Water Management

We may all be familiar with POTUS and SCOTUS, but have you heard of WOTUS? This is an acronym for “Waters of the United States.” WOTUS is important, because it defines the extent of the jurisdiction of the Clean Water Act (CWA).

Back in 2015, a new definition of WOTUS was developed by the Obama administration, which was widely considered an overreach. As a result, the Trump administration rolled back the 2015 definition and limited the applicability. As expected, the new rule, published in the Federal Register on April 20, 2020, has faced many challenges. Many states, environmental groups and other parties began their opposition. Regardless of the challenges, the new WOTUS definition went into effect on June 22, 2020.

Why is this important? Well, ultimately, the goal is to turn produced water into dischargeable water, available for irrigation and other beneficial reuse applications. If the WOTUS definition of 2015—although under numerous challenges—remained in effect, discharge of produced water could fall under the CWA or NPDES programs, making some of these reuse options difficult to impossible. There are still other challenges, like the “98th Meridian,” that need to be addressed. But for now, let’s stay on WOTUS a bit longer.

Here are some things that the new definition specifically excluded:

• Groundwater
• Ditches
• Irrigation systems
• Waste treatment systems (wastewaters are wastes)
• Farm and stockwater ponds.

The overreach extent. When you look at the exclusions, you begin to see what the overreach implied. Would gathering systems and recycling facilities be included in the 2015 definition of WOTUS? Produced water is considered a wastewater, and it wouldn’t be a stretch to see the old definition applied. What about fresh and produced water storage pits, would they become subject to CWA?

I’ve always had this overall feeling that logic will prevail, but in today’s environment, I don’t know if I still believe this. The new WOTUS definition has been, and will continue to be, challenged. Colorado was successful in blocking the new WOTUS rule, which was based on a previous Supreme Court ruling that had its detractors. In fact, just days after publishing the new WOTUS rule, Hawaii ruled that groundwater was covered by the CWA, even though it was specifically excluded in the new WOTUS definition. This created some uncertainty on how courts will rule on the new definition. How WOTUS fairs this year needs to be monitored carefully. This could truly be an indicator of what our industry will face in coming years.

What we need to understand as an industry is that an undercurrent of opposition to the oil and gas industry is swelling. We have been told that we need to make sustainability a priority, but the current economic environment makes that difficult. If we don’t work to change our image, we can expect some of these regulations to move against us. If an oilfield water management pit fell under the CWA, well pits would likely never get built or permitted. What if WOTUS and the CWA applied to a gathering system? How would that change our industry?

Let me get even darker here. What if the oil-and-gas exploration exclusion under the Resource Conservation and Recovery Act (RCRA) was repealed? RCRA regulates hazardous and non-hazardous wastes. Currently, nothing in produced water would require it to be regulated, but there are many listed wastes from certain processes considered to be hazardous. So, someone could propose a repeal of the exclusion and a new listed code for wastewaters from hydraulic fracturing.

How would this change our industry? Disposal wells would be Class 1 wells and likely never get permitted. Recycling facilities would be permitted as hazardous waste treatment facilities. Our whole world would change. There is a precedent for this—when RCRA was promulgated, it changed the waste management world forever. Many operations stopped, facilities closed, and only a few large corporations remained to benefit from the change.

Personally, I could never imagine any of this happening, but I never thought a legitimate Presidential candidate would consider eliminating oil by 2030, as Biden has done. Could this oil ban be negotiated into increased regulation or a repeal of the oil and gas exclusion? These things I thought would never happen are starting to look like possibilities. So, you can see how important this upcoming election will be to us, but more importantly, we have to continue to improve the world’s view of our industry or face the consequences.

Today, a low oil price and a tepid economy prevent the type of CAPEX spending that could shift our industry toward more sustainability. Things like eliminating use of fresh and brackish water, and increasing recycling of produced water or eliminating flaring, will be put on hold until oil prices increase and stabilize, which, personally, is a mistake. Our world could change dramatically in 2021, and we need to act now, to prevent opposition empowerment, due to our inaction. This could completely change the way we do business. I’ve always expected regulation in our industry to increase and welcome it, but a dramatic shift can be devastating.

Let’s work to move our industry toward sustainability. For oilfield water management, that means less trucks and more pipelines, less fresh and brackish water and more recycling. Less chemical processes and more mechanical processes, to reduce chemical footprint, not just carbon footprint. More automation and less people. Some of this isn’t popular, but it is the industry’s direction, and as we slowly recover, we need to continue it. Our livelihood could count on it.  

About the Authors

Mark Patton

Hydrozonix

Mark Patton is president of Hydrozonix and has more than 30 years of experience developing water and waste treatment systems for the oil and gas industry. This includes design, permitting and operation of commercial and private treatment systems, both nationally and internationally. He has seven produced water patents and two patents pending. He earned his B.S. in chemical engineering from the University of Southern California (USC) in 1985.