Regulatory Accomplishments Under the Trump Administration

Article By: J. Roger Kelley, Director of Regulatory Affairs, Continental Resources, Inc.


Department of the Interior

1. Permanent Instruction Memorandum No. 2018-010 Clarified and strengthened the categorical exclusions (CATX) for NEPA, for energy development.

2. Secretarial Order 3355 Set guidelines for NEPA review that limited the size and scope of environmental impact review to facilitate reviews for “infrastructure projects.”

3. Proposed rule to streamline and modify gas waste management rule (venting and flaring) to better fit the responsibilities of the DOI and to enhance energy production and revenue from federal reserves. This proposed rule was passed and became law on September 18th.

4. Instruction Memorandum (IM) No. 2018-014 Set new guidelines for drilling of federal minerals on private surface to remove roadblocks that delayed mineral production and revenue and negatively impacted private landowners while maintaining the environmental integrity of the drilling operation. There is currently no requirement for federal permit to build surface location – DEPA plans to pursue legislative action to codify this IM.

5. Secretarial Order 3348 Overturns the 2016 moratorium on all new coal leases on federal land and ends the programmatic environmental impacts statement that was set to be completed no sooner than 2019.

6. Secretarial Order 3368 Promotes transparency and accountability in consent decrees and settlements entered on behalf of the DOI.

7. Instruction Memorandum No. 2018-034 Sets out the policy of the Bureau of Land Management (BLM) to simplify and streamline the leasing process to alleviate unnecessary impediments and burdens, to expedite the offering of lands for lease, and to ensure quarterly oil and gas lease sales are consistently held in accordance with the Mineral Leasing Act (30 U.S.C. § 226).

8. Proposed rules implement the Endangered Species Act (ESA) that change the recovery process for listed species, distinguishes the protection for threatened and endangered species and modernizes the definition of critical habitat, all to make the ESA more effective for the species and eliminate abuse of the ESA to block energy and commercial development for political purposes. This is still under review – DEPA has submitted comments in support of these rules.

9. Opinion by the solicitor of the DOI that defined “take” under the Migratory Bird Treaty Act of 1918 to exclude unintentional taking or killing of migratory birds. The DOI is currently recommending a rule reflecting this opinion.

10. USFWS is amending the Resource Management Plans for the Sage Grouse Conservation to allow for more efficient coordination of habitat preservation and energy development.

11. USFWS withdrew two overreaching mitigation policies that required net conservation gain and replaced them with the previous policies.

National Forest Service

1. Proposed rule to allow for greater cooperation between NFS and DOI on the development of federal minerals on NFS surface – DEPA submitted comments recommending that this permitting function be delegated to the BLM, whose business it is to permit federal minerals on memorandum of understanding. DEPA will follow in 2019 with legislative action.

Environmental Protection Agency

1. Proposed revision of Quad Oa or “Methane Rule” to reduce financial burden of the rule while preserving the effectiveness of the rule and at the same time maintaining the quality of the environment. EPA is expected to propose a rule by the end of 2018 that will remove methane – This rule is out for public comment and DEPA is preparing comments.

2. Replacing the punitive EPA National Enforcement Initiative with a program of cooperative compliance in order to reduce the impact on productivity in all sectors while achieving a greater level of compliance and even better environmental quality.

3. WOTUS –
a. EPA rulemaking action on repeal of 2015 rule
b. EPA rulemaking action on recodification of the pre-2015 rule and the 2008 guidance
c. Proposed WOTUS rule is expected to align with Scalia, limiting federal jurisdiction. This is anticipated late 2018

4. Initiated EPA Produced Water Study – The focus of the Agency’s study will be to engage with states, tribes and stakeholders to consider available approaches to manage wastewater from both conventional and unconventional oil and gas extraction at onshore facilities.

5. Environmental Protection Agency’s Request for Comments on Clean Water Act (“CWA”) Coverage of “Discharges of Pollutants” via a Direct Hydrologic Connection to Surface Water. EPA is currently reviewing comments received on this issue, and the scope of the NPDES permitting program.

Council on Environmental Quality

1. CEQ has enacted revisions on NEPA regulations to modernize the program and enhance cooperation between energy development and environmental conservation.

• Rollback of the Federal Flood Risk Management Standard – The Executive Order that overturned the FFRMS which, for the first time, would have allowed “best available climate change” modeling to be used for regulatory floodplain management.
• Approved Keystone XL and Dakota Access pipelines.