DO CLEARING, GRADING, AND EXCAVATION ACTIVITIES AT OIL AND GAS EXTRACTION OPERATIONS REQUIRE A NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES) PERMIT FOR ASSOCIATED STORM WATER DISCHARGES?

The intent of storm water regulation is to improve water quality by reducing or eliminating contaminants in storm water. Storm water is defined as precipitation runoff, surface runoff and drainage, street runoff, and snow melt runoff. Contaminants commonly found in storm water discharges include oil, grease, fertilizers, sediment from construction sites, lead, zinc, solvents, etc. Contaminants introduced into a storm sewer or other conveyance may impact drinking water sources, ground water sources, and waters protected for recreation, aquatic life, and other beneficial uses.

Storm water permits are usually broken down in categories: #1, #2 and #3: General Permit No. 1 - For storm water discharge associated with industrial activity. General Permit No. 2 - For storm water associated with construction activity distributing greater than 1 acres of land and/or is part of a larger plan of development. General Permit No. 3 - For storm water discharge associated with industrial activity from asphalt plants, concrete batch plants, rock crushing plants, construction sand, and gravel facilities.

On June 7, 2006, the United States Environmental Protection Agency (EPA) released its final rule modifying the National Pollutant Discharge Elimination System (NPDES) regulations to exempt certain storm water discharges associated with field activities or operations associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities. These changes result from statutory language contained in the Energy Policy Act of 2005 and extend the existing exemption to construction activities at oil and gas sites. Notably, the exemption extends to activities associated with crude oil and natural gas transmission lines, but not to lines transporting refined petroleum products.

In 1987, amendments to the Clean Water Act (CWA) were added that exempted from NPDES permitting requirements certain storm water discharges from oil and gas exploration, production, processing, or treatment operations or transmission facilities. The scope of the exemption for oil and gas activities remained in flux during the following years. Section 323 of the Energy Policy Act of 2005, however, added a definition to the CWA term “oil and gas exploration, production, processing, or treatment operations or transmission facilities” that extended the existing CWA exemption to construction activities at oil and gas sites. This amendment expanded the scope of the oil and gas activities that are exempt from the requirement to obtain an NPDES permit for storm water discharges to include construction activities associated with oil and gas field operations.

Under the new final rule, storm water discharges associated with construction activity for oil and gas field operations are exempt from NPDES permit requirements unless the construction-related activity causes the discharge of oil or a hazardous substance in reportable quantities (see 40 C.F.R. §§ 110.6, 117.21, and 302.6) or unless the discharge of a pollutant contributes to the violation of an applicable water quality standard. The revised rule also provides that sediment discharged from construction activities at oil and gas sites now does not fall within NPDES permit coverage. Although the Energy Policy Act amendment did not specifically address sediment from oil and gas construction sites, EPA notes that it “naturally falls within the newly created exemption from NPDES permitting.” 71 Fed. Reg. 33,628, 33630-31 (June 12, 2006)..

Since the rule enstatement the EPA has received conflicting comments on the environmental impact of oil and gas activity. Some commenters claimed that there was no evidence of negative environmental impacts associated with oil and gas activities. Other commenters asserted that oil and gas projects frequently involved logging, grading, and road building, and that these activities were conducted without erosion and sediment controls and were therefore the source of large amounts of sediment deposition.By taking a stance on oil and gas exploration stormwater issues, the EPA is attempting to keep the environment safe while allowing the USA to safely search for more natural resources.