Final Rulemaking for Regulation of Oil and Gas Construction Activities

The 1987 Water Quality Act (WQA) added section 402(l)(2) to the 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. Section 323 of the Energy Policy Act of 2005 defined the term "oil and gas exploration, production, processing, or treatment, 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 the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activity." On June 12, 2006, EPA published a final rule to address the new provision added by the Energy Policy Act of 2005. On June 23, 2006, the Natural Resources Defense Council (NRDC) petitioned the Ninth Circuit Court of Appeals (Ninth Circuit) for direct review of EPA's action. Amigos Bravos, the Powder River, and the Oil and Gas Accountability Project (OGAP) were subsequently joined as petitioners, having timely filed their motions to intervene.

Ninth Circuit Issues Opinion to Vacate 2006 Oil and Gas Rule

Ninth Circuit Issues Opinion to Vacate 2006 Oil and Gas Rule (PDF) (34 pp, 122K) - On May 23, 2008, the Ninth Circuit Court of Appeals issued an opinion in NRDC v. EPA, No. 06-73217, vacating EPA's 2006 oil and gas construction stormwater regulation. This regulation 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 unless the relevant facility had a discharge of stormwater resulting in a discharge of a reportable quantity of oil or hazardous substances. 40 C.F.R. §122.26(a)(2)(ii) (citing §122.26(c)(1)(iii)(C)). EPA promulgated this regulation to implement an amendment to the CWA enacted in the Energy Policy Act of 2005.

On July 21, 2008, the US Department of Justice (DOJ) filed a petition (PDF) (26 pp, 814K) seeking panel rehearing or rehearing en banc of the Ninth Circuit Court of Appeals' May 23, 2008, decision vacating EPA's 2006 oil and gas construction stormwater regulation. In its petition, the Government contends the Court erred by overturning EPA's final rule solely because the Court found it inconsistent with EPA's prior interpretation of a provision of the Clean Water Act. The existing regulations remain in effect until either seven days after the court denies the petition or seven days after the court denies a motion for a stay of the mandate, whichever is later. Should the court ultimately vacate EPA's regulations, the relevant provisions of the Energy Policy Act of 2005 -- i.e., 33 U.S.C. §1362(24) -- will remain in effect. On September 4, 2008, NRDC filed its response to the Agency's petition for rehearing (PDF) (21 pp, 624K)

Question and Answer (PDF) (2 pp, 18K) regarding the implications of the NRDC v. EPA case regarding permits for stormwater discharges associated with oil and gas exploration and production activities.

This webpage will be updated as new information is received (last updated: October 13, 2008)

Final Rule

Amendments to the NPDES Regulations for Stormwater Discharges Associated with Oil and Gas Exploration, Production, Processing, or Treatment Operations, or Transmission Facilities [PDF - 175 KB - 13 pp] - On June 12, 2006, EPA published a rule that exempts construction activities at oil and gas sites from the requirement to obtain an NPDES permit for stormwater discharges except in very limited instances. These amendments are consistent with the Energy Policy Act of 2005 signed by the President on August 8, 2005. This action also encourages voluntary application of best management practices for construction activities associated with oil and gas field activities and operations to minimize erosion and control sediment to protect surface water quality. The final rule is effective June 12, 2006.

• Fact Sheet on the Final Rule [PDF - 27 KB - 2 pp]
• Oil and Gas Questions and Answers [PDF - 35 KB - 4 pp]

Proposed Rule

Proposed Amendments to the NPDES Regulations for Stormwater Discharges Associated with Oil and Gas Exploration, Production, Processing, or Treatment Operations, or Transmission Facilities [PDF - 218 KB - 33 pp]. On December 30, 2005, the Administrator signed this proposed rule for publication in the Federal Register.

NPDES Oil and Gas Public Meeting

On May 10th, 2005, EPA hosted a public meeting in Dallas, Texas to discuss the NPDES Stormwater Permit Regulations for Small Oil and Gas Construction Activities. EPA representatives included Jack Faulk, Jim Hanlon, Michael Lee, Deborah Nagle, and Jeff Smith. Jim Elder, an independent consultant, served as facilitator for the meeting. EPA created a panel of 11 representatives from state and federal government, the oil industry, and environmental organizations. A full transcript [PDF - 340 KB - 90pp] and registration list [PDF - 65 KB - 11pp] is available for this meeting.

Several PowerPoint presentations were given and some attendees gave public statements during the meeting.

PowerPoint presentations given during the meeting can be downloaded by clicking the links below:

Public statements given and comments submitted during the meeting can be downloaded by clicking the links below:

Additional documents pertaining to the meeting can be downloaded by clicking the links below:

Meeting transcript [PDF - 340 KB - 90pp]

Registration list [PDF - 65 KB - 11pp]

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Last updated on October 14, 2008 9:40 AM
URL:http://cfpub2.epa.gov/npdes/stormwater/oilgas.cfm