Federal Water Quality Laws and Regulations

This section includes links to the Clean Water Act, the Safe Water Drinking Act, and associated regulations, guidelines, and policies pertinent to oil and gas surface operations.

Water produced in association with oil and natural gas production comprises 80 percent of the oil and gas industry’s residual waste requiring management and disposal. Management of produced water from the oil and gas industry is regulated under rules enacted federally by the Clean Water Act (CWA) and the Safe Drinking Water Act (SDWA). In 2000, 15 billion barrels of water were produced during oil & gas operations, nearly 8 barrels of water for every barrel of oil produced (U.S. EPA, 2000).

Although the United States Environmental Protection Agency (EPA) acts at the federal level to set national standards, states and tribal governments can acquire primacy for the SDWA's Underground Injection Control (UIC) program and the CWA's National Pollutant Discharge Elimination System (NPDES) program by meeting the EPA’s primacy requirements. States that have primacy programs must have requirements as stringent as the federal requirements, but are allowed to set more stringent state-specific requirements for these programs. Since individual states can acquire primacy over their respective programs, it is not uncommon to have varying requirements for these programs from state to state. See individual state law sections for details.

Clean Water Act (33 U.S.C. § 1251 et seq.)

The primary objective of the Federal Water Pollution Control Act, more commonly known as the Clean Water Act, is to restore and maintain the chemical, physical, and biological integrity of the nation's surface waters. The EPA is the federal agency responsible for creating and enforcing national water quality regulations under the Clean Water Act. Each state and Indian tribe may develop its own program for enforcing Clean Water Act requirements.

The Clean Water Act includes the National Pollutant Discharge Elimination System (NPDES) permitting process. NPDES establishes pollutant limits on the discharge of produced water that generally include a volume (quantity) and concentration (quality) (U.S. EPA, 2004). Pollutants under the NPDES program fall into one of three categories: conventional, toxic, and non-conventional. There are two types of permits under the NPDES program that allow for the discharge of pollutants from point sources, individual permits, which are specific to an individual facility, and general permits, which cover multiple facilities within a specific permit category. These permits are applicable to those facilities engaged in the production, field exploration, drilling, well completion and well treatment in the oil and gas extraction industry

In 2006, the EPA published a final rule that effectively exempted storm water discharges of sediment from construction activities associated with oil and gas facilities unless the facility had a discharge of storm water resulting in a discharge of a reportable quantity of oil or other hazardous substances. 40 CFR 122.26(a)(2)(ii) (citing 122.26(c)(1)(iii)(C)). This rule was challenged in court and subsequently vacated in Natural Resources Defense Council v. United States Environmental Protection Agency, 526 F.3d 591 (9th Cir. 2008). After the 2006 rule was vacated, the effective storm water requirements are those regulations in place prior to the 2006 rule plus additional clarification of activities included in the CWA 402(l)(S) exemption, which specified that EPA and states shall not require NPDES permits for uncontaminated storm water discharges from oil and gas facilities. For more information, please see the EPA NPDES Regulation of Oil and Gas Construction Activities webpage.

Provisions of the CWA particularly relevant to oil and gas development are:

33 U.S.C. § 1321 (2006) – Oil and hazardous substance liability – A Congressional declaration of policy against discharges of oil or hazardous substances into or upon the navigable waters of the United States. The policy calls for the development of enforcement mechanisms to ensure compliance.

33 U.S.C. § 1342 (2008) – National pollutant discharge elimination system – Establishes the NPDES program for discharges into navigable waters and provides for State primacy. But section (l)(2) provides that the Administrator shall not require a permit for discharges of storm water runoff from oil and gas exploration, production, processing, or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances used for collection and conveying precipitation runoff and which are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations.

33 U.S.C. § 1362 (24) (2008) – Defines the term “oil and exploration, production, processing, or treatment operations or transmission facilities” as “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.”

Safe Water Drinking Act (42 U.S.C. § 300f et seq.) (2006) - The Safe Drinking Water Act (SDWA) was established to protect public health by regulating public drinking water supplies and to protect sources of drinking water. It creates a joint federal-state system to ensure compliance with standards. EPA and authorized states enforce primary drinking water standards, which are contaminant-specific concentration limits that apply to certain public drinking water supplies. The Underground Injection Control (UIC) program was established by the SDWA to protect underground sources of drinking water from potential contamination from injection wells. Over 90% of the produced water from the onshore oil and gas industry is injected (U.S. EPA, 2000).

Provisions of the SDWA particularly relevant to oil and gas development are:

§ 300h et seq. - Protection of Underground Sources of Drinking Water – Established the UIC program to prevent contamination of underground drinking water resources.

§ 300h (d)(1)(B)(ii) – Excludes the underground injection of fluids related to hydraulic fracturing operations for oil, gas, or geothermal activities from the term “underground injection.” But see the Red Lodge Clearinghouse about attempts to eliminate this exemption.

EPA Regulations, promulgated from the CWA and the SWDA, which affect oil and gas, are found in Title 40 of the Code of Federal Regulations. Rules of particular interest include:

40 C.F.R. pt.112 – Oil Pollution Prevention - Establishes procedures,methods, equipment, and other requirements to prevent the discharge of oil from non-transportation-related oil and gas facilities into navigable waters of the United States or adjoining and contiguous areas. Applies if the facility, due to its location, could reasonably be expected to discharge oil into the navigable waters of the United States and meets criteria based on certain onsite storage capacities.

40 CFR pts. 435.30-435.32 – Onshore oil and gas extraction point source - Prohibits the discharge of water pollutants from any source associated with production, field exploration, drilling, well completion, or well treatment.

40 C.F.R. pt. 122 - EPA Administered Permit Programs: The National Pollutant Discharge Elimination System (NPDES) - The NPDES program requires permits for the discharge of pollutants from any point source into waters of the United States, however storm water from oil and gas operations is exempted from the NPDES requirement in § 122.26

pt. 122.26(a)(2) – Storm Water Discharge Exemption - 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, any overburden, raw material, intermediate products, finished product, byproduct or waste products located on the site of such operations.

pt. 122.26(c)(1)(iii) – Situations when Storm Water Permits are Needed - Requires storm water discharge permits when facility has a discharge of reportable quantity for which notification is required or contributes to a violation of a water quality standard.

pt. 122.26 (e)(8) – Permit Authorization for Small Construction Activities - Requires permit authorization for any storm water discharges associated with construction activities at oil and gas sites between one and five acres in size by 12 June 2006.

40 C.F.R. pts. 144-48 – Underground Injection Control Program - Establishes the minimum requirements each State must meet in order to obtain primary enforcement authority of the UIC program in that state.

State Operating Permit Programs:

SDWA UIC Program – Establishes guidelines for states to develop UIC programs.

CWA NPDES & Storm water Programs - Establishes guidelines for states to develop pollution permit programs.

Also see 40 CFR 123.25 et. seq.

State program links:

NPDES state programs - Colorado, Montana, Utah, Wyoming
New Mexico – Does not have primacy for NPDES permitting, but is pursuing authorization at this time.

State Storm Water programs - Colorado, Montana, New Mexico, Utah, Wyoming

State UIC programs - General EPA state contact webpage, Colorado, Montana, New Mexico, Utah, Wyoming

EPA Oil and Gas Guidance

Profile of the Oil and Gas Extraction Industry - This profile was published by the EPA Office of Compliance as part of its Sector Notebook project in 2000. The profile provides an introduction to the oil and gas extraction industry, its waste streams, pollution prevention opportunities, compliance and enforcement history, compliance assurance activities and initiatives, and a summary of pertinent statutes and regulations.