Oil and Gas Facilities - New Stormwater Permit Requirements

The 1987 Water Quality Act (WQA) added section 402(l)(2) to the Clean Water Act (CWA) specifying that EPA and States shall not require NPDES permits for uncontaminated storm water discharges from oil and gas exploration, production, processing or treatment operations, or transmission facilities. The Energy Policy Act of 2005 also added a new provision to the CWA defining the term "oil and gas exploration, production, processing, or treatment operations or transmission facilities" to mean "all field activities or operations associated with exploration, production, processing, or treatment operations, or transmission facilities, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activity."

In 2006, EPA published a final rule that effectively exempted from NPDES permit requirements stormwater discharges of sediment from construction activities associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities (with some limited exceptions).

On May 23, 2008, the Ninth Circuit Court of Appeals issued an opinion vacating EPA's 2006 oil and gas construction stormwater regulation. On July 21, 2008, EPA filed a petition for rehearing in this case; on November 3, 2008, the Court issued its order denying EPA’s request.

With the vacatur of the 2006 rule, the effective requirements for oil and gas facilities are the regulations in place prior to the 2006 rule. The relevant regulations that were effective prior to the 2006 rule are:

122.26(a)(2) The Director may not require a permit for discharges of storm water runoff from mining operations or oil and gas exploration, production, processing or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used for collecting and conveying precipitation runoff and which are not contaminated by contact with or that has not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct or waste products located on the site of such operations.

122.26(e)(8) For any storm water discharge associated with small construction activity identified in paragraph (b)(15)(i) of this section, see 122.21(c)(1). Discharges from these sources, other than discharges associated with small construction activity at oil and gas exploration, production, processing, and treatment operations or transmission facilities, require permit authorization by March 10, 2003, unless designated for coverage before then. Discharges associated with small construction activity at such oil and gas sites require permit authorization by June 12, 2006.

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