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Why it Matters
Following the Deepwater Horizon explosion and oil spill, the Department of the Interior (DOI) underwent a significant reorganization and issued rules and guidance to fill regulatory gaps in emergency response and operational oversight (for more on these changes, see our post on the 10 year anniversary here). President Obama also removed certain areas of the outer continental shelf from oil and gas development. (The outer continental shelf or OCS consists of “all submerged lands lying seaward of state coastal waters…under U.S. jurisdiction.”) Rolling back these rules and designations increases risks to offshore oil worker safety and, the non-oil and gas related economic value of oceans and coastal areas, and the ecological well-being of those areas.
Offshore oil and gas development requires conducting geological and geophysical surveys to understand the location and extent of deposits and the geological formations around them. This includes seismic airgun surveys that can have acoustic impacts on marine species. The Obama administration issued guidance on acoustic thresholds for underwater activity to lessen the impact of offshore development on marine mammals. After removing areas of the OCS from oil and gas development, the administration denied applications to conduct airgun seismic surveys in those areas, deciding they were unnecessary if the areas were not leased for development. The Trump administration’s efforts to expand leasing have included revisions to technical guidance and efforts to move forward with seismic surveys in anticipation of expanded leasing and drilling activity.
Click here to view our page on the EO 13795: Implementing an America-First Offshore Energy Strategy and the other changes that have followed the EO. For more information on the reforms that followed the Deepwater Horizon disaster, view our 10-year anniversary post here.
During the Trump administration five geological and geophysical permit applications received authorization from NOAA and were being processed by BOEM. Environmental groups sued NOAA for its approval of these incidental take authorizations. NOAA/NMFS authorizations will expire in Nov. 2020 and cannot be extended. On Oct. 6, 2020 the federal district court of South Carolina dismissed the case challenging NOAA’s approvals as moot. BOEM never issued the final permits and the companies would need to get new approvals from NOAA in order for BOEM to move forward with their permits. NOAA has also issued an incidental take authorization to Hilcorp Alaska for operations in the Beaufort Sea, this is also expected to be challenged by environmental organizations.
When President Biden took office on Jan. 20, 2021 he signed EO 13990 that revoked Trump’s EO 13795 and directed all agencies to review and consider revising rules issued and other agency action taken during the Trump administration. President Biden’s EO 14008, signed on Jan. 27, 2021, orders a review of the permitting and leasing practices for offshore oil and gas and pauses all new leasing during this time.
July 2016 Department of Commerce (“Commerce”) / National Oceanic and Atmospheric Administration (NOAA) / National Marine Fisheries Service (NMFS) finalize guidance on acoustic thresholds for underwater activity, to lessen the impact of offshore development on marine mammals.
Jan. 6, 2017 BOEM denies six pending geophysical and geological permit applications to conduct airgun seismic surveys in the Mid- and South Atlantic because President Obama removed the waters from leasing consideration.
April 28, 2017 President Trump signs Executive Order 13795 to “encourage energy exploration and production” on the OCS. The Order directs Interior and Commerce to take steps to expedite all stages of consideration of Incidental Take Authorization requests (Incidental Harassment Authorizations, Letters of Authorization, and Seismic Survey permit applications) under the Outer Continental Shelf Lands Act and the Marine Mammal Protection Act. It also directs NOAA to reconsider the July 2016 technical guidance on acoustic thresholds.
May 1, 2017 DOI Secretary Zinke issues Secretarial Order 3350 to direct BOEM and BSEE as to how to implement the president’s Executive Order. Among other directives, Zinke directed BOEM to:
- Establish a plan to expedite consideration of Incidental Take Authorization requests needed for seismic survey permits and other OCS activities
- Streamline permitting for privately funded seismic data research and collection.
- Expedite consideration of appealed, new, or resubmitted seismic permitting applications for the Atlantic.
May 10, 2017 BOEM announces it will move forward with the six geological and geophysical permits for seismic airgun surveys in the Atlantic Ocean, reversing BOEM’s Jan. 6, 2017 denial of these permits.
Aug. 8, 2017 BOEM publishes a Final Programmatic Environmental Impact Statement for geophysical & geological survey activities in the Gulf of Mexico.
May 10, 2018 BOEM announces it will resume evaluation of applications from six companies seeking geological and geophysical permits to conduct seismic airgun surveys in the Atlantic Ocean, asking the Interior Board of Land Appeals to remand the companies’ appeals of January 2017 permit denials made under the prior administration.
June 21, 2018 NOAA Fisheries (NMFS) publishes in the Federal Register an April 2018 Revision (NOAA Technical Memorandum NMFS-OPR-59) to its July 2016 Technical Guidance on the effects of anthropogenic sound on marine mammals and the acoustic thresholds for underwater activity. While NOAA Fisheries did not adjust the threshold levels from the 2016 document, it did revise the guidance to address implementation concerns. The agency said the comment and review process “affirmed that the Technical Guidance is based on upon [sic] the best available science.” The document is guidance for assessing the effects of underwater human-made sound on the hearing of marine mammal species, such as from seismic testing.
June 22, 2018 NOAA Fisheries (NMFS) publishes a proposed rule to regulate authorization of incidental takings due to geophysical survey activities in the Gulf of Mexico. The rule would establish a framework under the Marine Mammal Protection Act allowing for authorization, through Letters of Authorization, of take of marine mammals incidental to the conduct of geophysical surveys (including seismic airgun surveys) for oil and gas activities in the Gulf of Mexico. The comment period ends Aug. 21, 2018.
Nov. 30, 2018 NOAA announced five final incidental take authorizations under the Marine Mammal Protection Act for companies planning to conduct geophysical surveys using airgun arrays (sometimes referred to as seismic surveys) in the Atlantic Ocean. The authorizations allow them “to incidentally, but not intentionally, harass marine mammals to companies proposing to conduct geophysical surveys in support of hydrocarbon exploration in the Atlantic Ocean.” The next phase of this permitting decision moves to BOEM, which will complete an environmental review before granting or denying the survey applications.
Dec. 11, 2018 Environmental organizations sue NOAA Fisheries (NMFS) challenging the five incidental take authorizations issued in November 2018. South Carolina Coastal Conservation League v. Ross 2:18-cv-03326 (D.S.C. Dec 11, 2018).
April 29, 2019 BOEM states that it is continuing to process the five geological and geophysical permit applications for seismic surveys in the Atlantic that received authorization from NOAA in November 2018. The agency is moving forward despite its draft proposed 5-year leasing program being held up in court, raising questions about whether such surveys are necessary.
May 29, 2019 NOAA Fisheries published a proposal to authorize Hilcorp Alaska to “take marine mammals incidental to construction and operation of the Liberty Drilling and Production Island (LDPI), over the course of five years” for operations in the Beaufort Sea off the coast of Alaska. Comments on the proposed authorization are open until June 28, 2019. This proposed incidental take authorization is related to a conditional approval to drill BOEM issued for a project the Beaufort Sea in October.
Jan. 31, 2020 Environmental organization issue a 60-day notice that they intend to sue NOAA Fisheries over its incidental authorizations for Hilcorp Alaska in the Beaufort Sea.
Oct. 6, 2020 The federal district court in South Carolina dismisses the case challenging NOAA Fisheries’ five approved incidental take authorizations as moot after the government acknowledged that these authorizations are expiring in November and the companies would need to apply for new authorizations if they wanted to proceed. The court also noted that it “is aware of no practical purpose for seismic testing on the Outer Continental Shelf other than as a prelude to offshore oil exploration and development.” The companies still needed final permits from BOEM to begin seismic surveys, the final step after having received their NOAA authorizations that never came. South Carolina Coastal Conservation League v. Ross 2:18-cv-03326 (D.S.C. Dec 11, 2018).
Early Biden Actions
Jan. 20, 2021 President Biden signs EO 13990 that revokes Trump’s EO 13795 and directs all agencies to review and consider revising rules issued and agency actions taken during the Trump administration. The White House also orders a freeze on all new regulations while this review is conducted.
Jan. 27, 2021 President Biden’s EO 14008 orders a review of the permitting and leasing practices for offshore oil and gas and pauses all new leasing during this time.