On September 15, 2020, the United States Army Corps of Engineers (Corps) issued its “Proposal to Reissue and Modify Nationwide Permits” (Proposed Rule). Under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899, the Corps issues nationwide permits (NWPs) that authorize activities that will result in no more than minimal individual and cumulative adverse environmental effects. These permits are designed to streamline the permitting process for certain activities, while also ensuring that jurisdictional waters are protected. Most significant to the oil and gas industry, the Corps proposes to (1) modify NWP 12 to be limited to the authorization of oil and natural gas pipeline activities, and (2) streamline and reduce pre-construction notice requirements for pipelines subject to NWP 12. The comment period under the proposed rule closes on November 16, 2020.

Continue Reading Corps Proposes to Modify Nationwide Permit 12 to Simplify Pre-Construction Notification for Pipelines

On July 16, 2020, the Council on Environmental Quality (CEQ) published its long-awaited final rule to amend its regulations implementing the National Environmental Policy Act of 1969 (NEPA), introducing important changes to the 40-year-old review process. The statute requires federal agencies to take a “hard look” at the environmental impacts of certain proposed projects, but does not mandate any particular outcome. The final rule follows CEQ’s June 2018 Advanced Notice of Proposed Rulemaking (ANOPR) and the January 2020 Notice of Proposed Rulemaking (NOPR), which we previously discussed here.

Continue Reading CEQ Final Rule Overhauls NEPA Regulations

On June 1, 2020, the Environmental Protection Agency (“EPA”) released a final rule establishing procedural requirements for water quality certifications under section 401 of the Clean Water Act (“CWA”).  EPA’s August 2019 notice of proposed rulemaking (“NOPR”) articulated the Agency’s first-ever statutory interpretation of section 401 since its enactment nearly 50 years ago, and proposed sweeping changes to its section 401 regulations in conformance with its interpretation.  EPA’s final rule largely adopts the regulations in its NOPR, but makes important changes in promulgating new regulations that preserve authority of states and Native American tribes exercising “Treatment as a State” (“TAS”) authorization to ensure that discharges from federally licensed and permitted activities meet state and tribal water quality requirements.

Continue Reading EPA Overhauls Clean Water Act Section 401 Regulations

As previously reported, the Federal District Court for Montana vacated the U.S. Army Corps of Engineers (“Corps”) Nationwide Permit (“NWP 12”) on April 15, 2020, finding that the Corps had failed to consult with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service prior to issuing NWP 12. The court’s decision vacated NWP 12 nationwide and prevents the Corps from authorizing a broad range of projects that are unrelated to the project at issue in that case, the Keystone XL Pipeline.  On April 27, 2020, the Corps requested that the court stay the effect of its ruling pending the Corps’ appeal to the U.S. Court of Appeals for the Ninth Circuit, and, on May 11, 2020, the District Court narrowed its order to allow continued authorization of maintenance on existing pipelines and construction of certain non-pipeline projects.

Continue Reading Update: Ninth Circuit Denies Emergency Stay in NWP 12 Litigation

The coronavirus (COVID-19) pandemic understandably has strained available personnel and other resources as oil and gas pipeline operators focus on maintaining their essential operations. For the gas industry, the pandemic comes at a time that coincides with the initial deadlines associated with the first installment of the Pipeline and Hazardous Materials Safety Administration’s gas “mega” rule, July 1, 2020. In order to provide gas operators with further flexibility due to constrained resources, PHMSA announced a 6-month stay of enforcement of initial Part 192 compliance deadlines in the rule, “if a regulated entity fails to meet such requirement by Dec. 31, 2020, for reasons attributable to the [COVID-19] National Emergency.”

Continue Reading Ongoing COVID-19 Pandemic Prompts Gas Pipeline Enforcement Stay

PHMSA recently finalized a rule that significantly revises certain aspects of liquid pipeline safety regulation under 49 CFR Part 195.  Nearly nine years in the making, the final rule is intended to address PHMSA and NTSB accident investigation findings from the Marshall Michigan spill in 2010 as well as 2011 and 2016 outstanding Congressional mandates and GAO recommendations.  A version of this rule was initially scheduled for publication in the Federal Register in the last week of the prior presidential administration in 2017.  It was held back as a result of the regulatory freeze and subsequent deregulatory review by the Trump administration which pared down certain changes in the recent final rule.

Continue Reading Final Rule Imposes Expansive New Requirements for Liquid Pipelines

On October 1, 2019, the Pipeline and Hazardous Materials Safety Administration (PHMSA or the Agency) issued three long awaited final rules.  This post addresses the Agency’s final rule on Emergency Orders, a significant new tool in PHMSA’s pipeline safety enforcement tool box that can be issued to the entire industry or portion of the industry.  Alerts on the other two rulemakings are forthcoming (i.e., the first of three final rules regarding natural gas pipelines and amendments to the liquid pipeline rules).

Continue Reading PHMSA Updates its Latest Enforcement Tool: Emergency Order Final Rule

Tomorrow’s Federal Register will include three final rules published by the Pipeline and Hazardous Materials Safety Administration (PHMSA) that have been years in the making:  (1) Safety of Gas Transmission Pipelines: Maximum Allowable Operating Pressure Reconfirmation, Expansion of Assessment Requirements, and Other Related Amendments; (2) Safety of Hazardous Liquid Pipelines; and (3) Enhanced Emergency Order Procedures.  All three rules have been lingering at the Office of Management and Budget (OMB) for review for at least several months, and probably none have been more anticipated than the gas transmission and liquid pipeline rules.

Continue Reading PHMSA Publishes Long-Awaited Final Rules

On Friday, August 9, the Environmental Protection Agency (“EPA”) unveiled a pre-publication version of a notice of proposed rulemaking (“NOPR”) to clarify state water quality certification (“certification”) procedures under Section 401 of the Clean Water Act (“CWA”) to allow for increased regulatory certainty in federal licensing and permitting activities, and particularly authorization of infrastructure projects.  

The Pipeline and Hazardous Materials Safety Administration (PHMSA) is close to finalizing a rule applicable to the safety of natural gas transmission pipelines that has been nearly eight years in the making. Both Congress and the industry have urged PHMSA to issue a final rule and PHMSA has now signaled that the rule is currently awaiting final approval by the Office of Management and Budget (OMB). With a final rule that could be published in the coming weeks or months, pipeline operators should be prepared to review and modify their compliance programs as appropriate.
Continue Reading Gas Pipeline Safety Rule Clearing Final Hurdle: Operators Should Prepare