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 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 bears many similarities to the pre-2015 definition (although with some differences), and which – perhaps most significantly – specifies the exclusion of groundwater from the definition. Further changes under the Biden administration, however, are a virtual certainty; and toward that end, the Corps and EPA are conducting a series of public meetings to solicit recommendations on the development of new rules.
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.
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.
The Office of the Secretary of the Department of the Interior, on May 1, 2020 (85 FR 25472), published a notice of the establishment, under Congressional directive, of a categorical exclusion from the National Environmental Policy Act requirement for an environmental assessment or environmental impact statement in connection with certain habitat-restoration actions; and the notice also announced the incorporation of this and several other established categorical exclusions into the Departmental Manual.
On July 16, 2020 (85 FR 43304), CEQ published a final rule, effective September 14, to update its regulations on federal agencies’ implementation of procedural requirements under NEPA. This rule established the framework for agencies’ conduct of environmental reviews in connection with actions that they are proposing to take. On September 24 (85 FR 60137), CEQ followed up with a notice of guidance for agency compliance with NEPA in emergency situations.
The Forest Service, on September 1, 2020 (85 FR 54311), published a proposed revision of its regulations on federal oil and gas resources on National Forest System lands. The proposed rule addresses the procedures followed by the Forest Service in making lands available for leasing, as well as the requirements for conducting operations on Forest Service lands.
The Bureau of Land Management published a final rule updating its fees for activities relating to federal mineral resources (43 CFR 3000.12) on October 9, 2020 (85 FR 59730), effective on that date.
Pursuant to Executive Order 13891 which was issued by the Trump administration, addressing the issuance by federal agencies of guidance documents, the Interior Department published an interim final rule on October 26, 2020 (85 FR 67666), codifying the Department’s guidance document procedures. On April 15, 2021 (86 FR 19786), however, this interim final rule was rescinded, pursuant to the Biden administration’s issuance of Executive Order 13992 which revoked E.O. 13891.
On November 19, 2020 (85 FR 73620), the Forest Service published a final rule revising its regulations for implementing the National Environmental Policy Act (36 CFR Part 220).
In the continuing saga of the Office of Natural Resources Revenue’s regulations on federal oil and gas valuation for royalty purposes (along with ONRR’s civil penalty regulations), the regulations that had been adopted in 2016 under the Obama administration were reissued on October 1, 2020 (85 FR 62016), after the Trump administration’s 2017 repeal of those regulations was struck down in litigation. The Trump administration then published a final rule to amend the valuation and civil penalty regulations on January 15, 2021 (86 FR 4612), to be effective February 16. But on February 12 (86 FR 9286), the Biden administration delayed the effective date to April 16; and on April 16 (86 FR 20032), the effective date was further delayed to November 1. And on June 11 (86 FR 31196), a proposed rule was published that would withdraw the recent Trump administration regulations altogether.
The Bureau of Land Management, on June 9, 2021 (86 FR 30548), 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 2, 2021 (86 FR 7808).
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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.
By Presidential memorandum of October 31, 2020, the Secretary of Energy was directed to submit reports by mid-January assessing the negative economic, trade, and national-security impacts that would result from prohibiting or sharply restricting the use of hydraulic fracturing and related technologies.
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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.