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  1. EPA Requests Feedback on Methane Emissions

    Wednesday, April 16, 2014 5:22 pm by , , and

    By way of update to last month’s client alert, on April 15, 2014, EPA released five white papers that discuss methane and volatile organic compound (VOC) emissions from the oil and gas sector.  The release of the white papers is part of the White House’s Climate Action Plan Strategy to Reduce Methane Emissions

    The white papers cover emissions from five types of emission sources:

    • Compressors
    • Well completions and production from hydraulically fractured wells
    • Leaks
    • Liquids unloading
    • Pneumatic devices (more…)

  2. Proposed Waters of the U.S. Rule Changes the Question for Adjacent Wetlands

    Monday, April 7, 2014 12:55 pm by

    Prairie Pothole Wetlands
    Last week we discussed various elements of the U.S. EPA’s and Army Corps of Engineers’ proposed rule redefining Waters of the United States.  Today, we note a potentially wide-ranging impact of the rule regarding the identification of wetlands.

    Wetlands can be difficult for laypersons to identify, as some are wet for as little as 5-12% of the growing season. In mountainous areas of northern states, that can be as little as 4 days, so for much of the year they can be completely dry.  But wetlands are regulated like other waters and require a permit before they can be disturbed.  As a result, the greater the acreage of jurisdictional wetlands there are on a particular property, the more complex the permitting process will be. (more…)


  3. Proposed “Waters of the U.S.” Rule: What Is Left of the Significant Nexus Test?

    Thursday, April 3, 2014 8:00 am by

    Yesterday, we continued examining the confusion inherent in EPA and the Corps’ proposed rule redefining “Waters of the U.S.”  Today we finish that analysis by asking what is left of the Significant Nexus test, if anything.

    As we discussed on Monday, the proposed rule tries to have its cake and eat it too.  The rule describes certain waters that are deemed always to have a significant nexus – and so are always jurisdictional – but also retains the significant nexus test for use on case-by-case basis.  As a reminder, under the proposed rule, “significant nexus” waters are jurisdictional if

    alone or in combination with other similarly situated waters in the region. . . [they] significantly affect[] the chemical, physical, or biological integrity of a [traditionally navigable or interstate water or the territorial seas]

    (Our emphasis). This test, which the agencies have been using since 2007 used to be opaque; its place in the new rule makes it even more so. (more…)


  4. Proposed “Waters of the U.S.” Rule: Clarity, Part 3

    Wednesday, April 2, 2014 8:00 am by

    On April 1, we looked at the opaque definitions of riparian area and floodplain in EPA and the Corps’ proposed rule redefining “Waters of the U.S.”  Unfortunately, part of the definition of another term – tributary – also raises more questions than it answers.

    We looked at part of the definition of tributary last Thursday, when examining the reach of the agencies’ jurisdiction upstream from traditionally navigable and interstate waters.  At the time, we discussed the portion of the definition that identifies a tributary as any feature with a bed and bank that contributes flow to any downstream jurisdictional water.  But that’s only part of the definition.  It continues: (more…)


  5. Proposed “Waters of the U.S.” Rule: Can Significant Nexus Be Clarified?

    Tuesday, April 1, 2014 8:46 am by

    On March 31, we discussed that, at best, EPA’s and the Corps’ proposed rule defining what waters fall under federal jurisdiction provides only partial clarity.  The agencies have done little to clarify the circumstances in which there is no federal jurisdiction.  They have done more to clarify when they do have jurisdiction.  But is the proposed rule clear enough?

    Recall that this question relates to the first of the two jurisdictional tests, which we discussed last Thursday – that a water is jurisdictional if is adjacent to tributaries of navigable waters.  Digging deeper into this test, the question is whether it provides any useful, additional clarity on top of that already provided by Justice Kennedy’s opinion in Rapanos. (more…)


  6. Texas One Step Closer to Obtaining Authority to Issue GHG Air Permits

    Monday, March 31, 2014 11:27 am by , and

    As anticipated, on March 26, 2014, the Texas Commission on Environmental Quality (TCEQ) adopted rules to implement House Bill 788, which required the Commission to establish greenhouse gas (GHG) emissions rules.  The new rules will become effective on April 17, 2014.

    This action is one more step in the process of transitioning GHG Prevention of Significant Deterioration (PSD) permitting authority from EPA to TCEQ.  These regulations come on the heels of EPA publishing a proposal to approve the Texas GHG PSD revisions to the Texas State Implementation Plan (SIP) in 79 Fed. Reg. 9,123 (Feb. 18, 2014).  Two more steps remain: (1) EPA needs to approve TCEQ’s rules and (2) EPA must rescind the Federal Implementation Plan (FIP), the federal rules that currently authorize EPA to issue GHG permits for projects located in Texas. (more…)


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