West Virginia Issues Oil and Gas Storm Water Permit

            On May 13, 2013 the West Virginia Department of Environmental Protection’s Division of Water and Waste Management issued its General Water Pollution Control Permit for Stormwater Associated with Oil and Gas-related Construction Activities.  This permit will be required for storm water discharges from earth-disturbing activities of more than an acre that are associated with oil and gas production and transportation  and  that are not covered under an Office of Oil and Gas well work permit. The permit has an effective date of June 12, 2013 and an expiration date of May 13, 2018.

The new permit is very similar to the  NPDES general permit for storm water from construction activities that is already in effect.  However, a separate state-only permit had to be issued for oil and gas activities because storm water runoff from oil and gas activities is generally exempt from state/federal NPDES permitting. Section 402(l)(2) of the Clean Water Act exempts oil and gas operations from storm water permitting, and §502 of the Act broadly defines those operations:

The term “oil and gas exploration, production, processing or treatment operations or transmission facilities” means 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.

33 U.S.C. §1362(24).  More information about the scope of this exemption can be found at EPA’s website and in Natural Resources Defense Council v. EPA, 526 F.3d 593 (9th Cir. 2008).

The result of the exemption is a patchwork of regulation.  Generally speaking, the Office of Oil and Gas requires sediment and erosion control measures for roads, pads, pits and other earth disturbance that are associated with drilling.  These best management practices are placed in drilling permits, but they are state-only conditions, and are not enforceable under the state/federal NPDES program.  The new permit is intended for earth disturbance associated with gas line laying and other oil and gas activities that are not regulated in a drilling permit.  Runoff from all other earth disturbance is covered under Division of Water and Waste Management’s general NPDES permit for storm water discharged from construction operations.

The permit, fact sheet and responsiveness summary for the new oil and gas storm water permit  can be found here. 

            For more information, contact Dave Yaussy at dly@ramlaw.com