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. Implementation of the final rule adopting an expansive definition of “waters of the United States,” which was issued by the Corps of Engineers and EPA in June 2015 (80 FR 37053), was enjoined by an October 9, 2015, order of the U.S. Court of Appeals for the 6th Circuit in State of Ohio v. U.S. Army Corps of Engineers. The Corps and EPA, on March 6, 2017 (82 FR 12532), published a notice announcing their intention to review and rescind or revise this rule; and on July 27 (82 FR 34899), those agencies published a proposed rule rescinding the 2015 definition, and returning to the status quo prior to that definition, pending a further review of the proper regulatory definition of “waters of the United States.” The 6th Circuit’s ruling meanwhile was under review by the Supreme Court; so in an effort to keep the 2015 definition from going into effect before a final rule rescinding that definition could be implemented, the Corps and EPA published a further proposed rule on November 22, 2017 (82 FR 55542), that would defer the applicability of the 2015 definition for two years. And upon the Supreme Court’s determination, on January 22, 2018, that only the District Courts, and not the Court of Appeals, had jurisdiction to consider this matter (thus voiding the 6th Circuit’s injunction), a final rule was published on February 6 (83 FR 5200) setting the applicability date for the 2015 rule as February 6, 2020. However, the delay in the 2015 rule’s applicability date was then struck down by decisions of the U.S. District Courts in South Carolina (in August 2018) and Washington (in November). Meanwhile, though, preliminary injunctions against the 2015 rule had been issued by U.S. District Courts in North Dakota, Georgia, and Texas, which together applied to 28 States; and so those 28 States are currently 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” — now applies to the other 22. On February 14, 2019 (84 FR 4154), the Corps and EPA published a proposed rule to establish a new definition of “waters of the United States,” bearing many similarities (although some differences) to the pre-2015 definition. And most recently, pending action on that proposed rulemaking, the Corps and EPA issued a final rule on October 22, 2019 (84 FR 56626), effective December 23, repealing the 2015 definition, and reinstating the pre-2015 definition in the meantime.
A proposed rule was published by the Interior Department on December 28, 2018 (83 FR 67175), to streamline the Department’s procedures for responding to Freedom of Information Act requests, in the face of a growing backlog due to increasing requests and litigation.
On June 13, 2019 (84 FR 27544), the Forest Service published a proposed rule to revise its regulations for implementing the National Environmental Policy Act (36 CFR Part 220).
The Council on Environmental Quality, on June 26 (84 FR 30097), published draft guidance on the consideration of greenhouse gas emissions in the environmental review process.
BLM published a final rule updating its fees for activities relating to federal mineral resources (43 CFR 3000.12) on November 6, 2019 (84 FR 59730), effective on that date.
A proposed update of CEQ’s regulations on federal agencies’ implementation of procedural requirements under NEPA was published on January 10, 2020 (85 FR 1684).
The Bureau of Land Management, on February 25, 2020 (85 FR 10617), 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 February 7, 2020 (85 FR 7221).
The Office of the Secretary of the Department of the Interior, on March 13 (85 FR 14700), published a notice of a proposed revision of the Departmental Manual, to add a categorical exclusion from the NEPA requirement for an environmental assessment or environmental impact statement in connection with certain habitat-restoration actions. Comments are being accepted through April 13.
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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.
A review was directed, by Executive Order 13783 of March 28, 2017, for possible suspension, revision, or rescission of the rules that were published by the National Park Service on November 4 (81 FR 77972), and by the Fish and Wildlife Service on November 14, 2016 (81 FR 79948), governing the management of non-federal oil and gas rights on lands under their respective jurisdictions.
By notice of June 22, 2017 (82 FR 28429), the Interior Department requested public input, on an ongoing basis, regarding Departmental regulatory reform in general. Comments may be submitted either by mail or through the www.regulations.gov website. By notice of July 17, 2017 (82 FR 32649), the Agriculture Department (which includes the Forest Service) similarly requested comments on regulatory reform. The Corps of Engineers did the same by notice of July 20, 2017 (82 FR 33470).
The Forest Service, on April 19, 2018 (83 FR 17359), announced the initiation of a planning process that will lead to the issuance of a revised Forest Plan for the Wayne National Forest in Ohio.
On September 13, 2018 (83 FR 46458), the Forest Service published an advance notice of proposed rulemaking to revise its regulations affecting oil and gas leasing and operations on National Forest lands. This appears to be an opportunity for the Forest Service to align its procedures with the reforms that have been implemented by BLM.
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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 has been 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.