Damages from Industry for Wetlands Losses40



On Remand from the U.S. Supreme Court, Federal Circuit Rules that Government-Induced Flooding Constituted a Fifth Amendment Taking42

Arkansas Game and Fish Commission v. U.S., ___F.3d___, Case No. 9-5121 (Fed. Cir. Dec. 3, 2013).

Ninth Circuit Upholds Grant of Summary Judgment to Army Corps under the Clean Water Act and National Environmental Policy Act44

Jones III v. National Marine Fisheries Service, ___F.3d___, Case No. 11–35954 (9th Cir. Dec. 20, 2013).

Eleventh Circuit Finds Testifying Experts’ File and Communications Cannot Be Shielded from Production by Attorney Work Product Protection46

Republic of Ecuador v. Dr. Robert E. Hinchee, ___F.3d___, Case No. 12-16216 (11th Cir. Dec. 18, 2013).

District Court Dismisses as Premature Plaintiffs’ Challenge to Potential Chesapeake Bay Clean Water Act TMDL Water Pollution Trading Program48

Food and Water Watch and Friends of the Earth v. U.S. Environmental Protection Agency, et al., ___F.Supp.2d___, Case No. 12-1639 (D. D.C. Dec. 13, 2013).

Federal Claims Court Holds that the U.S. Army Corps’ Failure to Adjust Wetlands Credit Composition Exposes It to Contractual Liability and Presumed Monetary Damages50

Davis Wetlands Bank, LLC. v. U.S., ___F.Supp.2d___, Case No. 13-268 C (Fed. Ct. Cl. Dec. 16, 2013).


Pennsylvania Supreme Court Strikes Down as Unconstitutional, State Law Which Sought to Eliminate Municipal Zoning Authority over the ‘Fracking’ of Oil and Gas53

Robinson Township v. Commonwealth of Pennsylvania, Case Nos. 63 & 64 MAP 2012 (Pa. Dec. 19 2013).