After conducting a “listening tour” in 14 cities across the state, the Texas Water Development Board (TWDB) has recently released proposed new rules for flood mitigation funding.  The proposed rules implement new legislation and measures[1] adopted in the aftermath of recent notable flooding events experienced in Texas, including Hurricane Harvey, a storm that resulted in an estimated $125 billion in damages.  As a result, the state will now play a significant role in funding flood mitigation infrastructure.  The new measures include, among other things, the TWDB’s implementation of the legislative transfer of about $800 million from the state’s rainy day fund, mainly funded by oil and gas taxes, to a newly-established flood infrastructure fund (FIF).  
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The Railroad Commission of Texas has authority to issue permits for discharges associated with oil and gas operations in the state, but it does not yet have delegation of the NPDES permitting program. Thus, to the extent that produced water discharges are not currently barred under federal regulations, facilities seeking authorization for these discharges to waters of the US must obtain authorization from both EPA and the RRC. This article highlights Texas efforts underway to obtain NPDES delegation for produced water discharges.
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On May 15, EPA released its draft Study of Oil and Gas Extraction Wastewater Management under the Clean Water Act. The Draft Study addresses the results of an extensive review initiated last year to evaluate the management of oil and gas wastewaters generated at onshore facilities and to assess the need for additional discharge options for onshore oil and gas wastewater under the Clean Water Act. Although EPA has not yet adopted any recommendations for regulatory action, it is evident that EPA is continuing to take a hard look at the merits of authorizing broader discharges of produced water to surface waters than those currently allowed for onshore discharges under the CWA effluent guidelines (and generally referred to as the zero discharge standard).
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The US Environmental Protection Agency has recently determined that no revisions to existing RCRA Subtitle D regulations for the management of oil and gas wastes are necessary. This conclusion follows EPA’s completion of an extensive review to fulfill the requirements of a Consent Decree entered by the US District Court for the District of Columbia that settled litigation filed by certain environmental organizations over EPA’s alleged failure to update its rules for management of oil and gas wastes. EPA’s findings, released on April 23, 2019, are set forth in a report titled, Management of Oil and Gas Exploration, Development and Production Wastes: Factors Informing a Decision on the Need for Regulatory Action. This means that, at least for now, EPA’s longstanding position on regulation of oil and gas wastes remains unchanged.
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With produced water volumes on the rise as a result of the growth in oil and natural gas production and various areas of the country experiencing water scarcity, states and stakeholders are increasingly looking for ways to reuse, recycle and beneficially use waters originating from the oil and gas industry. Two recent initiatives are likely to significantly advance policy decisions related to produced water management.
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