Coalbed Methane Produced Water In The Western Us

private lands through the CWA and SDWA under EPA's jurisdiction are relatively broad but clear. USFS is responsible for surface resource management on national forest system lands and works in conjunction with the BLM, which maintains statutory responsibility for issuing and supervising leases on these lands. On tribal lands, the BIA authorizes energy leases and the BLM permits CBM operations in a way that is similar to federal leases. Specific provisions under the NPDES permitting process apply to disposal of produced waters to the surface. The UIC program, under the SDWA, applies if subsurface reinjection of produced water is the disposal method. Federal agencies work in concert with state and tribal authorities to enforce federal standards and regulations, and EPA has delegated primacy for some of these permitting and regulatory functions to relevant state and tribal authorities in the six western states examined in this study.

Under the provisions of both the CWA and the SDWA, states and tribes assuming primacy for implementation of provisions of the terms of these acts commit to implementing appropriate state or federal laws and policies that serve to protect and preserve clean and safe surface and groundwater resources within the boundaries of the respective states. States and tribes may seek to establish their own water quality standards to serve the purposes of the CWA.

Similarities among the six western states' approaches to produced water management, including CBM produced water where applicable, include provisions for appropriate siting, construction, and lining of impoundments. However, significant differences exist in the management of CBM produced water among states to fulfill the general tenets for preservation of clean and safe water resources. From a legal standpoint, a deciding factor for states in their approach toward CBM produced water management relates to whether the water is considered an undesirable waste or, in other cases, a resource that can be beneficially used. A second important factor is that only Montana, and to a lesser extent Wyoming and Colorado, have specific provisions for CBM produced waters in their existing state regulations.

Important perspectives also relate to the approaches taken by various Native American tribes with lands within or adjacent to basins with active CBM development. Several tribes have active CBM production on their lands and manage CBM produced water. Other tribes have been evaluating the potential to produce CBM on their lands and are in the process of developing new water quality regulations to mitigate potential impacts of CBM produced water disposed of in rivers that flow through their lands.

Because all waters are owned by someone or some entity, in cases where the production of water is a byproduct of CBM production and where the waters are owned by an entity not party to the oil and gas lease, the leases often explicitly state that the waters may not be put to beneficial use unless the owner of the water approves. Thus, existing water laws preclude a CBM gas developer from taking possession of the water by means of filing for a water right. The CBM operator is assigned responsibility for dealing with the produced water as a waste product, but cannot market the water or transfer a water right. In this sense, existing water laws do not encourage beneficial use of CBM produced water.

This designation by states of produced water, generally, as a waste or with potential for beneficial use is not entirely arbitrary, as it has some basis in the general quality of the produced water, which itself is dependent on various hydrogeological factors of the basin and climate and available use options in the state. Nonetheless, other factors are important to take into consideration as new policies for water management are discussed and proposed or enacted. These factors include produced water volumes, available technologies and costs for treating produced water (Chapters 4 and 6), and detailed analysis and documentation of the type of groundwater reservoir—whether confined from (nontributary) or connected to (tributary) surface water—from which the produced water was extracted.

Recent changes, for example, in the case of Colorado court decisions regarding the "tributary" nature of produced water, and ongoing litigation related to Montana's challenge to Wyoming over priority water rights of the Powder River (and the need to honor state-instituted water quality standards at the state boundary), exemplify state-specific approaches about how produced water is perceived and the realization of a need for change in perspectives on water resource management. These changes and consequent actions signal that both the legal system and government agencies recognize that water resources to traverse state, legal, and geological boundaries. Less well recognized is the idea that some water resources can remain static or confined in the subsurface for millions of years until disturbed by human activity—and fossil water is not a concept that is integrated in the current federal or state systems for managing water resources. Emerging case law applied to CBM produced water management is testing the regulatory framework associated with water resources.


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