Amendments to the Storm Water
Regulations for Discharges Associated with
Oil and Gas Field Activities or Operations
To conform with the recently-enacted provisions of the Energy Policy Act of 2005, EPA is proposing a
rule to clarify and amend Clean Water Act storm water regulations so that certain types of oil and gas
exploration, production, processing, or treatment operations or transmission facilities, including
associated construction activities, are not required to obtain NPDES permit coverage for storm water
discharges except in very limited instances. EPA intends to publish a final rule in the Federal
Register before June 12, 2006.
Background
The 1987 Water Quality Act (WQA) added a section 402(p) to the Clean Water Act (CWA)
requiring EPA to develop and implement a storm water permitting program. EPA developed this
program in two phases (Phase I: 1990; Phase II: 1999). Those regulations establish NPDES permit
requirements for municipal, industrial, and construction site storm water runoff. The WQA also added
section 402(1)(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. Since 1992 EPA has interpreted the 402(1)(2)
exemption as not applying to construction activities (i.e., permit coverage is required).
In 2002, shortly before the Phase II regulations took effect for small construction activities
disturbing one to five acres, industry stakeholders notified EPA that the Agency had incorrectly
assumed that oil and gas activities would not be affected by these permit requirements. Industry noted
that these regulations would apply to approximately 30,000 sites annually and would have a
significant economic impact on the industry. In response, EPA deferred (until June 12, 2006) the
Phase U storm water requirements for small oil and gas construction activities disturbing one to five
acres to analyze the costs and benefits associated with those regulations. EPA planned to propose an
action in the Federal Register in late 2005 and finalize this action before the June 12, 2006 deferral
expiration.
Before the Agency proposed an action, Congress passed the Energy Policy Act of 2005, which
became law on August 8, 2005. Section 323 of this Act added a new paragraph (24) to Section 502 of
the CWA to define 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 drilling and for the movement and placement of drilling equipment,
whether or not such field activities or operations may be considered to be construction activities." The
term "oil and gas exploration, production, processing, or treatment, or transmission facilities" is the
term used in 402(1)(2) of the CWA and in the NPDES regulations to define those types of activities
not required to obtain NPDES permit coverage for storm water discharges. This statutory change
broadened the scope of the 402(1)(2) exemption and rendered EPA's ongoing Phase II analysis
unnecessary. It also altered the Phase I regulatory requirements.
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Today's proposed rule codifies changes resulting from the Energy Policy Act of 2005 and
clarifies that oil and gas related construction activities under Phase I and II are exempt from NPDES
permit requirements for storm water discharges, except in very limited instances.
About this Proposed Rule
Changes to the NPDES regulations proposed by this rule are necessary to maintain consistency
with the new law. The proposed rule specifies that storm water discharges from oil and gas-related
construction activities are exempt from NPDES permit coverage, except in very limited instances.
EPA interprets this exclusion to apply to construction of drilling sites, waste management pits, and
access roads, as well as construction of the transportation and treatment infrastructure such as
pipelines, natural gas treatment plants, natural gas pipeline compressor stations, and crude oil pumping
stations. Construction activities that result in a discharge of a reportable quantity release or that
contribute pollutants (other than non-contaminated sediments) to a violation of a water quality
standard are still subject to permit coverage.
This action also proposes to add complementary text encouraging operators of oil and gas field
activities or operations to implement and maintain Best Management Practices (BMPs) to minimize
erosion and control sediment during and after construction activities to help ensure protection of
surface water quality during storm events.
Today's proposed rulemaking applies to all States, Federal lands and Indian Country regardless
of whether EPA or a State is the NPDES permitting authority. However, today's proposal is not
intended to interfere with the States' authority to regulate any discharges, pursuant to state law,
through a non-NPDES program.
EPA expects to publish a final rule in the Federal Register in advance of the June 12, 2006
expiration date for the deferral of permitting requirements for small oil and gas construction activities.
How to Get Additional Information
To view the Federal Register notice for this proposed action or for general information on
EPA's NPDES Storm Water program, the Agency suggests that stakeholders and interested parties
consult www.epa.gov/npdes/stormwater.
For additional information, please contact Jeff Smith at (202) 564-0652 or send him an e-mail
at smith.jeff@epa.gov.
EPA- 833-F-05-004
US ENVIRONMENTAL PROTECTION AGENCY
1200 PENNSYLVANIA AVENUE, N.W. (MAIL CODE 4203)
WASHINGTON, D.C. 20460
DECEMBER 2005
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