U.S EPA and Army Corps Revert Back to Pre-2015 Interpretation of “Waters of the United States”
Energy & Environmental Law Blog
by Ryan Elliott
2y ago
On August 30, 2021, the U.S. District Court for the District of Arizona issued an Order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. Following the Court’s Order, U.S. EPA and the Army Corps of Engineers issued a joint statement on U.S. EPA’s website indicating the that Agencies have halted implementation of the Navigable Waters Protection Rule and are reverting back to the pre-2015 regulatory regime for interpreting the meaning of “waters of the United States” (WOTUS) subject to federal jurisdiction under ..read more
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Ohio EPA’s proposed changes to biocriteria rules could affect point source dischargers.
Energy & Environmental Law Blog
by Nat Morse
2y ago
Facilities with a permitted outfall that discharges into a waterbody with water quality attainment challenges could be impacted by a recently proposed rule from Ohio EPA (OEPA). OEPA is proposing to revise the existing biocriteria rules by making it easier to modify point source effluent limits upstream of waterbodies that are not attaining biocriteria. Currently, if point sources are in compliance with all effluent limits (both specific chemicals and whole effluent), then OEPA carries the burden of showing that point sources are the primary cause for the non-attainment of biological criteria ..read more
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Public Comment Period Opens as Ohio EPA Issues Draft Revisions to Rules for Control of Volatile Organic Compounds (VOCs) and Carbon Monoxide (CO)
Energy & Environmental Law Blog
by Ryan Elliott
3y ago
On May 17, 2021, Ohio EPA issued public notice of draft revisions to Ohio Administrative Code (OAC) Chapter 3745-21, “Carbon Monoxide, Photochemically Reactive Materials, Hydrocarbons, and Related Materials Standards.” The purpose of Ohio EPA’s draft revisions is two-fold: (1) to satisfy Ohio EPA’s 5-year rule review requirements, and (2) to implement mandatory Reasonably Available Control Technology (RACT) requirements for the Cincinnati and Cleveland 2015 ozone nonattainment areas. Revisions stemming from the 5-year rule review requirements are mostly minor changes to provide rule clarificat ..read more
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UPDATE: Ohio Waives Clean Water Act 401 Certification for 16 Nationwide Permits
Energy & Environmental Law Blog
by Ryan Elliott
3y ago
The U.S. Army Corps of Engineers recently determined that Ohio waived its right to issue a water quality certification (WQC) under section 401 of the Clean Water Act (CWA) for the 16 new Nationwide Permits (NWPs) that went into effect on March 15, 2021. Ohio’s 401 WQC waiver means that an applicant seeking to obtain one of the 16 new NWPs for a particular project does not need to obtain a 401 WQC certification from Ohio EPA before submitting the NWP application to the Army Corps. On January 13, 2021 the U.S. Army Corps of Engineers published a final rule reissuing and modifying 12 existing NWP ..read more
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Ohio Court of Appeals Addresses Adverse Possession of Minerals Among Co-Tenants
Energy & Environmental Law Blog
by Jay Carr
3y ago
The 7th District Court of Appeals in Ohio recently addressed what elements a co-tenant must satisfy to adversely possess a severed oil and gas interest against his co-tenants. See, Tomechko v. Garrett, 2021-Ohio-1377. In Tomechko, the appellants were the owners of the surface and one-half of the minerals. The appellees were the heirs and devisees of the owners of the other one-half of the minerals. In 1989, the appellants’ predecessor-in-interest signed an oil and gas lease with Trans Atlantic Energy Corp. Trans Atlantic drilled two wells on the appellants’ property, which began producing oil ..read more
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Supreme Court of Ohio Further Clarifies Exception Under the Marketable Title Act in Erickson v. Morrison
Energy & Environmental Law Blog
by Mark Hylton
3y ago
On March 16, 2021, the Supreme Court of Ohio expanded upon its prior decision in Blackstone v. Moore, 2018-Ohio-4959, holding that a reference in a deed that described a previously severed mineral interest, but without identifying the name of the interest owner, was specific under R.C. 5301.49(A), and thus prevented the extinguishment of the interest under the Marketable Title Act.  See Erickson v. Morrison, Slip Opinion No. 2021-Ohio-746.  Read more about that decision in our Client Alert ..read more
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Ohio EPA Division of Air Pollution Control hosts Program Advisory Group Meeting
Energy & Environmental Law Blog
by Ryan Elliott
3y ago
On January 20, 2021, the Ohio EPA’s Division of Air Pollution Control (DAPC) hosted a “Program Advisory Group” (PAG) meeting via Microsoft Teams to inform interested stakeholders of recent and upcoming DAPC activities. The topics discussed during the PAG meeting included: anticipated regulatory changes to address non-attainment of the 2015 Ozone National Ambient Air Quality Standard (NAAQS); a report on improvements in air permitting efficiency, and current air permit projects including new exemptions and permits-by-rule for certain sources; amendments to the nuisance and malfunction rules und ..read more
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D.C Circuit Court of Appeals Vacates Affordable Clean Energy Rule
Energy & Environmental Law Blog
by Ryan Elliott
3y ago
On January 19, 2021, the United States Court of Appeals for the D. C. Circuit issued an Order vacating U.S. EPA’s 2019 Affordable Clean Energy Rule (ACE Rule). The 2019 ACE Rule replaced the 2015 Clean Power Plan as a means of regulating greenhouse gas (GHG) emissions from power plants. The Court held that, while U.S. EPA has the authority to regulate GHG emissions, “the central operative terms of the ACE Rule . . . hinged on a fundamental misconstruction of Section 7411(d) of the Clean Air Act.” The Court also held that the extended compliance schedules for reducing GHG emissions under the AC ..read more
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Supreme Court of Ohio Addresses Due Diligence Under the Dormant Mineral Act
Energy & Environmental Law Blog
by Mark Hylton
3y ago
On December 17, 2020, the Supreme Court of Ohio addressed the surface owner’s due diligence obligations under the 2006 version of the Ohio Dormant Mineral Act.  See Gerrity v. Chervenak, Slip Opinion No. 2020-Ohio-6705.  Read more about that decision in our Client Alert ..read more
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Supreme Court of Ohio Rules on Applicability of Ohio Marketable Title Act to Severed Mineral Interests
Energy & Environmental Law Blog
by Mark Hylton
3y ago
On December 2, 2020, the Supreme Court of Ohio held that the Ohio Marketable Title Act applies to severed mineral interests despite the enactment of the Ohio Dormant Mineral Act.  See West v. Bode, 2020-Ohio-5473.  Read more about that decision in our Client Alert ..read more
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