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On March 11, 2013, the U.S. District Court for the Southern District of Texas issued a decision in The Aransas Project v. Shaw , an action relating to Texas Commission of Environmental Quality ("TCEQ") water management policies with respect to the endangered Whooping Crane’s winter habitat, the Aransas National Wildlife Refuge (the "Refuge"). The court found that TCEQ violated Section 9 of the Endangered Species Act ("ESA") in failing to allow for sufficient freshwater flows from the San Antonio and Guadalupe Rivers into the Refuge during the 2008-2009 winter.
On March 12, 2013, the Eagle Ford Shale Task Force (the "Task Force"), chaired by Texas Railroad Commissioner David Porter, issued the Eagle Ford Shale Task Force Report (the "Report"). The Task Force was formed in 2011 to ensure that the development of the oil and gas play in the Eagle Ford Shale was not hindered by a lack of communication among local communities and other key stakeholders. Thus, the 24-member Task Force was composed of persons with various interests and areas of expertise, including judges, representatives of industry, and environmental groups.
On March 27, 2013, the U.S. Environmental Protection Agency ("EPA") moved to dismiss a lawsuit by the Sierra Club seeking to require it to promulgate a Federal Implementation Plan ("FIP") for Texas that complies with the Clean Air Act’s ("CAA") "good-neighbor" provision in Section 110(a)(2)(D)(i)(I) with respect to ozone and fine particulate matter emissions. According to EPA, the D.C. Circuit’s recent rejection of its Cross-State Air Pollution Rule ("CSAPR") in EME Homer City Generation, L.P. v. EPA , 696 F.3d 7 (D.C. Cir. 2012), left it without authority to promulgate such a FIP for Texas.
On February 13, 2013, Hearts Bluff Game Ranch (the "Ranch") filed a petition with the U.S. Supreme Court for review of a Texas Supreme Court decision that denied a takings claim brought by the Ranch against the State of Texas and the Texas Water Development Board. In its petition, the Ranch argues that the Texas Supreme Court failed to perform the fact-specific analysis the U.S. Supreme Court has found to be necessary in government takings cases.
The TCEQ Toxicology Division has requested public comment regarding its proposal to partially delist Texas City from its Air Pollutant Watch List ("APWL") for benzene and hydrogen sulfide. If the proposal is adopted, Texas City would still be an APWL area for propionaldehyde.
TCEQ will conduct Texas Emissions Reduction Plan ("TERP") Program Rebate Grants Application Workshops during April in Arlington, Austin, Corpus Christi, Houston, and San Antonio. The workshops are free and no registration is required. Additional information about these workshops is available at TCEQ’s website .
A meeting of the TCEQ Drinking Water Advisory Work Group will be held at TCEQ headquarters in Austin on April 24, 2013. Information about this event is available at 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 1 during which the 2013 Texas Excellence Awards will be accepted. Additional information about this event is available on TCEQ’s website .
TCEQ announcements for enforcement orders adopted in March can be found on TCEQ’s website .
For information on recent TCEQ rule developments, please see the TCEQ website .
In an opinion issued on March 20, 2013, the U.S. Supreme Court upheld the U.S. Environmental Protection Agency’s (EPA) regulatory interpretation that logging road runoff is not subject to industrial stormwater permitting requirements under the Clean Water Act (CWA). Decker v. Northwest Environmental Defense Center , No. 11-338 (U.S. Mar. 20, 2013). The Court also found that plaintiffs had properly brought their suit under the CWA’s citizen suit provision, 33 U.S.C. § 1365, because they did not make a direct facial challenge to EPA’s regulations but instead sought to impose their interpretation of the CWA on a commercial operator where EPA’s rule on the issue was ambiguous.
On March 5, 2013, the White House Council on Environmental Quality ("CEQ") and the Advisory Council on Historic Preservation ("ACHP") jointly published final guidance entitled "NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 Reviews." The guidance is intended to provide practical advice on streamlining environmental reviews mandated by the 1966 National Historic Preservation Act ("NHPA") and the 1970 National Environmental Policy Act ("NEPA") to avoid unnecessary duplication and delay. Overall, the new guidance builds upon recent efforts to remedy problematic aspects of the NEPA process and reinforces several best practices to facilitate concurrent analysis of potential environmental and cultural impacts of projects with a federal nexus.
Washington, DC – Scott Fulton, the former General Counsel of the U.S. Environmental Protection Agency (EPA), joined Beveridge & Diamond, P.C. as a Principal in the Firm’s Washington, DC office on March 25, 2013.
The purpose of this update is to provide current information on Texas environmental regulatory developments. It is not intended as, nor is it a substitute for, legal advice. You should consult with legal counsel for advice specific to your circumstances. This communication may be considered advertising under applicable laws regarding electronic communications.
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