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THE HOUSTON
The Oil Pollution Act of 1990: A Year in
the Spotlight
Jurisdictional Wetlands and Mitigation Banking
in Texas
The State of Texas versus the EPA Regulation
of Hydraulic Fracturing
Houston Bar Foundation Recognizes Outstanding
Efforts by Volunteers
Volume 48 – Number 5 March/April 2011

Environmental
and Energy Law
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 contents

March/April 2011 Volume 48 Number 5

FEATURES
10 16
10 The Oil Pollution Act
of 1990: A Year in the
Spotlight
By Andrew J. Torrant

16 Jurisdictional Wetlands
and Mitigation Banking
in Texas
By Andrew L. Fono
and Russ Krauss

24 The State of Texas versus

the EPA Regulation of
Hydraulic Fracturing
24 30 By Terry W. Roberson

30 Houston Bar Foundation

Recognizes Outstanding
Efforts by Volunteers
The Houston Lawyer

The Houston Lawyer (ISSN 0439-660X) is published bimonthly by The Houston Bar Association, 1300 First City Tower, 1001 Fannin St., Houston, TX 77002-6715. Periodical postage paid at Houston, Texas. Subscription rate:
$12 for members. $25.00 non-members. POSTMASTER: Send address changes to: The Houston Lawyer, 1300 First City Tower, 1001 Fannin, Houston, TX 77002. Telephone: 713-759-1133. All editorial inquiries should
be addressed to The Houston Lawyer at the above address. All advertising inquiries should be addressed to: Quantum/SUR, 12818 Willow Centre Dr., Ste. B, Houston, TX 77066, 281-955-2449 ext 16, www.thehouston
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does not imply endorsement of any product or service offered. For article REPRINTS, please contact Wright’s Reprints: 1-877-652-5295. ©The Houston Bar Association, 2011. All rights reserved.

2 March/April 2011 thehoustonlawyer.com

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 contents

March/April 2011 Volume 48 Number 5

departments
33 35
6 President’s Message
Take the Climate Challenge
By T. Mark Kelly

8 From the Editor

An Interesting Year in
Environmental Law
By John S. Gray

33 Committee Spotlight
Get Involved with the Campaign
for the Homeless Committee
By Lisa Brindle Talbot

46
35 OffMarathon
the Record
Woman
By Mark Trachtenberg

36 AtJudicial
the Bar
Investitures

38 Media Reviews
Legal Writing for the Rewired
Brain: Persuading Readers in a
Paperless World
Reviewed by Mark Trachtenberg

The Trial
Reviewed by Caroline Pace

Dragon Naturally Speaking 11

Reviewed by Robert Painter
and Al Harrison

42 Legal Trends
The Texas Court of Criminal
Appeals Affirms the Deference
Owed to the Trier of Fact
By Farrah Martinez

The Texas Supreme Court Says

“No” to Rolling Easements
By Goran Krnaich

46 AJeffrey
Profile in Professionalism:
W. Carr
Senior Vice President, General Counsel & Secretary
FMC Technologies Inc.
The Houston Lawyer

47 Placement Service
48 Litigation MarketPlace
4 March/April 2011 thehoustonlawyer.com
 Join the Houston Bar Association’s 100 Club
The Houston Bar Association 100 Club is a special category of membership that indicates a commitment to the advancement of the legal
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By T. Mark Kelly
Vinson & Elkins LLP
Take the Climate Challenge
T
his issue of The Houston
Lawyer that focuses on en-
ergy and environmental law
seemed the perfect place to
announce a new challenge
that the HBA and its Lawyers
Against Waste Committee are proposing to
law firms and law offices. The Law Office
Climate Challenge was developed by the
American Bar Association Section of En-
vironment, Energy and Resources (SEER),
in cooperation with the U.S. Environmen-
tal Protection Agency. It is designed to en-
courage law offices to take specific steps to
conserve energy and resources, as well as
reduce emissions of greenhouse gases and
other pollutants. The ABA’s Law Practice
Management Section is also a sponsor.
The HBA’s Lawyers Against Waste Com-
mittee, chaired this year by Julie Baumgar-
ten Pradel of The Williams Companies and
Judge David Fraga of the City of Houston
Municipal Courts, has since 1998 orga-
nized activities that benefit our environ-
ment and beautify our city. The annual
Lawyers Against Waste Trash Bash is com-
ing up April 30, in which volunteers from
the HBA and the community will pick up
trash, trim shrubs, weed, mow and per-
form other tasks that will greatly improve
a section of Hermann Park. Last fall, the
committee organized an event to remove
debris and verify burial records at College
Memorial Park Cemetery, which dates
from the late 1890s.
Those wonderful events provide much-
needed outreach to the community, but
the committee’s newest project focuses on
The Houston Lawyer
the internal operation of law offices. Join-
ing the Climate Challenge is a way that
your office can help the environment, re-
duce waste, save money and enhance your
6 March/April 2011 thehoustonlawyer.com
president’s message
reputation as a good citizen. The HBA
program’s slogan, coined by Judge Fraga,
is “Clean Today for a Green Tomorrow.”
It may be as simple as undertaking best
practices for office paper management
or extended to purchasing energy-saving
equipment and renewable energy sources.
There are four ways to participate:
1. Adopt best practices for office paper
management by reducing paper us-
age, increasing recycled content in pa-
per purchased, or increasing recycling.
2. Participate in the EPA’s Waste-
Wise program, which encourages
organizations to save energy by re-
ducing waste, and adopt best prac-
tices for office paper management.
3. Participate in the EPA’s Green Power
Partnership program by purchasing en-
ergy from renewable sources to cover
at least a portion of electricity usage.
4. Participate in the EPA’s ENERGY STAR
Program, which encourages law offices
to reduce energy use by at least 10 per-
cent through, among other things, the
purchase of ENERGY STAR-designated
equipment and implementation of better
energy management practices. This pro-
gram has features that recognize the is-
sues associated with tenant law offices.
Detailed information on each of these
options is available on the ABA website
through a link on the HBA homepage,
www.hba.org. The application procedures
are not complicated, and you will receive
recognition from the HBA and the ABA, as
well as from the EPA if you choose one of
their partnership programs. The ABA site
also includes a wealth of information on
ways that law offices can reduce their car-
bon footprint. For instance, the WasteWise
program shows you best practices on recy-
cling paper, including double-sided print-
ing and copying, and how to economically
purchase paper with recycled content. A
comprehensive Law Office Guide to En-
ergy Efficiency offers tips on everything
from evaluating your office lighting to
better utilizing idle time settings on your
computers and other office equipment.
A 30 percent reduction in power cost per
square foot on a 20,000 square foot office
space could net $60,000 in savings over a
five-year lease.
“Carbon footprint” may have become a
buzzword, but don’t let that dilute its im-
portance. A recent study at Purdue Uni-
versity showed that one lawyer can use up
to 100,000 sheets of paper in one year—
enough to publish 347 copies of Harper
Lee’s legal classic, To Kill a Mockingbird.
Multiply that by the number of lawyers
that make up Houston’s law firms, and it’s
an astounding mound of paper. By mak-
ing even small changes, law offices can
achieve a big impact toward a cleaner en-
vironment.
I know that a number of law offices in
Houston are already involved in waste
reduction and energy saving programs. If
you have already implemented many of
these best practices, earn recognition of
your efforts by joining the Climate Chal-
lenge. If your office is looking for ways to
“Clean Today for a Green Tomorrow,” this
is a great opportunity to learn more about
your options.
Within the next few weeks, HBA mem-
bers will receive an email from the Law-
yers Against Waste Committee that details
the Climate Challenge and lets you know
how to register your participation through
the HBA, so your law office can begin re-
ceiving the recognition it deserves.
The Climate Challenge will run through
March 2013. Think of all the paper you
could save, just in the next two years.
And for a hands-on project that helps
the environment, get together a team or
participate as an individual in the April
30 Lawyers Against Waste Trash Bash in
Hermann Park. You can bring the family
and enjoy morning coffee and pastries,
lunch and door prizes, at no charge. In
between, we’ll put you to work clean-
ing up a section of Houston’s most
famous park. Visit www.hba.org for
more information or call our office at
713-759-1133.

713.840.1000
jatkinson@linscomb-williams.com
www.linscomb-williams.com Strategies for Wealth

thehoustonlawyer.com March/April 2011 7

 from the editor
By John S. Gray
Gardere Wynne Sewell LLP
Associate
Editors An Interesting Year in
Environmental Law
W
hen Mark Kelly and I were plan-
Keri Brown
Baker Botts L.L.P.
ning the topics to be covered
in our six annual issues of The
Houston Lawyer last year our
community, along with the rest
of the Gulf Coast, was witnessing
and experiencing the largest accidental marine oil spill
in the history of the petroleum industry–the blowout
Catherine Le of the deepwater Macondo well and subsequent explo-
Law Firm of sions on and sinking of the Deepwater Horizon drilling
Catherine Le
rig. We wanted to address the potential legal issues our
community would be addressing, but the oil was still
flowing uncontrolled from the wellhead, the extent of
damage to marine and wildlife habitats, as well as the
Gulf’s fishing and tourism industries, was ever-chang-
ing, Congress was railing about making wholesale
changes to existing marine pollution liability statutes,
Robert W. Painter
The Painter and the forum where the legal issues raised by the oil
Law Firm spill would be decided–Houston or New Orleans–had
yet to be determined. Consequently, we decided to wait
until the fog over the legal landscape lifted a bit to pre-
pare an environmental issue to cover these topics and
others that were percolating last spring.
This April 20th marks the one-year anniversary of
when methane gas under high pressure expanded up-
Don Rogers ward and out of the drill column onto the rig’s plat-
Harris County
District Attorney’s form, where it ignited and exploded. Despite efforts to
Office douse the flames, the Deepwater Horizon sank on April
22nd shortly after which the oil leak was discovered
coming from the damaged wellhead on the sea floor.
Estimates of the spill flow rate varied widely, but sub-
sequent government reports estimated that the spill
was about 20 times larger than the one caused by the
The Houston Lawyer
Exxon Valdez. The wellhead was finally capped in July.
Tamara Stiner Thankfully, the spill occurred far from shore and efforts
Toomer
Attorney at Law
to protect the Gulf coastline and marine environments
were generally successful although many experts still
8 March/April 2011 thehoustonlawyer.com
debate how much of the oil was actually released into
the environment, contained and removed. Moreover,
there is a lot of disagreement on the effects of the oil
and chemicals used to disperse it on the environment
(including coral), marine life and the food chain. This
is an issue that will be studied for many years.
It did not take long for litigation to spring forth with
hundreds of individual and class action lawsuits being
filed “in which individuals and businesses seek pay-
ment for financial losses covered by the Oil Spill Pollu-
tion Act. Generally, the claimants in these lawsuits are
fishermen, hotel operators, landowners, rental compa-
nies, restaurants and seafood processors, who claim a
current or potential future loss of business in the af-
termath of the oil spill.” In hearings on the Oil Spill
litigation held in July and August of last year, a panel of
federal judges in Boise, Idaho decided to create Multi-
district Litigation to be based in either Houston or New
Orleans. New Orleans was preferred by the plaintiffs’
bar and the government, and the JPML ordered that the
majority of lawsuits relating to the Oil Spill be trans-
ferred to the U.S. District Court for the Eastern District
of Louisiana for consolidated pretrial proceedings. BP
investors’ suits over losses tied to the spill are being
heard in a federal court in Houston. Perhaps just as
significantly, in coordination with the Obama Admin-
istration, BP created a $20 billion spill response fund
being administered by Kenneth Feinberg to be used
for natural resource damages, state and local response
costs and individual compensation, but not be used for
fines or penalties. This fund is expected to resolve most
claims and in order to participate in this process, claim-
ants have to surrender their right to sue BP.
I expect you may be wondering why more of this
issue is not devoted to the oil spill, given that the spill
was the reason for deciding to dedicate an issue to en-
vironmental law in the first place. The reason is rather
continued on page 23
 BOARD OF DIRECTORS
President Secretary
T. Mark Kelly David A. Chaumette
President-Elect Treasurer
Denise Scofield Brent A. Benoit
First Vice President Past President
M. Carter Crow Barrett H. Reasoner
Second Vice President
Laura Gibson

DIRECTORS (2009-2011)
Alistair B. Dawson Hon. David O. Fraga
Jennifer A. Hasley Daniella D. Landers

DIRECTORS (2010-2012)
Benny Agosto, Jr. Todd M. Frankfort
Warren W. Harris John Spiller

editorial staff
Editor in Chief
John S. Gray

Associate Editors
Keri D. Brown Catherine Le
Robert W. Painter Don Rogers
Tamara Stiner Toomer

Editorial Board
Julie Barry Sharon D. Cammack
Angela Dixon Don D. Ford III
Dori Kornfeld Goldman Al Harrison
Farrah Martinez Judy L. Ney
Caroline C. Pace Maidie Ryan
Joy E. Sanders Mark Schuck
Hannah Sibiski Lisa Brindle Talbot
Mark R. Trachtenberg Gary A. Wiener
N. Jill Yaziji

Managing Editor
Tara Shockley

HBA office staff

Executive Director Membership and
Kay Sim Technology Services
Director
Administrative Assistant Ronald Riojas
Ashley G. Steininger
Administrative Assistant Membership
Bonnie Simmons Assistant
Billy Salinas
Receptionist/Resource
Secretary Committees & Events
Lucia Valdez Assistant
Ashley Sugg
Director of Education
Lucy Fisher Community Education
Continuing Legal Education Assistant
Assistant Natasha Williams
Amelia Burt Communications
Communications Director Assistant/Web Designer
Tara Shockley Brooke Eshleman

Advertising sales
Design & production
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12818 Willow Centre, Ste. B, Houston, TX 77066
281 . 955 . 2449 • www.quantumsur.com
Publisher
Leonel E. Mejía
Production Manager
Marta M. Mejía
Advertising
Mary Chavoustie & Liz C. Searcy

thehoustonlawyer.com March/April 2011 9

 By Andrew J. Torrant

The Oil F
or several months in 2010,
as the world watched crude
oil flow from the ocean floor
into the Gulf of Mexico,
decision-makers scrutinized
the legal framework in the
United States for handling the public and

Pollution Act
private claims that could typically result
from such incidents. Indeed, within days
of the April 20, 2010, Deepwater Horizon/
MC-252 well blowout, commentators and
congressmen alike called for a revamp of
the Oil Pollution Act of 19901 (“OPA”)
on the speculation that the statute would

of 1990:
not offer adequate protections. In reality,
a more thorough examination of OPA,
rather than a knee-jerk reaction, shows
that the rush to judgment may have
been premature. OPA was once touted
as a measured, bipartisan response to the
Exxon Valdez incident of 1989, and OPA

A Year in the
continues to provide a viable method for
handling spill-related claims today.

I. OPA and Its Enactment

Having survived recent attempts to sig-
nificantly alter OPA, its provisions are still
the primary oil-spill response legislation

Spotlight
in place for incidents in inland and off-
shore waters of the United States. The act
covers a broad range of spill-related activ-
ities and liabilities, and as such, serves to
cover many contingencies.
While the 101st Congress enacted OPA
in 1990 as a result of a fervor similar to
2010 Gulf oil spill reaction, that Congress
ended up taking a measured approach, al-

Why the Act is Still a Viable most 18 months were allowed to pass fol-
lowing the Exxon Valdez spill before the

Method for Handling

Spill-related Claims
statute was signed into law. OPA is note-
worthy because of the general sense of bi-
partisan support that it received. Though
that support may have been spurred on
by intense rhetoric, the ultimate legisla-
tive product was not a mere codification
of anger directed at Exxon. Nearly a year
after the Deepwater Horizon incident,
Congress has yet to fully act on the in-
tense rhetoric that filled the airwaves for
much of 2010, but it may still do so as
long as such a negative mood continues
to linger.
A. What OPA Does:
Response Resources
OPA was signed into law in August 1990,
after the Exxon Valdez incident that
spilled approximately 11 million gallons
of crude oil into the rich fishing grounds
of Prince William Sound, and onto over
1,300 miles of Alaskan shoreline. Within
weeks of the spill, Exxon set up a “claims
program” to provide fishermen and oth-
ers with immediate relief and to pay for
the damages they suffered. Many fisher-
men and other local residents were hired
by Exxon for spill clean-up and were well-
paid for their boats, equipment and time.
In the end, Exxon spent approximately
$2.1 billion in cleanup efforts alone.
Despite the response efforts exhibited
in the aftermath of the Exxon Valdez, the
aim of OPA was to broaden the reach of
the government concerning spills to navi-
gable waters, expand the types of claims
that could be asserted, and provide more
money and resources for oil-spill response,
including creation of the Oil Spill Liability
Trust Fund (“Fund”), which provides up
to $1 billion per spill incident. OPA also
intensified the requirements for contin-
gency planning and spread out the Na-
tional Oil and Hazardous Substances Pol-
lution Contingency Plan in a three-tiered
approach:
• the federal government is required to
direct all public and private response
efforts for certain types of spill events;
• area committees—composed of
federal, state, and local government
officials—must develop detailed,
location-specific Area Contingency
Plans; and
• owners or operators of vessels and
certain facilities must prepare their
own Facility Response Plans.
Finally, OPA increased civil and crimi-
nal penalties for violation of the Clean
Water Act, broadened the response and
enforcement authority of the federal gov-
ernment and preserved state authority to
establish law governing oil-spill preven-
tion and response.2
B. To Whom OPA Applies:
Responsible Parties
Generally, courts and commentators as-
sert that liability under OPA is strict, joint
and several.3 Liability can be imposed
on each “responsible party” (“RP”) for a
vessel or facility that discharges oil into
or upon the navigable waters or adjoin-
ing shorelines or the exclusive economic
zone.4 The terms “vessel” and “facility”
are defined broadly enough by OPA to
together encompass virtually any instru-
mentality that might conceivably dis-
charge oil.5 Similarly broad, the term “dis-
charge” includes any emission of oil that
is not natural seepage.6
The determination of whether a person
is a RP depends on the instrumentality at
issue: vessels, onshore facilities, offshore
facilities, deepwater ports and pipelines.7
thehoustonlawyer.com
In the case of vessels, onshore facilities,
and pipelines, the RP is the owner or op-
erator; in the case of a deepwater port,
the RP is the licensee authorized under
the Deepwater Port Act; and in the case
of offshore facilities, the RP is the lessee,
permittee, or easement holder (i.e., the
party that holds the right to the oil in the
given sector). A sampling of instrumen-
talities that would fit into these categories
include barges, tug boats, tankers, refin-
eries, storage tanks, pipelines, produc-
tion facilities, drilling rigs, platforms, and
mobile offshore drilling units (MODUs),8
just to name a few.
C. What OPA Allows: Liability & Defenses
OPA imposes liability on responsible par-
ties for removal costs, different damages
incurred by the United States, a State or
an Indian tribe, or any person, and ad-
ministration of Fund claims.
Removal Costs
Removal costs are those costs incurred to
remove oil after a discharge has occurred
or the costs to prevent, minimize, or miti-
gate oil pollution from such an incident.
These actions include containment and
removal of oil from water and shorelines,
and other actions as may be necessary to
minimize or mitigate damage to the pub-
lic health or welfare, including, but not
limited to, fish, shellfish, wildlife, and
public and private property, shorelines,
and beaches.
Damages
OPA also allows different categories of in-
jured parties to recover different types of
damages.9 The following summarizes the
categories of damages recoverable under
OPA and indicates whether certain parties
may recover such damages:
March/April 2011 11
 • Natural resource damages are for lost
use of marshes, wetlands, coastlines,
and other habitats. Only certain des-
ignated government entities or their
trustees may recover for damage to
natural resources.
• Real or personal property damages
are for injury to or economic losses
from destruction of real or personal
property. Any claimant—property
owner or lessee—whose property was
damaged may recover for property
damages.
• Subsistence use damages are for lost
subsistence use of natural resources
like fish and wildlife or wetlands. Any
previous user of the resources—not
necessarily the owner—may recover
such damages.
• Revenues damages are for the net
loss of taxes, royalties, rents, fees or
net profit shares due to damage to
property or natural resources. Only
designated governmental entities
may recover revenues.
• Profits and earning capacity damages
12 March/April 2011 thehoustonlawyer.com
are recoverable by anyone whose lost
profits or whose earning capacity was
impaired by injury or damage
to property or natural resources.
• Public services damages are for
providing increased public services
during or after spill removal, such
as fire, safety and health protection.
Only designated governmental
entities may recover these.
Further, OPA requires a RP to set up
and implement a claims process, and to
advertise the availability of such process.
Claimants may choose to present their
full claim during this process or merely
an interim claim, without any penalty. If
the responsible party denies all liability
for a claim or if the claim is not settled
within 90 days, then the claimant may ei-
ther sue the responsible party or present
their claim to the Fund.
Defenses to Liability
Despite OPA’s strict liability provisions,
certain defenses are also provided in the
statute. A responsible party is not liable
for removal costs or damages if it estab-
lishes by a preponderance of the evidence
that the discharge or substantial threat of
a discharge of oil and the resulting dam-
ages or removal costs were caused solely
by: (1) an act of God; (2) an act of war; (3)
an act or omission of a third party (with
certain exceptions); or (4) a combination
of these causes.10 However, these defenses
do not apply if the responsible party fails
or refuses to report the incident, to pro-
vide cooperation and assistance request-
ed, or to comply with certain orders.11
In order to assert the third party defense
found in section 2703(a)(3), the respon-
sible party must establish, by a preponder-
ance of the evidence, that the responsible
party: (1) exercised due care with respect
to the oil concerned, taking into consid-
eration the characteristics of the oil and
in light of all relevant facts and circum-
stances; and (2) took precautions against
foreseeable acts or omissions of any such
third party and the foreseeable conse-
quences of those acts or omissions.12
Under the third party defense, the third
party cannot be an employee or agent
of the responsible party or a third party
whose act or omission occurs in connec-
tion with any contractual relationship
with the responsible party.13
Limitations of Liability
Importantly, OPA also establishes liability
limits based on the type of instrumentality
involved. For example, a responsible per-
son’s total liability for removal costs and
damages recoverable under the Act, which
relates to an incident from an offshore fa-
cility (except a deepwater port), may not
exceed “the total of all removal costs plus
$75,000,000.”14 For any onshore facility
or a deepwater port, the liability limit is
an absolute maximum of $350,000,000
(inclusive of removal costs).15
The liability limits for vessels are based
on the type and tonnage of the vessel and
are adjusted at least every three years to
take into account changes in the consum-
er price index.16 The table below summa-
rizes the limits last amended in 2009.
 Vessel Type
(1) For an oil cargo tank vessel greater than The greater of $3,200 per gross ton or
3,000 gross tons with a single hull, including $23,496,000.
a single-hull tank vessel fitted with double
sides only or a double bottom only.
(2) For a tank vessel greater than 3,000
gross tons, other than a vessel referred to
in (1).
(3) For an oil cargo tank vessel less than or The greater of $3,200 per gross ton or
equal to 3,000 gross tons with a single hull, $6,408,000.
including a single-hull tank vessel fitted with
double sides only or a double bottom only.
(4) For a tank vessel less than or equal
to 3,000 gross tons, other than a vessel
referred to in (3).
(5) For any other vessel
Nevertheless, OPA’s liability limits are
subject to a number of important excep-
tions. First, such limits do not apply if an
incident was proximately caused by: (1)
gross negligence or willful misconduct of,
or (2) the violation of an applicable fed-
eral safety, construction or operating reg-
ulation by, the responsible party, an agent
or employee of the responsible party, or
a person acting pursuant to a contractual
relationship with the responsible party.17
In addition, OPA’s liability limitations
do not apply if the responsible party fails
or refuses: (1) to report the incident as re-
quired by law and the responsible party
knows or has reason to know of the in-
cident; (2) to provide all reasonable co-
operation and assistance in connection
with removal activities; or (3) to comply
with an order issued under 33 U.S.C. §
1321(c) or (e) or the Intervention on the
High Seas Act.18 The limitations also do
not apply to a tank vessel on which the
only oil carried as cargo is an animal fat
or vegetable oil, or to a tank vessel that is
designated in its certificate of inspection
as an oil spill response vessel and that is
used solely for removal.
Further, the limits on liability apply
only to a responsible party’s liability under
OPA § 2702—OPA leaves states free to im-
pose additional, possibly unlimited, liabil-
ity under state statutes or common law.19
Liability Limit
The greater of $2,000 per gross ton or
$17,088,000.
The greater of $2,000 per gross ton or
$4,272,000.
The greater of $1,000 per gross ton or
$854,400.
Thus, state statutes imposing strict and/or
unlimited liability on responsible parties
would remain valid under the OPA. Fur-
thermore, OPA does not affect the author-
ity of the United States or any State
Finally, OPA specifically states that not-
withstanding the limitation of liability
provisions, “all removal costs incurred
by the United States Government or any
State or local official or agency in connec-
tion with a discharge or substantial threat
of a discharge of oil from any Outer Con-
tinental Shelf facility or a vessel carrying
oil as cargo from such a facility shall be
borne by the owner or operator of such
facility or vessel.”20
Contribution
OPA expressly allows for contribution
claims among responsible parties: “[A]
person may bring a civil action for con-
tribution against any other person who
is liable or potentially liable under [OPA]
or another law.”21 Contribution is an eq-
uitable doctrine under which a party
against whom a claim has been asserted
may require other wrongdoers, including
those not named in a claim, to contribute
proportionally towards satisfaction of the
claim. Therefore, the party that initially
responds to an oil spill incident may have
statutory contribution claims that could
be asserted against other responsible par-
thehoustonlawyer.com
ties at some future time.
A handful of reported cases indicate
that the scope of the OPA contribution
provision is decidedly broad. Indeed, one
of the earliest cases to analyze OPA’s con-
tribution provision noted that a “literal in-
terpretation... would place no limitations
on what ‘other law’ [a third party] must
be at least potentially liable under for [a
responsible person] to be able to sue...
under OPA for contribution.”22 This court
continued by opining that “at the very
least, it would seem as though ‘another
law’ under § 2709 refers to an analogous
environmental law, such as CERCLA.”23
Ultimately, the court permitted a party
to pursue contribution against a former
facility owner under both OPA and CER-
CLA, as the party alleged that the former
owner’s actions contributed to the ongo-
ing discharge of PCBs.
II. Legislation in Limbo
Against the backdrop of existing provi-
sions to deal with an oil spill, the 2010
Deepwater Horizon incident caused stake-
holders to renew the debate. As much as
anywhere, Washington, D.C. found itself
caught in the frenzy in the aftermath of
the spill. While federal regulators mobi-
lized to assess the situation and Congres-
sional committee chairs rushed to hold
hearings, media outlets covered all as-
pects of the event, including a consider-
able amount of assigning blame.
Members of Congress seized upon the
occasion to file bill after bill—and feed
press releases and sound bites to the me-
dia—regarding proposed legislation that
would either severely punish responsible
parties for incidents at offshore facilities,
or make deepwater drilling drastically
more expensive, which would have been
cost-prohibitive for most small, indepen-
dent production companies. The rush of
proposals fizzled out though. And, out
of all the bills that were filed, only one—
amending OPA to authorize advance
payments from the Fund to the federal
on-scene spill response coordinator24—
passed both houses of Congress and was
signed into law. While offshore drilling
March/April 2011 13
issues were the focus of everyone’s atten-
tion, in the end it seems that OPA was,
indeed, a workable solution for the after-
math of such a spill.
Before adjourning for planned recesses,
members of both the House and Senate
announced a final push of spill-related
legislation in late July 2010. Democratic
floor leaders compiled omnibus bills
that incorporated significant provisions
on a variety of topics from many of the
previously introduced bills. On July 28,
2010, Senate Majority Leader Harry Reid
(D-NV) introduced a 409-page omnibus
bill incorporating text from over a dozen
existing bills. The most striking parts of
this bill, named The Clean Energy Jobs
and Oil Company Accountability Act of
2010, S. 3663, included provisions that
would:
• eliminate the liability limit for certain
offshore facilities;
• modify the Fund claims process;
• reorganize the regulatory agencies
overseeing operations in the outer
continental shelf;
14 March/April 2011 thehoustonlawyer.com
• add onerous requirements for explo-
ration and production plans, spill
response plans, and requirements of
up to $1.5 billion in financial respon-
sibility;
• increase civil and criminal penalties
for activities in the outer continental
shelf;
• allow the recovery of non-pecuniary
damages; and
• repeal the Limitation of Liability Act
for vessels.25
S. 3663 sat on the 2010 Senate calendar
without ever coming to a vote. An alter-
nate omnibus bill offered by Republicans,
The Oil Spill Response Improvement Act
of 2010, S. 3643, also never made it off
the Senate calendar. Led by Sen. McCon-
nell (R-KY), who introduced a 136-page
bill, rather than targeting such a specific
actor or incident, S. 3643 was primarily
aimed at restructuring the Department of
Interior (overseeing exploration and pro-
duction activities in offshore waters and
in federal onshore lands) and addressing
industry-wide approaches to oil spill li-
ability and response, including measures
for research and preparation.
While media attention has subsided to
some degree, legislators have found ample
opportunities to launch additional bills in
2011. Sen. Robert Menendez (D-NJ) has
again introduced measures that would
eliminate the liability cap.26 Both S. 214
and S. 215 have been pending in com-
mittee, without a hearing, since January
2011, and there does not appear to be the
same climate in 2011 for advancing such
legislation.27 No doubt, stakeholders will
continue to ponder statutory and regula-
tory changes that may occur in the energy
industry and beyond.
III. Perception About OPA, Then & Now
It may be that Congress took a measured
approach when it enacted OPA, which is
why OPA remains a workable solution
today. A look at OPA’s legislative history
shows some of the reasons why the legis-
lative response to the Exxon Valdez was
so different from the reaction to the 2010
Gulf oil spill.28 The bill that became OPA
had 79 co-sponsors from both political
parties.29 It passed the House of Repre-
sentatives 375-5, the Senate by voice vote
and both houses unanimously after con-
ference.30
While the legislative responses differed,
the mood of the country was actually quite
similar in 1989 and 2010. In 1990, Con-
gress passed measured legislation despite
the mood; In 2010, Congress came close
to acting hastily because of the mood. The
Exxon Valdez spill rhetoric should sound
familiar to those who watched the news
in 2010:
The spill occurred in one of the world’s
most productive fisheries, a region
abundant with wildlife... Millions of
Americans saw images on the nightly
news of cleanup crews toiling on miles
of oil covered beaches, dead otters
washing ashore and birds struggling to
fly with their black matted feathers. The
oil spill compelled the State of Alaska to
cancel its fishing season in Prince Wil-
liam Sound, bringing untold financial
hardship to those whose livelihood de-
pends on the ocean.31
If such a mood resurges today, it may
eventually result in the kind of sweeping
changes that Congress rushed toward in
2010 but abandoned.
Of course, some do want to see OPA re-
made into a better law. One contributor to
OPA’s text believes that OPA does not work
for disasters like the 2010 Gulf spill. The
former chairman of Alaska’s oil spill com-
mission legal research task force has com-
mented that OPA is inadequate because
it lacks provisions like a supreme com-
mand-and-control center to govern spills,
and citizen councils that would oversee
safety and spill-response for offshore op-
erations.32 Whether improvements can be
worked into OPA remains to be seen.
IV. Conclusion
Like all legislation, OPA may have some
faults; however, an understanding of OPA
and its protections shows that the rush to
judgment in 2010 may have been prema-
ture. Enacted as a measured, bipartisan
response to the Exxon Valdez incident, to include, but not be limited to, “land contracts, deeds,
easements, leases, or other instruments transferring title or
OPA continues to provide a viable system possession” unless several circumstances are shown. Id. §
2703(d)(1)-(3).
for handling oil spill-related incidents to- § 2704(a)(3).
14. Id.
15. Id. § 2704(a)(4).
day. 16. Id. § 2704(a)(1)-(2); 33 C.F.R. § 138.230 (Jul. 1, 2010).
17. Id. § 2704(c)(1).
Andrew J. Torrant is an associate in the § 2704(c)(2), (4).
18. Id.
§ 2718(a).
19. Id.
Environmental Department of Fulbright & § 2704(c)(3).
20. Id.
§ 2709 (emphasis added)
21. Id.
Jaworski L.L.P. The author wishes to thank
22. In re Energy Coop., No. 92-C-2392, 1995 U.S. Dist. LEXIS 7545, at
Will Hailey for his assistance in preparing *20–21 (D. Ill. May 30, 1995).
23. Id. at *21.
this article. 24. Act of June 10, 2010, Pub. L. No. 111-191, 124 Stat. 1278.
25. Clean Energy Jobs and Oil Company Accountability Act of 2010,
S. 3663, 111th Cong. (2010).
Endnotes 26. Big Oil Bailout Prevention Unlimited Liability Act of 2011, S. 214,
1. 33 U.S.C. §§ 2701-2762 (2006 & Supp. 2010). 112th Cong. (2011); Big Oil Bailout Prevention Trust Fund Act of
2. See generally Oil Pollution Act Overview, U.S. ENVT’L PROT. 2011, S. 215, 112th Cong. (2011).
AGENCY (last modified Jan. 28, 2011), http://www.epa.gov/ also Katie Howell, Bingaman plans news spill response
27. See
legislation, E&E PUBLISHING, Jan. 26, 2011, http://www.eenews.
emergencies/content/lawsregs/opaover.htm.
net/Greenwire/gulf_spill/2011/01/26/3 (“[I]t remains uncertain
3. OPA does not use the terms “strict” or “joint and several,”
however, courts and commentators refer to legislative history for how much political will exists on Capitol Hill to pass legislation in
this position. See Apex Oil Co. v. United States, 208 F. Supp. 2d response to the oil spill. President Obama last night in his State of
642, 652 (E.D. La. 2002); United States v. English, No. 00-00016, the Union address made no mention of the BP PLC spill.”).
2001 U.S. Dist. LEXIS 26033, at *7 (D. Haw. Mar. 28, 2001); generally Comment, Elizabeth R. Millard, Anatomy of an
28. See
Patricia Simmons Schminke, “The Oil Pollution Act of 1990: Has Oil Spill: The Exxon Valdez and the Oil Pollution Act of 1990, 18
it Muddied the Waters of Liability Limitation?”, 5 U. Balt. J. Envt’l SETON HALL LEGIS. J. 331, 347 (1993-1994).
L. 173, 186 (1995). 29. Oil Pollution Act of 1990, H.R. 1465, 101st Cong. (1990) (as
4. 33 U.S.C. § 2702(a). introduced, considered by committees, Mar. 16, 1989, through
§ 2701(9), (37).
5. Id. Sept. 11, 1989) (enacted).
§ 2701(7).
6. Id. 30. Oil Pollution Act of 1990, H.R. 1465, 101st Cong. (1990) (as
§ 2701(32).
7. Id. passed by House of Representatives, Nov. 9, 1989, and Aug. 4,
8. MODUs are treated as vessels until they are deemed responsible 1990; as passed by Senate, Nov. 19, 1989, and Aug. 2, 1990)
for damages beyond the cap for vessels; then MODUs are treated (enacted).
as facilities, which are subject to a higher cap. 33 U.S.C. § 31. Jay M. Wallace, Statutory Regulations and Liabilities Applicable to
2704(b)(1)-(2). Oil Transporters and Facilities Operators: How the Oil Pollution Act
9. See generally 33 U.S.C. § 2702. of 1990 Raised the Stakes, 21 ST. B. TEX. ENVT’L. L.J. 137, 138
10. Id. § 2703(a)(1)–(4). (1991).
§ 2703(c).
11. Id. 32. A Look at the 1990 Oil Pollution Act, NPR (June 15, 2010), http://
www.npr.org/templates/story/story.php?storyId=127862906&ft=1
§ 2703(a)(3)(A)-(B).
12. Id.
§ 2703(a)(3). OPA defines the term “contractual relationship”
13. Id. &f=1014 (statements of Zygmunt Plater).
Defending Texans Since 1994
Former Assistant United States Attorney
Former Assistant District Attorney
Founding Member of the National College
of DUI Defense
of Counsel Williams Kherkher LLP
Law Offices of Ned Barnett
Gulf Freeway Office: 8441 Gulf Freeway, Suite 600 • Houston, Texas 77017
Downtown Office: 440 Louisiana, Suite 800 • Houston, TX 77002
713-222-6767 • www.nedbarnettlaw.com
Board Certified in Criminal Law by the Texas Board of Legal Specialization
thehoustonlawyer.com March/April 2011 15
 By Andrew L. Fono

Jurisdictional
and Russ Krauss

I. Introduction
Today, there is continuing inconsistency
among United States District and Appel-
late Courts over what constitutes a “ju-
risdictional wetland” subject to regula-

Wetlands
tion under the Clean Water Act (“CWA”).
This is primarily a result of the 2006
U. S. Supreme Court’s decision in Rapa-
nos v. United States1 in which a closely
divided Court, split 4-1-4, limited the
federal government’s jurisdiction over
wetlands under the CWA. Subsequently,

and
the United States Environmental Pro-
tection Agency (“EPA”) has been taking
steps in an effort to expand the definition
of jurisdictional wetlands beyond the
Rapanos decision. The Rapanos decision
has also impacted the mitigation banking
industry by creating some risks. For ex-
ample, if fewer wetlands and streams are

Mitigation
identified as “waters of the United States”
conferring CWA jurisdiction, then fewer
404 Permits would be required, thus re-
ducing the demand for mitigation credits
to offset impacts to wetlands. But unlike
the adverse effect Rapanos has had on
the EPA’s and the U. S. Army Corps of
Engineers’ (“Corps”) wetland regulatory

Banking in
and enforcement strategy, the mitigation
banking industry has been able to benefit
from a far more definitive federal regula-
tion under the 2008 Compensatory Miti-
gation Rule.2
This article provides a brief summary
of some recent updates on the jurispru-

Texas
dence regarding jurisdictional wetlands,
as well as the current status of how the
Corps’ Galveston and Fort Worth Dis-
tricts are addressing the establishment
of mitigation banking service areas. This
article also provides a brief description of
how Nation Wide Permits negate the re-
quirement for mitigation credits. Because

How the Water

U. S. circuit courts continue to issue in-
consistent rulings on jurisdictional wet-
lands under Rapanos, and EPA and the

Looks Today
Corps are continually striving to expand
their jurisdiction over wetlands by for-
malizing the jurisdictional review pro-
cess, this area of the law is always chang-
ing. Also, where Corps districts have
traditionally been autonomous (to a de-
gree) in their application of standards for
mitigation banking, as well as their ap-
proach to determining jurisdiction over
wetlands, there now appears to be some
consistency and concurrence among at
least the two Corps’ districts in Texas
over mitigation banking services areas.
II. Wetlands
Before jurisdiction can be asserted or a
mitigation credit can be approved, one
should understand what constitutes a
wetland and stream (irrespective of juris-
diction).
What is a Wetland?
Most people picture wetlands as water
flooded plains swarming with migrant
birds.3 However, the scientific definition
of wetlands may include areas that rarely
have significant levels of water on the sur-
face and few forms of wildlife.4 The Corps’
Wetlands Delineation Manual defines
wetlands as requiring: (1) the prevalence
of plant species typically adapted to satu-
rated soil conditions, determined in ac-
cordance with U.S. Fish and Wildlife Ser-
vices’ National List of Plant Species that
occur in wetlands; (2) hydric soil, mean-
ing soil that is saturated, flooded, or pon-
ded for sufficient time during the growing
season to become anaerobic or lacking in
oxygen, in the upper part; and (3) wet-
land hydrology, a term generally requir-
ing continuous inundation or saturation
to the surface during at least five percent
of the growing season in most years.5
What is a Stream?
There are three primary types of
streams regulated under the CWA.6 The
first type is a perennial stream, which
contains flowing water year-round dur-
ing any typical year. Perennial streams
support a diverse aquatic community of
organisms year round and are typically
the streams that support major fisheries.”7
A second type of stream is an intermit-
tent stream. An intermittent stream “has
flowing water during certain times of the
year, when ground water provides water
for stream flow. The biological commu-
nity of intermittent streams is composed
of species that are aquatic during a part
of their life history or move to perennial
water sources.”8 An intermittent stream is
best characterized as a body of water that
routinely has constant water flow for only
part of the year. A third type of stream
is an ephemeral stream. An ephemeral
stream has flowing water only during
and after precipitation events. Ephemeral
streams typically support few aquatic or-
ganisms that typically have a very short
life stage.”9 An ephemeral stream is best
characterized as being dry for most of the
year, except after heavy rains.
Rapanos and Continued Uncertainty
over Wetland Jurisdiction
Since the Rapanos decision, there con-
tinues to be uncertainty over the defini-
tion of what constitutes a jurisdictional
wetland regulated by the CWA.10 Both
District and Appellate Courts have been
inconsistent in their application of the
Rapanos decision’s plurality test (“con-
tinuous surface connection” test), Jus-
tice Kennedy’s “significant nexus” test,
a combination of both, or an application
of either one. The objective of the CWA
is “to restore and maintain the chemical,
physical, and biological integrity of the
Nation’s waters.”11 To meet this objective,
the CWA makes it unlawful to discharge
any pollutants, including dredged or fill
material, into navigable waters without
first obtaining a permit.12 Navigable wa-
ters are defined under the CWA as “wa-
ters of the United States, including the
territorial seas.”13
The Corps interprets the definition of
“waters of the United States” very broadly
to include not only traditional navigable
waters,14 but also other defined waters,15
tributaries of such waters,16 and wetlands
adjacent to such waters and tributaries.
Adjacent wetlands include those “bor-
dering, contiguous [to], or neighboring”
waters of the United States even when
they are “separated from [such] waters...
thehoustonlawyer.com
by manmade dikes... and the like.”18 Like-
wise, EPA defines “waters of the United
States” to include, among many other
things, streams (including intermittent
streams), mudflats, sandflats, wetlands,
and tributaries.19 Following Rapanos, the
EPA and the Corps developed a series of
memos and guidance materials, culmi-
nating into the 2008 Rapanos Guidance
outlining their position on which bodies
of water they would regulate under the
CWA.20 Under this Guidance, the Corps
will seek to assert jurisdiction over:
(1) traditional navigable waters;
(2) wetlands adjacent to traditional
navigable waters;
(3) non-navigable tributaries of tradi-
tional navigable waters that are rela-
tively permanent where the tributaries
typically flow year-round or have con-
tinuous flow at least seasonally; and
(4) wetlands that directly abut such
tributaries.21
The Corps will not assert jurisdiction over:
(1) swales or erosion features (e.g., gul-
lies, small washes characterized by low
volume, infrequent or short duration
flow); and
(2) ditches (including roadside ditches)
excavated wholly in and draining only
uplands and that do not carry a rela-
tively permanent flow of water.22
Additionally, the Corps shall decide ju-
risdiction on a fact-specific, case-by-case
basis to determine if there is a “significant
nexus” to traditional navigable waters of:
(1) non-navigable tributaries that are
not relatively permanent;
(2) wetlands adjacent to non-naviga-
ble tributaries that are not relatively
permanent; and
(3) wetlands adjacent to but that do not
directly abut a relatively permanent
non-navigable tributary.23
The general consensus is that the CWA
covers any body of water that meets ei-
ther the plurality’s test or Kennedy’s
“significant nexus” test under Rapanos.24
But continued uncertainty exists as to
March/April 2011 17
what actually constitutes “significant
nexus” because it applies a much broader
approach to determining jurisdiction
than the plurality test. The 2008 Rapa-
nos Guidance suggests the Corps ana-
lyze “significant nexus” by considering
flow characteristics and functions of the
tributary itself, as well as the functions
performed by all wetlands adjacent to
the tributary to de-
termine if they sig-
nificantly affect the
“Until the Fifth
chemical, physical
and biological integ- Circuit definitively
rity of downstream
traditional navigable addresses the
waters, as well as a
consideration of hy- Rapanos tests,
drologic and ecologic
factors.25 the issue will
However, several
courts have applied
a more rigorous stan-
remain somewhat
dard. In Environmen-
tal Protection Infor-
ambiguous... ”
mation Center v. Pa-
cific Lumber Co., the district court stated
that proving “significant nexus” requires
present evidence of a hydrologic connec-
tion and in some cases must show “some
measure of significance of that connec-
tion for downstream water quality.”26 In
Simsbury-Avon Preservation Society, LLC,
et al v. Metacon Gun Club, Inc., the Sec-
ond Circuit Court of Appeals stated that
a “significant nexus” required proof that
contamination is actually occurring to
other bodies of water and not just a pos-
sibility that it will occur.27 And recently,
the United States Court of Appeals for the
Fourth Circuit in Precon Development v.
Massachusetts,28 further limited the reach
of the “significant nexus” test when it
concluded that the Corps’ administra-
tive record failed to contain sufficient in-
formation that would allow the court to
find that the wetlands had a significant
nexus to a downstream river (located
miles away); and, therefore the Corps
failed to adequately establish that the
wetlands had a significant effect on the
downstream river by preventing floods
18 March/April 2011 thehoustonlawyer.com
through water retention or preventing
contamination by trapping pollutants.
Wetlands in the Fifth Circuit
In the case of United States v. Lucas,29 the
Fifth Circuit sidestepped the question of
which Rapanos standard to apply by hold-
ing that jurisdiction was appropriate in
this case under both Rapanos standards
(e.g. plurality stan-
dard and significant
nexus standard).30 In
Lucas, the appellate
court held that the
prosecution present-
ed sufficient evidence
to find jurisdiction
under the plurality
test, in part based on
their expert’s testi-
mony that “there is
a continuous band of
wetlands and streams
and creeks that lead
from the site to the
waters.”31 The second
standard the Fifth Circuit examined, of-
fered by the Rapanos concurrence, was
to evaluate whether the wetlands have a
“significant nexus” to navigable waters.32
The Lucas court held that the prosecution
also presented sufficient evidence of “sig-
nificant nexus” by showing the wetlands
at the site controlled flooding in the area
and prevented pollution from getting into
downstream navigable waters.33
At least one district court in Texas is-
sued an opinion defining “waters of the
United States” narrowly in the wake of
Lucas. In United States v. Chevron Pipe
Line Company, the court held that dry ar-
royos do not qualify as waters of the Unit-
ed States because they are a connection of
generally dry channels.34 The court fur-
ther held that the unnamed channel and
creek to which the oil migrated to were
not “waters of the United States” within
the definition of “navigable waters,” and
that evidence that the farthest reach the
“oil spill” could have an impact upon
navigable waters was too speculative and
inconclusive to show that the oil was ac-
tually discharged to the navigable water.
Because the Fifth Circuit found that
under the factual circumstances in Lu-
cas, both tests under Rapanos could be
applied, this left ample room for district
courts in the Fifth Circuit to narrowly
interpret “waters of the United States,”
as the Southern District of Texas did
in Chevron Pipe Line Company. Until
the Fifth Circuit definitively addresses
the Rapanos tests, the issue will remain
somewhat ambiguous because district
courts in Texas (and elsewhere) are able
to apply either standard.
The Clean Water Restoration Act
As a result of the Rapanos uncertainty,
and to prevent further restrictions on the
CWA’s regulatory authority over “waters
of the United States,” Senator Russ Fein-
gold (D-Wis.) introduced a bill in April
2009 titled the “Clean Water Restora-
tion Act” (“CWRA”).35 The Act’s purpose
was to get around the Rapanos decision
by greatly expanding the scope of the
CWA.36 To do so, the proposed Act would
overturn the Supreme Court’s holdings
in Rapanos, and in an older case, Solid
Waste Agency of Northern Cook County
(“SWANCC”) v. United States Army Corps
of Engineers,37 and restore the broad ju-
risdiction previously asserted by the EPA
and the Corps.38 The Act proposed ex-
panding the scope of the CWA to include,
in addition to traditional jurisdictional
waterways, the following geographical
formations selected by the EPA or the
Corps for federal jurisdiction:
[I]ntrastate lakes rivers, streams (in-
cluding intermittent streams), mud-
flats, sandflats, wetlands, sloughs,
prairie postholes, wet meadows, playa
lakes, or natural ponds... all impound-
ments of waters of the United States...
tributaries of the aforementioned wa-
ters... and wetlands adjacent to the
aforementioned waters.39
In a separate provision, the Act also
included “small intermittent streams,
including ephemeral and seasonal
streams.”40 The CWRA, however, never
made it to Congress for a vote and because
the recent 2010 elections resulted in the
defeats of Representative James Oberstar
(D-Minn) and Senator Feingold, both
sponsors and proponents of the CWRA,
a similar attempt to amend the CWA in
the near future is unlikely.
The Proposed Clean Water
Protection Guidance
As the CWRA languished in Congress,
the EPA and the Corps developed pro-
posed Clean Water Protection Guidance
(“CWPG”). On December 20, 2010, the
EPA and the Corps sent a draft CWPG
to the White House Office of Manage-
ment and Budget (“OMB”) that would be
another attempt to greatly broaden the
scope of CWA jurisdiction over wetlands
and expand the EPA and Corps’ regula-
tory reach. This draft CWPG departs from
the previous 2008 Joint EPA Corps Guid-
ance by relying more explicitly on Justice
Kennedy’s “significant nexus” test for de-
termining CWA jurisdiction under the
Rapanos decision. OMB has had 90 days
to review the draft CWPG, culminating
into a March 20, 2011 deadline for review.
The EPA and the Corps will be providing
an opportunity for public comment on
the draft CWPG. Yet one of the biggest
hurdles facing the release of this CWPG is
the current movement to push for formal
rulemaking. Formal rulemaking would
implement the CWPG into a regulation
having far greater impact and enforce-
ment strength. But, similar to the fate of
the CWRA, formal rulemaking also faces
large opposition and may likely fail.
III. Wetland Mitigation and Nationwide
Permits
Mitigation Credits
Persons planning to develop land for
residential, commercial or other uses
must know what types of streams, wet-
lands and other water bodies they may
impact. Therefore, a developer planning
to impact a wetland or stream should con-
tact the Corps for assistance in determin-
ing whether federal jurisdiction applies. If
the Corps determines that the wetland or
stream falls under the jurisdiction of the
thehoustonlawyer.com
CWA (e.g., meets the definition of “water
of the United States”), the developer must
apply for and obtain a CWA Section 404
permit from the Corps before impacting
the water body.41 In order to obtain a Sec-
tion 404 permit from the Corps, a devel-
oper must demonstrate that it attempted
to avoid negative impacts to wetlands or
streams.42 If avoidance is impossible, the
developer must either restore degraded
wetlands and streams or create new
wetlands and streams.43 Alternatively, if
restoration and creation is not feasible
(due to land size and/or availability of
adequate geology for such activities), a
developer can offset its environmental
impacts to wetlands or streams by pur-
chasing compensatory mitigation credits
from a mitigation bank.
A mitigation credit is used to offset
environmental losses created by de-
velopments on wetlands and streams.
Such credits often take the form of wet-
land credits or stream credits. There are
three types of compensatory mitigation
available: (1) mitigation bank credits,
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(2) in-lieu fee mitigation programs, and
(3) permittee-responsible mitigation.44
Mitigation banks exist for the purpose
of banking and selling mitigation cred-
its. Mitigation banks are sites where
resources such as wetlands, streams or
riparian areas are restored, established,
enhanced or preserved.45 Over time (and
based on defined mitigation bank per-
formance criteria) the mitigation bank
sponsor (typically a land owner or entre-
preneur) is awarded a certain number of
mitigation credits from the Corps which
are banked until either sold or used. The
amount of mitigation credits approved
for use is based on physical, biologi-
cal and chemical factors including to-
tal acreage restored, restoration type,
quality of restoration, and overall envi-
ronmental impact. These activities are
detailed in the Final Rule on Compen-
satory Mitigation for Losses of Aquatic
Resources—a joint Corps and EPA rule
released April 10, 2008, and currently
implemented across the 38 Corps dis-
tricts (the “Final Rule”).46 When a de-
20 March/April 2011 thehoustonlawyer.com
veloper needs replacement wetlands or
streams, they can buy mitigation credits
from a mitigation bank as opposed to
developing wetlands or streams them-
selves. In fact, the Final Rule sets a pref-
erence for purchasing mitigation credits
from an approved mitigation bank (not a
bank pending approval) as the preferred
form of compensatory mitigation versus
in-lieu fee programs and permittee-re-
sponsible mitigation47 (historically the
most common types of mitigation).
Service Areas Are Now Consistent
Among the Fort Worth and Galveston
Corps Districts
The Final Rule defines service areas as
the geographic areas within which de-
veloper impacts can be mitigated from a
specific mitigation bank.48 These service
areas are divided into “primary” and
“secondary” geographic service areas.
These geographic areas are defined us-
ing a “watershed approach.”49 Watersheds
are established using the United States
Geological Survey (“USGS”) Hydrologic
Unit Code (“HUC”) classification.50 Each
Corps district may interpret the water-
shed approach differently and allocate
HUCs accordingly, even on a project-by-
project or bank-by-bank basis. In Texas,
where the Fort Worth and Galveston
Corps districts make up the primary of-
fices authorizing CWA Section 404 per-
mits, an 8-digit HUC is utilized as the
primary service area boundary.51
With such a large aerial extent, Texas
also uses another land use descriptor
called an Ecoregion.52 Ecoregions are
identified by their respective vegetation,
soils and supported species. Currently,
within the Fort Worth and Galveston
districts, the primary service area is de-
fined as the entire 8-digit HUC within
which the mitigation bank is located
(regardless of Ecoregion).53 Where most
districts would differ, in Texas this is an
area where the Fort Worth and Galves-
ton districts are currently consistent. The
secondary service area is defined as any
8-digit HUC (or portion thereof) adjacent
to the primary service area, and located
within the same Ecoregion as the miti-
gation bank.54 Studies of Service Areas
across the country indicate wide-ranging
variability of definitions of watersheds
and these definitions are being adapted
over time as the Final Rule is implement-
ed by each Corps district.55
While mitigation banks have been
used as compensatory mitigation nation-
wide for more than 30 years, the Final
Rule has formalized bank approval and
operations, and placed a priority on the
use of commercial mitigation banks as
the “preferred” alternative to meet the
needs for compensatory mitigation. With
commercial mitigation credit inventories
available, developers are guided to miti-
gation banks by Corps’ permit writers
and project managers reviewing and ap-
proving Section 404 permits.
Nationwide Permits
On some occasions, development ac-
tivities that impact federally protected
wetlands, streams, or other waterways
may not require mitigation credits. There
are some circumstances when the type
of development activity has already been
determined by regulators as sufficient to
meet—what the Corps’ Chief of Engi-
neers issues—a “General” or Nationwide
Permit (“NWP”). NWPs allow certain
development activities having minimal
impacts on jurisdictional wetlands to
proceed without having to obtain a Sec-
tion 404 permit.56 These NWPs are is-
sued based on the type of development
activity being engaged. Land developers
should always request confirmation from
a Corps District Engineer (“DE”) at the
appropriate Corps district office that
a proposed activity complies with the
terms and conditions of a NWP to avoid
liability.57
General permits are often applicable to
common, small scale fill activities which
have been determined by the Corps to
result in minimal impacts to regulated
areas. If an activity meets the criteria
and special conditions of a general per-
mit, then the activity can be authorized
by the Corps in a relatively short period
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of time, typically 30 to 45 days. If an ac-
tivity does not meet the criteria of a gen-
eral permit, then an individual permit is
necessary which can require four months
or more to complete and approve. The
Corps has broad discretion to require
an individual permit even if an activity
meets the requirements of a general per-
mit. Regional permits are issued by in-
dividual Corps districts and are usually
activity specific or address unique condi-
tions within a geographic area, whereas
NWPs are for specific activities and are
utilized throughout the nation. There are
currently 50 NWPs, of which a few are of
interest to oil and gas operations. NWPs
relevant to the oil and gas industry in-
clude NWP-6 (survey activities), NWP-8
(oil and gas structures in the OCS), NWP-
12 (utility line activities), NWP-14 (linear
projects), NWP-21 (oil spill cleanup), and
NWP-47 (pipeline safety programs).58
Many Corps districts that service re-
gions with extensive oil and gas activi-
ties have one or more Regional General
Permits (“RGP”) that specifically address
thehoustonlawyer.com
oil and gas industry related operations.
Such is the case for the Fort Worth dis-
trict under RGP-11.59 Most recently, with
the ongoing development of the Haynes-
ville Shale gas development area in the
counties of northeast Texas, RGP-11 has
been utilized often with mitigation cred-
its from wetland mitigation banks serv-
ing to fulfill the need for compensatory
mitigation.
VI. Conclusion
With the definition of jurisdictional wet-
lands remaining a stable uncertainty,
there will continue to be significant de-
viations among the federal circuits over
what constitutes “waters of the United
States.” And with such a broad interpreta-
tion of jurisdictional wetlands, while the
EPA strives to increase its enforcement
activities, more permitting is likely to oc-
cur giving rise to more demand for com-
pensatory mitigation credits. Although
there are distinctions between the Corps
districts throughout the United States,
with many districts implementing differ-
866.376.0950
March/April 2011 21
ent definitions for establishing HUCs, we
are fortunate in Texas to have two Corps
districts that have come together on a
consistent position regarding how they
establish and apply the primary and sec-
ondary service areas. The Fort Worth and
Galveston Corps districts have greatly re-
duced the confusion surrounding service
area definitions by implementing a con-
sistent approach, making property devel-
opments less complex, less time consum-
ing, and less costly for developers and
mitigation providers alike.
Andrew Fono is a shareholder in the
Energy and Environmental Practice Group
at Winsted PC. Andrew has more than
17 years experience concentrating his
environmental practice on transactional,
compliance, and litigation involving
contaminated properties, wetlands, and
various land use matters.
Russ Krauss is VP, Business Development
with Resource Environmental Solutions,
L.L.C., a leading mitigation banking and
ecological solutions company. Russ received
Hot New Legal Thriller from Houston Lawyer
Larry D. Thompson
h!SREALASAHEARTATTACKANDEVERYBITASSUSPENSEFULv
a BA in geology from Boston University and COURT’S DECISION IN RAPANOS V. UNITED STATES &
CARABELL V. UNITED STATES (2008).
an MBA from the University of Houston. 26. 2007 U.S. Dist. LEXIS 3715 (N.D. Cal. Jan. 8, 2007).
27. 575 F.3d 199 (2d Cir. 2009).
28. 2011 WL 213052 (4th Cir. 2011).
Endnotes 29. United States v. Lucas, 516 F.3d 316 (5th Cir. 2008).
30. Lucas, 516 F.3d at 329 (for purposes of this article, we are not
1. 547 U.S. 715 (2006).
2. 40 C.F.R. Part 230 Compensatory Mitigation for Losses of Aquatic evaluating the Dissent’s standard).
31. Id. at 327.
Resources.
3. See Leonard Shabamn and Paul Scodari, Past, Present, and Future
32. Id.
33. Id. at 327.
of Wetlands Credit Sales, RESOURCES FOR THE FUTURE
34. Id.
(2004).
4. Id. 35. S. 787, 111th Cong. § 1 (2009).
5. See Wetlands Research Program Technical Report Y-87-1 (online 36. The Proposed Act would expand federal jurisdiction to the
edition), pp. 12-34 (Jan. 1987), http://www.wetlands.com/pdf/ “maximum extent of the legislative power of Congress under the
wdm0225e.pdf. Constitution.” Id., § 2(3).
6. See Stream Mitigation Guidelines (online edition) pp. 6-11 37. 531 U.S. 159 (2001).
38. S. 787, 111th Cong. § 3(8), (10).
(Apr. 2003), http://www.saw.usace.army.mil/wetlands/
39. S. 787, 111th Cong. § 3(8).
Mitigation/Documents/Stream/STREAM%20MITIGATION%20
GUIDELINE%20TEXT.pdf. 40. Id. at § 3(18).
7. Id. at 6. 41. 73 Fed. Reg. 19596 (Apr. 10, 2008).
8. Id. at 6-7. 42. Id.
9. Id. at 7. 43. Id.
10. See, Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq. 44. 40 C.F.R. Part 230.
11. 33 U.S.C. §1251(a). 45. 33 C.F.R. §332.2.
12. 33 U.S.C. §§1311(a), 1342(a). 46. 33 CFR §§ 325 and 332.
13. 33 U.S.C. § 1362(7). 47. 33 CFR §332.3(b)(1).
14. 33 C.F.R. § 328.3(a)(1). 48. 40 C.F.R. § 230.92.
15. 33 C.F.R. § 328.3(a)(2), (3). 49. 33 C.F.R. §332.2.
16. 33 C.F.R. § 328.3(a)(5). 50. http://water.usgs.gov/GIS/huc.html (Dec. 15, 2009).
17. 33 C.F.R. § 328.3(a)(7). 51. http://www.swf.usace.army.mil/pubdata/environ/regulatory/public/
18. 33 C.F.R. § 328.3(c). pn/2010_11/PN/SWF_MitigaitonBanks.pdf.
19. 40 C.F.R. § 230.3(s). 52. Omernik, James M., Ecoregions of the Coterminous United States,
20. See ENVIRONMENTAL PROTECTION AGENCY: CLEAN 77 Annals Association of American Geographers (1987).
WATER ACT JURISDICTION FOLLOWING THE U.S. SUPREME 53. Personal interviews with Corps Galveston and Ft. Wt. Districts,
COURT’S DECISION IN RAPANOS V. UNITED STATES & Regulatory Department, March 8, 2011.
CARABELL V. UNITED STATES (2008). 54. Id.
21. Id. 55. “Setting Geographic Service Areas for Compensatory Mitigation
22. Id. Banking,” National Wetlands Newsletter, September-October
23. Id. 2010.
24. See Joshua A. Bloom, What’s Next After Rapanos?, 22 NAT. 56. 33 C.F.R. § 300.1(b).
RESOURCES & ENV’T 13, 13-14 (2007). 57. 33 C.F.R. § 330.6.
25. ENVIRONMENTAL PROTECTION AGENCY: CLEAN WATER 58. http://www.spn.usace.army.mil/regulatory/nwp.html.
ACT JURISDICTION FOLLOWING THE U.S. SUPREME 59. See, CESWF-08-RGP-11 (2008).
*OHN,ESCROART.EW9ORK4IMES"EST3ELLING!UTHOR

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22 March/April 2011 thehoustonlawyer.com

 FROM THE EDITOR... page 8
hydrocarbon using horizontal drilling gases into the atmosphere.
simple. After one year, the legal fallout re- and hydraulic fracturing. It explains what As always, I hope you enjoy this issue of
lated to the oil spill is not the dominating shale gas is, where it is found, the regula- The Houston Lawyer. We appreciate your
issue it was last year. The environmental tion of hydraulic fracturing by the federal comments, critical or otherwise, so please
damage to sensitive habitat and wildlife government and Texas, and recent EPA do not hesitate to share your thoughts on
was less than expected given the volume complaints against producers. In addition our publication. Likewise, please take a
of oil released. The oil spill response fund to these issues, the U.S. Supreme Court few moments to look at the advertisers in
has already paid out about $3.5 billion to hears oral argument in the AEP v. Connect- your copy of this magazine, give them a
claimants and Mr. Feinberg estimates that icut climate change case and will decide call, and then use their products and ser-
only about $6 billion of the fund will be this summer whether courts can use the vices when possible. Without their contin-
spent, including government and cleanup common law tort of public nuisance to ju- ued support this magazine would not be
claims, allowing BP to reclaim the remain- dicially regulate emissions of greenhouse possible.
der once all the settlements are paid out
by August 2013. Finally, despite last year’s
saber-rattling, Congress did not substan-
tially amend the pollution laws to remove
liability caps. Perhaps more importantly,
other environmental issues, such as hy-
draulic fracturing, are becoming increas-
ingly important in Texas and elsewhere.
Thus, this issue has a smorgasbord of
articles put together by our special guest
editor, Maidie Ryan.
the economy may be
This issue features three articles touch- uncertain.
ing on three different environmental-relat-
ed issues of current importance and inter-
est. The first article by Andrew Torrant, your staffing
“The Oil Pollution Act of 1990: A Year in
doesn’t have to be.
the Spotlight,” discusses OPA, what it does,
to whom it applies, what it allows, and
Congressional efforts to change the law.
The second is an article by Andrew Fono
and Russ Krauss, “Jurisdictional Wetlands
and Mitigation Banking In Texas: How
The Water Looks Today,” that looks at the
inconsistent way courts have been inter-
preting the U.S. Supreme Court decision
in Rapanos v. United States. The decision
limited the government’s jurisdiction over
wetlands and current efforts by some in
Congress and EPA to re-expand the scope THAT’S WHAT WE DO, EVERY DAY.® It’s tricky. You
of the Clean Water Act over wetlands, as want to be ready without being overstaffed. Special 713.439.0911
well as how the Fort Worth and Galves- Counsel can make sure you have the people you need 800.737.3436
ton Corps Districts are working together in uncertain economic times. Our temporary staffing specialcounsel.com
to implement a consistent approach to de- solutions offer flexibility without the liability of increased
headcount. So you can stay lean, but ready when things
fining their jurisdiction, making property
ramp up. Temporary, temporary-to-hire, and direct-hire,
developments less complex, consuming, we meet your needs no matter what. Call us today.
and costly for developers in Texas. The fi-
nal article by Terry W. Roberson is “The
State of Texas versus the EPA Regulation
of Hydraulic Fracturing.” This article dis- ©2011 Special Counsel, Inc. All rights reserved.
cusses efforts to produce shale gas from

thehoustonlawyer.com March/April 2011 23

 By Terry W. Roberson

The State of N
atural gas production
from hydrocarbon rich
shale formations is the
leading trend in onshore
exploration and produc-
tion. Due to the advanc-
es in horizontal drilling and hydraulic

Texas versus
fracturing, shale gas is now economi-
cally feasible. In the last 60 years, more
than 1 million wells have been hydrauli-
cally fractured.1 The industry is now fac-
ing the burden of proof that hydraulic
fracturing does not contaminate surface
or underground water. Meanwhile, envi-

the EPA
ronmental groups continue looking for
one example that hydraulic fracturing
contaminates drinking water sources.

What is Shale Gas?

Shale gas is natural gas produced from
shale formations that usually act as the
reservoir and source.2 Shale gas is nor-

Regulation
mally a dry gas composed of at least 90
percent methane.3 Shale is fine-grained
sedimentary rock that forms upon com-
paction of silt and clay-sized mineral
particles called “mud.”4 The very fine
clay mineral grains and layers of sedi-
ment cause the rock to have limited hori-

of Hydraulic
zontal permeability and extremely lim-
ited vertical permeability.5 Shale gas’ low
permeability causes it to be classified as
an unconventional natural gas reservoir.

Shale Gas in Texas

Shale gas exists across most of the U.S.
The Barnett Shale is the most promi-

Fracturing
nent shale in the U.S. and covers around
5,000 square miles surrounding Fort
Worth, Texas.6 The Mississippian-aged
shale is 6,500 to 8,500 feet deep and its
thickness ranges from 100 to 600 feet.7
The depth to the base of treatable water
is roughly 1,200 feet.8 The well spacing
is between 60 to 160 acres per well.9 Its
original gas-in-place is 327 tcf, which is
the entire volume of gas contained in the
reservoir regardless of the ability to pro-
duce it.10

24 March/April 2011 thehoustonlawyer.com

History of Shale Gas/ History
of Hydraulic Fracturing
Natural gas production from shale for-
mations has been continuous since the
earliest gas developments. In 1821, the
first producing gas well was in Fredo-
nia, New York.11 Hydraulic fracturing
was first used in 1903, but its first com-
mercial stimulation was in 1949.12 How-
ever, it was not until the 1980s when
the technology of hydraulic fracturing
and horizontal drilling and the cost of
producing shale gas became efficient.
In 1981, George Mitchell began an 18
year long persistent experimentation
on how to extract commercial amounts
of natural gas from the Barnett Shale.13
Similarly, the first horizontal well in the
Barnett Shale was drilled in 1992.14 This
technology increased Texas natural gas
production by 15 percent and U.S. pro-
duction by nine percent between 2007
and 2008.15
History of Federal Regulation
of Hydraulic Fracturing
The Safe Drinking Water Act (“SDWA”)
protects the quality of U.S. drinking
water and its sources.16 The SDWA’s Un-
derground Injection Control (“UIC”)
program regulates wells that inject flu-
ids underground for storage or disposal.
For the past three decades, the EPA did
not regulate hydraulic fracturing under
the UIC program. The SDWA enables
states to request that the EPA allow its
state regulatory agency to have primary
responsibility over UIC permits.
In 1994, Leaf Environmental Assis-
tance Foundation (“LEAF”) petitioned
the EPA to withdraw its approval of Ala-
bama’s UIC program. In 1995, the EPA
denied the petition upon determining
hydraulic fracturing did not fall within
the SDWA’s definition of “underground
injection.” Upon LEAF’s petition for
review of the EPA’s order, the Eleventh
Circuit ruled that hydraulic fracturing
activities constitute “underground injec-
tion” and hydraulic fracturing of coal-
bed methane gas is under the SDWA’s
jurisdiction.17
In 1999, Alabama revised its UIC pro-
gram to include regulation of hydraulic
fracturing of coalbeds. In January 2000,
the EPA approved Alabama’s revised
regulations. LEAF filed a second petition
for review, in which Alabama intervened
in the case. In December 2001, the Elev-
enth Circuit held Alabama’s revised UIC
program complies with Section 1425
of the SDWA.18 However, the Eleventh
Circuit did remand to the EPA for de-
termination of whether Alabama’s UIC
revised program complies with Class II
well requirements.
In July 2004, the EPA issued its final
determination that Alabama complied
with Class II well requirements. The
ruling was supported by the EPA’s June
2004 study that found the injection of
hydraulic fracturing fluids into coalbed
methane gas wells poses little threat
to drinking water.19 In response to the
LEAF ruling, Congress passed the En-
ergy Policy Act of 2005 that amended
the SWDA’s definition of “underground
injection” to exclude “the underground
injection of fluids or propping agents
(other than diesel fuels) pursuant to
hydraulic fracturing operations related
to oil, gas, or geothermal production
activities.”20
The State of Texas Regulation
of Hydraulic Fracturing
There is no formal regulation for hydrau-
lic fracturing in Texas.21 The Railroad
Commission of Texas (“RRC”) regulates
natural gas exploration and production
and has jurisdiction over all natural gas
wells. The Texas Commission on Envi-
ronmental Quality (“TCEQ”) protects
the state’s natural resources. The RRC
and the TCEQ entered into a memoran-
dum of understanding that details the
division in jurisdiction.22
The RRC requires permits for drilling
or deepening a natural gas well.23 Addi-
tionally, it regulates casing and cement-
ing as a preventative measure against
contamination of ground and surface
water.24 The RRC is confident that these
requirements are adequate to protect
thehoustonlawyer.com
Texas’ ground water from hydraulic
fracturing fluids.
The RRC requires a permit for the stor-
age, transfer, and disposal of any natural
gas waste, which should include hydrau-
lic fracturing fluids.25 Section 3.46 of the
Texas Administrative Code is specifically
intended to regulate fluid injection into
production reservoirs. It states a permit
is required for “fluid injection opera-
tions in reservoirs productive of oil, gas,
or geothermal resources.”26 However, in
reality, the RRC does not require a spe-
cial fluid injection permit for hydraulic
fracturing. The RCC may be required to
issue these permits if federal regulations
are amended to include hydraulic frac-
turing in the Class II underground in-
jection well definition.
U.S. Congressional Legislation
The 111th Congress was unsuccessful in
passing environmental regulation leg-
islation. On June 9, 2009, stand-alone
bills in both the U.S. House of Represen-
tatives and U.S. Senate, H.R. 2766 and
S.1215, respectively, for the Fracturing
Responsibility and Awareness of Chemi-
cals Act were introduced. The bills
would have required the EPA to regulate
hydraulic fracturing under the SDWA’s
UIC program and required companies
to disclose the chemical constituents of
its hydraulic fracturing fluid. The bills
never left their committees; however,
they did inspire a new EPA study on po-
tential impacts of hydraulic fracturing
on drinking water and groundwater. In
June 2010, the EPA submitted its pro-
posed study plan on hydraulic fractur-
ing for public comment.27 The EPA ex-
pects initial research results by the end
of 2012 and a report in 2014.
The issue with diesel fuel in hydrau-
lic fracturing fluid began in January
2010 when the Environmental Working
Group issued a report that found state
agencies were confused over the diesel
exemption.28 On February 18, 2010, the
U.S. House Subcommittee on Energy
and Environment announced they were
sending letters to eight companies re-
March/April 2011 25
garding the chemicals used in hydraulic
fracturing, after two companies admit-
ted using diesel.29 On August 5, 2010, 25
environmental organizations sent letters
to the EPA and U.S. House Committee
on Energy and Commerce and Subcom-
mittee on Energy and Environment ask-
ing them to regulate the use of diesel in
hydraulic fracturing.30 In response, the
U.S. House of Representatives included
an EPA study to better understand any
potential impacts of hydraulic fractur-
ing on drinking water and groundwater
in its fiscal year 2010 budget report.
The November 2010 elections gave Re-
publicans control of the House. Before
closing session, the U.S. House Energy
and Commerce Committee Democratic
congressional investigation issued a
report and shared their
findings in a
letter to the
EPA.31 The
Congress-
men contend
that 12 com-
panies injected
32.3 million gal-
lons of diesel or
fluids containing
diesel into wells in
19 states from 2005
through 2009 in vi-
olation of the SDWA.
Under the 2005 En-
ergy Policy Act, com-
panies using diesel fuel
in hydraulic fracturing
must get a permit to be
in compliance with the SDWA. The
industry does not dispute the EPA’s au-
thority to regulate diesel fuel in hydrau-
lic fracturing under the SDWA. However,
the industry says there are currently no
requirements in the federal regulations
that require a company to obtain a fed-
eral permit prior to using diesel during
a hydraulic fracturing project.
Who Bears the Burden of Proof?
The State of Texas and the EPA continue
to disagree on the level of regulation in
26 March/April 2011 thehoustonlawyer.com
Texas. The disagreement began last year
when Texas sued the EPA over federal
regulation of GHGs under the Clean Air
Act. This year began with another states’
rights debate on the EPA’s unprecedent-
ed federal regulation of hydraulic frac-
turing under the SWDA.
The EPA accuses Range Resources Cor-
poration and Range Production Compa-
ny (“Range”) of contaminating two pri-
vate fresh water wells in southern Parker
County, west of Fort Worth. On August
6, 2010, a landowner filed a complaint
with the RRC.32 Field inspection noted
gas odor. The RRC only found two active
gas wells within a half mile radius
of the water wells,
which
Range com-
pleted hydraulic fracturing
operations in 2009 at a depth of 5,800
feet. The EPA should determine if the
water wells’ contamination was due to
the drilling operations of Range. How-
ever, the burden of proof lies on Range
to prove its own innocence.
The water wells’ location raises sever-
al issues regarding water contamination.
First, they are located in the Cretaceous
aquifer that is approximately 140 feet
from the surface. Immediately below
is the Strawn formation that produces
natural gas and nitrogen. Surrounding
areas have an impermeable seal between
the formations that prevent natural gas
from migrating in the Cretaceous. How-
ever, these water wells lack an imperme-
able seal so natural gas from the Strawn
formation has migrated into the Creta-
ceous over geological time.
The second issue relates to previous
drilling practices in this area of the
Cretaceous. It is well known that a few
landowners drilled their water wells too
deep, which pierced the impermeable
seal and contaminated their own wells.
Shallow gas wells were drilled decades
ago before modern casing and cement-
ing practices were implemented by the
industry and the RRC, which also
likely contaminated water wells.
The EPA admits it did not know
these factors before issuing the
ruling.
Range was presumed guilty.
On December 7, 2010, the EPA
issued an Emergency Admin-
istrative Order under Section
1431 of the SWDA. The emer-
gency order found Range
“caused or contributed
to” contamination of the
water wells and required
Range to conduct a full
scale investigation. The
following day, the
RRC set a hearing on
the emergency order
for January 10, 2011. Mean-
while, Range provided the landowners
with drinkable water, installed methane
monitors in both homes, and conducted
appropriate tests.
Range’s results were provided to the
EPA by Range; however, the EPA did
not reciprocate by sharing its results.
On December 17, 2010, Range obtained
subpoenas from the RRC for the deposi-
tion of EPA employees. The employees
did not appear. On December 28, 2010,
Range filed a motion to compel the depo-
sitions. On December 30, 2010, the ad-
ministrative proceeding was removed to
the U.S. District Court for the Northern
District of Texas. On January 3, 2011,
the EPA filed a motion to transfer venue
to the Western District of Texas. Even though, the EPA knew that natural consider the issuance of a final order at
Range is unable to defend itself with- gas was in water wells in the immedi- its conference on March 22, 2011. The
out reviewing evidence the EPA relied ate area, the EPA did not perform a geo- examiners recommend a final order be
upon in issuing its December 7 emer- logic investigation on the Strawn forma- issued which finds Range has not con-
gency order. On January 5, 2011, Range tion near the water wells. Finally, the tributed and is not contributing to con-
filed a complaint against the EPA in the EPA admitted that Range may not have tamination of any water wells.
Western District of Texas. The com- caused or contributed to the natural gas
plaint seeks judicial review of the EPA’s water wells. Conclusion
decision to boycott the deposition and The RRC hearing examiners issued The fact that the RRC completed a thor-
to produce substantive documents. In their Proposal for Decision on March 7, ough investigation and allowed all par-
response, the EPA filed a complaint 2011.33 The Proposal for Decision is not a ties to present evidence, rather than im-
against Range in the Northern District final order, though the Commission will mediately accusing Range like the EPA
of Texas on January 18, 2011. The EPA’s
complaint seeks injunctive relief to re-
quire Range to comply with the emer-
gency order and pay a civil penalty. On
January 19, 2011, the Western District of
Texas ruled that Range could depose the
EPA.
Range was able to present its evidence
to the RRC in the administrative hearing
on January 19-20, 2011. The EPA as the
claimant was not in attendance. Range
introduced a photograph of a nearby wa-
ter well drilled in 2005 that was flaring
natural gas and water flowing without a
pump. A geochemical gas fingerprinting
expert noted natural gas found in the
water wells contain nitrogen levels that
are comparable to the Strawn formation
and twice that of the Barnett Shale lev- When you begin a relationship with Woodway, you are joining
els. Similarly, the data presented shows Houston's premier wealth management team. Together you build a
natural gas was present in nearby water customized plan to achieve your financial goals. Woodway is with you
wells before Range drilled its first well every step of the way, with experienced, objective guidance in planning
in 2009. Finally, a petroleum engineer your customized financial strategies, preserving your wealth and
testified that the pressure tests show the bringing your goals to fruition.
production casing in both wells have
mechanical integrity to prevent Barnett Generations of families have entrusted
Shale gas from migrating behind the their financial futures to this Houston- • Investment Management
pipe. The EPA reviewed this data, but based trust company with more than
refused to produce the technical data 25 years experience practicing sound • Financial Planning
behind its initial allegations. investment strategies, improving worth
Range deposed an EPA official, John and creating lasting value. • Trust and Estate Services
Blevins, on January 25, 2010. The state-
ments made during the deposition raise Learn more at
questions about the EPA’s intent in fil- www.woodwayfinancial.com
ing its emergency motion. Mr. Blevins or call 713-683-7070.
said the EPA has the legal authority to
ask a company suspected of violating
10000 Memorial Drive, Suite 650
the SWDA to “do the work” of proving Houston, Texas 77024
there is no link between the drilling op- E-mail: inquire@woodwayfinancial.com
eration and water well contamination.

thehoustonlawyer.com March/April 2011 27

did, proves states are in a better position
to regulate environmental concerns.
The RRC knew of the Strawn formation,
knew that other water wells in the same
area contain natural gas, and knew the
area’s drilling history.
The upcoming EPA study on drinking
water contamination due to hydraulic
fracturing will be finalized in 2014. Un-
til then, the industry must continue to
find technological advances to protect
our water sources. The industry must
also perform simple preemptive mea-
sures, such as testing the ground water
for natural gas prior to drilling, which
may help to prevent similar situations as
between Range and the EPA.
Terry W. Roberson is an associate at
The Kilburn Law Firm, PLLC, an oil and
gas law firm based in Houston, Texas.
He holds an LL.M. degree in International
and Comparative Law from The George
Washington University Law School and a
J.D. from South Texas College of Law. He
may be reached at wroberson@law.gwu.edu.
 20. See Pub. L. 109-58, 119 Stat. at 694, § 322 (amending SDWA
Endnotes
1. See Bloomberg, Exxon, Chevron Face Pressure on Fracturing
Disclosure, Jan. 20, 2011, available at http:/www.bloomberg.com/
news/print/2001-01-20/exxon-chevron-southwestern-facing-
pressure-on-fracturing.html (last visited Mar. 8, 2011).
2. See U.S. Dept. of Energy, Modern Shale Gas Development in the
United States: A Primer, April 2009, available at http://fossil.
energy.gov/programs/oilgas/publications/naturalgas_general/
Shale_Gas_Primer_2009.pdf (last visited Mar. 8, 2011).
3. See A Primer, supra note 2 at 14.
4. See Geology.com, Shale, available at http://geology.com/rocks/
shale.shtml (last visited Mar. 8, 2011).
5. SeeA Primer, supra note 2 at 14.
6. See id. at 18.
7. See id.
8. See id. at 17.
9. See id. at 18.
10. See id. at 16, 18.
11. See id. at 13.
12. See Energy in Depth, History of Hydraulic Fracturing, available
at http://www.energyindepth.org/in-depth/frac-in-depth/history-
of-hf/ (last visited Mar. 8, 2011).
13. See Geology.com, The Farther of the Barnett Natural Gas Field
George Mitchell, available at http://geology.com/research/barnett-
shale-father.shtml (last visited Mar. 8, 2011).
14. See A Primer, supra note 2 at 13.
15. See American Petroleum Institute, Natural Gas Supply and
Demand, available at http://www.api.org/aboutoilgas/natgas/
supply_demand.cfm (last visited Mar. 8, 2011).
16. 42 U.S.C. § 300f et seq. (1974).
17. See Legal Envtl. Assistance Found. v. EPA, 118 F.3d 1467 (11th
Cir. 1997).
18. See Legal Envtl. Assistance Found. v. EPA, 276 F.3d 1253 (11th
Cir. 2001).
19. See EPA, Evaluation of Impacts to Underground Sources of
Drinking Water by Hydraulic Fracturing of Coalbed Methane
Reservoirs Study (2004), available at http://water.epa.gov/
type/groundwater/uic/class2/hydraulicfracturing/wells_
coalbedmethanestudy.cfm (last visited Mar. 8, 2011).
section 1421(d)(1), 42 U.S.C. § 300h(d)(1)).
21. See Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d
1, 17 (Tex. 2008) (stating hydraulic fracturing has occurred in
Texas for over 60 years though the Legislature nor the RRC has
ever seen fit to regulate it).
22. 16 TEX. ADMIN. CODE § 3.30 (RRC), 30 TEX. ADMIN. CODE
§ 7.117 (TCEQ), available at http://info.sos.state.tx.us/pls/
pub/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_
tloc=&p_ploc=&pg=1&p_tac=&ti=16&pt=1&ch=3&rl=30 (last
visited Mar. 8, 2011).
23. See TEX. ADMIN. CODE at § 3.5 (2009).
24. Id. at § 3.13.
25. Id. at § 3.8.
26. Id. at § 3.46.
27. See EPA, Hydraulic Fracturing Research Study, available at http://
www.epa.gov/safewater/uic/pdfs/hfresearchstudyfs.pdf (last
visited Mar. 8, 2011).
28. Environmental Working Group, Drilling Around
the Law, available at http://www.ewg.org/files/EWG-
2009drillingaroundthelaw.pdf (last visited Mar. 8, 2011).
29. Committee on Energy and Commerce, Memorandum, Feb.
18, 2010, available at http://www.bfenvironmental.com/pdfs/
hydraulic_fracturing_memo.pdf (last visited Mar. 8, 2011).
30. See A copy of the letter sent to the U.S. House Committee
on Energy and Commerce and Subcommittee on Energy and
Environment, available at http://ewg.org.s3.amazonaws.com/
letters/8-5-10/DieselLetterHouseE&C8.5.2010.pdf (last visited
Mar. 8, 2011).
31. See Committee on Energy & Commerce Democrats, Waxman,
Markey, and DeGette Investigation Finds Continued Use of
Diesel in Hydraulic Fracturing, Jan. 31, 2011, available at http://
democrats.energycommerce.house.gov/index.php?q=news/
waxman-markey-and-degette-investigation-finds-continued-use-
of-diesel-in-hydraulic-fracturing-f (last visited Mar. 8, 2011).
32. See Railroad Commission of Texas, News Release, Dec. 7, 2010,
available at http://www.rrc.state.tx.us/pressrelease/2010/120810.
php (last visited Mar. 8, 2011).
33. See Railroad Commission of Texas, Oil and Gas Docket No.
7B-0268629, Examiners’ Report and Proposal for Decision, Mar.
7, 2011, available at http://www.rrc.state.tx.us/meetings/ogpfd/
RangePFD.PDF (last visited Mar. 8, 2011).

fizer FIZER BECK WEBSTER

beck
a professional corporation
BENTLEY & SCROGGINS

IS PLEASED TO ANNOUNCE

AMANDA M. GYESZLY
ON BEING NAMED SHAREHOLDER IN THE FIRM (January 2010)

SHANE W. HUDSON
ON BEING NAMED SHAREHOLDER IN THE FIRM (January 2011)

JEFFREY T. McCLEAN and MICHAEL W. McGEE, JR.

HAVE RECENTLY JOINED THE FIRM AS ASSOCIATES

1330 Post Oak Boulevard, Suite 2900 • Houston, Texas 77056

Telephone: (713) 840-7710 • Fax: (713) 963-8469
www.fizerbeck.com

28 March/April 2011 thehoustonlawyer.com

Houston Bar Foundation
Recognizes Outstanding
Efforts by Volunteers
T
he Houston Bar Foundation marked its 28th
year of service with an Annual Meeting and
Luncheon held February 8 at The Houston
Club. The luncheon not only commemorated
the installation of new officers, but also recognized the
contributions of volunteers who provide pro bono legal
representation and other services to the community.
The keynote speaker was Charles W. Matthews, vice
president and general counsel of Exxon Mobil Corpora-
tion from 1995-2010, who spoke on the importance of
pro bono service.
William C. (Bill) Lowrey, vice president, general
counsel and corporate secretary of Shell Oil Company,
took office as the 2011 chair of the Houston Bar Foun-
dation, succeeding Rocky Robinson of Andrews Kurth
LLP. Other new officers are John Eddie Williams, Jr. of
Williams Kherkher Hart Boundas LLP, vice chair, and
Daniel D. Herink of Insperity, Inc., treasurer.
New directors for 2011-2013 are Glenn A. Ballard, Jr.
of Bracewell & Giuliani LLP; Craig Glidden of Lyon-
dellBasell Industries; and Greg Ulmer of Baker Hostetler
LLP. Completing terms as directors for 2010-2012 are
Melanie Gray of Weil, Gotshal & Manges LLP; Robert
J. McAughan of Locke Lord Bissell & Liddell LLP ; and
Thomas M. Roche of ExxonMobil Corporation.
Robinson presented the Foundation’s annual awards
for pro bono service through the Houston Volunteer
30 March/April 2011 thehoustonlawyer.com
Lawyers Program (HVLP), volunteer mediation services
through the Dispute Resolution Center (DRC), and legal
writing in The Houston Lawyer, the HBA’s professional
journal.
Presentation of James B. Sales
ProBono Leadership Award
Robinson also presented the second annual James B.
Sales ProBono Leadership Award to the Honorable Har-
riet O’Neill, whose judicial career began in 1992, when
she was elected to the 152nd District Court in Houston.
In 1995, she was appointed to the 14th Court of Appeals
and won election to that seat in 1996. In 1998 she was
elected to the Supreme Court of Texas and reelected to
a second term in 2004. Justice O’Neill retired from the
Texas Supreme Court on June 20, 2010 and founded
the Law Office of Harriet O’Neill, P.C. in Austin. She
was a founding member of the Texas Access to Justice
Commission and served as the Supreme Court’s liaison,
working tirelessly to encourage lawyers to provide di-
rect legal services to those who could not afford them.
Justice O’Neill also spearheaded the Texas Supreme
Court’s Permanent Judicial Commission for Children,
Youth and Families to enhance resources for children
who are placed under court supervision because of
abuse or neglect. The program has become a national
model for its effective collaboration and innovation.
The Honorable Harriet O’Neill accepts the second annual James B. Sales Keynote speaker Charles Matthews
ProBono Leadership Award from Rocky Robinson

William C. (Bill) Lowrey became the 2011 Chair of the Houston Bar Foundation. Layne Kruse accepted the award for Fulbright & Jaworski L.L.P, one of two
large firms recognized for Outstanding Contribution to HVLP.

Mark Kelly accepted the award for Vinson & Elkins LLP, one of two large firms Accepting the award on behalf of Marathon Oil Corporation for Outstanding
recognized for Outstanding Contribution to HVLP. Contribution to HVLP were Holly Keiser, Karen Lukin, Jennifer Doud, Cecilia
Villarreal, Christina Bonilla, Dick Horstman and Susan Miller.
Photos by Temple Webber

John Eldridge accepted the award on behalf of Haynes and Boone, LLP for
Outstanding Contribution to HVLP by an Intermediate Firm.
thehoustonlawyer.com March/April 2011 31
Daryl Dursum accepted the award for Adams & Reese LLP for Outstanding Accepting the award for Weycer, Kaplan, Pulaski & Zuber, P.C. for Outstanding
Contribution to HVLP by a Mid-size Firm. Contribution to HVLP by a Small Firm were Paul Strug, Tanya Garrison, Marilyn
Sims and Duke Keller.

Barry Abrams accepted the award for Abrams Scott & Bickley, L.L.P. for Terry L. Hart received the award for Outstanding Contribution to HVLP by a
Outstanding Contribution to HVLP by a Boutique Firm. Solo.

David Verbit received the award for Outstanding Contribution to the Dispute Achille Arcidiacono received the award for Longevity of Exemplary Service to
Resolution Center. the Dispute Resolution Center.
Photos by Temple Webber

The Hon. Georgia Akers was recognized as the author of the Outstanding
Legal Article published in The Houston Lawyer.
32 March/April 2011 thehoustonlawyer.com
 COMMITTEE SPOTLIGHT

Get Involved with the Campaign

for the Homeless Committee
By Lisa Brindle Talbot

T
he Houston Bar Association’s 4 court offices. The drive also collected pick up.
Campaign for the Homeless $1,871.00 in donations, which enabled Committee Chairs for 2010-2011, Jen-
Committee has been active for the committee to support the endeavors nifer A. Hasley of Hasley Scarano, L.L.P.
over 20 years. The committee’s of the non-profit organization, Dress for and Cynthia Lam of Jackson Walker,
mission is to support shelters Success Houston. L.L.P., agree that volunteering with the
and organizations Campaign for the
throughout the Hous- Homeless is a great
ton community by way to spend time
collecting gently-used and create a sense
clothing for adults, of community. As
teens and children. Hasley stated, “This
Each year, the is one of the easiest
committee sponsors ways to do something
two major clothing that warms your heart
drives: (1) the Spring and the lives of other
Children’s Clothing people. It is one of the
and Diaper Drive, most rewarding com-
and (2) the Fall Coat mittees because of its
and Warm Clothing huge impact on oth-
Drive. With the warm ers.”
weather quickly ap- If you and/or your
proaching, the com- law firm/organization
mittee prepared for the are interested in get-
HBA Campaign for the Homeless Co-chairs Cynthia Lam, far left, and Jennifer Hasley, far right, got personal thanks and
Spring drive, which a certificate of appreciation for clothing donations from representatives of No More Victims, an advocacy agency for ting involved with the
was scheduled to take newborns and children of incarcerated parents. committee, volunteer-
place the week of April 11-15, 2011. The On a larger scale, since 1996, this com- ing, and/or setting up a clothes donation
Fall drive will proceed later this year in mittee has collected over 300,000 items box at your office, please contact the HBA
October. The clothes collected from these of clothing for the homeless. These ef- for more information. All monetary dona-
drives are routinely donated to local orga- forts are predominantly due to the vast tions can be made payable to the Houston
nizations, including Covenant House, Star support of law firms, judges, corporate Bar Foundation, attention Campaign for
of Hope, S.E.A.R.C.H., and other shelters counsel, solo practitioners, and the Hous- the Homeless Committee.
and organizations that serve the homeless ton community at large. It is not only
throughout Harris County. the donations of clothing and funds that Lisa Brindle Talbot is a member of The
There is no question that the work of make these efforts successful, but also the Houston Lawyer editorial board and an
this committee is outstanding. Last year, time of tireless volunteers responsible for attorney in Houston, Texas. Her prac-
the Fall drive successfully collected 5,559 picking up the clothes from the various tice areas include commercial litigation,
articles of clothing from 69 law firms organizations, sorting through them by insurance defense, and environmental tort
and organizations, 42 individuals, and size and season, and boxing them up for matters.

thehoustonlawyer.com March/April 2011 33

 Equal Access Champions
What does it take to become an “Equal Access Champion”? The firms and corporations listed below have signed 5-year commitment forms
that indicate they will uphold a pledge to provide representation in a certain number of cases each year, based on the number of attorneys in
the firm or legal department. The goal is to provide pro bono representation in at least 1,500 cases through the Houston Volunteer Lawyers
Program each year, and to increase that goal each year. For more information contact Kay Sim at (713) 759-1133.

Large Firm Champions Porter & Hedges, L.L.P. Solo Champions

Andrews Kurth LLP Strasburger & Price, L.L.P. Law Office of O. Elaine Archie
Baker Botts L.L.P. Susman Godfrey LLP Basilio & Associates, PLLC
Bracewell & Giuliani LLP Weil, Gotshal & Manges Peter J. Bennett
Fulbright & Jaworski L.L.P. Winstead PC Law Office of Fran Brochstein
Locke Lord Bissell & Liddell LLP Law Office of Barbara Calderon
Vinson & Elkins LLP Small Firm Champions Law Office of Robbie Gail Charette
Abraham, Watkins, Nichols, Sorrels, De la Rosa & Chaumette
Corporate Champions Agosto & Friend Law Office of Papa M. Dieye
Baker Hughes Incorporated Beck, Redden & Secrest, L.L.P. Frye & Cantu, PLLC
BP Gibbs & Bruns LLP Fuqua & Associates
CenterPoint Energy, Inc. Hays, McConn, Rice & Pickering, P.C. Terry L. Hart
ConocoPhillips Hughes Watters Askanase LLP Law Office of David S. Hsu
Continental Airlines, Inc. Johnson DeLuca Kennedy Law Office of James
Exxon Mobil Corporation & Kurisky, P.C. and Stagg, PLLC
Marathon Oil Company Kroger | Burrus Katine & Nechman L.L.P.
Port of Houston Authority Schwartz, Junell, Greenberg The Keaton Law Firm, PLLC
Rosetta Resources Inc. & Oathout, L.L.P Gregory S. Lindley
Shell Oil Company Shook Hardy & Bacon, L.L.P. Law Office of Maria S. Lowry
Sutherland Asbill & Brennan LLP Martin R. G. Marasigan Law Offices
Intermediate Firm Champions Weycer, Kaplan, Pulaski & Zuber, P.C. The Law Office of
Akin Gump Strauss Hauer & Feld LLP Yetter Warden & Coleman LLP Evangeline Mitchell, PLLC
Beirne, Maynard & Parsons, L.L.P. Morley & Morley, P.C.
Gardere Wynne Sewell LLP Boutique Firm Champions Bertrand C. Moser
Haynes and Boone, L.L.P. Abrams Scott & Bickley, L.L.P. Pilgrim Law Office
King & Spalding LLP Coane & Associates Robert E. Price
Thompson & Knight LLP Connelly • Baker • Wotring LLP W. Thomas (Tommy) Proctor
Edison, McDowell & Hetherington LLP Law Offices of Judy Ritts
Mid-Size Firm Champions Fullenweider Wilhite PC Cindi L. Robison
Adams & Reese LLP Funderburk & Funderburk, L.L.P. Scardino & Fazel
Baker & Hostetler LLP Hicks Thomas LLP Shortt & Nguyen, P.C.
Chamberlain, Hrdlicka, White, Jenkins & Kamin, L.L.P. Sadler Law Firm
Williams & Martin Ogden, Gibson, Broocks, Longoria Jeff Skarda
Greenberg Traurig, LLP & Hall, L.L.P. Teal & Associates
Jackson Walker L.L.P. Squire, Sanders & Dempsey L.L.P. Tindall & England, P.C.
Jones Day Strong Pipkin Bissell & Ledyard, L.L.P. Diane C. Treich
Morgan, Lewis & Bockius LLP Wilson, Cribbs & Goren, P.C. Norma Levine Trusch
 OFF THE RECORD

Marathon
Woman By Mark Trachtenberg

L
ucy Forbes did not let a little thing like her pregnancy torney for the Fourteenth Court of Appeals, in an appellate boutique
stop her from her passion – distance running. She ran firm, and now, as a solo appellate practitioner, in which she is board
until the day before she went into labor with her now certified by the Texas Board of Legal Specialization.
4-year old daughter, Laura, and she wistfully watched Her training consists of two early morning 7-9 mile runs a week,
the Houston marathon runners pass by her hospital a 10+ mile run on Saturdays (and up to 23 miles before marathons),
room the day after her daughter was born. and one other 4-6 mile run during the week. On many runs, her
Lucy had suc- daughter Laura
cessfully complet- accompanies her
ed 13 marathons in a stroller and
before Laura was enjoys the ride.
born, including On other runs,
those held in New she is joined by
York, San Fran- members of the
cisco, San Diego, Memorial Park
Washington, D.C. Running Club,
and Chicago. Jug- a club she has
gling the demands served as presi-
of her solo appel- dent for three
late practice and years running.
parenthood, Lucy Lucy also prac-
recently jumped tices an advance
back on the mar- vinyasa yoga two
athon circuit, to three times a
completing the week.
Houston Mara- Now that she is
thon in 3:52:20, back on the mara-
her personal best thon circuit, Lucy
marathon time. Lucy Forbes and daughter Laura prepare for a run. has no plans to
She glowingly reports that she “left nothing on the course,” and get off. She intends to run two marathons a year. Don’t be surprised
“gave it everything [she] had,” and was bolstered by the “phenom- to see her daughter Laura joining her at the starting line in a few
enal crowd support” despite the rain. years. In fact, Laura’s first run was the HBA’s Eikenburg Law Week
Lucy discovered her passion for running in 1998 as a student at Fun Run 1-miler on March 26.
Baylor Law School, because she found running to be a “good form
of stress-relief.” She pursued this passion even with the heavy work- Mark Trachtenberg is a partner in the appellate section at Haynes and
load she had practicing in the Baker Botts trial section, as a staff at- Boone LLP and serves on The Houston Lawyer editorial board.

thehoustonlawyer.com March/April 2011 35

 at the bar

The Hon. Martha Hill Jamison was sworn in as a justice on the The Hon. Sharon McCally was sworn in as a justice on the Fourteenth
Fourteenth Court of Appeals by the Hon. Murry Cohen, retired appellate Court of Appeals by the Hon. David Hittner, U.S. District Judge for the Southern
justice, on December 20, 2010. District of Texas, on January 18, 2011.

The Hon. Roy L. Moore was sworn in as judge of the 245th District Court The Hon. Glenn H. Devlin was sworn in as judge of the 313th District
by the Hon. Eva M. Guzman of the Supreme Court of Texas on January 20, Court by the Hon. Lisa Millard, judge of the 310th District Court, on January
2011. 20, 2011.

NON-SUBSCRIBER
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there is a serious injury caused by the employer’s
negligence, call us - we can help!
The Houston Lawyer

Thomas N. Thurlow & Associates, P.C.

The Lyric Centre
440 Lousiana, Suite 1200, Houston, TX 77002
713-224-6774

36 March/April 2011 thehoustonlawyer.com

 at the bar

The Hon. Stephen E. Newhouse was sworn in as associate judge of the The Hon. Christine Butts was sworn in as judge of Probate Court
313th District Court by the Hon. Glenn Devlin, judge of the 313th District Court, Number 4 by the Hon. William C. McCulloch, retired probate judge, on January
on January 20, 2011. 27, 2011.

The Hon. Diane Guariglia was sworn in as associate judge of the 245th
District Court by the Hon. Eva M. Guzman of the Supreme Court of Texas on
January 28, 2011.

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thehoustonlawyer.com March/April 2011 37


Legal Writing
for the Rewired
Brain:
Persuading Readers in a
Paperless World
By Robert Dubose
Texas Lawyer Book Series, 2010
137 pages, paperback
L
Reviewed by Mark Trachtenberg
egal Writing for the Rewired
Brain is essential reading for
lawyers whose livelihood de-
pends on their ability to write
persuasively in the rapidly-
evolving communications revolution.
Penned by Houston appellate lawyer
and legal writing guru, Robert Dubose,
this book provides many important
techniques to persuade readers whose
brains are literally being rewired through
“screen reading,” multitasking, and the
steady bombardment of emails and in-
stant messages.
Part I of the book explains how and
Media Reviews
text on screens based on an “F-pattern,”
focusing on headings, summaries, topic
sentences and other structural cues.
In Part II, Dubose provides ten writ-
ing tips to help lawyers effectively com-
municate with screen readers, while
still providing the necessary support to
“deep readers.” These tips offer impor-
tant guidance on how to make a brief or
motion quickly accessible to a skimming
reader (e.g., through effective headings,
outlines and summaries), easier to read
(e.g., through the use of visuals, bullet
points and white space), while still pro-
viding the necessary authority to pre-
vail.
If you engage in any legal writing at all are living somewhat independently and
—whether directed at courts or clients—
you are bound to benefit from this book,
particularly if you read it on a deserted
beach without wireless access.
Mark Trachtenberg is a partner in the
appellate section of Haynes and Boone, LLP.
He has served on the editorial board of The
Houston Lawyer since 2005.
The Trial
By Larry D. Thompson
some of the ambiance. There is a confi-
dence that his characters are engaging
enough to advance his story, and with
simple dexterity he sets forth tangential
explanations for the reader’s immediate
use and discard.
Thompson presents the protagonist’s
struggle with his identity as defined by
his legal career, parenting and romantic
interests to fully develop the reader’s un-
derstanding of the attorney before un-
folding the drama of the legal matter that
he must bring on behalf of his daughter
in order to save her life.
Loyal to realism, the novel depicts the
parental relationship of two parties who
incongruously from each other, both
lacking an understanding of the other’s
perspective.
Upon mending the relationship, the
young daughter and father team up to
fight an illness. In so doing, they must
also fight a menacing drug company,
blinded by profits, that is unremorsefully
Hot New Legal Thrille
exploiting the public with tentacles that
reach the FDA as well as private physi-
Larry D
cians, from local prac-
titioners to renowned
h!SREALASAHEARTATTA
clinicians.
Far from a social
*OHN,ESCROART.EW
why computer technology is rewiring our St. Martin’s Press, 2011
commentary on the
brains. Clients and judges are increas- 306 pages evilsh0LENTYOFSIZZLEANDCLO
of big business
ingly reading briefs and memoranda on or big government, the
SPEEDINGDOWNASLALOM

L
screens, with multiple programs running, Reviewed by Caroline Pace resulting trial is more
an unremitting drumbeat of email or text ocal attorney Larry of a3TEVE"ERRY.EW9ORK
venue for depict-
messages interrupting, and the tempta- D. Thompson’s first ing the challenges that
h)COULDNgTPUT4HE4RIAL
tion of the Internet just a few clicks away. nonfiction book the protagonist and
Dubose puts this reading revolution into opens with a young
TENSIONJUSTKEEPSBUILD
his ad-hoc legal team
a broader context, discussing the impact girl learning that must,OUISE0ENNY.EW9O
overcome while
of prior communication revolutions (e.g., her body is failing, and flashing to the demonstrating the skills of a small-town
phonetic alphabet, printing press) and
the recent transition to “screen reading”
skilled murder of an emotionally con-
The Trial: What you don’t know abou
flicted young executive. From the start,
lawyer.
Engaging, sensational, and fast-paced,
in offices and judicial chambers. He co- it is clear that this book is about much The Trial is a well-crafted, page-turning,
gently explains how our brains are being more than an attorney’s war story.
Showcased at the 2011 Sundance Film F
legal thriller.
The Houston Lawyer

rewired to make it difficult to engage in Featured as an Alternate Selection by:

While fully developing his characters,
a deep reading of long blocks of uninter- Thompson does not wrestle with •Literary
stilted GuildPace
Caroline Book is anClub
attorney•Mystery
with The Writers B
rupted text. Through eye-tracking stud- verbiage and stifling descriptions •Doubleday Book Club•Doubleday
but Ammons Law Firm, L.L.P. and Large
a member of Print
ies, he shows how screen readers skim allows his reader’s imagination to craft The Houston Lawyer editorial board.

38 March/April 2011 thehoustonlawyer.com

www.LarryDT

Dragon Naturally-
Speaking 11
Premium & Professional Versions
Nuance Communications, Inc.;
www.nuance.com
Premium Edition: List $199.99
Legal Professional Edition: List $799.99
Reviewed by Robert Painter
T
and Al Harrison
his joint review of Nuance
Software’s Dragon Natu-
rallySpeaking (“DNS”) ap-
plication was “written” us-
ing DNS. We are pleased to
say that DNS performed magnificently!
In conjunction with a suitable headset
which was properly positioned relative to
the speakers’ respective mouths, Dragon
properly interpreted the vast majority of
the spoken words —actually the spoken
phrases and clauses— to generate this re-
view. Only a hand-full of corrections to
the corresponding verbiage were neces-
sary, by both Robert and Al, to produce
the intended phraseology.
Robert, as a new user, has become
conversant with the DNS application
and availed himself of its benefits dur-
ing a two-month time frame. He found
that the Premium edition essentially
ran “out-of-the box” and, every time
he used it, the voice recognition engine
seemed to improve the quality of both
recognition and accuracy, leaving Robert
shaking his head in amazement about
DNS’ extraordinary functionality and
Media Reviews
prefers the DNS Legal edition because it
includes a panoply of words and terms
(more than 30,000) specific to law
practice; enables matter-specific recur-
ring phrases and clauses to be readily
defined as voice commands; routinely
formats legal citations; and automatically
transcribes voice input stored on mobile
digital voice recorders.
Robert Painter’s Experience
Interestingly, until about two months
ago, Robert, in keeping with the notion
that speech recognition software was
clunky and cumbersome, was under
the impression that a voice recognition
application such as Nuance’s DNS had
not yet proven itself and thus was not
ready for prime time. Notwithstanding,
seeking ways to make his law practice
more efficient, Robert procured the
Premium version of DNS directly from
Nuance Communications, publisher
alternative dispute resolution
MEDIATION, ARBITRATION, SPECIAL JUDGE
Dan
Downey
and distributor. Triggered by his order
via nuance.com. DNS was delivered to
Robert’s office with an Andrea headset
having an integrated microphone.
During a 15-minute installation, Rob-
ert was encouraged to partake of nomi-
nal initial training (15 minutes reading
a text passage) to allow DNS to learn his
speaking nuances manifest as a user pro-
file, and, in so doing, to greatly enhance
the application’s accuracy. He noted
that this short training exercise enabled
the underlying DNS engine to analyze
his voice idiosyncrasies and his speak-
ing pattern. This user profile should be
established for each user in a law office,
with each user going through the train-
ing. An important aspect of this training
was for the user to learn to properly po-
sition the headset microphone adjacent
to a side of the user’s mouth.
With installation and training com-
plete, Robert was ready to put DNS to
(Chap.151, CPRC)

,Ê/…>ÌÊPreserves
usefulness. UÊœÀ“iÀÊˆÃÌÀˆVÌÊÕ`}i
9œÕÀÊRight of Appeal
Al, as an experienced user, has used UÊ œ>À`Ê
iÀ̈wi`Ê
ˆÛˆÊ/Àˆ>Ê>ÜÊp p
…>«°Ê£x£]Ê
*,

DNS during a time frame that traverses ÊÊ/iÝ>ÃÊ œ>À`ʜvÊi}>Ê-«iVˆ>ˆâ>̈œ˜ A faster, cheaper
and more predictable
several years and several generations of UÊ
`Õ˜VÌÊ*ÀœviÃÜÀʜvÊ>Ü ADR alternative to
improvements, and has witnessed the arbitration.
,i>`ʓœÀiÊ>ÌÊÊ
development of DNS into a mature and iÌ>ˆÃÊ>Ì\Ê dandowney.comÊ
sophisticated —top-notch— accurate dandowney.com U 713.907.9700 ­*ÕLˆV>̈œ˜Ã®
and reliable voice recognition engine. He 1-800.792.4444 UÊÊ5009 Caroline Suite 100B, Houston, TX 77004

thehoustonlawyer.com March/April 2011 39


work by interacting with the onscreen
Dragon toolbar. After clicking the Micro-
phone icon to activate the microphone,
the user can opt to invoke pull-down
menus or to press shortcut keys or to
press special keys (e.g., “+” key) on the
numeric keypad or to say voice com-
mands (e.g., SCRATCH THAT, CAPS ON,
SPACE BAR, NEW LINE, etc.) prior to
dictating to the DNS engine.
Robert found using DNS to be amaz-
ingly simple. To convert spoken words
into text just required placing the cursor
in a particular application such as Mi-
crosoft Word and speaking at a normal
pace into the properly positioned headset
microphone—but concentrating on
elocution by striving to pronounce every
syllable and to enunciate word-endings
before commencing to pronounce the
subsequent word. From the very start
DNS accurately recognized over 90 per-
cent of Robert’s speech, typing it in real-
time emulating a court-reporter’s output.
He noted that this stellar behavior was
even more remarkable since he typically
handles medical cases wherein his speak-
ing incorporated medical terminology
such as “Staphylococcus,” which, incred-
ibly, DNS had no problem recognizing.
He experienced this excellent perfor-
mance not only when speaking textual
content into Word documents, but also
when creating emails and entering time
entries into a billing application. Since
Dragon has proven its voice-recognition
efficacy, Robert now uses DNS to routine-
ly prepare various legal documents and
concomitant correspondence, which he
then emails to his legal assistant for final
formatting and incidental refinements.
For Robert’s purposes, the Premium edi-
tion has worked just fine and far beyond
his expectations.
The Houston Lawyer
Al Harrison’s Experience
Al’s focus sought to ascertain the utility of
the features unique to the top-of-the-line
Legal edition. He first dictated repre-
40 March/April 2011 thehoustonlawyer.com
Media Reviews
sentative state and federal citations to
DNS and noted that the translation from
his voice to text was typically flawless.
Dragon knew how to properly format and
punctuate the citations; this was a huge
time-saver.
Next, he created custom voice com-
mands for expeditiously generating
recurring verbiage in patent applications
and other legal documents. Al also cre-
ated custom commands that produced
special templates including graphics for
emails and letters. Having access to these
and other custom commands significantly
facilitated creation of frequently invoked
language that appeared in documents, let-
ters and emails. Such custom commands
are created via the DNS MyCommands
dialog box which may be invoked to
generate text-and-graphics templates; to
generate macros by recording sequences
of mouse movements and/or keystrokes;
and to activate menu and/or keystroke
commands for controlling particular ap-
plications.
Since he frequently travels, Al was
intrigued by Dragon’s new capability to
automatically transcribe content dictated
into a portable digital voice recorder (e.g.,
a Sony, Panasonic or Olympus recorder)
or even dictated into a SmartPhone
(creating sound files in WAV or MP3 or
WMA format). This protocol requires
that a separate user profile be created so
that DNS is properly trained to recognize
the sound patterns of the recorded speech
which is different from normal speech
sound patterns. Using the Blackberry,
Al’s recorded speech was transcribed
fine-and-dandy by DNS once the WAV
file was copied to his laptop hard disk as
described in the documentation.
Thus, by adapting the Legal edition
to accommodate his intellectual prop-
erty practice, Al was able to invoke the
powerful and customized DNS engine
to effectively generate a variety of legal
documents and related client communi-
cations via letter and/or email. Dragon
streamlined this document creation and
editing process, which simultaneously
eliminated wrist strain and the like,
caused by extensive keyboarding and
concomitant mouse movements. The
result was enormous time-savings and
inherent reduction of editing loops and
associated iterative proofreading.
Recommendations to Assure
Peak DNS Performance
While our experience demonstrates that
Dragon NaturallySpeaking runs out-of-
the box, with just a modicum of train-
ing prerequisite to build a crucial user
profile, we strongly recommend that
users regularly avail themselves of the
Accuracy Tuning feature. This tuning fea-
ture supplements the Dragon databases
not only with commonly-used dictated
word sequences manifest as phrases
and clauses, but also with acoustic data
correlated with user corrections to DNS
recognition and incremental user input
derived from ongoing user training and
feedback. For instance, by providing
DNS with samples of writing style and
word combinations, Dragon’s recognition
engine becomes better acquainted with a
user’s speech patterns and proportionate-
ly improves recognition accuracy. Thus,
the more the underlying DNS engine is
used and trained, the more accurate and
more reliable Dragon becomes because,
among other things, the user’s profile is
being enriched and refined.
During dictation, the user should
endeavor to be cognizant of how speech
is being communicated to DNS. Ideally,
the tone, pace and volume of the speech
should echo normal speech patterns.
It is imperative for the user’s elocution
and diction to fit on the user’s very own
profile to avoid DNS misrecognizing
speech patterns that are well defined for
a particular user, but, unfortunately, the
user’s normal voice pattern suffers pertur-
bations attributable to a cold, to speaking
too loudly or too softly or too quickly. A

user’s normal speech—as heard by DNS—
might also be skewed by an inadequate or
defective desktop or laptop sound system
or by a defective or otherwise inadequate
headset.
While virtually all versions of Nuance
DNS are delivered with a headset, typi-
cally an Andrea USB model, it is recom-
mended that a headset having integrated
digital signal processing (DSP) hardware
be invoked to avoid any issues with the
host desktop or laptop sound system, and
to normalize and standardize the user’s
speech patterns manifest in the implicat-
ed user profile. A DSP module bypasses
the sound system—sound card, speakers,
microphone—integrated into a desktop’s
or a laptop’s computer system. The DSP
built into a headset constitutes the sound
system infrastructure; the host computer’s
sound system is essentially short-circuited
and rendered moot for voice recogni-
tion purposes. Excellent-performing and
Media Reviews
reasonably-priced DSP headsets are avail-
able from Plantronics and VXi.
We recommend the Plantronics DSP
USB headset series for providing excel-
lent, natural voice input while removing
ambient noise, and for being comfortable
to wear over the head and ears. As an
alternative, the VXi Parrott TalkPro USB
has a built-in DSP that affords prereq-
uisite sound performance for effective
voice recognition. While the Plantronics
headset provides a more soundproof,
noise-cancelling and comfortable fit, the
VXi headset also affords good sound per-
formance and is more portable.
To expeditiously become conversant
with the features and functions of DNS,
we have found it profoundly helpful to
walk through the End-User Workbook
for Version 11 developed by Nuance.
Using this Nuance Workbook tends to
promote a user seamlessly and effectively
learning how to speak to DNS. The ex-
thehoustonlawyer.com
planations of the functionality and the se-
quence of exercises are easy to follow and
definitely drive home the how-to of voice
recognition ala Dragon. These exercises
are augmented by an online knowledge
base and apropos webinars and tutorials.
Dragon NaturallySpeaking has proven
itself to be a premier voice-recognition
engine. Its accuracy and reliability are
truly amazing. Once a user becomes ac-
climatized to delivering speech directly to
a desktop computer or laptop or digital
recorder or SmartPhone, there is no turn-
ing back.
Robert W. Painter is an attorney at
Painter Law Firm PLLC, and is the media
editor for The Houston Lawyer.
Al Harrison is a patent attorney
practicing intellectual property law with
Harrison Law Office, P.C. and has been
a member of The Houston Lawyer
editorial board for several years.
March/April 2011 41

The Texas
Court
of Criminal
Appeals Affirms
the Deference
Owed to the
Trier of Fact
I
By Farrah Martinez
n Brooks v. State, 323 S.W.3d 893
(Tex. Crim. App. 2011), Texas’s high-
est criminal court overruled case law
that permitted appellate courts to re-
examine a jury’s factual findings, reaf-
firming the deference to be given to the
trier of fact and essentially merging the
factual sufficiency standard with the le-
gal sufficiency standard.
In Brooks, a jury convicted Kelvin
Brooks for possession with the intent to
deliver more than four grams but less
than 200 grams of crack cocaine. At
trial, the evidence showed that Brooks
matched a description given to police of
an individual in possession of a firearm
inside of a local bar. Officers encountered
Brooks and ordered him to stop. Instead,
Brooks fled. During the chase, officers
witnessed Brooks throw down two small
baggies. Once officers detained Brooks, a
total of three baggies containing various
controlled substances were recovered.
On Brooks’ person, officers found a few
The Houston Lawyer
dollars and a cell phone, although they
did not locate a gun.
At trial, Brooks’ defense rested on the
premise that he was a drug user and not
42 March/April 2011 thehoustonlawyer.com
LEGAL TRENDS
a drug dealer. To support this theory, of fact.
Brooks’ attorney obtained testimony In prior cases, the Court had issued
from the arresting officer that dealers opinions that required reviewing courts
usually possess a larger sum of money
and a list of clients in debt, carry a weap-
on, and there is usually an eyewitness
to defer a jury’s resolution of conflicting
evidence, thereby eroding the factual suf-
ficiency standing, making it so indistin-
to testify to the sale of drugs. While the
prosecution contended that Brooks was a
drug dealer, as substantiated by the value
guishable the Court used the standards
interchangeably.
Finally, in Brooks, the Court took one
of the crack, worth approximately $500
and conveniently divided into 25 indi-
last bite at the apple and simply over-
ruled Clewis and the factual sufficiency
vidual crack rocks, Brooks had no drug standard to ensure deference to the trier
paraphernalia, nothing to use the drugs of fact’s determinations on credibility
(such as a crack pipe), and he was not and the weight of the evidence by disal-
under the influence at the time of the ar- lowing reviewing courts to operate as a
rest. The state prevailed on the “intent “thirteenth juror.”
to deliver” charge and Brooks was sen-
tenced to 25 years in prison.
Brooks appealed on the issue of intent.
Ruling in his favor, the court of appeals
Farrah Martinez is the Director of Legisla-
tive Affairs for the Harris County District
Clerk. Martinez serves on the editorial board
held that, standing alone, 4.72 grams of of The Houston Lawyer.
crack cocaine is insufficient evidence of
intent because the amount is also con- Endnotes
1. Jackson v. Virginia, 443 U.S. 307 (1979).
sistent with personal use. Additional evi- 2. Clewis v. State, 292 S.W.2d 126 (Tex. Crim. App. 1996)..
dence presented was legally sufficient to
establish intent when viewed in a neu-
tral light, but was factually insufficient
The Texas
to support guilt beyond a reasonable
doubt.
The state sought discretionary review
and requested the Texas Court of Crimi-
nal Appeals to address whether there is
any meaningful distinction between the
Supreme
legal sufficiency review standard estab-
lished in Jackson v. Virginia1 and the factu- Court Says
al sufficiency review standard developed
in Clewis v. State.2 The legal sufficiency
standard, as set out in Jackson v. Virginia,
“No” to Rolling
Easements
requires the reviewing court to view the
evidence “in the light most favorable to
the verdict” by paying deference to the
T
jury’s credibility and weight determina- By Goran Krnaich
tions. Under Clewis, the Court adopted a he State of Texas has a long-
factual sufficiency standard that allowed standing policy in favor of free
the reviewing court to view the evidence access to public beaches. The
in a “neutral light,” not deferring to the Texas Supreme Court issued a
jury’s credibility and weight determina- 2010 opinion that has the po-
tions, and resolving conflicting evidence tential to significantly affect free access to
with a different outcome than the trier Texas public beaches. In Severance v. Pat-
 LEGAL TRENDS

terson, 54 Tex. Sup. Ct. J. 172, 2010 WL quired three separate beachfront prop- [that] a portion of [the] house interfered
4371438 (Tex. Nov. 5, 2010), the Court erties on Galveston Island’s West Beach with the public’s right to use of the dry
held that a public beachfront access ease- before Hurricane Rita. One property, oc- beach.” Severance filed suit for declara-
ment “[does] not roll tory and injunctive
onto previously un- relief in federal court,
encumbered private alleging “that enforce-
beachfront property ment of the rolling
when avulsive events easement pursuant
cause dramatic chang- to the OBA would ef-
es in the coastline.” fect an illegal seizure
“Avulsion” is defined under the Fourth
as “the sudden and Amendment and an
perceptible change impermissible taking
in land.” In this case, without just com-
the avulsive event was pensation under the
Hurricane Rita. Fifth Amendment.”
The Texas Open Severance v. Patterson,
Beaches Act (“OBA”) 566 F.3d 490 (5th Cir.
was passed by the 2009). Severance also
Texas legislature in alleged a violation of
1959 to “[enforce] the substantive due pro-
public’s right to use cess rights. The dis-
the dry beach on pri- trict court dismissed
vate property where the suit. Severance
an easement exists appealed to the Fifth
and [to enforce] public rights to access cupied by a rental home, was the subject Circuit Court of Appeals. The Fifth Cir-
and use State-owned beaches.” A public of this litigation. An easement enabling cuit affirmed the dismissal of the tak-
beach may be owned by the public or by public use of that property was located ings claim because of “the uncertainty
a private party, and it extends from the seaward of the property, and existed be- and ambiguity of Texas law regarding
“line of mean low tide to the line of vege- fore the purchase. The easement was es- rolling easements and the takings con-
tation bordering on the Gulf of Mexico.” tablished through a judgment obtained sequences thereof.” However, the Fifth
TEX. NAT. RES. CODE § 61.011(8). A by the State in
private beach is included within the pub- 1975.
lic beach definition if “the public has ac- Hurricane Rita
quired the right of use or easement to or destroyed the dry
over the area by prescription, dedication, beach that was
presumption, or has retained a right by subject to the
virtue of continuous right in the public easement, and
since time immemorial... ” Id. The Court the vegetation
explained that “[t]he area from mean line relocated be-
low tide to mean high tide is called the hind Severance’s
wet beach, because it is under the tidal home. Subse-
waters some time during each day. The quently, the State
area from mean high tide to the vegeta- asserted that a
tion line is known as the dry beach.” The portion of Sever-
wet beach areas are owned by the State, ance’s property
while the Court recognized that “the dry was “located on a
beach is often privately owned.” public beachfront
Carol Severance (“Severance”) ac- easement and

thehoustonlawyer.com March/April 2011 43


Circuit found that Severance’s Fourth
Amendment claim was valid because of
the State’s “meaningful interference with
her possessory interests in her property.”
The court held that the State’s interfer-
ence was “unreasonable because the in-
terference is unjustified by state law or, if
justified, then uncompensated.” Because
of no state law precedent, the Fifth Cir-
cuit certified state law questions to the
Texas Supreme Court to resolve the sei-
zure claim.
The Texas Supreme Court held “that
Texas does not recognize a rolling ease-
ment on Galveston’s West Beach.” In-
stead, the Court held that “a new ease-
ment must be established by sufficient
proof to encumber the newly created dry
beach bordering the ocean.” The Court
recognized that generally “[t]he ease-
ments’ boundaries may move according
to gradual and imperceptible changes in
the mean high tide and vegetation lines”
The Houston Lawyer
44 March/April 2011 thehoustonlawyer.com
LEGAL TRENDS
and that the State does not have to “rees-
tablish” easements when these changes
occur. However, the Court held that a dif-
ferent rule should apply if the change in
the boundaries is caused by an avulsive
event. The Court’s reasoning was that
since “sudden and perceptible changes
by nature occur very quickly, it would be
impossible to prove continued use in the
new dry beach, and it would be unfair to
impose such drastic restrictions through
the OBA upon an owner... without com-
pensation.” The dissent criticized the
majority’s distinction between “gradual”
and “dramatic” changes in easements,
characterizing it as vague and stating
that it will jeopardize the “public’s right
to free and open beaches.”
While this decision protects the beach-
front property owners’ rights, it requires
the State to establish new public beach-
front access easements, which may not
always be possible. The Texas Attorney
General and Galveston County have filed
a motion for rehearing in this matter.
Numerous entities, including the City of
Houston and Harris County, have sub-
mitted amicus curiae letter briefs in sup-
port of the appellees’ motion for rehear-
ing. The amicus curiae letter briefs raise
concerns about the perceived negative
impact of the opinion, such as the pub-
lic’s loss of access to open beaches which
could in turn lead to decline in tourism
and loss of revenues for the local munici-
palities. The Severance opinion is signifi-
cant and will become more so, especially
as hurricanes and storms continue to al-
ter the Texas coastline.
Goran Krnaich is an Assistant City
Attorney employed by the City of
Houston Legal Department.
Any views expressed by the author in
this article are his own.
 A Profile
in professionalism
Jeffrey W. Carr
Senior Vice President, General Counsel & Secretary
FMC Technologies Inc.
“W
e are are not lawyers”—to
many, this first sentence of
our legal team’s vision state-
ment may be patently absurd,
frightening or simply anathema. That statement
goes on to say “We are business people with legal
training forged into a cohesive legal team com-
mitted to success... through focused effective-
ness, relentless efficiency, constant improvement,
creative disruption and unyielding integrity.”
The point of these two statements is to force-
fully assert that we intend to look at each situ-
ation from the client’s point of view, from their
perspective, from the eyes of the customer. We
The Houston Lawyer
are here to assist them in achieving their legiti-
mate objectives—not to answer interesting ques-
tions of law, to win cases, or to seek perfection in
46 March/April 2011 thehoustonlawyer.com
drafting contracts.
To some, professionalism may well be summed
up in the imprimatur of zealous representation.
We, on the other hand, believe that many a mean-
ingless billable hour has been spent in the name
of that same zealous representation. As such, to
me professionalism reflects neither purity of legal
logic nor the elegance of cogently drafted but im-
penetrable documents, but rather a laser-like fo-
cus on value in the delivery of legal services while
maintaining an unyielding ethical compass.
Perhaps our profession is slowly transforming
our society into a victim of the machines we built
and are charged with operating. Our endless dis-
section of concepts, rules and legal morass are
interesting of course to us as members of the bar,
but of little, if any, usefulness to our customers.
Compliance with all applicable laws is onerous
and well-nigh impossible. Regulatory “protec-
tions” cause us to wonder who precisely is being
protected.
We must step back and ask ourselves as mem-
bers of this honorable and respected profession
if that respect is still deserved. After all, there
aren’t all that many cruel-hearted, sarcastic doc-
tor jokes. For when we stop focusing truly on the
client’s interests and focus instead on protection
of our own prerogatives, then we have truly lost
our way. At the very least we risk professional ir-
relevance as customers flee to solutions that we
no longer provide at a value proposition that they
can no longer endure.
True professionals never forget that it is the cli-
ent and not the practitioners that are deserving of
the protection of professionalism.
 PLACEMENT POLICY

placement service
sions, employment, admin-

reinvent
The Houston Bar Association Lawyer Placement
Service will assist members by coordinating place- istrative, institutional invest-
ment between attorneys and law firms. The service ing or local government law.
is available to HBA members and provides a con-
Competitive benefit package.
your
venient process for locating or filling positions.
1. In order to place an ad, attorneys and law Background checks required.
firms must complete a registration record.
Once registration is complete, your position 5084 Full time associate po-

image... wanted or available will be registered with the

placement service for six months. If at the end
of the six-month period you have not found or
filled your position, it will be your responsibility
sition available. 5+ years ex-
perience required. Must have
to re-register with the service in writing.
commercial and personal
2. If you are registered, resumes will be sent injury background. Competi-
out under their assigned code numbers. Once
a firm has reviewed the resumes, they are to
tive compensation package.
contact the placement office with the numbers

brochures
they are interested in pursuing. The placement
coordinator will then contact the attorney, give 5094 PROBATE LAWYER.
him/her some background information on the Sugar Land estate planning/
inquiring firm, and the attorney will then let the
coordinator know if he/she wishes personal in- probate firm with Houston-
formation to be released to the firm. This pro-
Galleria office seeking attor-
websites cess will insure maximum confidentiality and
get the information to the firms and attorneys
in the most expedient manner.
ney with extensive experi-
ence in TX probate and trust
3. In order to promote the efficiency of the
Houston Lawyer Placement Service. PLEASE administration, Form 706
logos NOTIFY THE PLACEMENT COORDINATOR OF
ANY POSITION FOUND OR FILLED.
4. To reply for a position available, send a letter
preparation, estate and gift
tax planning.
to HBA, placement coordinator at the Houston
Bar Association, 1300 First City Tower, 1001
Fannin Street, Houston, Texas 77002 or Positions Wanted
e-mail Brooke Eshleman at BrookeE@hba.org.
Include the code number and a resume for 2062 Very Experienced Trial
each position. The resume will be forwarded to
the firm or company. Your resume will not be
Attorney intimately familiar
sent to your previous or current employers. with the mechanics and opera-
PLACEMENT DEADLINES tion of the Commercial Mort-
Jan. 1 Jan./Feb. Issue
Mar. 1 March/April Issue gage Backed Securities (CMBS)
May 1 May/June Issue
July 1 July/August Issue
industry, including the securi-
Sept. 1 Sept./Oct. Issue tization process of commercial
Nov. 1 Nov./Dec. Issue
loans and the duties and re-
If you need information about the Lawyer Place-
ment Service, please contact HBA, placement co- sponsibilities of Mortgage Loan
ordinator, at the HBA office, 713-759-1133. Originators/Depositors, Un-
Positions Available derwriters of REMIC Trusts,
Rating Agencies, Trustees, Ser-
5074 Insurance coverage firm
vicers and Special Servicers.
seeking attorneys with at least
Looking for in-house position.
3 years of experience with
commercial property cover-
2064 Attorney with extensive
QuantumSUR, Inc. age. Strong writing/litigation
experience in collections and
advertising / marketing company skills required. Louisiana li-
enforcement of judgments will
281.955.2449 ext.11 cense, in addition to a Texas
take cases on a fee-for-service
www.quantumsur.com license, preferred.
or—if meritorious—on a con-
tingency basis.
5076 Boutique Civil Litiga-
tion law firm specializing in
If you need
complex business litigation is
looking for an associate attor- information about the
ney with 1-3 years litigation Lawyer Placement
experience and excellent re- Service, please
search and writing skills. contact HBA,
5080 Houston public pension placement coordinator,
fund seeking Associate Coun- at the HBA office,
sel reporting to CLO. Approx.
4 yrs. experience with pen- 713-759-1133
thehoustonlawyer.com March/April 2011 47

LITIGATION MARKETPLACE
Document Examiner
Research
Legal Document
Retrieval & Research
www.legaldocusa.com
legaldocusa@aol.com
CV, CR, BK documents
All Courts & Archives,
UCC, Patent, Trademark
Asset & Property Search
Document Scanning
Complete Service of Process
1.800.487.2245
The Houston Lawyer
brochures, websites,
business cards, logos...
281.955.2449 x11
quantumsur.com
48 March/April 2011 thehoustonlawyer.com
Galleria - Post Oak Blvd. Receptionist included in rent
Office Space
Ninth floor office space, 15 x and available for secretarial
GREENWAY-GALLERIA area
15. Tenant shares suite with work. Excellent shared-suite
- Two exterior offices. Inner
five attorneys, standard ame- environment since 1991.
Loop. Secretarial area, stor-
nities included. Call Elizabeth Call Lynn at 713-977-9600
age, conference room/library.
at 713-652-2144 x 28
FAX furnished. Controlled
Lorance & Thompson, P.C.,
access, covered parking, se-
Attention: Immigration/ a well established litigation
curity. $660 — 800 range.
Criminal Justice Attorneys. firm, has a few extra offices
713-522-4334
Want to share our CPA of- that were reserved for expan-
fice (including reception- sion. With the current econ-
LEGAL OFFICE SPACE
ist) very next to CONSUL- omy, that isn’t gong to hap-
FOR RENT - DOWNTOWN
ATE GENERAL–EL SALVA- pen any time soon. The firm
HOUSTON
DOR for immigration and would like to sublet them
$500.00 – $1,000.00 per
Criminal Justice Services? to a small firm specializing
month - 2 Blocks from Civil/
10301 Harwin Drive, in a non-litigation practice.
Criminal/Family Courts
Ste 1, Houston, TX 77036 If interested, please contact
- Multiple Conference and
713-496-3348 Phil Summers 713-868-5560
Break Rooms
Contact @yoecpa.com
- Bi-Lingual Secretarial/Re-
HOUSTON /
ceptionist Services Available
FAIRMONT PARKWAY/ MUSEUM DISTRICT
- Internet, Fax, Scanning and
BELTWAY 8. Newly remodeled Historic
Copying Complimentary
Professional office suite, new- Home, minutes from the Court
- Furnished Client Waiting
ly constructed (previously a House. On-site Management,
Area.
law office.) Eight offices, re- receptionist, three conference
- Immediate Move In
ception room, kitchen, 2900 rooms, kitchen, small library,
Available
sq. ft., alarm system. telephone system, internet ac-
CALL: 713–229-0770
713-252-1291 cess, copier, fax and free park-
ing. Several offices available.
Midtown/Montrose
OFFICE SPACE Call 713-840-1840
Victorian Style Office Space.
at 3 Riverway Class “A” Build-
Ideal for 6 to 8 people. Large Executive Office
ing located off Woodway
offices, hardwoods floors Space Available:
drive and 610 West Loop.
throughout. Kitchen, fridge Ranging from $850-$995 per
Law firm is primary ten-
& microwave; furnished with month. Amenities include: 2
ant. Several offices available.
conference table, large screen conference rooms; maid and
On-site management and se-
TV, desks, and Persian rugs reception services; full kitch-
curity guard, attached parking
included. ADA access to
garage for tenants and visitors, en. Heights Boulevard address. 
building and first floor bath- Broker/owner. 713-880-4700
conference rooms, receptioist
room. Wired and wireless
services, kitchen, wired for
internet and digital phone
broadband internet access. GREENWAY PLAZA
system. Gated Parking area.
Contact Lisa DeWild, One first floor office space
Prefer 3yr. lease.
713-209-2934 available, 12X17. Tenant
Contact: 713-526-2222.
shares suite with 6 attor-
canretproperties@gmail.com
HOUSTON – neys, standard amenities in-
TANGLEWOOD. cluded. Please call Trina at
I-10W and 610 Loop
Woodway Frost Bank Build- 713-627-1133
North of Galleria
ing. Window office(s) for
Large office space available,
sublease in beautiful suite Sublease beautiful office space
furnished or unfurnished. furnished with antiques and 1402 sq ft—550 Westcott.
Five attorneys practice in lo-
Oriental rugs. Includes wood- Call Leigh 713-224-6774
cation. Includes internet ac- paneled conference room,
cess. Conference room and eat-in kitchen, advanced GREENWAY PLAZA
copier available. Free parking. phone system answered in- Lovely partner/window of-
Call Charlie 713-686-5444 dividually for each attorney. fices with adjacent secretarial
station. Beautiful, quiet, pro-
fessional environment with
access to support equip-
ment, Hi-Speed Internet,
kitchen, file storage, recep-
tion and conference rooms.
Convenient parking. No
lease required. Call Pam at
713-877-1600
HOUSTON – GALLERIA AREA
Capital One Bank Plaza. Two
offices available in office shar-
ing suite with other lawyers.
Exterior office is 18 X 16 (can
be divided in two). Panoramic
view east toward downtown,
Greenway Plaza and Medical
Center. Interior office is 10
X 13. Secretarial station also
available. Includes: confer-
ence room, kitchen, phone,
fax, copier, high-speed inter-
net, and free parking. Great
location. 5 year lease renewed
with improvements. Contact
John at 713-781-5932.
Positions Available
Law Firm with an office in
Houston, TX seeks an expe-
rienced Litigator who has an
existing practice, but wishes
to increase that practice with
Corporate Insurance and other
clients in Houston. Individuals
that have represented Corpora-
tions, Insurance Companies and
other organizations in litigation
in the past would be preferred.
The Law Firm has a multiplici-
ty of clients with different types
of needs predominantly in liti-
gation, but also involving some
transactions. The Firm is look-
ing for someone with which
they can build a larger practice
and presence in Houston. The
firm has class A office in Down-
town Houston, but is willing
to relocate if the individual or
Firm believes it would be ben-
eficial. Please send resumes to
info@otbtlaw.com.
ATTENTION: Any Lawyer fa- accidents. Eutsler Law Firm.
LITIGATION MARKETPLACE
miliar with the “Redemption Tel. 713-464-6461 n
Brare
Process”, and the “secured Par- Arthur
65
1.440.36
Tel. 28 36
x 9057
5 1.440.49 s.com
P.O. Bo Fax 28 las
to n fifiberg
Hous defi@de
ty Creditor” status, …phone, Residential
Texas 77
www.de
29 0
fifibe rg la ss.com
Ron G. @ 281-433-8056. Re-
tired, BAR or non BAR O.K.. 2B/2B condo for Sale $165,000
Sheron R. “Sam” Sheppard Office: (936) 628-1210
or Lease furnished $2,000/ CO-OWNER / PRESIDENT
3101 Highway 59 N.
Cell: (713) 805-5720
Fax: (936) 628-1207
Shepherd, TX 77371 sam.sheppard@wyvac-inc.com
Providus, a national legal staff- month.1400 Hermann across WyVac, Inc. | Texas | USA www.wyvac-inc.com
4]`SWU\:O\UcOUS0caW\SaaBcb]`WOZ
ing company, is seeking a law- Hermann Park. 1433 s.f
Mary I. Breeland
yer for a business development w/900 s.f terrace.Established, president
• Spanish Classes
well managed building.
• Translations
position in the Houston office. Phone: 832.444.7573
marybreeland@yahoo.com
•
•
Bilingual Seminars
English Classes
Must have 4+ years experi- Minnette Boesel Properties.
ence working in a law firm or
corporate law department and
713-503-0571 or
NKinghorn@comcast.net.
1,000
sales or marketing experience. full color
High income potential - base business cards
compensation plus commis- For (both sides,
sion, healthcare benefits, and classifieds front & back)
401(k). Duties include new
84.95
advertising
business development through $
marketing our services to law please contact:
firms and corporate law de-
partments, sales presentations, Mary delivered to your
contract negotiation, cultivat-
ing and maintaining business
Chavoustie office in less
than 2 weeks!
relationships with our clients. mary@quantumsur.com
Excellent research and writ- 281.955.2449 art@quantumsur.com
ing abilities a must. Submit ext.13 (design services available)
your resume in confidence to
jbrown@ProvidusGroup.com.
Positions Wanted
WANT HELP WITH YOUR
LITIGATION PRACTICE?
Attorney with 10 years litigation
experience available for contract
projects. Reasonable rates. See
schiffmanlawoffice.com, email:
info@schiffmanlawoffice.com
or call 713-521-3636.
Professional Services
Yoe CPA Specializing in Financial Fraud,
Full-Service CPA firm providing Tax, Bookkeeping, Asset Discovery, Due Diligence, Background,
Payroll, Review, Audit. Special discount for Book- and White Collar Criminal Matters.
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Our offices are staffed by professional
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Tickets, DWI, Hit & Run,
The Houston Lawyer
garnered from premier international
Suspended License and Driver government agencies.
License Issues, including DPS
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hearings. *Traffic Warrants 713.621.1180 713.520.9191 • noukas@noukasintel.com
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thehoustonlawyer.com March/April 2011 49
 Ho u
ston ’s Pr e m i e r Fl o r i s t

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