American Oil and Gas Reporter - March 2018 - 32

Agencies Halt Water Rule, States Sue
WASHINGTON-Responding to the
U.S. Supreme Court's determination that
legal challenges to the Obama administration's attempt to redefine "waters of
the United States" (WOTUS) for purposes
of Clean Water Act jurisdiction must be
filed in federal district courts, the Trump
administration on Feb. 6 published a final
rule to delay the regulation's application
until Feb. 6, 2020.
Almost immediately thereafter, a coalition of 10 states and the District of Columbia sued the government to vacate
the postponement on claims that it violated
the Administrative Procedure Act (APA).
According to the Environmental Protection Agency, which issued the 2015
Clean Water Rule (CWR) with the U.S.
Department of the Army, the agencies
postponed the regulation "in response to
judicial actions that could result in confusion." It goes on to note that the agencies
plan to use the intervening two years to
reconsider the 2015 rule.
Much of that uncertainty stemmed
from the presumptive end of a nationwide
stay to freeze implementation of the
CWR-which had an effective date of Aug.
28, 2015-that was issued in October 2015
by the U.S. Court of Appeals for the 6th
Circuit (AOGR, November 2015, pg. 34).
Since the Supreme Court ruled in January in National Association of Manufacturers v. Department of Defense, et
al. that appeals courts lacked original jurisdiction to review WOTUS challenges,
the CWR appeared to be slated for implementation in some states and halted
in the 13 others for which a federal
district court already had issued a stay
(AOGR, February 2018, pg. 17).
States' Suit
Opponents of the CWR-including representatives of the oil and gas, agriculture
and manufacturing industries-assert that
it threatens to expand significantly the
volume of land subject to federal oversight
and permitting. The CWR took shape in
2011 during the Obama administration,
when EPA and the U.S. Army Corps of
Engineers "proposed new guidance that
expanded significantly the reach of the
CWA, including over vernal pools, prairie
potholes, natural ponds and playa lakes,"
recalls the Mountain States Legal Foundation. "In response, MSLF and many
others demanded a rule making. The
agencies agreed and began a rule making
in 2014, which was completed in 2015."
According to EPA, the final rule it issued in February to delay WOTUS im32 THE AMERICAN OIL & GAS REPORTER

plementation is separate from a two-step
process the agencies are taking to reconsider the CWR under a February 2017
executive order issued by President Trump.
The first step of that process entailed a
public comment period on a proposal to
rescind the CWR-which closed in September 2017-and ensuing review. The
second step entails revising the WOTUS
definition.
The lack of a sufficient period for
public comment before agencies issued
the Feb. 6 suspension rule is a basis for
the lawsuit New York Attorney General
Eric Schneiderman filed in the U.S. District
Court for the Southern District of New
York. Joining the suit are California, Connecticut, Maryland, New Jersey, Oregon,
Rhode Island, Vermont, Washington, Massachusetts and the District of Columbia.
The suit also questions the agencies'
authority to temporarily suspend the rule
as a way to prevent inconsistencies, uncertainty and confusion about the regulatory regime following NAM, and also
takes issue with whether those factors

meet the statutory requirement that allows
a rule making to take effect sooner than
30 days after publication only in the
event of "good cause."
Moreover, the states' lawsuit alleges,
the agencies "did not include a substantive
analysis of the objectives of the CWA,
the law and facts justifying the CWR,
the merits of the 1980s regulations, or
the potential environmental and public
health effects and foregone benefits of
repealing the CWR for two years." The
proposal also "ignored or countermanded
key factual and scientific findings reached
by the agencies when they promulgated
the CWR without any explanation for
doing so," the litigation claims.
"The specific language and justification for the final rule delaying implementation of the CWR has sparked
debate among legal scholars on whether
it will hold up in court," write Babst
Calland attorneys Lisa M. Bruderly and
Gary E. Steinbauer in the Pennsylvania
SEE WATER PAGE 84

State Legislative Report

Permian Basin Growth Fuels
State Of New Mexico Budget
SANTA FE, N.M.-The 2018 session
of the New Mexico Legislature had relatively little impact on the oil and gas industry, but the industry had a huge impact
on the legislative session, say industry
spokesmen.
"Because of the surge in revenues
from the huge growth in the Permian
Basin in southeastern New Mexico, legislators had more money to work with
and to make tough decisions easier,"
attests Robert McEntyre, director of communications for the New Mexico Oil &
Gas Association.
"It was a session where a lot of legislative spending priorities were able to be
met, and that is a testament to why this
state needs a strong oil and gas industry,"
McEntyre adds in noting that lawmakers
this year were able to pass a $6.3 billion
fiscal 2019 budget, compared with the
$6.0 billion appropriated for FY 2018.
He says the budget bill "was a huge
part" of the short 30-day session, which
ended Feb. 15. Pointing out the role played
by oil and gas, which provide a third of
New Mexico general fund revenues, is
the message NMOGA wants to deliver.

"We crawled through some very tough
budget issues the past two fiscal years
and had to make some tough decisions,"
McEntyre reflects. "People have been
laid off and budgets trimmed. Schools
have gone without increases and teachers
haven't gotten pay raises.
"A lot of folks drop off their kids at
schools and drive on the roads, but they
don't make the connection to how the
revenue this industry generates funds
those schools and builds roads and infrastructure," he goes on. "So a priority
for us is communicating the role this
industry plays in the daily lives of all
New Mexicans, regardless of where
they live."
Carlsbad Brine Well
NMOGA's top legislative priority this
year, McEntyre says, was helping negotiate
a solution to a brine cavern on the south
side of Carlsbad, N.M., that officials fear
may collapse within the next few years.
The New Mexico Oil Conservation Division commissioned a study of brine well
operations permitted in the 1980s after
two brine caverns in the state collapsed



American Oil and Gas Reporter - March 2018

Table of Contents for the Digital Edition of American Oil and Gas Reporter - March 2018

Contents
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American Oil and Gas Reporter - March 2018 - Contents
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