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Eastern Water Law & Policy Reporter

October 2014

Volume 9, Number 8 October 2014


Is or Is Not Groundwater ‘Waters of the United States’?—EPA Publishes Proposed Rules Defining the Scope of Federal Jurisdiction223

United States and Mexico Preparing an Amendment to Historic Water Treaty to Address Pollution in Tijuana River Watershed225

News from the West227


Recent Investigations, Settlements, Penalties and Sanctions230



Ninth Circuit Reverses Dismissal of Asarco’s CERCLA Section 113(f) Contribution Claim Related to Coeur d’Alene River Watershed Due to Ambiguity in an Earlier Settlement Agreement232

Asarco, LLC v. Union Pacific Railroad Company, ___F.3d___, Case No. 13-35356 (9th Cir. Aug. 27, 2014).

Fourth Circuit Affirms Denial of NEPA Challenge to Outer Banks Bridge and Highway Project But Reverses and Remands Denial of Transportation Act Challenge234

Defenders of Wildlife. v. North Carolina Department of Transportation, ___F.3d___, Case No. 13-2215 (4th Cir. Aug. 6, 2014).

Eighth Circuit Upholds EPA Authority to Consider Downstream Uses when Evaluating State Water Quality Standards237

El Dorado Chemical Company v. U.S. Environmental Protection Agency, ___F.3d___, Case No. 13-1936 (8th Cir. Aug. 15, 2014).

Tenth Circuit Rules that the Duty to Consult under the Federal Endangered Species Act Does Not Extend to an Agency Decision Not to Act239

WildEarth Guardians v. U.S. Environmental Protection Agency, ___F.3d___, Case No. 13-9524 (10th Cir. July 23, 2014).

District Court Affirms Associational Standing in RCRA Water Pollution Suit Despite Standing Witnesses’ Lack of Voting Rights241

Citizens Coal Council v. Matt Canestrale Contracting, Inc., ___F.Supp.2d___, Case No. 13-896 (W.D. Penn. Aug. 22, 2014).


New Jersey Appellate Court Orders State Board

of Public Utilities to Reconsider Offshore Wind Project243

In the Matter of The Petition of Fishermen’s Atlantic City Wind Farm, LLC for the Approval of the State Waters Project and Authorizing Offshore Wind Renewable Energy Certificates, Case No. A-003932-13T3 (N.J.App.Div. Aug. 8, 2014).