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Texas Environmental Law Journal Texas Environmental Law Journal Volume 40 Fall 2009 • Winter, Spring & Summer 2010 Numbers 1–3 ARTICLES SOLID WASTE UPDATE Paul G. Gosselink ENVIRONMENTAL ISSUES IN BANKRUPTCY Mary J. Koks & Tim Million NOTES WIND SEVERANCE Michael J. Stephan THE STATUS OF SURFACE WATER RIGHTS IN TEXAS : CATEGORIZING ENVIRONMENTAL CRIMES : MALUM IN SE OR MALUM PROHIBITUM ? Michael Parker ACHIEVING THE HIGH -WATER MARK OF WAVE TECHNOLOGY David Webster RECENT DEVELOPMENTS AIR QUALITY – John B. Turney, Marissa Saucedo Britton, Lauren Sprouse, Sarah Coble NATURAL RESOURCES – Aileen M. Hooks, Samuel Denton SOLID WASTE – Ali Abazari, Crystal Le WATER RIGHTS – Robin Smith, Madeline Mathews CASENOTES : FEDERAL – David J. Klein, Thomas L. Fahring CASENOTES : STATE – Howard S. Slobodin, Morgan Smith PUBLICATIONS – Francis Chin, Randy Aman WASHINGTON UPDATE – Laura LaValle, Laura Evans STATE BAR SECTION NEWS Official Publication of the Environmental & Natural Resources Law Section of the State Bar of Texas Published Jointly with the University of Texas School of Law. State Bar of Texas Environmental & Natural Resources Law Section Published with 100% Post Consumer Waste Texas Environmental Law Journal Volume 40 Fall 2009 • Winter, Spring & Summer 2010 Numbers 1–3 ARTICLES SOLID WASTE UPDATE Paul G. Gosselink 1 ENVIRONMENTAL ISSUES IN BANKRUPTCY Mary J. Koks & Tim Million 43 NOTES WIND SEVERANCE Michael J. Stephan 73 CATEGORIZING ENVIRONMENTAL CRIMES : MALUM IN SE OR MALUM PROHIBITUM ? Michael Parker 93 ACHIEVING THE HIGH -WATER MARK OF WAVE TECHNOLOGY David Webster 113 RECENT DEVELOPMENTS AIR QUALITY – John B. Turney, Marissa Saucedo Britton, Lauren Sprouse, Sarah Coble 135 NATURAL RESOURCES – Aileen M. Hooks, Samuel Denton 141 SOLID WASTE – Ali Abazari, Crystal Le 144 WATER RIGHTS – Robin Smith, Madeline Mathews 146 CASENOTES : FEDERAL – David J. Klein, Thomas L. Fahring 148 CASENOTES : STATE – Howard S. Slobodin, Morgan Smith 152 PUBLICATIONS – Francis Chin, Randy Aman 154 WASHINGTON UPDATE – Laura LaValle, Laura Evans 156 STATE BAR SECTION NEWS 160 Prepared through The University of Texas School of Law Publications Office ISSN 0163-545X Copyright © 2009–2010 Environmental and Natural Resources Section of the State Bar of Texas and The University of Texas School of Law Texas Environmental Law Journal Please cite as: TEX . ENVTL . L. J. Texas Environmental Law Journal Volume 40 Fall 2009 • Winter, Spring & Summer 2010 Numbers 1–3 State Bar of Texas Environmental and Natural Resources Law Section 401 Green Acres Drive, Suite 100 Wimberley, Texas 78675-5025 www.texenrls.org Editorial Board Editor-in-Chief Recent Developments and Solicitations Associate Editor Jimmy Alan Hall Special Projects Associate Editor Lauren Kalisek 401 Green Acres Dr., Suite 100 Lyn Clancy P.O. Box 1725 Wimberley, Texas 78676-5025 P.O. Box 220, Mailstop H-424 Austin, Texas 78767-1725 [email protected] Austin, Texas 78767-0220 [email protected] (512) 722-3190 [email protected] (512) 322-5847 (512) 473-3378 Production Associate Editor Text Editor Randall B. Wilburn Meitra Farhadi 3000 South IH-35, Suite 150 P.O. Box 1088 Austin, Texas 78704-6538 Austin, Texas 78767-1088 [email protected] [email protected] (512) 326-3200 (512) 974-2310 Recent Development Columnists Air Quality Water Quality & Utilities Casenotes—State John B. Turney Emily Rogers Howard S. Slobodin 816 Congress Ave., Suite 1200 816 Congress Ave., Suite 1700 P.O. Box 60 Austin, Texas 78701-2672 Austin, Texas 78701-2643 Arlington, Texas 76004-0060 [email protected] [email protected] [email protected] (512) 476-0005 (512) 472-8021 (817) 467-4343 Natural Resources Water Rights Publications Aileen M. Hooks Robin Smith Francis Chin 98 San Jacinto Blvd., Suite 1500 P.O. Box 13087 1001 Fannin, Suite 4000 Austin, Texas 78701-4078 Austin, Texas 78711-3087 Houston, Texas 77002-2770 [email protected] [email protected] [email protected] (512) 322-2616 (512) 239-0463 (713) 328-7187 Solid Waste Casenotes—Federal Washington Update Ali Abazari David J. Klein Laura LaValle 100 Congress Ave., Suite 1100 P.O. Box 1725 98 San Jacinto Blvd., Suite 1420 Austin, Texas 78701-4042 Austin, Texas 78767-1725 Austin, Texas 78701-4082 [email protected] [email protected] [email protected] (512) 236-2239 (512) 322-5818 (512) 391-8020 ii Texas Environmental Law Journal Volume 40 Fall 2009 • Winter, Spring & Summer 2010 Numbers 1–3 University of Texas School of Law Texas Environmental Law Journal 727 East Dean Keeton St. Austin, Texas 78705-3224 (512) 471-0299 / [email protected] Editorial Board 2009-2010 Editor-in-Chief Student Notes Editor Recent Developments Editor Beckie Brice Adrian Shelley Crystal Le Lead Articles Editor Managing Editor Administrative Editor William “Trey” Edwards Elizabeth Hundt Russell Murdock Staff 2009-2010 Returning Members: New Members: Madeline Mathews Mary Alexander Ji Min Park Nicolas Andrew Annie Kellough Sam Denton Erika Baylor Diana Davis Henry Bell Drew Chapman Tina Ramage TL Fahring Andrea Geohegan Emily Sysak Randy Aman Lauren Sprouse David Webster Nicolas Aitcher-Gavrizi Alyssa Nava Priscilla Noriega Sarah Coble Corey Pemberton Rachel Stone Roberta Borges Laura Evans Production Consultant Susan Williamson (512) 445-6067 / [email protected] iii Texas Environmental Law Journal Volume 40 Fall 2009 • Winter, Spring & Summer 2010 Numbers 1–3 State Bar of Texas Environmental and Natural Resources Law Section Executive Committee officers (2009-2010) Chair Vice Chair Treasurer Mike Gershon Cynthia “Cindy” Smiley Cynthia “Cindy” Bishop 816 Congress Ave., #1900 301 Congress Ave., #2000 1601 Elm St., #3300 Austin, Texas 78701-2478 Austin, Texas 78701-2960 Dallas, Texas 75201-4761 [email protected] [email protected] [email protected] (512) 322-5872 (512) 495-6441 (214) 999-4506 Chair Elect Secretary Immediate Past Chair Peter T. Gregg Mike Nasi Mary Koks 98 San Jacinto Blvd., #1420 100 Congress Ave., #1100 700 Louisiana St., #4600 Austin, Texas 78701-4039 Austin, Texas 78701 Houston, Texas 77002-2845 [email protected] [email protected] [email protected] (512) 391-8030 (512) 236-2216 (713) 222-4030 Executive Committee Members (2009-2010) Terms Expire 2010 Terms Expire 2011 Terms Expire 2012 Melissa Hagan Devin “Buck” Benson Gitanjali Yadav [email protected] [email protected] [email protected] (713) 220-3207 (210) 222-9494 (512) 239-6259 Scott McDonald Robert Renbarger Roger Haseman [email protected] [email protected] [email protected] (214) 665-2718 (512) 476-2020 (713) 755-5834 Walt Shelton Allison Exall Arnoldo Medina [email protected] [email protected] [email protected] (254) 710-6009 (214) 270-1410 (713) 421-5479 Committee Chairs (2009-2010) Education Law School Finance Bane Phillippe Walt Shelton Cindy Bishop, Treasurer [email protected] [email protected] [email protected] (512) 867-8515 (254) 710-6009 (214) 999-4506 Publications Website & Technology Bar Association Jimmy Alan Hall Constance “Connie” Westfall Mary Koks [email protected] [email protected] [email protected] (512) 722-3190 (214) 651-2351 (713) 222-1470 iv TEXAS ENVIRONMENTAL LAW JOURNAL Statement of Purpose The purpose of the Texas Environmental Law Journal is to provide the members of the Environmental and Natural Re- sources Law Section of the State Bar of Texas and the public with legal articles and recent development columns on relevant environmental and natural resources law issues. The Journal also provides news of Section activities and other events pertaining to this area of law. The Journal is the leading source for articles on Texas environmental and natural resources law. Joint Publication The Texas Environmental Law Journal is an official publication of the Environmental and Natural Resources Law Section of the State Bar of Texas and is published jointly with the University of Texas School of Law’s Texas Environmental Law Journal. In 1990, the Environmental and Natural Resources Law Section reached an agreement with this student organi- zation at the University of Texas School of Law to co-produce the Journal as the Texas Environmental Law Journal. The students’ involvement began with the summer issue in 1990. Other Information The opinions expressed in the Journal are solely the opinions of the respective authors and are not the opinions of the State Bar of Texas, the Environmental and Natural Resources Law Section of the State Bar of Texas, the University of Texas School of Law, or the University of Texas School of Law’s Texas Environmental Law Journal. To contact the Journal, please use the contact information in the preceding pages. Submission & Editorial Policies The Journal will consider for publication any articles from practitioners, judges, academics, policymakers, and others that are relevant and useful to practitioners in the environmental and natural resources law arena. Anyone interested in having the Journal consider their work should submit a manuscript electronically by email to our Solicitations Associate Editor, whose address is listed above and the student Lead Articles Editor.([email protected]). Manuscripts should be typed and doubled-spaced with footnotes. If the Journal accepts a manuscript for publishing, the author must provide a copy in electronic format (Microsoft Word or Corel WordPerfect). Citations should conform to the most recent editions of The Bluebook: A Uniform System of Citation and the Texas Rules of Form. If you desire the Journal to return any printed manuscript, please provide a postage prepaid, self-addressed envelope with the manuscript. Copyright & Permission to Use Unless otherwise provided, the Journal grants permission for use of articles, student notes, and recent developments in classrooms, provided that the user: (1) affixes a proper copyright notice to each copy, (2) identifies the author and the source issue of the Journal, (3) charges not more than at or below the actual cost of the copies, and (4) notifies the Journal of the use. Reprints The Journal has a contract with William S. Hein & Co., Inc. for Hein to provide back issues.
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