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The Railroad Commission of Texas (RRC) has made known its commitment to expedited filings and approvals for the regulated community as well as public access to information and improved transparency for all parties. This effort is exemplified by the recently announced Pipeline Inspection, Permitting and Evaluation System (PIPES) program. https://www.rrc.texas.gov/announcements/071221-rrc-launches-pipes/ Organizations can now file reports, inspections, and other documents as well as pay fees online. Organizations can also upload documents for RRC review. In addition, PIPES provides public users access to publicly available RRC documents. As the online availability of reports and other documents expands, it becomes even more important for organizations to focus on timely accurate filings as well as an organization’s online public profile.…
Continue Reading RRC Announces PIPES which Allows Online Pipeline Safety Filings and Public Access

On May 7, the US Fish and Wildlife Service (USFWS or Service) under the new Biden administration published a proposed rule to revoke a final rule issued during the final weeks of the Trump administration, 86 Fed. Reg. 1134 (Jan. 7, 2021) (January 7 rule), which excluded incidental take from the prohibition against take under the Migratory Bird Treaty Act (MBTA or Act). 86 Fed. Reg. 24,573 (May 7, 2021) (Proposed Rule). This proposal is the latest development in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA, as we have reported in previous articles. If USFWS revokes the January 7 rule as proposed, the regulated community will once again face uncertainty regarding its exposure to criminal enforcement under the MBTA for unintentional take of protected birds associated with a wide range of productive activities.  Notably this could include the operation of wind turbines, an activity that the current administration otherwise presumably wants to encourage as part of its effort to expand the use of renewable energy to address climate change.
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Continue Reading USFWS Proposes to Reverse Course (Again) Regarding Incidental Take Under the Migratory Bird Treaty Act

As we previously reported, for the first time in over 25 years, the U.S. Environmental Protection Agency (EPA) has approved the formal transfer of Clean Water Act (CWA) section 404 permitting authority to a state.  On December 22, 2020, the State of Florida – only the third state to receive such approval – “assumed” 404 permitting authority from the U.S. Army Corps of Engineers (Corps) in certain waters of the United States (WOTUS).  Since that time, CWA section 404 permit applicants have faced a number of questions about the scope and process of assumed 404 permitting.  Five of the top questions are listed below, followed by their answers.
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Continue Reading Top 5 Frequently Asked Questions About Florida’s Assumption of Clean Water Act 404 Program

A discussion of the National Environmental Policy Act and related regulations and their implications for project development.

Under the National Environmental Policy Act (NEPA), federal agencies must determine if their proposed major federal actions (including permit authorizations for projects sponsored by private entities) will significantly affect the human environment and consider the environmental and related social and economic effects. This means that virtually any project that requires a federal permit or authorization may be required to undergo a NEPA review. Development of broadband infrastructure, roads, bridges, oil and gas pipelines, and renewable energy facilities are just a few examples of the types of activities that may trigger NEPA review.

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Continue Reading The Shifting NEPA Landscape and Implications for Project Development

On January 7, the US Fish and Wildlife Service (USFWS or Service) published a final rule providing that the scope of the prohibition of take under the Migratory Bird Treaty Act (MBTA or Act) applies “only to actions directed at migratory birds, their nests, or their eggs,” and does not prohibit incidental take (i.e., take that is not the purpose of an activity).  86 Fed. Reg. 1134 (January 7, 2021).  The rule, which lists an effective date of February 8, 2021, represents the latest in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA.  If it stands under the incoming administration, this rule will have important implications for the wind energy industry, among other sectors.…
Continue Reading USFWS Issues Rule Excluding Incidental Take from the Migratory Bird Treaty Act: Implications for the Wind Energy Industry

A December 2020 final rule defining “habitat” could have important consequences for future designations of lands and waters as “critical habitat” under the Endangered Species Act (ESA). Designation of critical habitat by the U.S. Fish and Wildlife Service or National Marine Fisheries Service (jointly, the “Services”) can affect projects that require federal agency permits or funding, because ESA section 7 requires federal agencies to ensure through consultation with the Services that their actions are not likely to adversely modify or destroy designated critical habitat.

On December 16, 2020, the Services adopted, for the first time, a regulatory definition of habitat, as follows:

For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.…
Continue Reading Federal Wildlife Agencies Issue Final Regulatory Definition of “Habitat”

Before yesterday only two states had received approval to administer the Clean Water Act (CWA) section 404 program (Michigan and New Jersey), and no state had received approval since 1994.  Now, for the first time in over 25 years, the U.S. Environmental Protection Agency (EPA) has approved the formal transfer of section 404 permitting authority to a third state: Florida.  Once EPA’s approval is published in the Federal Register, the Florida Department of Environmental Protection (FDEP) will “assume” 404 permitting authority from the U.S. Army Corps of Engineers (Corps) in certain waters, significantly altering the 404 permitting process in Florida.  EPA’s decision has broader implications for the 404 program on a national scale, as other states, including Oregon and Minnesota, consider whether to pursue assumption.
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Continue Reading Florida Receives EPA Approval to Assume Clean Water Act Section 404 Program

On November 9, 2020, EPA’s Office of Research and Development (ORD) released its long-awaited draft handbook that details the office’s process for developing chemical hazard assessments for its Integrated Risk Information System (IRIS) Program. The ORD Staff Handbook for Developing IRIS Assessments (IRIS Handbook) gives useful insight into ORD’s process to develop its IRIS assessments, which provide important toxicological information that federal and state environmental agencies consider when making regulatory and cleanup decisions under multiple statutory programs. EPA will accept comments on the draft handbook and charge questions until March 1, 2021.
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Continue Reading EPA Releases Long-Awaited IRIS Handbook, But has Anything Changed?

One of the most frequent terms heard in conjunction with President-Elect Biden’s energy and environmental agenda is “environmental justice,” which is often described as an overarching objective as well as a key component of the incoming administration’s climate agenda.  This post looks at how the Biden Administration may translate environmental justice principles into concrete executive actions, and how project proponents can prepare for increased focus on environmental justice in their permitting.
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Continue Reading Preparing for Increased Focus on Environmental Justice Issues in a Biden Administration

BSEE’s August 2020 update of its Notice to Lessees signals renewed interest in decommissioning of aging oil & gas platforms offshore of California. While so-called “rigs to reefs” in-place decommissioning is a potential option, uncertainty remains surrounding decommissioning methods and timing for platforms, pipelines and related infrastructure located in state and federal waters off the coast of California.…
Continue Reading BSEE Renews Offshore Platform Decommissioning Guidelines