Recent Developments

Texas Supreme Court
City of Marshall v. City of Uncertain, Case No. 03-1111 (Tex. 2006)
The Texas Supreme Court held that water right permit amendments requesting only a change in use might require a full or partial evidentiary hearing if it could not be determined from the face of the application that no other water rights holders or the on-stream environment were affected beyond or irrespective of the full use assumption. The Court remanded the case to the Commission for a factual determination consistent with its decision. The City of Marshall has filed a petition for rehearing.

State v. Shumake, Case No. 04-0460 (Tex. 2006)
The Texas Supreme Court found that a family could pursue suit under the Recreational Use statute against the Texas Parks and Wildlife Department for the drowning death of their daughter, who drowned in the Blanco River after being pulled under the water near a culvert.

Texas Appellate Courts
Hix v. Robertson, Case No. 10-05-00214-CV (Tex. App. -- Waco)
On July 12, 2006, the Waco Court of Appeals invited any "interested person or organization" to submit an amicus brief because the issues before the court are "of both public and private significance." The court below ruled that a specified part of Hog Creek is a statutory navigable stream and the general public is entitled to its use.

U.S. Supreme Court
Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers
The Supreme Court vacated and remanded two cases in which the U.S Court of Appeals for the Sixth Circuit concluded that certain wetlands in Michigan, that are adjacent to ditches or man-made culverts, and which eventually discharge into traditional navigable waters, constituted “waters of the United States” subject to regulation under the federal Clean Water Act. The plurality opinion, supported by four Justices, indicated that the Sixth Circuit’s decision improperly expanded the meaning of the term “navigable waters” in the CWA beyond what Congress intended.

U.S. Environmental Protection Agency – Rulemaking
Water Transfer Rule
On June 7, 2006, a rule proposed by the USEPA would clarify that permits are not required for transfers of water from one body of water to another. The federal register notice is available at,
http://www.epa.gov/npdes/regulations/water_transfers_preamble_final.pdf.

Confined Animal Feeding Operations
On June 22, 2006, the USEPA released for public comment rules revising the National Pollutant Discharge Elimination System (NPDES) permitting requirements and Effluent Limitations Guidelines and Standards for CAFOs. The proposed revision is available at
http://www.epa.gov/npdes/afo/revisedrule.

Oil and Gas Stormwater Permitting Rules
Effective June 22, 2006, the USEPA finalized revisions to its storm water regulations in accordance with provisions of the Energy Policy Act of 2005, which amended the Clean Water Act. The new rules modify existing water permitting program regulations to clarify that uncontaminated storm water discharged from oil and gas field activities does not require a National Pollutant Discharge Elimination System permit. More information may be obtained at
http://cfpub.epa.gov/npdes/stormwater/oilgas.cfm.

Do you know about a matter, particularly of a Texas flavor, that should be included in the Recent Developments? Send it to craigpritzlaff@andrewskurth.com