/DZ\HU 'LVFLSOLQDU\ $FWLRQV Interaction of State and Federal agencies In addition to the interactions related to EPA delegation to ADEQ and AOGC, there are opportunities to bring both state and federal agencies to the same table pursuant to the requirements of Section 10 and 404 permits. These permits are obtained through the U.S. Department of the Army Corps of Engineers (“Corps of Engineers”) and can range from simple nationwide permits to more complex individual permits. Activities requiring Section 10 permits include structures (e.g., piers, wharfs, breakwaters, bulkheads, jetties, weirs, transmission lines) and work such as dredging or disposal of dredged material, or excavation, filling, or other modifications to the navigable waters of the United States. Activities requiring Section 404 permits are limited to discharges of dredged or fill materials into the waters of the United States and are typically thought of as “wetland” permits. As part of the Corps of Engineers permit system, ADEQ must provide a water quality certification in accordance with the requirements of the Clean Water Act Section 401(a)(1). ADEQ, in re-issuing its water quality certification for the Nationwide Permits on March 13, 2007, imposed three additional conditions on the Nationwide Permits. First, individual water quality certification requests must be submitted to ADEQ for any activity
impacting Extraordinary Resource Waters, Ecologically Sensitive Waters, and Natural and Scenic Waters as identified in Regulation 2. Second, permit applicants shall contact ADEQ for a STAA needs determination for activities that have the potential to violate water quality criteria. Third, permit applicants shall comply with the NPDES Stormwater Program requirements. Although the Corps of Engineers administers the Clean Water Act 404 permits, the EPA retains the authority to veto Corps of Engineers permits, to interpret statutory exemptions and jurisdiction, to enforce actions, and to delegate the Section 404 program to the states. As you can see, the EPA retains the underlying regulatory functions but has, for practical purposes, assigned the administrative function to the Corps of Engineers. Forward Thinking Solutions The city of Clinton, Arkansas, has been working on a process to recycle the waste water produced during the drilling process. During the hydraulic fracturing process, millions of gallons of water are used per well to break up the shale and release the natural gas. As mentioned, the ADEQ currently requires this waste water to be injected into disposal wells. The city of Clinton, however, has recently proposed utilizing an abandoned sewer plant to recycle the water.
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The sewer plant was previously dedicated to the now closed Pilgrim’s Pride poultry plant and the city is trying to save those jobs and provide revenue by selling the water back to the drilling companies. While discussions of this particular water recycling proposal are still in its infant stages, ADEQ has expressed interest in looking closer at water recycling. ADEQ is actively promoting water reuse and is working to evaluate legal restrictions on and the technologies available for the treatment of water produced during the drilling process. Conclusion As shown, there currently exists a wide range of environmental law, regulations and rules from numerous state and federal agencies related to the Oil & Gas Industry. At the present time, there is no agreement within the regulatory community as to the most effective method to regulate the industry, but the agencies are working toward an agreement. Although there have been periodic revisions to both state and federal environmental law, neither revisions nor new regulation are pending at this time. With recent administration changes in Washington, D.C., it appears that numerous environmental changes are on the horizon; how those changes will affect the oil and gas industry, while unknown, are likely to create a more regulated environment.
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