The Federal Water Pollution Control Act — more commonly known as the Clean Water Act — establishes a stringent regulatory and permitting regime governing the discharge of pollutants into rivers, streams, wetlands, and other “navigable waters.” The statute also addresses accidental releases of oil and hazardous substances, and imposes spill prevention, reporting, planning, and response requirements on the regulated community, as well as civil and criminal penalties for unauthorized discharges. The energy industry faces substantial legal risk under the Clean Water Act because (1) many of its operations are subject to Clean Water Act regulatory and permitting requirements, (2) the industry’s core activities — oil and gas exploration and production, storage, transportation, processing, and refining—are technically and operationally difficult and pose inherent risks of accidental releases, (3) federal authorities have targeted the industry for enforcement, (4) the statute provides for onerous civil and criminal penalties, and has been interpreted by several courts to allow the imposition of criminal fines and imprisonment for violations caused by simple negligence, and (5) in certain circumstances, the statute automatically disqualifies violators from receiving energy supply and other federal contracts, as well as federal oil and gas leases.

Energy companies can minimize their exposure to Clean Water Act regulatory enforcement actions by implementing strong compliance programs, including compliance audits. But meeting regulatory requirements and permit conditions is not enough. Energy companies should also have strong risk management programs designed to prevent accidental releases of oil and hazardous substances, as well as emergency preparedness and response plans that enable them to minimize the impacts of any release. Should a regulatory violation or accidental release nonetheless occur, energy companies may persuade the government to forgo criminal enforcement and accept reduced civil penalties by taking steps spelled out in federal enforcement policies and guidelines. These steps include promptly reporting a known or suspected violation, remediating environmental damage and other harm caused by the violation, and implementing corrective measures to prevent a recurrence.

Originally published in the Energy Law Journal Volume 36, No. 1 on April 27, 2015.