Coalbed Methane Produced Water In The Western Us

Because the prior appropriation system has beneficial use of the resource as its underpinning, a lack of use may result in "abandonment" or "forfeiture" of the right. Most western state laws provide for the loss of a water right if the water is not diverted and used over a specified period of time that may be as little as five years.

Adjudication of water rights is the responsibility of the State Engineer, or a designated executive branch department or District Court, depending on the state (Table 3.1). Competition for water, as well as proper enforcement of the priority system, necessitates a comprehensive scheme of administrative controls. The State Engineer's office in North Dakota, Wyoming, Utah, Colorado, and New Mexico and the Montana Department of Natural Resources and Conservation's Water Rights Bureau are charged with the development and appropriation of surface water and groundwater resources for the state. At the federal level the Bureau of Land Management (BLM) policy generally is to defer to the states in the areas of regulating the quality, beneficial uses, and appropriation of "waters of the state," which are extracted in the development of CBM. Tribes are recognized as sovereign nations by the federal government with title to tribal lands held by the federal government in the status of a trust. Tribal governments thus have authority over their lands and associated water rights (see Winters Doctrine, above) without being subject to state laws.

FEDERAL AUTHORITIES

Three federal agencies—BLM, U.S. Department of Agriculture Forest Service (USFS), and U.S. Environmental Protection Agency (EPA)—have jurisdiction over CBM development and production activities and related CBM produced water management on federal lands or on lands beneath which the federal government retains mineral ownership, such as split estate mineral development.6 However, if a state has primacy for implementing the Clean Water Act (CWA) or for Class II injection wells under the Safe Drinking Water Act (SDWA; see below), the state shares regulatory authority on federal land. The specific responsibilities and CBM-related regulations of these agencies are described in the next section. Because some tribal lands of the western CBM basins contain commercially viable CBM reserves, tribal jurisdiction over CBM development and produced water management is also briefly described (see reference to Winters Doctrine above; also Appendix F). The various state authorities that oversee state and private lands are reviewed later in the chapter.

6"Split estate" refers to a situation in which the surface and subsurface rights (e.g., the right to develop minerals) for a particular land parcel are owned by different parties. When mineral rights are part of the split-estate issue, mineral rights take precedence over other rights associated with the land. Regardless, the mineral owner is required to show "due regard" for the interests of the surface owner. BLM's split-estate policy applies to circumstances in which the surface rights are in private ownership and the rights to develop the mineral resources are publicly held and managed by the federal government. See also www.blm.gov/wo/st/en/prog/energy/oil_and_gas/best_management_practices/split_estate.html (accessed May 24, 2010).

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