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Showing 124 posts by Karen M. Hansen.

Replacement of the Clean Water Rule to Be a Two-Step Process

The Environmental Protection Agency and Army Corps of Engineers announced yesterday that the implementation of President Trump’s executive order directing EPA and the Corps to replace the Clean Water Rule will be a two-step affair.  The first step, contained in a pre-publication proposed rule issued by both agencies, will rescind the Clean Water Rule and restore the definition of “waters of the United States” (“WOTUS”) that was in place before EPA and the Corps issued the Rule in 2015.  In step two, which will occur at some future date, EPA and Corps will propose a new, narrower WOTUS definition.  Read More ›

EPA’s Cooperative Federalism Approach to Nutrients in the Mississippi River and Gulf of Mexico Prevails in Fifth Circuit Remand

In a critical decision preserving state authority in water quality management, a U.S. District Court has ruled that EPA has broad discretion to not establish federal numeric nutrient water quality standards because the Clean Water Act (CWA) vests primary responsibility for this function in the states.  The decision in Gulf Restoration Network v. Jackson rebuffed efforts by a major coalition of environmental groups to compel EPA to take control of nutrient management criteria for a significant part of the country’s water.  Beveridge & Diamond principal Karen Hansen represented the National Association of Clean Water Agencies (NACWA) as an intervenor supporting EPA in the case, which has been litigated in the district court and the court of appeals since 2012. Read More ›

Fifth Circuit Panel Hears Oral Argument in Whooping Crane Lawsuit Appeal

A three-judge panel of the Fifth Circuit Court of Appeals heard oral arguments in early August on the appeal of the decision rendered by the U.S. District Court for the Southern District of Texas in The Aransas Project v. ShawThe district court’s decision, issued on March 11, 2013, held that the Texas Commission on Environmental Quality’s (“TCEQ's”) water management policies constituted a “taking” of whooping cranes in violation of Section 9 of the Endangered Species Act (“ESA”).   The district court’s decision was based on a small line of cases under the ESA finding that governmental regulatory action under certain circumstances can trigger ESA liability for a “take.”  The court also found “proximate cause” under the ESA between TCEQ’s issuance of water rights permits and the harm or death of up to 23 whooping cranes in the winter of 2008-2009. Read More ›

TCEQ’s Proposed Water Quality Standards Open for Comment Until October 24

Proposed revisions to TCEQ’s water quality standards ("WQS") are currently out for public comment as part of the triennial review process required by the Clean Water Act (“CWA”) and the delegated TPDES program in Texas.  Changes in WQS that TCEQ finalizes after the public comment period could affect specific TPDES permits on a case-by-case basis if the adopted WQS alter requirements for the receiving waters for a particular industrial discharge.  Changes driven by the new WQS could include best management practices and/or modified treatment requirements, depending on whether a standard has been lowered or increased.   These types of changes are typically implemented as part of the TPDES permit renewal process for point source dischargers. Read More ›

Latest Development on Brazos River Senior Water Rights Call

Water rights seniority and priority of uses continue to be active issues affecting the Brazos River system.  In November 2012, the senior water rights holder on the Brazos made a priority call, asserting it could not obtain all of the water it was entitled to due to diversions by upstream users.  TCEQ responded with an order suspending all junior water rights on the Brazos except for municipal users and power generation.  The Texas Farm Bureau sued, challenging TCEQ’s authority to issue the order pursuant to the State’s drought curtailment rules.  Although the TCEQ lifted the curtailment in January 2013, the litigation was not mooted. Read More ›

Beveridge & Diamond Assists San Antonio Water System in Negotiating $1.1 billion Clean Water Act Settlement

On Tuesday, July 23, 2013, the U.S. Environmental Protection Agency (EPA), the U.S. Department of Justice (DOJ) and the State of Texas lodged in federal district court in San Antonio a proposed consent decree with the San Antonio Water System (SAWS) resolving claims regarding sanitary sewer overflows (SSOs). SAWS is a public utility owned by the City of San Antonio, providing sewage treatment and wastewater services to the city. Read More ›

EPA Targets Confined Animal Feeding Operations for Criminal Enforcement

This month, the U.S. Environmental Protection Agency (EPA) published a criminal enforcement alert (EPA CAFO alert) warning that Clean Water Act (CWA) violations by confined animal feeding operations (known as CAFOs) will be prioritized for aggressive enforcement and criminal prosecution, including fines and incarceration. The alert, which is available here, outlines EPA’s national enforcement initiative to reduce water pollution from CAFOs – an initiative that has resulted in numerous criminal enforcement actions involving knowing or negligent discharges of animal wastes.

 

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2013 Texas Environmental Legislation Summary

The 2013 Texas legislative session resulted in a number of significant changes to environmental laws, among which are developments of broad interest relating to Texas greenhouse gas permitting and the Texas Environmental, Health and Safety Audit Privilege Act.  Governor Perry signed a number of these bills on June 14, 2013, two days before the June 16th deadline for him to sign or veto bills passed during the regular legislative session.  Select noteworthy statutory revisions already in effect or set to go into effect on September 1, 2013 are summarized below.  Read More ›

U.S. Supreme Court Sides with Oklahoma In Dispute with Texas Water District

On June 13, 2013, the U.S. Supreme Court unanimously upheld lower court rulings in Tarrant Regional Water District v. Hermann, holding that Oklahoma water laws validly barred the export of state water. The petitioner in the case is the Tarrant Regional Water District; the appellees are officers of the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission.  Read More ›

Texas Supreme Court Declines to Reconsider Air Act Preemption Decision

On June 14, 2013, the Texas Supreme Court declined to reconsider an earlier ruling that the Texas Clean Air Act ("TCAA") preempts a Houston ordinance specifying location requirements for concrete-crushing operations. Read More ›