By Carlos J. Moreno and Robert E. Holden

EPA’s most recent NPDES regulations for stormwater permitting of oil and gas facilities were vacated by the Ninth Circuit in 2008 and new regulations have not been promulgated. To understand the stormwater permit requirements for oil and gas activities, you need to review not only the regulations that remain in force, but also the Clean Water Act as amended by the Energy Policy Act of 2005.

The 1987 amendments to the Clean Water Act (“CWA”) added language creating a permitting exemption for uncontaminated runoff from Oil and Gas operations. CWA §402(l)(2). EPA subsequently issued regulations implementing this exemption. As a result, operators of oil and gas exploration, production, processing, or treatment operations, or transmission facilities, with a stormwater discharge only had to obtain a permit for this discharge if the facility (1) had a discharge of a reportable quantity of hazardous substance, (2) had a discharge of a reportable quantity of oil, or (3)contributed to a violation of a water quality standard. 40 CFR §122.26(c)(1)(iii).These three conditions became in essence EPA’s definition of “contaminated stormwater” for purposes of the Act. The regulations clarified that the permitting exemption only applied to oil and gas operational activities; thus, construction activities were not included in CWA §402(l).

In 2005, the Energy Policy Act changed the stormwater permitting requirements by redefining the term “operations” in CWA §402(l) to now include construction activities. The following year, EPA promulgated regulations implementing the expanded permitting exemption. The regulations, among other things, clarified that a stormwater stream with sediment as the only pollutant did not trigger permitting even if there was contribution to a violation of a water quality standard. Thus, under the 2006 regulations, stormwater from Oil &Gas sites that only contained sediment was always exempt from permitting.

The 2006 regulations were judicially challenged and eventually vacated. See Natural Resources Defense Council v. United States Environmental Protection Agency, 526 F.3d 591 (9th Cir. 2008). EPA has not promulgated new regulations to replace them. Therefore, the 2005 Energy Policy Act modifications, along with regulations already in place before then, are the “last word” on the question of stormwater permitting requirements for Oil and Gas sites.

If stormwater permitting is required, we suggest a careful review of NPDES stormwater delegation and the potential applicability of the 2008 Multi-Sector General Permit (“MSGP”) or the 2012 Construction General Permit (“CGP”). See 73 Fed. Reg. 56,572 (Sept. 29, 2008); 77 Fed. Reg. 12,286 (Feb. 29, 2012). Alternatively, in some cases, individual permits may be needed.