American Oil and Gas Reporter - June 2023 - 16

IndustryDigest
Federal WOTUS Rule
Dissolved By Court
WASHINGTON-Oil and natural
gas groups are among those applauding
the U.S. Supreme Court's late May
ruling in Sackett v. EPA, which limits
federal jurisdiction for purposes of
Clean Water Act regulation.
The Kansas Independent Oil & Gas
Association says the decision denounces
the Waters of the United States
(WOTUS) rule promulgated by the U.S.
Environmental Protection Agency and
U.S. Army Corps of Engineers under the
Biden Administration. According to the
association, the new WOTUS rule
sought to increase the federal agencies'
administrative power by expanding their
jurisdiction beyond Congressionally
delegated limits.
" By design, Congress expressly
limited their jurisdiction to 'navigable
waters,' " KIOGA observes. " Ignoring
Congress's direction, the EPA's
WOTUS rule sought to subject land
with isolated wetlands, ephemeral
streams and off-channel reservoirs to an
expansive and burdensome federal
permitting process. "
The Texas Alliance of Energy
Producers concurs that the ruling
criticizes federal overreach. " While the
law references 'navigable waters,'
conflicting agency guidance and
confusion in the courts led to new
regulations aimed at clarifying the
scope of the law, " the group says.
" During the Obama and Biden
administrations, the EPA exploited that
confusion to significantly expand the
reach of the federal law. "
According to the Permian Basin
Petroleum Association, the ruling finds
that the CWA only allows federal
authorities to regulate discharges into
wetlands if those wetlands are
" indistinguishable " from true " waters of
the United States. " Although the justices
unanimously rejected the rule, PBPA
notes, the justices' underlying
reasonings diverged, with Justice
Samuel Alito's majority opinion holding
that a federal agency asserting
jurisdiction over wetlands covered by
the CWA must pass a two-part test to
establish that:
· The adjacent body of water
constitutes waters of the United States,
such as a relatively permanent body of
water connected to traditional interstate
navigable waters; and,
16 THE AMERICAN OIL & GAS REPORTER
· The wetland has a continuous
surface connection with that water of
the United States, making it difficult to
determine where the 'water' ends and
the 'wetland' begins.
PBPA says the majority opinion
emphasizes that the CWA primarily
covers streams, oceans, rivers and lakes
and that efforts to underplay the
statute's explicit mention of navigable
waters ignores statutory intent.
U.S. Senator Charles Grassley, R-Ia., is
one of many in Washington applauding
the high court's decision. " If the EPA had
its way, nearly 97% of land in Iowa would
be subject to onerous federal red tape, " he
considers. " You would have to get
permission from Uncle Sam before
moving dirt on your own land under this
administration's WOTUS regulations.
Farmers could have faced steep fines if
water pooled in a ditch after a rainstorm
because of the EPA's far-reaching rules.
Thankfully, the Supreme Court saw
through this federal overreach and
unanimously determined that it violated
the CWA. After years of uncertainty,
today's decision is a victory for farmers,
builders, landowners and common sense. "
Ultimately, suggests National
Review's Andrew McCarthy, the Sackett
decision continues the court's recent
tendency to stop federal authorities
from using statutory ambiguity to
enshrine their preferences into law.
" Importantly, the court is not saying that
such standards may not be imposed (as
long as they don't violate the
constitution), " he writes. " The justices
are saying that, if such standards are to
be imposed, they have to be enacted by
Congress and they have to satisfy the
due process standard of definiteness-
the average person has to understand
what has been banned. Sackett
continues this trend. " ❒
Mountain Valley Pipeline
Secures Key Approval
WASHINGTON-Equitrans
Midstream Corp.'s Mountain Valley
Pipeline cleared a big hurdle in midMay
when the U.S. Forest Service
approved a permit for the project to pass
through the Jefferson National Forest.
Anti-development groups such as the
Natural Resources Defense Council
have opposed the project and are
lambasting federal regulators' approval.
NRDC notes that construction on the
project has been on hold since a court
voided federal permits, and that it
requires further permitting by the U.S.
Army Corps of Engineers.
" This would allow construction on
very steep slopes through a pristine
forest, creating significant safety risks,
not to mention the sedimentation,
hydrology and wildlife impacts it is sure
to bring, " maintains NRDC
representative Amy Mall.
In contrast, U.S. Senator Joe
Manchin, D-W.V., is among those
applauding progress for what he deems
a crucial piece of energy infrastructure.
" The Forest Service has now
reviewed and signed-off on this project
three separate times, which should
provide confidence for everyone,
including the courts, that the review has
been exceptionally thorough, " he says.
" While I am pleased with the
announcement from the Forest Service,
the job isn't done yet, and I will keep
pushing the administration and all
involved to finally complete the last 20
miles of this vital pipeline. "
Last month, after the U.S. Court of
Appeals for the Fourth Circuit vacated
the West Virginia Department of
Environmental Protection's Clean Water
Act certification for the project,
Manchin noted that 283 miles of the
303.5-mile, 2 billion cubic feet a day
project-which connects West Virginia
production with East Coast natural gas
markets-is already complete (AOGR,
May 2022, pg. 17). ❒
Federal Lease Sale
Nets Almost $80 Million
SANTA FE, N.M.-The U.S.
Bureau of Land Management New
Mexico State Office conducted the first
federal lease sale in nearly a year on
May 25, offering 45 parcels totaling
10,123 acres within Cheyenne County,
Ks., and New Mexico's Eddy, Lea and
Chaves counties. According to BLM, 37
parcels adding up to 8,596.25 acres sold
for a total of $78.84 million.
According to BLM, the lease sale
included updated fiscal provisions
authorized by Congress in HR 5376,
" The Inflation Reduction Act, " which
prohibits BLM from issuing an
authorization for renewable energy
development on public lands unless an
oil and gas lease sale has been held
within the previous 120 days and
https://www.nxtbook.com/nxtbooks/aogr/202305/index.php#/p/17
American Oil and Gas Reporter - June 2023

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