BEFORE THE ENVIRONMENTAL QUALITY COUNCIL 

PETITION TO AMEND WYOMING ) 

WATER QUALITY RULE, CHAPTER 2, ) 

APPENDIX H ) 

COME NOW, Petitioners, and on this 7th day of December, 2005, hereby petition 

pursuant to W.S. §§ 16-3-106 to amend Wyoming Water Quality Rules, Chapter 2, 

Permit Regulations for Discharges to Wyoming Surface Waters to remove the language 

that allows huge volumes of salty CBM water to be discharged and disposed of onto the 

land and into the waters of Wyoming under the guise of “beneficial use.”1 

PETITIONERS 

Eric and Bernadette Barlow own and operate Barlow Ranch, which has been in the 

family for four generations. The Barlows’ ranch consists of over 18,000 privately owned 

acres of mixed-grass rangeland on which they run several hundred head of cattle. Their 

ranching operation relies primarily on native grasses as forage for their cattle, with the 

subirrigated meadows along Dead Horse Creek providing the substantial portion of their 

cattle feed. CBM discharge water coming down Dead Horse Creek has already altered 

the ephemeral nature of the stream, damaged their meadows, and caused foot rot in their 

cattle. 

Gary and Sue Packard own and operate Packard Ranch which has been in the family 

for four generations. The ranch lies along Crazy Woman Creek near the confluence of 

the Powder River. Crazy Woman creek is a perennial stream with irrigation quality 

water. The ranch is a cow calf operation and consists of several thousand acres of native 

rangeland with irrigation rights along Crazy Woman Creek. CBM development is taking 

place both upstream, on and around the Packard Ranch. 

 

Ken and Glessie Clabaugh own and operate Clabaugh Ranch, Inc. along Wild Horse 

Creek. The ranch consists of several thousand acres, including bottomland meadows 

along Wild Horse Creek that provide critical grazing and calving grounds, and native 

upland areas. The ranch has been inundated by CBM discharge water flowing down 

Wild Horse Creek causing serious problems with flooding, soil and vegetation damage 

and problems with moving cattle and calves. 

 

1 Appendix H showing the proposed changes is attached as Exhibit 1. 
Steve and Mona Mitzel own and operate Mitzel Ranch along Clear Creek. Mitzel 

Ranch is a cow calf operation, with irrigated alfalfa meadows and a commercial 

vegetable garden. Clear Creek is a perennial stream with historically high water quality, 

upon which the ranch and farm operation depends. CBM development has begun in the 

Clear Creek drainage, and significant further development is planned. 

Bob and Carol LeResche own and operate Clear Creek Ranch and Prariana Farms along 

Clear Creek, with irrigated meadows, irrigated alfalfa and grass hay fields, a commercial 

vegetable garden and grazing lands. The ranch also provides important bird and fish 

habitat along Clear Creek. The entire 1,124 acre ranch property is subject to a 

Conservation Easement owned by The Nature Conservancy.

Tooter and Jo Rogers own and operate Rogers Ranch, which consists of about 2,000 

acres along SA Creek and Dead Horse Creek. The ranch is a cow calf operation, has 

valuable alfalfa meadows and native grass along the creeks. CBM discharge water in SA 

Creek is altering the nature of these ephemeral streams, impacting irrigation rights and 

threatening the alfalfa meadows. 

Clay and Gayla Rowley own the Rowley Ranch along Clear Creek near the confluence 

of the Powder River. The ranch was homesteaded by Clay’s grandfather and is currently 

leased for a cow calf operation. The ranch is dependent upon high quality water from

Clear Creek for irrigation of the alfalfa meadows. There is CBM development planned 

both on and around the ranch. 

Nancy and Robert Sorenson own and operate the Sorenson Ranch at the head of a 

tributary of LX Bar Creek. The ranch consists of a registered Angus seed stock operation 

and over 3,000 acres of dry land hay, grain farming and rangeland. There is extensive 

CBM development on and around the ranch. 

Bill and Marge West have owned and operated the West Ranch for 50 years. This 

13,000-acre ranch, where they grow dry land wheat and raise cattle, was homesteaded by 

Bill’s father. The ranch has hay meadows along Spotted Horse Creek which have been 

severely impacted by CBM discharges which killed trees and vegetation and damaged the 

soil. 

Steve Adami owns and operates Adami Ranch along the Schoonover divide at the head 

of Indian Creek. The ranch supports over 150 head of cattle, and has extensive CBM 

development going in, on and around the ranch. 

The Powder River Basin Resource Council (“Powder River”) was founded in 1973 by 

ranchers and citizens dedicated to ensuring the viability of Wyoming’s agricultural 

heritage and rural lifestyle. Powder River is also dedicated to working for the careful and 

responsible development of Wyoming’s valuable and important mineral resources. The 

organization was instrumental in the passage of reasonable state and federal laws and 

regulations in the mid-seventies that provided for responsible development of coal strip 

mines. Today, Powder River has over 1000 members. Over the past several years, many 

2
of our members have been negatively impacted by coalbed methane development and 

many more will be directly and indirectly affected by the ongoing and expanding 

development of coalbed methane wells in the Powder River Basin. 

The Petitioners and Powder River’s members have historically strived to be 

careful and attentive stewards of the abundant natural resources on their ranches. Over 

generations they have learned that stewardship is necessary for maintaining a sustainable 

agricultural enterprise for the next generation. Every ranch and farm operation is 

threatened by CBM discharge water. The Powder River Basin Resource Council and the 

petitioners are supportive of responsible mineral and energy development in Wyoming, 

and recognize the importance of CBM development in the Powder River Basin – they 

oppose, however, discharge of CBM produced water that unnecessarily and unreasonably 

damages Wyoming’s natural resources and its citizens’ ranch lands and farms. 

Applicants are represented by: 

Kate M. Fox 

Davis & Cannon 

 422 W. 26th St. 

Cheyenne, WY 82001 

 (307)634-3210 

INTRODUCTION 

1. “Beneficial use” of produced water must include a quantity parameter

Appendix H of Water Quality Rules Chapter 2, Permit Regulations for Discharges 

to Wyoming Surface Waters, allows discharge of produced water into the surface waters 

of the state when “[t]he produced water is of good enough quality to be used for wildlife 

or livestock watering or other agricultural use and [is] actually put to such use during 

periods of discharge.” As applied by the DEQ, this means that, if the produced water 

meets a base quality standard (see below), any amount can be discharged into the 

watersheds, ephemeral streams, and rivers of Wyoming, so long as some portion of the 

water is actually put to wildlife or livestock watering or agricultural use. The goal of this 

3
Petition is to amend the regulatory language so that water discharged for “beneficial use” 

is truly used, and not simply flushed down Wyoming’s watersheds. 

CBM production in Wyoming has produced 380,392 acre-feet of water. (1987-

2004). To put it in perspective, Lake DeSmet stores 239,000 acre-feet. It is estimated 

that 95% of the Wyoming CBM resource remains to be developed, along with the 

associated water. At current discharge rates, that would be 7 million acre-feet of water to 

be disposed of. 2 Wyoming CBM production to date is just a fraction of what is to come. 

There is still time to get it right. 

Already, numerous concerns and conflicts from the impact of produced water on 

Wyoming waterways and ranch lands have arisen. Yet DEQ continues to ignore many of 

those impacts and to abdicate its duty under the Environmental Quality Act to preserve

and enhance the water and land of Wyoming.3

 A prime example of that is found in the 

Appendix H loophole, which allows discharge of limitless quantities of water based on an 

assumption that DEQ knows to be incorrect – the assumption that the water will be put to 

 

2

 DRAFT Water Production from Coalbed Methane Development in Wyoming: A 

Summary of Quantity, Quality and Management Options, University of Wyoming 

Ruckelshaus Institute of Environment and Natural Resources, August, 2005, pp. 10, 16. 

[hereinafter “IENR Report.”] Exhibit 2. 

3 Whereas pollution of the air, water and land of this state will imperil 

public health and welfare, create public or private nuisances, be harmful to 

wildlife, fish and aquatic life, and impair domestic, agricultural, industrial, 

recreational and other beneficial uses; it is hereby declared to be the policy 

and purpose of this act to enable the state to prevent, reduce and eliminate 

pollution; to preserve, and enhance the air, water and reclaim the land of 

Wyoming; to plan the development, use, reclamation, preservation and 

enhancement of the air, land and water resources of the state; to preserve

and exercise the primary responsibilities and rights of the state of 

Wyoming; to retain for the state the control over its air, land and water and 

to secure cooperation between agencies of the state, agencies of other

states, interstate agencies, and the federal government in carrying out these 

objectives. 

Wyo. Stat. § 35-11-102. 

4
beneficial use. DEQ attempts to justify its failure by drawing an artificial line between 

water quantity and water quality, and then announcing that it cannot cross that line. The 

water quality and water quantity distinction is not supported in the law, and only serves to 

make DEQ’s regulation of CBM produced water ineffective. The language in Chapter 2, 

Appendix H should be modified to recognize that effective regulation of CBM produced 

water cannot occur without consideration of water quantity, as well as water quality. 

2. Effluent limits must be amended to be protective of stock and wildlife

Appendix H effluent limits currently set for sulfates and total dissolved solids are

too high to meet the basic threshold of protection of stock and wildlife. There are 

currently no limits for barium (although some limits are imposed in permits), and a limit 

for barium should be added to Chapter 2, Appendix H(a)(vii). 

Background

Congress adopted the Clean Water Act (CWA, also known as the Federal Water 

Pollution Control Act Amendments of 1972), with the intent to “restore and maintain the 

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). 

The Act prohibits the discharge of pollutants into the waters of the United States unless

such discharge is in compliance with a permit. National Pollutant Discharge Elimination

System (“NPDES”) permits may be issued by either the EPA or a state agency authorized 

to administer the program. The Wyoming DEQ is authorized to issue WYPDES permits, 

under the standards set forth in the CWA. 

5
Water Quality Rules Chapter 2, Permit Regulations for Discharges to Wyoming 

Surface Waters, sets forth many of the criteria for issuance of a WYPDES permit. The 

“beneficial use” exclusion in Appendix H has its origins in the Environmental Protection

Agency’s (EPA) Effluent Limitation Guidelines (ELGs) for the Oil and Gas Point Source

Category (40 CFR 435). As the EPA and DEQ recognize, “EPA did not consider CBM 

facilities when developing [the ELGs].” 4

 EPA has stated that it does not believe the Oil 

and Gas ELGs are the best method for regulating CBM water, because CBM

“has very different economics and technical considerations, generates different volumes

of produced waters, and has different water-quality constituent characteristics.”5

 The

general rule set forth in 40 CFR 435 is that there be no discharge of water in conjunction 

with gas and oil production. Subpart E of that rule “allows the discharge of produced 

water from facilities west of the 98th meridian for use in agriculture and wildlife 

propagation.” The logic behind this exclusion is apparent – if water is being produced in 

the arid American west that could be put to use for agriculture or wildlife production, 

then its discharge should not be prohibited. DEQ recognizes this rationale in its April 25, 

2005 memo attempting to justify its use of the 40 CFR 435 ELG: “For oil and gas 

discharges, including CBNG permits issued from 1974 through 2000 by Wyoming, it was 

assumed that in the arid west region, the produced water would be used for agricultural or 

wildlife propagation so long as water quality standards and effluent limitations were 

 

4 See 1/5/01 letter from Mike Reed at EPA to Leah Krafft at DEQ. Exhibit 3; Sample 

NPDES permit. Exhibit 4. 5 EPA Guidance for Developing Technology-Based Limits for Coalbed Methane 

Operations: Economic Analysis of the Powder River Basin, February, 2003. Interagency 

Draft Report. 1-4. Because this document is voluminous, it is not attached. It can be 

viewed at http://www.northernplains.org/documents/CBMEPAReport0203.pdf 

6
met.”

6

 That is no longer a valid assumption, and the DEQ must manage CBM discharge 

water by recognizing that it is not generally being used; it is being disposed of. The 

exclusion has become a loophole stretched so far that in application it has lost all relation 

to logic. 

The Appendix H changes to close the loophole are simple.7

 Four words are 

deleted from Appendix H(a)(i) to clarify that discharged water must actually, and not

theoretically, be put to beneficial use. Thus: 

The produced water discharged into surface waters of the state shall 

have use in agriculture or wildlife propagation. The produced water shall be

of good enough quality to be used for wildlife or livestock watering or other

agricultural uses and actually be put to such use. during periods of 

discharge.

Paragraph (d)(i) is revised as follows: 

Where To the extent discharge water is accessible to actually used by

livestock and/or wildlife; meets the effluent limitations as specified in this

appendix; and meets the criteria for the protection of livestock and wildlife as 

specified in Wyoming Water Quality Rules and Regulations Chapter 1, 

Wyoming Surface Water Quality Standards, the discharge will be considered in 

compliance with the requirements of Appendix H (a) (i) of these regulations. 

Paragraph (c)(i), allowing “grandfathering” for some beneficial uses of water, will 

have language imposing a quantity limitation: “This exemption shall be limited to that 

quantity of water that can be demonstrated to have actually been put to beneficial use.” 

Faced with the huge amounts of water being produced with CBM, the Wyoming 

DEQ has allowed the unrestrained production, and waste, of unimaginable quantities of 

Wyoming water, without any adequate evaluation of the impact to, or protection of, the 

 

6 Wyoming Pollutant Discharge Elimination System (WYPDES) Program Basis for 

Technology-Based Effluent Limits in Coal Bed Methane (Natural Gas) WYPDES Permits, 

attached to 4/25/2005 letter from John Corra to Mr. Stephen Tuber, EPA, p. 4. Exhibit 5. 7 Appendix H containing the proposed changes is attached as Ex. 1. 

7
quality of the groundwater,8

 surface water, and the agricultural and livestock production 

that depend upon water. 

When the permit applicant can show that water discharged is of sufficient quality

(the standard is not high and can generally be met) for a cow or antelope to drink, then

the DEQ will not question how much the cows or antelope will actually drink. Huge

quantities of water are then disposed of, that is, flushed down Wyoming’s waterways, in 

the guise of “beneficial use.” The truth is that only a fraction of the CBM water 

discharged is actually used. 

The pretense of “beneficial use” of CBM produced water must be abandoned. 

This is purely water disposal, and its disposal has impacts on the soils, crops and 

waterways of Wyoming that must no longer be ignored by the DEQ. 

REASONS FOR RULE CHANGE

The law

DEQ attempts to justify its failure to regulate CBM produced water by arguing 

that the law does not authorize it to regulate water quantity. It is wrong. 

DEQ’s enabling statute authorizes it, and obligates it, to “prevent, reduce and 

eliminate pollution; to preserve, and enhance the air, water and reclaim the land of 

Wyoming; to plan the development, use, reclamation, preservation and enhancement of 

the air, land and water resources of the state. . .” Wyo. Stat. § 35-11-102. Nothing in the 

statutory language requires DEQ to tie one hand behind its back by ignoring the impacts 

 

8

 The DEQ has recently instituted “policies” for requiring groundwater monitoring, which 

is a recognition of the potential for adverse groundwater impacts. However, these 

“policies” are of questionable efficacy, as they lack the force and effect of law of rules 

promulgated under the WAPA. 

8
to land and water that result of quantity, rather than quality, of discharged water.9

 Rather, 

the language of the statute recognizes the importance of preserving and enhancing air, 

water and land, and implies recognition that they are all interconnected. Wyoming 

Statutes also recognize that water quantity is a parameter of water pollution.10 

The Clean Water Act prohibits discharge of any pollutant from a point source into 

navigable waters of the United States without an NPDES permit. 33 U.S.C. §§ 1311(a), 

1342. The Ninth Circuit Court of Appeals, in Northern Plains Resource Council v. 

Fidelity Exploration and Development Co., 325 F.3d 1155, 1161 (9th Cir. 2003), cert.

denied, 540 U.S. 967 (2003), determined that, “because CBM water is an unwanted 

byproduct of the extraction process, CBM water falls squarely within the ordinary 

meaning of ‘industrial waste.’” For that reason and others, CBM water is a “pollutant” 

under the CWA. The Wyoming DEQ has recognized that CBM byproduct water is a 

pollutant, and has required a WYPDES permit for its discharge. As discussed below, 

DEQ already recognizes the importance of the water quantity parameter to water quality 

 

9

 Some have argued that regulation of quantity by DEQ would infringe upon the Board of 

Control’s constitutional authority to “have the supervision of the waters of the state and 

their appropriation, distribution and diversion. . .” Wyo. Const. art. 8, § 2. Certainly the 

DEQ should defer to water rights administration, and the proposed rule change that 

recognizes environmental impacts result from both quality and quantity of water do not 

change the rule of deference. 

10 "Pollution" means contamination or other alteration of the physical, 

chemical or biological properties of any waters of the state, including 

change in temperature, taste, color, turbidity or odor of the waters or any 

discharge of any acid or toxic material, chemical or chemical compound, 

whether it be liquid, gaseous, solid, radioactive or other substance, 

including wastes, into any waters of the state which creates a nuisance or 

renders any waters harmful, detrimental or injurious to public health, 

safety or welfare, to domestic, commercial, industrial, agricultural, 

recreational or other legitimate beneficial uses, or to livestock, wildlife or 

aquatic life, or which degrades the water for its intended use, or adversely 

affects the environment. 

Wyo. Stat. § 35-11-103(c)(i) 

9
in many contexts. Case law interpreting the Clean Water Act further compels regulatory 

consideration of quantity in conjunction with quality. 

The United States Supreme Court addressed an attempt to draw a line between

water quantity and water quality under the CWA in PUD No. 1 of Jefferson County and 

City of Tacoma, Petitioners v. Washington Department of Ecology, et al. 511 U.S. 

700;114 S. Ct. 1900;128 L. Ed. 2d 716 (1994), and held: 

Petitioners also assert more generally that the Clean Water Act is only

concerned with water "quality," and does not allow the regulation of water 

"quantity." This is an artificial distinction. In many cases, water quantity is 

closely related to water quality; a sufficient lowering of the water quantity 

in a body of water could destroy all of its designated uses, be it for 

drinking water, recreation, navigation or, as here, as a fishery. In any 

event, there is recognition in the Clean Water Act itself that reduced 

stream flow, i.e., diminishment of water quantity, can constitute water

pollution. First, the Act’s definition of pollution as “the man-made or man 

induced alteration of the chemical, physical, biological, and radiological

integrity of water” encompasses the effects of reduced water quantity. 33 

U.S.C. § 1362(19). This broad conception of pollution – one which 

expressly evinces Congress’ concern with the physical and biological 

integrity of water – refutes petitioners’ assertion that the Act draws a sharp 

distinction between the regulation of water “quantity” and water “quality.”

Moreover, §304 of the Act expressly recognizes that water “pollution”

may result from “changes in the movement, flow, or circulation of any 

navigable waters. . .,” 

PUD No. 1, 511 U.S. at 719-20. 

Cases applying the Clean Water Act in the Tenth Circuit (which includes 

Wyoming) have reached the same result. Quivira Mining Co. v. United States EPA, 765 

F.2d 126, 129 (10th Cir. 1985)(quoting United States v. Earth Sciences, Inc., 599 F.2d 

368, 373 (10th Cir. 1979)(“The touchstone of the regulatory scheme is that those needing 

to use the waters for waste distribution must seek and obtain a permit to discharge that 

waste, with the quantity and quality of the discharge regulated.”); Riverside Irrigation

District v. Andrews, 758 F.2d 508, 512 (10th Cir. 1985)(“both the statute and the 

10
regulations authorize the Corps to consider downstream effects of changes in water 

quantity as well as on-site changes in water quality. . .”); Alameda Water & Sanitation

v. Reilly, 930 F.Supp. 486, 491 (D.Colo. 1996)(citing PUD No. 1 in rejecting plaintiff’s 

contention “that in enacting the CWA Congress was concerned only with water quality

impacts, such as pollution, and not effects relating to water quantity. . .”). 

The law on this point is aligned with the facts and with common sense – water 

quantity must be a factor in regulation of water quality. 

2. The “beneficial use” loophole – why quantity matters

 CBM water quality has been of particular concern because it is salty, measured by 

total dissolved solids and specific conductance. Water high in TDS or specific 

conductance will reduce crop production. High salinity in the water results in high 

salinity in the soil, and reduces the ability of most plants to extract water from the soil.

“There is a greater energy cost to the plant to remove water from salt effected soils, and 

plants will typically wilt earlier in the day on salt effected soils, thereby decreasing 

photosynthesis and ultimately plant production. Salinity may also cause micro-nutrient 

deficiencies in crop plants. At very high levels, salinity may cause direct toxicity to

plants.”11 Sodium Adsorption Ratio (SAR) is also a concern, because water high in SAR 

will cause soils to disperse, swell and form crusts, reducing the soil’s ability to drain

water.12 Recent studies tracking soils irrigated with CBM water over a period of years,

 

11 Munn, Larry, Interactions between Coal Bed Methane Product Water and Soils, 

Vegetation, Agriculture and Riparian Systems in the Powder River Basin, Feb. 8, 2002. 

Exhibit 6. 

12 For a report of how CBM water can affect one small draw in Wyoming, see the CBMC 

Coalition Report on Burger Draw, June, 2001. Exhibit 7. 

11
and comparing them to soils not irrigated with CBM water, conclude that CBM water

results in salt buildup in soils to levels that are greater than threshold values for sensitive 

to moderately sensitive crops, and that “trends of increasing sodicity with extended 

periods of irrigation with CBNG water were apparent.”13 DEQ has recognized these 

quality concerns and made attempts (albeit inadequate14) to address them. But if you 

don’t know how much water is being disposed of, you only know half the story. 

- Water of any quality, when applied to the type of soils that are found in the 

Powder River Basin, can mobilize salts from the soils and produce water with

specific conductance and SARs that are damaging to soils and crops. “In a semiarid climate, regular additions of even small increments of water may redistribute

natural salinity on the landscape. . .”15

- Increased flows erode stream beds. 

- Increased flows freeze in winter and cause ice damming and flooding of land with

poor quality water. 

- The quality of water that any given soil/crop can tolerate is directly related to the 

ability to leach excess salts from the root zone.16 Salinity builds up in soil over

 

13 Ganjegunte, G. K., G. F. Vance, and L. A. King. 2005. Soil chemical changes resulting 

from irrigation with water co-produced with coalbed natural gas. Journal of 

Environmental Quality 34:2217-2227. Exhibit 8 (Galley Proof). 14 For example, DEQ permits discharges of CBM water with SARs over 20, justifying this 

by determining that the high EC would maintain adequate infiltration, according to the 

Hanson chart. However, this ignores the fact high SAR in water will result in even 

higher SAR buildup in soils that will ultimately cause degradation in the form of reduced 

infiltration, limited root growth, and reduced gas permeability. 15 Munn, note 10. See also, Ganjegunte, Ex. 8 p. 6, “Increase in SARe values is partially 

due to the accumulation of Na in irrigated soils due to dissolution and mobilization of Na 

salts in soils apart from addition of Na through CBNG water.” 16 The percentage of applied water that passes through the soil is called the 

leaching fraction. The salinity of the irrigation water and the leaching

12
time. To sustain irrigation, irrigators must add additional water above the needs 

of the crop to leach excess salt from the root zone.

17 

- Increased flows can raise local ground water tables and slow infiltration that is 

crucial to leaching salts from soils. 

- Timing of flows, regardless of quality, is important for seedling growth and soil 

leaching. 

- Salt loading is the effect of quality times volume. For example, if a billion 

gallons of water is produced per day, and it contains 2000 ppm salts, then 8,000 

tons of salt per day will be generated. The salt will go either into the soil or down 

the creek, where there will be significant adverse consequences to crops or

aquatic habitat. 

DEQ recognizes the interplay of water quantity and water quality in many 

contexts. Consider, for example, the Mixing Zone and Dilution Allowances

Implementation Policy, which can only be calculated if one of the factors is the mean

daily flow.18 The majority of WYPDES permit applications in the Powder River Basin

 

fraction are the most important factors affecting the salinity of the soil 

water. The salinity of the soil water is important, since the salinity of the 

soil water, rather than the salinity of the irrigation water itself, is the

critical factor resulting in any decrease in crop yield. Continued irrigation 

will result in the salinity of the soil water coming into equilibrium with the 

salinity of the irrigation water. The actual relationship will be dependent

on the average salinity of the irrigation water and the actual leaching

fraction. 

Horpestad, Abe, Water Quality Technical Report, Water Quality Impacts from Coal Bed 

Methane Development in the Powder River Basin, Wyoming and Montana, Dec. 10, 

2001. Exhibit 9. 

17 Munn, Ex. 6. 

18 Wyoming Surface Water Quality Standards, Implementation Policies for 

Antidegradation Mixing Zones Turbidity and Use Attainability Analysis, p. 16, 3rd draft, 

November, 2005. http://deq.state.wy.us./wqd/surfacestandards/Triennial/Policies_3rd.pdf 

13
are submitted with mixing calculations and water budgets. This is because they count on 

natural flows for dilution, and none of those calculations can be made without 

considering the quantity factor. WYPDES permits do in fact contain a limit to the 

quantity of water discharged under the permits. This is because the concentration of a

particular constituent is only one factor in determination of the total load – quantity is

essential to that calculation. DEQ is in the process of implementing a new policy to 

control total salt load in order to meet limits in flows to Montana. The Powder River

Basin sodium management plan allocates total sodium discharges to producers, 

calculated by TDS (quality) times quantity. Here again, DEQ cannot regulate load 

without regulating water quantity. Yet DEQ turns a blind eye to quantity in Chapter 2, 

Appendix H, and in doing so it hamstrings its own ability to effectively regulate CBM 

water. 

EPA has also recognized the various impacts that can result from both quantity 

and quality of CBM water, and advised DEQ that “large quantities of produced water 

discharged to small tributaries with erosive soils and geology can have unanticipated 

adverse impacts on wildlife habitat and/or agriculture.”19 EPA has further explained: 

The many potential environmental impacts from CBM operations 

are diverse. Possible impacts include: reduced flow or loss of domestic 

water wells, mortality and reduced growth and vigor of vegetation,

erosion, soil compaction, and loss of topsoil. One of the major concerns 

associated with CBM production in the Powder River Basin is disposal of 

the produced water. The surface disposal of CBM-produced water may 

result in erosion or damage to drainages and associated vegetation within 

the area. Even though CBM discharge is essentially sediment-free, 

discharge to streams and creeks can increase sediment loading due to 

increased erosion.20

 

19 1/5/01 Reed letter to Krafft, Ex. 3. 

20 EPA Guidance for Developing Technology-Based Limits for Coalbed Methane 

Operations: Economic Analysis of the Powder River Basin, February, 2003. Interagency 

14
The Appendix H beneficial use loophole allows for the disposal of huge quantities 

of CBM water, to the detriment of Wyoming’s soils, rangelands, rivers, and to the 

wildlife and people who live there. This is contrary to the spirit and the letter of the law 

and contrary to sound State policy. Currently the most common CBM water disposal 

methods are impoundments, land application, and direct discharge to surface waters.

Other methods which are less common include injection and treatment and release. 

A. On- and off-channel impoundments

Often surface discharge entails water storage in reservoirs both on and offchannel. Impacts from these include the creation of saline seeps, unauthorized discharges 

into surface waters during overflows, and unauthorized discharges into surface waters

during impoundment failure.21 The University of Wyoming’s Larry Munn has pointed out 

that: 

The effects of lateral seepage and movement of water along faults 

resulting from the dependency upon infiltration impoundments will cause

significant impairment of surface water quality, both locally and for main 

stems such as the Tongue and Powder Rivers. Infiltrating water only

moves straight down if the substrate is uniform; this is clearly not the case 

for sedimentary strata such as the Ft. Union formation. In particular the 

 

Draft Report. 1-5. Because this document is voluminous, it is not attached. It can be 

viewed at http://www.northernplains.org/documents/CBMEPAReport0203.pdf 21 DEQ does not have enough enforcement personnel to police CBM water discharges. 

However, there are a number of documented examples of violations that have been. See, 

e.g.,; Dec. 4, 2002 NOV (WY0046841) for unauthorized discharge of 20,417 gallons of 

wastewater into the Tongue River; Dec. 23, 2002 NOV (Impoundment #24-3082) for the 

unauthorized discharge of 504,000 gallons of wastewater into Badger Creek, a tributary 

of the Tongue River; Oct. 22, 2003 NOV (#WY0049280) for unauthorized discharge of 

wastewater via seeps into tributaries of Coutant Creek and Little Badger Creek, 

tributaries of the Tongue River. A list of NOVs issued by DEQ for CBM violations in 

2004 and 2005 (as of November 21, 2005) is attached as Exhibit 10. This list of course 

does not include undetected violations or violations for which no NOVs were issued. 

15
negative effects of sodium which is generally higher in concentration in 

the northern PRB will be difficult to mitigate.22 

On-channel impoundments capture natural runoff, interfere with the hydrologic 

cycle, and interfere with downstream senior water rights. The primary purpose of 

constructing on-channel reservoirs for storage of CBM water is to take advantage of the 

dilution provided by natural flows – by definition a degradation of the natural flows that 

historically supported wildlife and crop and livestock production. Impoundments rely on 

infiltration to dispose of water, which is then likely to degrade shallow alluvial aquifers. 

The Final Environmental Impact Statement for Montana’s Powder River Basin

recognizes that “soils under impoundments may require extensive reclamation because of 

the accumulation of salts during infiltration of water. The soils structure could be

damaged severely, plant growth would be minimal, and accumulation of salts in the soils

would likely lead to the soil being removed and disposed.”23 (DEQ adopted 

“Implementation guidance” in August, 2005, requiring permit applicants to post a bond 

for reclamation of lands under impoundment. The “guidance” is of doubtful utility, since 

it lacks the force and effect of law that rules promulgated under the Administrative 

Procedures Act have; and further, the bonding guidance addresses only potential damage

to surface soils, and does not address degradation of the shallow aquifers or return flows 

into water sources.) 

 

22 Munn, Larry, Comments on Wyoming Powder River Basin EIS, February 17, 2003. 

Exhibit 11. 

23 Final Statewide Oil and Gas Environmental Impact Statement and Proposed 

Amendment of the Powder River and Billings Resource Management Plans, January, 

2003, 4 -136. Because this document is voluminous, it is not attached. It can be viewed 

at http://www.mt.blm.gov/mcfo/cbm/eis 

16
B. Land Application 

Land application is another surface disposal method favored by industry, which 

also has adverse impacts on the environment. Land applications “risk disruption of 

natural soil water balances with subsequent impacts on soil ecological, physical, chemical 

and hydrological characteristics, all of which strongly influence vegetation communities 

and reclamation potentials.”24 Studies have shown that “long term irrigation resulted in 

accumulation of significant amounts of salt and sodium in the soils. . .” and “exhibited 

decreased macro-porosity and reduced soil hydraulic conductivity.”25 A recent study

which tracked the impacts of CBM water on soils over several years concluded that 

“Results of this study suggest CBNG waters used for irrigation in northwestern PRB, 

Wyoming, are generally unsuitable for direct land application.”26 

C. Surface discharge- impacts to tributaries

Discharges onto the surface and down the existing channels also adversely impact

the environment. In the Powder River Basin, where most of the CBM discharges have 

been occurring, most of the small drainages are ephemeral streams that run only with 

snowmelt or thunderstorms. Ecosystems and ranching operations depend upon the

ephemeral stream system. Grass grows in the channel bottoms for forage; ranchers drive 

their tractors and herd their cattle across the dry stream beds. When the occasional flows 

from snowmelt or thunderstorms do occur, the water overflows (sometimes with the aid 

 

24 King, L.A., Land Application of Coalbed Methane Waters: Water Management 

Strategies and Impacts, Exhibit 12. 25 Bauder, Quality and Characteristics of Saline and Sodic Water Affect Irrigation 

Sustainability. Exhibit 13. 26 Ganjegunte, Ex. 8, p. 10. 

17
of spreader dams) and provides irrigation. The water supplied by the big floods provides

another invaluable service – it penetrates the soil in sufficient quantities and to a

sufficient depth to leach the salt beneath the root zone, so that plants can grow unimpeded 

by salt buildup. This system is disrupted by CBM-augmented flows, in conjunction with 

the damage that occurs as a result of water quality degradation. 

To turn ephemeral streams into perennial, or nearly perennial streams, upsets the 

balance that has supported plant and animal life as well as ranching in northeast 

Wyoming. CBM produced water discharged to the surface creates return flows, which

return to the stream with even higher salinity. Augmented flows cause erosion.27 To

augment the flows of perennial streams, and alter their water quality, further degrades the 

hydrologic system and the wildlife, agriculture and livestock use that have evolved to 

depend upon them. 

D. Impacts to mainstem

When CBM flows reach the mainstems, the Powder River, the Little Powder, and

the Tongue, more adverse impacts can be expected. In a letter to DEQ commenting on a

particular permit, the Wyoming Game & Fish expressed concern about impacts of CBM

water to both the quality and the quantity of fish habitat: 

Change in Water Quality

. . . Changes in the conductivity and sodium absorptium ratio may 

occur as increased flows move sediment from channel bottoms and 

increase erosion of floodplains. Confluence Consulting reported high

salinities and electrical conductivities, possibly due to CBNG water, for 

the Spotted Horse drainage in their recently released report on the Powder

 

27 Wilkerson, G.V., Risk assessment methodology using a regional channel erosion 

potential model, Exhibit 14. 

18
River. This report indicates that CBNG discharges could affect native 

species in the drainage. 

Change in Water Quantity

Native fauna in the Powder River drainage have evolved and 

adapted to a very dynamic hydrograph with high sediment loads. Changes 

in this flow regime (i.e. perennial flows) may seriously impact native 

fauna by altering their use of historical habitats for spawning, rearing, and 

reproduction. Alterations that impact channel morphology is an issue, and 

will have impacts to the aquatic biota due to changes in sediment loads, 

loss of habitat, and possible disruption of migration movements due to

barriers created by culverts and/or headcuts. . . .28 

Augmentation of flows has been shown to deplete macroinvertebrate populations, 

and ultimately lead to the decline in fish populations.29 Species that have evolved under a 

certain hydrograph are likely to be adversely affected when that hydrograph is 

dramatically altered by the addition of CBM water. 

3. What are the alternatives?

There are a number of alternatives to surface discharge of CBM produced water. 

Industry will say the sky is falling, but when gas is selling for more than $9 an mcf,30 that 

cry rings hollow. First of all, there must be reasonable limits to the amount of water 

discharged. The assumption that discharged water is an inevitable consequence of gas 

production is an incorrect assumption that allows regulators and industry to overlook the 

first-line defense to the problems of CBM produced water – that is, reduction or 

elimination of produced water. 

 

28 Wichers, Bill, Wyoming Game & Fish Deputy Director, Sept. 10, 2004 letter to Leah 

Krafft. Exhibit 15. 

29 Gore, James A. , May 14, 2002 letter to Paul Beels of BLM. Exhibit 16. 30 As of November 18, 2005, Enerfax.com reported natural gas prices were $9.05 at 

Opal/Kern River; $9.06 Wyoming Pool; and $11.03 Henry Hub. 

19
Only where there is actual use for the water should surface discharge be

permitted. Actual use can be maximized in some cases by water treatment (such as 

reverse osmosis), which generally reduces salinity and makes the water useable for 

irrigation.31

All of these are being done in Wyoming today, and the technology to do them 

more and more cost-effectively will certainly develop with demand. 

A. Minimize water production

New technologies are being developed to aid in minimizing water produced with 

CBM. They include: 

a. Downhole water/gas separation – a permeable membrane separates water 

from gas, an approach which does not require dewatering of the aquifer. Roughrider 

Water is currently marketing a system that uses microscopic filters to separate methane 

from water, so that very little water is extracted, while gas is produced.

b. Alternative wellbore completion methods – testing for vertical fracturing 

could indicate alternative approaches during water-enhancement that would significantly 

reduce the volume of water discharged. 

c. Raman optical spectrometer tool – a proprietary downhole tool has been 

developed that aids in predicting methane saturation, so that more gas can be produced 

with less water.32 

d. Directional drilling can be effective in reducing water production. 

 

31 See, for example, Fidelity’s Wrench Ranch project (WY0047066, WY0047074, 

WY0051471, and WY0051772) and Williams’ Bowman Flat (WY0051357) and SG Palo 

31 (WY0051594) projects. 

32 IENR Report, Ex. 2 pp. 28-29. See Welldog.com, describing a reservoir analysis 

service that identifies wells “that will produce natural gas with the least amount of 

dewatering.” 

20
B. Reinjection

Wyoming had permitted 308 CBM Class V injection wells as of July 7, 2005. Of 

that total, 60 wells were “active and injecting a combined 14,592,692 barrels/year (1.68 

million gallons per day). This is approximately 3% of the total water produced.”

33 

Reinjection can present challenges, but they are certainly not insurmountable – they are 

only more costly. The proof that reinjection can be cost-effective is in such projects as 

the Anadarko Petroleum plan to pipe water from the Powder River Basin to the Midwest 

area for reinjection.34

C. Water treatment

Water treatment technology is rapidly improving, as are numbers of permit 

applications involving water treatment. To date, most treatment plans are a variation on 

ion exchange, with about 60 cfs permitted to be treated and discharged into the Powder 

River.35 Reverse osmosis is another method currently in use. Sulfur burners are 

beginning to be used to acidify CBM water. Additional land applications, particularly for

irrigation, would be available with treated water that did not have the disadvantage of 

 

33 Corra, John, July 7, 2005 letter to Joe Russell, Montana Board of Environmental 

Review. Exhibit 17. 

34 Coalbed Methane Water Gets New Look, Cheyenne Tribune-Eagle, August 8, 2005. 

Exhibit 18. 

35 Oct. 24, 2005, personal conversation with Jason Thomas, DEQ/WQD. 

21
high salinity and sodium adsorption ratios.36 The City of Gillette has used CBM water to 

replenish its water supply, and Sheridan and Buffalo are contemplating similar uses. 

D. Soil treatment

Addition of gypsum has met with some success in counteracting high sodium 

concentrations from CBM water.37 

E. Other

Various other possible approaches can be seriously considered if the State and

industry are required to do more than pay lip service to the problems of CBM water. 

They include discharge to surface reservoirs such as Keyhole and Lake DeSmet or into 

the Platte River; cooling water for coal-fired electrical plants or other industries such as 

coal liquification; coal slurry pipelines. 

4. Effluent Limits

Limits currently set in Appendix H are intended to be protective for stock and 

wildlife consumption. They are not. Limits for sulfates and total dissolved solids must 

be lowered, and limits for barium must be set to conform with the data establishing limits 

that are protective of stock and wildlife. 

 

36 Pilot projects for irrigation with treated water are already underway. See note 31. 37 Ganjegunte, Ex. 8, p. 10. 

22
A. Sulfates

The current limit for sulfates is 3,000mg/l in any single grab sample. The 

University of Utah Extension service recommends the maximum sulfate level for calves

is less than 500 mg/l; for adult cattle it is 1,000/mg/l.38 Sulfates impart a bitter taste to 

water, which animals can acclimate to, however, high levels of sulfate produce diarrhea 

in cattle. The Wyoming Department of Agriculture Analytical Services report says that 

good quality livestock water should have sulfates of 500 milligrams per liter and that 

sulfates over 1000 mg/l are “unsuitable” for livestock.39 The Wyoming limit should be 

500mg/l. 

B. Total Dissolved Solids

TDS is a measure of salinity, which can have toxic effects on cattle. Animal 

tolerance varies with species, age, water requirement, season, and condition. Salinity 

impacts can vary depending on whether increased salinity is abrupt or gradual, and on the

duration of exposure. Generally, water intake will increase with increased salinity, until 

animals refuse to drink at very high salinity. When water intake decreases, so does feed 

intake. “Sudden changes from good quality livestock water to poor, high salinity

livestock water may prove fatal to the animals.”40

The current standard states: 

 

38 University of Utah Analysis of Water Quality for Livestock, July, 1997. Exhibit 19. 

39 Wyoming Department of Agriculture Analytical Services Explanation of Standard 

Potable “Water Supply Series” of Analyses. Exhibit 20. See also, Ex. 21. 40 Wyo. Dept of Ag, Ex. 20. See also, Ex. 21. 

23
The total dissolved solids content of any produced water discharge shall not 

exceed 5,000 mg/l for total dissolved solid or 7500 umhos/cm for specific 

conductance in any single properly preserved grab sample . . . 

The South Dakota State University Extension service advises that a TDS between 

2,000 and 3,000 mg/l may reduce performance, and over 3,000 mg/l “may reduce 

performance and affect health.”

41 The University of Utah recommends a “fair” TDS 

concentration for cattle at 2000-4000; “good” is 1000-2000.42 The Wyoming limit 

should not exceed 2,000 mg/l. 

Barium 

There is currently no limit for barium. Barium salts “are highly toxic, causing 

severe hypokalemia (reduction of phosphorus in blood.). . . Signs in livestock include 

profuse salivation, sweating, violent peristalsis and convulsions, cardiac arrhythmias,

palpitations, and sometimes paralysis.”43 The University of Utah Extension Service 

reports the U.S. EPA upper limit of Barium for livestock is .2 mg/l.44 Colorado State 

University says anything over .3 mg/l is “unacceptable” for livestock.45 The Wyoming

limit for Barium in drinking water for livestock should be set at .2 mg/l. 

Conclusion

Of course CBM operators prefer surface discharge to other alternatives; it is less 

costly. That is not the issue. Wyoming’s budget surplus should not drive DEQ’s 

 

41 Nixon, Lance, Total Dissolved Solids, Sulfates Pose Risk In Livestock Drinking, South 

Dakota State University, July, 2002. Exhibit 21. 42 Uof U Analysis. Ex. 19. 43 Lewis, Robert, CRC Dictionary of Agricultural Sciences, p. 171 (2005). Exhibit 22. 44 U of U Analysis. Ex. 19.

45 Interpretations of Livestock Water Quality, Colorado State University Cooperative 

Extension. Exhibit 23. 

24
promulgation of rules necessary and legally required to protect the environment, 

Wyoming water, and other traditional land uses such as ranching. CBM production can 

continue to be profitable for producers in Wyoming and can continue to fill the State’s 

coffers. If 95% of CBM in Wyoming remains to be produced, then it is not too late for 

DEQ to do its job, and to insure that CBM production not proceed at the cost of all other 

values, including the protection of water and land entrusted to the Wyoming Department 

of Environmental Quality and the Environmental Quality Council. Responsible 

production requires setting effluent limits that are truly protective of livestock and 

wildlife, and it requires the elimination of the “beneficial use” loophole, so that surface 

discharge of CBM water proceeds with due regard for land and water, wildlife and 

agricultural uses that are required by the Clean Water Act, the Wyoming Environmental 

Quality Act, and thoughtful state policy. 

Petitioners respectfully request that the Environmental Quality Council set this

Petition for Rulemaking for hearing as expeditiously as possible under the Wyoming 

Administrative Procedures Act, receive comments and information, and adopt the 

amended Appendix H to Chapter 2 of the Wyoming Water Quality Rules attached hereto

as Exhibit 1. 

Dated this ____ day of December, 2005. 

 

Kate M. Fox 

Davis & Cannon 

422 W. 26th St. 

P.O. Box 43 

Cheyenne, WY 82003 

(307)634-3210 

25
CERTIFICATE OF SERVICE

I hereby certify that I served, via hand delivery, a true and correct copy of the

foregoing Petition this ____ day of December, 2005, addressed as follows: 

 

Counsel for DEQ

Mike Barrash 

Assistant Attorney General 

 123 Capitol Building 

Cheyenne, WY 82002 

26