Coalbed Methane Produced Water In The Western Us

and biological integrity of the nation's waters for the protection and propagation of fish, shellfish, and wildlife and to provide for protection of human health and recreation in and on the water (e.g., fishing, swimming, boating) and to eliminate discharge of pollutants to navigable (surface) waters.13 The act governs discharges of pollutants, defined as the addition of any pollutant to waters of the United States from any point source. The term "waters of the United States" has been further defined to include traditional navigable waters, wetlands adjacent to traditional navigable waters, non-navigable tributaries of traditional navigable waters that are relatively permanent and where the tributaries typically flow year-round or have continuous flow at least seasonally (e.g., typically three months), and wetlands that directly abut such tributaries. Responsible agencies will decide jurisdiction over other waters based on a fact-specific analysis to determine whether they have a significant nexus with traditional navigable water.

The CWA introduced a permit system for regulating point sources of pollution. Point sources14 presently recognized and managed under the provisions of the CWA include:

• industrial facilities (including manufacturing, mining, oil and gas extraction, and service industries);

• municipal governments and other government facilities (such as military bases, municipal wastewater treatment facilities); and

• some agricultural facilities, such as animal feedlots and food-processing facilities.

Point sources may not discharge pollutants to surface waters without a permit from the NPDES. This system is managed by EPA in partnership with state environmental agencies. EPA has authorized 46 states to issue NPDES permits directly to the discharging facilities. The CWA also permits EPA to authorize tribes to issue NPDES permits if a tribe's application for eligibility to administer water quality standards and certification programs is approved by EPA. Amongst the tribes with lands located within or near to one of the CBM basins examined in this study, the Northern Cheyenne Tribe (Powder River Basin area) and Ute Mountain Ute Tribe (near the western edge of the San Juan Basin) have received approval from EPA to administer water quality standards and certification programs, although these are not specific to CBM produced water issues (see also Appendix F). In the remaining states and territories, the permits are issued by an EPA regional office. Of the six states in this study, only New Mexico is not yet authorized by EPA to issue NPDES

13C. Johnston, EPA, presentation to the committee, January 6, 2009.

14"Point source" in section 502(14) of the Clean Water Act is generally defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged."

permits, and this responsibility continues to lie with the EPA; however, the state has entered into the process to seek this authority from EPA.15

The CWA also created a requirement for technology-based effluent limitations ("effluent limit guidelines") for point source discharges. EPA develops these standards for categories of dischargers, based on the performance of pollution control technologies without regard to the conditions of a particular water body receiving the discharges. This approach is intended to establish a basic national discharge standard for all facilities within a category with "Best Available Technology" as an underlying basis. The standard becomes the minimum regulatory requirement in a permit.

If water quality is still impaired for a particular water body after application of technology-based standards to an NPDES permit, the permitting agency (state or EPA) must add water quality-based limitations to that permit. The additional limitations are to be more stringent than the technology-based limitations and would require the entity that received the permit to meet those additional limitations. Such water quality standards (WQS) set site-specific allowable pollutant levels for individual water bodies, such as rivers, lakes, streams and wetlands. States set WQS by designating uses for the water body (e.g., recreation, water supply, aquatic life, agriculture) and applying water quality criteria (numerical pollutant standards and narrative standards)16 to protect the designated uses. An antidegradation (in some states referred to as nondegradation) policy is also issued by each state to maintain and protect existing uses and high-quality waters. The development of WQS is a complex process, both scientifically and legally, and tends to be a resource-intensive process for state agencies. The EPA retains oversight authority with regard to state-administered NPDES programs and state-established water quality standards. EPA can override state permit decisions (under CWA section 402(d)) and disapprove state WQS (under CWA section 303(c)).

To date, effluent guideline regulations have been published for 56 categories of pollutants (450 subcategories), covering more than 60,000 facilities that discharge directly or indirectly to the nation's waters. EPA has updated some categories since their initial promulgation and has added new categories. EPA did not consider CBM production in developing the 1979 national technology-based effluent limitations guidelines (ELGs) for the Onshore and Agricultural and Wildlife Water Use Subcategories of the Oil and Gas Extraction Point Source Category (40 CFR 435, Subparts C and E) because no significant CBM production existed in 1979. Accordingly, these ELGs do not apply to CBM produced water discharges. EPA has made the determination that CBM extraction operations are a potential new subcategory of the Oil and Gas Extraction category, but to date no specific

15See (accessed March 4, 2010).

16Narrative standards provide broad-scale, general guidance of a qualitative nature, whereas numerical standards provide specificity in a quantifiable manner. Narrative standards define the broad guidelines that serve as the basis for definition of numerical standards. See (accessed March 4, 2010).

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