Oil and gas construction activities are exempt from the requirement to obtain NPDES permit coverage unless the facility meets one of the conditions in 40 CFR 122.26(c)(1)(iii) noted below. The following regulations applicable to oil and gas construction activities are currently in effect:
i. 40 CFR § 122.26(a)(2) The Director may not require a permit for discharges of storm water runoff from mining operations or oil and gas exploration, production, processing or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used for collecting and conveying precipitation runoff and which are not contaminated by contact with or that has not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct or waste products located on the site of such operations.
ii. 40 CFR § 122.26(c)(1)(iii) The operator of an existing or new discharge composed entirely of storm water from an oil or gas exploration, production, processing, or treatment operation, or transmission facility is not required to submit a permit application in accordance with paragraph (c)(1)(i) of this section, unless the facility:
- Has had a discharge of storm water resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 117.21 or 40 CFR 302.6 at any time since November 16, 1987; or
- Has had a discharge of storm water resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 110.6 at any time since November 16, 1987; or
- Contributes to a violation of a water quality standard.
Also in effect is the provision added to the CWA in accordance with Section 323 of the Energy Policy Act of 2005 defining the term “oil and gas exploration, production, processing, or treatment operations 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 activity.” See 33 U.S.C. § 1362(24).
The exemption at 122.26(c)(1)(iii) does not apply to CWA 404 permits. The exemption only applies to stormwater discharges from oil and gas exploration, production, processing or treatment, or transmission facilities (e.g., facilities/activities directly related to extraction or basic oil/gas processing such as fractionation plants, and not to such operations as liquified natural gas (LNG) re-gasification and ethanol plants). Additionally, if any portion of the construction activity associated with one of these facilities no longer qualifies for the oil and gas exemption, the operator will be required to obtain construction stormwater permit coverage for all subsequent discharges of pollutants to a water of the U.S. from the site. If the operator determines that all of the construction activities associated with the facility are in fact exempt, the owner/operator is not required to obtain NPDES construction stormwater permit coverage (although EPA encourages development and implementation of a SWPPP). However, if the project has had a stormwater discharge of a reportable quantity or a stormwater discharge that contributes to a violation of a water quality standard (e.g., sediment discharges violating a water quality criterion or causing loss of fishing resources), the operator is in violation of the CWA prohibition on the discharge of a pollutant by a point source to a water of the U.S. without NPDES permit coverage for any subsequent discharges.
For more information about the potential need for permitting of oil and gas construction activities, see the Oil and Gas Stormwater Permitting webpage at https://www.epa.gov/npdes/oil-and-gas-stormwater-permitting.