CHAPTER 16 THE PROBLEM OF WATER AS WASTE

• Jurisdiction: United States

Surface Use for Mineral Development in the New West
(Feb 2008)
CHAPTER 16
THE PROBLEM OF WATER AS WASTE
Kate M. Fox
Davis & Cannon, LLP
Cheyenne, Wyoming

I. Introduction

The fundamental problem of water discharged for coalbed methane gas (CBM) production is that it is generally a waste product to be disposed of by the most economical means possible. This reality does not fit with the established regulatory structures for water in the American west, structures which evolved around the need to regulate when demand for water exceeded supply. Thus, Wyoming and other western states have been caught flat-footed by the production of considerable quantities of water which need to be disposed of.

This paper looks at the existing constitutional, statutory and regulatory structure governing water in Wyoming, and discusses what authority may currently exist to regulate an excess of water.

II. Coalbed methane gas

Methane gas and water are commonly found in association with coal seams. Until the recent boom, CBM gas was considered merely a hazard and nuisance by coal miners. Methods for economically collecting the gas were recently discovered, and in 1987 there were a few CBM producing wells in the Powder River Basin (PRB). CBM gas collection technology requires water to be removed. In some cases wells (including 851 wells in the PRB in 2005) have, for two years or more, diverted and discharged ground water without CBM ever having been produced.

According to the Wyoming Coal Bed Natural Gas Task Force Interim Report, 72,000 acre-feet of water was discharged from Powder River Basin coals in 2005 alone, and the Task Force estimates that amount will double by 2014. The 72,000 acre-feet of water produced from the PRB in 2005 alone would supply the City of Cheyenne's water demand for nearly five years (in 2005, the City of Cheyenne used 14,962 acre-feet of water. Granite Reservoir holds approximately 5,300 acre-feet, and Crystal Reservoir holds approximately 3,400 acre-feet.). Cumulative water production in the PRB from 1987 to 2004 was 373,649 acre-feet (compare to Lake DeSmet's 239,000 acre foot capacity). Cumulative CBM water

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production in the PRB between 1987 and the end of 2005 was approximately 3.5 billion barrels of water (about 450,000 acre-feet). The Wyoming Oil and Gas Conservation Commission has estimated cumulative CBM water production from the PRB from 2006 to 2029 at 11.6 billion barrels (about 1,495,000 acre-feet).

The amount of water at issues is significant, and can no longer be ignored.

III. Wyoming Water Regulation

Since statehood, Wyoming water has been regulated under a comprehensive prior appropriation system established by Constitution, laws and rules. That system is founded upon the concept of beneficial use which is "the basis, the measure and the limit to use water at all times."¹ A would-be appropriator may receive a permit from the State Engineer which allows him to divert or store water for a beneficial use, if the diversion is in the public interest. The beneficial use determination has traditionally been the starting point - not the ending point - for water regulation in Wyoming.

The adjudication process (in which the public...