On July 28, 2015, the National Wildlife Federation (“NWF”) filed an intent to sue notice against the Department of Transportation (“DOT”), arguing the DOT has not properly approved pipeline projects for more than 20 years.

The legal action carries nationwide implications: Every U.S. oil pipeline that intersects a navigable water may soon be subject to additional regulations.

Specifically, NWF contends that DOT has failed to issue regulations under section 311(j) of the Clean Water Act (“CWA”), requiring an owner or operator of a pipeline to prepare and submit a facility response plan (“FRP”) detailing response actions to be taken in the event of a worst-case discharge of oil or hazardous substances into waters of the United States.

Pursuant to Executive Order 12777, the Secretaries of Transportation and the Interior were delegated the responsibility of reviewing and approving FRPs for all onshore and offshore facilities respectively. Subsequently, in a Memorandum of Understanding among the U.S. Environmental Protection Agency and the Departments of the Interior and Transportation, which became effective on February 3, 1994, the Department of the Interior re-delegated to DOT the “responsibility for transportation-related facilities, including pipelines, landward of the coast line.” (40 C.F.R. Pt. 112, App. B.)

Currently, FRPs for offshore facilities seaward of the coastline are reviewed and approved by U.S. Department of Interior, Bureau of Safety and Environmental Enforcement. (58 Fed. Reg. 7489-90.) DOT through the Pipeline and Hazardous Material Safety Administration (“PHMSA”) requires FRPs for all onshore facilities. (49 C.F.R. Part 194.) However, DOT has not authorized PHMSA to review or approve FRPs for offshore pipelines landward of the coastline. Thus, creating a gap in the federal regulatory requirements associated with FRPs.

NWF has threatened to sue DOT within sixty days if it does not issue new regulations requiring FRPs for all oil pipelines that cross navigable water landward of the coastline. We will continue to monitor the situation and provide updates as the situation evolves.