July 8 2021
Your Source for Updated and Breaking Oil & Gas News For Members of the Kansas Independent Oil & Gas Association
KIOGA Members:

           Greetings!   KIOGA continues to stay engaged providing updates and resources for the Kansas oil and gas industry.

Lesser Prairie Chicken Update

The U.S. Fish and Wildlife Service (USFWS) is looking to expand federal protections of two distinct population segments of the lesser prairie-chicken (LPC). Officials announced that after completing a 12-month court ordered review, USFWS will seek to list the Southern Distinct Population Segment (DPS) of the LPC as endangered under the ESA and also believe the Northern DPS of the bird warrants protection as a threatened species with a rule issued under section 4(d) of the ESA. The northern segment includes Kansas. If both subspecies receive final protections as proposed, then the two DPSs of the lesser prairie-chicken will be added to the List of Endangered and Threatened Wildlife and be covered by protections from the ESA. 

The status of the LPC has long been a focus of environmental petitions and lawsuits, pursued the past 25 years by environmental advocacy organizations, with heightened legal activity experienced over the past decade. Notably, in 2014, the USFWS issued a final rule listing the LPC as a threatened species under the ESA (79 FR 19973) and concurrently published a final 4(d) rule for the bird (79 FR 20073). However, on September 1, 2015, this final listing rule for the LPC was vacated by the United States District Court for the Western District of Texas, which also mooted the final 4(d) rule. On July 20, 2016, the USFWS published in the Federal Register a final rule that removed the LPC from the List of Endangered and Threatened Wildlife in accordance with the court decision (81 FR 47047).

 KIOGA has long advocated that the best scientific and commercial information available demonstrates that the LPC does not meet the ESA’s definitions of either a threatened or endangered species. KIOGA President Edward Cross met with U.S. Department of Interior (DOI) following the filing of activists’ lawsuit and told DOI that the LPC has rebounded from historic lows, and through a combination of public and private efforts, the LPC is now better protected than at any previous time. A listing a threatened or endangered will not provide any additional conservation benefits above what already exists.

USFWS is accepting public comments until August 2, 2021, regarding the proposed rule to list two DPSs of the LPC. KIOGA is preparing and will be submitting comprehensive comments. Comments may be submitted electronically using the Federal eRulemaking Portal, available at www.regulations.gov, and referencing docket number FWS-R2-ES-2021-0015. 

The USFWS is also holding virtual public hearings this summer to gather public comments on the listing proposal. The next virtual public informational session is scheduled for July 14, 2021, from 5:00 p.m. to 6:00 p.m. Central Time, followed by a public hearing scheduled 6:30 p.m. to 8:30 p.m. To register for this hearing, visit: https://bit.ly/2TWv3m3. Other information concerning proposed action for the lesser prairie-chicken may be found at: https://www.fws.gov/southwest/es/LPC.html.

U.S. Department of Interior Takes Steps to Revoke Final Rule on Migratory Bird Treaty Act Incidental Take - The U.S. Fish & Wildlife Service (USFWS) has also announced a proposed rule to revoke the January 7, 2021 final regulation that limited the scope of the Migratory Bird Treaty Act (MBTA). USFWS said they intend to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion. 

           The Biden Administration’s plan to revoke the January 7th final rule on MBTA incidental take is disappointing. Repealing this provision will not have the desired outcome of additional conservation but will, in fact, financially harm businesses who have an incidental take through no fault of their own. This is not a case of punishing ‘bad actors’ but rather a situation where companies are set up for failure.

Update on EPA Oil & Gas Methane Proposal

In mid-June, the U.S. Environmental Protection Agency (EPA) held listening sessions to gather input for a proposed new rule to regulate methane from new and existing sources in the oil and natural gas industry.

The EPA actions are in response to President Biden’s Executive order 13990. Executive order 13990 called on EPA to consider issuing a proposed rule by September 2021 to strengthen standards for methane emissions from new, reconstructed, and modified oil and natural gas sources and to address methane emissions from existing sources. However, the U.S. Senate’s use of the CRA to rescind the Trump rule significantly complicates the EPA’s effort to issue a new methane rule in September 2021. The CRA requires that any new replacement regulation that would be passed cannot be “substantially similar” to the one already repealed under the CRA without explicit Congressional approval. A new strictly “methane” rule would not pass that test. 

The EPA’s listening sessions were held June 15th-17th. The EPA heard from a multitude of concerned citizens. Former KIOGA Chairman Nick Powell provided comments on June 16th, and KIOGA President Edward Cross provided comments on June 17th. Other oil and gas producers and groups from across the nation also made comments along with environmental activists and others. In general, industry comments focused on cost of compliance issues and the need for the EPA to recognize the low production well emission profile. 

EPA has also established a Small Business Advocacy Review (SBAR) Panel to review oil and natural gas New Source Performance Standards (NSPS). KIOGA President Edward Cross was invited to participate as a “Small Entity Representative” (SER) on the SBAR and met with EPA in a Zoom meeting on June 29th and again on July 6th.

KIOGA’s comments to the EPA during the listening session and SBAR meeting emphasized the Kansas oil and gas industry’s recognition of the importance of environmentally sound, cost-effective regulations to manage methane emissions. KIOGA encouraged EPA to find a regulatory pathway designed for the sources it regulates. Big new oil and natural gas wells and low producing older wells have differing emission profiles. KIOGA told the EPA that any regulatory actions should recognize the differences between these existing small operations and newly built large facilities.     

The EPA is accepting written comments on the proposal through July 30th. KIOGA will be submitting comprehensive written comments during the public comment period.

EPA Announces Intent to Revise Waters of the U.S. (WOTUS) Rule – In June, the EPA announced their intent to revise the definition of Waters of the United States (WOTUS). The Department of Justice is filing a motion to remand the rule. EPA stated their intent to initiate a new rulemaking process that restores the regulations in place prior to the 2015 WOTUS. Further details of the EPA’s plans, including opportunity for public participation, will be conveyed in a forthcoming action.