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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-K
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x
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2022
or
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 |
For
the transition period
from to
Commission file number: 001-35666
Summit Midstream Partners, LP
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
910 Louisiana Street, Suite 4200
Houston, TX
(Address of principal executive offices)
45-5200503
(I.R.S. Employer
Identification No.)
77002
(Zip Code)
(832) 413-4770
(Registrant’s telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Securities
Act:
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Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
Common Units |
SMLP |
New York Stock Exchange |
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned
issuer, as defined in Rule 405 of the Securities
Act. o Yes
x No
Indicate by check mark if the registrant is not required to file
reports pursuant to Section 13 or 15(d) of the
Act. o Yes
x No
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days. x Yes o No
Indicate by check mark whether the registrant has submitted
electronically every Interactive Data File required to be submitted
pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter)
during the preceding 12 months (or for such shorter period that the
registrant was required to submit such files).x Yes o No
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule
12b-2 of the Exchange Act.
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Large accelerated filer |
o |
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Accelerated filer |
x |
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Non-accelerated filer |
o |
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Smaller reporting company |
x |
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Emerging growth company |
o |
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If
an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act. o
Indicate by check mark whether the registrant has filed a report on
and attestation to its management’s assessment of the effectiveness
of its internal control over financial reporting under Section
404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the
registered public accounting firm that prepared or issued its audit
report. ☒
If securities are registered pursuant to Section 12(b) of the Act,
indicate by check mark whether the financial statements of the
registrant included in the filing reflect the correction of an
error to previously issued financial statements.
o
Indicate by check mark whether any of those error corrections are
restatements that required a recovery analysis of incentive-based
compensation received by any of the registrant’s executive officers
during the relevant recovery period pursuant to
§ 240.10D-1(b).
o
Indicate by check mark whether the registrant is a shell company
(as defined in Rule 12b-2 of the
Act). ☐ Yes
x No
The aggregate market value of the common units held by
non-affiliates of the registrant as of June 30, 2022 was
$129,415,408.
Indicate the number of shares outstanding of each of the issuer’s
classes of common stock, as of the latest practicable
date:
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Class |
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As of February 24, 2023 |
Common Units |
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10,182,763 |
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant’s definitive proxy statement relating to
its 2023 Annual Meeting of Limited Partners, which will be filed
with the Securities and Exchange Commission within 120 days of
December 31, 2022, are incorporated by reference into Part III
of this Annual Report on Form 10-K where indicated.
TABLE OF CONTENTS
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Security Ownership of Certain Beneficial Owners and Management and
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
Investors are cautioned that certain statements contained in this
report as well as in periodic press releases and certain oral
statements made by our officers and employees during our
presentations are “forward-looking” statements. Forward-looking
statements include, without limitation, any statement that may
project, indicate or imply future results, events, performance or
achievements and may contain the words “expect,” “intend,” “plan,”
“anticipate,” “estimate,” “believe,” “will be,” “will continue,”
“will likely result,” and similar expressions, or future
conditional verbs such as “may,” “will,” “should,” “would,” and
“could.” In addition, any statement concerning future financial
performance (including future revenues, earnings or growth rates),
ongoing business strategies or prospects, and possible actions
taken by us or our subsidiaries are also forward-looking
statements. These forward-looking statements involve various risks
and uncertainties, including, but not limited to, those described
in Item 1A. Risk Factors included in this Annual Report on Form
10-K (this “Annual Report”).
Forward-looking statements are based on current expectations and
projections about future events and are inherently subject to a
variety of risks and uncertainties, many of which are beyond the
control of our management team. All forward-looking statements in
this report and subsequent written and oral forward-looking
statements attributable to us, or to persons acting on our behalf,
are expressly qualified in their entirety by the cautionary
statements in this paragraph. These risks and uncertainties
include, among others:
•our
decision whether to pay, or our ability to grow, our cash
distributions;
•fluctuations
in natural gas, NGLs and crude oil prices, including as a result of
political or economic measures taken by various countries or
OPEC;
•the
extent and success of our customers' drilling and completion
efforts, as well as the quantity of natural gas, crude oil, fresh
water deliveries, and produced water volumes produced within
proximity of our assets;
•the
current and potential future impact of the COVID-19 pandemic on our
business, results of operations, financial position or cash
flows;
•failure
or delays by our customers in achieving expected production in
their natural gas, crude oil and produced water
projects;
•competitive
conditions in our industry and their impact on our ability to
connect hydrocarbon supplies to our gathering and processing assets
or systems;
•actions
or inactions taken or nonperformance by third parties, including
suppliers, contractors, operators, processors, transporters and
customers, including the inability or failure of our shipper
customers to meet their financial obligations under our gathering
agreements and our ability to enforce the terms and conditions of
certain of our gathering agreements in the event of a bankruptcy of
one or more of our customers;
•our
ability to divest of certain of our assets to third parties on
attractive terms, which is subject to a number of factors,
including prevailing conditions and outlook in the natural gas, NGL
and crude oil industries and markets;
•the
ability to attract and retain key management
personnel;
•commercial
bank and capital market conditions and the potential impact of
changes or disruptions in the credit and/or capital
markets;
•changes
in the availability and cost of capital and the results of our
financing efforts, including availability of funds in the credit
and/or capital markets;
•restrictions
placed on us by the agreements governing our debt and preferred
equity instruments;
•the
availability, terms and cost of downstream transportation and
processing services;
•natural
disasters, accidents, weather-related delays, casualty losses and
other matters beyond our control;
•operational
risks and hazards inherent in the gathering, compression, treating
and/or processing of natural gas, crude oil and produced
water;
•our
ability to comply with the terms of the agreements comprising the
Global Settlement;
•weather
conditions and terrain in certain areas in which we
operate;
•physical
and financial risks associated with climate change;
•any
other issues that can result in deficiencies in the design,
installation or operation of our gathering, compression, treating,
processing and freshwater facilities;
•timely
receipt of necessary government approvals and permits, our ability
to control the costs of construction, including costs of materials,
labor and rights-of-way and other factors that may impact our
ability to complete projects within budget and on
schedule;
•our
ability to finance our obligations related to capital expenditures,
including through opportunistic asset divestitures or joint
ventures and the impact any such divestitures or joint ventures
could have on our results;
•the
effects of existing and future laws and governmental regulations,
including environmental, safety and climate change requirements and
federal, state and local restrictions or requirements applicable to
oil and/or gas drilling, production or transportation;
•changes
in tax status;
•the
effects of litigation;
•interest
rates;
•changes
in general economic conditions; and
•certain
factors discussed elsewhere in this report.
Developments in any of these areas could cause actual results to
differ materially from those anticipated or projected or cause a
significant reduction in the market price of our common units,
preferred units and senior notes.
The foregoing list of risks and uncertainties may not contain all
of the risks and uncertainties that could affect us. In addition,
in light of these risks and uncertainties, the matters referred to
in the forward-looking statements contained in this document may
not in fact occur. Accordingly, undue reliance should not be placed
on these statements. We undertake no obligation to publicly update
or revise any forward-looking statements as a result of new
information, future events or otherwise, except as otherwise
required by law.
Risk Factors Summary
This summary briefly lists the principal risks and uncertainties
facing our business, which are only a select portion of those
risks. A more complete discussion of those risks and uncertainties
is set forth in Part I, Item 1A of this Annual Report. Additional
risks not presently known to us or that we currently deem
immaterial may also affect us. If any of these risks occur, our
business, financial condition or results of operations could be
materially and adversely affected.
Our business is subject to the following principal risks and
uncertainties:
Risks Related to Our Operations
•We
may not have sufficient cash from operations following the
establishment of cash reserves and payment of fees and expenses to
enable us to pay distributions to holders of our preferred units
and common units.
•We
depend on a relatively small number of customers for a significant
portion of our revenues.
•We
are exposed to the creditworthiness and performance of our
customers, suppliers and contract counterparties and any material
nonpayment or nonperformance by one or more of these parties could
materially adversely affect our financial and operating
results.
•Adverse
developments in our areas of operation could materially adversely
impact our financial condition, results of operations, cash flows
and ability to make cash distributions to our
unitholders.
•Significant
prolonged weakness in natural gas, NGL and crude oil prices could
reduce throughput on our systems and materially adversely affect
our revenues and ability to make cash distributions to our
unitholders.
•Because
of the natural decline in production from our customers' existing
wells, our success depends in part on our customers replacing
declining production and also on our ability to maintain levels of
throughput on our systems.
•Customers
may not drill and complete wells on the acreage behind our systems,
which could adversely impact the levels of throughput on our
systems.
•We
may not be able to renew or replace expiring contracts at favorable
rates or on a long term basis.
•Our
ability to operate our business effectively could be impaired if we
fail to attract and retain key personnel.
•A
transition from hydrocarbon energy sources to alternative energy
sources could lead to changes in demand, technology and public
sentiment which could have material adverse effects on our business
and results of operations.
Risks Related to Our Finances
•Limited
access to and/or availability of the commercial bank market, debt
and equity capital markets could impair our ability to grow or
cause us to be unable to meet future capital
requirements.
•Our
leverage and debt service obligations may adversely affect our
financial condition, results of operations and business prospects,
and may limit our flexibility to obtain financing and to pursue
other business opportunities.
•We
may not be able to generate sufficient cash to service all of our
indebtedness and may be forced to take other actions to satisfy our
obligations under our indebtedness or to refinance, which may not
be successful.
•Restrictions
in our debt instruments could materially adversely affect our
business, financial condition, results of operations, our ability
to make cash distributions to unitholders and the value of our
common units.
•Inflation
could have adverse effects on our results of
operation.
•An
increase in interest rates will cause our debt service obligations
to increase.
•The
phase-out of LIBOR could have adverse effects on our hedging
strategies, financial condition, results of operations and cash
flows.
•A
downgrade of our credit rating could impact our liquidity, access
to capital and our costs of doing business, and independent third
parties determine our credit ratings outside of our
control.
•We
have in the past and may in the future incur losses due to an
impairment in the carrying value of our long-lived assets or equity
method investments.
Regulatory and Environmental Policy Risks
•A
change in laws and regulations applicable to our assets or
services, or the interpretation or implementation of existing laws
and regulations may cause our revenues to decline or our operation
and maintenance expenses to increase.
•Increased
regulation of hydraulic fracturing could result in reductions or
delays in customer production, which could materially adversely
impact our revenues.
•We
are subject to FERC jurisdiction, federal anti-market manipulation
laws and regulations, potentially other federal regulatory
requirements and state and local regulation, and could be
materially affected by changes in such laws and regulations, or in
the way they are interpreted and enforced.
•We
are subject to stringent environmental laws and regulations that
may expose us to significant costs and liabilities.
•Climate
change legislation, regulatory initiatives and litigation could
result in increased operating costs and reduced demand for the
services we provide.
•We
may face opposition to the development, permitting, construction or
operation of our pipelines and facilities from various
groups.
•Our
business is subject to complex and evolving U.S. and international
laws and regulations regarding privacy and data
protection.
Risks Inherent in an Investment in Us
•Our
Partnership Agreement replaces our General Partner’s fiduciary
duties to unitholders and those of our officers and directors with
contractual standards governing their duties.
•We
may issue additional units without unitholder approval, which would
dilute existing ownership interests.
Tax Risks
•If
the IRS were to treat us as a corporation for federal income tax
purposes, which would subject us to entity-level taxation, then our
cash available for distribution to our unitholders would be
substantially reduced.
•If
we were subjected to a material amount of additional entity-level
taxation by individual states, it would reduce our cash available
for distribution to our unitholders.
•Our
unitholders are required to pay income taxes on their share of our
taxable income even if they do not receive any cash distributions
from us.
•In
2020, we engaged in transactions that generated substantial
cancellation of debt (“COD”) income on a per unit basis relative to
the trading price of our common units. We may engage in other
transactions that result in substantial COD income or other gains
in the future, and such events may cause a unitholder to be
allocated income with respect to our units with no corresponding
distribution of cash to fund the payment of the resulting tax
liability to the unitholder.
Risks Related to Terrorism and Cyberterrorism
•Terrorist
attacks and threats, escalation of military activity in response to
these attacks or acts of war could have a material adverse effect
on our business, financial condition or results of
operations.
•Our
operations depend on the use of information technology and
operational technology systems that could be the target of a
cyberattack.
ORGANIZATIONAL CHART
The following chart provides a summarized view of our legal entity
structure at December 31, 2022:
COMMONLY USED OR DEFINED TERMS
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2015 Blacktail Release |
a 2015 rupture of our four-inch produced water gathering pipeline
near Williston, North Dakota
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2022 DJ Acquisitions |
the acquisition of Outrigger DJ Midstream LLC from Outrigger Energy
II LLC, and each of Sterling Energy Investments LLC, Grasslands
Energy Marketing LLC and Centennial Water Pipelines LLC from
Sterling Investment Holdings LLC
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2025 Senior Notes
|
Summit Holdings' and Finance Corp.’s 5.75% senior unsecured notes
due April 2025
|
2026 Secured Notes |
Summit Holdings' and Finance Corp.’s 8.500% senior secured second
lien notes due 2026
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2026 Secured Notes Indenture |
Indenture, dated as of November 2, 2021, by and among Summit
Holdings, Finance Corp., the guarantors party thereto and Regions
Bank, as trustee
|
ABL Facility |
the asset-based lending credit facility governed by the ABL
Agreement
|
ABL Agreement |
Loan and Security Agreement, dated as of November 2, 2021, among
Summit Holdings, as borrower, SMLP and certain subsidiaries from
time to time party thereto, as guarantors, Bank of America, N.A.,
as agent, ING Capital LLC, Royal Bank of Canada and Regions Bank,
as co-syndication agents, and Bank of America, N.A., ING Capital
LLC, RBC Capital Markets and Regions Capital Markets, as joint lead
arrangers and joint bookrunners
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Additional 2026 Secured Notes |
the additional $85.0 million of 2026 Secured Notes issued in
November 2022 in connection with the 2022 DJ
Acquisitions
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AMI
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area of mutual interest; AMIs require that any production from
wells drilled by our customers within the AMI be shipped on and/or
processed by our gathering systems
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associated natural gas
|
a form of natural gas which is found with deposits of
petroleum, either dissolved in the crude oil or as a free
gas cap above the crude oil in the reservoir
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ASC
|
Accounting Standards Codification
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ASU
|
Accounting Standards Update
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Bbl
|
one barrel; used for crude oil and produced water and equivalent to
42 U.S. gallons
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Bcf
|
one billion cubic feet
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Bcfe/d
|
the equivalent of one billion cubic feet per day; generally
calculated when liquids are converted into natural gas; determined
using a ratio of six thousand cubic feet of natural gas to one
barrel of liquids
|
Bison Midstream
|
Bison Midstream, LLC
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Board of Directors
|
the board of directors of our General Partner
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CAA
|
Clean Air Act
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CEA
|
Commodity Exchange Act
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CERCLA
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Comprehensive Environmental Response, Compensation and Liability
Act
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CFTC
|
Commodity Futures Trading Commission
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COD |
cancellation of debt
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Collateral Agreement |
Collateral Agreement, dated as of November 2, 2021, by and among
SMLP, as a pledgor, Summit Holdings and Finance Corp., as pledgors
and grantors, the subsidiary guarantors party therein, and Regions
Bank, as collateral agent
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Compensation Committee
|
the compensation committee of the Board of
Directors
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condensate
|
a natural gas liquid with a low vapor pressure, mainly composed of
propane, butane, pentane and heavier hydrocarbon
fractions
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Conflicts Committee
|
the conflicts committee of the Board of Directors, if
established
|
Co-Issuers |
Summit Holdings and Finance Corp.
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CWA
|
Clean Water Act
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DFW Midstream
|
DFW Midstream Services LLC
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DJ Basin
|
Denver-Julesburg Basin
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Dodd-Frank Act
|
Dodd-Frank Wall Street Reform and Consumer Protection Act of
2010
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DOT
|
U.S. Department of Transportation
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Double E
|
Double E Pipeline, LLC
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Double E Pipeline |
a 1.35 Bcf per day, FERC-regulated interstate natural gas
transmission pipeline that commenced operations in November 2021
and provides transportation service from multiple receipt points in
the Delaware Basin to various delivery points in and around the
Waha hub in Texas
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Double E Project
|
the development and construction of the Double E
Pipeline
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dry gas
|
natural gas primarily composed of methane where heavy hydrocarbons
and water either do not exist or have been removed through
processing or treating
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Dth/d |
one million British Thermal Units per day
|
ECP |
Energy Capital Partners II, LLC and its parallel and co-investment
funds
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EPA
|
Environmental Protection Agency
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Epping
|
Epping Transmission Company, LLC
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Epping Pipeline |
an interstate crude oil pipeline in North Dakota, owned and
operated by Epping
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EPU |
earnings or loss per unit
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Exchange Act
|
Securities Exchange Act of 1934, as amended
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FASB
|
Financial Accounting Standards Board
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FERC
|
Federal Energy Regulatory Commission
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Finance Corp.
|
Summit Midstream Finance Corp.
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FTC
|
Federal Trade Commission
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GAAP
|
accounting principles generally accepted in the United States of
America
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General Partner
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Summit Midstream GP, LLC
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GHG
|
greenhouse gas(es)
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GP
|
general partner
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Grand River
|
Grand River Gathering, LLC
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Guarantor Subsidiaries
|
Bison Midstream and its subsidiaries, Grand River and its
subsidiaries, DFW Midstream, Summit Marketing, Summit Permian,
Permian Finance, OpCo, Summit Utica, Meadowlark Midstream, Summit
Permian II, Mountaineer Midstream, Epping, Red Rock, Polar
Midstream and Summit Niobrara
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hub |
geographic location of a storage facility and multiple pipeline
interconnections
|
ICA
|
Interstate Commerce Act
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Intercreditor Agreement |
Intercreditor Agreement, dated as of November 2, 2021, by and among
Bank of America, N.A., as first lien representative and collateral
agent for the initial first lien claimholders, Regions Bank, as
second lien representative for the initial second lien claimholders
and as collateral agent for the initial second lien claimholders,
acknowledged and agreed to by Summit Holdings and the other
grantors referred to therein
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IRS
|
Internal Revenue Service
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LIBOR
|
London Interbank Offered Rate
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Mbbl/d
|
one thousand barrels per day
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MD&A
|
Management's Discussion and Analysis of Financial Condition and
Results of Operations
|
MDTQ |
maximum daily transportation quantity
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Meadowlark Midstream
|
Meadowlark Midstream Company, LLC
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MMBtu
|
one million British Thermal Units
|
MMcf
|
one million cubic feet
|
MMcf/d
|
one million cubic feet per day
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MMcfe/d |
the equivalent of one million cubic feet per day; determined using
a ratio of six thousand cubic feet of natural gas to one barrel of
liquids
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Mountaineer Midstream
|
Mountaineer Midstream Company, LLC
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MVC
|
minimum volume commitment
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NAAQS
|
national ambient air quality standard
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NEPA
|
National Environmental Policy Act
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NDIC |
North Dakota Industrial Commission
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NGA
|
Natural Gas Act
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NGLs
|
natural gas liquids; the combination of ethane, propane, normal
butane, iso-butane and natural gasolines that when removed from
unprocessed natural gas streams become liquid under various levels
of higher pressure and lower temperature
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NGPA
|
Natural Gas Policy Act of 1978
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Niobrara G&P
|
Niobrara Gathering and Processing system
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Non-Guarantor Subsidiaries
|
Permian Holdco and Summit Permian Transmission
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NYSE
|
New York Stock Exchange
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Obligor Group |
the Co-Issuers and the Guarantor Subsidiaries
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OCC
|
Ohio Condensate Company, L.L.C.
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OGC
|
Ohio Gathering Company, L.L.C.
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Ohio Gathering
|
Ohio Gathering Company, L.L.C. and Ohio Condensate Company,
L.L.C.
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OPA
|
Oil Pollution Control Act
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OpCo
|
Summit Midstream OpCo, LP
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PHMSA
|
Pipeline and Hazardous Materials Safety
Administration
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play
|
a proven geological formation that contains commercial amounts of
hydrocarbons
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Permian Finance
|
Summit Midstream Permian Finance, LLC
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Permian Holdco
|
Summit Permian Transmission Holdco, LLC
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Permian Term Loan Facility |
the term loan governed by the Credit Agreement, dated as of March
8, 2021, among Summit Permian Transmission, LLC, as borrower, MUFG
Bank Ltd., as administrative agent, Mizuho Bank (USA), as
collateral agent, ING Capital LLC, Mizuho Bank, Ltd. and MUFG Union
Bank, N.A., as L/C issuers, coordinating lead arrangers and joint
bookrunners, and the lenders from time to time party
thereto
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Permian Transmission Credit Facility
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the credit facility governed by the Credit Agreement, dated as of
March 8, 2021, among Summit Permian Transmission, LLC, as borrower,
MUFG Bank Ltd., as administrative agent, Mizuho Bank (USA), as
collateral agent, ING Capital LLC, Mizuho Bank, Ltd. and MUFG Union
Bank, N.A., as L/C issuers, coordinating lead arrangers and joint
bookrunners, and the lenders from time-to-time party
thereto
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Polar and Divide
|
the Polar and Divide system; collectively Polar Midstream and
Epping
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Polar Midstream
|
Polar Midstream, LLC |
produced water
|
water from underground geologic formations that is a by-product of
natural gas and crude oil production
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PSD
|
Prevention of Significant Deterioration
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RCRA
|
Resource Conservation and Recovery Act
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Red Rock Gathering
|
Red Rock Gathering Company, LLC
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Revolving Credit Facility
|
the senior secured revolving credit facility governed by the Fourth
Amended and Restated Credit Agreement dated as of December 18,2020,
as amended by the Third Amended and Restated Credit
Agreement dated as of May 26, 2017, as amended by the First
Amendment to Third Amended and Restated Credit Agreement dated as
of September 22, 2017, the Second Amendment to Third Amended and
Restated Credit Agreement dated as of June 26, 2019 and the Third
Amendment to Third Amended and Restated Credit Agreement dated as
of December 24, 2019
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SEC
|
Securities and Exchange Commission
|
Securities Act
|
Securities Act of 1933, as amended
|
segment adjusted EBITDA
|
total revenues less total costs and expenses; plus (i) other income
excluding interest income, (ii) our proportional adjusted EBITDA
for equity method investees, (iii) depreciation and amortization,
(iv) adjustments related to MVC shortfall payments, (v) adjustments
related to capital reimbursement activity, (vi) unit- based and
noncash compensation, (vii) impairments and (viii) other noncash
expenses or losses, less other noncash income or
gains
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Series A Preferred Units
|
Series A Fixed-to-Floating Rate Cumulative Redeemable Perpetual
Preferred Units issued by the Partnership
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shortfall payment
|
the payment received from a counterparty when its volume throughput
does not meet its MVC for the applicable period
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SMLP
|
Summit Midstream Partners, LP
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SMLP Holdings
|
SMLP Holdings, LLC
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SMLP LTIP
|
SMLP Long-Term Incentive Plan
|
SMP Holdings
|
Summit Midstream Partners Holdings, LLC, also known as
SMPH
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SMPH Term Loan |
SMPH Holdings’ term loan, governed by the Term Loan Agreement,
dated as of March 21, 2017, among SMP Holdings, as borrower, the
lenders party thereto and Credit Suisse AG, Cayman Islands Branch,
as Administrative Agent and Collateral Agent
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SPCC
|
Spill Prevention Control and Countermeasure
|
Subsidiary Series A Preferred Units
|
Series A Fixed Rate Cumulative Redeemable Preferred Units issued by
Permian Holdco
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Summit Holdings
|
Summit Midstream Holdings, LLC
|
Summit Investments
|
Summit Midstream Partners, LLC
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Summit Niobrara
|
Summit Midstream Niobrara, LLC
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Summit Marketing
|
Summit Midstream Marketing, LLC
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Summit Permian
|
Summit Midstream Permian, LLC
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Summit Permian II
|
Summit Midstream Permian II, LLC
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Summit Permian Transmission
|
Summit Permian Transmission, LLC
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Summit Utica
|
Summit Midstream Utica, LLC
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Tax Reform Legislation |
the Tax Cuts and Jobs Act of 2017
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Tcfe
|
the equivalent of one trillion cubic feet
|
the Partnership
|
Summit Midstream Partners, LP and its subsidiaries
|
the Partnership
Agreement
|
the Fourth Amended and Restated Agreement of Limited Partnership of
the
Partnership dated May 28, 2020, as amended by Amendment No. 1 to
the Fourth Amended and Restated Agreement of Limited Partnership,
dated February 23, 2023
|
throughput volume
|
the volume of natural gas, crude oil or produced water gathered,
transported or passing through a pipeline, plant or other facility
during a particular period; also referred to as volume
throughput
|
Tioga Midstream
|
Tioga Midstream, LLC
|
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unconventional resource basin
|
a basin where natural gas or crude oil production is developed from
unconventional sources that require hydraulic fracturing as part of
the completion process, for instance, natural gas produced from
shale formations and coalbeds; also referred to as an
unconventional resource play
|
VOC
|
volatile organic compound(s)
|
wellhead
|
the equipment at the surface of a well, used to control the well's
pressure; also, the point at which the hydrocarbons and water exit
the ground
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PART I
ITEM 1. BUSINESS
Summit Midstream Partners, LP, a Delaware limited partnership
(including its subsidiaries, collectively, “we”, “our”, “us”,
“SMLP”, or “the Partnership”), is a value-driven limited
partnership focused on developing, owning and operating midstream
energy infrastructure assets that are strategically located in
unconventional resource basins, primarily shale formations, in the
continental United States. Our common units are listed and traded
on the NYSE under the ticker symbol “SMLP.”
The Partnership was formed in May 2012. The Partnership’s executive
offices are located at 910 Louisiana Street, Suite 4200, Houston,
Texas 77002, and can be reached by phone at 832-413-4770. The
Partnership also maintains regional field offices in close
proximity to our areas of operation to support the operation and
development of our midstream assets.
Our Business Strategies
We operate a differentiated midstream platform that is built for
long-term, sustainable value creation. Our integrated assets are
strategically located in production basins including the Williston
Basin, DJ Basin, Utica Shale, Marcellus Shale, Barnett Shale,
Piceance Basin and Permian Basin. Our primary business objective is
to maximize cash flow and provide cash flow stability for our
stakeholders while growing prudently and profitably. We intend to
accomplish this objective by executing the following
strategies:
•Capital
structure optimization.
We seek to maximize unitholder value. Our capital structure
currently consists of common equity, preferred equity, and
indebtedness that is comprised of debt securities and borrowings
under our revolving credit facilities, a portion of which is
secured by substantially all of the Partnership's assets. We intend
to optimize our capital structure in the future by reducing our
indebtedness with free cash flow, and when appropriate, we may
pursue opportunistic capital markets transactions with the
objective of increasing long-term unitholder value.
•Portfolio
management.
We seek to maximize unitholder value by strategically managing our
portfolio of midstream assets and allocating capital based on
appropriate risk-informed cash flow assumptions. This may include
opportunistic divestitures, re-allocation of capital to new or
existing areas, and development of joint ventures involving our
existing midstream assets or new investment
opportunities.
•Maintaining
our focus on fee-based revenue with minimal direct commodity price
exposure.
We intend to maintain our focus on providing midstream services
under primarily long-term and fee-based contracts. We believe that
our focus on fee-based revenues with minimal direct commodity price
exposure is essential to maintaining stable cash
flows.
•Maintaining
strong producer relationships to maximize utilization of all of our
midstream assets.
We have cultivated strong producer relationships by focusing on
customer service and reliable project execution and by operating
our assets safely and reliably over time. We believe that our
strong producer relationships will create future opportunities to
expand our midstream services reach and optimize the utilization of
our midstream assets for our customers.
•Continuing
to prioritize safe and reliable operations.
We believe that providing safe, reliable and efficient operations
is a key component of our business strategy. We place a strong
emphasis on employee training, operational procedures and
enterprise technology, and we intend to continue promoting a high
standard with respect to the efficiency of our operations and the
safety of all of our constituents.
Recent Developments and Highlights
The following is a brief listing of significant developments and
highlights for the year ended December 31, 2022. Additional
information regarding these items may be found elsewhere in this
Annual Report.
•Simultaneously
completed the strategic 2022 DJ Acquisitions for $305.0
million.
In December 2022, we acquired Outrigger DJ for cash consideration
of $165.0 million, subject to post-closing adjustments, and
Sterling DJ for cash consideration of $140.0 million, subject to
post-closing adjustments. These acquisitions were a strategic step
in our overall corporate strategy to establish a franchise position
in the DJ Basin and expand our footprint for the benefit of our
customers. The 2022 DJ Acquisitions significantly increased our gas
processing capacity in the DJ Basin and diversified our customer
base with a combination of long-term fixed fee and
percentage-of-proceeds contracts. We funded these acquisitions
through a combination of borrowings under the credit facility and
the issuance of $85.0 million of Senior Secured Second Lien
Notes due in 2026.
•Portfolio
optimization – Permian Midstream Divestiture.
In June 2022, we completed the disposition of all the equity
interests in Summit Permian, which owns the Lane Gathering and
Processing System (“Lane G&P System”), and Permian Finance to
Longwood Gathering and Disposal Systems, LP (“Longwood”), a wholly
owned subsidiary of Matador ͏Resources Company (“Matador”), for
cash consideration of $75.0 million. In connection with the
transaction, we released, to a subsidiary of Matador, and Matador
agreed to assume, take or-pay firm capacity on the Double E
Pipeline.
•Portfolio
optimization – Bison Midstream Divestiture.
In September 2022, we completed the sale of Bison Midstream, LLC
(“Bison Midstream”) and its gas gathering system in Burke and
Mountrail Counties, North Dakota to a subsidiary of Steel Reef
Infrastructure Corp. (“Steel Reef”) for cash consideration of
$40.0 million.
•Issued
inaugural Environmental, Social and Governance Report (“ESG
Report”).
In June 2022, we published our initial ESG Report. The report
showcases our commitment to core principles that drive operational
excellence, sustainability and value for our business. These
principles include prioritizing safe and reliable operations,
minimizing our environmental impact, protecting our employees’
health and wellbeing, and following responsible and ethical
business practices. The ESG Report can be found at
www.summitmidstream.com/esg
but is not incorporated by reference and is not a part of this
Annual Report on Form 10-K.
Our Midstream Assets
Our midstream assets primarily gather natural gas produced from pad
sites, wells and central receipt points connected to our systems.
Gathered natural gas volumes are then compressed, dehydrated,
treated and/or processed for delivery to downstream pipelines
serving processing plants or end users. We also contract with
producers to gather crude oil and produced water from wells
connected to our systems for delivery to downstream pipelines and
to third-party rail terminals in the case of crude oil and to
third-party disposal wells in the case of produced water. We
generally refer to most of the services our systems provide as
gathering services. We also provide natural gas transmission
services via Double E, a long-haul natural gas pipeline in which we
indirectly own a 70% equity interest and serve as the pipeline’s
operator. Double E provides natural gas transportation services
from multiple receipt points in the Permian Basin to various
delivery points in and around the Waha hub in Texas.
Reportable Segments.
As of December 31, 2022, our reportable segments are below along
with management’s categorization of the primary commodity driving
customer drilling and completion decisions for each
segment:
Oil price driven.
Our cash flows in the Rockies and Permian segments are primarily
influenced by the prevailing price of crude oil because the
drilling and completion decisions by our customers in these
segments are based on well economics most heavily tied to crude oil
prices. Our customers’ decisions to drill and complete wells in
these segments therefore result in higher volume throughput and
cash flows for our midstream assets in which we collect fixed fees
for gathering or processing hydrocarbons, gathering produced water,
or transporting residue natural gas.
•Rockies
–
Includes our wholly owned midstream assets located in the Williston
Basin and the DJ Basin.
•Permian
– Includes our equity method investment in Double E.
Natural gas price driven.
Our cash flows in the Northeast, Piceance and Barnett segments are
primarily influenced by the prevailing price of natural gas because
the drilling, completion and recompletion decisions by our
customers in these segments are based on well economics most
heavily tied to natural gas and NGL prices. Our customers’
decisions to drill, complete or recomplete wells in these segments
therefore result in higher throughput and cash flows for those
segments in which we collect fixed fees for gathering natural
gas.
•Northeast
–
Includes our wholly owned midstream assets located in the Utica and
Marcellus shale plays and our equity method investment in Ohio
Gathering that is focused on the Utica Shale.
•Piceance
– Includes our wholly owned midstream assets located in the
Piceance Basin.
•Barnett
– Includes our wholly owned midstream assets located in the Barnett
Shale.
Industry Overview and Commercial Arrangements
We compete with other midstream companies, producers and intrastate
and interstate pipelines. Competition for volumes is primarily
based on reputation, commercial terms, acreage dedications, service
levels, access to end-use markets, geographic proximity of existing
assets to a producer's acreage and available gathering and
processing capacity. We may also face competition to gather
production outside of our AMIs and attract producer volumes to our
gathering systems.
We earn revenue by providing gathering, compression, treating
and/or processing services pursuant to primarily long-term and
fee-based gathering and processing agreements with some of the
largest and most active producers in North America.
Through
our equity method investment in the Double E Pipeline, we earn
revenue by providing high pressure transportation services, as both
firm and interruptible service, for residue natural gas in the
Permian Basin. The fee-based nature of these agreements enhances
the stability of our cash flows by limiting our direct commodity
price exposure.
The significant features of our transportation and gathering and
processing agreements, and the gathering and transportation systems
to which they relate, are discussed in more detail below. For
additional operating and financial performance information, on a
consolidated basis and by reportable segment, see the "Results of
Operations" section in Item 7. Management's Discussion and Analysis
of Financial Condition and Results of Operations.
Areas of Mutual Interest. The
vast majority of our gathering and processing agreements contain
AMIs, some of which extend through 2039. The AMIs generally require
that any production by our customers within the AMIs will be
gathered and/or processed by our assets. In general, our customers
have not leased acreage that cover our entire AMIs but, to the
extent that they have leased acreage within our AMI, or lease
additional acreage within our AMIs, any production from wells
within that AMI will be dedicated to our systems.
Under certain of our gathering agreements, we have agreed to
construct pipeline laterals to connect our gathering systems to
producer pad sites located within the AMI. However, in certain
circumstances we may choose not to pursue a pad connection
opportunity presented by a customer if we believe that the
investment would not meet our internal return expectations. Under
this scenario, the customer may, in certain circumstances,
construct the gathering infrastructure itself and sell it to us at
a price equal to their cost plus an applicable profit margin, or,
in some cases, we may release the relevant acreage dedication from
the AMI.
Our AMIs cover approximately 3.9 million surface acres in the
aggregate, which includes more than 0.8 million surface acres
associated with Ohio Gathering.
Minimum Volume Commitments. Certain
of our gathering and/or processing agreements contain MVCs which,
like AMIs, benefit from the development and ongoing operation of a
gathering system because they provide a minimum contracted monthly
or annual revenue stream. Some of our MVCs, including those of
affiliates, extend through 2031. To the extent a customer does not
meet its contractual MVC, it is obligated to make an MVC shortfall
payment to us to cover the shortfall of required volume throughput
not shipped or processed, either on a monthly or annual basis. We
have designed our MVC provisions to ensure that we will generate a
minimum amount of revenue from each customer over the life of the
associated gathering and/or processing agreement, by either
collecting gathering or processing fees on actual throughput or
from cash payments to cover any MVC shortfall.
As of December 31, 2022, we had remaining MVCs totaling 0.7 Tcfe,
our MVCs had a weighted-average remaining life of 4.1 years, and
these MVC's average approximately 408 MMcfe/d through
2027.
For additional information on our MVCs, see Note 4
–
Revenue and Note 8
–
Deferred Revenue to the consolidated financial
statements.
Throughput and Commodity Price Exposure.
Our financial results are primarily driven by volume throughput
across our gathering systems and by expense management. During
2022, aggregate natural gas volume throughput averaged 1,208 MMcf/d
and crude oil and produced water volume throughput averaged 62
Mbbl/d. A majority of the volumes that we gather, compress, treat
and/or process have a fixed-fee rate structure, which enhances the
stability of our cash flows by providing a revenue stream that is
not subject to direct commodity price risk or volatility. We also
earn a portion of our revenues from the following activities that
directly expose us to fluctuations in commodity prices: (i) the
sale of physical natural gas and/or NGLs purchased under
percentage-of-proceeds or other processing arrangements with
certain of our customers in the Rockies, Permian and Piceance
segments, (ii) the sale of natural gas we retain from certain
Barnett customers, (iii) the sale of condensate we retain from our
gathering services in the Rockies and Piceance segments and (iv)
additional gathering fees that are tied to performance of certain
commodity price indexes, which are then added to the fixed
gathering rates. During the year ended December 31, 2022, these
additional activities accounted for approximately 18% of total
revenues.
Equity Method Investment – Ohio Gathering.
We have an equity method investment in Ohio Gathering, which
comprises a natural gas gathering system and condensate
stabilization facility located in the core of the Utica Shale in
southeastern Ohio. Our joint venture partner in Ohio Gathering may
elect to fund 100% of a capital call if we choose not to fund our
proportionate share of such capital call. In 2022 and 2021, we
chose to not fund capital calls in Ohio Gathering because the
investment did not meet our corporate objectives and as a result,
our ownership interest in that venture was reduced to 37.2% as of
December 31, 2022 from 37.8% as of December 31, 2021. MPLX LP
(“MPLX”) is the operator of the Ohio Gathering joint venture and
our joint venture partner.
Equity Method Investment – Double E.
We have an equity method investment in Double E, a 1.35 Bcf/d
FERC-regulated interstate natural gas transmission pipeline that
commenced operations in November 2021 and provides transportation
service from multiple receipt points in the Delaware Basin to
various delivery points in and around the Waha hub in Texas. We are
the
operator of the joint venture and have made all required capital
contributions to Double E. As of December 31, 2022, the
Partnership owns a 70% interest in Double E. A subsidiary of
ExxonMobil Corporation is our joint venture partner.
Overview of our Segments
Northeast.
The following table provides operating information regarding our
Northeast reportable segment as of December 31,
2022.
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Aggregate throughput capacity (MMcf/d) |
|
Average daily MVCs through 2027 (MMcf/d) |
|
Remaining MVCs (Bcf) |
|
Weighted-average remaining contract life (Years) |
|
Weighted-average remaining MVC life (Years) |
Northeast
(1)
|
|
1,770 |
|
221 |
|
403 |
|
7.2 |
|
4.0 |
Ohio Gathering
(2)
|
|
1,100 |
|
n/a |
|
n/a |
|
9.1 |
|
n/a |
______________________________________________
(1)
Includes our wholly owned assets, Summit Utica system and
Mountaineer Midstream system
(2)
Presented on a gross basis. As of December 31, 2022, we owned
approximately a 37.2% interest in OGC and approximately a 38.2%
interest in OCC.
Our Northeast segment is comprised of our Summit Utica system, our
Mountaineer Midstream system, and our equity method investments in
Ohio Gathering.
Summit Utica system.
The Summit Utica system is a natural gas gathering system located
in Belmont and Monroe counties in southeastern Ohio and serves
producers targeting the dry gas reserves of the Utica and Point
Pleasant shale formations. The Summit Utica system gathers and
delivers natural gas, primarily under long-term, fee-based
gathering agreements, which include acreage dedications. Ascent
Resources is the key customer of Summit Utica, and the AMIs from
our customers for this system cover approximately 115,000 surface
acres in the aggregate.
We have connected a substantial number of our customers’ pad sites
to our Summit Utica system and we expect to benefit from
incremental volumes arising from drilling and completion activity
that is occurring and will continue to occur on new and previously
connected pad sites in our service area. Over time, we intend to
expand our midstream service offerings for the Summit Utica system
to connect additional customer pad sites and install centralized
compression facilities. Centralized compression services have been
dedicated to us in our gathering agreements and will eventually
constitute a new revenue stream from our customers; however, to
date, this service has not been required given the relatively high
downhole pressures exhibited by dry gas wells in the Utica Shale
compared to other unconventional shale plays.
The Summit Utica system interconnects with the Ohio River System
pipeline, which provides access to the Clarington Hub and Rover
Pipeline.
Mountaineer Midstream system.
The Mountaineer Midstream system, within the Marcellus shale, is
located in Doddridge and Harrison counties in West Virginia where
it gathers natural gas under a long-term, fee-based contract with
Antero Resources Corporation (“Antero”), which is targeting
liquids-rich natural gas production from the Marcellus shale in the
Appalachian Basin. Volume throughput on the Mountaineer Midstream
system is underpinned by minimum revenue commitments from
Antero.
The Mountaineer Midstream system consists of a high-pressure
natural gas gathering system and two compressor stations. This
system gathers high-pressure natural gas received from upstream
pipeline interconnections with Antero Midstream. Mountaineer
Midstream serves as a critical inlet to the Sherwood Processing
Complex, a primary destination for liquids-rich natural gas in
northern West Virginia and one of the largest natural gas
processing facilities in the United States.
Ohio Gathering.
Ohio Gathering comprises a natural gas gathering system and
condensate stabilization facility located in the core of the Utica
Shale in southeastern Ohio. The gathering system spans the
condensate, liquids-rich and dry gas windows of the Utica Shale for
multiple producers that are targeting production from the Utica and
Point Pleasant shale formations across Belmont, Monroe, Guernsey,
Harrison and Noble counties in southeastern Ohio. Ohio Gathering is
operated by our partner, MPLX. Substantially all gathering services
on the Ohio Gathering system are provided pursuant to long-term,
fee-based gathering agreements. Ascent Resources and Gulfport
Energy Corporation are Ohio Gathering's key customers and the AMIs
from our customers for this system cover approximately 830,000
surface acres in the aggregate.
Condensate and liquids-rich natural gas production is gathered,
compressed, dehydrated and delivered to the Cadiz and Seneca
processing complexes, which offer approximately 1.3 Bcf/d of
processing capacity and are owned by a joint venture between MPLX
and The Energy and Minerals Group. Dry gas production is gathered,
dehydrated, compressed, and delivered to third-party pipelines
serving the northeast and midwest markets.
As of December 31, 2022, we owned approximately a 37.2%
interest in OGC and approximately a 38.2% interest in OCC. For
additional information, see Note 7 - Equity Method Investments to
the consolidated financial statements.
Rockies.
The following table provides operating information regarding our
Rockies reportable segment as of December 31,
2022.
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Aggregate throughput capacity -
liquids (Mbbl/d) |
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Aggregate throughput capacity -
natural gas (MMcf/d) |
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Average daily MVCs through 2027 (MMcf/d) |
|
Remaining MVCs (Bcfe)
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Weighted-average remaining contract life (Years)
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|
Weighted-average remaining MVC life (Years)
|
Rockies - Williston
|
225 |
|
n/a |
|
n/a |
|
n/a |
|
5.2 |
|
n/a |
Rockies - DJ
(1)
|
50 |
|
220 |
|
13 |
|
26 |
|
8.4 |
|
5.4 |
______________________________________________
(1)Capacity
of 220 MMcf/d represents nameplate processing capacity. Operational
capacity is estimated at approximately 190 MMcf/d.
AMIs for the Rockies reportable segment total approximately 2.4
million surface acres in the aggregate.
Our Rockies reportable segment is comprised of our Polar and Divide
system and the Niobrara G&P system.
Polar and Divide system. The
Polar and Divide system, collectively Polar Midstream and Epping,
which is located primarily in Williams and Divide counties in
northwestern North Dakota, owns, operates and is currently
developing crude oil and produced water gathering systems and
transmission pipelines serving multiple customers that are
targeting crude oil production from the Bakken and Three Forks
shale formations. The Polar and Divide system is underpinned by
long-term, fee-based gathering agreements, which include acreage
dedications and MVCs. Chord Energy Corporation (formerly Whiting
Petroleum Corporation), Zavanna LLC, Crescent Point Energy Corp,
Enerplus Corporation and Kraken Resources are the key customers of
the Polar and Divide system.
Crude oil that is gathered by the Polar and Divide system is
delivered to interconnects with (i) the Dakota Access Pipeline,
(ii) the COLT Hub rail facility, (iii) Enbridge Inc’s North Dakota
Pipeline System and (iv) Global Partners LP's Basin Transload rail
terminal. Produced water is delivered to third-party disposal
facilities.
Niobrara G&P system.
The Niobrara G&P system is located near Hereford, Colorado, in
rural Weld, Morgan and Logan Counties, and in Cheyenne County of
Nebraska. Weld County is the largest crude oil and natural gas
producing county in Colorado. Gathering and processing services on
the Niobrara G&P system are provided pursuant to long-term,
fee-based and percentage of proceeds agreements with producers that
are primarily targeting crude oil production from the Niobrara and
Codell shale formations. Chevron Corporation, Civitas
Resources, Inc., a large U.S. independent crude oil and natural gas
company, Mallard Exploration (recently acquired by Bison Oil and
Gas IV in January 2023), and Verdad Resources are the key customers
of the Niobrara G&P system and have underpinned our volume
throughput with acreage dedications and MVCs.
The Niobrara G&P system operates a low-pressure associated
natural gas gathering system, and natural gas processing plants
with processing capacity of up to 220 MMcf/d.
Residue gas is delivered to the Cheyenne Plains, Colorado
Interstate Gas, Trailblazer Pipeline and Southern Star and
processed NGLs are delivered to the Overland Pass Pipeline and the
P66 NGL System.
Additionally, the system has discrete freshwater infrastructure
that consists of 19 water wells and other infrastructure to provide
its customers with up to approximately 55,000 barrels per day of
fresh water for well completion activities, and the system includes
approximately 30 miles of crude oil gathering pipeline with
delivery into the Pony Express pipeline.
Permian.
The following table provides operating information regarding our
Permian reportable segment as of December 31,
2022.
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Aggregate throughput capacity (MMcf/d) |
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Average daily MVCs through 2027 (MMcf/d) |
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Remaining MVCs (Bcf) |
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Weighted-average remaining contract life (Years) |
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Weighted-average remaining MVC life (Years) |
Double E
(1)
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1,350 |
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964 |
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3,177 |
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8.8 |
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8.8 |
______________________________________________
(1)
Presented on a gross basis. Existing MVC’s contractually increase
to 1.0 Bcf/d beginning in November 2024. As of December 31, 2022,
we owned a 70% interest in Double E.
Double E.
Double E is a 135 mile, 1.35 Bcf/d, FERC-regulated interstate
natural gas transmission pipeline that commenced operations in
November 2021 and provides transportation service from receipt
points in the Delaware Basin to various delivery points in and
around the Waha hub in Texas. Double E is underpinned by 1.0 Bcf/d
of long-term take-or-pay contracts with ExxonMobil Corporation,
Marathon Oil and Matador Resources Company (“Matador”). In 2021, we
entered into negotiated rate agreements with an average term of 10
years from the in-service date of the pipeline, which occurred on
November 18, 2021 and with total MDTQ’s that increase from 585,000
Dth/d during the first year of the agreement to 1,000,000 Dth/d in
the fourth year, which equates to approximately 74% of its
certificated capacity of 1,350,000 Dth/d. Volume throughput is
received from multiple processing plants, including Matador’s
Marlan plant, XTO’s Cowboy plant, Targa’s Roadrunner plant, San
Mateo’s Black River plant and Crestwood’s Carlsbad plant. Double E
is in the process of connecting EnLink’s Lobo plant and expects
that connection to be operational in 2023. The Partnership owns 70%
of Double E and operates the pipeline.
Piceance.
The following table provides operating information regarding our
Piceance reportable segment as of December 31,
2022.
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Aggregate throughput capacity (MMcf/d) |
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Average daily MVCs through 2027 (MMcf/d) |
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Remaining MVCs (Bcf) |
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Weighted-average remaining contract life (Years) |
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Weighted-average remaining MVC life (Years) |
Piceance |
1,151 |
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175 |
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319 |
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9.7 |
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3.4 |
AMIs for the Piceance reportable segment cover approximately
434,000 surface acres in the aggregate.
Our Piceance reportable segment is comprised of our Grand River
gathering system.
Grand River system.
Grand River is primarily located in Garfield County, one of the
largest natural gas producing counties in Colorado. The Grand River
system provides natural gas gathering services pursuant to
primarily long-term and fee-based agreements with multiple
producers, including its key customers, Caerus Oil and Gas and
Terra Energy Partners. Volume throughput on the Grand River system
is underpinned with acreage dedications and MVCs.
The Grand River system is primarily a low-pressure gathering system
located in western Colorado that gathers natural gas produced from
directional wells targeting the liquids-rich Mesaverde formation.
The Grand River system also gathers natural gas produced from the
Mancos and Niobrara shale formations.
Natural gas gathered and/or processed on the Grand River system is
compressed, dehydrated, processed and/or discharged to downstream
pipelines serving (i) the Meeker Processing Complex, (ii) the
Williams Processing Complex and (iii) the TransColorado Pipeline
system. Processed NGLs from Grand River are injected into the
Mid-America Pipeline system or delivered to local markets. Residue
gas has access to multiple pipelines and end markets. In addition,
certain of our gathering agreements with our customers on the Grand
River system permit us to retain, and monetize for our own account,
condensate volumes that naturally discharge from the liquids-rich
natural gas as it moves across our system.
Barnett.
The following table provides operating information regarding our
Barnett reportable segment as of December 31,
2022.
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Throughput capacity (MMcf/d) |
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Average daily MVCs through 2027 (MMcf/d) |
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Remaining MVCs (Bcf) |
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Weighted-average remaining contract life (Years) |
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Weighted-average remaining MVC life (Years) |
Barnett |
450 |
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n/a |
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n/a |
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4 |
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n/a |
AMIs for the Barnett reportable segment cover approximately 124,000
surface acres.
Our Barnett reportable segment is comprised of DFW Midstream
system.
DFW Midstream system.
The DFW Midstream system is primarily located in southeastern
Tarrant County, in north-central Texas. We consider this area to be
the core of the Barnett Shale because of the quality of the geology
and the high production profile of the wells drilled to date in our
service area. The DFW Midstream system is underpinned by a
long-term, fee-based gathering agreements with Total Gas &
Power North America, Inc. (“Total”) and other customers. Total is
the key customer for DFW Midstream.
The DFW Midstream system includes natural gas gathering pipelines
located under both private and public property and is partially
located along existing electric transmission corridors. Compression
on the system is powered by electricity. To offset the costs we
incur to operate the system's electric-drive compressors, we either
pass through a portion of the power expense to our customers or
retain and sell a fixed percentage of the natural gas that we
gather.
The DFW Midstream system currently has five primary
interconnections with third-party, primarily intrastate pipelines.
These interconnections enable us to connect our customers, directly
or indirectly, with the major natural gas market hubs in Texas and
Louisiana.
Our Customers
The systems that we operate and/or have significant ownership
interests in have a diverse group of customers and counterparties
comprising affiliates and/or subsidiaries of some of the largest
natural gas and crude oil producers in North America.
Regulation of the Natural Gas and Crude Oil Industries
General.
Sales by producers of natural gas, crude oil, condensate and NGLs
are currently made at market prices. However, gathering and
transportation services are subject to various types of regulation,
which may affect certain aspects of our business and the market for
our services. FERC regulates the transportation of natural gas in
interstate commerce and the interstate transportation of crude oil,
petroleum products and NGLs. FERC regulation includes reviewing and
accepting or approving rates and other terms and conditions for
such transportation services and authorizing and regulating the
construction and operation of interstate natural gas pipelines.
FERC is also authorized to prevent and sanction market manipulation
in natural gas markets while the FTC is authorized to prevent and
sanction market manipulation in petroleum
markets and
the CFTC is authorized to prevent and sanction fraud and price
manipulations in the commodity and futures markets, including the
energy futures markets. State and municipal regulations may apply
to the production and gathering of certain natural gas, the
construction and operation of natural gas and crude oil facilities
and the rates and practices of gathering systems and intrastate
pipelines.
Regulation of Crude Oil and Natural Gas Exploration, Production and
Sales. Sales
of crude oil and NGLs are not currently regulated and are
transacted at market prices. In 1989, the U.S. Congress enacted the
Natural Gas Wellhead Decontrol Act, which removed all remaining
price and non-price controls affecting wellhead sales of natural
gas. FERC, which has the authority under the NGA to regulate the
prices and other terms and conditions of the sale of natural gas
for resale in interstate commerce, has issued blanket
authorizations for all gas resellers subject to its regulation,
except interstate pipelines, to resell natural gas at market
prices. Either Congress or FERC (with respect to the resale of gas
in interstate commerce), however, could re-impose price controls in
the future.
Exploration and production operations are subject to various types
of federal, state and local regulation, including, but not limited
to, permitting, well location, methods of drilling, well operations
and conservation of resources. While these regulations do not
directly apply to our business, they may affect our customers'
ability to produce natural gas.
Regulation of the Gathering and Transportation of Natural Gas and
Crude Oil. We
believe that the majority of our natural gas pipeline facilities
qualify as gathering facilities that are exempt from the
jurisdiction of FERC. Our Double E Pipeline, which is an interstate
natural gas pipeline located in New Mexico and Texas, and Epping
Pipeline interstate crude oil pipeline, which is located in North
Dakota and owned and operated by Epping, are subject to FERC’s
jurisdiction and oversight pursuant to FERC's authority under the
NGA and the ICA, respectively. Epping and Double E have tariffs on
file with FERC.
In addition to approving and regulating the construction and
operation of interstate natural gas pipelines, FERC also regulates
such pipelines’ rates and terms and conditions of service,
including transportation service agreements and negotiated rate
agreements.
Under FERC’s ICA jurisdiction, rates for interstate movements of
liquids by pipeline are currently regulated primarily through an
annual indexing methodology, under which pipelines increase or
decrease their existing rates in accordance with a FERC-specified
adjustment that sets a rate ceiling. This adjustment, which may be
positive or negative in a given year, is subject to review every
five years. For the five-year period beginning on July 1, 2021,
FERC established an annual index adjustment equal to the change in
the producer price index for finished goods minus 0.21%. FERC’s
orders establishing this adjustment are subject to pending judicial
review.
Under current FERC regulations, liquids pipelines can request a
rate increase that exceeds the rate obtained through the indexing
methodology by using a cost-of-service approach, but a pipeline
must establish that a substantial divergence exists between its
actual costs and the rates resulting from the indexing
methodology.
The ICA permits interested persons to challenge proposed new or
changed rates and authorizes FERC to suspend the effectiveness of
such rates for up to seven months and investigate such rates. If,
upon completion of an investigation, FERC finds that the new or
changed rate is unlawful, it is authorized to require the pipeline
to refund revenues collected in excess of the just and reasonable
rate during the term of the investigation. FERC may also
investigate, upon complaint or on its own motion, rates that are
already in effect and may order a carrier to change its rates
prospectively. Under certain circumstances, FERC could limit
Epping’s ability to set rates based on costs or could order reduced
rates and reparations to complaining shippers for up to two years
prior to the date of a complaint. FERC also has the authority to
change terms and conditions of service if it determines that they
are unjust and unreasonable or unduly discriminatory or
preferential. The ICA also imposes potential criminal liability for
certain violations of the statute.
FERC has jurisdiction over, among other things, the construction,
ownership and commercial operation of pipelines and related
facilities used in the transportation and storage of natural gas in
interstate commerce, including the modification,
extension,
enlargement, and abandonment of such facilities. FERC also has
jurisdiction over the rates, charges, and term and conditions of
service for the transportation and storage of natural gas in
interstate commerce. With respect to transportation rates, FERC
exercises its ratemaking authority by applying cost-of-service
principles to limit the maximum and minimum levels of tariff-based
recourse rates; however, it also allows for discounted or
negotiated rates as an alternative to cost-based rates. In
addition, FERC regulations also restrict interstate natural gas
pipelines from sharing certain transportation or customer
information with marketing affiliates and require that the
transmission function personnel of interstate natural gas pipelines
operate independently of the marketing function personnel of the
pipeline or its affiliates.
Pursuant to the NGA, existing interstate natural gas transportation
and storage rates and terms and conditions of service may be
challenged by complaint and are subject to prospective change by
FERC. Additionally, rate changes and changes to terms and
conditions of service proposed by a regulated natural gas
interstate pipeline may be protested and such changes can be
delayed and may ultimately be rejected by FERC. FERC may also
initiate reviews of an interstate pipeline’s rates. Double E
currently holds authority from the FERC to charge and collect (i)
“recourse rates,” which are the maximum cost-based rates an
interstate natural gas pipeline may charge for its services under
its tariff; (ii) “discount rates,” which are rates offered by the
natural gas pipeline to shippers at discounts vis-à-vis the
recourse rates and that fall within the cost-based maximum and
minimum rate levels set forth in the natural gas pipeline's tariff;
and (iii) “negotiated rates,” which are rates negotiated and agreed
to by the pipeline and the shipper for the contract term that may
fall within or outside of the cost-based maximum and minimum rate
levels set forth in the tariff, and which are individually filed
with the FERC for review and acceptance.
On November 18, 2021, we entered into negotiated rate agreements
with an average term of 10 years from the in-service date of the
pipeline and with total MDTQ’s that increase from 585,000 Dth/d
during the first year of the agreement to 1,000,000 Dth/d in the
fourth year, which equates to approximately 74% of its certificated
capacity of 1,350,000 Dth/d. When capacity is available and offered
for sale, the rates (which include reservation, commodity,
surcharges, and fixed fuel and lost and unaccounted for charges)
and the terms and conditions at which such capacity is sold are
subject to regulatory approval and oversight.
Any successful challenge by a regulator or shipper in any of these
matters could have a material adverse effect on our business,
financial condition and results of operations.
Intrastate pipelines, which may include some pipelines that perform
gathering functions, may be subject to safety regulation by the
DOT, although typically state regulatory authorities (operating
under a federal certification)
perform this function. State regulatory authorities also have
jurisdiction over the rates and practices of intrastate pipelines
and gathering systems, including requirements for ratable takes or
non-discriminatory access to pipeline services. The basis for state
regulation and the degree of regulatory oversight of gathering
systems and intrastate pipelines varies from state to state. In
Texas, we are regulated as a gas utility and have filed tariffs
with the Railroad Commission of Texas to establish rates and terms
of service for our DFW Midstream system assets. We have not been
required to file tariffs in the other states in which we operate,
although we are required to submit shape files and other
information regarding the location and construction of underground
gathering pipelines in North Dakota. The states in which we operate
have adopted complaint-based regulation that allows natural gas
producers and shippers to file complaints with state regulators in
an effort to resolve access issues and rate grievances, among other
matters. State authorities in the states in which we operate
generally have not initiated investigations of the rates or
practices of gathering systems or intrastate pipelines in the
absence of a complaint. State regulation of intrastate pipelines
continues to evolve and may become more stringent in the future.
For example, in 2016, the North Dakota Industrial Commission
(“NDIC”) adopted rule changes that resulted in additional
construction and monitoring requirements for all pipelines,
including, but not limited to, those that transport produced water.
The NDIC has also adopted reclamation bonding requirements for
certain underground gathering pipelines in North
Dakota.
Natural gas, crude oil and produced water production, gathering and
transportation, including the construction of new gathering
facilities and expansion of existing gathering facilities may also
be subject to local regulation, such as approval and permit
requirements.
Statutory Compliance and Anti-Market Manipulation
Rules. We
are subject to the anti-market manipulation and penalty provisions
in the NGA and the NGPA, as amended by the Energy Policy Act of
2005, which authorize FERC to impose fines of up to approximately
$1.5 million per day per violation of the NGA, the NGPA, or their
implementing rules, regulations, and orders subject to future
adjustments for inflation. In addition, the FTC holds statutory
authority under the Energy Independence and Security Act of 2007 to
prevent market manipulation in petroleum markets, including the
authority to request that a court impose fines of up to
approximately $1.4 million per violation, subject to future
adjustment for inflation. These agencies have promulgated broad
rules and regulations prohibiting fraud and manipulation in oil and
gas markets. The CFTC is directed under the CEA to prevent price
manipulations in the commodity and futures markets, including the
energy futures markets. Pursuant to statutory authority, the CFTC
has adopted anti-market manipulation regulations that prohibit
fraud and price manipulation in the commodity and futures markets.
The CFTC also has statutory authority to seek civil penalties of up
to the greater of approximately $1.4 million per day per violation,
subject to future adjustment for inflation, or triple the monetary
gain to the violator for violations of the anti-market manipulation
sections of the CEA. We are also subject to various reporting
requirements that are designed to facilitate transparency and
prevent market manipulation.
Safety and Maintenance. We
are subject to regulation by the DOT, which establishes federal
safety standards for the design, construction, operation and
maintenance of natural gas and crude oil pipeline facilities. In
the Pipeline Safety Act of 1992, Congress expanded the DOT's
regulatory authority to include regulated gathering lines that had
previously been exempt from federal jurisdiction. Additional
legislation has been passed over the years to reauthorize federal
funding for federal pipeline programs, increase penalties for
safety violations and establish additional safety requirements. For
example, in December 2020, the Protecting our Infrastructure of
Pipelines and Enhancing Safety Act of 2020 became law,
reauthorizing PHMSA for funding through 2023 and requiring, among
other things, rulemaking to amend the integrity management program,
emergency response plan, operation and maintenance manual, and
pressure control recordkeeping requirements for gas distribution
operators; to create new leak detection and repair program
obligations; and to set new minimum federal safety standards for
onshore gas gathering lines.
The DOT has delegated the implementation of pipeline safety
requirements to PHMSA, which has adopted and enforces safety
standards and procedures applicable to a limited number of our
pipelines. In addition, many states, including the states in which
we operate, have adopted regulations that are identical to or more
restrictive than existing PHMSA regulations for intrastate
pipelines. Among the regulations applicable to us, PHMSA requires
pipeline operators to develop integrity management programs for
certain pipelines located in high consequence areas, which include
high-population areas such as the Dallas-Fort Worth greater
metropolitan area where our DFW Midstream system is located. While
the majority of our pipelines have historically met the DOT
definition of gathering lines and were thus exempt from the
integrity management requirements of PHMSA, we also operate a
limited number of pipelines that are subject to the integrity
management requirements. Those regulations require operators,
including us, to:
•perform
ongoing assessments of pipeline integrity;
•identify
and characterize applicable threats to pipeline segments that could
impact a high consequence area;
•maintain
processes for data collection, integration and
analysis;
•repair
and remediate pipelines as necessary;
•adopt
and maintain procedures, standards and training programs for
control room operations; and
•implement
preventive and mitigating actions.
In addition, PHMSA has taken recent action to regulate gathering
systems, which includes integrity management requirements. In
November 2021, PHMSA issued a final rule that extended pipeline
safety requirements to onshore gas gathering pipelines. The rule
requires all onshore gas gathering pipeline operators to comply
with PHMSA’s incident and annual reporting requirements.
It also extends existing pipeline safety requirements to a new
category of gas gathering pipelines, “Type C” lines, which
generally include high-pressure pipelines that are larger than
8.625 inches in diameter. Safety requirements applicable to Type C
lines vary based on pipeline diameter and potential failure
consequences. The final rule became effective in May 2022 and
operators were required to comply with the applicable safety
requirements by November 2022.
PHMSA has also imposed additional requirements on onshore gas
transmission systems and hazardous liquids pipelines in recent
years. In October 2019, the PHMSA issued three new final rules. One
rule, which became effective in December 2019, establishes
procedures to implement the expanded emergency order enforcement
authority set forth in an October 2016 interim final rule. Among
other things, this rule allows the PHMSA to issue an emergency
order without advance notice or opportunity for a hearing. The
other two rules, which became effective in July 2020, imposed
several new requirements on operators of onshore gas transmission
systems and hazardous liquids pipelines. The rule concerning gas
transmission extended the requirement to conduct integrity
assessments beyond “high consequence areas” (“HCAs”) to pipelines
in “moderate consequence areas” (“MCAs”). It also included
requirements to reconfirm Maximum Allowable Operating Pressure
(“MAOP”), report MAOP exceedances, consider seismicity as a risk
factor in integrity management, and use certain safety features on
in-line inspection equipment. PHMSA modified the rule in July 2020,
in response to a petition for reconsideration, to limit the rule’s
recordkeeping requirement related to class location changes to gas
transmission pipelines (not gas distribution pipelines) and to
clarify that the rule’s reconfirmation requirements related to MAOP
is limited to segments without traceable, verifiable and complete
pressure test records. The rule concerning hazardous liquids
extended the required use of leak detection systems beyond HCAs to
all regulated non-gathering hazardous liquid pipelines, requires
reporting for gravity fed lines and unregulated gathering lines,
requires periodic inspection of all lines not in HCAs, calls for
inspections of lines after extreme weather events, and added a
requirement to make all lines in or affecting HCAs capable of
accommodating in-line inspection tools over the next 20 years. In
addition, in August 2022, PHMSA issued a final rule that
established new or additional requirements for natural gas
transmission lines related to the management of change process,
integrity management, corrosion control standards, and pipeline
inspections and repairs.
Gathering systems like ours are also subject to a number of other
federal and state laws and regulations, including the Federal
Occupational Safety and Health Act and comparable state statutes,
the purposes of which are to protect the health and safety
of
workers, both generally and within the pipeline industry. In
addition, the Occupational Safety and Health Administration hazard
communication standard, EPA community right-to-know regulations
under Title III of the federal Superfund Amendment and
Reauthorization Act and comparable state statutes require that
information be maintained concerning hazardous materials used or
produced in our operations and that such information be provided to
employees, state and local government authorities and the
public.
Environmental Matters
General. Our
operation of pipelines and other assets for the gathering,
treating, transportation and/or processing of natural gas and the
gathering of crude oil and produced water is subject to stringent
and complex federal, state and local laws and regulations relating
to the protection of the environment. As an owner or operator of
these assets, we must comply with these laws and regulations at the
federal, state and local levels. These laws and regulations can
restrict or impact our business activities in many ways, such
as:
•requiring
the installation of pollution-control equipment or otherwise
restricting the way we operate;
•limiting
or prohibiting construction activities in sensitive areas, such as
wetlands, coastal regions or areas inhabited by endangered or
threatened species;
•delaying
system modification or upgrades during permit reviews;
•requiring
investigatory and remedial actions to mitigate pollution conditions
caused by our operations or attributable to former operations;
and
•enjoining
the operations of facilities deemed to be in non-compliance with
permits or permit requirements issued pursuant to or imposed by
such environmental laws and regulations.
Failure to comply with these laws and regulations may trigger
administrative, civil and criminal enforcement measures, including
the assessment of monetary penalties. Certain environmental
statutes impose strict joint and several liability for costs
required to clean up and restore sites where substances,
hydrocarbons or wastes have been disposed or otherwise released.
Moreover, it is not uncommon for neighboring landowners and other
third parties to file claims for personal injury and property
damage allegedly caused by the release of hazardous substances,
hydrocarbons or other waste products into the
environment.
The trend in environmental regulation is to place more stringent
requirements, resulting in more restrictions and limitations, on
activities that may affect the environment. Thus, there can be no
assurance as to the amount or timing of future expenditures for
environmental compliance or remediation and actual future
expenditures may be different from the amounts we currently
anticipate. We try to anticipate future regulatory requirements
that might be imposed and plan accordingly to remain in compliance
with changing environmental laws and regulations and to minimize
the costs of such compliance. We also actively participate in
industry groups that help formulate recommendations for addressing
existing and future regulations.
The following is a discussion of the material environmental laws
and regulations that relate to our business.
Hazardous Substances and Waste. Our
operations are subject to environmental laws and regulations
relating to the management and release of solid and hazardous
wastes and other substances, including hydrocarbons. These laws
generally regulate the generation, storage, treatment,
transportation and disposal of solid and hazardous waste and may
impose strict joint and several liability for the investigation and
remediation of affected areas where hazardous substances may have
been released or disposed. Furthermore, the Toxic Substances
Control Act and analogous state laws, impose requirements on the
use, storage and disposal of various chemicals and chemical
substances at our facilities. CERCLA and comparable state laws
impose liability, without regard to fault or the legality of the
original conduct, on certain classes of persons that contributed to
the release of a hazardous substance into the environment. We may
handle hazardous substances within the meaning of CERCLA, or
similar state statutes, in the course of our ordinary operations
and, as a result, may be jointly and severally liable under CERCLA
for all or part of the costs required to clean up sites at which
these hazardous substances have been released into the
environment.
We also generate industrial wastes that are subject to the
requirements of the RCRA and comparable state statutes. While the
RCRA regulates both solid and hazardous wastes, it imposes strict
requirements on the generation, storage, treatment, transportation
and disposal of hazardous wastes. Although we generate minimal
hazardous waste, it is possible that non-hazardous wastes, which
could include wastes currently generated during our operations,
will in the future be designated as hazardous wastes and,
therefore, be subject to more rigorous and costly disposal
requirements. Moreover, from time to time, the EPA and state
regulatory agencies have considered the adoption of stricter
disposal standards for non-hazardous wastes, including natural gas
wastes.
We currently own or lease properties where hydrocarbons are being
or have been handled for many years. Although we believe that the
previous operators utilized operating and disposal practices that
were standard in the industry at the time, hydrocarbons or other
wastes may have been disposed of or released on or under the
properties owned or leased by us or on or under the
other
locations where these hydrocarbons and wastes have been transported
for treatment or disposal, without our knowledge. These properties
and the wastes disposed thereon may be subject to CERCLA, the RCRA
and analogous state laws. Under these laws, we could be required to
remove or remediate previously disposed wastes (including wastes
disposed of or released by prior owners or operators), to clean up
contaminated property (including contaminated groundwater) or to
perform remedial operations to prevent future contamination. We are
not currently aware of any facts, events or conditions relating to
such requirements that could materially impact our operations or
financial condition.
Air Emissions. Our
operations are subject to the federal CAA and comparable state and
local laws and regulations. These laws and regulations regulate
emissions of air pollutants from various industrial sources,
including our facilities, and also impose various monitoring,
control and reporting requirements. Such laws and regulations may
require that we obtain pre-approval for the construction or
modification of certain projects or facilities expected to produce
or significantly increase air emissions, obtain and strictly comply
with air permits containing various emissions and operational
limitations and utilize specific emission control technologies to
limit emissions. Our failure to comply with these requirements
could subject us to monetary penalties, injunctions, conditions or
restrictions on operations and criminal enforcement actions.
Furthermore, we may be required to incur certain capital
expenditures in the future to obtain and maintain operating permits
and approvals for air pollutant emitting sources.
In October 2015, the EPA issued a new lower NAAQS for ozone. The
previous ozone standard was set at 75 parts per billion (“ppb”).
The revised standard has been lowered to 70 ppb. The lowered ozone
NAAQS could subject us to increased regulatory burdens in the form
of more stringent emission controls, emission offset requirements
and increased permitting delays and costs.
In October 2022, EPA reclassified the Dallas Fort Worth area as
severe nonattainment under the 75 ppb standard and moderate
nonattainment under the 70 ppb standard. As part of the same
action, EPA also reclassified portions of Weld County, Colorado as
severe nonattainment under the 75 ppb standard. In July 2022, EPA
notified the State of Texas that it was considering redesignating
an area comprising several Texas and New Mexico counties in the
Permian Basin as a new ozone nonattainment area. These
reclassifications and redesignations in areas where we operate
could result in additional fees and more stringent permitting
requirements for our operations, among other things.
In addition, the EPA reviewed the 2015 70 ppb standard in 2020, but
retained the standard without revision. However, EPA has announced
that it will reconsider the 2020 decision to retain the 2015
standards. Future actions to lower the standard could similarly
result in additional fees or more stringent
permitting.
On June 3, 2016, the EPA finalized revisions to its 2012 New Source
Performance Standard (“NSPS”) OOOO for the oil and gas industry, to
reduce emissions of greenhouse gases - most notably methane - along
with smog-forming VOCs. The revisions, which are published in the
Federal Register under Subpart OOOOa, included the addition of
methane to the pollutants covered by the rule, along with
requirements for detecting and repairing leaks at gathering and
boosting stations. Further, in November 2021, the EPA issued a new
proposed rule targeting methane emissions from new and existing oil
and gas sources.
The proposed rule would: (1) update NSPS OOOOa; (2) adopt a new
NSPS OOOOb for sources that commence construction, modification or
reconstruction after the date the proposed rule is published in the
Federal Register; and (3) adopt a new NSPS OOOOc to establish
emissions guidelines, which will inform state plans to establish
standards for existing sources.
The EPA issued a supplemental proposal in November 2022 to update
and expand the proposed NSPS OOOOb and OOOOc rules. This
supplemental proposal would impose more stringent requirements and
include sources not previously regulated under this source
category.
If finalized, these increasingly stringent requirements, or the
application of new requirements to existing facilities, could
result in additional restrictions on operations and increased
compliance costs for us or our customers.
On November 16, 2016 the Bureau of Land Management (“BLM”) issued a
final rule to reduce venting and flaring of natural gas on public
and Indian lands. The final rule mirrored many of the requirements
found in NSPS OOOOa, with additional natural gas royalty
requirements for flared volumes at sites already connected to gas
capture infrastructure. The rule was vacated by a Wyoming federal
district judge in 2020. However, BLM proposed a new rule in
November 2022, similarly designed to reduce the waste of natural
gas from venting, flaring and leaks during oil and gas production
activities on federal and Indian leases. While the rule, if
finalized, is expected to have little or no direct impact on our
operations, our customers that are primarily upstream wellhead
operators may be impacted by the requirements in this
rule.
In recent years, the EPA has also demonstrated an increased focus
on CAA compliance for natural gas gathering operations. For
example, in September 2019, EPA issued an enforcement alert noting
that EPA identified CAA noncompliance caused by unauthorized and/or
excess emissions from depressurizing pig launchers and receivers in
natural gas gathering operations. The alert discussed engineering,
design, operations, and maintenance practices that EPA found that
can cause noncompliance and summarizes engineering solutions to
reduce emissions. This increased focus on natural gas gathering
operations and any resulting enforcement actions by the EPA or
state agencies could subject us to monetary penalties, injunctions,
conditions or restrictions on operations.
Water Discharges. The
CWA and analogous state laws impose restrictions and strict
controls regarding the discharge of pollutants into regulated
waters, which impacts our ability to conduct construction
activities in waters and wetlands. Certain state regulations and
the general permits issued under the Federal National Pollutant
Discharge Elimination System program prohibit the discharge of
pollutants and chemicals. In addition, the CWA and analogous state
laws require individual permits or coverage under general permits
for discharges of storm water runoff from certain types of
facilities. These permits require us to control storm water runoff
from some of our facilities. Some states also maintain groundwater
protection programs that require permits for discharges or
operations that may impact groundwater conditions. Federal and
state regulatory agencies can impose administrative, civil and
criminal penalties for non-compliance with discharge permits or
other requirements of the CWA and analogous state laws and
regulations. Except as otherwise disclosed in this annual report,
we believe that we are in substantial compliance with all
applicable requirements of the CWA and analogous state laws and
regulations relating to water discharges.
Oil Pollution Control Act. The
OPA requires the preparation of an SPCC plan for facilities engaged
in drilling, producing, gathering, storing, processing, refining,
transferring, distributing, using, or consuming oil and oil
products, and which due to their location, could reasonably be
expected to discharge oil in harmful quantities into or upon the
navigable waters of the United States. The owner or operator of an
SPCC-regulated facility is required to prepare a written,
site-specific spill prevention plan, which details how a facility's
operations comply with the requirements. To be in compliance, the
facility's SPCC plan must satisfy all of the applicable
requirements for drainage, bulk storage tanks, tank car and truck
loading and unloading, transfer operations (intrafacility piping),
inspections and records, security and training. Certain of our
facilities are classified as SPCC-regulated facilities. We believe
that they are in substantial compliance with all applicable
requirements of OPA.
Hydraulic Fracturing.
Hydraulic fracturing is an important practice that is used to
stimulate production of natural gas and/or crude oil from dense
subsurface rock formations, and is primarily regulated by state
agencies. A number of states – such as Colorado, as discussed above
– have adopted, and other states are considering adopting, legal
requirements that could impose more stringent permitting,
disclosure and well construction requirements on crude oil and/or
natural gas drilling activities. For example, during the 2021-2022
election cycle, Colorado representatives proposed a ballot
initiative to ban hydraulic fracturing on all non-federal land, but
the proposed initiative failed to garner significant
support.
States also could elect to prohibit hydraulic fracturing
altogether, as New York, Maryland, Oregon, and Vermont have done.
In addition, certain local governments have adopted, and additional
local governments may adopt, ordinances within their jurisdictions
regulating the time, place and manner of drilling activities in
general or hydraulic fracturing activities in particular. These
initiatives and similar efforts in Colorado and elsewhere could
restrict oil and gas development in the future.
The EPA has also moved forward with various regulatory actions,
including a proposal to issue new regulations under the NSPS to
expand and strengthen emissions reduction requirements under NSPS
OOOOa for new, modified and reconstructed oil and natural gas
sources, and require states to reduce methane emissions from
existing sources nationwide. For further discussion of NSPS OOOOa
and subsequent actions by the EPA, see the “Air Emissions” section
above. The BLM has also asserted regulatory authority over aspects
of the hydraulic fracturing process, and issued a final rule in
March 2015 that established more stringent standards for performing
hydraulic fracturing on federal and Indian lands, including
requirements relating to well construction and integrity, handling
of wastewater and chemical disclosure. However, in December 2017,
the BLM published a final rule rescinding the 2015 rule. The U.S.
District Court for the Northern District of California upheld the
December 2017 rescission rule in a March 2020 decision, and the
State of California and environmental plaintiffs appealed. The
parties remain in settlement discussions.
Further, several federal governmental agencies (including the EPA)
have conducted reviews and studies on the environmental aspects of
hydraulic fracturing, including the EPA. The results of such
reviews or studies could spur initiatives to further regulate
hydraulic fracturing.
State and federal regulatory agencies have also focused on a
possible connection between the hydraulic fracturing related
activities and the increased occurrence of seismic activity. When
caused by human activity, such events are called induced
seismicity. Some state regulatory agencies, including those in
Colorado, Ohio, and Texas, have modified their regulations or
guidance to account for induced seismicity. These developments
could result in additional regulation and restrictions on the use
of injection disposal wells and hydraulic fracturing. Such
regulations and restrictions could cause delays and impose
additional costs and restrictions on our customers.
Additionally, certain of our customers produce oil and gas on
federal lands. On January 20, 2021, the Acting Secretary for the
Department of the Interior signed an order effectively suspending
new fossil fuel leasing and permitting on federal lands for 60
days. Then on January 27, 2021, President Biden issued an executive
order indefinitely suspending new oil and natural gas leases on
public lands or in offshore waters pending completion of a
comprehensive review and reconsideration of federal oil and gas
permitting and leasing practices. Several states filed lawsuits
challenging the suspension, and on June 15, 2021, a judge in the
U.S. District Court for the Western District of Louisiana issued a
nationwide temporary injunction blocking the suspension. Although
the injunction was subsequently overturned by the Court of Appeals
for the Fifth Circuit, on remand the US District Court issued a
permanent injunction as requested by the plaintiff states in August
2022. The Department of the
Interior has since resumed leasing.
However, the Biden Administration continues to evaluate federal
leasing and could impose additional restrictions in the
future.
If new or more stringent federal, state or local legal restrictions
relating to drilling activities or to the hydraulic fracturing
process are adopted, this could result in a reduction in the supply
of natural gas and/or crude oil that our customers produce, and
could thereby adversely affect our revenues and results of
operations. Compliance with such rules could also generally result
in additional costs, including increased capital expenditures and
operating costs, for our customers, which could ultimately decrease
end-user demand for our services and could have a material adverse
effect on our business.
Endangered Species Act. The
Endangered Species Act restricts activities that may affect
endangered or threatened species or their habitats. Some of our
pipelines may be located in areas that are designated as habitats
for endangered or threatened species.
National Environmental Policy Act.
NEPA establishes a national environmental policy and goals for the
protection, maintenance and enhancement of the environment and
provides a process for implementing these goals within federal
agencies. Major projects requiring federal permits or involving
federal funding that have the potential to significantly impact the
environment require review under NEPA. Many of our activities are
covered under categorical exclusions which result in an expedited
NEPA review process. Large upstream and downstream projects with
significant cumulative impacts may be subject to longer NEPA review
processes, which could impact the timing of those projects and our
services associated with them.
Climate Change. The
EPA has adopted regulations under the CAA that, among other things,
establish GHG emission limits from motor vehicles as well as
establish PSD construction and Title V operating permit reviews for
certain large stationary sources that are potential major sources
of GHG emissions. Facilities required to obtain PSD permits for
their GHG emissions also will be required to meet “best available
control technology” standards that will be established by the
states or, in some cases, by the EPA on a case-by-case
basis.
EPA rules also require the reporting of GHG emissions from
specified large GHG-emitting sources in the United States,
including onshore and offshore oil and natural gas systems. We are
required to report under these rules for our assets that have GHG
emissions above the reporting thresholds. In October 2015, the EPA
issued revisions to Subpart W of the GHG reporting rule to include
reporting requirements for gathering and booster stations, onshore
natural gas transmission pipelines, and completions and workovers
of oil wells with hydraulic fracturing. This development resulted
in increased monitoring and reporting for our operations and for
upstream producers for whom we provide midstream services. Further,
the Inflation Reduction Act, signed into law in August 2022,
includes a Methane Emissions Reduction Program to incentivize
methane emission reductions and impose a fee on GHG emissions from
certain oil and gas facilities.
In addition, almost half of the states, either individually or
through multi-state regional initiatives, have begun to address GHG
emissions, primarily through the planned development of emission
inventories or regional GHG cap and trade programs. Most of these
cap and trade programs work by requiring either major sources of
emissions, such as electric power plants, or major producers of
fuels, such as refineries and gas processing plants, to acquire and
surrender emission allowances. In general, the number of allowances
available for purchase is reduced each year until the overall GHG
emission reduction goal is achieved. Depending on the scope of a
particular program, we could be required to purchase and surrender
allowances for GHG emissions resulting from our operations (e.g.,
at compressor stations). Although most of the state-level
initiatives have to date been focused on large sources of GHG
emissions, such as electric power plants, it is possible that
certain components of our operations, such as our gas-fired
compressors, could become subject to state-level GHG-related
regulation.
Further, in December 2015, over 190 countries, including the United
States, reached an agreement to reduce global GHG emissions. The
agreement entered into force in November 2016 after over 70
countries, including the United States, ratified or otherwise
consented to be bound by the agreement. In November 2019, the
United States submitted formal notification to the United Nations
that it intended to withdraw from the agreement. However, on
January 20, 2021, President Biden signed an “Acceptance on Behalf
of the United States of America” that reversed the prior
withdrawal, and the United States officially rejoined the Paris
Agreement on February 19, 2021. As part of rejoining the Paris
Agreement, President Biden announced that the United States would
commit to a 50 to 52 percent reduction from 2005 levels of GHG
emissions by 2030 and set the goal of reaching net-zero GHG
emissions by 2050. In November 2021, the Biden Administration
expanded on this commitment and announced “The Long-Term Strategy
of the United States: Pathways to Net-Zero Greenhouse Gas Emissions
by 2050,” establishing a roadmap to net zero emissions in the
United States by 2050 through, among other things, improvements in
energy efficiency; decarbonization of energy sources via
electricity, hydrogen, and sustainable biofuels; and reductions in
non-CO2 GHG emissions, such as methane and nitrous oxide.
These initiatives followed a series of executive orders by
President Biden designed to address climate change. For example,
the Executive Order on “Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis”
called for new regulations and policies to address climate change
and suspend, revise, or rescind, prior agency actions that were
identified as conflicting with the Biden Administration’s climate
policies. Reentry into the Paris Agreement, new legislation, or
President Biden’s executive orders may result in the development
of
additional regulations or changes to existing regulations, which
could have a material adverse effect on our business and that of
our customers.
Legislation or regulations that may be adopted to address climate
change could also affect the markets for our products, and those of
our customers, by making our products more or less desirable than
competing sources of energy. For example, the Inflation Reduction
Act includes a variety of tax credits to incentivize the
development and use of solar, wind, and other alternative energy
sources while imposing several new requirements on oil and gas
operators. Furthermore, a number of local governments across the
country have banned or considered instituting bans on gas-fired
appliances in newly constructed homes and other buildings, and
federal agencies are considering more stringent safety or
efficiency standards that could impact the availability of, access
to or demand for gas-fired appliances. To the extent that our
products are competing with higher GHG-emitting energy sources, our
products would become more desirable in the market with more
stringent limitations on GHG emissions. Conversely, to the extent
that our products are competing with lower GHG-emitting energy
sources such as solar and wind, our products would become less
desirable in the market with more stringent limitations on GHG
emissions.
Other Information
Human Capital Resources. We
recognize that our continued ability to attract, retain and
motivate exceptional employees is vital to ensuring our long-term
competitive advantage and the ability to create value for our
unitholders. Our employees are critical to our long-term success
and are essential to helping us meet our goals. Among other things,
we support and incentivize our employees in the following
ways:
•Talent
development, compensation and retention – We strive to provide our
employees with a rewarding work environment, including the
opportunity for success and a platform for personal and
professional development. We provide a competitive benefits package
designed to attract and retain a skilled and diverse workforce. We
offer our employees a comprehensive benefits package, which
includes company funded health plan options, vision and dental
coverage, healthcare savings account, paid time off, parental leave
and flexible spending accounts. We also provide professional
training and development opportunities as well as education
reimbursement. We also offer employees immediate eligibility in our
401(k) plan with company matching program.
•Health
and safety – Employee health and safety in the workplace is one of
our core values. Some of the ways in which we support the health
and safety of our employees include wellness programs with
incentives and employee assistance programs.
•Inclusion
and diversity – We are committed to efforts to increase diversity
and foster an inclusive work environment that supports our
workforce.
As of December 31, 2022, the Partnership employed 252
people who provide direct, full-time support to our operations.
None of our employees are covered by collective bargaining
agreements, and we have not experienced any business interruption
as a result of any labor disputes.
Availability of Reports. We
make certain filings with the SEC, including, among other filings,
this annual report on Form 10-K, quarterly reports on Form 10-Q,
current reports on Form 8-K and all amendments and exhibits to
those reports, available free of charge through our
website, www.summitmidstream.com, as soon as reasonably
practicable after the date they are filed with, or furnished to,
the SEC.
We also post announcements, updates, events, investor information
and presentations on our website in addition to copies of all
recent news releases. We may use the Investors section of our
website to communicate with investors. It is possible that the
financial and other information posted there could be deemed to be
material information. Documents and information on our website are
not incorporated by reference herein.
The SEC maintains a website that contains reports, proxy and
information statements, and other information regarding issuers
that file electronically with the SEC through the SEC’s website,
http://www.sec.gov.
Item 1A. Risk Factors.
You should carefully consider the following risk factors in
addition to the other information included in this Annual Report.
Each of these risk factors could adversely affect our business,
operating results and financial condition, as well as adversely
affect the value of an investment in our common units:
Risks Related to Our Operations
We may not have sufficient cash from operations following the
establishment of cash reserves and payment of fees and expenses, to
enable us to pay distributions to holders of our common
units.
We may not have sufficient available cash from operating surplus
each quarter to pay the distributions to holders of our common
units.
We have not made a distribution on our common units or Series A
Preferred Units since we announced suspension of those
distributions on May 3, 2020.
Because our Series A Preferred Units rank senior to our common
units with respect to distribution rights, any accrued amounts on
our Series A Preferred Units must first be paid prior to our
resumption of distributions to our common unitholders. As of
December 31, 2022, the amount of accrued and unpaid distributions
on the Series A Preferred Units totaled $21.5 million.
Further, we do not expect to pay distributions on the common units
or Series A Preferred Units in the foreseeable future, and there
are restrictions on our ability to pay distributions under our
outstanding indebtedness that restrict our ability to pay cash
distributions on any of our equity securities. We intend to use our
cash flow to reduce debt and invest in our business.
The amount of cash we can distribute on our units principally
depends upon the amount of cash we generate from our operations,
which will fluctuate from quarter to quarter based on, among other
things:
•the
volumes we gather, transport, treat and process;
•the
level of production of natural gas and crude oil (and associated
volumes of produced water) from wells connected to our gathering
systems, which is dependent in part on the demand for, and the
market prices of, crude oil, natural gas and NGLs;
•damage
to pipelines, facilities, related equipment and surrounding
properties caused by earthquakes, floods, fires, severe weather,
explosions and other natural disasters, accidents and acts of
terrorism;
•leaks
or accidental releases of hazardous materials into the
environment;
•weather
conditions and seasonal trends;
•changes
in the fees we charge for our services;
•changes
in contractual MVCs and our customer’s capacity to make MVC
shortfall payments when due;
•the
level of competition from other midstream energy companies in our
areas of operation;
•changes
in the level of our operating, maintenance and general and
administrative expenses;
•regulatory
action affecting the supply of, or demand for, crude oil, natural
gas and NGLs, the fees we can charge, how we contract for services,
our existing contracts, our operating and maintenance costs or our
operating flexibility; and
•prevailing
economic and market conditions.
In addition, the actual amount of cash we have available for
distribution to our common unitholders depends on other factors,
some of which are beyond our control, including:
•the
level and timing of capital expenditures we make;
•the
level of our operating, maintenance and general and administrative
expenses;
•the
cost of acquisitions, if any;
•our
ability to sell assets, if any, and the price that we may receive
for such assets;
•our
debt service requirements and other liabilities;
•fluctuations
in our working capital needs;
•our
ability to borrow funds and access the debt and equity capital
markets;
•restrictions
contained in our debt agreements;
•the
amount of cash reserves established by our General
Partner;
•not
receiving anticipated shortfall payments from our
customers;
•adverse
legal judgments, fines and settlements;
•distributions
paid on our Series A Preferred Units, if any, or on the preferred
stock of our subsidiaries, including our Subsidiary Series A
Preferred Units; and
•other
business risks affecting our cash levels.
We depend on a relatively small number of customers for a
significant portion of our revenues. For example, Caerus, a
customer on our Piceance segment accounts for over 10% of our
consolidated revenue. The loss of, or material nonpayment or
nonperformance by, or the curtailment of production by, any one or
more of our customers could materially adversely affect our
revenues, cash flows and ability to make cash distributions to our
unitholders.
Our top five customers or counterparties accounted for 26% of our
total accounts receivable at December 31, 2022. Certain of our
customers may have material financial and liquidity issues or may,
as a result of operational incidents or other events, be
disproportionately affected as compared to larger,
better-capitalized companies. Any material nonpayment or
nonperformance by any of our customers could have a material
adverse effect on our revenues and cash flows and our ability to
make cash distributions to our unitholders. We expect our exposure
to concentrated risk of nonpayment or nonperformance to continue as
long as we remain substantially dependent on a relatively small
number of customers for a significant portion of our
revenues.
If any of our customers curtail or reduce production in our areas
of operation, it could reduce throughput on our systems and,
therefore, materially adversely affect our revenues, cash flows and
ability to make cash distributions to our unitholders.
Further, we are subject to the risk of non-payment or
non-performance by our larger customers. We cannot predict the
extent to which our customers’ businesses would be impacted if
conditions in the energy industry deteriorate, nor can we estimate
the impact such conditions would have on any of our customers’
abilities to execute their drilling and development programs or
perform under our gathering and processing agreements. An extended
low commodity price environment negatively impacts natural gas
producers causing some producers in the industry significant
economic stress, including, in certain cases, to file for
bankruptcy protection or to renegotiate contracts. To the extent
that any customer is in financial distress or commences bankruptcy
proceedings, contracts with these customers may be subject to
renegotiation or rejection under applicable provisions of the
United States Bankruptcy Code. Any material non-payment or
non-performance by our customers could adversely affect our
business and operating results.
We are exposed to the creditworthiness and performance of our
customers, suppliers and contract counterparties and any material
nonpayment or nonperformance by one or more of these parties could
materially adversely affect our financial and operating
results.
Although we attempt to assess the creditworthiness and associated
liquidity of our customers, suppliers and contract counterparties,
there can be no assurance that our assessments will be accurate or
that there will not be a rapid or unanticipated deterioration in
their creditworthiness, which may have an adverse impact on our
business, results of operations, financial condition and ability to
make cash distributions to our unitholders. In addition, there can
be no assurance that our contract counterparties will perform or
adhere to existing or future contractual arrangements, including
making any required shortfall payments or other payments due under
their respective contracts.
The policies and procedures we use to manage our exposure to credit
risk, such as credit analysis, credit monitoring and, if necessary,
requiring credit support, cannot fully eliminate counterparty
credit risks. To the extent our policies and procedures prove to be
inadequate, our financial and operational results may be negatively
impacted.
Some of our counterparties may be highly leveraged, have limited
financial resources and/or have recently experienced a rating
agency downgrade and will be subject to their own operating and
regulatory risks. Even if our credit review and analysis mechanisms
work properly, we may experience financial losses in our dealings
with such parties. In addition, volatility in commodity prices
could have a negative impact on our counterparties, which, in turn,
could have a negative impact on their ability to meet their
obligations to us.
Any material nonpayment or nonperformance by any of our
counterparties or suppliers could require us to pursue substitute
counterparties or suppliers for the affected operations or reduce
our operations. There can be no assurance that any such efforts
would be successful or would provide similar financial and
operational results.
Adverse developments in our areas of operation could materially
adversely impact our financial condition, results of
operations, cash flows and ability to make cash distributions
to our unitholders.
Our operations are focused on gathering, treating, transporting and
processing services in the following unconventional resource
basins, primarily shale formations: the Utica Shale, the Williston
Basin, the DJ Basin, the Permian Basin, the Piceance Basin, the
Barnett Shale and the Marcellus Shale. Due to our limited industry
diversity, adverse developments in the natural gas
and crude oil industries or in our existing areas of operation
could have a significantly greater impact on our financial
condition, results of operations and cash flows than if we did not
have such limited diversity.
Significant prolonged weakness in natural gas, NGL and crude oil
prices could reduce throughput on our systems and materially
adversely affect our revenues and cash available to make cash
distributions to our unitholders.
Lower natural gas, NGL and crude oil prices could negatively impact
exploration, development and production of natural gas and crude
oil, thereby resulting in reduced throughput on our gathering
systems. If natural gas, NGL and/or crude oil prices decrease, it
could cause sustained reductions in exploration or production
activity in our areas of operation and result in a further
reduction in throughput on our systems, which could have a material
adverse effect on our business, financial condition, results of
operations and ability to make cash distributions to our
unitholders. In the latter half of 2022, the Henry Hub Natural Gas
Spot Price declined from a monthly average of $8.81 per MMBtu in
August 2022 to a monthly average of $5.53 per MMBtu in December
2022, closing the year at $3.52 per MMBtu on December 30, 2022. As
of January 31, 2023, Henry Hub 12-month strip pricing closed at
$3.41 per MMBtu. Cushing, Oklahoma West Texas Intermediate crude
oil spot prices similarly trended down in the latter half of 2022,
from a monthly average of $114.84 per barrel in June 2022 to a
monthly average of $76.44 per barrel in December 2022, closing the
year at $80.16 per barrel on December 30, 2022. As of January 31,
2023, West Texas Intermediate 12-month strip pricing closed at
$78.03 per barrel.
Because of the natural decline in production from our customers'
existing wells, our success depends in part on our customers
replacing declining production and also on our ability to maintain
levels of throughput on our systems. Any decrease in the volumes
that we gather and process could materially adversely affect our
business and operating results.
The customer volumes that support our business depend on the level
of production from natural gas and crude oil wells connected to our
systems, the production from which may be less than expected and
will naturally decline over time. As a result, our cash flows
associated with these wells will also decline over time. To
maintain or increase throughput levels on our systems, we must
obtain new sources of volume throughput. The primary factors
affecting our ability to obtain new sources of volume throughput
include (i) the level of successful drilling activity in our areas
of operation and (ii) our ability to compete for new volumes on our
systems.
We have no control over the level of drilling activity in our areas
of operation, the amount of reserves associated with wells
connected to our systems or the rate at which production from a
well declines. In addition, we have no control over producers or
their drilling and production decisions, which are affected by,
among other things:
•the
availability and cost of capital;
•prevailing
and projected hydrocarbon commodity prices;
•demand
for crude oil, natural gas and other hydrocarbon products,
including NGLs;
•levels
of reserves;
•geological
considerations;
•environmental
or other governmental regulations, including the availability of
drilling permits and the regulation of hydraulic fracturing;
and
•the
availability of drilling rigs and other costs of production and
equipment.
Fluctuations in energy prices can also greatly affect the
development of new crude oil and natural gas reserves. Drilling and
production activities generally decrease as
commodity prices decrease. In general terms, the prices of crude
oil, natural gas and other hydrocarbon products fluctuate in
response to changes in supply and demand, market uncertainty and a
variety of additional factors that are beyond our control. These
factors include:
•worldwide
economic and geopolitical conditions;
•global
or national health concerns, including the outbreak of pandemic or
contagious disease, such as COVID-19, which may reduce demand for
crude oil, natural gas and NGLs because of reduced global or
national economic activity;
•weather
conditions and seasonal trends;
•the
levels of domestic production and consumer demand;
•the
availability of imported liquefied natural gas
(“LNG”);
•the
ability to export LNG;
•the
availability of transportation and storage systems with adequate
capacity;
•the
volatility and uncertainty of regional pricing differentials and
premiums;
•the
price and availability of alternative fuels, including alternative
fuels that benefit from government subsidies;
•the
effect of energy conservation measures;
•the
nature and extent of governmental regulation and taxation;
and
•the
anticipated future prices of crude oil, natural gas and other
hydrocarbon products, including NGLs.
Because of these factors, even if new crude oil or natural gas
reserves are known to exist in areas served by our assets,
producers may choose not to develop those reserves. If reductions
in drilling activity result in our inability to maintain the
current levels of throughput on our systems, those reductions could
reduce our revenues and cash flows and materially adversely affect
our ability to make cash distributions to our
unitholders.
In addition, it may be more difficult to maintain or increase the
current volumes on our gathering systems, as several of the
formations in the unconventional resource plays in which we operate
generally have higher initial production rates and steeper
production decline curves than wells in more conventional basins
and may have steeper production decline curves than initially
anticipated. Should we determine that the economics of our
gathering, treating, transportation and processing assets do not
justify the capital expenditures needed to grow or maintain volumes
associated therewith, revenues associated with these assets will
decline over time. In addition to capital expenditures to support
growth, the steeper production decline curves associated with
unconventional resource plays may require us to incur higher
maintenance capital expenditures over time, which will reduce our
cash available for distribution.
Many of our costs are fixed and do not vary with our throughput.
These costs will not decline ratably or at all should we experience
a reduction in throughput, which could result in a decline in our
revenues and cash flows and materially adversely affect our ability
to make cash distributions to our unitholders.
If our customers do not increase the volumes they provide to our
gathering systems, our ability to make cash distributions to our
unitholders may be materially adversely affected.
If we are unsuccessful in attracting new customers and/or new
gathering opportunities with existing customers, our ability to
make cash distributions to our unitholders will be impaired. Our
customers are not obligated to provide additional volumes to our
gathering systems, and they may determine in the future that
drilling activities in areas outside of our current areas of
operation are strategically more attractive to them. Reductions by
our customers in our areas of mutual interest could result in
reductions in throughput on our systems and materially adversely
impact our ability to make cash distributions to our
unitholders.
Certain of our gathering and processing agreements contain
provisions that can reduce the cash flow stability that the
agreements were designed to achieve.
We designed those gathering and processing agreements that contain
MVC provisions to generate stable cash flows for us over the life
of the MVC contract term while also minimizing our direct commodity
price risk. Under certain of these MVCs, our customers agree to
ship a minimum volume on our gathering systems or send a minimum
volume to our processing plants or, in some cases, to pay a minimum
monetary amount, over certain periods during the term of the MVC.
In addition, our gathering and processing agreements may also
include an aggregate MVC, which represents the total amount that
the customer must flow on our gathering system or send to our
processing plants (or an equivalent monetary amount) over the MVC
term. If such customer’s actual throughput volumes are less than
its MVC for the contracted measurement period, it must make a
shortfall payment to us at the end of the applicable measurement
period. The amount of the shortfall payment is based on the
difference between the actual throughput volume shipped or
processed for the applicable period and the MVC for the applicable
period, multiplied by the applicable fee. To the extent that a
customer’s actual throughput volumes are above or below its MVC for
the applicable contracted measurement period, certain of our
gathering agreements contain provisions that allow the customer to
use the excess volumes or the shortfall payment to credit against
future excess volumes or future shortfall payments, which could
have a material adverse effect on our results of operations,
financial condition and cash flows and our ability to make cash
distributions to our unitholders.
We have not obtained independent evaluations of all of the reserves
connected to our gathering systems; therefore, in the future,
customer volumes on our systems could be less than we
anticipate.
We do not routinely obtain or update independent evaluations of the
reserves connected to our systems. Moreover, even if we did obtain
independent evaluations of all of the reserves connected to our
systems, such evaluations may prove to be incorrect. Crude oil and
natural gas reserve engineering requires subjective estimates of
underground accumulations of crude oil and natural gas and
assumptions concerning future crude oil and natural gas prices,
future production levels and operating and development
costs.
Accordingly, we may not have accurate estimates of total reserves
dedicated to our systems or the anticipated life of such reserves.
If the total reserves or estimated life of the reserves connected
to our gathering systems are less than we anticipate and we are
unable to secure additional volumes, it could have a material
adverse effect on our business, results of operations, financial
condition and our ability to make cash distributions to our
unitholders.
Our industry is highly competitive, and increased competitive
pressure could materially adversely affect our business and
operating results.
We compete with other midstream companies in our areas of
operations, some of which are large companies that have greater
financial, managerial and other resources than we do. In addition,
some of our competitors may have assets in closer proximity to
natural gas and crude oil supplies and may have available idle
capacity in existing assets that would not require new capital
investments for use. Our competitors may expand or construct
gathering systems that would create additional competition for the
services we provide to our customers. Because our customers do not
have leases that cover the entirety of our areas of mutual
interest, non-customer producers that lease acreage within any of
our areas of mutual interest may choose to use one of our
competitors for their gathering and/or processing service
needs.
In addition, our customers may develop their own gathering systems
outside of our areas of mutual interest. Our ability to renew or
replace existing contracts with our customers at rates sufficient
to maintain current revenues and cash flows could be materially
adversely affected by the activities of our competitors and our
customers. All of these competitive pressures could have a material
adverse effect on our business, results of operations, financial
condition and ability to make cash distributions to our
unitholders.
We may not be able to renew or replace expiring contracts at
favorable rates or on a long-term basis.
Our gathering, treating, transportation and processing contracts
have terms of various durations. As these contracts expire, we may
have to negotiate extensions or renewals with existing customers or
enter into new contracts with other customers. We may be unable to
obtain new contracts on favorable commercial terms, if at all. We
also may be unable to maintain the economic structure of a
particular contract with an existing customer or the overall mix of
our contract portfolio. Moreover, we may be unable to obtain areas
of mutual interest from new customers in the future, and we may be
unable to renew existing areas of mutual interest with current
customers as and when they expire. The extension or replacement of
existing contracts depends on a number of factors beyond our
control, including:
•the
level of existing and new competition to provide gathering and/or
processing services in our areas of operation;
•the
macroeconomic factors affecting gathering, treating, transporting
and processing economics for our current and potential
customers;
•the
balance of supply and demand, on a short-term, seasonal and
long-term basis, in our markets;
•the
extent to which the customers in our areas of operation are willing
to contract on a long-term basis; and
•the
effects of federal, state or local regulations on the contracting
practices of our customers.
To the extent we are unable to renew our existing contracts on
terms that are favorable to us or successfully manage our overall
contract mix over time, our revenues and cash flows could decline
and our ability to make cash distributions to our unitholders could
be materially adversely affected.
If third-party pipelines or other midstream facilities
interconnected to our gathering systems become partially or fully
unavailable, our revenues and cash flows and our ability to make
cash distributions to our unitholders could be materially adversely
affected.
Our gathering systems connect to third-party pipelines and other
midstream facilities, such as processing plants, rail terminals and
produced water disposal facilities. The continuing operation of
such third-party pipelines and other midstream facilities is not
within our control. These pipelines and other midstream facilities
may become unavailable due to issues including, but not limited to,
testing, turnarounds, line repair, reduced operating pressure, lack
of operating capacity, regulatory requirements, curtailments of
receipt or deliveries due to insufficient capacity or because of
damage from other hazards. In addition, we do not have interconnect
agreements with all of these pipelines and other facilities and the
agreements we do have may be terminated in certain circumstances
and/or on short notice. If any of these pipelines or other
midstream facilities become unavailable for any reason, or, if
these third parties are otherwise unwilling to receive or transport
the natural gas, crude oil and produced water that we gather and/or
process, our revenues, cash flows and ability to make cash
distributions to our unitholders could be materially adversely
affected.
Crude oil and natural gas production and gathering may be adversely
affected by weather conditions and terrain, which in turn could
negatively impact the operations of our gathering, treating,
transportation and processing facilities and our construction of
additional facilities.
Extended periods of below freezing weather and unseasonably wet
weather conditions, especially in North Dakota, Colorado, Ohio and
West Virginia, can be severe and can adversely affect crude oil and
natural gas operations due to the potential shut-in of producing
wells or decreased drilling activities. These types of
interruptions could result in a decrease in the volumes supplied to
our gathering systems. Further, delays and shutdowns caused by
severe weather may have a material negative impact on the
continuous operations of our gathering, treating, transporting and
processing systems, including interruptions in service. These types
of interruptions could negatively impact our ability to meet our
contractual obligations to our customers and thereby give rise to
certain termination rights and/or the release of dedicated acreage.
Any resulting terminations or releases could materially adversely
affect our business and results of operations.
We also may be required to incur additional costs and expenses in
connection with the design and installation of our facilities due
to their locations and surrounding terrain. We may be required to
install additional facilities, incur additional capital and
operating expenditures, or experience interruptions in or
impairments of our operations to the extent that the facilities are
not designed or installed correctly. For example, certain of our
pipeline facilities are located in mountainous areas such as our
Utica Shale and Marcellus Shale operations, which may require
specially designed facilities and special installation
considerations. If such facilities are not designed or installed
correctly, do not perform as intended, or fail, we may be required
to incur significant expenditures to correct or repair the
deficiencies, or may incur significant damages to or loss of
facilities, and our operations may be interrupted as a result of
deficiencies or failures. In addition, such deficiencies may cause
damage to the surrounding environment, including slope failures,
stream impacts and other natural resource damages, and we may as a
result also be subject to increased operating expenses or
environmental penalties and fines.
Interruptions in operations at any of our facilities may adversely
affect our operations and cash flows available for distribution to
our unitholders.
Our operations depend upon the infrastructure that we have
developed and constructed. Any significant interruption at any of
our gathering, treating, transporting or processing facilities, or
in our ability to provide gathering, treating, transporting or
processing services, could adversely affect our operations and cash
flows available for distribution to our unitholders. Operations at
our facilities could be partially or completely shut down,
temporarily or permanently, as the result of circumstances not
within our control, such as:
•unscheduled
turnarounds or catastrophic events at our physical plants or
pipeline facilities;
•restrictions
imposed by governmental authorities or court
proceedings;
•labor
difficulties that result in a work stoppage or
slowdown;
•a
disruption in the supply of resources necessary to operate our
midstream facilities;
•damage
to our facilities resulting from production volumes that do not
comply with applicable specifications; and
•inadequate
transportation and/or market access to support production volumes,
including lack of pipeline, rail terminals, produced water disposal
facilities and/or third-party processing capacity.
Any significant interruption at any of our gathering, treating,
transporting or processing facilities, or in our ability to provide
gathering, treating, transporting or processing services, could
adversely affect our operations and cash flows available for
distribution to our unitholders.
Our business involves many hazards and operational risks, some of
which may not be fully covered by insurance. If a significant
incident or event occurs for which we are not adequately insured or
if we fail to recover all anticipated insurance proceeds for
significant incidents or events for which we are insured, our
operations and financial results could be materially adversely
affected.
Our operations are subject to all of the risks and hazards inherent
in the operation of gathering, treating, transporting and
processing systems, including:
•damage
to pipelines, processing plants, compression assets, related
equipment and surrounding properties caused by tornadoes, floods,
freezes, fires and other natural disasters and acts of
terrorism;
•inadvertent
damage from construction, vehicles, farm and utility
equipment;
•leaks
or losses resulting from the malfunction of equipment or
facilities;
•ruptures,
fires and explosions; and
•other
hazards that could also result in personal injury and loss of life,
pollution and suspension of operations.
These risks could result in substantial losses due to personal
injury and/or loss of life, severe damage to and destruction of
property and equipment and pollution or other environmental damage.
The location of certain of our systems in or near populated areas,
including residential areas, commercial business centers and
industrial sites, could increase the damages resulting from such
events.
These events may also result in curtailment or suspension of our
operations. A natural disaster or any event such as those described
above affecting the areas in which we and our customers operate
could have a material adverse effect on our operations. Accidents
or other operating risks could further result in loss of service
available to our customers. Such circumstances, including those
arising from maintenance and repair activities, could result in
service interruptions on portions or all of our gathering systems.
Potential customer impacts arising from service interruptions on
segments of our gathering systems could include limitations on our
ability to satisfy customer requirements, obligations to
temporarily waive MVCs during times of constrained capacity,
temporary or permanent release of production dedications, and
solicitation of existing customers by others for potential new
projects that would compete directly with our existing services.
Such circumstances could materially adversely impact our ability to
meet contractual obligations and retain customers, with a resulting
negative impact on our business and results of operations and our
ability to make cash distributions to our unitholders.
Although we have a range of insurance programs providing varying
levels of protection for public liability, damage to property, loss
of income and certain environmental hazards, we may not be insured
against all causes of loss, claims or damage that may occur. If a
significant incident or event occurs for which we are not fully
insured, it could materially adversely affect our operations and
financial condition. Furthermore, we may not be able to maintain or
obtain insurance of the type and amount we desire at reasonable
rates. As a result of industry or market conditions, some of which
are beyond our control, premiums and deductibles for certain of our
insurance policies may substantially increase. In some instances,
certain insurance could become unavailable or available only for
reduced amounts of coverage. Additionally, with regard to the
assets we have acquired, we have limited indemnification rights to
recover from the seller of the assets in the event of any potential
environmental liabilities.
We may fail to successfully integrate gathering system acquisitions
into our existing business in a timely manner, which could have a
material adverse effect on our business, results of operations,
financial condition and ability to make cash distributions to our
unitholders, or fail to realize all of the expected benefits of the
acquisitions, which could negatively impact our future results of
operations.
Integration of gathering system acquisitions, such as the 2022 DJ
Acquisitions, can be a complex, time-consuming and costly process,
particularly if the acquired assets significantly increase our size
and/or (i) diversify the geographic areas in which we operate or
(ii) the service offerings that we provide.
The failure to successfully integrate the acquired assets with our
existing business in a timely manner may have a material adverse
effect on our business, results of operations, financial condition
and ability to make cash distributions to our unitholders. If any
of the risks described above or in the immediately preceding risk
factor or unanticipated liabilities or costs were to materialize
with respect to future acquisitions or if the acquired assets were
to perform at levels below the forecasts we used to evaluate them,
then the anticipated benefits from the acquisition may not be fully
realized, if at all, and our future results of operations and
ability to make cash distributions to unitholders could be
negatively impacted.
Our construction of new assets may not result in revenue increases
and will be subject to regulatory, environmental, political, legal
and economic risks, which could materially adversely affect our
results of operations and financial condition.
The construction of new assets, including for example, the Double E
Pipeline, which was placed into service in November 2021, involve
numerous regulatory, environmental, political, legal and economic
uncertainties that are beyond our control.
Such construction projects may also require the expenditure of
significant amounts of capital and financing, traditional or
otherwise, that may not be available on economically acceptable
terms or at all. If we undertake these projects, our revenue may
not increase immediately upon the expenditure of funds for a
particular project and they may not be completed on schedule, at
the budgeted cost, or at all.
Moreover, we could construct facilities to capture anticipated
future production growth in a region where such growth does not
materialize or only materializes over a period materially longer
than expected. To the extent we rely on estimates of future
production in our decision to construct additions to our systems,
such estimates may prove to be inaccurate due to the numerous
uncertainties inherent in estimating quantities of future
production. As a result, new facilities may not attract enough
throughput to achieve our expected investment return, which could
materially adversely affect our results of operations and financial
condition.
In addition, the construction of additions or modifications to our
existing gathering, treating, transporting and processing assets
and the construction of new midstream assets may require us to
obtain federal, state and local regulatory environmental or other
authorizations. The approval process for gathering, treating,
transporting and processing activities has become
increasingly
challenging, due in part to state and local concerns related to
unregulated exploration and production and gathering, treating,
transporting and processing activities in new production areas.
Such authorization may not be granted or, if granted, such
authorization may include burdensome or expensive conditions. As a
result, we may be unable to obtain such authorizations and may,
therefore, be unable to connect new volumes to our systems or
capitalize on other attractive expansion opportunities. A future
government shutdown could delay the receipt of any federal
regulatory approvals. Additionally, it may become more expensive
for us to obtain authorizations or to renew existing
authorizations. If the cost of renewing or obtaining new
authorizations increases materially, our cash flows could be
materially adversely affected.
We do not own all of the land on which our pipelines and facilities
are located, which could result in disruptions to our
operations.
We do not own all of the land on which our pipelines and facilities
have been constructed, and we are, therefore, subject to the
possibility of more onerous terms and/or increased costs to retain
necessary land use if we do not have valid rights-of-way or if such
rights-of-way lapse or terminate or if our pipelines are not
properly located within the boundaries of such rights-of-way. We
obtain the rights to construct and operate our pipelines on land
owned by third parties and governmental agencies either perpetually
or for a specific period of time. If we were to be unsuccessful in
renegotiating rights-of-way, we might have to relocate our
facilities. Our loss of these rights, through our inability to
renew right-of-way contracts or otherwise, could have a material
adverse effect on our business, results of operations, financial
condition and ability to make cash distributions to our
unitholders.
Our ability to operate our business effectively could be impaired
if we fail to attract and retain key personnel, and a shortage of
skilled labor in the midstream energy industry could reduce
employee productivity and increase costs, which could have a
material adverse effect on our business and results of
operations.
Our ability to operate our business and implement our strategies
depends on our continued ability to attract and retain highly
skilled personnel with midstream energy industry experience and
competition for these persons in the midstream energy industry is
intense. Given our size, we may be at a disadvantage, relative to
our larger competitors, in the competition for these personnel. We
may not be able to continue to employ our senior executives and key
personnel or attract and retain qualified personnel in the future,
and our failure to retain or attract our senior executives and key
personnel could have a material adverse effect on our ability to
effectively operate our business.
Furthermore, as a result of labor shortages we have experienced
difficulty in recruiting and hiring skilled labor throughout our
organization. The operation of gathering, treating, transporting
and processing systems requires skilled laborers in multiple
disciplines such as equipment operators, mechanics and engineers,
among others. If we continue to experience shortages of skilled
labor in the future, our labor and overall productivity or costs
could be materially adversely affected. If our labor prices
increase or if we experience materially increased health and
benefit costs with respect to our General Partner's employees, our
business and results of operations and our ability to make cash
distributions to our unitholders could be materially adversely
affected.
A transition from hydrocarbon energy sources to alternative energy
sources could lead to changes in demand, technology and public
sentiment which could have material adverse effects on our business
and results of operations.
Increased public attention on climate change and corresponding
changes in consumer, commercial and industrial preferences and
behavior regarding energy use and generation may result
in:
•technological
advances with respect to the generation, transmission, storage and
consumption of energy (including advances in wind, solar and
hydrogen power, as well as battery technology);
•increased
availability of, and increased demand from consumers and industry
for, energy sources other than crude oil and natural gas (including
wind, solar, nuclear, and geothermal sources as well as electric
vehicles); and
•development
of, and increased demand from consumers and industry for,
lower-emission products and services (including electric vehicles
and renewable residential and commercial power supplies) as well as
more efficient products and services.
Such developments relating to a transition from oil and gas to
alternative energy sources and a lower-carbon economy may reduce
the demand for natural gas and crude oil and other products made
from hydrocarbons. Any significant decrease in the demand for
natural gas and crude oil could reduce the volumes of natural gas
and crude oil that we gather and process, which could adversely
affect our business and operating results.
Furthermore, if any such developments reduce the desirability of
participating in the midstream oil and gas industry, then such
developments could also reduce the availability to us of necessary
third-party services or facilities that we rely on, which could
increase our operational costs and have an adverse effect on our
business and results of operations.
Such developments and accompanying societal
expectations on companies to address climate change, investor and
societal expectations regarding voluntary ESG initiatives and
disclosures could, among other things, increase costs related to
compliance and stakeholder engagement, increase reputational risk
and negatively impact our access
to and cost of accessing capital. For example, some prominent
investors have announced their intention to no longer invest in the
oil and gas sector, citing climate change concerns. If other
financial institutions and investors refuse to invest in or provide
capital to the oil and gas sector in the future because of these
reputational risks, that could result in capital being unavailable
to us, or only at significantly increased cost.
The COVID-19 pandemic or other epidemics may have an adverse impact
on our business, results of operations, financial position and cash
flows.
The outbreak of COVID-19 and its variants continues to be a rapidly
evolving situation. The pandemic has resulted in widespread adverse
impacts on the global economy and on our business, including our
customers, employees, supply chain, and distribution network. Our
business may be adversely impacted by the COVID-19 pandemic,
including, but not limited to:
•Disruptions
in demand for oil, natural gas and other petroleum
products;
•Decreased
productivity resulting from illness, travel restrictions,
quarantine, or government mandates;
•Supply
chain disruptions resulting from quarantine requirements,
government restrictions, or reduced economic activity as a result
of increases in COVID-19 cases;
•Increased
challenges in retention of personnel caused by vaccine hesitancy
and the resistance of some in our workforce to comply with
workplace protocols necessary to ensure the health and safety of
our workforce and minimize disruptions to the business, such as
vaccine and testing requirements, or the use of personal protective
equipment.
Additionally, the effects of the COVID-19 pandemic might worsen the
likelihood or the impact of other risks already inherent in our
business.
The extent to which our operations are impacted by the COVID-19
pandemic will depend largely on future developments, which remain
highly uncertain and cannot be accurately predicted.
Risks Related to Our Finances
Limited access to and/or availability of the commercial bank
market, debt and equity capital markets could impair our ability to
grow or cause us to be unable to meet future capital
requirements.
To expand our asset base, whether through acquisitions or organic
growth, we will need to make expansion capital expenditures. We
also frequently consider and enter into discussions with third
parties regarding potential acquisitions. In addition, the terms of
certain of our gathering and processing agreements also require us
to spend significant amounts of capital, over a short period of
time, to construct and develop additional midstream assets to
support our customers' development projects. Depending on our
customers' future development plans, it is possible that the
capital required to construct and develop such assets could exceed
our ability to finance those expenditures using our cash reserves
or available capacity under the ABL Facility or the Permian
Transmission Credit Facility.
We plan to use cash from operations, incur borrowings and/or sell
additional common units or other securities to fund our future
expansion capital expenditures. Using cash from operations to fund
expansion capital expenditures will directly reduce any cash
available for distribution to unitholders, if any. Our ability to
obtain financing or to access the capital markets for future debt
or equity offerings may be limited by (i) our financial condition
at the time of any such financing or offering, (ii) covenants in
our debt agreements, (iii) restrictions imposed by our Series A
Preferred Units, (iv) general economic conditions and
contingencies, (v) increasing disfavor among many investors towards
investments in fossil fuel companies and (vi) general weakness in
the debt and equity capital markets and other uncertainties that
are beyond our control. In addition, lenders are facing increasing
pressure to curtail their lending activities to companies in the
oil and natural gas industry. Furthermore, market demand for equity
issued by master limited partnerships has been significantly lower
in recent years than it has been historically, which may make it
more challenging for us to finance our expansion capital
expenditures and acquisition capital expenditures with the issuance
of additional equity.
We have not made a distribution on our common units or Series A
Preferred Units since we announced suspension of those
distributions on May 3, 2020, and these suspensions of
distributions may further reduce demand for our common units or
Series A Preferred Units. Because our Series A Preferred Units rank
senior to our common units with respect to distribution rights, any
accrued amounts on our Series A Preferred Units must first be paid
prior to our resumption of distributions to our common unitholders.
As of December 31, 2022, the amount of accrued and unpaid
distributions on the Series A Preferred Units totaled $21.5
million. Further, we do not expect to pay distributions on the
common units or Series A Preferred Units in the foreseeable future,
and there are restrictions on our ability to pay distributions
under our outstanding indebtedness that restrict our ability to pay
cash distributions on any of our equity securities. As such, if we
are unable to raise expansion capital, we may lose the opportunity
to make acquisitions, pursue new organic development projects, or
to gather, treat and process new production volumes from our
customers with whom we have agreed to construct and develop
midstream assets in the future. Even if we are successful in
obtaining external funds for expansion capital expenditures through
the capital markets, the terms thereof could limit our ability to
pay distributions to our common unitholders. In addition, incurring
additional debt may significantly increase our interest expense and
financial leverage, and issuing additional units representing
limited partner interests may result in significant common
unitholder dilution and increase the aggregate amount of cash
required to pay distributions to our unitholders, which could
materially decrease our ability to pay such
distributions.
We have a significant amount of indebtedness. Our leverage and debt
service obligations may adversely affect our financial condition,
results of operations and business prospects, and may limit our
flexibility to obtain financing and to pursue other business
opportunities.
At December 31, 2022, we had $1.5 billion of indebtedness
outstanding and the unused portion of the ABL Facility totaled
$64.1 million after giving effect to the issuance of $5.9 million
in outstanding but undrawn irrevocable standby letters of credit.
See Note 9 - Debt of the notes to our consolidated financial
statements included in Item 8 of this Annual Report for further
discussion of our debt obligations. Our existing and future debt
services obligations could have significant consequences, including
among other things:
•limiting
our ability to obtain additional financing, if necessary, for
working capital, capital expenditures, acquisitions or other
purposes and/or obtaining such financing on favorable
terms;
•reducing
our funds available for operations, future business opportunities
and cash distributions to unitholders by that portion of our cash
flow required to make interest payments on our debt;
•increasing
our vulnerability to competitive pressures or a downturn in our
business or the economy generally; and
•limiting
our flexibility in responding to changing business and economic
conditions.
Our ability to service our debt will depend upon, among other
things, our future financial and operating performance, which will
be affected by prevailing economic conditions and financial,
business and other factors, many of which are beyond our control,
such as commodity prices and governmental regulation.
We may not be able to generate sufficient cash to service all of
our indebtedness and may be forced to take other actions to satisfy
our obligations under our indebtedness or to refinance, which may
not be successful.
Our ability to make scheduled payments on, or to refinance, our
indebtedness obligations, including the ABL Facility, the 2026
Secured Notes and the 2025 Senior Notes, depends on our financial
condition and operating performance, which are subject to
prevailing economic and competitive conditions and certain
financial, business and other factors beyond our control. We may
not be able to maintain a level of cash flows from operating
activities sufficient to permit us to pay the principal, premium,
if any, and interest on our indebtedness.
If our operating cash flows and capital resources are insufficient
to fund our debt service obligations, we may be forced to adopt
alternative financing strategies, such as reducing or delaying
investments and capital expenditures, selling assets, seeking
additional capital or restructuring or refinancing our
indebtedness, some or all of which may not be available to us on
terms acceptable to us, if at all, or such alternative strategies
may yield insufficient funds to make required payments on our
indebtedness.
The 2025 Senior Notes will mature on April 15, 2025. The 2026
Secured Notes will mature on October 15, 2026; provided that, if
the outstanding amount of the 2025 Senior Notes (or any refinancing
indebtedness in respect thereof that has a final maturity on or
prior to the date that is 91 days after the Initial Maturity Date
(as defined in the 2026 Secured Notes Indenture)) is greater than
or equal to $50.0 million on January 14, 2025, which is 91 days
prior to the scheduled maturity date of the 2025 Senior Notes, then
the 2026 Secured Notes will mature on January 14,
2025.
The ABL Facility will mature on May 1, 2026, provided that the
maturity date of the ABL Facility will spring forward to December
13, 2024, if the outstanding amount of the 2025 Senior Notes on
such date equals or exceeds $50.0 million, or to January 14, 2025,
if any amount of the 2025 Senior Notes is outstanding on such date
and Liquidity (as defined in the ABL Agreement) is less than the
sum of the outstanding principal amount of the 2025 Senior Notes
and the Threshold Amount (as defined in the ABL
Agreement).
Our ability to restructure or refinance our indebtedness will
depend on the condition of the capital markets, including the
market for senior secured or unsecured notes, and our financial
condition at the time. Any refinancing of our indebtedness could be
at higher interest rates, may require the pledging of collateral
and may require us to comply with more onerous covenants than we
are currently subject to, which could further restrict our business
operations. In addition, any failure to make payments of interest
and principal on our outstanding indebtedness on a timely basis
would likely result in a reduction of our credit rating, which
could harm our ability to incur additional indebtedness on
acceptable terms. In the absence of sufficient cash flows and
capital resources, we could face substantial liquidity problems and
might be required to dispose of material assets or operations to
meet our debt service and other obligations.
The indentures governing our 2026 Secured Notes and the 2025 Senior
Notes and the ABL Facility place certain restrictions on our
ability to dispose of assets and our use of the proceeds from such
dispositions. We may not be able to consummate those dispositions
on terms acceptable to it, if at all, and the proceeds of any such
dispositions may not be adequate to meet any debt service
obligations then due.
Further, if for any reason we are unable to meet our debt service
and principal repayment obligations, or if we fail to comply with
the financial covenants in the documents governing our debt, we
would be in default under the terms of the agreements governing our
debt, which would allow our creditors under those agreements to
declare all outstanding indebtedness thereunder to be due and
payable (which would in turn trigger cross-acceleration or
cross-default rights among our other debt agreements), the lenders
under the ABL Facility could terminate their commitments to extend
credit, and the lenders could foreclose against our assets securing
their borrowings and we could be forced into bankruptcy or
liquidation. If the amounts outstanding under our debt agreements
were to be accelerated, we cannot assure you that our assets would
be sufficient to repay in full the amounts owed to our
creditors.
Restrictions in the Permian Transmission Credit Facility, the
indenture governing the 2025 Senior Notes and the 2026 Secured
Notes and the ABL Facility could materially adversely affect our
business, financial condition, results of operations, ability to
satisfy these obligations to make cash distributions to unitholders
and value of our common units.
We are dependent upon the earnings and cash flows generated by our
operations to meet our debt service obligations and to make cash
distributions to our unitholders, if any. The operating and
financial restrictions and covenants in the Permian Transmission
Credit Facility, the indenture governing the 2025 Senior Notes and
the 2026 Secured Notes, the ABL Facility and any future financing
agreements could restrict our ability to finance future operations
or capital needs or to expand or pursue our business activities,
which may, in turn, limit our ability to satisfy our obligations
and make cash distributions to our unitholders. For example, the
ABL Facility, the Permian Transmission Credit Facility and the
indentures governing the 2025 Senior Notes and the 2026 Secured
Notes, taken together, restrict our ability to, among other
things:
•incur
or guarantee certain additional debt;
•make
certain cash distributions on or redeem or repurchase certain
units;
•make
payments on certain other indebtedness;
•make
certain investments and acquisitions;
•make
certain capital expenditures;
•incur
certain liens or other encumbrances or permit them to
exist;
•enter
into certain types of transactions with affiliates;
•enter
into sale and lease-back transactions and certain operating
leases;
•merge
or consolidate with another company or otherwise engage in a change
of control transaction; and
•transfer,
sell or otherwise dispose of certain assets.
The ABL Facility also contains covenants requiring Summit Holdings
to maintain certain financial ratios and meet certain tests. Summit
Holdings’ ability to meet those financial ratios and tests can be
affected by events beyond its control, and we cannot guarantee that
Summit Holdings will meet those ratios and tests.
The provisions of the Permian Transmission Credit Facility, the
indentures governing the 2025 Senior Notes and the 2026 Secured
Notes and the ABL Facility may affect our ability to obtain future
financing and pursue attractive business opportunities as well as
affect our flexibility in planning for, and reacting to, changes in
business conditions. In addition, a failure to comply with the
provisions of the Permian Transmission Credit Facility, the
indentures governing the 2025 Senior Notes and the 2026 Secured
Notes and the ABL Facility could result in a default or an event of
default that could enable our lenders and/or senior noteholders to
declare the outstanding principal of that debt, together with
accrued and unpaid interest, to be immediately due and payable. If
we were unable to repay the accelerated amounts, the lenders under
the ABL Facility could proceed against the collateral granted to
them to secure such debt. If the payment of the debt is
accelerated, our assets may be insufficient to repay such debt in
full, and our unitholders could experience a partial or total loss
of their investment. The ABL Facility also has cross default
provisions that apply to any other indebtedness we may have and the
indentures governing the 2025 Senior Notes and the 2026 Secured
Notes have cross default provisions that apply to certain other
indebtedness. Any of these restrictions in the ABL Facility, the
Permian Transmission Credit Facility and the indentures governing
the 2025 Senior Notes and the 2026 Secured Notes could materially
adversely affect our business, financial condition, cash flows and
results of operations.
The interest rate on the 2026 Secured Notes will be increased if
the Partnership fails to make certain offers to purchase 2026
Secured Notes.
Under the 2026 Secured Notes Indenture, the Partnership is
required, starting in the first quarter of 2023 with respect to the
fiscal year ended December 31, 2022, and continuing annually
through the fiscal year ending December 31, 2025, subject to its
ability to do so under the ABL Facility, to purchase an amount of
2026 Secured Notes equal to 100% of the Excess Cash Flow (as
defined in the 2026 Secured Notes Indenture) minus certain agreed
amounts, if any, generated in the prior year at a purchase price
equal to 100% of the principal amount plus accrued and unpaid
interest. Excess Cash Flow is generally defined as consolidated
cash flow minus the sum of capital expenditures and cash payments
in respect of permitted investments and permitted restricted
payments. Generally, if the Partnership does not offer to purchase
designated annual amounts of its 2026 Secured Notes for the Excess
Cash Flow periods ending 2022, 2023 or 2024, the interest rate on
the 2026 Secured Notes is subject to certain rate escalations. If
the Partnership has not offered to purchase at least $50.0 million
in aggregate principal amount of 2026 Secured Notes by April 1,
2023, the interest rate on the 2026 Secured Notes shall
automatically increase by 50 basis points per annum. If the
Partnership has not offered to purchase $100.0 million in aggregate
principal amount of 2026 Secured Notes by April 1, 2024, the
interest rate on the 2026 Secured Notes shall automatically
increase by 100 basis points per annum (minus any amount previously
increased). If the Partnership has not offered to purchase at least
$200.0 million in aggregate principal amount of 2026 Secured Notes
by April 1, 2025, the interest rate on the 2026 Secured Notes shall
automatically increase by 200 basis points per annum (minus any
amount previously increased). Based on the amount of our Excess
Cash Flow for the fiscal year ended 2022, we will not be able to
make offers to purchase in the designated amount for the fiscal
year ended 2022; as a result, the interest rate on the 2026 Secured
Notes will increase 50 basis points to 9.00% effective April 1,
2023, resulting in increased annual interest expense of
approximately $3.9 million. An increase in the interest rates
associated with our 2026 Secured Notes would adversely affect our
results of operations and reduce cash flow available for other
purposes, including making other required payments of our debt
obligations or capital expenditures. In addition, an increase in
interest rates on the 2026 Secured Notes could adversely affect our
future ability to obtain financing on attractive terms or
materially increase the cost of any additional
financing.
Inflation could have adverse effects on our results of
operation.
Although inflation in the United States had been relatively low for
many years, there was a significant increase in inflation beginning
in the second half of 2021, which has continued into 2023, due to a
substantial increase in money supply, a stimulative fiscal policy,
a significant rebound in consumer demand as COVID-19 restrictions
were relaxed, the Russia-Ukraine war and worldwide supply chain
disruptions resulting from the economic contraction caused by
COVID-19 and lockdowns followed by a rapid recovery. Inflation rose
from 5.4% in June 2021 to 7.0% in December 2021 to 8.2% in
September 2022. As of December 31, 2022, inflation was at
6.5%.
We expect that inflation in 2023 will increase our labor and other
operating costs and the overall cost of capital projects we
undertake. An increase in inflation rates could negatively affect
the Partnership’s profitability and cash flows, due to higher
wages, higher operating costs, higher financing costs, and/or
higher supplier prices. The Partnership may be unable to pass along
such higher costs to its customers. In addition, inflation may
adversely affect customers’ financing costs, cash flows, and
profitability, which could adversely impact their operations and
the Partnership’s ability to offer credit and collect
receivables.
An increase in interest rates will cause our debt service
obligations to increase.
Since March 2022, the Federal Reserve has raised its target range
for the federal funds rate eight times, for a total increase of
4.25%. Furthermore, the Federal Reserve has signaled that
additional rate increases are likely to occur for the foreseeable
future. Borrowings under the Permian Transmission Credit Facility
bear interest at a rate equal to LIBOR plus margin. The interest
rate is subject to adjustment based on fluctuations in LIBOR (or
successor rates thereto), as applicable. An increase in the
interest rates associated with our floating rate debt would
increase our debt service costs and affect our results of
operations and cash flow available for payments of our debt
obligations. In addition, an increase in interest rates could
adversely affect our future ability to obtain financing or
materially increase the cost of any additional
financing.
The phase-out of LIBOR could have adverse effects on our hedging
strategies, financial condition, results of operations and cash
flows.
The Financial Conduct Authority in the United Kingdom has phased
out LIBOR as a benchmark for one-week and two-month tenors and
announced that it will cease to publish all other LIBOR tenors on
June 30, 2023. Even where we have entered into interest rate swaps
or other derivative instruments for purposes of managing our
interest rate exposure, our hedging strategies may not be effective
as a result of the replacement or phasing out of LIBOR, and we may
incur losses as a result. In addition, the overall financial
markets may be disrupted as a result of the phase-out or
replacement of LIBOR. The potential increase in our interest
expense as a result of the phase-out of LIBOR and uncertainty as to
the nature of such potential phase-out and alternative reference
rates or disruption in the financial market could have an adverse
effect on our financial condition, results of operations and cash
flows.
A downgrade of our credit rating could impact our liquidity, access
to capital and our costs of doing business, and independent third
parties determine our credit ratings outside of our
control.
Moody’s Investors Service, Inc., Standard & Poor’s Ratings
Services or Fitch Ratings, Inc. assign ratings to our senior
unsecured credit from time to time. A downgrade of our credit
rating could increase our future cost of borrowing and could
require us to post collateral with third parties, including our
hedging arrangements, which could negatively impact our available
liquidity and increase our cost of debt. If a credit rating
downgrade and the resultant cash collateral requirement were to
occur at a time when we are experiencing significant working
capital requirements or otherwise lacking liquidity, our results of
operations, financial condition and cash flows could be adversely
affected.
We have in the past and may in the future incur losses due to an
impairment in the carrying value of our long-lived assets or equity
method investments.
We recorded long-lived asset impairments of $91.6 million in
2022 and $10.2 million in 2021. When evidence exists that we will
not be able to recover a long-lived asset's carrying value through
future cash flows, we write down the carrying value of the asset to
its estimated fair value. We test long-lived assets for impairment
when events or circumstances indicate that the carrying value of a
long-lived asset may not be recoverable. With respect to property,
plant and equipment and our amortizing intangible assets, the
carrying value of a long-lived asset is not recoverable if the
carrying value exceeds the sum of the undiscounted cash flows
expected to result from the asset's use and eventual disposal. In
this situation, we recognize an impairment loss equal to the amount
by which the carrying value exceeds the asset's fair value. We
determine fair value using either a market-based approach, an
income-based approach in which we discount the asset's expected
future cash flows to reflect the risk associated with achieving the
underlying cash flows, or a mixture of both market-and income-based
approaches. We evaluate our equity method investments for
impairment whenever events or circumstances indicate that a decline
in fair value is other than temporary. Any impairment
determinations involve significant assumptions and judgments. If
actual results are not consistent with our assumptions and
estimates, or our assumptions and estimates change due to new
information, we may be exposed to impairment charges. Adverse
changes in our business or the overall operating environment, such
as lower
commodity prices, may affect our estimate of future operating
results, which could result in future impairment due to the
potential impact on our operations and cash flows.
A portion of our revenues are directly exposed to changes in crude
oil, natural gas and NGL prices, and our exposure may increase in
the future.
During the year ended December 31, 2022, we derived 18% of our
revenues from (i) the sale of physical natural gas and/or NGLs
purchased under percentage-of-proceeds or other processing
arrangements with certain of our customers in the Rockies, Permian
and Piceance segments, (ii) the sale of natural gas we retain from
certain Barnett customers, (iii) the sale of condensate we retain
from our gathering services in the Piceance segment and (iv)
additional gathering fees that are tied to performance of certain
commodity price indexes, which are then added to the fixed
gathering rates. Consequently, our existing operations and cash
flows have direct exposure to commodity price risk. Although we
will seek to limit our commodity price exposure with new customers
in the future, our efforts to obtain fee-based contractual terms
may not be successful or the local market for our services may not
support fee-based gathering and processing agreements. For example,
we have percent-of-proceeds contracts with certain natural gas
producer customers and we may, in the future, enter into additional
percent-of-proceeds contracts with these customers or other
customers or enter into keep-whole arrangements, which would
increase our exposure to commodity price risk, as the revenues
generated from those contracts directly correlate with the
fluctuating price of the underlying commodities.
Furthermore, we may acquire or develop additional midstream assets
in the future that have a greater exposure to fluctuations in
commodity price risk than our current operations. Future exposure
to the volatility of natural gas and crude oil prices could have a
material adverse effect on our business, results of operations and
financial condition. For example, for a small portion of the
natural gas gathered on our systems, we purchase natural gas from
producers prior to delivering the natural gas to pipelines where we
typically resell the natural gas under arrangements including sales
at index prices. Generally, the gross margins we realize under
these arrangements decrease in periods of low natural gas prices.
If we expand the implementation of such natural gas purchase and
sale arrangements within our business, such fluctuations could
materially affect our business.
Regulatory and Environmental Policy Risks
We settled a matter that was previously under investigation by
federal and state regulatory agencies regarding a pipeline rupture
and release of produced water by one of our subsidiaries. The
resulting compliance requirements of the settlement may impact our
results of operations or cash flows.
As further described in Item 3. Legal Proceedings, on August 4,
2021, we settled an incident involving a produced water disposal
pipeline owned by our subsidiary Meadowlark Midstream that resulted
in a discharge of materials into the environment which was
investigated by federal and state agencies. This settlement
resulted in losses amounting to $36.3 million and will be paid over
six years, of which we have paid $8.0 million as of December
31, 2022 and requires compliance with certain conditions and terms
and conditions which may impact our results of operations or cash
flows.
We may, from time to time, be involved in litigation and claims
arising out of our operations in the normal course of
business. As a result, we may be required to expend
significant funds for legal defense or to settle claims. Any such
loss, if incurred, could be material.
Expenditures made by the Partnership for the payment of litigation
related costs, including legal defense costs and settlement
payments, if any, reduce our cash flows available for debt service
and distributions to our unitholders, if any. Any such
expenditures, if incurred, could be material. See Item 3. Legal
Proceedings for additional disclosure by the Partnership regarding
its ongoing litigation and claims.
A change in laws and regulations applicable to our assets or
services, or the interpretation or implementation of existing laws
and regulations may cause our revenues to decline or our operation
and maintenance expenses to increase.
Various aspects of our operations are subject to regulation by the
various federal, state and local departments and agencies that have
jurisdiction over participants in the energy industry. The
regulation of our activities and the natural gas and crude oil
industries frequently change as they are reviewed by legislators
and regulators. For example, PHMSA has issued new proposed and
final rules concerning pipeline safety in recent years. In November
2021, PHMSA issued a final rule that extended pipeline safety
requirements to onshore gas gathering pipelines. The rule requires
all onshore gas gathering pipeline operators to comply with PHMSA’s
incident and annual reporting requirements. It also extends
existing pipeline safety requirements to a new category of gas
gathering pipelines, “Type C” lines, which generally include
high-pressure pipelines that are larger than 8.625 inches in
diameter. Safety requirements applicable to Type C lines vary based
on pipeline diameter and potential failure consequences. The final
rule became effective in May 2022 and operators were required to
comply with the applicable safety requirements by November 2022. In
addition, in August 2022, PHMSA issued a final rule that
established new or additional requirements for natural gas
transmission lines related to the management of change process,
integrity management, corrosion control standards, and pipeline
inspections and repairs. To the extent these or other new proposed
or final rules create additional
requirements for our pipelines, they could have a material adverse
effect on our operations, operating and maintenance expenses and
revenues. For additional information on the potential risks
associated with PHMSA requirements, see the “We may incur greater
than anticipated costs and liabilities as a result of pipeline
safety requirements” section of Item 1A. Risk Factors.
In addition, the adoption of proposals for more stringent
legislation, regulation or taxation of drilling activity could
directly curtail such activity or increase the cost of drilling,
resulting in reduced levels of drilling activity and therefore
reduced demand for our services. For example, Colorado Senate Bill
19-181, signed into law in April 2019, changed the mandate of the
COGCC from fostering oil and gas development to regulating oil and
gas development in a reasonable manner to protect public health and
the environment. The new law also allows local governments to
impose more restrictive requirements on oil and gas operations than
those issued by the state. As part of its implementation of this
new law, in November 2020 the COGCC adopted new regulations that
increase oil and gas setbacks to a minimum of 2,000 feet from
schools and childcare facilities, prohibit routine venting and
flaring, increase wildlife protections, and alter certain aspects
of the permitting process. These regulations and similar efforts in
Colorado and elsewhere could restrict oil and gas development in
the future. Regulatory agencies establish and, from time to time,
change priorities, which may result in additional burdens on us,
such as additional reporting requirements and more frequent audits
of operations. Our operations and the markets in which we
participate are affected by these laws, regulations and
interpretations and may be affected by changes to them or their
implementation, which may cause us to realize materially lower
revenues or incur materially increased operation and maintenance
costs or both.
Increased regulation of hydraulic fracturing could result in
reductions or delays in customer production, which could materially
adversely impact our revenues.
Hydraulic fracturing is an important and increasingly common
practice that is used to stimulate production of natural gas and/or
crude oil from dense subsurface rock formations, and is primarily
regulated by state agencies. However, Congress has in the past, and
may in the future consider legislation to regulate hydraulic
fracturing by federal agencies. Many states have already adopted
laws and/or regulations that require disclosure of the chemicals
used in hydraulic fracturing. A number of states – such as
Colorado, as discussed above – have adopted, and other states are
considering adopting, legal requirements that could impose more
stringent permitting, disclosure and well construction requirements
on crude oil and/or natural gas drilling activities. For example,
during the 2021-2022 election cycle, Colorado representatives
proposed a ballot initiative to ban hydraulic fracturing on all
non-federal land, but the proposed initiative failed to garner
significant support. States also could elect to prohibit hydraulic
fracturing altogether, as New York, Maryland, Oregon and Vermont
have done. In addition, certain local governments have adopted, and
additional local governments may adopt, ordinances within their
jurisdictions regulating the time, place and manner of drilling
activities in general or hydraulic fracturing activities in
particular. These initiatives and similar efforts in Colorado and
elsewhere could restrict oil and gas development in the
future.
The EPA has also moved forward with various regulatory actions,
including a proposal to issue new regulations under the NSPS to
expand and strengthen emissions reduction requirements under NSPS
OOOOa for new, modified and reconstructed oil and natural gas
sources, and require states to reduce methane emissions from
existing sources nationwide. For further discussion of NSPS OOOOa
and subsequent actions by the EPA, see the “Environmental
Matters—Air Emissions” section of Item 1. Business of this Annual
Report. The BLM has also asserted regulatory authority over aspects
of the hydraulic fracturing process, and issued a final rule in
March 2015 that established more stringent standards for performing
hydraulic fracturing on federal and Indian lands, including
requirements relating to well construction and integrity, handling
of wastewater and chemical disclosure. However, in December 2017,
the BLM published a final rule rescinding the 2015 rule. The U.S.
District Court for the Northern District of California upheld the
December 2017 rescission rule in a March 2020 decision, and the
State of California and environmental plaintiffs appealed. The
parties remain in settlement discussion.
Further, several federal governmental agencies (including the EPA)
have conducted reviews and studies on the environmental aspects of
hydraulic fracturing in the past. The results of such reviews or
studies could spur initiatives to further regulate hydraulic
fracturing.
State and federal regulatory agencies have also focused on a
possible connection between the hydraulic fracturing related
activities and the increased occurrence of seismic activity. When
caused by human activity, such events are called induced
seismicity. Some state regulatory agencies, including those in
Colorado, Ohio, and Texas, have modified their regulations or
guidance to account for induced seismicity. These developments
could result in additional regulation and restrictions on the use
of injection disposal wells and hydraulic fracturing. Such
regulations and restrictions could cause delays and impose
additional costs and restrictions on our customers.
Additionally, certain of our customers produce oil and gas on
federal lands. On January 20, 2021, the Acting Secretary for the
Department of the Interior signed an order effectively suspending
new fossil fuel leasing and permitting on federal lands for 60
days. Then on January 27, 2021, President Biden issued an executive
order indefinitely suspending new oil and natural gas leases on
public lands or in offshore waters pending completion of a
comprehensive review and reconsideration of federal oil and gas
permitting and leasing practices. Several states filed lawsuits
challenging the suspension, and on June 15, 2021, a judge in the
U.S. District Court for the Western District of Louisiana issued a
nationwide temporary injunction blocking the
suspension in July 2021. Although the injunction was subsequently
overturned by the Court of Appeals for the Fifth Circuit, on remand
the U.S. District Court issued a permanent injunction as requested
by the plaintiff states in August 2022. The Department of the
Interior has since resumed leasing. However, the Biden
Administration continues to evaluate federal leasing and could
impose additional restrictions in the future.
If new or more stringent federal, state or local legal restrictions
relating to drilling activities or to the hydraulic fracturing
process are adopted, this could result in a reduction in the supply
of natural gas and/or crude oil that our customers produce, and
could thereby adversely affect our revenues and results of
operations. Compliance with such rules could also generally result
in additional costs, including increased capital expenditures and
operating costs, for our customers, which could ultimately decrease
end-user demand for our services and could have a material adverse
effect on our business.
We are subject to FERC jurisdiction, federal anti-market
manipulation laws and regulations, potentially other federal
regulatory requirements and state and local regulation and could be
materially affected by changes in such laws and regulations, or in
the way they are interpreted and enforced.
We believe that our natural gas pipeline facilities qualify as
gathering facilities that are exempt from the jurisdiction of FERC
under the NGA and the NGPA. Interstate movements of crude oil on
the Epping Pipeline in North Dakota are subject to FERC
jurisdiction under the ICA, and the rates, terms and conditions of
service, and practices on the pipeline are subject to review and
challenge before FERC.
Additionally, the Double E Project, which provides interstate
natural gas transmission service from southeastern New Mexico to
the Waha hub in Texas, is subject to FERC jurisdiction under the
NGA with respect to post-construction remediation activities,
operations, and rates and terms and conditions of service. Pursuant
to the NGA, Double E Pipeline’s existing interstate natural gas
transportation rates and terms and conditions of service may be
challenged by complaint and are subject to prospective change by
FERC. Additionally, rate changes and changes to terms and
conditions of service proposed by a regulated natural gas
interstate pipeline may be protested and such changes can be
delayed and may ultimately be rejected by FERC. FERC may also
initiate reviews of an interstate pipeline’s rates. We cannot
guarantee that any new or existing tariff rate for service on our
FERC-regulated pipelines would not be rejected or modified by the
FERC or subjected to refunds. Any successful challenge by a
regulator or shipper in any of these matters could have a material
adverse effect on our business, financial condition and results of
operations.
We have certain long-term fixed priced natural gas and crude oil
transportation contracts that cannot be adjusted even if our costs
increase. As a result, our costs could exceed our revenues. In
2021, we entered into negotiated rate agreements with an average
term of 10 years from the in-service date of the pipeline, which
occurred on November 18, 2021 and with total MDTQ’s that increases
from 585,000 Dth/d during the first year of the agreement to
1,000,000 Dth/d in the fourth year, which equates to approximately
74% of its certificated capacity of 1,350,000 Dth/d, these
contracts are not subject to adjustment, even if our cost to
perform such services exceeds the revenues received from such
contracts, and, as a result, our costs could exceed our revenues
received under such contracts. It is possible that costs to perform
services under our “negotiated or discount rate” contracts will
exceed the negotiated or discounted rates. It is also possible with
respect to discounted rates that if our filed “recourse rates”
should ever be reduced below applicable discounted rates, we would
only be allowed by FERC to charge the lower recourse rates, since
FERC policy does not allow discount rates to be charged to the
extent that they exceed applicable recourse rates. If these events
were to occur, it could decrease the cash flow realized by our
assets.
Under FERC policy, a regulated service provider and a customer may
mutually agree to sign a contract for service at a “negotiated
rate,” which is generally fixed between the natural gas pipeline
and the shipper for the contract term and does not necessarily vary
with changes in the level of cost-based “recourse rates,” provided
that the affected customer is willing to agree to such rates and
that the FERC has accepted the negotiated rate agreement. These
“negotiated or discount rate” contracts are not generally subject
to adjustment for increased costs which could be caused by
inflation or other factors relating to the specific facilities
being used to perform the services. Any shortfall of revenue,
representing the difference between “recourse rates” (if higher)
and negotiated or discounted rates, under current FERC policy, may
be recoverable from other shippers in certain circumstances. For
example, the FERC may recognize this shortfall in the determination
of prospective rates in a future rate case. However, if the FERC
were to disallow the recovery of such costs from other customers,
it could decrease the cash flow realized by our
assets.
We are also generally subject to the anti-market manipulation
provisions in the NGA, as amended by the Energy Policy Act of 2005,
and to FERC’s regulations thereunder, and also must comply with the
other applicable provisions of the NGA and NGPA and FERC’s rules,
regulations, and orders concerning the Double E Pipeline’s
interstate natural gas pipeline business, including those that
require us to provide firm and interruptible transportation service
on an open access basis that is not unduly discriminatory or
preferential. Violations of the NGA or NGPA, or the rules,
regulations, and orders issued by FERC thereunder could result in
the imposition of administrative and criminal remedies, including
without limitation, revocation of certain authorities, disgorgement
of ill-gotten gains, and civil penalties of up to approximately
$1.5 million per day per violation of the NGA or its implementing
regulations, subject to future adjustment for inflation. In
addition, the FTC holds
statutory authority under the Energy Independence and Security Act
of 2007 to prevent market manipulation in oil markets, and has
adopted broad rules and regulations prohibiting fraud and market
manipulation. The FTC is also authorized to seek fines of up to
approximately $1.4 million per violation, subject to future
adjustment for inflation. The CFTC is directed under the CEA to
prevent price manipulation in the commodity, futures and swaps
markets, including the energy markets. Pursuant to the Dodd-Frank
Act, and other authority, the CFTC has adopted additional
anti-market manipulation regulations that prohibit fraud and price
manipulation in the commodity, futures and swaps markets. The CFTC
also has statutory authority to seek civil penalties of up to the
greater of approximately $1.4 million per violation, subject to
future adjustment for inflation, or triple the monetary gain to the
violator for each violation of the anti-market manipulation
provisions of the CEA.
The distinction between federally unregulated natural gas and crude
oil pipelines and FERC-regulated natural gas and crude oil
pipelines has been the subject of extensive litigation and is
determined by FERC on a case-by-case basis. FERC has made no
determinations as to the status of our facilities. Consequently,
the classification and regulation of some of our pipelines could
change based on future determinations by FERC, Congress or the
courts. If our natural gas gathering operations or crude oil
operations beyond the Epping Pipeline become subject to FERC
jurisdiction under the NGA, the NGPA or the ICA, the result may
materially adversely affect the rates we are able to charge and the
services we currently provide, and may include the potential for a
termination of our gathering agreements with our customers. In
addition, if any of our facilities were found to have provided
services or otherwise operated in violation of the NGA, the NGPA or
the ICA, this could result in the imposition of civil penalties, as
well as a requirement to disgorge charges collected for such
services in excess of the rate established by FERC.
We are subject to state and local regulation regarding the
construction and operation of our gathering, treating, transporting
and processing systems, as well as state ratable take statutes and
regulations. Regulation of the construction and operation of our
facilities may affect our ability to expand our facilities or build
new facilities and such regulation may cause us to incur additional
operating costs or limit the quantities of natural gas and crude
oil we may gather, treat and process. Ratable take statutes and
regulations generally require gatherers to take natural gas and
crude oil production that may be tendered for gathering without
undue discrimination. These requirements restrict our right to
decide whose production we gather, treat and process. Many states
have adopted complaint-based regulation of gathering, treating,
transporting and processing activities, which allows producers and
shippers to file complaints with state regulators in an effort to
resolve access issues, rate grievances and other matters. Other
state and municipal regulations do not directly apply to our
business, but may nonetheless affect the availability of natural
gas and crude oil for gathering, treating, transporting and
processing, including state regulation of production rates, maximum
daily production allowable from wells, and other activities related
to drilling and operating wells. While our facilities currently are
subject to limited state and local regulation, there is a risk that
state or local laws will be changed or reinterpreted, which may
materially affect our operations, operating costs and
revenues.
Recent actions by the FERC may affect rates on Epping Pipeline,
Double E Pipeline and other future FERC-regulated
pipelines.
On March 15, 2018, FERC announced a revised policy prohibiting
FERC-jurisdictional natural gas and liquids pipelines owned by
master limited partnerships from including an allowance for income
taxes in the cost of service used to calculate tariff rates. Most
of our pipelines are not subject to FERC regulation and so will not
be affected by the revised policy statement. However, rates for
interstate movements of crude oil on our Epping Pipeline in North
Dakota and any future FERC-regulated pipelines may be affected by
the application of the revised policy statement in subsequent FERC
proceedings.
FERC has not required regulated interstate oil pipelines to
decrease their rates on an industry-wide basis to implement the new
policy. However, FERC stated that the effects of the revised policy
statement must be incorporated in annual FERC financial reports
made by regulated interstate oil pipelines. These reports, which
also reflected the impact of the corporate income tax reduction
enacted as part of the Tax Reform Legislation, were considered by
FERC in its five-year review and determination of the index rate
adjustment, which resulted in the December 17, 2020 order adopting
a new annual index adjustment for the five-year period starting
July 1, 2021. FERC ultimately removed the effect of the income tax
allowance policy change from its index calculation, although the
December 17, 2020 order is subject to rehearing and possible
judicial review. The impact of these future proceedings on Epping
Pipeline and any future FERC-regulated pipelines is uncertain at
this time.
Until FERC sets the next index rate adjustment, Epping Pipeline and
any future FERC-regulated pipelines may face an increased risk of
shipper complaints seeking FERC review of its rates. FERC can also
initiate review of rates on its own initiative. We could also
propose new cost-of-service rates or changes to our existing rates
that would be subject to review by FERC under its new policy. No
such proceedings have occurred at this time, however, and the
potential outcome of any such proceedings, should any materialize,
is uncertain. As a result of any such proceedings, Epping Pipeline
and any future FERC-regulated pipelines may be required to modify
their rates, which could affect the revenues we generate with our
Epping Pipeline and any future FERC-regulated pipelines. At this
time, we do not expect any such proceedings would have a material
adverse effect, but we intend to monitor FERC developments and
provide updated disclosure, as necessary.
We are subject to stringent environmental laws and regulations that
may expose us to significant costs and liabilities.
Our gathering, treating, transporting and processing operations are
subject to stringent and complex federal, state and local
environmental laws and regulations, including laws and regulations
regarding the discharge of materials into the environment or
otherwise relating to environmental protection, including, for
example, the CAA, CERCLA, the CWA, the OPA, the RCRA, the
Endangered Species Act and the Toxic Substances Control
Act.
These laws and regulations may impose numerous obligations that are
applicable to our operations, including the acquisition of permits
to conduct regulated activities, the incurrence of capital or
operating expenditures to limit or prevent releases of materials
from our pipelines and facilities, and the imposition of
substantial liabilities and remedial obligations for pollution
resulting from our operations or at locations currently or
previously owned or operated by us. For additional information on
specific laws and regulations, see the “Environmental Matters”
section of Item 1. Business. Numerous governmental authorities,
such as the EPA and analogous state agencies, have the power to
enforce compliance with these laws and regulations and the permits
issued under them, oftentimes requiring difficult and costly
corrective actions or costly pollution control measures. Failure to
comply with these laws, regulations and requisite permits may
result in the assessment of significant administrative, civil and
criminal penalties, the imposition of remedial obligations and the
issuance of injunctions limiting or preventing some or all of our
operations. In addition, we may experience a delay in obtaining or
be unable to obtain required permits or regulatory authorizations,
which may cause us to lose potential and current customers,
interrupt our operations and limit our growth and
revenue.
There is a risk that we may incur significant environmental costs
and liabilities in connection with our operations due to historical
industry operations and waste disposal practices, our handling of
hydrocarbons and other wastes and potential emissions and
discharges related to our operations. Joint and several, strict
liability may be incurred, without regard to fault, under certain
of these environmental laws and regulations in connection with
discharges or releases of hydrocarbon wastes on, under or from our
properties and facilities, many of which have been used for
midstream activities for a number of years, oftentimes by third
parties not under our control. Private parties, including the
owners of the properties through which our gathering systems pass,
and on which certain of our facilities are located, may also have
the right to pursue legal actions to enforce compliance as well as
to seek damages for non-compliance with environmental laws and
regulations or for personal injury or property damage. For example,
an accidental release from one of our pipelines could subject us to
substantial liabilities arising from environmental cleanup and
restoration costs, claims made by neighboring landowners and other
third parties for personal injury and property damage and fines or
penalties for related violations of environmental laws or
regulations. In addition, changes in environmental laws occur
frequently, and any such changes that result in additional
permitting obligations or more stringent and costly waste handling,
storage, transport, disposal or remediation requirements could have
a material adverse effect on our operations or financial position.
We may not be able to recover all or any of these costs from
insurance.
The Biden Administration is considering revisions to the leasing
and permitting programs for oil and gas development on federal
lands,
which could materially adversely affect our industry and our
financial condition and results of operations.
We may incur greater than anticipated costs and liabilities as a
result of pipeline safety requirements.
The DOT, through PHMSA, has adopted and enforces safety standards
and procedures applicable to our pipelines. In addition, many
states, including the states in which we operate, have adopted
regulations that are identical to or more restrictive than existing
DOT regulations for intrastate pipelines. Among the regulations
applicable to us, PHMSA requires pipeline operators to develop
integrity management programs for certain pipelines located in high
consequence areas, which include high population areas such as the
Dallas-Fort Worth greater metropolitan area where our DFW Midstream
system is located. While the majority of our pipelines have
historically met the DOT definition of gathering lines and were
thus exempt from PHMSA's integrity management requirements, we also
operate a limited number of pipelines that are subject to the
integrity management requirements. The regulations require
operators, including us, to:
•perform
ongoing assessments of pipeline integrity;
•identify
and characterize applicable threats to pipeline segments that could
impact a high consequence area;
•maintain
processes for data collection, integration and
analysis;
•repair
and remediate pipelines as necessary;
•adopt
and maintain procedures, standards and training programs for
control room operations; and
•implement
preventive and mitigating actions.
In addition, PHMSA has taken recent action to regulate gathering
systems, which includes integrity management requirements. In
November 2021, PHMSA issued a final rule that extended pipeline
safety requirements to onshore gas gathering pipelines. The rule
requires all onshore gas gathering pipeline operators to comply
with PHMSA’s incident and annual reporting requirements. It also
extends existing pipeline safety requirements to a new category of
gas gathering pipelines, “Type C”
lines, which generally include high-pressure pipelines that are
larger than 8.625 inches in diameter. Safety requirements
applicable to Type C lines vary based on pipeline diameter and
potential failure consequences. The final rule became effective in
May 2022 and compliance with the applicable safety requirements was
required by November 2022.
For additional information on PHMSA regulations relating to
pipeline safety, see the “Regulation of the Natural Gas and Crude
Oil Industries—Safety and Maintenance” section of Item 1. Business
and the “A change in laws and regulations applicable to our assets
or services, or the interpretation or implementation of existing
laws and regulations may cause our revenues to decline or our
operation and maintenance expenses to increase” section of Item 1A.
Risk Factors.
Climate change legislation, regulatory initiatives and litigation
could result in increased operating costs and reduced demand for
the services we provide.
In recent years, the U.S. Congress has considered legislation to
restrict or regulate emissions of GHGs, such as carbon dioxide and
methane that may be contributing to global warming and energy
legislation and other initiatives are expected to be proposed that
may be relevant to GHG emissions issues. For example, the Inflation
Reduction Act, signed into law in August 2022, includes a Methane
Emissions Reduction Program to incentivize methane emission
reductions and impose a fee on GHG emissions from certain oil and
gas facilities.
In addition, almost half of the states, either individually or
through multi-state regional initiatives, have begun to address GHG
emissions, primarily through the planned development of emission
inventories or regional GHG cap and trade programs. Most of these
cap and trade programs work by requiring either major sources of
emissions, such as electric power plants, or major producers of
fuels, such as refineries and gas processing plants, to acquire and
surrender emission allowances. In general, the number of allowances
available for purchase is reduced each year until the overall GHG
emission reduction goal is achieved. Depending on the scope of a
particular program, we could be required to purchase and surrender
allowances for GHG emissions resulting from our operations (e.g.,
at compressor stations). It is possible that certain components of
our operations, such as our gas-fired compressors, could become
subject to state-level GHG-related regulation. For example, in June
2022, as part of a Governor-directed statewide initiative to reduce
GHG emissions by at least 45% by 2030, the New Mexico Environment
Department (“NMED”) finalized new rules that would establish
emissions standards for VOCs and nitrogen oxides for oil and gas
production and processing sources located in certain areas of the
state with high ozone concentrations. We cannot currently determine
the effect of these proposed regulations and other regulatory
initiatives to implement the Governor’s directive to reduce GHG
emissions, that could, if implemented, impact the business,
reputation, financial condition or results of our operations in New
Mexico or that of our customers upstream of the Double E Pipeline.
Similarly, in April 2021, the New Mexico Department of Energy,
Minerals, and Natural Resources (“EMNRD”) finalized new rules
concerning venting and flaring of natural gas. EMNRD’s final rule
could impose new or increased costs and obligations on our
customers upstream of the Double E Pipeline.
Independent of Congress, the EPA has adopted regulations under its
existing CAA authority. In 2009, the EPA published its findings
that emissions of GHGs present an endangerment to public health and
the environment because emissions of such gases are contributing to
warming of the earth's atmosphere and other climatic changes. Based
on these findings, the EPA adopted regulations that, among other
things, establish PSD construction and Title V operating permit
reviews for certain large stationary sources of GHG emissions. For
additional information on EPA regulations adopted under the CAA,
see the “Environmental Matters—Climate Change” and “Environmental
Matters—Air Emissions” sections of Item 1. Business.
Further, in December 2015, over 190 countries, including the United
States, reached an agreement to reduce global GHG emissions. The
agreement entered into force in November 2016 after over 70
countries, including the United States, ratified or otherwise
consented to be bound by the agreement. In November 2019, the
United States submitted formal notification to the United Nations
that it intended to withdraw from the agreement. However, on
January 20, 2021, President Biden signed an “Acceptance on Behalf
of the United States of America” that, reversed the prior
withdrawal, and the United States officially rejoined the Paris
Agreement on February 19, 2021. As part of rejoining the Paris
Agreement, President Biden announced that the United States would
commit to a 50 to 52 percent reduction from 2005 levels of GHG
emissions by 2030 and set the goal of reaching net-zero GHG
emissions by 2050. In November 2021,
the Biden Administration
expanded on this commitment and announced
“The Long-Term Strategy of the United States: Pathways to Net-Zero
Greenhouse Gas Emissions by 2050,” establishing a roadmap to net
zero emissions in the United States by 2050 through, among other
things, improvements in energy efficiency; decarbonization of
energy sources via electricity, hydrogen, and sustainable biofuels;
and reductions in non-CO2
GHG emissions, such as methane and nitrous oxide.
These initiatives followed a series of executive orders by
President Biden designed to address climate change. Reentry into
the Paris Agreement, new legislation, or President Biden’s
executive orders may result in the development of additional
regulations or changes to existing regulations, which could have a
material adverse effect on our business and that of our
customers.
Additionally, the SEC has proposed new rules relating to the
disclosure of climate-related risks. The proposed rule contains
several new disclosure obligations, including (i) disclosure on an
annual basis of a registrant’s scope 1 and scope 2 greenhouse gas
emissions, (ii) third-party independent attestation of the same for
accelerated and large accelerated filers, (iii) for
some
registrants, disclosure on an annual basis of a registrant’s scope
3 greenhouse gas emissions for accelerated and large accelerated
filers, (iv) disclosure on how the board of directors and
management oversee climate-related risks and certain
climate-related governance items, (v) disclosure of information
related to a registrant’s climate-related targets, goals and/or
transitions plans and (vi) disclosure on whether and how
climate-related events and transition activities impact line items
above a threshold amount on a registrant’s consolidated financial
statements, including the impact of the financial estimates and the
assumptions used. While we would likely be subject to the longer
proposed phase-in for the reporting requirements as a smaller
reporting company, and while the SEC may revise the proposed rule
in response to comments to make the rule less onerous, we cannot
predict the costs of implementation or any potential adverse
impacts resulting from the rule should it be adopted. However,
these costs may be substantial. In addition, enhanced climate
disclosure requirements could accelerate the trend of certain
stakeholders and lenders restricting or seeking more stringent
conditions with respect to their investments in certain carbon
intensive sectors.
Although it is not possible at this time to accurately estimate how
potential future laws or regulations addressing GHG emissions would
impact our business, either directly or indirectly, any future
federal or state laws or implementing regulations that may be
adopted to address GHG emissions could require us to incur
increased operating costs and could materially adversely affect
demand for our services. The potential increase in the costs of our
operations resulting from any legislation or regulation to restrict
emissions of GHG could include new or increased costs to operate
and maintain our facilities, install new emission controls on our
facilities, acquire allowances to authorize our GHG emissions, pay
any taxes related to our GHG emissions, adhere to alternative
energy requirements and administer and manage a GHG emissions
program. While we may be able to include some or all of such
increased costs in the rates we charge, such recovery of costs is
uncertain. Moreover, incentives to conserve energy or use
alternative energy sources could reduce demand for our services. We
cannot predict with any certainty at this time how these
possibilities may affect our operations. Finally, most scientists
have concluded that increasing concentrations of GHGs in the
Earth’s atmosphere may produce climate changes that have
significant physical effects, such as increased frequency and
severity of storms, droughts and floods and other climatic events.
We cannot predict with any certainty at this time how these
possibilities may affect our operations.
Implementation of statutory and regulatory requirements for swap
transactions could have an adverse impact on our ability to hedge
risks associated with our business and increase the working capital
requirements to conduct these activities.
In the Dodd-Frank Act, Congress adopted comprehensive financial
reform legislation that establishes federal oversight over and
regulation of the over-the-counter derivatives market and entities,
such as us, that participate in that market. This legislation
requires the CFTC and the SEC and other regulatory authorities to
promulgate certain rules and regulations, including rules and
regulations relating to the regulation of certain swaps market
participants, such as swap dealers, the clearing of certain swaps
through central counterparties, the execution of certain swaps on
designated contract markets or swap execution facilities, mandatory
margin requirements for uncleared swaps, and the reporting and
recordkeeping of swaps. While most of the regulations have been
promulgated and are already in effect, the rulemaking and
implementation process is still ongoing. Moreover, CFTC continues
to refine its initial rulemakings under the Dodd-Frank Act. As a
result, we cannot yet predict the ultimate effect of the rules and
regulations on our business and while most of the regulations have
been adopted, any new regulations or modifications to existing
regulations could increase the cost of derivative contracts, limit
the availability of derivatives to protect against risks that we
encounter, reduce our ability to monetize or restructure our
existing derivative contracts and increase our exposure to less
creditworthy counterparties.
In October 2020, the CFTC adopted rules that place limits on
positions in certain core futures and equivalent swaps contracts
for or linked to certain physical commodities, subject to
exceptions for certain bona fide hedging transactions. We do not
expect these regulations to materially impede our hedging activity
at this time, but a companion rule on aggregation among entities
under common ownership or control may have an impact on our ability
to hedge our exposure to certain enumerated
commodities.
The CFTC has implemented final rules regarding mandatory clearing
of certain classes of interest rate swaps and certain classes of
index credit default swaps. Mandatory trading on designated
contract markets or swap execution facilities of certain interest
rate swaps and index credit default swaps also began in 2014. At
this time, the CFTC has not proposed any rules designating other
classes of swaps, including physical commodity swaps, for mandatory
clearing. The CFTC and prudential banking regulators also recently
adopted mandatory margin requirements on uncleared swaps between
swap dealers and certain other counterparties. Although we may
qualify for a commercial end-user exception from the mandatory
clearing, trade execution and certain uncleared swaps margin
requirements, mandatory clearing and trade execution requirements
and uncleared swaps margin requirements applicable to other market
participants, such as swap dealers, may affect the cost and
availability of the swaps that we use for hedging.
Under the Dodd-Frank Act, the CFTC is also directed generally to
prevent price manipulation and fraud in the following two markets:
(a) physical commodities traded in interstate commerce, including
physical energy and other commodities, as well as (b) financial
instruments, such as futures, options and swaps. Pursuant to the
Dodd-Frank Act, the CFTC has adopted additional
anti-market manipulation, anti-fraud and disruptive trading
practices regulations that prohibit, among other things, fraud and
price manipulation in the physical commodities, futures, options
and swaps markets. Should we violate these laws and regulations, we
could be subject to CFTC enforcement action and material penalties,
and sanctions.
We currently enter into forward contracts with third parties to buy
power and sell natural gas in an attempt to mitigate our exposure
to fluctuations in the price of natural gas with respect to those
volumes. The CFTC has finalized an interpretation clarifying
whether and when certain forwards with volumetric optionality are
to be regulated as forwards or qualify as options on commodities
and therefore swaps. The application of this interpretation may
impact our ability to enter into certain forwards or may impose
additional requirements with respect to certain
transactions.
In addition to the Dodd-Frank Act, the European Union and other
foreign regulators have adopted and are implementing local reforms
generally comparable with the reforms under the Dodd-Frank Act.
Implementation and enforcement of these regulatory provisions may
reduce our ability to hedge our market risks with non-U.S.
counterparties and may make any transactions involving cross-border
swaps more expensive and burdensome. Additionally, the lingering
absence of regulatory equivalency across jurisdictions may increase
compliance costs and make it more costly to satisfy regulatory
obligations.
We may face opposition to the development, permitting,
construction or operation of our pipelines and facilities from
various groups.
We may face opposition to the development, permitting, construction
or operation of our pipelines and facilities from environmental
groups, landowners, local groups and other advocates. Such
opposition could take many forms, including organized protests,
attempts to block or sabotage our operations, intervention in
regulatory or administrative proceedings involving our assets, or
lawsuits or other actions designed to prevent, disrupt or delay the
development or operation of our assets and business. For example,
repairing our pipelines often involves securing consent from
individual landowners to access their property; one or more
landowners may resist our efforts to make needed repairs, which
could lead to an interruption in the operation of the affected
pipeline or other facility for a period of time that is
significantly longer than would have otherwise been the case. In
addition, acts of sabotage or eco-terrorism could cause significant
damage or injury to people, property or the environment or lead to
extended interruptions of our operations. Any such event that
interrupts the revenues generated by our operations, or which
causes us to make significant expenditures not covered by
insurance, could reduce our cash available for paying distributions
to our unitholders and, accordingly, have a material adverse effect
on our business, financial condition and results of operations.
Moreover, governmental authorities exercise considerable discretion
in the timing and scope of permit issuance and the public may
engage in the permitting process, including through intervention in
the courts. Negative public perception could cause the permits we
require to conduct our operations to be withheld, delayed or
burdened by requirements that restrict our ability to profitably
conduct our business.
For example, in an April 15, 2020 ruling, amended May 11, 2020, the
U.S. District Court for the District of Montana issued an order
invalidating the U.S. Army Corps of Engineers (“Corps”) 2017
reissuance of Nationwide Permit 12 (“NWP 12”), the general permit
governing discharges of dredged or fill material associated with
pipeline and other utility line construction projects, to the
extent it was used to authorize construction of new oil and gas
pipelines. Environmental groups had alleged that the Corps failed
to consult with federal wildlife agencies as required by the
Endangered Species Act (“ESA”). However, in January 2021, the EPA
and Corps reissued NWP 12 as a general permit specific to oil and
gas pipelines, moving other utility line activities into separate
general permits. The U.S. Court of Appeals for the Ninth Circuit
subsequently held that the Corps’ January 2021 reissuance rendered
the prior challenge moot. In May 2021, environmental groups once
again filed suit in the U.S. District Court for the District of
Montana, seeking vacatur of the reissued NWP 12. Environmental
groups allege that the reissuance of NWP 12 violated the ESA,
National Environmental Policy Act, and Clean Water Act, among other
things. In September 2022, the U.S. District Court for Montana
dismissed the ESA consultation challenges as moot and dismissed the
remainder of the lawsuit without prejudice. The Corps has announced
that it will be reviewing all the nationwide permits for
consistency with Administration policies, which could result in
additional limitations on the use of nationwide permits.
Limitations on the use of NWP 12 may make it more difficult to
permit our projects, require consideration of alternative
construction or siting, which may impose additional costs and
delays, and could cause us to lose potential and current customers
and limit our growth and revenue.
In addition, on July 6, 2020, the U.S. District Court for the
District of Columbia issued an order vacating a Corps Mineral
Leasing Act easement for the Dakota Access Pipeline in a lawsuit
filed by the Standing Rock Sioux Tribe and other Native American
tribes. The court’s decision requires the pipeline to shut down
operations by August 5, 2020 but was stayed by the U.S. Court of
Appeals for the District of Columbia Circuit. On January 26, 2021,
the U.S. Court of Appeals for the District of Columbia Circuit
issued a decision affirming the district court’s holding that the
easement should be vacated but reversing the requirement to shut
down the pipeline. The Court of Appeals left it to the Corps to
determine how to proceed after the loss of the easement, and while
the Corps declined to shut down the pipeline, it did not formally
approve the pipeline’s ongoing operation without an easement.
Dakota Access filed for rehearing en banc on April 12, 2021, which
the Court of Appeals
denied. On September 20, 2021, Dakota Access filed a petition with
the U.S. Supreme Court to hear the case. Oppositions were filed by
the Solicitor General and plaintiffs, and Dakota Access has filed
its reply.
The Dakota Access Pipeline continues to operate pending the Corps’
ongoing development of a court-ordered environmental impact
statement for the project. On June 22, 2021, the District Court
terminated the consolidated lawsuits and dismissed all remaining
outstanding counts without prejudice. On January 20, 2022, the
Standing Rock Sioux Tribe withdrew as a cooperating agency on the
draft EIS, prompting the USACE to temporarily pause on the draft
EIS. The USACE now estimates that the draft EIS will be published
sometime in the spring of 2023. If the Dakota Access Pipeline is
forced to shut down, this could have a material adverse effect on
our business, financial condition and results of operations
associated with the Polar and Divide system, which interconnects
with the Dakota Access Pipeline.
Recently, activists concerned about the potential effects of
climate change have directed their attention towards sources of
funding for fossil-fuel energy companies, which has resulted in an
increasing number of financial institutions, funds, individual
investors and other sources of capital restricting or eliminating
their investment in fossil fuel-related activities. In
addition, financial institutions have begun to screen
companies such as ours for sustainability performance, including
practices related to GHGs and climate change, before providing
loans or investing in our common units. There is also a
risk that financial institutions may adopt policies that have the
effect of reducing the funding provided to the fossil fuel sector,
such as the adoption of net zero financed emissions targets. Such
policies may be hastened by actions under the Biden Administration,
including the implementation by the Federal Reserve of any
recommendations made by the Network for Greening the Financial
System, a consortium of financial regulators focused on addressing
climate-related risks in the financial sector. Ultimately, this
could make it more difficult to secure funding for exploration and
production activities or energy infrastructure related projects,
and consequently could both indirectly affect demand for our
services and directly affect our ability to fund construction or
other capital projects. Any efforts to improve our
sustainability practices in response to these pressures may
increase our costs, and we may be forced to implement technologies
that are not economically viable in order to improve our
sustainability performance and to meet the specific requirements
to maintain access to capital or perform services for
certain customers.
Our business is subject to complex and evolving U.S. and
international laws and regulations regarding privacy and data
protection (“data protection laws”). Many of these data protection
laws are subject to change and uncertain interpretation, and could
result in claims, increased cost of operations or otherwise harm
our business.
Along with our own data and information that we collect and retain
in the normal course of our business, we and our business partners
collect and retain significant volumes of certain types of data,
some of which are subject to data protection laws. The collection,
use, and transfer of this data, both domestically and
internationally, is becoming increasingly complex. The regulatory
environment surrounding the collection, use, transfer and
protection of such data is constantly evolving and can be subject
to significant change. New data protection laws at the federal,
state, international, national, provincial and local levels,
including recent Colorado, Connecticut, Virginia and Utah
legislation, the European Union General Data Protection Regulation
(“GDPR”) and the California Consumer Privacy Act, as amended by the
California Privacy Rights Act (“CCPA”), pose increasingly complex
compliance challenges and potentially elevate our
costs.
Complying with these jurisdictional requirements could increase the
costs and complexity of compliance, and violations of applicable
data protection laws can result in significant penalties. For
example, the GDPR applies to activities regarding personal data
that may be conducted by us, directly or indirectly through
business partners. Failure to comply could result in significant
penalties of up to a maximum of 4% of our global turnover that may
materially adversely affect our business, reputation, results of
operations, and cash flows. Similarly, the CCPA, which came into
effect on January 1, 2020, imposes specific obligations on
businesses that collect personal data from California residents and
provides California residents specific rights in relation to their
personal data that we or our business partners collect and use. As
interpretation and enforcement of the CCPA evolves, it creates a
range of new compliance obligations, which could cause us to change
our business practices, and carries the possibility for significant
financial penalties for noncompliance that may materially adversely
affect our business, reputation, results of operations, and cash
flows.
As noted above, we are also subject to the possibility of
information security breaches, which themselves may result in a
violation of these data protection laws. Additionally, if we
acquire a company that has violated or is not in compliance with
applicable data protection laws, we may incur significant
liabilities and penalties as a result.
Risks Inherent in an Investment in Us
The amount of cash we have available for distribution to holders of
our units depends primarily on our cash flows rather than on our
profitability, which may prevent us from making distributions, even
during periods in which we record net income.
The amount of cash we have available for distribution depends
primarily upon our cash flows and not solely on profitability,
which will be affected by non-cash items. Although we have not made
a distribution on our common units or Series A Preferred Units
since we announced suspension of those distributions on May 3, 2020
and do not expect to pay distributions on the
common units or Series A Preferred Units in the foreseeable future,
we may, as a result, be unable to make cash distributions during
periods when we report net income for GAAP purposes.
The market price of our common units may fluctuate significantly
and, due to limited daily trading volumes, an investor could lose
all or part of its investment in us.
An investor may not be able to resell its common units at or above
its acquisition price. Additionally, limited liquidity may result
in wide bid-ask spreads, contribute to significant fluctuations in
the market price of the common units and limit the number of
investors who are able to buy the common units.
The market price of our common units may decline and be influenced
by many factors, some of which are beyond our control, including
among others:
•our
quarterly distributions, if any;
•our
quarterly or annual earnings or those of other companies in our
industry;
•the
loss of a large customer;
•announcements
by our customers or others regarding our customers or changes in
our customers’ credit ratings, liquidity position, leverage profile
and/or other financial or credit-related metrics;
•announcements
by our competitors of significant contracts or
acquisitions;
•changes
in accounting standards, policies, guidance, interpretations or
principles;
•general
economic and geopolitical conditions;
•the
failure of securities analysts to cover our common units or changes
in financial estimates by analysts; and
•other
factors described in these Risk Factors.
Our Partnership Agreement replaces our General Partner’s fiduciary
duties to unitholders and those of our officers and directors with
contractual standards governing their duties.
Our Partnership Agreement contains provisions that eliminate
fiduciary duties to which our General Partner and its officers and
directors would otherwise be held by state fiduciary duty law and
replaces those duties with several different contractual
standards.
By purchasing a common unit, a common unitholder agrees to become
bound by the provisions in the Partnership Agreement, including the
provisions discussed above.
Our Partnership Agreement limits the liabilities of our General
Partner and its officers and directors and the rights of our
unitholders with respect to actions taken by our General Partner
and its officers and directors that might otherwise constitute
breaches of fiduciary duty.
Our Partnership Agreement contains provisions that limit the
liability of our General Partner and the rights of our unitholders
with respect to actions taken by our General Partner that might
otherwise constitute breaches of fiduciary duty under state
fiduciary duty law. For example, our Partnership Agreement provides
that:
•whenever
our General Partner makes a determination or takes, or declines to
take, any other action in its capacity as our General Partner, our
General Partner is required to make such determination, or take or
decline to take such other action, in good faith, meaning that it
subjectively believed that the decision was in our best interests,
and those determinations and actions will not be subject to any
other or different standard imposed by our Partnership Agreement,
Delaware law, or any other law, rule or regulation, or at
equity;
•our
General Partner will not have any liability to us or our
unitholders for decisions made in its capacity as a General Partner
so long as such decisions are made in good faith;
•our
General Partner and its officers and directors will not be liable
for monetary damages to us, our limited partners or their assignees
resulting from any act or omission unless there has been a final
and non-appealable judgment entered by a court of competent
jurisdiction determining that our General Partner or its officers
and directors, as the case may be, acted in bad faith or engaged in
fraud or willful misconduct or, in the case of a criminal matter,
acted with knowledge that the conduct was criminal;
and
•our
General Partner will not be in breach of its obligations under the
Partnership Agreement or its duties to us or our unitholders if a
transaction with an affiliate or the resolution of a conflict of
interest is:
i.approved
by the Conflicts Committee, if established, although our General
Partner is not obligated to seek such approval;
ii.approved
by the vote of a majority of the outstanding common units,
excluding any common units owned by our General Partner and its
affiliates;
iii.on
terms no less favorable to us than those generally being provided
to or available from unrelated third parties; or
iv.fair
and reasonable to us, taking into account the totality of the
relationships among the parties involved, including other
transactions that may be particularly favorable or advantageous to
us.
In connection with a situation involving a transaction with an
affiliate or a conflict of interest, any determination by our
General Partner or the Conflicts Committee must be made in good
faith. If an affiliate transaction or the resolution of a conflict
of interest is not approved by our common unitholders or the
Conflicts Committee and the Board of Directors determines that the
resolution or course of action taken with respect to the affiliate
transaction or conflict of interest satisfies either of the
standards set forth in the final two subclauses above, then it will
be presumed that, in making its decision, the Board of Directors
acted in good faith, and in any proceeding brought by or on behalf
of any limited partner or the partnership, the person bringing or
prosecuting such proceeding will have the burden of overcoming such
presumption.
Our Partnership Agreement restricts the voting rights of
unitholders owning 20% or more of our common units.
Unitholders' voting rights are further restricted by a provision of
our Partnership Agreement providing that any person or group that
owns 20% or more of any class of units then outstanding cannot vote
on any matter, other than our General Partner, its affiliates,
their transferees and persons who acquired such units with the
prior approval of the Board of Directors.
We may issue additional units without unitholder approval, which
would dilute existing ownership interests.
Except in the case of the issuance of units that rank equal to or
senior to the Series A Preferred Units, our Partnership Agreement
does not limit the number of additional limited partner interests,
including limited partner interests that rank senior to the common
units that we may issue at any time without the approval of our
unitholders.
As of December 31, 2022, we have outstanding Series A Preferred
Units having an issue price of less than $100.0 million. As a
result, under our Partnership Agreement, we may now issue
additional securities in parity with the Series A Preferred Units
without any vote of the holders of the Series A Preferred Units
(except where the cumulative distributions on the Series A
Preferred Units or any parity securities are in arrears) and
without the approval of holders of our common units.
The issuance by us of additional common units or other equity
securities of equal or senior rank will decrease our existing
unitholders' proportionate ownership interest in us. In addition,
the issuance by us of additional common units or other equity
securities of equal or senior rank may have the following
effects:
•decreasing
the amount of cash available for distribution on each
unit;
•increasing
the ratio of taxable income to distributions;
•diminishing
the relative voting strength of each previously outstanding unit;
and
•causing
the market price of the common units to decline.
Future issuances and sales of parity securities, or the perception
that such issuances and sales could occur, may cause prevailing
market prices for our common units and the Series A Preferred Units
to decline and may adversely affect our ability to raise additional
capital in the financial markets at times and prices favorable to
us.
Furthermore, the payment of distributions on any additional units
may increase the risk that we will not be able to make
distributions at our prior per unit distribution levels. Although
we have not made a distribution on our common units or Series A
Preferred Units since we announced suspension of those
distributions on May 3, 2020 and do not expect to pay distributions
on the common units or Series A Preferred Units in the foreseeable
future, to the extent new units are senior to our common units,
including units issued to third parties at a subsidiary level,
their issuance will increase the uncertainty of the payment of
distributions on our common units.
Holders of Series A Preferred Units have limited voting rights,
which may be diluted.
Although holders of the Series A Preferred Units are entitled to
limited voting rights with respect to certain matters, the Series A
Preferred Units generally vote separately as a class along with any
other series of our parity securities that we may issue with like
voting rights that have been conferred and are exercisable. As a
result, the voting rights of holders of Series A Preferred Units
may be significantly diluted, and the holders of such other series
of parity securities that we may issue may be able to control or
significantly influence the outcome of any vote.
Our General Partner has a limited call right that may require an
investor to sell its units at an undesirable time or
price.
If at any time our General Partner and its affiliates own more than
80% of our outstanding common units, our General Partner will have
the right, which it may assign to any of its affiliates or to us,
but not the obligation, to acquire all, but not less than all, of
the common units held by unaffiliated persons at a price that is
not less than their then-current market price, as calculated
pursuant to the terms of our Partnership Agreement. As a result, an
investor may be required to sell its common units at an undesirable
time or price and may not receive any return on its investment. An
investor may also incur a tax liability upon a sale of its units.
The Partnership Agreement does not require our General Partner to
obtain a fairness opinion regarding the value of the common units
to be repurchased by it upon exercise of the limited call right.
There is no restriction in our Partnership Agreement that prevents
our General Partner from causing us to issue additional common
units and then exercising its call right. If our General Partner
exercised its limited call right, the effect would be to take us
private and, if the units were subsequently deregistered, we would
no longer be subject to the reporting requirements of the Exchange
Act.
An investor's liability may not be limited if a court finds that
unitholder action constitutes control of our business.
A General Partner of a partnership generally has unlimited
liability for the obligations of the partnership, except for those
contractual obligations of the partnership that are expressly made
without recourse to the General Partner. Our partnership is
organized under Delaware law, and we conduct business in a number
of other states. The limitations on the liability of holders of
limited partner interests for the obligations of a limited
partnership have not been clearly established in some of the other
states in which we do business. An investor could be liable for any
and all of our obligations as if it was a General Partner if a
court or government agency were to determine that:
•we
were conducting business in a state but had not complied with that
particular state's partnership statute; or
•an
investor's right to act with other unitholders to remove or replace
our General Partner, to approve some amendments to our Partnership
Agreement or to take other actions under our Partnership Agreement
constitute control of our business.
Our Partnership Agreement designates the Court of Chancery of the
State of Delaware as the exclusive forum for certain types of
actions and proceedings that may be initiated by our unitholders,
which limits our unitholders’ ability to choose the judicial forum
for disputes with us or our General Partner’s directors, officers
or other employees.
Our Partnership Agreement provides that, with certain limited
exceptions, the Court of Chancery of the State of Delaware is the
exclusive forum for any claims, suits, actions or proceedings (1)
arising out of or relating in any way to our Partnership Agreement
(including any claims, suits or actions to interpret, apply or
enforce the provisions of our Partnership Agreement or the duties,
obligations or liabilities among our partners, or obligations or
liabilities of our partners to us, or the rights or powers of, or
restrictions on, our partners or us), (2) brought in a derivative
manner on our behalf, (3) asserting a claim of breach of a duty
(including a fiduciary duty) owed by any of our, or our General
Partner’s, directors, officers, or other employees, or owed by our
General Partner, to us or our partners, (4) asserting a claim
against us arising pursuant to any provision of the Delaware
Revised Uniform Limited Partnership Act or (5) asserting a claim
against us governed by the internal affairs doctrine. Any person or
entity purchasing or otherwise acquiring any interest in our common
units is deemed to have received notice of and consented to the
foregoing provisions. This exclusive forum provision does not apply
to a cause of action brought under federal or state securities
laws. Although management believes this choice of forum provision
benefits us by providing increased consistency in the application
of Delaware law in the types of lawsuits to which it applies, the
provision may have the effect of discouraging lawsuits against us
and our General Partner’s directors and officers. The
enforceability of similar choice of forum provisions in other
companies’ certificates of incorporation or similar governing
documents has been challenged in legal proceedings and it is
possible that in connection with any action a court could find the
choice of forum provisions contained in our Partnership Agreement
to be inapplicable or unenforceable in such action. If a court were
to find this choice of forum provision inapplicable to, or
unenforceable in respect of, one or more of the specified
types of actions or proceedings, we may incur additional costs
associated with resolving such matters in other jurisdictions,
which could adversely affect our financial position, results of
operations and ability to make cash distributions to our
unitholders.
Unitholders may have liability to repay distributions that were
wrongfully distributed to them.
Under certain circumstances, unitholders may have to repay amounts
wrongfully returned or distributed to them. Under Delaware law, we
may not make a distribution if the distribution would cause our
liabilities to exceed the fair value of our assets. Delaware law
provides that for a period of three years from the date of an
impermissible distribution, limited partners who received the
distribution and who knew at the time of the distribution that it
violated Delaware law will be liable to the limited partnership for
the distribution amount. Substituted limited partners are liable
both for the obligations of the assignor to make contributions to
the partnership that were known to the substituted limited partner
at the time it became a limited partner and for those obligations
that were unknown if the liabilities could have been determined
from the Partnership Agreement. Neither liabilities to partners on
account of their partnership interest nor liabilities that are
non-recourse to the partnership are counted for purposes of
determining whether a distribution is permitted.
If an investor is not an eligible holder, it may not receive
distributions or allocations of income or loss on those common
units and those common units will be subject to
redemption.
We have adopted certain requirements regarding those investors who
may own our common units and Series A Preferred Units. Eligible
holders are U.S. individuals or entities subject to U.S. federal
income taxation on the income generated by us or entities not
subject to U.S. federal income taxation on the income generated by
us, so long as all of the entity's owners are U.S. individuals or
entities subject to such taxation. If an investor is not an
eligible holder, our General Partner may elect not to make
distributions or allocate income or loss on that investor's units,
and it runs the risk of having its units redeemed by us at the
lower of purchase price cost or the then-current market price. The
redemption price may be paid in cash or by delivery of a promissory
note, as determined by our General Partner.
Our Series A Preferred Units and Subsidiary Series A Preferred
Units have rights, preferences and privileges that are not held by,
and are preferential to the rights of, holders of our common
units.
The Series A Preferred Units rank senior to our common units with
respect to distribution rights and rights upon liquidation. These
preferences could adversely affect the market price for our common
units or could make it more difficult for us to sell our common
units in the future.
In addition, (i) prior to December 15, 2022,
distributions on the Series A Preferred Units accumulated and were
cumulative at the rate of 9.50% per annum of $1,000, the
liquidation preference of the Series A Preferred Units and
(ii) on and after December 15, 2022, distributions on the
Series A Preferred Units will accumulate for each distribution
period at a percentage of $1,000 equal to the three-month LIBOR
plus a spread of 7.43%.
We have not made a distribution on our common units or Series A
Preferred Units since we announced suspension of those
distributions on May 3, 2020 and do not expect to pay distributions
on the common units or Series A Preferred Units in the foreseeable
future.
As of December 31, 2022, the amount of accrued and unpaid
distributions on the Series A Preferred Units was $21.5 million.
Unpaid distributions on the Series A Preferred Units will continue
to accrue.
In addition, our Subsidiary Series A Preferred Units issued by
Permian Holdco have priority over the common unitholders with
respect to the cash flow from Permian Holdco. The distribution rate
of the Subsidiary Series A Preferred Units is 7.00% per annum of
the $1,000 issue amount per outstanding Subsidiary Series A
Preferred Unit. Permian Holdco has the option to pay this
distribution in-kind until the first quarter of 2022,
which is the first full quarter following the date the Double E
Pipeline was placed in service. The Partnership elected to pay
distributions in-kind during 2022, 2021 and 2020, except for the
periods ended September 30, 2022 and December 31, 2022 in which it
made cash distributions.
Our obligation to pay distributions on our Series
A Preferred Units and Permian Holdco’s obligation to pay
the distributions on the Subsidiary Series
A Preferred Units could impact our liquidity and reduce
the amount of cash flow available for working capital, capital
expenditures, growth opportunities, acquisitions, and other general
partnership purposes. Our obligations to the holders of the Series
A Preferred Units and Permian Holdco’s obligations to the
holders of the Subsidiary Series A Preferred Units could also limit
our ability to obtain additional financing or increase our
borrowing costs, which could have an adverse effect on our
financial condition.
Our Series A Preferred Units contain covenants that may limit our
business flexibility.
Our Series A Preferred Units contain covenants preventing us from
taking certain actions without the approval of the holders of 66
2/3% of the Series A Preferred Units. The need to obtain the
approval of holders of the Series A Preferred Units before taking
these actions could impede our ability to take certain actions that
management or the Board of Directors may consider to be in the best
interests of our unitholders. The affirmative vote of 66 2/3% of
the outstanding Series A Preferred Units, voting as a single class,
is necessary to amend the Partnership Agreement in any manner that
would have a material adverse effect on the existing preferences,
rights, powers, duties or obligations of the Series A Preferred
Units. The affirmative vote of 66 2/3% of the outstanding Series A
Preferred Units and any outstanding series of other preferred
units, voting as a single class, is necessary to (A) under
certain circumstances, create or issue certain equity securities
that are senior to our common units, (B) declare or pay any
distribution to common unitholders out of capital surplus or
(C) take any action that would result in an event of default
for failure to comply with any covenant in the indentures governing
the 2025 Senior Notes or the 2026 Secured Notes co-issued by Summit
Holdings and its 100% owned finance subsidiary, Finance
Corp.
Although holders of the Series A Preferred Units are entitled to
limited voting rights with respect to certain matters, the Series A
Preferred Units generally vote as a class, separate from our common
unitholders, along with any other series of our parity securities
that we may issue upon which like voting rights have been conferred
and are exercisable.
Tax Risks
Our tax treatment depends on our status as a partnership for
federal income tax purposes. If the IRS were to treat us as a
corporation for federal income tax purposes, which would subject us
to entity-level taxation, then our cash available for distribution
to our unitholders would be substantially reduced.
The anticipated after-tax economic benefit of an investment in our
units depends largely on our being treated as a partnership for
federal income tax purposes.
Despite the fact that we are a limited partnership under Delaware
law, it is possible in certain circumstances for a partnership such
as ours to be treated as a corporation for federal income tax
purposes. A change in our business or a change in current law could
cause us to be treated as a corporation for federal income tax
purposes or otherwise subject us to taxation as an
entity.
If we were treated as a corporation for federal income tax
purposes, we would pay federal income tax on our taxable income at
the corporate tax rate, which is currently 21%, and would likely
pay state and local income tax at varying rates. Distributions to
our unitholders would generally be taxed again as corporate
dividends (to the extent of our current and accumulated earnings
and profits), and no income, gains, losses, deductions, or credits
would flow through to our unitholders. Because a tax would be
imposed upon us as a corporation, our cash available for
distribution would be substantially reduced. Therefore, if we were
treated as a corporation for federal income tax purposes, there
would be material reductions in the anticipated cash flow and
after-tax return to our unitholders, likely causing a substantial
reduction in the value of our units. This could adversely affect
our financial position, results of operations and ability to make
distributions to our unitholders.
If we were subjected to a material amount of additional
entity-level taxation by individual states, it would reduce our
cash available for distribution to our unitholders.
Changes in current state law may subject us to additional
entity-level taxation by individual states. Because of widespread
state budget deficits and other reasons, several states are
evaluating ways to subject partnerships to entity-level taxation
through the imposition of state income, franchise and other forms
of taxation. Imposition of any such taxes may substantially reduce
the cash available for distribution.
The tax treatment of publicly traded partnerships or an investment
in our units could be subject to potential legislative, judicial or
administrative changes and differing interpretations of applicable
law, possibly on a retroactive basis.
The present U.S. federal income tax treatment of publicly traded
partnerships, including us, or an investment in our units may be
modified by administrative, legislative or judicial changes or
differing interpretations at any time. From time to time, the
President and members of the U.S. Congress propose and consider
substantive changes to the existing federal income tax laws that
affect publicly traded partnerships, including proposals that would
eliminate our ability to quality for partnership tax
treatment.
Any modification to the U.S. federal income tax laws and
interpretations could make it more difficult or impossible to meet
the exception for us to be treated as a partnership for U.S.
federal income tax purposes. We are unable to predict whether any
such changes will ultimately be enacted, but it is possible that a
change in law could affect us and may, if enacted, be applied
retroactively. Any such changes could negatively impact the value
of an investment in our units.
Our unitholders are required to pay income taxes on their share of
our taxable income even if they do not receive any cash
distributions from us. A unitholder’s share of our taxable income,
and its relationship to any distributions we make, may be affected
by a variety of factors, including our economic performance,
transactions in which we engage or changes in law and may be
substantially different from any estimate we make in connection
with a unit offering.
A unitholder’s allocable share of our taxable income will be
taxable to it, which may require the unitholder to pay federal
income taxes and, in some cases, state and local income taxes, even
if the unitholder receives cash distributions from us that are less
than the actual tax liability that results from that income or no
cash distributions at all.
A unitholder’s share of our taxable income, and its relationship to
any distributions we make, may be affected by a variety of factors,
including our economic performance, which may be affected by
numerous business, economic, regulatory, legislative, competitive
and political uncertainties beyond our control, and certain
transactions in which we might engage. For example, we may engage
in transactions that produce substantial taxable income allocations
to some or all of our unitholders without a corresponding increase
in cash distributions to our unitholders, such as a sale or
exchange of assets, the proceeds of which are reinvested in our
business or used to reduce our debt, or an actual or deemed
satisfaction of our indebtedness for an amount less than the
adjusted issue price of the debt. A unitholder’s ratio of its share
of taxable income to the cash received by it may also be affected
by changes in law. For instance the net interest expense deductions
of certain business entities, including us, are limited to 30% of
such entity’s “adjusted taxable income,” which is generally taxable
income with certain modifications. If the limit applies, a
unitholder’s taxable income allocations will be more (or its net
loss allocations will be less) than would have been the case absent
the limitation.
From time to time, in connection with an offering of our common
units, we may state an estimate of the ratio of federal taxable
income to cash distributions that a purchaser of common units in
that offering may receive in a given period. These estimates depend
in part on factors that are unique to the offering with respect to
which the estimate is stated, so the expected ratio applicable to
other common units will be different, and in many cases less
favorable, than these estimates. Moreover, even in the case of
common units purchased in the offering to which the estimate
relates, the estimate may be incorrect, due to the uncertainties
described above, challenges by the IRS to tax reporting positions
which we adopt, or other factors. The actual ratio of taxable
income to cash distributions could be higher or lower than
expected, and any differences could be material and could
materially affect the value of the common units.
In 2020, we engaged in transactions that generated substantial COD
income on a per unit basis relative to the trading price of our
common units. We may engage in other transactions that result in
substantial COD income or other gains in the future, and such
events may cause a unitholder to be allocated income with respect
to our units with no corresponding distribution of cash to fund the
payment of the resulting tax liability to the
unitholder.
A unitholder’s share of our taxable income will include any COD
income recognized upon the satisfaction of our outstanding
indebtedness for total consideration less than the adjusted issue
price (and any accrued but unpaid interest) of such indebtedness.
In 2020, we engaged in various liability management transactions
that resulted in substantial COD income. We may engage in other
transactions that result in substantial COD income or other gains,
such as gains upon assets sales, in the future. Depending upon the
net amount of other items related to our loss (or income) allocable
to a unitholder, any COD income or other gains may cause a
unitholder to be allocated income with respect to our units with no
corresponding distribution of cash to fund the payment of the
resulting tax liability to the unitholder. Furthermore, such COD
income event or other gain event may not be fully offset, either
now or in the future, by capital losses, which are subject to
significant limitations, or other losses. Accordingly, a COD income
event or other gain event could cause a unitholder to realize
taxable income without corresponding future economic benefits or
offsetting tax deductions.
If the IRS contests the federal income tax positions we take, the
market for our units may be adversely impacted and the cost of any
IRS contest would likely reduce our cash available for distribution
to our unitholders.
The IRS may adopt positions that differ from the conclusions of our
counsel expressed in a prospectus or from the positions we take,
and the IRS's positions may ultimately be sustained. It may be
necessary to resort to administrative or court proceedings to
sustain some or all of our counsel’s conclusions or the positions
we take and such positions may not ultimately be sustained. A court
may not agree with some or all of our counsel’s conclusions or the
positions we take. Any contest with the IRS, and the outcome of any
IRS contest, may have a materially adverse effect on the market for
our units and the price at which they trade. In addition, our costs
of any contest with the IRS would be borne indirectly by our
unitholders because the costs would likely reduce our cash
available for distribution.
Unitholders may be subject to limitation on their ability to deduct
interest expense incurred by us.
In general, we are entitled to a deduction for interest paid or
accrued on indebtedness properly allocable to our trade or business
during our taxable year. However, our deduction for “business
interest” is limited to the sum of our business interest income and
30% of our “adjusted taxable income.” For purposes of this
limitation, our adjusted taxable income is computed without regard
to any business interest expense or business interest income. In
the case of taxable years beginning January 1, 2022, our adjusted
taxable income is computed by taking into account any deduction
allowable for depreciation, amortization, or
depletion.
Tax gain or loss on the disposition of our units could be more or
less than expected.
If a unitholder sells its units, a gain or loss will be recognized
for federal income tax purposes equal to the difference between the
amount realized and the unitholder's tax basis in those units.
Because distributions in excess of a unitholder's allocable share
of its net taxable income decrease its tax basis in its units, the
amount, if any, of such prior excess distributions with respect to
the units it sells will, in effect, become taxable income to the
unitholder if it sells such units at a price greater than its tax
basis in those units, even if the price it receives is less than
its original cost. Furthermore, a substantial portion of the amount
realized on any sale or other disposition of a unitholder's units,
whether or not representing gain, may be taxed as ordinary income
due to potential recapture items, including depreciation recapture.
In addition, because the amount realized includes a unitholder's
share of our nonrecourse liabilities, if a unitholder sells its
units, it may incur a tax liability in excess of the amount of cash
it receives from the sale.
Tax-exempt entities and non-U.S. persons face unique tax issues
from owning our units that may result in adverse tax consequences
to them.
Investment in our units by tax-exempt entities, such as employee
benefit plans and individual retirement accounts (“IRAs”), and
non-U.S. persons raises issues unique to them. For example,
virtually all of our income allocated to an organization that is
exempt from federal income tax, including IRAs and other retirement
plans, will be unrelated business taxable income
(“UBTI”) and will be taxable to the exempt organization as UBTI on
the exempt organization’s tax return in the year the exempt
organization is allocated the income. An exempt organization is
required to independently compute its UBTI from each separate
unrelated trade or business which may prevent an exempt
organization from utilizing losses we allocate to the organization
against the organization’s UBTI from other sources and vice versa.
Distributions to non-U.S. persons will be reduced by withholding
taxes at the highest applicable effective tax rate, and non-U.S.
persons will be required to file federal income tax returns and
applicable state tax returns and pay tax on their share of our
taxable income.
Non-U.S. unitholders are generally taxed and subject to income tax
filing requirements by the United States on income effectively
connected with a U.S. trade or business. Income allocated to our
unitholders and any gain from the sale of our units will generally
be considered to be “effectively connected” with a U.S. trade or
business. As a result, distributions to a non-U.S. unitholder will
be subject to withholding at the highest applicable effective tax
rate and a non-U.S. unitholder who sells or otherwise disposes of a
unit will also be subject to U.S. federal income tax on the gain
realized from the sale or disposition of that unit.
In addition to the withholding tax imposed on distributions of
effectively connected income, distributions to a non-U.S.
unitholder will also be subject to a 10% withholding tax on the
amount of any distribution in excess of our cumulative net income.
As we do not compute our cumulative net income for such purposes
due to the complexity of the calculation and lack of clarity in how
it would apply to us, we intend to treat all of our distributions
as being in excess of our cumulative net income for such purposes
and subject to such 10% withholding tax. Accordingly, distributions
to a non-U.S. unitholder will be subject to a combined withholding
tax rate equal to the sum of the highest applicable effective tax
rate and 10%.
Additionally, if a unitholder sells or otherwise disposes of a
unit, the transferee is required to withhold 10.0% of the amount
realized by the transferor unless the transferor certifies that it
is not a foreign person, and we are required to deduct and withhold
from the transferee amounts that should have been withheld by the
transferee but were not withheld. Under the Treasury Regulations,
such withholding will be required on open market transactions, but
in the case of a transfer made through a broker, a partner’s share
of liabilities will be excluded from the amount realized. In
addition, the obligation to withhold will be imposed on the broker
instead of the transferee (and we will generally not be required to
withhold from the transferee amounts that should have been withheld
by the transferee but were not withheld). These withholding
obligations will apply to transfers of our common units occurring
on or after January 1, 2023. Current and prospective non-U.S.
unitholders should consult their tax advisors regarding the impact
of these rules on an investment in our common units.
We treat each holder of our common units as having the same tax
benefits without regard to the actual common units held. The IRS
may challenge this treatment, which could adversely affect the
value of the common units.
Because we cannot match transferors and transferees of common units
and because of other reasons, we will adopt depreciation and
amortization positions that may not conform to all aspects of
existing Treasury Regulations. A successful IRS challenge to those
positions could adversely affect the amount of tax benefits
available to our unitholders. A successful IRS challenge also could
affect the timing of these tax benefits or the amount of gain from
a unitholder’s sale of common units and could have a negative
impact on the value of our common units or result in audit
adjustments to the unitholder’s tax returns.
Treatment of distributions on our Series A Preferred Units as
guaranteed payments for the use of capital creates a different tax
treatment for the holders of our Series A Preferred Units than the
holders of our common units and such distributions are not eligible
for the 20% deduction for qualified publicly traded partnership
income.
The tax treatment of distributions on our Series A Preferred Units
is uncertain. We will treat the holders of Series A Preferred Units
as partners for tax purposes and will treat distributions on the
Series A Preferred Units as guaranteed payments for the use of
capital that will generally be taxable to the holders of Series A
Preferred Units as ordinary income. A holder of Series A Preferred
Units may recognize taxable income from the accrual of such a
guaranteed payment even in the absence of a contemporaneous
distribution, and we anticipate accruing the guaranteed payment
distributions quarterly on the 15th day of March, June, September
and December. Because the guaranteed payment for each unit must
accrue as income to a holder during the taxable year of the
accrual, the guaranteed payment attributable to the period
beginning December 15th and ending December 31st will accrue to the
holder of record of a Series A Preferred Unit on December 31st for
such period. Otherwise, except in the case of our liquidation, the
holders of Series A Preferred Units are generally not anticipated
to share in our items of income, gain, loss or deduction. We will
not allocate any share of its nonrecourse liabilities to the
holders of Series A Preferred Units.
Treasury Regulations provide that a guaranteed payment for the use
of capital generally is not taken into account for purposes of
computing qualified business income for purposes of the 20%
deduction for qualified publicly traded partnership will not
constitute an allocable or distributive share of such income. As a
result, the guaranteed payment for use of capital received by
holders of our Series A Preferred Units may not be eligible for the
20% deduction for qualified publicly traded partnership
income.
A holder of Series A Preferred Units will be required to recognize
gain or loss on a sale of units equal to the difference between the
holder’s amount realized and tax basis in the units sold. The
amount realized generally will equal the sum of the cash and the
fair market value of other property such holder receives in
exchange for such Series A Preferred Units. Subject to general
rules requiring a blended basis among multiple partnership
interests, the tax basis of a Series A Preferred Unit will
generally be equal to the sum of the cash and the fair market value
of other property paid by the holder to acquire such Series A
Preferred Unit. Gain or loss recognized by a holder on the sale or
exchange of a Series A Preferred Unit held for more than one year
generally will be taxable as long-term capital gain or loss.
Because holders of Series A Preferred Units will not generally be
allocated a share of our items of depreciation, depletion or
amortization, it is not anticipated that such holders would be
required to recharacterize any portion of their gain as ordinary
income as a result of the recapture rules.
Investment in the Series A Preferred Units by tax-exempt investors,
such as employee benefit plans and IRAs, and non-U.S. persons
raises issues unique to them. Although the issue is not free from
doubt, we will treat distributions to non-U.S. holders of the
Series A Preferred Units as “effectively connected income” (which
will subject holders to U.S. net income taxation and possibly the
branch profits tax) that are subject to withholding taxes imposed
at the highest effective tax rate applicable to such non-U.S.
holders. If the amount of withholding exceeds the amount of U.S.
federal income tax actually due, non-U.S. holders may be required
to file U.S. federal income tax returns in order to seek a refund
of such excess. The treatment of guaranteed payments for the use of
capital to tax-exempt investors is not certain and such payments
may be treated as unrelated business taxable income for federal
income tax purposes.
All holders of our Series A Preferred Units are urged to consult a
tax advisor with respect to the consequences of owning our Series A
Preferred Units.
We prorate our items of income, gain, loss and deduction for U.S,
federal income tax purposes between transferors and transferees of
our units each month based upon the ownership of our units on the
first day of each month, instead of on the basis of the date a
particular unit is transferred. The IRS may challenge this
treatment, which could change the allocation of items of income,
gain, loss and deduction among our unitholders.
We prorate our items of income, gain, loss and deduction for U.S.
federal income tax purposes between transferors and transferees of
our units each month based upon the ownership of our units on the
first day of each month, instead of on the basis of the date a
particular unit is transferred. Treasury Regulations allow a
similar monthly simplifying convention, but do not specifically
authorize the use of the proration method we have adopted. If the
IRS were to challenge our proration method, or if new Treasury
Regulations were issued, we may be required to change the
allocation of items of income, gain, loss and deduction among our
unitholders.
A unitholder whose units are loaned to a “short seller” to cover a
short sale of units may be considered as having disposed of those
units. If so, the unitholder would no longer be treated for federal
income tax purposes as a partner with respect to those units during
the period of the loan and may recognize gain or loss from the
disposition.
Because a unitholder whose units are loaned to a “short seller” to
cover a short sale of units may be considered as having disposed of
the loaned units, the unitholder may no longer be treated for
federal income tax purposes as a partner with respect to those
units during the period of the loan to the short seller and the
unitholder may recognize gain or loss from such disposition.
Moreover, during the period of the loan to the short seller, any of
our income, gain, loss or deduction with respect to those units may
not be reportable by the unitholder and any cash distributions
received by the unitholder as to those units could be fully taxable
as ordinary income. Therefore, unitholders desiring to assure their
status as partners and avoid the risk of gain recognition from a
loan to a short seller are urged to consult a tax advisor to
discuss whether it is advisable to modify any applicable brokerage
account agreements to prohibit their brokers from loaning their
units.
We have adopted certain valuation methodologies and monthly
conventions for U.S. federal income tax purposes that may result in
a shift of income, gain, loss and deduction among our unitholders.
The IRS may challenge this treatment, which could adversely affect
the value of our units.
When we issue additional units or engage in certain other
transactions, we will determine the fair market value of our
assets. Although we may from time to time consult with professional
appraisers regarding valuation matters, we make many fair market
value estimates using a methodology based on the market value of
our units as a means to measure the fair market value of our
assets. The IRS may challenge these valuation methods and the
resulting allocations of income, gain, loss and
deduction.
A successful IRS challenge to these methods or allocations could
adversely affect the amount, character and timing of taxable income
or loss being allocated to our unitholders. It also could affect
the amount of taxable gain from our unitholders' sale of units and
could have a negative impact on the value of the units or result in
audit adjustments to our unitholders' tax returns without the
benefit of additional deductions.
If the IRS makes audit adjustments to our income tax returns, the
IRS (and some states) may collect any resulting taxes (including
any applicable penalties and interest) resulting from such audit
adjustment directly from us, in which case
we may
require our unitholders and former unitholders to reimburse us for
such taxes (including any applicable penalties or interest) or, if
we are required to bear such payment, our cash available for
distribution to our unitholders could be substantially
reduced.
If the IRS makes audit adjustments to our income tax returns, it
may collect any resulting taxes (including any applicable penalties
and interest) directly from us. We will generally have the ability
to shift any such tax liability to our unitholders in accordance
with their interests in us during the year under audit, but there
can be no assurance that we will be able to do so (and will choose
to do so) under all circumstances, or that we will be able to (or
choose to) effect corresponding shifts in state income or similar
tax liability resulting from the IRS adjustment in states in which
we do business in the year under audit or in the adjustment year.
If, we make payments of taxes, penalties and interest resulting
from audit adjustments, we may require our unitholders and former
unitholders to reimburse us for such taxes (including any
applicable penalties or interest) or, if we are required to bear
such payment, our cash available for distribution to our
unitholders could be substantially reduced. Additionally, we may be
required to allocate an adjustment disproportionately among our
unitholders, causing the publicly traded units to have different
capital accounts, unless the IRS issues further
guidance.
In the event the IRS makes an audit adjustment to our income tax
returns and we do not or cannot shift the liability to our
unitholders in accordance with their interests in us during the
year under audit, we will generally have the ability to request
that the IRS reduce the determined underpayment by reducing the
suspended passive loss carryovers of our unitholders (without any
compensation from us to such unitholders), to the extent such
underpayment is attributable to a net decrease in passive activity
losses allocable to certain partners. Such reduction, if approved
by the IRS, will be binding on any affected
unitholders.
As a result of investing in our units, our unitholders will likely
be subject to state and local taxes and return filing requirements
in jurisdictions where we operate or own or acquire
properties.
In addition to federal income taxes, our unitholders will likely be
subject to other taxes, including state and local taxes,
unincorporated business taxes and estate, inheritance or intangible
taxes that are imposed by the various jurisdictions in which we
conduct business or control property now or in the future, even if
the unitholders do not live in any of those jurisdictions. Our
unitholders will likely be required to file state and local income
tax returns and pay state and local income taxes in some or all of
these various jurisdictions. Further, our unitholders may be
subject to penalties for failure to comply with those requirements.
Some of the states in which we conduct business currently impose a
personal income tax on individuals. As we make acquisitions or
expand our business, we may control assets or conduct business in
additional states that impose a personal income tax. It is the
unitholder's responsibility to file all federal, state and local
tax returns.
Compliance with and changes in tax laws could adversely affect our
performance.
We are subject to extensive tax laws and regulations, including
federal and state income taxes and transactional taxes such as
excise, sales/use, payroll, franchise and ad valorem taxes. New tax
laws and regulations and changes in existing tax laws and
regulations are continuously being enacted that could result in
increased tax expenditures in the future. Many of these tax
liabilities are subject to audits by the respective taxing
authority. These audits may result in additional taxes as well as
interest and penalties.
Risks Related to Terrorism and Cyberterrorism
Terrorist attacks and threats, escalation of military activity in
response to these attacks or acts of war could have a material
adverse effect on our business, financial condition or results of
operations.
Terrorist attacks and threats, escalation of military activity or
acts of war may have significant effects on general economic
conditions, fluctuations in consumer confidence and spending and
market liquidity, each of which could materially and adversely
affect our business. Future terrorist attacks, rumors or threats of
war, actual conflicts involving the United States or its allies, or
military or trade disruptions may significantly affect our
operations and those of our customers. Strategic targets, such as
energy-related assets, may be at greater risk of future attacks
than other targets in the United States. Disruption or significant
increases in energy prices could result in government-imposed price
controls. It is possible that any of these occurrences, or a
combination of them, could have a material adverse effect on our
business, financial condition and results of operations. Our
insurance may not protect us against such occurrences.
Our operations depend on the use of information technology (“IT”)
and operational technology (“OT”) systems that could be the target
of a cyberattack.
The oil and gas industry has become increasingly dependent on
digital technologies to conduct day-to-day operations, including
certain midstream activities. For example, software programs are
used to manage gathering and transportation systems and for
compliance reporting. The use of mobile communication devices has
increased rapidly. Industrial control systems now control large
scale processes that can include multiple sites over long
distances, such as oil and gas pipelines.
Our operations depend on the use of sophisticated IT and OT
systems. These systems, as well as those of our customers, business
partners and counterparties, may become the target of cyber-attacks
or information security breaches. Any such cyber-attacks or
information security breaches could have a material adverse effect
on our revenues and increase our operating and capital costs and
could reduce the amount of cash otherwise available for
distribution. A cyber-incident involving our IT or OT systems, or
that of our customers, business partners or counterparties, could
disrupt our business plans and negatively impact our operations in
the following ways, among others:
•a
cyber-attack on a vendor or service provider could result in supply
chain disruptions, which could delay or halt development of
additional infrastructure, effectively delaying the start of cash
flows from the project;
•a
cyber-attack on downstream pipelines could prevent us from
delivering product at the tailgate of our facilities, resulting in
a loss of revenues;
•a
cyber-attack on a communications network or power grid could cause
operational disruption, resulting in loss of revenues;
•a
deliberate corruption of our financial or operational data could
result in events of non-compliance, which could lead to regulatory
fines or penalties; and
•business
interruptions could result in expensive remediation efforts,
distraction of management, damage to our reputation or a negative
impact on the price of our units.
Cyber-incidents and related business interruptions could result in
expensive remediation efforts, distraction of management, damage to
our reputation or a negative impact on the price of our units. In
addition, certain cyberattacks and related incidents, such as
reconnaissance or surveillance by threat actors, may remain
undetected for an extended period notwithstanding our monitoring
and detection efforts. As a result, we may be required to incur
additional costs to modify or enhance our IT or OT systems to
prevent or remediate any such attacks. Finally, laws and
regulations governing cybersecurity pose increasingly complex
compliance challenges, and failure to comply with these laws could
result in penalties and legal liability.
Item 1B. Unresolved Staff Comments.
Not applicable.
Item 2. Properties.
A description of our properties is included in Item 1. Business,
and is incorporated herein by reference. For additional information
on our midstream assets and their capacities, see Item 1.
Business.
Our real property falls into two categories: (i) parcels that we
own in fee and (ii) parcels in which our interest derives from
leases, easements, rights-of-way, permits or licenses from
landowners or governmental authorities, permitting the use of such
land for our operations. Portions of the land on which our
gathering systems and other major facilities are located are owned
by us in fee title, and we believe that we have valid title to
these lands. The remainder of the land on which our major
facilities are located are held by us pursuant to long-term leases
or easements between us and the underlying fee owner or permits
with governmental authorities. We believe that we have valid
leasehold estates or fee ownership in such lands or valid permits
with governmental authorities. We have no knowledge of any material
challenge to the underlying fee title of any material lease,
easement, right-of-way, permit or license held by us or to our
title to any material lease, easement, right-of-way, permit or
license. We believe that we have satisfactory title to all of our
material leases, easements, rights-of-way, permits and licenses
with the exception of certain ordinary course encumbrances and
permits with governmental entities that have been applied for, but
not yet issued.
In addition, we lease various office space to support our
operations.
Item 3. Legal Proceedings.
Although we may, from time to time, be involved in litigation and
claims arising out of our operations in the normal course of
business, we are not currently a party to any significant legal or
governmental proceedings, except as noted below. In addition, we
are not aware of any significant legal or governmental proceeding
contemplated to be brought against us, under the various
environmental protection statutes to which we are subject, except
as noted below.
Fiberspar Corporation.
On May 3, 2022, Fiberspar Corporation filed a petition in state
court alleging that the Partnership owes Fiberspar $5.0 million or
more for orders of pipeline product from Fiberspar. The petition
asserts causes of action for breach of contract and suit on sworn
account. A civil action on the same claims had been filed by
Fiberspar in 2016 but was dismissed without prejudice pursuant to a
standstill and tolling agreement that expired in 2021. We filed an
answer on September 6, 2022 denying Fiberspar’s claims and
asserting counter claims. The case is pending in the District Court
of Harris County, Texas. We are unable to predict the final outcome
of this matter.
Global Settlement.
On August 4, 2021, the Partnership and several of its subsidiaries
entered into agreements to resolve government investigations into
the previously disclosed 2015 Blacktail Release, from a pipeline
owned and operated by Meadowlark Midstream, which at the time was a
wholly owned subsidiary of Summit Investments, (together with
Meadowlark Midstream, the “Companies”). The Companies entered into
the following agreements to resolve the U.S. federal and North
Dakota state governments’ environmental claims against the
Companies with respect to the 2015 Blacktail Release: (i) a Consent
Decree with (a) the DOJ, on behalf of the U.S. Environmental
Protection Agency and the U.S. Department of Interior, and (b) the
State of North Dakota, on behalf of the North Dakota Department of
Environmental Quality and the North Dakota Game and Fish
Department, lodged with the U.S. District Court; (ii) a Plea
Agreement with the United States, by and through the U.S. Attorney
for the District of North Dakota, and the Environmental Crimes
Section of the DOJ; and (iii) a Consent Agreement with the North
Dakota Industrial Commission.
The Consent Decree provides for, among other requirements and
subject to the conditions therein, (i) payment of total civil
penalties and reimbursement of assessment costs of $21.25 million,
with the federal portion of penalties payable over up to five years
and the state portion of penalties payable over up to six years,
with interest accruing at a fixed rate of 3.25%; (ii) continuation
of remediation efforts at the site of the 2015 Blacktail Release;
(iii) other injunctive relief including but not limited to control
room management, an environmental management system audit,
training, and reporting; and (iv) no admission of liability to the
U.S. or North Dakota. The Consent Decree was entered by the U.S.
District Court on September 28, 2021.
The Consent Agreement settles a complaint brought by the NDIC in an
administrative action against the Companies for alleged violations
of the North Dakota Administrative Code (“NDAC”) arising from the
2015 Blacktail Release on the following terms: (i) the Companies
admit to three counts of violating the NDAC; (ii) the Companies
agree to follow the terms and conditions of the Consent Decree,
including payment of penalty and reimbursement amounts set forth in
the Consent Decree; and (iii) specified conditions in the Consent
Decree regarding operation and testing of certain existing produced
water pipelines shall survive until those pipelines are properly
abandoned.
Under the Plea Agreement, the Companies agreed to, among other
requirements and subject to the conditions therein, (i) enter
guilty pleas for one charge of negligent discharge of a harmful
quantity of oil and one charge of knowing failure to
immediately
report a discharge of oil; (ii) sentencing that includes payment of
a fine of $15.0 million plus mandatory special assessments over a
period of up to five years with interest accruing at the federal
statutory rate; (iii) organizational probation for a minimum period
of three years from sentencing, which will include payment in full
of certain components of the fines and penalty amounts; and (iv)
compliance with the remedial measures in the Consent
Decree.
On December 6, 2021, the U.S. District Court accepted the Plea
Agreement. This settlement resulted in losses amounting to $36.3
million and will be paid over six years, of which we have paid
$8.0 million as of December 31, 2022.
Moore Control Systems.
Moore Control Systems, Inc. (“MCSI”) initiated an arbitration in
December 2020 related to the construction of Summit’s Lane Gas
Processing Plant in Eddy County, New Mexico (the “Lane Plant”).
MCSI was the EPC contractor on the Lane Plant under a lump sum
contract. This matter has been resolved as of the date of this
filing with no material impact to the Partnership.
Verdad Resources.
Verdad Resources LLC (“Verdad”) filed a complaint in Colorado state
court for the district of Weld County against Sterling Energy
Investments LLC (“Sterling”), Golden Resources, Inc., and
Grasslands Energy Marketing LLC (“Grasslands”) on October 20, 2022,
and amended on December 6, 2022 to exclude Golden Resources, Inc.
as a defendant. In connection with the 2022 DJ Acquisitions,
Sterling and Grasslands became subsidiaries of the Partnership.
Verdad claims that Sterling did not have the right to assess
marketing fees passed through from Grasslands’ purchase and resale
of residue natural gas and natural gas liquids from Sterling. The
relief requested by Verdad includes an unspecified amount of
damages as well as declaratory relief. We are unable to predict the
final outcome of this matter.
Highpoint Operating Corporation.
Sterling and Highpoint Operating Corporation (“Highpoint”) are
parties to a gas gathering agreement (the “Highpoint Agreement”).
Sterling sued Highpoint in Colorado state court for the district of
Denver County on June 15, 2020, alleging that Highpoint breached
the Highpoint Agreement and seeking damages. Highpoint asserted
counterclaims alleging that Sterling breached the Highpoint
Agreement. In October 2021, after a bench trial, the court found
against Sterling and in favor of Highpoint’s counterclaims. The
court awarded Highpoint $2.4 million in damages. In December 2021,
Sterling posted an appeal bond and filed its Notice of Appeal. In
February 2022, the Colorado Court of Appeals granted Sterling’s
Motion to Stay Execution of Judgment. The case remains pending
before the appeals court. We are unable to predict the final
outcome of this matter.
Item 4. Mine Safety Disclosures.
Not applicable.
PART II
Item 5. Market for Registrant’s Common Equity, Related Stockholder
Matters and Issuer Purchases of Equity Securities.
Our common units trade on the NYSE under the ticker symbol “SMLP”.
As of December 31, 2022, there were approximately 7,196 common
unitholders of record per our tax records.
We have not made a distribution on our common units or Series A
Preferred Units since we announced a suspension of those
distributions on May 3, 2020. We paid distributions in-kind on our
Subsidiary Series A Preferred Units in 2020, 2021 and portions of
2022, and paid distributions on our Subsidiary Series A Preferred
Units totaling $3.3 million in 2022 and accrued an additional $1.6
million in 2022 which was subsequently paid in 2023.
Our Cash Distribution Policy and Restrictions on
Distributions
General
Suspension of Distributions.
On May 3, 2020, we suspended distributions to holders of our common
units and suspended payments of distributions to holders of our
Series A Preferred Units, commencing with respect to the quarter
ending March 31, 2020. Because our Series A Preferred
Units rank senior to our common units with respect to distribution
rights, any accrued amounts on our Series A Preferred Units must
first be paid prior to our resumption of distributions to our
common unitholders. As of December 31, 2022, the amount of accrued
and unpaid distributions on the Series A Preferred Units totaled
$21.5 million.
At this time, we do not expect to pay distributions to holders of
our common units or Series A Preferred Units in the foreseeable
future.
Our Cash Distribution Policy. Our
Partnership Agreement requires us to distribute all of our
available cash quarterly, subject to reserves established by our
General Partner. Generally, our available cash is our (i) cash on
hand at the end of a quarter after the payment of our expenses and
the establishment of cash reserves and (ii) cash on hand resulting
from working capital borrowings made after the end of the quarter.
Because we are not subject to an entity-level federal income tax,
we have more cash to distribute to our unitholders than would be
the case were we subject to federal income tax.
Upon a resumption of the Partnership’s distributions on the common
units, we will pay our distributions on or about the 15th of each
of February, May, August and November to holders of record on or
about seven days prior to such distribution date. We make the
distribution on the business day immediately preceding the
indicated distribution date if the distribution date falls on a
holiday or non-business day.
The Board of Directors plans on making decisions with respect to
payment of distributions on the common units and Series A Preferred
Units on a semi-annual or quarterly basis, as applicable, based on
the required payment date. However, we do not intend to pay
distributions on the common units or Series A Preferred Units in
the foreseeable future, and there are restrictions in the
agreements for our indebtedness limiting our ability to pay cash
distributions on any of our equity securities.
Limitations on Cash Distributions and Our Ability to Change Our
Cash Distribution Policy. There
is no guarantee that our unitholders will receive quarterly
distributions from us. We do not have a legal obligation to pay any
distribution except to the extent we have available cash as defined
in our Partnership Agreement. Our cash distribution policy may be
changed at any time and is subject to certain restrictions,
including the following:
•Our
cash distribution policy is subject to restrictions on
distributions under our ABL Facility and the 2026 Secured Notes
Indenture and the indenture governing the 2025 Senior Notes. These
agreements contain financial tests, excess cash flow sweep
mechanisms, and covenants that we must satisfy. Should we be unable
to satisfy these restrictions, we may be prohibited from making
cash distributions notwithstanding our stated cash distribution
policy.
•Our
cash distribution policy is subject to restrictions on
distributions under our Series A Preferred Units. Our Series A
Preferred Units contain covenants that we must satisfy. Should we
be unable to satisfy these restrictions, we may be prohibited from
making cash distributions notwithstanding our stated cash
distribution policy.
•Our
General Partner has the authority to establish cash reserves for
the prudent conduct of our business and for future cash
distributions to our unitholders, and the establishment or increase
of those cash reserves could result in a reduction in cash
distributions to our unitholders from the levels we currently
anticipate pursuant to our stated distribution policy. Any
determination to establish cash reserves made by our General
Partner in good faith will be binding on our
unitholders.
•Although
our Partnership Agreement requires us to distribute all of our
available cash, our Partnership Agreement, including the provisions
requiring us to distribute all of our available cash, may be
amended. We can amend our
Partnership Agreement with the consent of our General Partner and
the approval of a majority of the outstanding common
units.
•Even
if our cash distribution policy is not modified or revoked, the
amount of distributions we pay under our cash distribution policy
and the decision to make any distribution is determined by our
General Partner, taking into consideration the terms of our
Partnership Agreement.
•Under
Delaware law, we may not make a distribution if the distribution
would cause our liabilities to exceed the fair value of our
assets.
•We
may lack sufficient cash to pay distributions to our unitholders
due to cash flow shortfalls attributable to a number of
operational, commercial or other factors as well as increases in
our operating or general and administrative expenses, principal and
interest payments on our debt, tax expenses, working capital
requirements and anticipated cash needs. Our cash available for
distribution to unitholders is directly impacted by our cash
expenses necessary to run our business and will be reduced
dollar-for-dollar to the extent such uses of cash
increase.
•If
and to the extent our cash available for distribution materially
declines, we may elect to reduce our quarterly distribution rate to
service or repay our debt or fund expansion capital
expenditures.
Preferred Unit Distributions
Series A Preferred Units
In November 2017, we issued 300,000 Series A Preferred Units at a
price to the public of $1,000 per Series A Preferred Unit and as a
result of exchange transactions completed in 2020, 2021 and 2022,
the Partnership had 65,508 Series A Preferred Units outstanding as
of December 31,2022 and $21.5 million of accrued and unpaid
distributions.
In May 2020, we suspended payments of distributions to holders of
our Series A Preferred Units, and we did not make a distribution on
our Series A Preferred Units in 2022 or 2021.
During the year ended December 31, 2021, we completed an offer to
exchange our Series A Preferred Units for newly issued common units
(the “2021 Preferred Exchange Offer”), whereby we issued 538,715
SMLP common units, net of units withheld for withholding taxes, in
exchange for 18,662 Series A Preferred Units.
During the year ended December 31, 2022, we completed an offer to
exchange our Series A Preferred Units for newly issued common units
(the “2022 Preferred Exchange Offer”), whereby we issued 2,853,875
SMLP common units, net of units withheld for withholding taxes, in
exchange for 77,939 Series A Preferred Units.
Distributions on the Series A Preferred Units are cumulative and
compounding and were payable semi-annually in arrears on the 15th
day of each June and December through and including December 15,
2022, and, after December 15, 2022, are payable quarterly in
arrears on the 15th day of March, June, September and December of
each year (each, a “Distribution Payment Date”) to holders of
record as of the close of business on the first business day of the
month of the applicable Distribution Payment Date, in each case,
when, as, and if declared by the General Partner out of legally
available funds for such purpose.
The initial distribution rate for the Series A Preferred Units was
9.50% per annum of the $1,000 liquidation preference per Series A
Preferred Unit. Beginning December 15, 2022, distributions on the
Series A Preferred Units accumulate for each distribution period at
a percentage of the liquidation preference equal to the three-month
LIBOR plus a spread of 7.43%. See Note 12 - Partners' Capital and
Mezzanine Capital to the consolidated financial statements for
additional details.
Subsidiary Series A Preferred Units
In December 2019 and during the year ended December 31, 2020,
Permian Holdco issued 30,057 and 55,251 Subsidiary Series A
Preferred Units, respectively, representing limited partner
interests in Permian Holdco at a price of $1,000 per unit. During
the years ended December 31, 2022 and 2021, we elected to make PIK
distributions and issued 1,600 and 6,131 Subsidiary Series A
Preferred Units, respectively, to the holders of the Subsidiary
Series A Preferred Units.
As of December 31, 2022, we had 93,039 Subsidiary Series A
Preferred Units outstanding and during fiscal year ended December
31, 2022 we made
$3.3 million
of cash distributions to holders of the Subsidiary A Preferred
Units
and accrued an additional $1.6 million in 2022 which was
subsequently paid in 2023.
Additionally, we paid distributions in-kind on our Subsidiary
Series A Preferred Units in 2020, 2021 and portions of
2022.
Distributions on the Subsidiary Series A Preferred Units
are cumulative and compounding and are payable quarterly in arrears
21 days after the quarter ending March,
June, September and December of each year (each, a
“Subsidiary Series A Preferred Distribution Payment Date”) to
holders of record as of the close of business on the first business
day of the month of the applicable Subsidiary Series A
Preferred Distribution Payment Date, in each case, when, as, and if
declared by the board of directors of Permian Holdco out of legally
available funds for such purpose.
The distribution rate is 7.00% per annum of the $1,000 issue amount
per outstanding Permian Holdco Subsidiary Series A Preferred Unit.
Permian Holdco had the option to pay this distribution in-kind
until the first quarter of 2022, which is the first full quarter
following the date the Double E Pipeline was placed in service. See
Note 12 - Partners' Capital and Mezzanine Capital to the
consolidated financial statements for additional
details.
Unregistered Sales of Equity Securities
In January 2022, we completed the 2022 Preferred Exchange Offer,
whereby we issued 2,853,875 SMLP common units, net of units
withheld for withholding taxes, in exchange for 77,939 Series A
Preferred Units. Upon the settlement of the 2022 Preferred Exchange
Offer, we eliminated $92.6 million of the Series A Preferred Unit
liquidation preference amount, inclusive of accrued distributions
due as of the settlement date. We did not receive any cash proceeds
from the 2022 Preferred Exchange Offer.
The Partnership relied on Section 3(a)(9) of the Securities Act to
exempt the 2022 Preferred Exchange Offer from the registration
requirements of the Securities Act. Section 3(a)(9) offers
exemptions from the registration requirements of the Securities Act
for exchange offers in which (i) the issuer of the securities
offered is the same as the issuer of the securities being
surrendered, (ii) the holders are not being asked to surrender
anything of value other than the outstanding securities, (iii) the
exchange offer is made exclusively to existing holders of the
issuer’s outstanding securities, and (iv) the issuer does not pay
any commission or remuneration for solicitation of the exchange.
Because the Partnership offered only its own common units
exclusively to the holders of and in exchange for its outstanding
Series A Preferred Units, and because it neither paid nor received
anything of value other than the subject securities, the
Partnership was able to rely on the exemption afforded by Section
3(a)(9) of the Securities Act.
Issuer Purchases of Equity Securities
We made no repurchases of our common units during the quarter or
year ended December 31, 2022.
Item 7. Management’s Discussion and Analysis of Financial Condition
and Results of Operations.
MD&A is intended to inform the reader about matters affecting
the financial condition and results of operations of the
Partnership and its subsidiaries. As a result, the following
discussion for the year ended December 31, 2022 should be read in
conjunction with the consolidated financial statements and notes
thereto included in this Annual Report. Among other things, the
consolidated financial statements and the related notes include
more detailed information regarding the basis of presentation for
the following information. This discussion contains forward-looking
statements that constitute our plans, estimates and beliefs. These
forward-looking statements involve numerous risks and
uncertainties, including, but not limited to, those discussed in
Forward-Looking Statements. Actual results may differ materially
from those contained in any forward-looking
statements.
Overview
We are a value-driven limited partnership focused on developing,
owning and operating midstream energy infrastructure assets that
are strategically located in unconventional resource basins,
primarily shale formations, in the continental United
States.
Our financial results are driven primarily by volume throughput
across our gathering systems and by expense management. We generate
the majority of our revenues from the gathering, compression,
treating and processing services that we provide to our customers.
A majority of the volumes that we gather, compress, treat and/or
process have a fixed-fee rate structure which enhances the
stability of our cash flows by providing a revenue stream that is
not subject to direct commodity price risk. We also earn a portion
of our revenues from the following activities that directly expose
us to fluctuations in commodity prices: (i) the sale of physical
natural gas and/or NGLs purchased under percentage-of-proceeds or
other processing arrangements with certain of our customers in the
Rockies, Permian and Piceance segments, (ii) the sale of natural
gas we retain from certain Barnett segment customers, (iii) the
sale of condensate we retain from our gathering services in the
Piceance segment and (iv) additional gathering fees that are tied
to the performance of certain commodity price indexes which are
then added to the fixed gathering rates. During the year ended
December 31, 2022, these additional activities accounted for
approximately 18% of our total revenues.
We also have indirect exposure to changes in commodity prices in
that persistently low commodity prices may cause our customers to
delay and/or cancel drilling and/or completion activities or
temporarily shut-in production, which would reduce the volumes of
natural gas and crude oil (and associated volumes of produced
water) that we gather. If certain of our customers cancel or delay
drilling and/or completion activities or temporarily shut-in
production, the associated MVCs, if any, ensure that we will earn a
minimum amount of revenue.
The following table presents certain consolidated and reportable
segment financial data. For additional information on our
reportable segments, see the “Segment Overview for the Years Ended
December 31, 2022 and 2021” section herein.
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
2022 |
|
2021 |
|
(In thousands) |
Net loss |
$ |
(123,461) |
|
|
$ |
(19,949) |
|
Reportable segment adjusted EBITDA |
|
|
|
Northeast |
$ |
77,046 |
|
|
$ |
83,287 |
|
Rockies |
57,810 |
|
|
64,517 |
|
Permian |
18,051 |
|
|
6,614 |
|
Piceance |
60,055 |
|
|
76,131 |
|
Barnett |
31,624 |
|
|
36,729 |
|
|
|
|
|
Net cash provided by operating activities |
$ |
98,744 |
|
|
$ |
165,099 |
|
Capital expenditures(1)
|
30,472 |
|
|
25,030 |
|
Cash consideration paid for the acquisition of Outrigger DJ, net of
cash acquired |
(166,631) |
|
|
— |
|
Cash consideration paid for the acquisition of Sterling DJ, net of
cash acquired |
(139,896) |
|
|
— |
|
Proceeds from the disposition of the Lane G&P System, net of
cash sold in the transaction |
75,020 |
|
|
— |
|
Proceeds from the disposition of Bison Midstream, net of cash sold
in the transaction |
38,920 |
|
|
— |
|
Investment in Double E equity method investee |
8,444 |
|
|
148,699 |
|
|
|
|
|
Net cash provided by (used in) financing activities |
|
|
|
Borrowings from ABL Facility |
293,000 |
|
|
300,000 |
|
Repayments of ABL Facility |
(230,000) |
|
|
(33,000) |
|
Repayments of Revolving Credit Facility |
— |
|
|
(857,000) |
|
Repayments of Permian Transmission Term Loan |
(4,647) |
|
|
— |
|
Borrowings from 2026 Secured Notes |
84,371 |
|
|
689,500 |
|
Borrowings from Permian Transmission Credit Facility |
— |
|
|
160,000 |
|
Repayment of 2022 Senior Notes |
— |
|
|
(234,047) |
|
_________________________________
(1)See
"Liquidity and Capital Resources" herein and Note 17 - Segment
Information to the consolidated financial statements for additional
information on capital expenditures.
Key Matters for the Year ended December 31,
2022. The
following items are reflected in our financial results for the
fiscal year ended December 31, 2022:
•Strategic
DJ Acquisitions.
On December 1, 2022, we completed the acquisition of 100% of the
membership interests in Outrigger DJ from Outrigger Energy II LLC
for cash consideration of $165 million, subject to post-closing
adjustments, and 100% of the membership interests in each of
Sterling Energy Investments LLC, Grasslands Energy Marketing LLC
and Centennial Water Pipelines LLC from Sterling Investment
Holdings LLC for cash consideration of $140 million, subject to
post-closing adjustments, respectively, pursuant to definitive
agreements, each dated October 14, 2022.
As a result of the 2022 DJ Acquisitions, we acquired natural gas
gathering and processing systems, a crude oil gathering system,
freshwater rights, and a subsurface freshwater delivery system in
the DJ Basin. The acquired assets of Outrigger DJ and Sterling DJ
are located in Weld, Morgan, and Logan Counties, Colorado and
Cheyenne County, Nebraska.
•Financing
of 2022 DJ Acquisitions.
The 2022 DJ Acquisitions were financed through a combination of
cash on hand, borrowings under Summit’s ABL Facility and the
issuance of $85.0 million aggregate principal amount of Additional
2026 Secured Notes.
•Sale
of Non-Core Assets.
On September 19, 2022, we completed the sale of Bison Midstream,
LLC (“Bison Midstream”) and its gas gathering system in Burke and
Mountrail Counties, North Dakota to a subsidiary of Steel Reef
Infrastructure Corp., an integrated owner and operator of
associated gas capture, gathering and processing assets in North
Dakota and Saskatchewan. Additionally, on June 30, 2022, we
completed the sale of Summit Permian, which owns the Lane Gathering
and Processing System (“Lane G&P System”), to Longwood
Gathering and Disposal Systems, LP (“Longwood”), a wholly owned
subsidiary of Matador ͏Resources Company (“Matador”).
•January
2022 Series A Preferred Unit Exchange.
In January 2022, we completed the 2022 Preferred Exchange Offer,
whereby we issued 2,853,875 SMLP common units, net of units
withheld for withholding taxes, in exchange for 77,939 Series A
Preferred Units. Upon the settlement of the 2022 Preferred Exchange
Offer, we eliminated $92.6 million of the Series A Preferred Unit
liquidation preference amount, inclusive of accrued distributions
due as of the settlement date. See Note 12 – Partners' Capital and
Mezzanine Capital for additional information.
Key Matters for the Year ended December 31,
2021. The
following items are reflected in our financial results for the
fiscal year ended 2021:
•Refinancing
debt obligations with near-term maturities.
On November 2, 2021, the Co-Issuers issued $700.0 million of the
2026 Secured Notes. We used the net proceeds from the offering of
the 2026 Secured Notes, together with cash on hand and borrowings
under the ABL Facility, to repay in full all of Summit Holdings’
obligations under the Revolving Credit Facility. Additionally, the
Co-Issuers redeemed all of the outstanding 2022 Senior Notes at a
redemption price equal to 100.0% of the principal amount plus
accrued and unpaid interest.
•Global
Settlement.
We were the subject of multiple investigations stemming from the
2015 Blacktail Release. On August 4, 2021, we entered into a Global
Settlement to resolve these legal matters that includes the payment
of penalties and fines of $36.3 million over six years. As a result
of the settlement, we recognized an additional loss for this matter
during 2021 and had $33.2 million accrued for this matter as of
December 31, 2021. See Note 10 - Commitments and Contingencies to
the consolidated financial statements and Item 3. Legal Proceedings
for additional information.
•April
2021 Series A Preferred Unit Exchange.
In April 2021, the Partnership completed the 2021 Preferred
Exchange Offer, whereby it issued 538,715 common units, net of
units withheld for withholding taxes, in exchange for 18,662 Series
A Preferred Units. Upon settlement of the 2021 Preferred Exchange
Offer, the Partnership eliminated $20.7 million of the Series A
Preferred Unit liquidation preference amount, inclusive of $2.5
million of accrued distributions due as of the settlement date. See
Note 12 – Partners' Capital and Mezzanine Capital for additional
information.
•Double
E Project.
In November 2021, the Partnership placed the Double E Pipeline in
service. As a result, our investment in Double E recognized
positive equity in earnings from Double E beginning in the quarter
ended December 31, 2021. Capital contributions to Double E in 2021
totaled $148.7 million and were funded primarily from our Permian
Transmission Credit Facility and cash on hand.
•Loss
on ECP Warrants.
On August 5, 2021, the ECP Entities cashlessly exercised all of
their ECP Warrants for an aggregate of 414,447 SMLP common units,
net of the exercise price, as calculated pursuant to Section 3(c)
of the ECP Warrants (the “ECP Warrant Exercise"). During the year
ended December 31, 2021, the Partnership recognized a $13.6 million
non-cash loss related to the ECP Warrants.
Trends and Outlook
Our business has been, and we expect our future business to
continue to be, affected by the following key trends:
•Ongoing
impact of the COVID-19 pandemic and fluctuations in demand for oil
and natural gas;
•Ongoing
impact of the current Russia-Ukraine conflict and the international
sanctions against Russia on commodity prices;
•Natural
gas, NGL and crude oil supply and demand dynamics;
•Production
from U.S. shale plays;
•Capital
markets availability and cost of capital; and
•Inflation
and shifts in operating costs.
Our expectations are based on assumptions made by us and
information currently available to us. To the extent our underlying
assumptions about, or interpretations of, available information
prove to be incorrect, our actual results may vary materially from
our expected results.
Strategic DJ Acquisitions.
On December 1, 2022, we completed the 2022 DJ Acquisitions for
total cash consideration of $305.0 million, subject to
post-closing adjustments. As a result of the 2022 DJ Acquisitions,
we acquired natural gas gathering and processing systems, a crude
oil gathering system, freshwater rights, and a subsurface
freshwater delivery system in the DJ Basin. The acquired assets of
Outrigger DJ and Sterling DJ are located in Weld, Morgan, and Logan
Counties, Colorado and Cheyenne County, Nebraska. In 2023, we will
spend time and resources integrating the 2022 DJ Acquisitions into
our existing DJ Basin assets and expect to attain capital and
operating synergies in the future.
Cost structure optimization and portfolio
management.
The Partnership intends to optimize its capital structure in the
future by reducing its indebtedness with free cash flow, and when
appropriate, it may pursue opportunistic transactions with the
objective of increasing long term unitholder value. This may
include opportunistic acquisitions (such as the 2022 DJ
Acquisitions), divestitures (such as the disposition of the Lane
G&P System and of Bison Midstream), re-allocation of capital to
new or existing areas, and development of joint ventures involving
our existing midstream assets or new investment opportunities. We
believe that our internally generated cash flow, our ABL Facility,
the Permian Term Loan Facility, and access to debt (such as the
Additional 2026 Secured Notes) or equity will be adequate to
finance our strategic initiatives. To attain our overall corporate
strategic objectives, we may conduct an asset divestiture, or
divestitures, at a transaction valuation that is less than the net
book value of the divested asset.
Ongoing impact of the COVID-19 pandemic and fluctuations in demand
for oil and natural gas. We
continue to closely monitor the impact of the COVID-19 pandemic,
including its variants, on all aspects of our business, including
how it has impacted and will impact our customers, employees,
supply chain and distribution network. In response to the COVID-19
pandemic, we modified our business practices, including restricting
employee travel and utilizing COVID-19 pandemic tax relief in 2021
(as allowed by the Consolidated Appropriations Act, 2021, the "ERC
Tax Credit").
Based on recently updated production forecasts and 2023 development
plans from our customers, we currently expect that 2023 activity
will be higher than 2022 and be at an activity level near our
historical periods prior to COVID-19.
Ongoing impact of the current Russia-Ukraine conflict and the
international sanctions against Russia on commodity prices.
Although the Partnership does not operate in Ukraine, Russia or
other parts of Europe, there are certain impacts arising from
Russia’s invasion of Ukraine that could have a potential effect on
the Partnership, including, but not limited to, volatility in
currencies and commodity prices, higher inflation, cost and supply
chain pressures and availability and disruptions in banking systems
and capital markets. As of the date of filing, there have been no
material impacts on the Partnership.
Natural gas, NGL and crude oil supply and demand
dynamics. Natural
gas continues to be a critical component of energy supply and
demand in the United States. The average spot price of natural gas
increased by approximately 66% from 2021 to 2022, primarily due to
natural gas demand exceeding supply. The average daily Henry Hub
Natural Gas Spot Price was $6.45 per MMBtu during 2022, compared
with $3.89 per MMBtu during 2021. As of January 31, 2023, Henry Hub
12-month strip pricing closed at $3.41 per MMBtu. Natural gas
prices continue to trade at higher-than-average historical prices
due in part to strong power sector demand and relatively modest new
production growth. In response to the increasing natural gas
prices, the number of active natural gas drilling rigs in the
continental United States increased from 106 in December 2021 to
156 in December 2022, but still remains below the 2017 through 2019
average of 177, according to Baker Hughes. Over the long term, we
believe that the prospects for continued natural gas demand are
favorable and will be driven primarily by global population and
economic growth, as well as the continued displacement of
coal-fired electricity generation by natural gas-fired electricity
generation and increase in U.S. LNG exports. Over the next several
years, we expect natural gas prices will support continued upstream
industry activity by producers focused on natural gas
production.
In addition, certain of our gathering systems are directly affected
by crude oil supply and demand dynamics. Crude oil prices increased
in 2022, with the average daily Cushing, Oklahoma West Texas
Intermediate crude oil spot price average of $68.14 per barrel
during 2021 increasing to an average of $94.90 per barrel during
2022, representing a 39% increase. As of January 31, 2023, West
Texas Intermediate 12-month strip pricing closed at $78.03 per
barrel. In response to the increasing crude oil prices, the number
of active crude oil drilling rigs in the continental United States
increased from 480 in December 2021 to 621 in December 2022, but
still remains below the 2017 through 2019 average of 773, according
to Baker Hughes. Over the next several years, we expect that crude
oil prices will support continued drilling activity and increasing
production in the Williston Basin, Permian Basin and, given the
current regulatory environment in Colorado, in rural parts of the
DJ Basin.
Despite improving fundamentals that should support additional
development activities, we note that over the last several years
there has been an increasing societal opposition to the production
of hydrocarbons generally, which may be reflected in legislation,
executive orders or regulations that may significantly restrict the
domestic production of fossil fuels, including natural
gas.
Growth in production from U.S. shale plays. Over
the past several years, natural gas production from unconventional
shale resources has increased due to advances in technology that
allow producers to extract significant volumes of natural gas from
unconventional shale plays on favorable economic terms relative to
most conventional plays. In recent years, a number of producers and
their joint venture partners, including large international
operators, industrial manufacturers and private equity sponsors,
have committed significant capital to the development of these
unconventional resources, including the Piceance, Barnett, Bakken,
Marcellus, Utica and Permian Basin shale plays in which we operate.
We believe that these long-term capital investments should support
drilling activity in unconventional shale plays over the long
term.
Rate of growth in production from U.S. shale
plays. Some
of our producer customers have adjusted their drilling and
completion activities and schedules to manage drilling and
completion costs at levels that are achievable using internally
generated cash flow from their underlying operations. Historically,
as part of a strategy to accelerate production growth, these
producers would raise external capital to fund drilling and
completion costs in excess of the cash flows generated from their
underlying assets. Producers are experiencing increasing pressure
from their investors to focus on returning capital and maximizing
free cash flow versus re-investing that cash flow into development.
In general, we expect our producer customers to maintain moderate
completion and production activities across many of our systems
relative to our previous expectations as a result of the commodity
price environment and a continuation of the general trend of
producers constraining drilling and completion activity to levels
that can be satisfied with internally generated cash
flow.
Capital markets availability and cost of
capital. Capital
markets conditions, including but not limited to availability and
higher borrowing costs, could affect our ability to access the debt
and equity capital markets to the extent necessary, to fund our
future growth. Furthermore, market demand for equity issued by
master limited partnerships has been significantly lower in recent
years than it has been historically, which may make it more
challenging for us to finance our capital expenditures with the
issuance of additional equity. We announced the elimination of our
common unit distribution in May 2020 beginning with the
distribution paid in respect of the first quarter of 2020, and this
action may further reduce demand for our common units. In addition,
interest rates on future credit facilities and debt offerings could
be higher than current levels, causing our financing costs to
increase accordingly.
The borrowings under our ABL Facility, which have a variable
interest rate, expose us to the risk of increasing interest
rates.
Additionally, as a result of the 2022 DJ Acquisitions, we utilized
our free cash flow generated in 2022 to partially fund the 2022 DJ
Acquisitions. As such we will not make an offer to purchase the
$50.0 million amount of our 2026 Secured Notes to avoid a 50 basis
point increase in the interest rate on the 2026 Secured Notes,
resulting in increased annual interest expense of approximately
$3.9 million.
Inflation and operating costs. The
annual rate of inflation in the United States hit 6.5% in December
2022, one of the highest increases in more than three decades, as
measured by the Consumer Price Index. We expect that continued
inflation in 2023 will increase our operating costs and the overall
cost of capital projects we undertake.
While some of our fee arrangements escalate based on changes in
price indexes, these fee escalations may not be sufficient to
offset an increase in our expenditures. Furthermore, inflation may
impact producers economic decision making, which in turn could
impact their willingness to develop acreage in areas that are more
susceptible to inflationary pressures and labor force
shortages.
How We Evaluate Our Operations
We conduct and report our operations in the midstream energy
industry through five reportable segments: Northeast, Rockies,
Permian, Piceance and Barnett. Each of our reportable segments
provides midstream services in a specific geographic area and our
reportable segments reflect the way in which we internally report
the financial information used to make decisions and allocate
resources in connection with our operations (see Note 17 - Segment
Information to the consolidated financial statements). Our
management uses a variety of financial and operational metrics to
analyze our consolidated and segment performance and we view these
metrics as important factors in evaluating our profitability. These
metrics include (i) throughput volume, (ii) revenues, (iii)
operation and maintenance expenses, (iv) capital expenditures and
(v) segment adjusted EBITDA.
Throughput Volume
The volume of (i) natural gas that we gather, compress, treat
and/or process and (ii) crude oil and produced water that we gather
depends on the level of production from natural gas or crude oil
wells connected to our gathering systems. Aggregate production
volumes are impacted by the overall amount of drilling and
completion activity. Furthermore, because the production rate of
natural gas and crude oil wells decline over time, production can
only be maintained or increased by new drilling or other
activity.
As a result, we must continually obtain new supplies of production
to maintain or increase the throughput volume on our systems. Our
ability to maintain or increase throughput volumes from existing
customers and obtain new supplies of throughput is impacted
by:
•successful
drilling activity within our AMIs;
•the
level of work-overs and recompletions of wells on existing pad
sites to which our gathering systems are connected;
•the
number of new pad sites in our AMIs awaiting
connections;
•our
ability to compete for volumes from successful new wells in the
areas in which we operate outside of our existing AMIs;
and
•our
ability to gather, treat and/or process production that has been
released from commitments with our competitors.
We report volumes gathered for natural gas in cubic feet per day.
We aggregate crude oil and produced water gathering and report
volumes gathered in barrels per day.
Revenues
Our revenues are primarily attributable to the volumes that we
gather, compress, treat and/or process and the rates we charge for
those services. A majority of our gathering and processing
agreements are fee-based, which limits our direct exposure to
fluctuations in commodity prices; however, certain of our contracts
have rates that are directly impacted by commodity prices. We also
have percent-of-proceeds arrangements with certain customers under
which the gathering and processing revenues that we earn correlate
directly with the fluctuating price of natural gas, condensate and
NGLs.
Certain of our gathering and processing agreements contain MVCs
pursuant to which our customers agree to ship or process a minimum
volume of production on our gathering systems, or, in some cases,
to pay a minimum monetary amount, over certain periods during the
term of the MVC. These MVCs help us generate stable revenues and
serve to mitigate the financial impact associated with declining
volumes.
Operation and Maintenance Expenses
We seek to maximize the profitability of our operations in part by
minimizing, to the extent appropriate, expenses directly tied to
operating our assets. Direct labor costs, compression costs, ad
valorem taxes, repair and non-capitalized maintenance costs,
integrity management costs, utilities and contract services
comprise the most significant portion of our operation and
maintenance expense. Other than utilities expense, these expenses
are largely independent of volumes delivered through our gathering
systems but may fluctuate depending on the activities performed
during a specific period.
Our operations and maintenance expenses also include costs that are
reimbursed by our customers, which are included in Other
revenues.
Segment Adjusted EBITDA
Segment adjusted EBITDA is a supplemental financial measure used by
management and by external users of our financial statements such
as investors, commercial banks, research analysts and
others.
Segment adjusted EBITDA is used to assess:
•the
ability of our assets to generate cash sufficient to make cash
distributions and support our indebtedness;
•the
financial performance of our assets without regard to financing
methods, capital structure or historical cost basis;
•our
operating performance and return on capital as compared to other
companies in the midstream energy sector, without regard to
financing or capital structure;
•the
attractiveness of capital projects and acquisitions and the overall
rates of return on alternative investment opportunities;
and
•the
financial performance of our assets without regard to (i) income or
loss from equity method investees, (ii) the impact of the timing of
MVC shortfall payments under our gathering agreements or (iii) the
timing of impairments or other noncash income or expense
items.
Additional Information. For
additional information, see the “Results of Operations” section
herein and the notes to the consolidated financial statements
contained in Item 8. Financial Statements and Supplementary
Data.
Results of Operations
Consolidated Overview for the Years Ended December 31, 2022 and
2021
The following table presents certain consolidated data and volume
throughput for the years ended December 31, 2022 and
2021.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year ended December 31, |
|
|
|
2022 |
|
2021 |
|
Percentage change |
|
(In thousands) |
|
|
Revenues: |
|
|
|
|
|
Gathering services and related fees |
$ |
248,358 |
|
|
$ |
281,705 |
|
|
(12%) |
Natural gas, NGLs and condensate sales |
86,225 |
|
|
82,768 |
|
|
4% |
Other revenues |
35,011 |
|
|
36,145 |
|
|
(3%) |
Total revenues |
369,594 |
|
|
400,618 |
|
|
(8%) |
Costs and expenses: |
|
|
|
|
|
Cost of natural gas and NGLs |
76,826 |
|
|
81,969 |
|
|
(6%) |
Operation and maintenance |
84,152 |
|
|
74,178 |
|
|
13% |
General and administrative |
44,943 |
|
|
58,166 |
|
|
(23%) |
Depreciation and amortization |
119,055 |
|
|
119,076 |
|
|
—% |
Transaction costs |
6,968 |
|
|
1,677 |
|
|
316% |
Gain on asset sales, net |
(507) |
|
|
(369) |
|
|
37% |
Long-lived asset impairment |
91,644 |
|
|
10,151 |
|
|
803% |
Total costs and expenses |
423,081 |
|
|
344,848 |
|
|
23% |
Other expense, net |
(4) |
|
|
(613) |
|
|
* |
Gain on interest rate swaps |
16,414 |
|
|
— |
|
|
|
Loss on sale of business |
(1,741) |
|
|
— |
|
|
|
Loss on ECP Warrants |
— |
|
|
(13,634) |
|
|
N/A |
Interest expense
|
(102,459) |
|
|
(66,156) |
|
|
55% |
Loss on early extinguishment of debt |
— |
|
|
(3,523) |
|
|
* |
Loss before income taxes and equity method investment
income |
(141,277) |
|
|
(28,156) |
|
|
* |
Income tax (expense) benefit |
(325) |
|
|
327 |
|
|
* |
Income from equity method investees |
18,141 |
|
|
7,880 |
|
|
* |
Net loss |
$ |
(123,461) |
|
|
$ |
(19,949) |
|
|
* |
|
|
|
|
|
|
Volume throughput
(1):
|
|
|
|
|
|
Aggregate average daily throughput - natural gas
(MMcf/d) |
1,208 |
|
|
1,356 |
|
|
(11%) |
Aggregate average daily throughput - liquids (Mbbl/d) |
62 |
|
|
63 |
|
|
(2%) |
_________________________________________________
*Not
considered meaningful
(1)Excludes
volume throughput for Ohio Gathering and Double E. For additional
information, see the Northeast and Permian sections herein under
the caption “Segment Overview for the Years Ended December 31,
2022 and 2021”.
Volumes – Gas. Natural
gas throughput volumes decreased 148 MMcf/d for the year ended
December 31, 2022 compared to the year ended December 31,
2021, primarily reflecting:
•a
volume throughput decrease of 113 MMcf/d for the Northeast
segment.
•a
volume throughput decrease of 20 MMcf/d for the Piceance
segment.
•a
volume throughput decrease of 12 MMcf/d for the Permian
segment.
•a
volume throughput decrease of 1 MMcf/d for the Barnett
segment.
•a
volume throughput decrease of 2 MMcf/d for the Rockies
segment.
Volumes – Liquids. Crude
oil and produced water volume throughput for the Rockies segment
decreased 1 Mbbl/d for the year ended December 31, 2022 compared to
the year ended December 31, 2021, primarily as a result of natural
production declines and weather related downtime, offset by 39 new
well connections that came online subsequent to December 31,
2021.
For additional information on volumes, see the “Segment Overview
for the Years Ended December 31, 2022 and 2021” section
herein.
Revenues. Total
revenues decreased $31.0 million during the year ended
December 31, 2022 compared to the year ended December 31, 2021
comprised of a $3.5 million increase in natural gas, NGLs and
condensate sales, offset by a $1.1 million decrease in Other
revenues, and a $33.3 million decrease in gathering services and
related fees.
Gathering services and related fees.
Gathering services and related fees decreased $33.3 million
compared to the year ended December 31, 2021, primarily
reflecting:
•a
$14.6 million decrease in the Piceance, primarily due to the
expiration of approximately $10.1 million of a customer’s minimum
volume commitment and decreased volume throughput;
•an
$8.2 million decrease in the Northeast, primarily due to decreased
volume throughput,
•a
$7.0 million decrease in the Rockies, primarily due to decreased
volume throughput and the expiration of a customer’s minimum volume
commitment contract in the DJ Basin; and
•a
$4.6 million decrease in the Permian, primarily due to the
disposition of the Lane G&P System in June 2022.
Natural Gas, NGLs and Condensate Sales.
Natural gas, NGLs and condensate sales revenue increased $3.5
million compared to the year ended December 31, 2021, primarily
reflecting:
•a
$10.9 million increase in the Rockies reportable segment, primarily
due to the 2022 DJ Acquisitions, partially offset by the
disposition of Bison Midstream;
•$1.6
million increase in the Piceance reportable segment;
•a
$2.2 million increase in the Barnett reportable segment; partially
offset by
•an
$11.3 million decrease in the Permian reportable segment, primarily
due to the disposition of the Lane G&P System in June
2022.
Costs and expenses. Total
costs and expenses increased $78.2 million during the year ended
December 31, 2022 compared to the year ended December 31,
2021, primarily reflecting:
Cost of natural gas and NGLs.
Cost of natural gas and NGLs decreased $5.1 million during the year
ended December 31, 2022 compared to the year ended December
31, 2021, primarily driven the disposition of the Lane G&P
System in June 2022 and the disposition of Bison Midstream in
September 2022, partially offset by the 2022 DJ Acquisitions in
December 2022 .
Operation and maintenance.
Operation and maintenance expense increased $10.0 million for the
year ended December 31, 2022 compared to the year ended
December 31, 2021; primarily as a result of the 2021 recognition of
$10.2 million of certain commercial settlement benefits and the ERC
Tax Credit that were not repeated in 2022.
General and Administrative.
General and administrative expense decreased $13.2 million for
the year ended December 31, 2022 compared to the year ended
December 31, 2021 primarily related to the nonrecurrence of a $22.4
million loss contingency recognized in 2021 (for the 2015 Blacktail
Release), partially offset by $2.5 million of employee severance
costs incurred during the fiscal year ended December 31, 2022
(see Note 10 - Commitments and Contingencies for additional
information).
Asset Impairments.
The Partnership recognized impairments of $84.5 million related to
the disposition of the Lane G&P System and $6.9 million in
connection with disposition of Bison Midstream.
Loss on ECP Warrants.
On August 5, 2021, the ECP Entities cashlessly exercised all of its
ECP Warrants for an aggregate of 414,447 SMLP common units, net of
the exercise price. During the year ended December 31, 2021, the
Partnership recognized a $13.6 million non-cash loss related to the
ECP Warrants. There was no comparable non-cash loss during the year
ended December 31, 2022.
Interest Expense.
Interest expense increased $36.3 million compared to the year ended
December 31, 2021 primarily due to higher interest costs resulting
from the higher interest rate resulting from the issuance of the
2026 Secured Notes and borrowings on the Permian Transmission Term
Loan, higher amortization expense of debt issuance costs, partially
offset by principal reduction payments to our credit facilities
(ABL Facility and Revolving Credit Facility) prior to the
completion of the 2022 DJ Acquisitions which occurred on December
1, 2022.
Segment Overview for the Years Ended December 31, 2022 and
2021
Northeast.
Volume throughput for the Northeast reportable segment
follows.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Northeast |
|
Year ended December 31, |
|
|
|
2022 |
|
2021 |
|
Percentage
Change |
Average daily throughput (MMcf/d) |
652 |
|
|
765 |
|
|
(15)% |
Average daily throughput (MMcf/d) (Ohio Gathering) |
674 |
|
|
526 |
|
|
28% |
Volume throughput for the Northeast, excluding Ohio Gathering,
decreased 15% compared to the year ended December 31, 2021
primarily due to natural production declines as well as maintenance
related downtime and frac-protect activities that occurred during
the three months ended June 30, 2022, partially offset by 13 well
connections, including 4 wells directly connected to the Summit
Utica system and 9 wells behind our TPL-7 connection, that came
online during the year ended December 31, 2022.
Volume throughput for the Ohio Gathering system increased 28%
compared to the year ended December 31, 2021, primarily as a result
of 28 new well connections that came online during the year ended
December 31, 2022, partially offset by natural production declines
and frac-protect activities that occurred during the three months
ended June 30, 2022.
Financial data for our Northeast reportable segment
follows.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Northeast |
|
Year ended December 31, |
|
|
|
2022 |
|
2021 |
|
Percentage
Change |
Revenues: |
(Dollars in thousands) |
|
|
|
|
|
|
|
|
Gathering services and related fees |
$ |
54,392 |
|
|
$ |
62,567 |
|
|
(13)% |
|
|
|
|
|
|
Total revenues |
54,392 |
|
|
62,567 |
|
|
(13)% |
Costs and expenses: |
|
|
|
|
|
Operation and maintenance |
7,097 |
|
|
5,672 |
|
|
25% |
General and administrative |
831 |
|
|
599 |
|
|
39% |
Depreciation and amortization |
17,501 |
|
|
17,054 |
|
|
3% |
Gain on asset sales, net |
(10) |
|
|
(92) |
|
|
(89)% |
Long-lived asset impairment |
— |
|
|
130 |
|
|
N/A |
Total costs and expenses |
25,419 |
|
|
23,363 |
|
|
9% |
Add: |
|
|
|
|
|
Depreciation and amortization |
17,501 |
|
|
17,054 |
|
|
|
Adjustments related to capital reimbursement activity |
(81) |
|
|
(83) |
|
|
|
Gain on asset sales, net |
(10) |
|
|
(92) |
|
|
|
Long-lived asset impairment |
— |
|
|
130 |
|
|
|
Proportional adjusted EBITDA for Ohio Gathering |
30,656 |
|
|
27,074 |
|
|
|
Other |
7 |
|
|
— |
|
|
|
Segment adjusted EBITDA |
$ |
77,046 |
|
|
$ |
83,287 |
|
|
(7%) |
|
|
|
|
|
|
_________________
*Not
considered meaningful
Year ended December 31, 2022.
Segment adjusted EBITDA decreased $6.2 million compared to the
year ended December 31, 2021, primarily as a result of
revenue decreases from gathering services and related fees,
partially offset by a $3.6 million increase in proportional
adjusted EBITDA for Ohio Gathering.
Rockies.
Volume throughput for our Rockies reportable segment
follows.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rockies |
|
Year ended December 31, |
|
|
|
2022 |
|
2021 |
|
Percentage Change |
Aggregate average daily throughput - natural gas
(MMcf/d) |
33 |
|
35 |
|
(6)% |
Aggregate average daily throughput - liquids (Mbbl/d) |
62 |
|
63 |
|
(2)% |
Natural gas.
Natural gas volume throughput in 2022 decreased 6% compared to the
year ended December 31, 2021, primarily reflecting the sale of
Bison Midstream in September 2022 and the 2022 DJ Acquisitions in
December 2022. Volumes were also impacted by natural production
declines and weather related downtime that occurred during the
three months ended June 30, 2022 and December 31, 2022, partially
offset by 22 new well connections in 2022.
Liquids.
Liquids volume throughput in 2022 decreased 2% compared to the year
ended December 31, 2021, primarily associated with natural
production declines and operational and weather related downtime
that occurred during the three months ended June 30, 2022 and
December 31, 2022, partially offset by 39 new well connections that
came online in 2022, of which 19 wells were brought online in
December 2022.
Financial data for our Rockies reportable segment
follows.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Rockies |
|
|
Year ended December 31, |
|
|
|
|
2022 |
|
2021 |
|
Percentage Change |
|
|
(Dollars in thousands) |
|
|
|
Revenues: |
|
|
|
|
|
|
Gathering services and related fees |
$ |
67,838 |
|
|
$ |
74,823 |
|
|
(9%) |
|
Natural gas, NGLs and condensate sales |
59,208 |
|
|
48,279 |
|
|
23% |
|
Other revenues |
16,557 |
|
|
21,985 |
|
|
(25%) |
|
Total revenues |
143,603 |
|
|
145,087 |
|
|
(1%) |
|
Costs and expenses: |
|
|
|
|
|
|
Cost of natural gas and NGLs |
52,749 |
|
|
47,984 |
|
|
10% |
|
Operation and maintenance |
30,260 |
|
|
29,251 |
|
|
3% |
|
General and administrative |
2,541 |
|
|
1,506 |
|
|
69% |
|
Depreciation and amortization |
30,532 |
|
|
29,513 |
|
|
3% |
|
Gain on asset sales, net |
(63) |
|
|
(56) |
|
|
13% |
|
Long-lived asset impairment |
7,068 |
|
|
5,564 |
|
|
27% |
|
Total costs and expenses |
123,087 |
|
|
113,762 |
|
|
8% |
|
Add: |
|
|
|
|
|
|
Depreciation and amortization |
30,532 |
|
|
29,513 |
|
|
|
|
Adjustments related to capital
reimbursement activity
|
(431) |
|
|
(1,885) |
|
|
|
|
Gain on asset sales, net |
(63) |
|
|
(56) |
|
|
|
|
Long-lived asset impairment |
7,068 |
|
|
5,564 |
|
|
|
|
Other |
188 |
|
|
56 |
|
|
|
|
Segment adjusted EBITDA |
$ |
57,810 |
|
|
$ |
64,517 |
|
|
(10%) |
|
_________________
* Not considered meaningful
Year ended December 31, 2022.
Segment adjusted EBITDA decreased $6.7 million compared to the
year ended December 31, 2021 primarily due to lower
volume throughput on our natural gas system in the DJ Basin, the
expiration of a customer’s minimum volume commitment contract of
approximately $2.0 million in the DJ Basin and certain
commercial
settlements that reduced gathering services and related fees by
$0.8 million in 2022 that are not expected going forward. The Bison
Midstream sale closed in September 2022 and the 2022 DJ
Acquisitions were completed on December 1, 2022 which generally
resulted in a net neutral impact to Adjusted EBITDA.
Permian.
Volume throughput for our Permian reportable segment
follows.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Permian |
|
Year ended December 31, |
|
|
|
2022 |
|
2021 |
|
Percentage Change |
Average daily throughput (MMcf/d) |
14 |
|
|
26 |
|
|
(46%) |
Average daily throughput (MMcf/d) (Double E) |
277 |
|
|
124 |
|
|
n/a |
On June 30, 2022, we completed the sale of our Lane G&P System.
The volumes above include daily volume throughput data through the
date of sale. Subsequent to the date of sale, the Permian
reportable segment only includes the results of our equity method
investment in Double E.
Double E commenced operations in November 2021. Volume throughput
for the year ended December 31, 2022 averaged 277 MMcf per day as
compared to 124 MMcf per day for the period from the date of
commencement in November 2021 through December 31,
2021.
The following table presents the MVC quantities that Double E’s
shippers have contracted to with firm transportation service
agreements and related negotiated rate
agreements:
|
|
|
|
|
|
Weighted average MVC quantities for the year ended December
31, |
(MMBTU/day) |
2022 |
612,123 |
|
2023 |
831,096 |
|
2024 |
989,507 |
|
2025 |
1,000,000 |
|
2026 |
1,000,178 |
|
2027 |
1,000,000 |
|
2028 |
1,002,562 |
|
2029 |
1,000,000 |
|
2030 |
1,000,000 |
|
2031 |
879,452 |
|
Financial data for our Permian reportable segment
follows.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Permian |
|
Year ended December 31, |
|
|
|
2022 |
|
2021 |
|
Percentage
Change |
|
(Dollars in thousands) |
|
|
Revenues: |
|
|
|
|
|
Gathering services and related fees |
$ |
3,668 |
|
|
$ |
8,230 |
|
|
(55%) |
Natural gas, NGLs and condensate sales |
17,382 |
|
|
28,727 |
|
|
(39%) |
Other revenues |
4,101 |
|
|
3,891 |
|
|
5% |
Total revenues |
25,151 |
|
|
40,848 |
|
|
(38%) |
Costs and expenses: |
|
|
|
|
|
Cost of natural gas and NGLs |
18,007 |
|
|
29,855 |
|
|
(40%) |
Operation and maintenance |
3,082 |
|
|
5,585 |
|
|
(45%) |
General and administrative |
708 |
|
|
757 |
|
|
(6%) |
Depreciation and amortization |
2,736 |
|
|
5,858 |
|
|
(53%) |
Gain on asset sales, net |
(13) |
|
|
— |
|
|
|
Long-lived asset impairment |
84,516 |
|
|
595 |
|
|
14104% |
Total costs and expenses |
109,036 |
|
|
42,650 |
|
|
156% |
Add: |
|
|
|
|
|
Depreciation and amortization |
2,736 |
|
|
5,858 |
|
|
|
Adjustments related to capital
reimbursement activity
|
(63) |
|
|
— |
|
|
|
Gain on asset sales, net |
(13) |
|
|
— |
|
|
|
Long-lived asset impairment |
84,516 |
|
|
595 |
|
|
|
Proportional adjusted EBITDA for Double E |
14,762 |
|
|
1,948 |
|
|
|
Other |
(2) |
|
|
15 |
|
|
|
Segment adjusted EBITDA |
$ |
18,051 |
|
|
$ |
6,614 |
|
|
* |
_________________
* Not considered meaningful
Year ended December 31, 2022.
Segment adjusted EBITDA increased $11.4 million compared to
the year ended December 31, 2021 primarily as a result of
an increase in proportional adjusted EBITDA from our equity method
investment in Double E, offset by the reduced activity from the
sale of the Lane G&P System in June 2022.
Piceance.
Volume throughput for our Piceance reportable segment
follows.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Piceance |
|
Year ended December 31, |
|
|
|
2022 |
|
2021 |
|
Percentage Change |
Aggregate average daily throughput (MMcf/d) |
306 |
|
|
326 |
|
|
(6%) |
Volume throughput decreased 6% in 2022 compared to the year ended
December 31, 2021, as a result of natural production declines.
There were no new well connections in 2022.
Financial data for our Piceance reportable segment
follows.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Piceance |
|
Year ended December 31, |
|
|
|
2022 |
|
2021 |
|
Percentage
Change |
|
(Dollars in thousands) |
|
|
Revenues: |
|
|
|
|
|
Gathering services and related fees |
$ |
80,630 |
|
|
$ |
95,235 |
|
|
|