ELS ECO SLPS Clean Water Act Project

Introduction

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40 CFR § 435.50 et seq. is an exemption to the Clean Water Act, applicable to onshore oil and gas operations (i.e. production, drilling, well completion, and well treatment) west of the 98th meridian, which allows discharge of produced water into navigable waters for use in agriculture or wildlife propagation. 

Congress enacted the Clean Water Act (CWA) in 1972 in order to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (2012). To accomplish this goal, the Act prohibits the “discharge of any pollutant by any person” into “navigable waters” unless authorized by a permit or specifically exempt by the Act. See id. §§ 1311(a), 1362(7), (12). Sections 402 and 404 of the Act create permitting systems for the discharge of pollutants. See id. §§ 1342, 1344.

The Army Corps regulates the permitting of the discharges of dredged and fill material under section 404. Id. § 1344; 33 C.F.R. § 323.3(a). These discharges are not at issue here. Prior to the discharge of all other pollutants from point sources, an entity must first obtain a National Pollutant Discharge Elimination System (NPDES) permit under the section 402 permitting scheme administered by the U.S. Environmental Protection Agency (“EPA”). 33 U.S.C. § 1342. The NPDES Permit Program controls water pollution by regulating point sources (discrete conveyances such as pipes or man-made ditches) that discharge pollutants into waters of the United States. The produced water exemption allows oil and gas producers to dump wastewater produced from their operations without a permit.

The Environmental Law Society ECO SLPS Group used the Colorado Open Records Act to research discharge of produced water pursuant to 40 CFR § 435.50 et seq. in Colorado.  The documents are summarized and indexed below.

Documents Obtained

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First Request for Information – March 5, 2014

Request for information

Documents received in response

 

Second Request for Information – October 17, 2014

Request for information

Documents received in response – Part I 

Documents received in response – Part II 

Summary of Requests 1 and 2

Memorandum summarizing the information received in response to March 5 and October 17 requests

 

Third Request for Information – October 28, 2014

Request for information

Documents received in response – Part I

Documents received in response – Part II (after February 3, 2015 follow-up)

 

Summary of Request 3

Memorandum summarizing the information received in response to October 28 request

 

Index

Index of all documents received