### BEFORE THE ENVIRONMEN TAL 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 Wy oming Water Quality Rules, Chapter 2, Permit Regulations for Discharges to Wyom ing Surface Waters to remove the language that allows huge volumes of sa lty CBM water to be discharg ed and disposed of onto the land and into the waters of Wyoming under the guis e 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 gr asses 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 w ith irrigation quality water. The ranch is a cow calf operation and co nsists of several thousand acres of native rangeland with irrigation ri ghts 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 cri tical grazing and calving grounds, and native upland areas. The ranch has been inunda ted 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 Ranc h along Clear Creek. Mitzel Ranch is a cow calf operation, with irriga ted alfalfa m eadows and a comm ercial vegetable garden. Clear Creek is a perennial stream with historica lly high water quality, upon which the ranch and far m operation depends. CBM developm ent has begun in the Clear Creek drainag e , an d significan t further developm ent is planned. Bob and Ca rol LeResche own and operate Clear Creek Ranch and Prariana Farm s along Clear Creek, with irrigated m eadows , irrigate d alfalfa and grass hay fields, a comm erc i al vegetable garden and grazing lands. The ra nch also provides important bird and fish habitat along Clear Creek. The entire 1,124 acre ranch property is subject to a Conservation Easem e nt owned by The Nature C onservancy. Tooter and Jo Rogers own and operate Rogers Ranch, which consists of about 2,000 acres along SA Creek and Dead Horse Cree k. The ranch is a cow calf operation, has valuable alf a lfa m eadows and nativ e grass alon g the creeks. CBM discharge water in SA Creek is altering the nature of these ephem e ral stream s, i m pac ting irrigation rights and threatening the alfalfa meadows. Clay and Gayla Row l e y own the Rowley Ranch along Clear Creek near the confluence of the Powder River. The ranch was hom e st eaded 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 irrig a tio n of the alfalfa m eadows. There is C B M developm ent 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 fa rm ing and rangeland. There is extensive CBM developm ent on and around the ranch. Bill and Ma rge West have owned and operated the W e st Ranch for 50 years. This 13,000-acre ranch, where they grow dry land wh eat and raise cattle, was hom e steaded by Bill’s father. The ranch has hay m eadows along Spotted Horse Creek which have been severely im pacted by C B M discharges which killed trees and vegeta tion and dam a ge d the soil. Steve Adami owns and operates Adam i Ranch al ong the Schoonover divide at the head of Indian Creek. The ranch supports over 150 head of cattle, and has extensive CBM developm ent going in, on and around the ranch.
The Pow d er River Basin Resource Council (“Powder River”) was founded in 1973 by ranchers and citizens ded i cated to ens u ri ng th e via b ility of W yom ing’s agr i cultu ral heritage and rural lif es ty le. Powder River is also dedicated to work ing for the careful and responsible developm ent of W y om ing’s valuab le and im portant m i neral resources. The organization was instrum e ntal in the passage of reasonable state and federal laws and regulations in the m i d-seventie s that provided for responsible developm ent of coal strip m i nes. Today, Powder River has over 1000 m e mb ers. Over the past several years, m a ny

2of our m e mbers have been negatively im pacted by coalbed m e thane developm ent and m a ny more will be d i rec tly and indir ec tly af f

ecte d by the ong oing and ex panding developm ent of coalbed m e thane we lls in the Powder River Basin. The Petitioners and Powder River’s m e mb ers have historical ly strived to be careful and attentive stewards of the abundant natural resources on their ranches. Over generations they have learned that stewardship is necessary f o r m a intaining a susta i n a ble agricultural enterprise for the next generation. E v ery ranch and far m operation is threatened by CBM discharge water. The Powder River Basin Resource Council and the petitioners are supportive of responsible m i neral and energy developm ent in W y om ing, and recognize the im por tance of CBM devel opm ent in the Powder River Basin – they oppose, however, discharge of CBM produced water that unn ecessarily and unreason ably dam a ges Wyom ing’s natural resources and its citizens’ ranch lands and farm s.
Applicants are rep r esen ted by:
Kate M. Fox Davis & Cannon 422 W

. 26 th St. Cheyenne, WY 82001 (307)634-3210

INTRODUCTION
1. “Beneficial use” of produced water must include a quantity param e ter Appendix H of W a ter Quality Rules Chapte r 2, Perm it Regulations for Discharges
to W y om ing Surface W a ters, allows discharg e of produced w a ter into the surface waters of the state when “[t]he produced w a ter is of good enough quality to be used for wildlife or liv estock watering o r other ag ric u ltur a l us e and [is] actually put to such use during periods of discharge.” As applied by the DEQ, this m ean s that, if the produced w a ter

m eets a base quality standard (see below), any amount can be discharged into the watersheds, ephem e ral stream s, and rivers of Wyom ing, so long as som e portion of the water is ac tu ally put to w ildlif e or liv estock wate r i ng or agric u ltur a l use. The goal of this

3Petition is to am end the regulatory language so that water discharged for “beneficial use” is truly used, and not simply fl ushed down W yom ing’s watersheds. CBM production in W yom ing has produced 380,392 acre-feet of water. (1987- 2004). To put it in perspective, Lake DeSm et stores 239,000 acre-feet . It is estim ated that 95% of the W y om ing CBM resource re m a ins to be developed, along with the associa t ed w a ter. At cu rr ent d i scha r g e ra tes, that would be 7 m illion acr e - f eet of wate r to be disposed of. 2 W y om i ng CBM production to date is ju st a fraction of wh at is to com e . There is s t ill tim e to get it righ t. Already, num e rous concerns and conflicts from the i m pact of produced water on Wyom ing waterways and ranch la nds have arisen. Yet DEQ continues to ignore m a ny of those im pacts and to abdicate its duty under the Environm enta l Quality Act to preserve and enhance the water and land of Wyom ing. 3 A prim e example of that is found in the Appendix H loophole, w h ich allows discharg e of lim itless qu antities of water b a sed o n an

assum p tion that DEQ knows to be incorrect – th e assum p tion that the water will be put to

2 DRAF T Water Production from Coalbed Metha n e Develop ment in Wyo m ing: A Summary of Quantity, Q uality and Management Options , University of Wyom ing Ruckelshaus Institute of Environm ent and Natural Resources, August, 2005, pp. 10, 16. [hereinafter “IENR Re port.”] Exhibit 2. 3 W h ereas pollution of the air, wate r and land of this state will im peril public h ealth and welf ar e, cre a te pub lic or private nuisances, be harm ful to wildlife, fish and aquatic life, and imp air dom e s tic, agricultural, industrial, recreational and other benefi cial uses; it is hereby d eclared to be the policy and purpose of this act to enable the state to prevent, reduce and elim inate pollution; to preserve, and enhance th e air, water and reclaim the land of Wyom ing; to plan the developm ent, use, reclam ation, preservation and enhancem ent of the air, land and water resou r ces of the state; to preserv e and exercise the primary responsibil ities and rights of the state of W y om ing; to re tain f o r 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 fe deral governm e nt in carrying out these objectives. Wyo. Stat. § 35-11-102.

4benef i cia l use. DEQ attem p ts to justif y 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

m a ke DEQ’s regulation of CBM produced water ineffective. The langu a g e in Chapter 2, Appendix H should be modified to recognize that effective regula tion of CBM produced water cannot occur without cons ideration of water quantity, as well as w a ter quality.

2. Effluent limits m u st be am ended to be protective of stock and wildlife Appendix H effluent limits cu r r ently set f o r su lf ates and to ta l disso lved s o lids are too high to m eet the basic threshold of pr otection of stock and wildlife. There are currently no lim its for barium (although som e lim its are im posed in perm its), and a lim it for barium s hould be added to Chapter 2, Appendix H(a)(vii).

Background Congress adopted the Clean W a ter Act (C W A , also known as the Federal W a ter Pollution Control Act Am endm ent s of 1972), with the intent to “restore and m a intain the chem ical, physical, and biological integrity of the Na tion’s waters.” 33 U.S.C. § 1251(a). The Act prohibits the discharge of pollutants in to the waters of the United States un les s such discha r g e is in complianc e with a perm it. National Pollutan t Disch a rge Elim ination System (“NPDES”) perm its m a y be issued by ei ther the EP A or a s t ate agency au th orized to adm i nister the program. The W yom ing DE Q is autho r iz e d to issu e W Y PDES perm its, under the standards set forth in the C W A.

5W a ter Quality Rules Chapter 2, Per m it Re gulations for Discharges to Wyom ing Surface W a ters, sets forth m a ny of t h e criteria for issuan ce of a WYPDES perm it. The “beneficial use” ex clus ion in Appen d ix H has its orig ins in the Environ m ental Protection Agency’s (E PA) Ef f l uent Lim itation Guidelin e s ( ELGs) f o r the Oil and Gas Point S ourc e Category (40 CFR 435). As the EPA and DE Q recognize, “EPA did not consider CBM facilities when developing [the ELGs].” 4 EPA has stated tha t it does not believ e the Oil and Gas E L Gs are th e best m e thod for regulating C B M water, because CBM “has very d i fferent econ o m i cs and technical considerations, genera tes different volum e s of produced waters, and has different wa ter-quality constituent characteristics.” 5 T h e general rule set forth in 40 CFR 435 is that there be no disch a rge of water in conjunction with gas and oil production. Subpart E of that rule “allows the discharge of produced water f r om f acilitie s west of the 98 th m e ridian for use in agriculture and wildlife propagation.” The logic behind this exclusion is appa rent – if water is being produced in the arid American west that could be put to use for agricu lture or wildlife production, then its discharge should not be prohibited. DEQ recognizes this rati onale in its April 25,
2005 m e mo attem p ting to justify its use of the 40 CFR 435 ELG: “For oil and gas discharges, including CBNG per m its issued from 1974 through 2000 by Wyom ing, it was

assum e d that in the arid west region, the produ ced water would be used f o r agricultural or wildlife propagation so long as water quality standards and effluent lim itations were

4 See 1/5/01 letter from M i ke Reed at EPA to L eah Krafft at DEQ. Exhibit 3; Sam p le NPDES per m it. Exhibit 4. 5 EPA Guidance for Developing Technology- Based Lim its for Coalbed Methane Operations: Econom ic Analysis of the Powder River Basin, F e bruary, 2003. Interagency Draft Report. 1-4. Because this docum e nt is volum inous, it is not attached. It can be viewed at h ttp ://www.n orthernp la in s.org / do cu m e n t s/CBMEPARep ort02 0 3

. pd f

6me t

. ” 6 That is no longer a va lid assumption, and the DEQ mu st m a nage CBM discharge water by recognizing that it is not generally be ing used; it is being disposed of. The exclusion has becom e a l oophole stretched so far that in application it has lost all relation to logic. The Appendix H changes to close the loophole are sim p le. 7 Four words are deleted from Appendix H(a)(i) to clarify th at discharged water m u st actually, and not theoretically, be put to beneficial use. Thus: The produce d water disc harged into surface waters of the state shall have use in agriculture or wildlif e pr opagation. The produced water shall be of good enough quality t o be use d for wildli fe or livestock wa tering or other agricultural uses and actually be put t o such use. dur i ng peri ods of discharge

. Paragraph (d)(i) is revised as follows: Wh e re To th e exten t discharge water is acces sible to actually used by lives tock an d/or wild lif

e ; m eets the ef f l uent lim itations as sp ecif i ed in th is appendix; an d m eets the criteria for th e protection of livestock and wildlife as specified in W y oming Water Qualit y Rules and Regulat io ns Chapter 1, W y om ing Surface W a ter Quality Stan dards, th e dis c harge will b e conside r ed in com p liance with the requ irem ents of A ppendix H (a) (i) of these regulations. Paragraph (c )(i), allowin g “grandfath e ring” fo r som e beneficial uses of water, will have language im posing a quantity lim itation: “This exem ption shall be lim ited to that quantity of water that can be dem ons trated to have actually been put to beneficial use.” Faced with the huge amounts of water be ing p r o duced with CBM, the Wyom ing DEQ has allowed the unrestrained production, and waste, of unim a gi nable quantities of Wyom ing water, without any adequate evaluati on of the i m pact to, or protection of, the

6 Wyoming Pollutant Discharge Elim inati on System (WYPDES) Program Basis for Technology-Based Efflu ent Limits in Coal Bed Methane (Natural Gas) W Y PDES 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 ch anges is attached as Ex. 1.

7quality of the groundwater, 8 surface water, and the agricult u r al and liv estock production that depend upon water.
W h en the p e rm it applic ant c a n sho w that wate r disch a rged is of suf f i cie n t qua lity (the standard is not high and can generally be m e t) f o r a cow or antelope to drink , then the DEQ will not qu estion how much the cows or antelope will actually drink. Huge quantities of water are then disposed of, th at is, flushed down Wyom ing’s waterways, in the guise o f “beneficial use.” Th e tru t h is that only a fracti on of the CBM water discharged is actually used. The pretense of “beneficial use” of CBM produced water mu st be abandoned. This is purely water disposal, and its di sposal has im pacts on the soils, crops and waterways of W y om ing t h at m u st no longer be ignored by the DEQ.

REASONS FOR RUL E CHANG E The law DEQ attempts to jus tif y its f a ilu re to regula t e CBM produced water b y arguing that the law does not authorize it to regulate water quantity. It is wrong. DEQ’s enabling statute author izes it, and ob liga t es it, to “prevent, reduce and elim inate pollution; to preserve, and enhanc e the air, w a ter and reclaim the land of Wyom ing; to plan the developm ent, use, reclam ation, preservation and enhancem ent of the air, land and water resources of the state. . .” W yo. Stat. § 35-11-102. Nothing in the statutory language requires DEQ to tie one hand behind it s back by ignoring the im pacts

8 The DEQ has recently institu ted “p olicies” for requiring gro undwater monitoring, which is a recognition of the potent ial for adverse groundwater im pacts. However, thes e “policies” are of questio nable efficacy, as they lack the force and effect of law of rules prom ulgated under the WAPA.

8to land and water that r e sult of quantity, rather th an quality, o f discharged water. 9 R a th er, the language of the statute recognizes the im portance of preserving and enhancing air, water and land, and implies reco gnition th at they are all interconn ected. W yom ing Statutes also recognize that water quantity is a pa ram e ter of water pollution. 10 The Clean Water Act prohibits discharge of any pollutant from a point source into navigable waters of the United States wit hout an NPDES perm it. 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 (9 th Cir. 2003), cert. denied , 540 U.S. 967 ( 2003), determ ined that, “because CBM water is an unwanted byproduct of the extraction process, CBM wate r falls squarely w ithin the ordinary

m eaning of ‘industrial waste.’” For that reason and others , CBM water is a “pollutant” under the CWA. The Wyom ing DEQ has r ecognized that CBM bypr oduct water is a pollutant, and has required a W Y PDES per m it for its discharge. As discussed below, DEQ already recognizes the im portance of the water quantity param e ter to water quality

9 Som e have argued that regulation of quant ity by DEQ would infri nge upon the Board of Control’s co nstitu tion a l author ity to “have the su pervis ion of the wate rs o f the state an d their appropriation, distribution and diversion. . .” W yo. Const. art. 8, § 2. Certainly the DEQ should defer to water rights adm i nistra tion, and the proposed rule change that recognizes environm ental im pacts result from both quality and quantity of water do not change the rule of deference. 10 "Pollution " m eans contam ination or other alteration of the physical, chem ical or biological properties of any waters of the state, including change in temperature, taste, colo r, turbidity or odor of the waters or any discharge of any acid or toxic m a teri al, chem ical or chem ical com pound, whether it be liquid, gaseous, solid, radioactive or other substance, includ ing w a stes, in to a ny waters of the sta t e w h ich c r ea tes a nu isance or renders any waters h a r m f u l, detrim ental or injurious to public he alth, safety or welfare, to dom estic, co mmercial, industrial, agricultural, recreational or other legitim ate benefici a l uses, o rto lives toc k, wildlif e or aquatic life, or which degr ades the water f o r

its in tended use, or adversely affects the environm ent. Wyo. Stat. § 35-11-103(c)(i)

9in m a ny contexts. Case law inte rpr e ting th e Clean W a ter Act further compels regulatory consider atio n of quantity in conjunc tion with quality. The United States Suprem e Court addresse d an attem p t to draw a line between water quantity and water quality und er the CW A in PUD No. 1 of Jefferson County and City of Tacom a , Petitio ners v. W a shington Departm e nt 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 W a ter Act is o n ly concerned with water "quality," and does not allow the regulation of water "quantity." This is an artificial distin ction. In m a ny cases, water quantity is close l y re la ted to water quality; a su fficient 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, ther e is recogn ition in the Clean W a ter Act its elf that redu c e d stream f

l ow, i.e., dim i nishm e nt of water quantity, can con s titu te wate r pollution. F i rst, the Act’s definition of pollution as “the m a n-m a de or m a n induced alteration of the chem ical, phys ical, biological, and radiological integrity of water” encompasses the effects of r e duced water quantity. 33 U.S.C. § 1362(19). This broad c onception of pollution – one which expressly evinces Congress’ concern with the physical and biological integ r ity of water – ref u tes petitione rs’ ass e r tion that th e Act draws a sha r p distin ction b e tween th e r e gulation of wa ter “qu a n tity ” and wa ter “quality. ” Moreover, §304 of the Act expressly recognizes that water “pollution” m a y result from “changes in the move m e nt, fl ow, or circulation of any navigable waters. . .,” PUD No. 1 , 511 U.S. at 719-20. Cases applying the Clean W a ter Act in the Tenth Circuit (which includes Wyom ing) have reach ed the sam e r e sult. Quivira Mining C o. v. United States EPA , 765 F.2d 126, 129 (10 th Cir. 1985)(quoting United States v. Ea rth Sciences, Inc. , 599 F.2d 368, 373 (10 th Cir. 1979)(“The touchstone of the re gulatory schem e is that those needing to use the waters for waste distribution m u st seek and obtain a perm it to discharge that waste, with the quantity and quality of the discharge regulated.”); Riverside Irrig a tion District v. Andrews , 758 F.2d 508, 512 (10 th Cir. 1985)(“both th e statute and the

10regulations authorize the Corp s to consider do wnstream effects of changes in water quantity as well as on-s ite chang e s in water quality . . .”); Alam eda W a t e r & 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 C ongress was concerned only with water quality
im pacts, such as pollution, and not effects relating to water q u antity . . .”). The law on this po int is aligned with the facts and with co mmon sense – water quantity m u st be a factor in regulation of water quality.

2. The “beneficial use” loophole – why quantity m a tters CBM water quality has been of particular concer n because it is sa lty, m easured by total dissolved solids and specific conduc tance. W a ter high in TDS or specific conductance will reduce crop p r od uction. High salinity in the water resu lts in high salin ity in the soil, and reduces the ability of most plants to extr act wa ter f r om the soil. “There is a greater energy cost to th e plan t to r e move water from salt effected soils, and plants will typica lly wilt ea rl ier in the day on salt ef f

e ct ed soils, thereby decreasing photosynthesis and ultim a tely plant production. Salinity may also cause m i cro-nutrient deficiencies in crop plants. At very high le vels, salin ity m a y cause direc t toxicity to plants.” 11 Sodium Adsor p tion Ratio (SAR) is al so a concern, because water high in S A R will c a use s o ils to disp erse, swe ll and f o rm crusts, r e ducing the so il’ s ability to dra i n
water. 12 Recent stud ies tracking so ils 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 Sy stems in the Powder River Basin , Feb. 8, 2002. Exhibit 6. 12 For a report of how CBM water can affect one sm all draw in W y om ing, see the CB MC Coalition Report on Burger Draw, June, 2001. Exhibit 7.

11and com p aring them to soils not ir rigated with CBM water, conclud e that CBM wate r results in salt buildup in soils to levels that are greater than threshold values for sensitive

to m oderate ly sens itive crops, and that “tre nd s of increas ing sodicity with ex ten d ed periods of irrigation with CBNG water were apparent.” 13 DEQ has recognized these quality conc erns and made attem p ts (albe it ina d equate 14 ) to address them. But if you don’t know ho w much water is being disposed of, you only know half the story.

- Water of any quality, when applied to th e type of soils that are found in the Powder River Basin, can m obilize salts f r om the soils and produce water with specific con ductance an d SARs that are da m a ging to soils and crops. “In a sem i

arid clim ate, regular add itions of even sm all incr em ents of water m a y redistr i bute

natura l sa lin ity on th e la ndscape. . .” 15

- Increased flows erode stream beds.

- Increased flows freeze in winter and cau se ice damming and flooding of l a nd with poor quality water.

- The quality of water that any given soil/crop c a n tole rate is direc tly rela ted to the ability to le ach excess s a lts f r om the root zone. 16 Salinity builds up in soil ove r

13 Ganjegunte, G. K., G. F. Vance, and L. A. King. 2005. Soil chemical changes resulting from irrigation with water co-pr oduced with coalbed natural gas. Journal of Environm ental Quality 34:2217-2227. Exhibit 8 (Galley Proof). 14 For exam ple, DEQ perm its discharges of CBM water with SARs over 20, justifying this by determ ining that the high EC would m a inta in adequate infiltration, according to the Hanson chart. However, this ignores the f act hig h SAR in water will res u lt in even higher SAR buildup in s o ils th at will ultim atel y cause degrad ation in the f o rm of reduced infiltration, lim ited root growt h, and reduced gas perm eability

. 15 Munn, note 10. See also , Ganjegunte, Ex. 8 p. 6, “Increase in SAR e values is par tia lly due to the accum u lation of Na in irrigated so ils due to dissolution and m obilization of Na salts in soils apart from addi tion of Na through CBNG water.” 16 The percentage of applied water that passes through the soil is called the leach ing fraction. The salin ity of the irrig a tion water and the leach ing

12tim e. To sustain irrigati on, irrigators m u st add addi tional w a ter above the needs of the crop to leach ex cess salt from the roo t zon e . 17

- Increased flows can raise local gro und wate r tables and s l ow infiltration that is crucial to le aching sa lts f r om soils.

- Tim i ng of fl ows, regardless of quality, is im portant for seedling growth and soil leach ing.

- Salt loading is the ef f

ect of quality tim es volum e. For exam ple, if a billion gallons of water is prod uced per day, and it contains 2000 ppm salts, then 8,000 tons of salt per day will be genera ted

. The salt will go eithe r into the so il or down the c r eek, where the r e will b e signif i can t ad verse con s e quences to crops or aquatic habitat. DEQ recognizes the interp lay of wate r quantity and w a te r quality in m a ny contexts. Consider, for example, th e Mixing Zone and Di lution Allo wances Im ple m entation Policy, which can only be calc u l ated if one of the factors is the mean daily flow. 18 The m a jority of WYPDES perm it a pp lica tions in the Powder River Basin

f r action a r e the m o st important f a ctors af f

ecting the sa lin ity of the s o il water. The salin ity of the soil wate r is im portant, since the salinity of the soil water, rathe rthan the s a lin ity of the irrigation wate r itse lf , is the critical facto rresulting in any decrea se in crop yield. Continued irrigation will resu lt in the salin ity of the soil wa ter com i ng into equilibr i um with the salin ity of the irr i gation water. The actual r e la tionship will be dependen t on the average salinity of the irri gation wate r and the actual leach ing fraction. Horpestad, Abe, Water Quality Tec hnical Repo rt, Wate r 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 W y om ing Surface W a ter Quality Standards, Im plem entation Policies for Antidegradation Mixing Zones Turbidity a nd Use Attainability Analysis, p. 16, 3 rd draft, Nove m b er, 2005. http://deq.state.wy.us./ wqd/surfacestanda rds/Triennial/Policies_3rd.pdf

13are subm itted with m i xing calculations and wate r budgets. This is because they cou n t on natural flows for dilution, and none of t hose calculations can be m a de without considering the quantity factor. WYPDES perm its do in fact contain a lim it to the quantity of water discharged under the perm its. This is because th e concentration of a particula rc onstitu ent is only one f actor in d e term ination of the to tal load – quan tity is essential to that calculation. DEQ is in the process of im plem enting a new policy to

contro l to tal salt load in order to m eet lim its in f l ows to M ontana. Th e Powder Rive r Basin sodium m a nage m e nt plan allocates total sodium discharges to producers, calculated by TDS (quality) tim es quantity. Here again, DEQ cannot regulate load without regulating water quantit y. Yet DEQ turns a blind eye to quantity in Chapter 2, Appendix H, and in doing so it ham s trings its own ability to ef f

ective l y regula t e C B M

water. EPA has also recognized the various imp acts that can result from both quantity and quality of CBM wa ter, and adv i sed DEQ that “large quantities of produced water discharged to sm all tributar ies with erosive soils and ge ology can have unanticipated adverse im pacts on wildlife habitat and/or agriculture.” 19 EPA has further explained: The m a ny potential environm enta l impacts from CBM operations are diverse. Possible impacts include: reduced flow or loss of dom e s tic water wells , m o rtality and reduced growth and vigor of vegetatio n, erosion, soil com p action, and loss of t opsoil. 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 m a y result in erosion or damage to drai n a ges and ass o ciated vegetation with in the area. Even though CBM discharg e is essentially sedim e nt-free, discharg e to stream s and creeks can increase sedim e nt loading due to increased erosion. 20

19 1/5/01 Reed letter to Krafft, Ex. 3. 20 EPA Guida n ce for Developing Technol ogy-Based Lim its for Coalbed Methane Operations: Econom ic Analysis of the Powder River Basin, F e bruary, 2003. Interagency

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

CBM water, to the detrim ent of W y om in g’s soils, rangelands, rivers, and to the wildlif e and people who live ther e. This is contr a ry to the sp irit and the lette r of the law and contrary to sound State policy. Curre ntly the m o st c o mm on CBM water disposal

m e thods are im poundments, land application, a nd direct discharg e to surface waters. Other m e thods which are less comm on include injection and treatm e nt and release. A. On- and off-channel impoundments Often surface discharg e entails water s t orag e in reservo i rs both on and offchannel. Im pacts from t h ese include the crea tion of saline se eps, una uthorized discharges into surface waters during overflows, and una u t horized dis c harges into surface waters during im poundm e nt failure. 21 The Uni v ersity of Wyom ing’ s Larry Munn has pointed out that: The effects of lateral seepage a nd move m e nt of water along faults resulting fro m the dependency upon infiltration impoundm e nts will cause significan t impairm ent of surface water qu ality, both loc a lly and for m a in stem s such as th e Tong ue and Pow d er Rivers. Infi ltra ting water only moves straight down if the substrate is uniform ; this is clearly not th e case for sedim e ntary strata such as the F t . Union form ation. In particular the

Draft Report. 1-5. Because this docum e nt is volum inous, it is not attached. It can be viewed at h ttp ://www.n orthernp la in s.org / do cu m e n t s/CBMEPARep ort02 0 3

. pd f 21 DEQ does not have enough enforcem ent pe rsonnel to police CBM water discharges. However, there are a number of docum ented exam ples of violations th at have been. See, e.g.,; Dec. 4, 2002 NOV (WY004684 1) for unaut horized discharge of 20,417 gallons of wastewater into the Tongue River; Dec. 23, 2002 NOV (I m p o und m e nt #24-3082) for the unauthorized discharge of 504,000 gallons of wa stewater into Badger Creek, a tributary of the Tongue River; Oct. 22, 2003 NOV (# WY0049280) for unauthorized discharge of wastewater via seeps into tribu t aries of Coutant Creek and L ittle Badger Creek, tributaries of the Tongue River. A list of NOVs i ssued by DEQ for CBM violations in 2004 and 2005 (as of Novem b er 21, 2005) is attach ed as Exhibit 10. This list of course does not include undetected violations or vi olations for which no NOVs were issued.

15negative effects of sodium which is gener a lly higher in co ncentr ation in the nor thern PRB will be dif f i cult to m itigate. 22
On-channel im poundm e nts capture natural r unoff, interfere with the hydrologic cycle, and interfere with downstream seni or water rights. The prim ary purpose of constructing on-channel reservoirs for storage of CBM water is to take advantage of the dilution pro v ided by natural f l ows – by def i nitio n a degradation of the natura l f l ows that historically supported w ildlife and crop a nd livestock production. Im poundm e nts rely on infiltration to dispose of water, which is then likely to degrade shallow alluvial aquifers. The Final E nvironm ental Im pact Statem ent for Montana’s Powder River Basin recognizes that “so i ls un der im poundm ents m a y require exten s ive reclam a tion b ecause of the a ccum u lation of salts dur ing in f iltra tion of water. Th e soils stru cture could be dam a ged severely, plant growth would be m i ni m a l, and acc um ulation o f salts in the soils would likely lead to the soil being rem oved and disposed.” 23 (DEQ adopted
“Im p le m e ntation gu idan ce” in Augu st, 2005, re quiring p e rm it applican ts to po st a bond for reclam ation of lands under im poundm e nt. The “guidance” is of doubtful utility, since it lacks the force and effect of law that rules prom ulgated under the Adm i nistrative Procedures Act have; and further, the bonding guidance addresses only potential dam a ge to surface s o ils, and do es not address degradati on of the shallow aquife rs or return flows into water sources.)

22 Munn, Larry, Comment s on Wyoming Powder River Basin EIS, February 17, 2003. Exhibit 11. 23 Final Statewide Oil and Gas Environm ental Im pact Statement and Prop osed Am endm ent of the Powder River and Billing s Resource Man a gem e nt Plans, January, 2003, 4 -136. Because th is docum ent is volum inous, it is not attach ed. It can be viewed at ht t p : / / www . m t

. blm

. gov/ m c fo/ c bm / e i s

16B. Land Application Land application is ano t her surface dis posal m e thod favored by industry, which also has adverse im pacts on the environm ent. Land applications “risk disruption of

natura l so il water ba lanc es with subsequent im pa cts on soil ec ological, physical, chem ical and hydrolo g ical characteristi cs, all of which strongly in fluence vegetation communities and reclam ation potentials.” 24 Studies have shown that “l ong term irrigation resulted in

accum u latio n of significant am ounts of salt and sodium in t h e soils. . .” and “exhibited decreased m acro-porosity and re duced soil hydraulic conductivity.” 25 A recent stud y which tracked the im pa cts of CBM water on soils over several years concluded that “Results of this study suggest CBNG waters used for irrigation in northwestern P R B, Wyom ing, a r e generally unsuitable for direct land application.” 26

C. Surface d i sc harge- impa cts to tribu t a r ies Discharges onto the surf ace and down the ex is tin g channels also adversely im pact the environ m ent. In the Powder River Basi n, where m o st of the CBM discharges have been occurring, m o st of the sm all drainages are ephem e ral stream s that run only with

snowm e lt or thunderstorm s. Ecosystem s and ranching operations depend upon the ephem e ral stream system. Grass grows in th e channel bottom s for forage; ranchers drive their tractors and herd th eir cattle across the dry s t ream beds. W h en the occasion a l flo w s from snowm e lt or thunderstorm s do occur, th e water overf lows (som etim es with the aid

24 King, L.A., Land Application of Coalbed Me thane Waters: Water Management Strategies and Impacts, Exhibit 12. 25 Bauder, Quality and Characteristics of Salin e and Sodic Water A ffect Irrigation Sustainability . Exhibit 13. 26 Ganjegunte, Ex. 8, p. 10.

17of spreader dam s ) and provides irrigation. The water supplied by the big floods provides another inv a luable se rv ice – it pe netra t es the soil in suf f i cient quan tities and to a sufficient depth to leach the salt beneath the ro ot zone, so that plants can grow unim p e d ed by salt buildup. This system is disrupted by CBM-augm ented flows, in conjunction with the dam a ge that occurs as a re sult of water qua lity degradation. To turn eph e m e ral stre a m s into pere nnial, or nearly perennial stream s, upsets the balance that has supported plant and anim al life as well as ra nching in northeast Wyom ing. CBM produced water discharged to the surface creates re turn flows, which

return to th e stream wi th even h i g h er salinity. Augm ented flows cause erosion. 27 T o
augm ent the flows of perennial stream s, and alte r their water quality, further degrades the hydrologic system and the wildlife, agriculture and livestock use th at have evolved to depend upon them

.

D. Impacts to mainstem When CBM flows reach the m a instem s, the Powder River, th e Little Powder, an d the Tongue, more adverse im pacts can be exp ected. In a letter to DEQ commenting on a particula rpe rm it, the W y om ing Gam e & Fish expressed co ncern a bout im pacts of CBM water to bo th the quality and the qua ntity of f

i sh habita t: Change in Water Quality . . . Changes in the conductivity and sodium absorptium ratio m a y occur as in creas ed flows m ove se dim e nt from channel bottom s and increase ero s ion of floodplains. Confluence Consulting reported h i gh salinities and elec trical conductivities, possibl y due to CBNG water, for the Spotted Horse drain a ge in their recen tly released report on the Powd er

27 W ilkerson, G.V., Risk assessment m e thodology us ing a regional channel erosion potential model , Exhibit 14.

18River. This report ind i cates that CBNG discharges could affect native species in th e drain a ge. Change in W a ter Quantity Native faun a in th e P o wder Ri ver drainage have evolved and adapted to a very dynam i c hydrograph with high sedim e nt loads. Changes in this flow regim e (i.e. perennia l flows) m a y seriously impact native fauna by altering their use of histori cal habitats for sp awning, rearing, and reproduction. Alterations that impact channel morphology is an issue, and will hav e impacts to th e aquatic b i ota due to c h anges in se dim e nt loads, loss of habitat, and possible disrup tion of m i gration m ovem e nts due t o barriers created by culv erts and/or headcuts. . . . 28

Augm entation of flows has been shown to deplete m acroinvertebrate populations, and ultim ately lead to th e declin e in fish populations. 29 Species that have evolved under a certain hydrograph are likely to be adversely affected when that hydrograph is dram atically altered by the addition of CBM water.

3. What are the alternatives ? There are a num b er of alternatives to surface d i scharge of CBM produced water. Industry will say th e sky is falling, b u t when gas is selling for m o re than $9 an m c f, 30 th at cry rings hollow. F i rst of a ll, there m u st be reasonable lim its to the am ount of water discharged. The assumption that discharged wa ter is an ine v itab l e consequence of gas production is an incorrect assum p tion that a llow s regulators and industry to overlook the
f i rst- line de f e nse to th e pr oblem s of CBM produced w a te r – that is, reduction or elim ination of produced water.

28 W i chers, Bill, W y om ing Ga m e & Fish De puty Director, Sept. 10, 2004 letter to Leah Krafft. Exhibit 15. 29 Gore, Jam e s A. , May 14, 2002 letter to Paul Beels of BLM. Exhibit 16. 30 As of Nove mber 18, 2005, Enerfax.com repor ted natural gas prices were $9.05 at Opal/Kern River; $9.06 W y om i ng Pool; and $11.03 Henry Hub.

19Only where the r e is actual use for th e water shou ld s u rface disc harge b e
perm itted. Actual use can be m a xim i zed in s o m e cases by water tr eatm ent (su c h as

reverse osm o sis), which generally reduces s a lin ity and m a kes the water use a ble f o r irrigation. 31 All of these are being done in W y om ing today, and the technology to do them more and more cost-effectively will certainly develop with dem a nd.
A. Minimize water production New technologies are bei ng developed to aid in m i ni m i zing water produced with CBM. They include:

a. Downhole water/gas separation – a perm eable m e mbrane separates water from gas, a n approach which does not requi re dewatering of the aquifer. Roughrider Water is currently m a rketing a system that uses m i croscopic filters to separate m e thane from water, so that very little wate r is extracted, while gas is produced. b. Alternative wellbore completion met hods – testing for vertical fracturing could indicate alternative approaches during water-enhancem e nt that would significantly reduce the volum e of wa ter discharged.

c. Ra m a n optical spectrom eter tool – a proprietary downhole tool has been developed that aids in predicting m e thane sa turation, so that m o re gas can be produced with less wa ter. 32
d. Directional drilling can be eff ective in reducing water production.

31 See, for ex am ple, Fidelity’s W r ench Ranch project (W Y0047066, W Y 0047074, WY0051471, and W Y 0051772) and W illiam s ’ Bowm an Fl at (W Y0051357) 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 pr oduce natural gas with the least amount of dewatering.”

20B. Reinjec tion Wyom ing had perm itted 308 CBM Class V in jection wells as of July 7, 2005. Of that total, 6 0 wells were “active an d in jecting a com b ined 14,592,692 barrels/y ear (1.68

m illion gallons per day ) . This is approxi m a tely 3% of the total water p r oduced. ” 33 Reinjection can presen t challenges, but they are certa inly n o t insurm ountable – the y are only m o re costly. The proof that reinjection ca n be cost-effective is in such projects as the Anadark o Petroleum plan to pip e water from the Powder River Basin to the Midwest area for rein jection. 34

C. Water trea tment Water treatm ent technology is rapidl y im proving, as are num bers of perm it applications involving water trea tment. To date, m o st treatm ent plans are a variation on ion exchang e , with about 60 cfs perm itted to be treated and discharged into the Powder River. 35 Reverse osm o sis is another m e thod cu rrently in use. Sulfur burners are beginning to be used to acidify CBM water. Additiona l land a pplica ti ons, particularly for irrigation, w ould 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 Environm ental 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 Thom as, DEQ/ W Q D.

21high salinity and sodium adsorption ratios. 36 The City of Gille tte h a s used CBM water to replenish its water supply, and Sheridan and Buffalo are contem plating sim ilar uses.

D. Soil tr eatme n t Addition of gypsum ha s m e t with som e success in coun teracting high sodium concentratio ns from CBM water. 37

E. Other Various other possible approaches can be se rio u sly consid ered if the State an d industry are required to do more than pay lip service to the probl em s of CBM water. They include discharge to surface reservoirs such as Keyhole and La ke DeSm et or into the Platte River; coo ling water for coal-fired electrical p l ants or ot her industries such as coal liquification ; coal slurry pipelines.

4. Effluent Lim its

Lim its curre ntly s e t in Appendix H are intended to be protective for stock and wildlife consum ption. They are not. Lim its for sulfates and total dissolved solids must be lowered, and lim its for barium m u st be set to c onf orm with the data establish i ng lim its that are protective of stock and wildlife.

36 Pilot projects for irrigati on with treated water are al ready underway. See note 31. 37 Ganjegunte, Ex. 8, p. 10.

22A. Sulfates

The current lim it for sulfates is 3,000 m g /l in any single grab sam p le. The University o f Utah Extension se rvic e recomm ends the m a ximum sulfate level for calves is less than 500 m g /l; for adult cattle it is 1,000 /m g/l. 38 Sulfates im part a bitter taste to water, which anim als can acclim ate to, however , high levels of su lfate produce d i arrhea in cattle. The W y om ing Departm e nt of Agricu ltur e Analytical Serv ice s report say s that good quality livesto ck water should have sulfat es of 500 m illigram s per liter an d that sulfates over 1000 m g /l are “unsuitable” for livestock. 39 The W y om ing l i m it should be
500m g /l.

B. Total Dis s olved So lid s
TDS is a measure of salinity, whic h can have toxic ef f

ects on cattle. Anim al tolerance varies with sp ecies, age, water requirem e nt, seas on, and con d ition. Salinity
im pacts can vary depending on whether increased salin ity is abrupt or g r adual, and o n the duration of exposure. Generally, water inta ke will increas e with increased salin ity , until anim als refuse to drink at very high salinity. When water intake decreases, so does feed intake. “Sudden changes from good quality livesto ck water to poor, high salinity lives tock wa ter m a y prove f a tal to the anim als.” 40

The curren t standard states:

38 University of Utah Ana l ysis of W a ter Quality for Livestock, July, 1997. Exhibit 19. 39 W y oming Departm e nt of Agriculture Analyt ical Services E xplanation of Standard Potable “W ater Supply S e ries” of Analyses. Exhibit 20. See a l so , Ex. 21. 40 W yo. Dept of Ag, Ex. 20. See also , Ex. 21.

23The tota l dissolved so lids content of any produced water discharge shall not exceed 5,00 0 m g /l for total d i sso lved so lid or 7500 u m hos/cm for specific conductance in any single properly preserved grab sam p le . . .

The South Dakota Sta t e Univers ity Extension s e rvic e adv i s e s tha t a TDS between 2,000 and 3,000 m g /l m a y reduce perform a nce, and over 3,000 mg/l “m ay reduce perform a nce and affect health. ” 41 The Univers ity of Utah recommends a “fair” TDS concentration for cattle at 2000-4000; “good” is 1000-2000. 42 The W y om ing lim it should not exceed 2,000 mg/l.

Barium

There is currently no lim it for barium . Ba rium salts “are highly toxic, causing severe hypokalem i a (reduction of phosphorus in blood.). . . Si gns in livestock include profuse salivation, sweating, violent peristal sis and convulsions, cardiac arrhythm ias , palpitations, and som e tim es paralysis.” 43 The Univers ity of Utah Extension Serv ice reports the U.S. EPA upper lim it of Barium for livestock is .2 m g /l. 44 Colorado State University says anything over .3 mg/l is “unacceptable” for livestock. 45 T h e W y o m i n g lim it for Barium in drinking water for liv estock should be set at .2 m g /l.

Conclusion Of course CBM operato rs prefer su rface di scharge to other alte rnatives ; it is less costly. That is not the issue. Wyom ing’s budget surp lus should not drive DEQ’s

41 Nixon, Lance, Total Dissolved So lids, Sulfates Pose Risk In Livesto ck Drinking , South Dakota State University, Ju ly, 2002. Exhibit 21. 42 Uof U Ana l ysis. Ex. 19. 43 Lewis, Robert, CRC Dictionary of Agricult ural Sciences, p. 171 (2005). Exhibit 22. 44 U of U Analysis. Ex. 19. 45 Interpretations of Li ves tock Water Quality , Colorado State U n iversity Cooperative Extension. Exhibit 23.

24prom ulgation of rules necessary and legall y required to protect the environm ent, Wyom ing water, and other traditional land uses such as ranching. CBM production can continue to be profitab l e for producers in W yom ing and can continue to fill the S t ate’s coffers. If 95% of CBM in W y oming rem a ins to be produced, then it is not too late for DEQ to do its job, and to insure that CBM pr od uction not p r oceed at th e cos t of all other values, inclu d ing the p r o t ecti on of water and land entruste d to the W y oming Departm e nt of Environm ental Qua lity and th e Environ m ental Qua lity Council. Responsible production requires setting effluent lim its th at are truly protective of livestock and wildlife, and it requ ires the elim ination of the “benef icial use” loophole, so that surface discharg e of CBM water proceeds with due regard for land and water, wildlife and agricu ltu ral uses th at are required by the Clean Water Act, the W y om ing Environmental Quality Act, and thoughtful state po licy. Petitioners respectfully request that the Environm ental Quality Council set this Petition f o r

Rulem a king f o r hearin g as e xpeditiously as possible under the W yom ing Adm i nistrative Procedures Act, receive comm ents and inform ation, and adopt the

am ended Appendix H to Chapter 2 of the W y om ing W a ter Quality Rules attached he reto as Exhibit 1.
Dated this _ ___ day of Decem ber, 2005.

Kate M. Fox Davis & Cannon 422 W

. 26 th St. P.O. Box 43 Cheyenne, WY 82003 (307)634-3210

25CERTIFICATE OF SERVICE I hereby certify that I served, via hand delivery, a true and correct copy of the foregoing Petition th is _ ___ day of Decem ber, 2005, addressed as follows:

Counsel for DEQ Mike Barrash Assista n t Att o rne y Gener a l 123 Capitol Building Cheyenne, WY 82002

26