Water Discharge is a Pollutant, Appeals Court Says: Land Letter

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Land Letter Update for Thursday April 17, 2003 COALBED METHANE Water discharge is a pollutant, appeals court says Eryn Gable, Land Letter staff writer Page 1 of 2 The 9th U.S. Circuit Court of Appeals ruled last week that water from coalbed methane wells is a pollutant under the Clean Water Act, reversing an earlier decision by U.S. District Judge Sam Haddon. In addition, the appeals court ruled Montana cannot, as it has attempted to do, exempt methane water from the CWA and the permitting process for discharging the water. "We're really happy to see it," said Tongue River rancher Mark Fix, a member of the Northern Plains Resource Council, which filed the original lawsuit. "It's a real good decision, and it should help farmers, ranchers and irrigators on the rivers and streams out quite a bit." In June 2000, Northern Plains sued Fidelity Exploration and Production Co., alleging the firm had illegally discharged methane water into the Tongue River without a permit. Northern Plains says salty methane water destroys soils and crops and harms fish. Managing the discharges under the CWA would help protect Montana's irrigated farms and ranches by safeguarding water quality, the group says. Fidelity, which operates 240 wells in the only producing coalbed methane field in Montana, later got the proper permit to discharge water, although Montana law exempts unaltered groundwater from permitting requirements. But the Montana Department of Environmental Quality also warned Fidelity in a letter that the U.S. EPA does not agree with the permit exemption, according to court documents. "We wanted the permit," said Mike Caskey, Fidelity's executive vice president and CEO. "We were concerned about falling between the cracks in permitting and the Clean Water Act, and we asked for a permit even though the state kept telling us we didn't need it." Drilling for coalbed methane, a form of natural gas found in coal seams, involves discharging large volumes of groundwater to release pressure that holds the gas in the coal. Farmers who use the water for irrigation are concerned with the "saltiness" of coalbed methane water because of potential damage to crops. "As an irrigator, I have to spread their wastewater onto my land," said fourth- generation rancher Art Hayes, president of the Tongue River Water Users' Association, which filed an amicus brief in the case. "The ruling says they're not able to dump water into the river like they want," he added. "They have to at least apply for a permit." Haddon dismissed Northern Plains' case in August, ruling that water associated with coalbed methane development is not a pollutant under the CWA and that Montana law specifically allows its discharge. The appeals court disagreed, saying the CWA prohibits the discharge of "any pollutant from a point source into navigable waters" without a permit. Groundwater released from coalbed methane development is considered a pollutant because it is "industrial waste," the court said. http: / /www.eenews. net / Landletter /Backissues /041703/04170306.htm 4/17/2003