Energy & Resources Notes – Fall 2015

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  • The Clean Water Rule: Troubled Waters Ahead for the EPA and Corps
    Two federal courts have preliminarily halted the enforceability of the “Clean Water Rule” promulgated jointly by the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) to define anew “waters of the United States,” the jurisdictional lynchpin under the Clean Water Act. On August 27, 2015, the United States District Court for the District of North Dakota enjoined enforcement of the Clean Water Rule in at least the 13 States that are parties to the lawsuit, including New Mexico. The Sixth Circuit Court of Appeals, on October 9, 2015, stayed the effectiveness of the Clean Water Rule nationwide, pending its analysis of whether it has jurisdiction over the claims raised by 18 states in four consolidated actions. Continue Reading.
  • BLM’s Controversial Hydraulic Fracturing Rule is Postponed Nationwide
    The Spring 2015 issue of Energy Resources Notes reported on the Bureau of Land Management’s (BLM’s) adoption of a controversial final rule addressing hydraulic fracturing (HF) operations and related water handling, well casing, chemical reporting and monitoring requirements for federal and Indian lands. A day before the rule was to become effective, however, a group of tribal, state and industry interests successfully challenged the rule in the Federal District Court for the District of Wyoming, convincing the court to stay the rule’s application nationwide. Continue Reading.
  • EPA Assesses Potential for Hydraulic Fracturing to Impact Drinking Water Sources
    The Environmental Protection Agency (“EPA”) recently released a draft assessment analyzing the potential impacts of hydraulic fracturing (“fracking”) on drinking water resources (both on quality and quantity) for public comment and peer review. The draft assessment finds that fracking causes no widespread, systematic impacts on drinking water. The draft assessment notes that the findings do not mean that water contamination cannot happen, and clarifies that contamination was reported in a small portion of cases the EPA reviewed. The assessment indicates that the potential for contamination needs to be determined on a local level and not on a national level because the probability for contamination is regionally specific.  Continue Reading.
  • BLM’s Mancos Shale APD Approvals Survive Preliminary Injunction Motion Brought Within a NEPA Challenge
    The United States District Court in New Mexico has upheld decisions by the Bureau of Land Management (BLM) approving hundreds of applications for permit (APDs) to drill into the Mancos Shale formation in the San Juan Basin, which contains one million acres of public land and three million acres of federal minerals. See Dine Citizens Against Ruining the Environment, et al. v. Jewell, et al., No. CIV 15-0209 JB/SCY (D.N.M. August 14, 2015).. The area overlying the Mancos Shale formation is culturally important for various tribes in northern New Mexico.  Continue Reading.
  • Overview of the Twelve Objectives in New Mexico’s New Energy Plan
    New Mexico Governor Susana Martinez unveiled the state’s New Energy Plan (“Plan”) on September 14, 2015. The Plan, entitled “Seizing our Energy Potential: Creating a More Diverse Economy in New Mexico,” focuses on an “all of the above” approach to promote job creation and to encourage energy development in the state. The Plan focuses on industries that the Martinez administration believes New Mexico is best suited to pursue, develop and promote. The Plan supports expanding markets for the coal and natural gas industries, clarifying tax credits for all energy producers, streamlining and simplifying the regulatory process for permitting, and promoting infrastructure development to help transport oil, gas and electricity in and out of New Mexico. For the first time, water policy is included in the Plan, emphasizing the need to consider water use, and New Mexico’s water supply, when planning energy development and generation projects in the state. Continue Reading.
  • Seismic Operations Held Subject to Notice and Negotiation Requirements of Surface Owners Protection Act
    In a July 28, 2015 opinion, the New Mexico Court of Appeals (Court of Appeals) determined that geophysical seismic operations constitute “oil and gas operations” under NMSA 1978, § 70-12-5(A) of the Surface Owners Protection Act (SOPA), thereby subjecting an operator to strict liability for damages caused by its operations under the SOPA. The SOPA requires advance notice of oil and gas operations, negotiation of a surface use agreement, and payment of compensation for any damages sustained by the surface owner. The SOPA differentiates between “activities which do not disturb the surface,” which require 5 days advance notice of the activities and “oil and gas operations,” which are subject to 30 days’ notice as well as the negotiation of a surface use agreement.  Continue Reading.
  • Federal District Court Sets Aside Fish and Wildlife Service’s 30-Year Take Permit Rule Under Bald and Golden Eagle Act
    On August 11, 2015, a federal district court judge in the United States District Court for the Northern District of California vacated the United States Fish and Wildlife Service’s (FWS) rule authorizing 30-year take permits under the Bald and Golden Eagle Protection Act (BGEPA). The court held that the FWS violated the National Environmental Policy Act (NEPA) by relying on a categorical exclusion rather than conducting a fuller NEPA review. The court’s decision may create uncertainty for wind developers who will, at least in the short-term, only be able to apply for and obtain 5-year take permits under the BGEPA. On October 9, 2015, the FWS filed a notice of intent to appeal the Ninth Circuit’s decision. Continue Reading.