January 31, 2013
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8030
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8025
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8040
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8010
98 San Jacinto Boulevard, Suite 1420
Austin, TX 78701-4296
(512) 391-8020

For more information about our firm, please visit www.bdlaw.com .

Office Locations:
› Washington, DC
› Maryland
› New York
› New Jersey
› Massachusetts
› Texas
› California

TEXAS DEVELOPMENTS

Texas Files Complaint with U.S. Supreme Court Against New Mexico Alleging Diversions of Water From Rio Grande River

On January 8, 2013, the State of Texas filed a complaint against the State of New Mexico in the U.S. Supreme Court. Texas’s complaint alleges that the Rio Grande Compact, signed in 1938 by Texas, New Mexico, and the State of Colorado, requires New Mexico to deliver specified amounts of Rio Grande water to Elephant Butte Reservoir, located near Engle, New Mexico. The complaint states that, once delivered to the Elephant Butte Reservoir, the water belongs and should be allocated to beneficiaries in southern New Mexico and Texas. According to the complaint, New Mexico is not allowing an adequate amount of water to pass through to Texas.

U.S. Supreme Court Grants Certiorari in Case Affecting Water Rights Between Texas and Oklahoma

On January 4, 2013, the U.S. Supreme Court granted certiorari in Tarrant Regional Water District v. Hermann, No. 11-889 . The petitioner in the case, the Tarrant Regional Water District, is a Texas state agency; the appellees are officers of the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission.

Texas State Representative Introduces Legislation Aimed at Transferring $2 Billion from Texas’ Economic Stabilization Fund to Water-Related Projects

On January 10th, Texas State Rep. Allan Ritter (R-Nederland) filed two bills relating to the funding of water projects in Texas.

TCEQ Imposes Then Lifts Restrictions on Water Rights in Brazos River Basin

Pursuant to a senior priority call issued by a senior water rights holder (the "Senior Water Rights Holder") on November 19, 2012 (the "Senior Priority Call"), the TCEQ Executive Director signed an order on January 15, 2013 (the "January 15 Order") restricting water rights for idle power generation facilities and certain municipal water-right holders which have junior water rights in the Brazos River Basin.

Texas Withdraws D.C. Circuit Petition for Review of EPA’s Air Regulations for Hydraulic Fracturing Operations

On January 10, 2013, the State of Texas, the TCEQ, and the Railroad Commission of Texas (collectively, the "Texas Petitioners") filed a motion in the D.C. Circuit to dismiss their petition for review of the Environmental Protection Agency’s ("EPA’s") air pollution standards for natural gas hydraulic fracturing operations ( American Petroleum Institute v. EPA , No. 12-1405, D.C. Cir.).

Deadline to Participate in EPA Region VI Episodic Release Reduction Initiative Quietly Expires

Last month, shortly before the end of the year, EPA Region VI sent out official invitations to seventeen facilities from Louisiana and Texas to participate in its Episodic Release Reduction Initiative ("ERRI"). The invites appear to be to those same facilities selected to participate in the ERRI kick-off meeting held more than a year ago.

Texas Joins New Association of State Air Agencies

Texas and sixteen other states have joined the newly-formed Association of Air Pollution Control Agencies ("AAPCA"). The association will provide a technical forum to assist states with the application of various aspects of the Clean Air Act and associated regulations. "There are real technical issues with regulations and guidance coming from EPA that need thoughtful consideration across the United States," said TCEQ Commissioner Carlos Rubinstein.

U.S. Fish and Wildlife Service Reopens Public Comment Period on Endangered Species Listing for Four Central Texas Salamanders

On January 25, the U.S. Fish and Wildlife Service ("FWS") announced the reopening of the public comment period on the proposed listing and proposed designation of critical habitat under the Endangered Species Act for four central Texas salamanders: the Austin blind salamander, Georgetown salamander, Jollyville Plateau salamander, and Salado salamander.

TCEQ Seeks Input to Develop New Effects Screening Levels

TCEQ’s Toxicology Division plans to establish health-based Effects Screening Levels ("ESLs") for 97 chemicals from the following groups: Phenol, Amine, Acid, Siloxane/Silicone, Silane, Ester, Pyridines, Azole. TCEQ will develop the new ESLs using the Tier II (N-L ratio) or III (relative toxicity comparison) methodologies outlined in TCEQ’s Guidelines to Develop Toxicity Factors (Publication No. RG-442).

Upcoming TCEQ Meetings and Events

TCEQ’s Tax Relief for Pollution Control Property Advisory Committee will hold a meeting at noon on February 8, 2013, at TCEQ Headquarters. Additional information regarding this event, including the meeting agenda, is available on TCEQ's website .

TCEQ will host its annual Environmental Trade Fair and Conference at the Austin Convention Center from April 30 to May 1, 2013. A banquet will be held on the evening of May 2 during which the 2013 Texas Excellence Awards will be accepted. Additional information about this event is available on TCEQ's website .

TCEQ Enforcement Orders

TCEQ announcements for enforcement orders adopted in January can be found on TCEQ's website .

Recent Texas Rules Updates

For information on recent TCEQ rule developments, please see the TCEQ website .

NATIONAL DEVELOPMENTS

EPA Announces Proposed Changes for Minimum Risk Pesticides

On December 31, 2012, the U.S. Environmental Protection Agency announced a proposal to make several important changes to the exemption for "minimum risk" pesticide products under Section 25(b) of the Federal Insecticide, Fungicide, and Rodenticide Act. See EPA, "Pesticides; Revisions to Minimum Risk Exemption," 77 Fed. Reg. 76979 (Dec. 31, 2012). Public comments on the proposed changes are due on or before April 1, 2013.

Army Corps’ New Plant List Expected to Increase Number of Wetlands, Assertions of CWA Jurisdiction

An article authored by Parker Moore analyzing the potential impacts of the 2012 National Wetland Plant List was published in a recent issue of BNA Inc.’s Daily Environment Report . To read the article, Army Corps’ New Plant List Expected to Increase Number of Wetlands, Assertions of Clean Water Act Jurisdiction, please click here .

Supreme Court Reaffirms CWA Discharge Ruling in L.A. Stormwater Case

On January 8, 2013, the U.S. Supreme Court unanimously upheld its 2004 ruling that the movement of polluted water between separate sections of the same waterbody does not constitute a "discharge" of pollutants requiring a permit under the Clean Water Act ("CWA").

Court Rejects EPA’s Efforts to Regulate Stormwater as a Pollutant

In an opinion issued on January 3, 2013, a United States District Court for the Eastern District of Virginia ruled that the United States Environmental Protection Agency exceeded its authority by attempting to regulate stormwater, which is not a pollutant under the Clean Water Act, as a surrogate for sediment, which is a pollutant. Virginia Dep’t of Transp. v. U.S. Envtl. Protection Agency , No. 1:12-CV-775 (E.D. Va. Jan. 3, 2013).

US DOT Seeking Comments on Aligning Lithium Battery Rules with 2013-2014 ICAO Technical Instructions

On January 7, 2013, the U.S. Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) will publish a Notice of Proposed Rulemaking (NPRM) soliciting comments until March 8, 2013 on the impact of changes to the international requirements for the air transport of lithium cells and batteries.

Supreme Court Hears L.A. Stormwater Case

On December 4, 2012, the United States Supreme Court considered the potential liability of the Los Angeles County Flood Control District (the "District") for stormwater runoff under a municipal stormwater permit. ( Los Angeles County Flood Control District v. NRDC , No 11-460, oral argument 12/4/2012).

FIRM NEWS & EVENTS

A Family Tradition of Excellence: Beveridge & Diamond’s Benjamin F. Wilson and Seattle Seahawks Quarterback Russell Wilson

Beveridge & Diamond’s Managing Principal, Benjamin F. Wilson, maintains a special relationship with his nephew, Russell Wilson, quarterback of the Seattle Seahawks. With the NFL playoffs in full swing, several media outlets recently documented this relationship.  

Beveridge & Diamond Scores Major NEPA/Wetlands Victory for Railroad in 10th Circuit

On November 28, 2012, the U.S. Court of Appeals for the Tenth Circuit unanimously upheld environmental studies supporting the Clean Water Act Section 404 permit issued for a proposed $250 million intermodal facility near Gardner, Kansas. Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Engineers , __ F.3d __, 2012 U.S. App. LEXIS 24531 (10th Cir. 2012). The Court rejected claims from environmental groups that the U.S. Army Corps of Engineers had violated the National Environmental Policy Act by evaluating the project in an environmental assessment and the CWA by permitting project construction that would fill wetlands and other waters. Litigators in Beveridge & Diamond’s Washington, D.C. office represented the facility’s developer, one of the nation’s largest freight railroad companies, which intervened as a defendant in the litigation.

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