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  1. EPA’s Proposed Waters of the U.S. Rule: Does It Regulate Puddles?

    Thursday, March 27, 2014 10:21 am by

    Yesterday, we blogged about the EPA and Corps’ proposed rule defining what waters fall under federal jurisdiction. In a leaked draft, EPA was seen to have been contemplating explicitly excluding puddles from regulation, but, in the end, didn’t do so.  EPA provided an explanation as to why, but the rule is so broad, we think EPA’s explanation may not be completely relevant. In other words, because the rule is so broad, many puddles actually might fall under federal jurisdiction.

    The reason is the host of new definitions proposed by EPA. Previously undefined terms like tributary, neighboring, and floodplain are all now defined, and in a way that creates a web of federal jurisdiction. Here’s how: (more…)


  2. Oklahoma Enters the Fray of Endangered Species Sue-and-Settle

    Monday, March 24, 2014 4:14 pm by and

    On March 17, 2014, the State of Oklahoma sued the U.S. Department of the Interior, taking aim at the U.S. Fish and Wildlife Service’s habit of settling large Endangered Species Act cases with Environmental Non-Governmental Organizations. The lawsuit signals an important escalation in the fight against such settlements. ESA lawsuits have become a key tool to prevent or delay project development activities, including in the oil and gas industry.

    Over the last several years, FWS has repeatedly settled NGO lawsuits with consent agreements in which FWS commits to prioritize the NGOs’ chosen species for potential listing – and on a fixed timetable. The largest settlement resulted in FWS agreeing to examine 455 different species over the course of five years.

    lawsuithighlights several additional concerns with these settlements, including: (more…)


  3. DOT’s New NEPA Categorical Exclusion May Actually Speed Project Delivery

    Friday, January 17, 2014 10:52 am by

    Spurred on by Congress, on Monday, the Federal Highway and Transit Administrations adopted a categorical exclusion which may spare some projects a detailed review under the National Environmental Policy Act.  Specifically, projects that receive less than $5,000,000 in federal funding will be presumed not to have to undertake any NEPA review at all.

    The fact that there would be some type of CatEx along this line was never in doubt – in July 2012, Congress included a provision in Section 1317 of the highway bill (called “MAP-21”) specifically ordering DOT to (1) designate a CatEx for any project that receives less than $5 million in federal funding and (2) promulgate a rule to carry out the CatEx.  The question was how DOT would implement this mandate:  Would any project whatsoever that received less than $5 million be excluded, even if DOT had other major decisions to make on the project – decisions that would normally require NEPA review? (more…)


  4. EPA Issues NPDES Permit that Includes Limited Chemical Disclosure Requirements for Oil and Gas Operations Offshore California

    Friday, January 10, 2014 2:52 pm by and

    Region 9 of the U.S. Environmental Protection Agency yesterday made available the finalized National Pollutant Discharge Elimination System (NPDES) general permit applicable to discharges from oil and gas exploration facilities offshore Southern California.  NPDES General Permit No. CAG280000 (2014 NPDES General Permit), issued under provisions of the Clean Water Act, authorizes discharges from exploration, development and production facilities located offshore of Southern California in accordance with specified effluent limitations, monitoring and reporting requirements and various other conditions. 

    The final 2014 NPDES General Permit includes certain new requirements that EPA indicates were added to address offshore hydraulic fracturing operations, including increases in the monitoring requirements associated with produced water discharges and new inventory and reporting requirements. (more…)


  5. Draft Clean Water Jurisdiction Rule Leaked

    Wednesday, November 13, 2013 4:02 pm by and


    Rule Could Have Significant Impact on Infrastructure, Energy and Land Development

    On September 18, we blogged about the pending release of a draft rule which would establish the scope of waters subject to the federal Clean Water Act – a rule which could have significant impacts on entities engaged in infrastructure or other land development activities, such as upstream and midstream oil and gas development, highway projects and real estate developers.  While still not yet formally proposed, a leaked version of the draft rule has surfaced, providing insight on what the US Environmental Protection Agency and Army Corps of Engineers’ proposed rule will eventually look like. (more…)


  6. FERC Delays EQR Filing Deadline

    Friday, October 11, 2013 1:39 pm by

    Yesterday, after many weeks of speculation, the Commission issued an order extending the filing deadline of the 2013 Q3 Electric Quarterly Reports (EQRs) filings from October 31 to “a date to be determined.”  This extension follows a series of similar delays and significant technical issues associated with the revised EQR filing requirements put in place by Order Nos. 768768-A, and 770.

    As part of the preparation for the new filing requirements, FERC had made available to the public an EQR Sandbox Electronic Test Site (Sandbox) that was meant to be a testing platform to help users acclimate to and prepare for the new filing requirements and system.  The Sandbox was made available on July 12 and was meant to be available until September 1.  Following the testing period, the Sandbox would be taken offline to prepare it to go live well in advance of the original October 31 filing deadline.   (more…)


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