U.S. EPA Region V (the “Region”) appeals from a July 16, 2004 decision by Administrative Law Judge Carl C. Charneski (“ALJ”) awarding Respondent, Bricks, Inc. (“Bricks”), $79,174.15 in attorneys’ fees and expenses under the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504, and its implementing regulations at 40 C.F.R. part 17. The fee award was based on the ALJ’s determination that the underlying action was not “substantially justified.”

Syllabus

William and Mary Hammond purchased eight lots on Chincoteague Island, Virginia, in the mid-1960s. Twenty-five years later, the Hammonds entered into an agreement with Raymond Britton, Jr., the president of Britton Construction Company, to develop housing on the lots. At that time, at least two of the lots--Lots 9 and 11--contained wetlands protected by section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344, which prohibits the filling of such areas without a permit issued by the U.S. Army Corps of Engineers ("Corps").

Syllabus

William and Mary Hammond purchased eight lots on Chincoteague Island, Virginia, in the mid-1960s. Twenty-five years later, the Hammonds entered into an agreement with Raymond Britton, Jr., the president of Britton Construction Company, to develop housing on the lots. At that time, at least two of the lots--Lots 9 and 11--contained wetlands protected by section 404 of the Clean Water Act ("CWA"), 33 U.S.C. § 1344, which prohibits the filling of such areas without a permit issued by the U.S. Army Corps of Engineers ("Corps").

Caroline Rodely, Alan Rodely on behalf of himself and other downstream residents (“the Downstreamers”), Madera Irrigation District, and Jo Anne Kipps (collectively “Petitioners”) each petitioned the Environmental Appeals Board (“Board”) to review the final National Pollutant Discharge Elimination System (“NPDES”) permit that Region 9 (the “Region”) of the United States Environmental Protection Agency issued under the Clean Water Act, 33 U.S.C. § 1342, to the Chukchansi Gold Resort and Casino Waste Water Treatment Plant (“Facility”) on December 4, 2007 (“Permit”).

Joel Lamplot and Teri Lamplot (collectively “Petitioners”) each request the Environmental Appeals Board (“Board”) review National Pollutant Discharge Elimination System (“NPDES”) permits issued by Region 7 (“Region”) of the U. S. Environmental Protection Agency (“EPA”) to four concentrated animal feeding operations (“CAFOs”) pursuant to section 402 of the Clean Water Act (“CWA”).

On August 24, 2000, Region X of the United States Environmental Protection Agency (“EPA” or “Agency”) filed an administrative complaint against Mr. Donald Cutler of Stanley, Idaho, charging him with unlawfully discharging dredged or fill material into waters of the United States in violation of sections 301(a) and 404 of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1311(a), 1344. Region X alleged that Mr.

This case concerns a petition for an award of attorneys’ fees and other expenses under sections 504(a)(1) and (a)(4) of the Equal Access to Justice Act (“EAJA” or “Act”), 5 U.S.C. §§ 504(a)(1), (a)(4), filed by Donald Cutler (“Cutler” or “Respondent”). The EAJA claims derive from an administrative complaint filed by Region 10 of the Environmental Protection Agency (the “Region”) against Cutler alleging violations of sections 301(a) and 404 of the Clean Water Act, 33 U.S.C.