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 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 returns the definition of “waters of the United States” more closely to the pre-2015 definition (although once again with some differences). On May 25, 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.
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), effective immediately.
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.
On October 20, 2021 (86 FR 58095), BLM published a notice of an adjustment, for inflation, of its filing fee (now $10,900) for an application for permit to drill.
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, with more comprehensive revisions being planned.
The Bureau of Land Management published a final rule with its annual update of fees for activities relating to federal mineral resources (43 CFR 3000.12) on September 21, 2022 (87 FR 57637), effective October 1.
A proposed rule was published by ONRR on September 30, 2022 (87 FR 59350), that would 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.
On November 30, 2022 (87 FR 73588), BLM published proposed new regulations to govern the waste of natural gas due to venting, flaring, and leaks during production. These regulations would replace the current authority that governs venting and flaring, Notice to Lessees 4A (“Royalty or Compensation for Oil and Gas Lost”). Among the provisions included in the proposed regulations is a requirement for operators to submit a waste minimization plan as a part of any application for permit to drill.
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). 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. The rule is effective on March 16, 2023, except as to any provisions that may be withdrawn due to adverse comments before then.
The Bureau of Land Management, on February 24, 2023 (88 FR 11818), 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 13, 2023 (88 FR 2520).
The Bureau of Land Management published a proposed rule, on April 3 (88 FR19583), in the name of BLM’s mandate to manage the public lands for multiple use and sustained yield, that would elevate 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.
The Department of Agriculture, on June 3, 2020 (85 FR 34085), under the Trump administration, had adopted new regulations for the review and issuance of agency guidance documents, providing additional controls on guidance that Agriculture Department agencies (including the Forest Service) might issue. On May 4, 2023 (88 FR 28381), however, those regulations were removed.
By final rule published on June 16 (88 FR 39514), effective that same date, BLM codified Onshore Orders 1, 2, 6, and 7, governing onshore oil and gas operations, as Subparts 3171, 3172, 3176, and 3177 of 43 CFR.
* * *
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 that will lead to the issuance of a revised Forest Plan for the Wayne National Forest in Ohio.
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 Bureau of Land Management is continuing with its transition from the LR2000 system for online land and mineral reports 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.
* * *
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.