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EPA’s new water jurisdiction: The political impacts

by Tim Charters, NSWA Vice President of Governmental & Regulatory Affairs

As the official representative of the National Stripper Well Association on Capitol Hill, the political and policy implications of the expanded Clean Water Act coverage scare me the most when looking at the new EPA Waters of the United States (WotUS) jurisdiction. It isn’t a great leap to think that the expanded coverage will result in increased reporting requirements that can be exploited by numerous anti-fossil fuel environmental groups and their lobbyists in the years to come as they use their newfound power to push for more restrictions, control and cost-levying from EPA onto the oil and gas industry.

It isn’t hard to imagine this new reporting requirement resulting in a dramatic (1000-fold?) increase in “oil spills” as reported to EPA. Regardless of the fact that every oil-to-land incident was previously reported to the states, now with EPA as the collector and aggregator of oil spills in the US, the statistics, and opportunities to exploit those statistics, for environmental groups will increase exponentially.

It isn’t hard to see anti-oil legislators pushing for a national permitting program with new fees for oil and gas projects to respond to the “explosion in oil spills,” or new EPA mandates for radical new spill containment requirements—even on the smallest, most marginally-productive project.

In addition to the new reporting requirements one of the areas the new permitting requirements open to legal exposure is the expansion of new individual permits, as opposed to projects being approved under the previous national permitting programs.

This individual permitting requirement will now expose applicants to an uptick in legal action by environmental groups by granting increased litigation power. Environmental groups can sue the agency over decisions, not with the goal of stopping projects (although that is certainly their goal); but with a more concerted strategy to drive up costs for both the applicant and the agency, thereby slowing permitting and significantly increasing operational costs.

This is a strategy we have seen before in the operation of permitting of oil and gas on federal lands. Environmental groups establish legal offices to file challenges on every project. They use cookie-cutter lawsuits, drafted by legal students or recent graduates, overseen by an established environmental lawyer. The court costs are paid by the federal government through the Equal Access to Justice Act, and the next lawsuit is funded by collections from the last. Agencies, overburdened by the lawsuits, accept settlements quickly rather than fight it out in court, resulting in project delays and increased costs for the fossil fuel industry, more court fees and payments to the environmental groups, and fewer oil and gas operations in America. For the environmental groups, this isn’t just a win-win, it has been a successful business model, and will continue to be for years to come.

Download the NSWA's explanatory document on the new Waters of the United States rule.