Do the stormwater regulations under the CWA apply to oil and gas exploration?

Yes.  An oil and gas exemption from environmental regulation is contained within the CWA for certain storm water discharges. 

Typically, industrial facilities that generate stormwater runoff (as “pollutant” under the CWA) must obtain a stormwater permit under the CWA for this runoff; they are required to have a permit both for constructing the facility (at which point soil sediment may run off the site) 36 and operating it (at which point polluted substances may continue to run off the site during precipitation events, for example).  The CWA does not require oil and gas operators, however, to obtain a permit for uncontaminated “discharges of stormwater runoff from . . . oil and gas exploration, production, processing, or treatment operations.”

In the Energy Policy Act of 2005, Congress expanded the definition of oil and gas exploration and production under the CWA – a definitional change that potentially allowed for the exemption of more oil and gas activity from stormwater permitting requirements.  The EPA subsequently revised its regulations to exempt oil and gas construction activities from the NPDES stormwater permitting requirements. 

In 2008, however, the United States Court of Appeals for the Ninth Circuit in Natural Resources Defense Council v. EPA vacated these regulations.  The EPA has since reinstated its prior requirements for stormwater permits along with “clarification” based on Energy Policy Act of 2005.  “In sum, oil and gas operators must obtain a stormwater permit under the CWA for the construction of a well pad and access road that is one acre or greater, but they need not obtain such a permit for any uncontaminated stormwater from the drilling and fracturing operation.”

You can learn more about the Clean Water Act at the EPA’s website at:

https://www.epa.gov/laws-regulations/summary-clean-water-act

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