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Water Blog

TCEQ Developing New Temperature Screening Procedures for Wastewater Discharge Permitting

Last Thursday, the Texas Commission on Environmental Quality (TCEQ) convened a stakeholder meeting to discuss how it plans to ensure compliance with the temperature criteria in the Texas Surface Water Quality Standards through the wastewater discharge permitting process. The updated “implementation procedures” shared by TCEQ at the meeting, when finalized, could result in TCEQ adding permit conditions to existing wastewater discharge permits.

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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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  • 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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