Water Worries? Energy Permitting and Enforcement After the N

HAPL Fall Seminar - October 17, 2015

Water Worries? Energy Permitting and Enforcement After the New Clean Water Rule

CLEAN WATER ACT

Water Supply Impacts

>Diversion and storage authorization

>On-channel storage / off-channel storage

>Permit authorization needed for storage of state water in off-channel structure

-Overview: Permitting &

Enforcement

-404 Permitting

-NPDES Program

-MS4/Stormwater

-NEPA Impacts

Nathan E. Vassar

Lloyd Gosselink Rochelle & Townsend

CLEAN WATER RULE IN CONTEXT

-New definition of "waters of the United States"

-Cornerstone of regulation for EPA/Corps

The Rule:

In the News vs. In Reality

Jurisdictional by Rule

Rule Overview

1) Traditional Navigable waters;

2) Interstate waters;

3) Territorial Seas;

4) Impoundments of jurisdictional waters;

5) Tributaries;

6) Adjacent waters

Excluded by Rule

1) Groundwater;

2) Waste treatment systems;

3) Stormwater control features (constructed on dry land);

4) Prior converted cropland;

5) Certain ditches;

6) Swimming pools et al.;

7) Certain ponds created

on dry land.

Significant Nexus Test

Only applicable to five categories:

-Update post SWANCC and Rapanos

-Three categories:

>Jurisdictional by Rule

>Excluded by Rule

>Significant Nexus

Rule Status

Effective Date: August 28, 2015

Litigation:

>North Dakota et al. vs. U.S. EPA: Stay of Rule's implementation for states subject to ruling

>Consolidated cases before U.S. 6th Circuit

>Anticipated path forward

Oil and Gas Concerns

Water Supply Planning

-Source of supplies

-Recycling water

Water Supplies, Waste Disposal, and SPCC Planning & Enforcement

Permitting Planning

Anticipating (and avoiding) Enforcement

-Responding to information requests

-Jurisdictional Determinations

-Engaging regulators

-Using compliance history to tell story

-Permitting

>Water Rights

>Discharge (TPDES) Permits

>Dredge/Fill Projects

-Enforcement

>Impacts to water recycling/waste disposals

>SPCC Plans (and enforcement)

>Fracking impacts

Conclusions/Next Steps

-Uncertainties of on-the-ground application

-Ongoing litigation

-Overlay of water law with oil/gas activities

Recommendations and Strategies

Questions?

Nathan Vassar

nvassar@lglawfirm.com

(512) 322-5867

Discharge Impacts

(CWA 402)

Rule's Impacts

Dredge & Fill Impacts

(CWA 404)

-PR front: fears and concerns

SPCC Impacts

(CWA 311)

Texas Jurisdiction and Overlays

Texas Water Code and "adjacent to" discussion