The Clean Water Act established the National Pollutant Discharge and Elimination System (NPDES) permitting process. NPDES permits are required for facilities and activities that cause pollution to enter our waterways. For instance, if you build a factory that that is going to have a pipe coming out of it for discharging treated effluent, the factory must have a NPDES permit. Similarly, construction activities associated with oil and gas development (clearing forests for road construction and well site establishment, pipeline construction, storage tank construction, etc.) are covered by the NPDES permit requirements...or, at least it used to be.
Not surprisingly, the Environmental Protection Agency, under the helm of the Bush administration, wanted to exempt oil and gas drilling operations from NPDES storm water permit requirements because it believed that these activities did not really produce enough erosion and sedimentation to warrant being an activity needing permits.
When oil companies explore and drill for oil and gas, they construct roads and other infrastructure to access the oil and gas deposits. New road construction alters the natural hydrology of an area and increases erosion and sedimentation into streams and other waterways. As an activity requiring a NPDES permit, oil and gas operations could not continue if it is shown that water quality is not being maintained because of those activities. Exempting oil companies from the NPDES permit requirements would eliminate this regulatory inconvenience for the oil and gas industry.
On January 23, 2003 the Warren County Conservation District in western Pennsylvania wrote a letter to the EPA, explaining that exempting oil and gas operations from NPDES permit requirements is a terrible idea:
Due to the extremely disruptive nature of oil and gas development and the track record of these developers to control accelerated erosion and sediment pollution, a special exemption from the NPDES Permit Requirements should not be enacted. In fact, special additional regulations need to be attached to oil and gas construction activities in order to minimize the amount of stream degradation presently being allowed to happen by this industry.
The Warren County Conservation District by delegation agreement with the PA Department of Environmental Protection administers the NPDES program. So, EPA delgates to the DEP and the DEP delegates to the county level.
Importantly, the Warren County Conservation District letter also said the following:
The earthmoving activities involved with the typical oil and gas projects, witnessed in Warren County, consist of clearing (logging), road building, grading (well site establishment), pipeline installation, and tank battery construction. Not one, but all of these operations are usually involved with any given oil and gas project. These activities disturb large areas of land (between 1 to 5 acres) and require extensive erosion and sediment control practices to protect nearby watercourses. With this in mind, consider that 70% of the oil and gas projects inspected by the Warren County Conservation District between 1997 and 2002 were in violation because they had no E&S control measures installed allowing sediment deposition into streams.
In the early 1990's, EPA promulgated a rule that established permit requirements for certain storm water discharges, including storm water discharges associated with construction activities that disturb five acres or greater or that disturb less than five acres when part of a larger common plan of development or sale that disturbs five acres or more. EPA interpreted the rule to apply to oil and gas exploration and drilling operations. As a result, a collection of trade associations brought a lawsuit against EPA, requesting that the court set aside EPA's interpretation as inconsistent with the Clean Water Act. The United States Court of Appeals for the Fourth Circuit dismissed the challenge on ripeness grounds. Appalachian Energy Group v. EPA, 33 F.3d. 319, 322 (4th Cir. 1994).
On December 8, 1999 EPA promulgated another rule regarding small construction activities disturbing between one to five acres. This said that storm water discharges from small construction activities obtain NPDES permit coverage beginning on March 10, 2003. As part of its rulemaking, EPA analysis suggested that few, if any, oil and gas exploration sites would actually disturb more than one acre of land. Accordingly, EPA decided that separate analysis of this sector was unnecessary.
After promulgating this rule, however, EPA became aware that close to 30,000 oil and gas sites annually may, in fact, be affected. EPA now believed that the majority of such sites may, in fact, exceed one acre when the acreage attributed to lease roads, pipeline rights-of-way and other infrastructure facilities is apportioned to each site.
In light of this new information, on March 10, 2003, EPA published a rule (the ‘‘deferral rule’’) that postponed until March 10, 2005, the permit authorization deadline for NPDES storm water discharges associated with small oil and gas construction activity.
Meanwhile, in Pennsylvania, the oil industry is not happy with the way things are going. In March 2003, the Independent Oil and Gas Association of Pennsylvania writes in their newsletter:
The Natural Resources Defense Council has attacked the Bush administration for "favoring" the oil and gas industry on this issue. Yet there is no single shred of tangible evidence that there is a problem with erosion and contamination from oil and gas drillsites, nor is there any environmental benefit for requiring these permits.
I guess the Independent Oil and Gas Association of Pennsylvania was not in contact with the Warren County Conservation District which was stating that:
70% of the oil and gas projects inspected by the Warren County Conservation District between 1997 and 2002 were in violation because they had no E&S control measures installed allowing sediment deposition into streams
Maybe the Independent Oil and Gas Association of Pennsylvania would change their mind after seeing images like this from the Allegheny Reservoir in northwestern Pennsylvania:
Note the heavy sedimentation on the left side of the image. This picture was taken in March 2007. Now we know that the spring melt normally increases sedimentation...but this is unlike anything most residents in the area have ever seen. And the main difference from previous years is that there is record amounts of oil and gas drilling occurring in this watershed with a lot of new road construction activities.
The oil and gas industry had nothing to worry about in Pennsylvania, however, because Kathleen McGinty, Secretary of the Pennsylvania Department of Environmental Protection, was hard at work trying to loosen the regulations on the oil and gas industry. In the Independent Oil and Gas Association of Pennsylvania's summer newsletter, it said:
DEP Secretary Kathleen A. McGinty announced that DEP has simplified the application for National Pollutant Discharge Elimination System (NPDES) permits for storm water discharges associated with construction activities at oil and gas wells. The revisions simplify the paperwork, eliminate redundancy, and allow companies to seek approval for projects in phases.
By the end of 2003, Pennsylvania was in the beginning a significant spike in oil and gas drilling. By the end of 2004, due in large part to increased prices in crude oil and natural gas, oil and gas drilling in Pennsylvania's Allegheny National Forest increased 37% from the previous year.
On March 9, 2005 EPA again
postponed the date for NPDES regulation for an additional 15 months until June 12, 2006, to provide additional time for the agency to complete its evaluation of the economic and legal issues that were raised and to assess procedures and methods for controlling storm water discharges from these sources to mitigate impacts on water quality.
On August 8, 2005 President Bush signed the Energy Policy Act of 2005 which specified that uncontaminated storm water discharges from oil and gas drilling activities do not require NPDES permits. So this put an end to all the confusion. President Bush came to the rescue of the oil industry once again.
However, states were still allowed to enact stiffer regulations. And the Pennsylvania Legislature actually started to look at repealing the oil and gas exemption in the state. On November 14, 2005 sponsors proposed legislation that included removing the oil and gas exemption at the state level. According to the Pennsylvania Oil and Gas Association's November-December newsletter:
POGAM learned of the bill shortly after it was introduced, but we were unable to raise our concerns with the committee before it acted.
Representative Martin Causer (R-McKean, Potter & Cameron) prepared an amendment on POGAM’s behalf to restore the oil and gas exemption during floor during floor debate on the bill, but he was prevented from offering it before the bill passed due to procedural difficulties.
It is disturbing, but not surprising, to read that representatives prepare legislative amendments at the behest of oil and gas industry. It makes it apparent whose interest they represent. Nonetheless, the bill passed the Pennsylvania House on December 14, 2005. Unfortunately, it was a much different story in the Pennsylvania Senate, and by the following year, on December 13, 2006 Governor Rendell signed legislation with the exemption intact.
Over this time period, oil and gas drilling exploded in Pennsylvania. For example, in 2003, 202 wells were drilled in the Allegheny National Forest. In 2004, 321 wells were drilled. In 2005, 688 wells were drilled. And in 2006, 985 wells were drilled. So over the past four years, drilling in the Allegheny National Forest has increased nearly 500%.
On January 6, 2006 the EPA proposed amendments to the NPDES program to implement Bush's Energy Policy Act of 2005. On February 27, 2006 PA DEP Secretary Kathleen McGinty testified before the PA House Appropriations Committee and commended the oil and gas industry:
Oil and gas drilling activity is at record levels due to high natural gas and crude oil prices. The energy industry responded to these market demands by re-visiting Pennsylvania’s oil and gas fields. DEP staff responded in kind --- working intensely to marshal a record number of permits without delay. DEP issued a record 6,046 oil and gas drilling permits last year, a 32.4 percent increase over the previous record of 4,567 permits in 2004.
Our Northwest Regional Office alone set an all-time high of 333 drilling application in November 2005, the largest number of applications ever received by the department in any one-month period since the Oil and Gas Act of 1984...
...These environmental achievements help to stimulate the economy and create jobs.
On June 12, 2006 the EPA promulgated a final rule that exempted oil and gas drilling operations from NPDES permit requirements.
Six months later, Pennsylvania's Allegheny National Forest shattered previous drilling records with 985 oil and gas wells drilled in 2006.
These aerial photos were taken in March 2007 to show the extent of oil and gas drilling in the Allegheny National Forest region. Do you think this level of drilling is having an impact on our watersheds?
Remember the letter from the Warren County Conservation District in January 2003? That year, 202 wells were drilled in the Allegheny National Forest, of which Warren County is a part. At that level of drilling, the Warren County Conservation District was sounding the alarm that not only should the EPA not exempt oil and gas drilling from NPDES permit requirements, but that additional regulations were necessary to protect our waterways. Fast forward five years and the NPDES permit requirements no longer exist for oil and gas companies drilling operations and they are drilling at levels far above what they were five years ago.
After looking at the aerial photos and considering the above information, revisit DEP Secretary Kathleen McGinty's testimony from 2006, where she says this level of drilling is an "environmental achievement."
Then contact Secretary McGinty's office and let her know that this level of drilling is not an "environmental achievement" but a tragic loss of our forests to fragmentation that is also impacting our waterways with increased erosion and sedimentation.
Also, contact the EPA and explain to them that what is occurring in western and northern Pennsylvania is exactly why NPDES permit requirements must apply to oil and gas drilling operations.
Finally contact your elected officials and tell them to pass legislation that will repeal the NPDES exemption for oil and gas drilling operations.