Energy & Resources Notes – Fall 2014

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  • Proposed Clean Water Act Rulemaking:What is a Water of the United States
    The Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) have proposed a new rule to define the scope of “Waters of the United States” regulated under the Clean Water Act, and have requested public comments on the proposed rule by October 20, 2014. Reactions to the rulemaking in congressional hearings and in comments reported in the press have been generally unfavorable, asserting that the agencies are engaged in a vast expansion of federal power, and that, if adopted, the rule would more than double the miles of waterway subject to regulation under the Clean Water Act. Resource companies, agricultural interests, the construction industry, and developers are concerned about potential regulatory impacts, particularly in the Southwest where dry conditions already make jurisdictional determinations difficult…Continue Reading.

  • Another Clean Water Act Triennial Review Underway In New Mexico
    The New Mexico Environment Department (“NMED”) has formally petitioned the Water Quality Control Commission (“WQCC”) to amend certain portions of the Standards for Interstate and Intrastate Waters (20.6.4 NMAC). NMED’s petition is the formal initiation of the 2013 Triennial Review. The Triennial Review is mandated by the federal Clean Water Act, which requires the WQCC to review, and revise as necessary, New Mexico’s water quality standards every three years in a public hearing process…Continue Reading.
  • D.C. Circuit Clean Air Act Decision Vacates EPA’s “Summit Directive” Involving Aggregation of Natural Gas Facility Sources
    In Nat’l Envtl. Dev. Association’s Clean Air Project v. EPA, the D.C. Circuit Court of Appeals vacated the United States Environmental Protection Agency’s (“EPA”) December 2012 directive entitled “Applicability of the Summit Decision to EPA Title V and NSR Determinations” (the “Summit Directive”),  dealing another blow to EPA’s expansive use of “interrelatedness” in making source aggregation determinations…Continue Reading.
  • Recent New Mexico Case Law Impacting Oil and Gas Working Interest Owners
    An opinion recently issued by the United States District Court of New Mexico covers a variety of novel issues arising under New Mexico Oil and Gas law such as exhaustion requirements with the New Mexico Oil Conservation Division (“OCD”) and Oil Conservation Commission (“OCC”), the permissibility of collateral attacks on administrative orders, and the application of co-tenancy in tort claims asserted by working interest owners…Continue Reading.
  • Endangered Species Act and Agency Management: Aransas Project v. Shaw Update
    On June 30, 2014, the Fifth Circuit Court of Appeals issued a significant decision under the Endangered Species Act (“ESA”).  See Aransas Project v. Shaw, No. 13-40317 (5th Cir. June 30, 2014). The Fifth Circuit’s decision reversed Aransas Project v. Shaw, 930 F.Supp.2d 716 (S.D. Tex. 2013), a controversial case involving whooping cranes in which the U.S. District Court for the Southern District of Texas had granted The Aransas Project (“TAP”)-a non-governmental organization-an injunction against the Texas Commission on Environmental Quality (“TCEQ”).  In granting the injunction, the District Court found that TCEQ had violated…Continue Reading.
  • Endangered Species Act: FWS’ Lesser Prairie-Chicken Regulatory Framework
    On March 27, 2014, the U.S. Fish and Wildlife Service (“FWS”) announced the listing of the lesser prairie-chicken as a threatened species pursuant to the Endangered Species Act (“ESA”).  Concurrently, the FWS promulgated a “special” 4(d) take rule allowing states to retain a greater degree of responsibility for management and conservation efforts.  The 4(d) rule also allows for incidental takes of the lesser prairie-chicken when associated with…Continue Reading.