Coalbed Methane Produced Water In The Western Us

management are Bryner (2002) and the Produced Water Management Information System (PWMIS).1 Other references are cited where applicable.

WATER RIGHTS IN THE UNITED STATES

The legal framework for water rights substantially influences the management of all produced water in the western United States, including produced water from CBM activity and from conventional oil and gas production. This section briefly describes the basic water rights laws that are applicable to a broad range of produced water issues, including those specific to CBM activities.

Water rights and water allocation programs in the United States are primarily governed by individual states and tribes. No national water rights system exists. Generally, two divergent systems are used to administer water rights at a state level. Riparian water rights2 are more common in the eastern states. In the western states a system of prior appropriation water rights is generally applied and water rights are treated in a similar way to rights to real property: rights to water are established by actual use of the water and are maintained by continued use and need. Water rights in the western states thus can be conveyed, mortgaged, transferred, and encumbered independent from the land on which the water originates or on which it is used, as dictated by state-specific water management regulations.

Indian water rights are defined and governed by federal law that recognizes Indian tribes' property and sovereignty rights to the water on their lands and water designated as reserved for tribal use into perpetuity. Most Indian water rights are based on Winters v. United States of 1908 (207 U.S. 564, 28 S. Ct. 207, 52 L. Ed. 340).3 Application of this ruling, as with the principle of prior appropriation for the states (see below), has been affected by developments in tribal regulation, federal legislation, and case law during the past century.

Each state has its own variations on the basic principles of prior appropriation, depending on custom, culture geography, legislation, and case law (see Table 3.1). In general, a water right is established by obtaining an authorization for use of a specified amount or term of use of water, through a state-issued water rights permit. The essential elements of a water rights appropriation are the diversion of water from its principal source and its application to a beneficial use. A diversion may be made by merely removing water from its natural course or location or by controlling water that remains in its natural course. Irriga

!See www.netl.doe.gov/technologies/pwmis/index.html (accessed March 4, 2010).

2A system of allocating water among those who own land that physically touches the water body is based on the principle that land owners have the right to make reasonable use of the water. The water may be used as it passes through the property of the land owner, but it cannot be unreasonably detained or diverted, and it must be returned to the stream from which it was obtained. See www.blm.gov/nstc/WaterLaws/appsystems.html (accessed March 4, 2010).

3Available at supreme.justia.com/us/207/564/ (accessed July 8, 2010).

tion, mining and industrial applications, stock watering, and domestic and municipal use, for example, are commonly recognized beneficial uses. Exercising the water rights permit and using the water for a beneficial purpose formally creates a legal right to the water.

The underlying principle under prior appropriation doctrine is that water and its rights are allocated on a "first in time, first in right" basis. The earliest water users have priority over later water users ("appropriators") during times of water shortage, and water diversions and beneficial uses are fully allowed, in order of seniority of the water right, until the available water supply is exhausted. The concept of establishing a "priority date"—the date when the first water user obtains priority over other users—is thus very significant. Interstate water rights agreements, such as the Colorado River Compact, the Upper Colorado River Basin Compact (see Appendix E), and the Yellowstone River Compact of 1951 are illustrative in this connection. The Yellowstone River Compact (Pub. L. No. 82-231, 65 Stat. 663) forms the basis of ongoing claims related to the impacts CBM development on the water rights of Montana and the Northern Cheyenne Tribe under the Compact (see also Appendix F) (SCOTUS, 2010).

Beneficial use of water is a fundamentally important consideration in western water law under which public waters are obligated to be used for a useful or beneficial purpose. The appropriator can use only the amount of water presently needed, allowing excess water to remain in the stream. Generally, once the water has served its beneficial use, any waste or return flow is required to be returned to the stream. To change either the point of diversion or the point of use of the water, a modification to an existing permit is often required. In this context the concept of "instream flow" also becomes important. Instream flow is defined as the amount of water flowing through a natural stream course required to sustain the instream values at an acceptable level. Instream "values" and/or beneficial uses may include protection of fish and wildlife habitat, migration, and propagation; recreation activities; navigation; hydropower; waste assimilation (water quality); and ecosystem maintenance. Water requirements adequate to maintain all of these uses at an acceptable level are the "instream flow requirements."4 Each state considered in this study addresses the issue of instream flow in a slightly different manner: Wyoming, Colorado, and Utah recognize beneficial uses for some instream flows and have specific provisions and state agencies responsible for addressing instream flow issues; in Montana and North Dakota, beneficial uses for instream flows are not explicitly defined, although cases may be decided at the discretion of state agencies overseeing this water resource; and New Mexico does not recognize instream flow as a beneficial use at this time (Table 3.1).5 The relevance of instream flow for CBM produced water relates to managed discharge of some CBM produced water into perennial and ephemeral streams.

4See www.fws.gov/mountain-prairie/wtr/water_rights_def.htm (accessed March 9, 2010).

5See www.blm.gov/nstc/WaterLaws/stateflowsummary.html (accessed March 9, 2010).

COALBED METHANE PRODUCED WATER IN THE WESTERN U.S

TABLE 3.1 Approaches to Administering Water Rights and Managing CBM Produced Water in Six Western States

North Dakota

Montana

Wyoming

Water rights Prior appropriation doctrine doctrine; all water is property of public, with water rights allocated for beneficial uses

Designated Includes domestic, beneficial municipal or public, uses livestock, irrigation, industrial (including mining and manufacturing), fish, wildlife, and recreational activity uses

Prior appropriation doctrine; all water is property of the state of Montana, to be used for the benefit of the people

Defined as a use of water for the benefit of the appropriator, other persons, or the public; including, but not limited to, agriculture, commercial, domestic, dewatering, erosion control, fire protection, fish and fish raceways, geothermal, industrial, irrigation, mining, municipal, navigation, power, pollution abatement, recreational uses, sediment control, storage, stock water, waterfowl, water lease, and wildlife

Prior appropriation doctrine; all natural waters within the state are property of the state, with water rights allocated for beneficial uses

Recognized beneficial uses include irrigation, municipal, industrial, power generation, recreational stock, domestic, pollution control, instream flows, and miscellaneous3

Groundwater policy

Prevent the contamination of public water supplies, including surface and groundwater sources

Groundwater use in declared "controlled groundwater basins" (e.g., Powder River Basin) is governed by specific regulations to protect limited or declining supplies

Surface water and groundwater are treated as hydrologically separate; however, if upon investigation, a hydrological connection is found between the two sources, the water use is treated as one source

Utah

Colorado

New Mexic

Prior appropriation doctrine; all water is property of public, with water rights allocated for beneficial uses

Agriculture, culinary, domestic, industrial, irrigation, manufacturing, milling, mining, municipal, power, stock watering, instream flow (recreation and preservation of the natural stream environment), storage (including water supply, aquatic culture, and recreation)

State divided into "groundwater areas;" policies are similar to surface water, but permit approval criteria may differ by area

Prior appropriation doctrine; although water is considered to be the property of the state, a property right exists in the priority to use water

Statutorily defined as "the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made." Specific uses are not designated but have included aesthetics and preservation of natural environments, augmentation, commercial, domestic, fire protection, fishery, geothermal, groundwater recharge, industrial irrigation, livestock, minimum flow, municipal, power, recreation, silvicultural, snowmaking, wildlife watering, wildlife habitat, instream flow

Must obtain permit from State Engineer to drill a well; if "tributary" to a surface stream, use of the groundwater falls under the prior appropriation system, and water rights must obtained; in nontributary aquifers the water is allocated based on the percentage of land owned on the surface above the aquifer

Prior appropriation doctrine; all natural waters within the state are declared to be public and subject to appropriation for beneficial use

No official state designations; however, beneficial uses in the past have included agriculture, commercial, domestic, industrial, recreational uses, state conservation goals, and stock watering

The State Engineer establishes and regulates water use in declared "underground water basins" to protect prior appropriation, ensure water is put to beneficial use, and maintain orderly development of the state's water resources continued

COALBED METHANE PRODUCED WATER IN THE WESTERN U.S.

TABLE 3.1 Continued

North Dakota

Montana

Wyoming

Agency

North Dakota State Water

District court (for all

State Engineer's Office.

responsible

Commission, through

pre-July 1, 1 973, water

Four regional water division

for water

the Office of the State

rights) and the Water

superintendents and the

rights

Engineer

Resources Division of the

State Engineer comprise the

Montana Department of

Wyoming Board of Control,

Natural Resources and

which meets quarterly to

Conservation (for all

adjudicate water rights and

post-June 30, 1973, water

to consider water rights

appropriations)

matters

Agency

North Dakota Department

Montana Department

Wyoming Department of

responsible

of Health, Environmental

of Environmental

Environmental Quality

for produced

Health Section: oversees

Quality oversees surface

Water Quality Division

water

water quality rules and

discharges through NPDES

oversees produced water

management

regulations, reviews and

discharges; has primacy for

and

issues NPDES permits

regulating UIC permits for

permitting

for surface discharges,

Class I, III, and V wells and

and administers the UIC

groundwater monitoring

program

beneath impoundments; State

Engineer's Office oversees

construction permits for

on-channel impoundments;

Wyoming Oil and Gas

Conservation Commission

oversees construction

permits for off-channel

impoundments

Agency

North Dakota Industrial

Montana Board of Oil and

Wyoming Oil and Gas

responsible

Commission, through its

Gas Conservation oversees

Conservation Commission

for CBM

Oil and Gas Division

oil and gas operations,

responsible for permitting

operation

including those for CBM,

oil and gas wells and UIC

and

and has been delegated

permits for Class II reinjection

permitting

jurisdiction by EPA over

wells

on state and

the UIC program for Class

private land

II wells

aSee seo.state.wy.us/about.aspx (accessed July 8, 2010). NOTE: NPDES, National Pollutant Discharge Elimination System; UIC, Underground Injection Control; EPA, U.S. Environmental Protection Agency.

Utah

Division of Water Rights (State Engineer)

Colorado

The Office of the State Engineer (Division of Water Resources with the Department of Natural Resources) administers and distributes the state's waters (water.state.co.us/); seven water courts oversee each major river basin

New Mexico

Office of the State Engineer

Utah Department of Environmental Quality Division of Water Quality (groundwater monitoring and compliance, groundwater discharge permitting, surface water quality and monitoring); Utah Division of Oil, Gas, and Mining regulates disposal operations for CBM produced water including Class II injection wells and impoundments

One of three agencies: Colorado Oil and Gas Conservation Commission (under Department of Natural Resources; State Engineer; Department of Public Health and Environment (CDPHE) Water Quality Control Division, depending on classification of produced water as waste or beneficial use and as tributary or nontributary. CDPHE grants permits for discharge to surface water

Oil Conservation Division of the New Mexico Department of Energy, Minerals, and Natural Resources as delegated by the New Mexico Environment Department and its associated Water Quality Control Commission

Utah Division of Oil, Gas, and Colorado Oil and Gas Oil Conservation Division of

Mining Conservation Commission the New Mexico Department of

Energy, Minerals, and Natural Resources

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