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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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  • 08
  • September
  • 2016

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EPA Acknowledges Missed Deadlines in Perchlorate Regulation

On August 31, 2016, the U.S. Environmental Protection Agency (“EPA”) acknowledged in federal court that it had missed two deadlines for regulating perchlorate in drinking water under the Safe Drinking Water Act (“SDWA”). The agency appeared at the initial case conference in response to a National Resources Defense Council (“NRDC”) lawsuit filed in the Southern District of New York in February 2016. The NRDC is seeking declaratory and injunctive relief against EPA for failing to meet statutory deadlines for regulating perchlorate.

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  • 06
  • September
  • 2016

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State Representative Seeks Attorney General Opinion on Controversial San Saba River Management Plan

In an August 26 request for a formal opinion of Texas Attorney General Ken Paxton, State Representative J.D. Sheffield asked the Attorney General to weigh in on the constitutionality of the proposed Upper San Saba River Management Plan (“the Plan”), which would allow a private board to oversee all diversions of water from the upper portion of the San Saba River.

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  • 22
  • July
  • 2016

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Texas/New Mexico Water Fight May Make It to the U.S. Supreme Court

The longstanding dispute between Texas and New Mexico with regard to water apportionment from the Rio Grande might make it to the Supreme Court after all. Approximately three and a half years ago, Texas filed a complaint in the U.S. Supreme Court alleging that New Mexico was taking too much water from the Rio Grande in violation of the Rio Grande Compact and the Rio Grande Project Act, which allegedly allocate the Rio Grande water among the three parties.

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  • 16
  • June
  • 2016

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EPA Releases Final Rule Prohibiting Discharge of Unconventional E&P Wastewaters to Public Treatment Facilities

On June 13, EPA released its final rule prohibiting unconventional oil and gas well operators from discharging wastewater to publicly-owned treatment works (“POTWs”). The final rule only applies to unconventional oil and gas well operators; conventional wells and coalbed methane extraction facilities are unaffected. 

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What U.S. Army Corps of Engineers v. Hawkes Co., Inc. Might Mean for the Corp’s JD Program and Clean Water Act Enforcement

The Supreme Court dealt the Obama Administration another Clean Water Act loss on May 31, 2016, ruling unanimously that landowners can more quickly go to court to challenge the federal government when it claims Clean Water Act jurisdiction over their property. 

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EPA Accused of Deceiving District Court Regarding Blending and Mixing Zone Policies Under CWA

The most recent development in EPA’s struggle with challenges to its ‘blending’ and ‘mixing zones’ policies is interesting, to say the least. On May 2, 2016, in a Freedom of Information Act (“FOIA”) lawsuit in the District Court for the District of Columbia, EPA was accused by plaintiff Hall & Associates (H&A) of misleading the court when it submitted a declaration that the plaintiffs characterized as “a complete and utter fabrication.”

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  • 06
  • May
  • 2016

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Enviros Launch New Assault Against RCRA E&P Exemption

On May 4, 2016, the National Resources Defense Council (NRDC), the Environmental Integrity Project (EIP), Earthworks, and three other environmental groups filed a complaint in the U.S. District Court for the District of Columbia pursuant to the Resource Conservation and Recovery Act (RCRA).  The suit seeks to compel the U.S. Environmental Protection Agency (EPA) to review, and, if necessary, promulgate revised regulations and guidelines for the disposal, storage, transportation, and handling of oil and natural gas wastes.  

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Sixth Circuit Declines to Revisit Its Decision to Keep Jurisdiction Over WOTUS Litigation

On Thursday, April 21, the full Sixth Circuit denied six petitions for en banc rehearing of a three-judge panel’s February 2016 decision that the court of appeals has jurisdiction to hear challenges to the controversial Waters of the United States (“WOTUS”) rule. The decision is a disappointment for states and industry groups, who seek to litigate the rule in district courts across the country.

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White House Announces Another Plank in its Environmental Platform - Plan for a Sustainable Water Future

As it looks down the home stretch of its second term, the Obama Administration has been steadily ramping up measures to solidify its environmental legacy, particularly with its climate change agenda. Linked to its climate change measures is a recent Administration announcement of a program for addressing challenges with the use, conservation, and availability of water in the United States. The White House believes that the country will experience more frequent, intense, and longer droughts because of climate change impacts.

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  • 05
  • April
  • 2016

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Oral Arguments Heard at the Supreme Court in Hawkes Matter

Last week, the U.S. Supreme Court heard oral arguments in Army Corps of Engineers v. Hawkes Co., a case challenging federal regulations that prohibit court review of Corps opinions regarding whether wetlands are subject to jurisdiction under the Clean Water Act.

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WOTUS Challengers Begin Responding to the Sixth Circuit’s Order Retaining Jurisdiction

Yesterday, we wrote about last week’s Sixth Circuit decision to keep jurisdiction over challenges to the federal government’s rule redefining “Waters of the United States” (“WOTUS”) under the Clean Water Act. We suggested that given the fractured nature of the Sixth Circuit panel’s opinion, the case was ripe for parties to request en banc rehearing before the full Sixth Circuit.

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