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Oklahoma Report Offers Key Insights on Recycling and Re-Use of Produced Water

The cheapest and most common method for disposal of produced water – the salty water that is co-produced with oil and natural gas – is typically by using disposal wells to inject the water into deep non-potable formations. But that may be changing in Oklahoma, where produced water volumes are rising with the development of the South Central Oklahoma Oil Province (SCOOP), and Sooner Trend Anadarko Basin Canadian and Kingfisher Counties (STACK) plays and where seismicity thought to be induced by deep injection well disposal of produced water has caused public officials to search for disposal alternatives. In December 2015, Governor Mary Fallin tasked a working group called the “Water for 2060 Produced Water Working Group” with assessing produced water recycling or re-use as disposal alternatives. The working group’s April 2017 report includes important insights into the future of water recycling and re-use in Oklahoma and perhaps beyond.

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Federal Court Dismisses RCRA Suit Seeking Limitations on Oklahoma Wastewater Injection Wells

On April 4, 2017, Western District of Oklahoma Judge Stephen Friot dismissed an action brought under the Resource Conservation and Recovery Act (“RCRA”) by the Sierra Club against four deep fluid injection well operators. The plaintiff alleged that the defendants’ use of wastewater injection wells presented an “imminent and substantial endangerment to health or the environment” in violation of RCRA because it supposedly causes “waste-induced earthquakes.” The Sierra Club sought a wide range of injunctive relief, asking the court to order defendants to substantially reduce the volume of wastewater they inject into disposal wells, reinforce vulnerable structures, and establish a seismic activity monitoring center to further analyze (and predict) the potential for seismic effects of underground injection of oilfield wastes. 

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Executive Order Calls for Rescinding or Revising WOTUS Rule

On February 28, President Trump issued an Executive Order (the “Order”) calling on the United States Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (“USACE”) to rescind or revise the controversial Waters of the United States (“WOTUS”) rule, which was finalized in June 2015.  Specifically, the Order requires the EPA Administrator and the Assistant Secretary of the USACE to review the WOTUS rule in light of a policy statement set forth in the Order, which states that it is in the national interest to both keep the nation’s water free from pollution, and “promot[e] economic growth, minimiz[e] regulatory uncertainty, and show[] due regard for the roles played by Congress and the States under the Constitution.”

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  • 25
  • January
  • 2017

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Second Circuit Defers to EPA on Water Transfers Rule

On January 18, 2017, the U.S. Court of Appeals for the 2nd Circuit applied the Chevron doctrine of judicial deference to agency interpretations to find that EPA’s Water Transfers Rule exempting the transfer of water from one basin to another from discharge permits is a reasonable interpretation of the law and should be upheld. This decision reversed a March 2014 district court decision which would have required thousands of water transfer projects to obtain NPDES permits—a result that was particularly unpopular with many western states who believed the delays associated with the permitting process would hinder efforts to meet their water needs during droughts.

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  • 10
  • January
  • 2017

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U.S. Army Corps of Engineers Issues 2017 Nationwide Permits for Streamlined Permitting

On January 6, 2017, the U.S. Army Corps of Engineers (the Corps) issued a new set of nationwide permits to replace existing permits that expire on March 18, 2017. Congress authorized the Corps to issue these types of nationwide permits to streamline the permitting process for the discharge of dredged or fill material into waters of the United States, under Clean Water Act Section 404 or work in or affecting navigable waterways, under Rivers and Harbors Act Section 10, in either case when it has no more than a minimal individual or cumulative adverse effect on the environment. The 2017 nationwide permits closely mirror the draft version the Corps released for public comment in June 2016, generally with only minor revisions and clarifications. In addition to reissuing 50 existing nationwide permits, the Corps issued two new permits, one for the removal of low-head dams, and another for “living shorelines” used to stabilize banks and shores in coastal waters. The nationwide permits are frequently used for development activities ranging from navigational aids and bank stabilization to linear projects and commercial developments.

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  • 04
  • January
  • 2017

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EPA Concludes Fracking Activities Can Impact Drinking Water in U.S.

The United States Environmental Protection Agency (“EPA”) released its Final Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources on December 13, 2016. The final report concludes that “hydraulic fracturing activities can impact drinking water resources in the United States under some circumstances.”

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  • 22
  • December
  • 2016

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Happy Holidays

The contributors to the Water Blog wish you a wonderful holiday season and a very happy new year. We will be taking some time away from the blog, but will return in early 2017.

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  • 10
  • November
  • 2016

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Fourth Circuit Considers CWA Permit Shield Defense, Again

On October 6, 2016, EPA filed an amicus brief in the Fourth Circuit in Ohio Valley Environmental Coalition v. Fola CoalCo., LLC, No. 16-1024 (“Fola”) supporting a decision from the Southern District of West Virginia. The district court held that discharges from a coal mine that raised conductivity levels violated the Clean Water Act (“CWA”) even though the mine’s permit did not contain express limits for conductivity. The case will test whether West Virginia’s narrative water quality standards, which the mine’s permit incorporated by reference, take precedence over the fact that regulators knew the mine’s discharges might increase conductivity but declined to incorporate conductivity into the permit explicitly. If the court adopts EPA’s position, then the case could significantly impact the scope of the permit shield defense under the CWA.

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  • 02
  • November
  • 2016

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California Study Finds Water Used in Fracking is Safe for Agricultural Uses

Officials in the Cawelo Water District (“Cawelo”), a public water agency in Bakersfield, California, recently commissioned an analysis of water quality and food crop data in order to assess the safety of utilizing blended produced water for agricultural irrigation purposes. Cawelo receives approximately 10.4 billion gallons of produced water a year from regional oil producers that thoroughly monitor and treat the produced water before sending it to Cawelo for agricultural use. The produced water is then blended with water from other groundwater and surface water sources and tested before being approved for agricultural use.

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  • 26
  • October
  • 2016

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Water Data, Water Data Everywhere

Several years ago, analytics guru Gary Cokins popularized the notion that organizations are drowning in data but starving for information. The waterbody metaphor is apt, particularly for water management agencies that would like to swim—but not drown—in the data they and others collect that can help them better manage scarce water resources. Propelled by lingering pains of California’s recent drought, the California legislature took a step in this direction last month when it passed, and the governor signed, the Open and Transparent Water Data Act.

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  • 25
  • October
  • 2016

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EPA Wants CWA Section 316(b) Rule Left in Place Unchanged

Environmental groups were not entirely satisfied with the U.S. Environmental Protection Agency’s (EPA) Cooling Water Intake Structure Rule promulgated under section 316(b) of the Clean Water Act (CWA) in 2014. As previously discussed, this case has seen a heavy degree of venue shopping, with challenges initially being filed in six circuits, consolidation of those challenges in the Fourth Circuit, only to then to have the case transferred to the Second Circuit upon urging from environmental groups.

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  • 14
  • October
  • 2016

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Industry Advocates Sue Over Pennsylvania’s New Hydraulic Fracturing Rules

We recently posted an update on Pennsylvania’s new hydraulic fracturing regulations, noting that the new rules would likely be subject to legal challenges from the oil and gas industry. On Thursday, October 13, a trade group representing unconventional gas producers filed suit asking a Pennsylvania court to delay implementation of the rules until the appeal is decided.

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  • 13
  • October
  • 2016

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Mississippi v. Tennessee: Are Aquifers "Interstate Waters"?

A dispute in the United States Supreme Court between Mississippi and Tennessee may have lasting effects on interstate water law. The primary issue is whether an aquifer that crosses state lines should be considered “interstate waters,” subject to the doctrine of equitable apportionment. Equitable apportionment is used by the Court to resolve interstate disputes over surface water. But, the Court has never applied this doctrine to ground water, which has traditionally been viewed as an intrastate matter.

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  • 12
  • October
  • 2016

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Pennsylvania’s New Fracking Regulations: Additional Requirements for Surface Water Protection and New Limitations on Wastewater Storage, Processing and Disposal

On October 8, 2016, the Pennsylvania Environmental Quality Board published a comprehensive set of new rules regulating hydraulic fracturing operations in the state. Discussion of these rules began in 2011 and resulted in significant opposition--including resistance at the Pennsylvania legislature. Pennsylvania’s rules governing above-ground operations at oil and gas well sites had not been updated since 2001, prior to the expansion of hydraulic fracturing in the state. Under the regime implemented by the new rules, Pennsylvania has bifurcated its regulation of conventional and unconventional wells; the regulations governing conventional operations appear at 25 Pa. Code Chapter 78, while the regulations governing unconventional operations appear at 25 Pa. Code Chapter 78a. Many fear that the new rules will stifle energy production at a time when production has already slowed due to uncertain commodity prices, while others argue that the rules provide changes to protect both public health and the state’s natural resources.

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  • 30
  • September
  • 2016

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TCEQ Proposed Rule Would Allow Disposal of Additional Wastes in Underground Oil and Gas Waste Disposal Wells

In July 2016, the Texas Commission on Environmental Quality (“TCEQ”) proposed a new rule that would allow TCEQ to authorize the disposal of new wastes in underground wells currently used for oil and gas waste disposal. TCEQ’s proposal is grounded in statutory authority granted to it by H.B. 2230, which was signed into law by Governor Greg Abbott in June 2015 and took effect on September 1, 2015. Specifically, H.B. 2230 allows TCEQ to authorize disposal of nonhazardous brine or nonhazardous drinking water treatment residuals by injection into a Class II disposal well that has already been permitted by the Texas Railroad Commission (“RRC”). The RRC authorizes Class II wells used for wastes and byproducts associated with the energy industry. Currently, injection well disposal of nonhazardous brine or nonhazardous drinking water treatment residuals are typically Class V wells that are authorized by the TCEQ.

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Andrew R. Stewart

Andrew R. Stewart Counsel

Margaret E. Peloso

Margaret E. Peloso Counsel

Taylor R. Pullins

Taylor R. Pullins Counsel

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Brandon M. Tuck

Brandon M. Tuck Senior Associate

Ross Woessner

Ross Woessner Associate

Jay Rothrock

Jay Rothrock Senior Associate