Regulations
Under the Commerce Clause of the Constitution, Congress has jurisdiction over waters of the United States, a concept that has been held to cover not only navigable waters but also other waters that may in some way impact interstate or international commerce. That jurisdiction was exercised by Congress through passage of the Clean Water Act. But determinations of which waters impact interstate commerce (like determinations in many other areas to which the Commerce Clause applies) sometimes lend themselves to tortured and arbitrary reasoning as justification for expanded federal authority over matters that otherwise would be under the jurisdiction of the States. A final rule adopting an expansive definition of “waters of the United States” was issued by the Corps of Engineers and the Environmental Protection Agency, under the Obama administration, on June 29, 2015 (80 FR 37053). However, as a result of ensuing litigation, the implementation of that rule came to be enjoined in twenty-eight States, which remained subject to the pre-2015 definition of “waters of the United States;” while the definition in the 2015 rule (with its potential to criminalize activities affecting waters that until then had never been imagined to be “waters of the United States”) took effect in the other twenty-two. Pending a further review of the proper regulatory definition of “waters of the United States,” the Corps and EPA, under the first Trump administration, issued a final rule on October 22, 2019 (84 FR 56626) (which itself was litigated in several federal district courts), repealing the 2015 definition, and reinstating the pre-2015 definition in the meantime. On April 21, 2020 (85 FR 22250), the Corps and EPA published a final rule to establish a new definition of “waters of the United States,” which bore many similarities to the pre-2015 definition (although with some differences), and which – perhaps most significantly – specified the exclusion of groundwater from the definition. In further litigation, though, the 2020 rule was vacated. And the Biden administration, on January 15, 2023 (88 FR 3004), published a final rule, effective March 20, that returned the definition of “waters of the United States” more closely to the pre-2015 definition (although once again with some differences). On May 25, 2023, however, the Supreme Court issued its decision in Sackett v. EPA, refining the meaning of “waters of the United States,” and thus limiting the applicability of the most recent rule. And on September 8, 2023 (88 FR 61964), the Corps and EPA amended their regulatory definition of “waters of the United States,” with the stated intent of conforming that definition to the Court’s ruling. (The January 2023 rule, it should be noted, once again led to litigation, as a result of which preliminary injunctions were issued, prior to the Sackett decision, that blocked the operation of that rule in twenty-seven States; and those States thus reverted, at that point, to the pre-2015 definition of “waters of the United States.” It could be argued that the new September 2023 rule, as an amendment to the January 2023 regulation, therefore may not directly apply to those twenty-seven States either — although the Sackett ruling itself would pertain in all States.) Most recently, the Corps and EPA, on November 20, 2025 (90 FR 52498), published a proposed rule to further revise the definition of “waters of the United States,” in order to more closely follow the Sackett decision’s interpretation of the statute.
The Council on Environmental Quality, on June 26, 2019 (84 FR 30097), under the Trump administration, published draft guidance on the consideration of greenhouse gas emissions in the environmental review process. On February 19, 2021 (86 FR 10252), however, under the Biden administration, that draft guidance was withdrawn. New interim guidance on how greenhouse gas emissions and climate change should be considered, during environmental analyses conducted by federal agencies, was published by CEQ on January 9, 2023 (88 FR 1196). But on May 28, 2025 (90 FR 22472), under the second Trump administration, the 2023 interim guidance was withdrawn.
On April 20, 2022 (87 FR 23453), CEQ published a final rule, effective May 20, rolling back a 2020 Trump administration revision of its regulations on federal agencies’ implementation of procedural requirements under NEPA. This rule largely restored the provisions that were in effect prior to 2020, regarding agencies’ conduct of environmental reviews in connection with actions that they are proposing to take. CEQ advised that the 2022 rule was intended to address the most significant NEPA process issues (“Phase 1”), with more comprehensive revisions being planned. The further revisions to CEQ’s regulations for implementing NEPA’s procedural requirements (“Phase 2”) were published on May 1 (89 FR 35442), effective July 1, 2024. The Phase 2 rule reinstated a number of regulatory provisions that had been in effect from 1978 to 2020, and added a regulatory emphasis on climate change and environmental justice, as well as implementing the amendments that were made to NEPA under the Fiscal Responsibility Act of 2023 (pertaining to scope, length, and timing of NEPA documents). However, on February 25, 2025 (90 FR 10610), effective April 11, CEQ issued an interim final rule pursuant to President Trump’s Executive Order 14154 (see the Recent Developments page of this website), removing its NEPA implementing regulations (including both the 2022 Phase 1 rule and the 2024 Phase 2 rule); and the interim rule was adopted as a final rule on January 8, 2026 (91 FR 618). This action left the implementation of NEPA’s procedural requirements to be determined on an agency-by-agency basis. (Note: In the meantime, the Phase 2 rule had been struck down in a February 3 decision by the U.S. District Court for North Dakota, State of Iowa v. Council on Environmental Quality. See also the November 12, 2024, ruling of the U.S. Court of Appeals for the District of Columbia Circuit in Marin Audubon Society v. Federal Aviation Administration. And the Supreme Court, on May 29, 2025, issued its landmark decision in Seven County Infrastructure Coalition v. Eagle County, Colorado, discussed on the Court Opinions page of this website.) CEQ, on October 2, 2025 (90 FR 47734), published a notice of the availability of guidance regarding agency-specific NEPA implementation procedures.
The Office of Hearings and Appeals, on January 30, 2023 (88 FR 5789), published an amendment of its regulations governing appeals (43 CFR Part 4), effective March 16. The new rule makes additional provisions for the electronic filing and service of documents; and it also provides for certain procedural information to be promulgated through OHA Standing Orders, rather than in the regulations themselves.
By final rule published on June 16, 2023, (88 FR 39514), effective that same date, the Bureau of Land Management codified Onshore Orders 1, 2, 6, and 7, governing onshore oil and gas operations, as Subparts 3171, 3172, 3176, and 3177 of 43 CFR.
The Office of Natural Resources Revenue, on August 9, 2023 (88 FR 53790) (corrected August 16, 88 FR 55571), published a final rule, effective September 8, to allow ONRR (or an authorized State or Tribe) to specify that records which have been requested, during an audit of royalty payment and reporting, must be provided electronically.
Under the Forest Service’s regulations on special uses of National Forest System lands, uses that would create an exclusive or perpetual right of use or occupancy are currently prohibited (36 CFR 251.54). On November 3, 2023 (88 FR 75530), however, the Forest Service published a proposed amendment of its rule that would provide an exemption for carbon capture and storage.
BLM, on November 21, 2023 (88 FR 81022), published a proposed revision of its regulations on temporary closure and restriction orders affecting BLM lands (43 CFR 8364.1). The proposed rule would, among other changes, eliminate the requirement for such orders to be published in the Federal Register.
On April 10, 2024 (89 FR 25378), BLM published a final rule, at 43 CFR Subpart 3179, governing the waste of natural gas due to venting, flaring, and leaks during production. This new regulation, effective June 10, replaced Notice to Lessees 4A (“Royalty or Compensation for Oil and Gas Lost”), the BLM authority that governed venting and flaring until then. Among the provisions included in this regulation are requirements for operators to submit a waste minimization plan as part of an application for permit to drill; to take reasonable measures, as specified by BLM, to prevent waste; and to maintain a lease detection and repair program. The regulation also addresses when oil or gas is considered to be “unavoidably lost” and hence not subject to royalties. A preliminary injunction against enforcement of this rule, as to North Dakota, Montana, Wyoming, Utah, and Texas, was granted by the U.S. District Court for North Dakota on September 12, 2024, and is now on appeal to the U.S. Court of Appeals for the 8th Circuit. Certain deadlines in the rule have been delayed, effective February 13, 2026, by direct final rule published on December 15, 2025 (90 FR 57921).
A comprehensive revision of BLM’s oil and gas leasing regulations was published on April 23 (89 FR 30916), effective June 22, 2024. A number of changes made in this rule are the result of provisions of the Inflation Reduction Act of 2022 (IRA); but many additional changes were made on BLM’s own initiative. In a number of cases, BLM improperly enshrined policies in the regulations that should instead have been implemented through policy statements (i.e., instruction memoranda), thus preventing any future modification of those policies except through a formal rulemaking process or Congressional or judicial action. For a detailed analysis of significant changes under this rule, see this link: blmleasingrule624. Suffice it to say, though, that the changes are sufficiently extensive that nothing should be taken for granted based on how things used to work: the new rule’s provisions should be carefully reviewed in relation to every aspect of federal oil and gas leasing. (Note: Some of the changes made by this rule are being challenged in the courts and in Congress; but unless and until those challenges prevail, the rule will remain in force. This rule is among those that are specifically being targeted under Secretarial Order No. 3418 of February 3, 2025, as discussed on the Recent Developments page of this website. And as discussed below, some of the changes made by the 2024 rule have now been rolled back, by new regulations issued pursuant to the One Big Beautiful Bill Act of July 4, 2025.)
BLM published a final rule, on May 9 (89 FR 40308), effective June 10, 2024, which — in the name of BLM’s mandate to manage the public lands for multiple use and sustained yield — elevates conservation, in its own right, to a “use” that must be balanced against all other uses under the Federal Land Policy and Management Act’s multiple-use management requirement. In doing so, the rule revises BLM’s regulation on the designation of areas of critical environmental concern, and adds new regulations governing ecosystem resilience (including provisions for restoration and mitigation leasing). A proposed rule that would rescind the 2024 rule — which was also targeted under Secretarial Order No. 3418 — was published on September 11, 2025 (90 FR 43990), with comments being accepted through November 11.
On December 23, 2024 (89 FR 104493), the General Services Administration published a proposed amendment of its regulations regarding disposition of federal real property. As to real property that has been determined to be excess, the proposed rule reaffirms that, if such property is being disposed of with a reservation of mineral interests, “BLM is the agency responsible for managing such reserved mineral interests.”
Recent changes to guidance by the Administrative Conference of the United States, regarding interim final rules and direct final rules, were published on December 30, 2024 (89 FR 106406).)
CEQ, on December 30, 2024 (89 FR 106448), published a notice of guidance on environmental review procedures that federal departments and agencies should follow during emergencies. A further notice was published on January 26, 2026 (91 FR 3446), however, of the issuance of new guidance on January 21, rescinding and replacing CEQ’s previous guidance memorandum.
The Interior Department’s Office of Hearings and Appeals, on January 10, 2025 (90 FR 2332), published an interim final rule making comprehensive procedural changes to the regulations on hearings and appeals. The rule — after a series of delays — became effective on July 21.
The Bureau of Land Management, on January 17, 2025 (90 FR 5718), issued a final rule making an annual adjustment for inflation to the amounts charged for civil monetary penalties for violations relating to lease operations (43 CFR Part 3160). A similar annual adjustment for inflation to the Office of Natural Resources Revenue’s charges for civil monetary penalties resulting from violations of statutes, regulations, orders, or lease terms relating to royalty payments (30 CFR Part 1241) was made by final rule issued on January 10, 2025 (90 FR 1878).
The U.S. Fish and Wildlife Service, and the National Marine Fisheries Service, on April 17, 2025 (90 FR 16102), proposed the removal of the definition of “harm” from their regulations under the Endangered Species Act, on the basis that that definition goes beyond the ESA’s prohibition of the “take” of endangered species.
By notice of May 20, 2025 (90 FR 21504) (as modified August 26, 90 FR 41593), the Office of the Secretary created an open-ended public comment period for the identification of existing regulatory requirements that impose undue burdens on energy development, and that should be suspended, revised, or rescinded.
In accordance with CEQ’s actions that left the implementation of NEPA’s procedural requirements to be determined on an agency-by-agency basis (discussed above), the Interior Department’s Office of the Secretary, on July 3, 2025 (90 FR 29498), published an interim final rule revising the Department of the Interior NEPA implementing regulations. The interim rule, as modified, was adopted as a final rule on February 24, 2026 (91 FR 8738).
A series of regulatory revisions, pursuant to provisions of the One Big Beautiful Bill Act, were published by BLM on August 1, 2025:
- A lease may only include those stipulations and mitigation measures included in the applicable resource management plan. (Note: This presumably would not apply to stipulations that may be required by surface management agencies other than BLM.) (90 FR 36114, effective September 30.)
- With regard to the Mineral Leasing Act provision directing lease sales to be held at least quarterly “for each State where eligible lands are available,” the definitions of “eligible” and “available” that have been established by the One Big Beautiful Bill Act are incorporated into the regulations. (90 FR 36117, effective August 1.)
- The regulatory provision for a $5/acre fee for leasing nominations is repealed. (90 FR 36118, effective August 1.)
- The approval of an application for permit to drill is valid for a single four-year period. (90 FR 36120, effective September 30.)
The revisions to BLM’s oil and gas leasing regulations that took effect in June 2024, as discussed elsewhere on this website, included drastic increases of the minimum amounts for bonds. Under the 2024 regulations, existing lease bonds were to be increased to the new minimum within three years; and existing Statewide bonds within two years. By direct final rule published on December 18, 2025 (90 FR 59069), the deadline for Statewide bonds was extended to June 22, 2027, aligning it with the deadline for lease bonds.
The Bureau of Land Management published a notice on January 12, 2026 (91 FR 1194), with an annual update of fees for activities relating to federal mineral resources. (Note: The amounts of the fees no longer appear in the regulations, at 43 CFR 3000.120, but instead must now be found on BLM’s website, and in a Federal Register notice that is supposed to be published by October 1 of each year.)
The Forest Service, on January 28, 2026 (91 FR 3643), published a final rule, effective February 27, revising its regulations governing federal oil and gas resources within the National Forest System. The rule, among other changes, seeks to simplify the process (36 CFR 228.103) for working with the Bureau of Land Management in response to BLM requests for consent to lease National Forest lands.
BLM, in response to the One Big Beautiful Bill Act’s authorization of commingling of production under certain circumstances (see the Recent Developments page of this website), published a proposed rule on January 30, 2026 (91 FR 4045), that would revise the regulations at 43 CFR Subpart 3173 governing approval of agreements to combine production from two or more sources. Comments are being accepted through March 31.
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A number of regulatory actions affecting the oil and gas industry are now under consideration by agencies in the Interior Department and elsewhere.
The Forest Service, on April 19, 2018 (83 FR 17359), announced the initiation of a planning process leading to the issuance of a revised Forest Plan for the Wayne National Forest in Ohio. For further developments affecting the Wayne National Forest, see the Court Opinions page of this website.
The Fish and Wildlife Service, on June 1, 2022 (87 FR 33200), published a request for comment on proposed revisions to its collection of information on operations for non-federal oil and gas on National Wildlife Refuge lands. The notice observes that, in addition to the Fish and Wildlife Service, other land management agencies such as BLM, the Forest Service, and the National Park Service also have regulations concerning the development of non-federal oil and gas. (In all such cases, it should be noted, the agencies’ power to regulate the exercise of the non-federal rights is limited, and their regulatory efforts occasionally have resulted in litigation.) The Fish and Wildlife Service’s current proposal is to adopt an electronic permit form, and to include additional details on the form.
The Office of Management and Budget, on August 2, 2023 (88 FR 50912), published a notice of availability of proposed guidance on the assessment of changes in “environmental and ecosystem services” (described as “all relevant contributions to human welfare from the environment or ecosystems”) that should be used by agencies as part of their benefit-cost analysis when drafting regulations.
The Interior Department, on August 4, 2023 (88 FR 51853), announced that, pursuant to a program established by Congress in 1990, a prospectus was being prepared for a National Nature Assessment that would assess changes in nature as an aspect of global change.
The Fish and Wildlife Service published a notice, on September 15, 2023 (88 FR 63547), of proposed updated planning policies that would incorporate landscape conservation plans, and consideration of climate change, into the management of the National Wildlife Refuge System.
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By Memorandum of January 20, 2025, President Trump imposed a temporary regulatory freeze. The Memorandum directs all federal departments and agencies to (1) not propose or issue any new rules (except under certain circumstances requiring prompt action) until they have been approved by an appropriate official under the new administration; (2) withdraw any rules still awaiting publication in the Federal Register until they have been similarly approved; and (3) consider postponing, for 60 days or longer, the effective dates for published rules that have not yet taken effect, in order to allow further action regarding those rules where warranted. This directive applies not only to rulemaking actions but to agency policy statements as well.
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The Federal Oil and Gas Royalty Management Act of 1982 was amended by the Royalty Resiliency Act of September 20, 2024 (P.L. 118-81; 138 Stat. 1520), in order to clarify the procedures for royalty payments relating to allocations of production under units and communitization agreements. Instruction Memorandum 2025-012 was issued by the Bureau of Land Management to implement this provision.
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The Bureau of Land Management has completed a transition of its online land and mineral reports from the LR2000 system to a new Mineral & Land Records System, at https://reports.blm.gov/reports/mlrs. In connection with the move, MLRS has created new serial number designations for all cases — a dual numbering system for all existing leases — with the assurance that existing lease numbers (“legacy serial numbers”) will continue to apply as well.
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The Interior Department’s Office of the Secretary announced on February 28, 2020 (85 FR 12009), that, in compliance with Executive Order 13891 which required agency guidance documents to be made readily available to the public, a website was established to contain all of the Department’s guidance documents that are currently in effect. Among the documents that can be found on the website — www.doi.gov/elips/browse — are the Departmental Manual, Secretarial Orders, and links to BLM manuals, BLM handbooks, BLM instruction memoranda and information bulletins, and Solicitor’s Opinions.