Judge backs water quality standards

2007-10-19T23:00:00Z Judge backs water quality standardsCLAIR JOHNSON Of The Gazette Staff The Billings Gazette
October 19, 2007 11:00 pm  • 

A state district judge has upheld Montana's water quality standards designed to protect rivers from salty water discharged in coalbed methane operations.

Judge Blair Jones in a ruling Wednesday said the Montana Board of Environmental Review and the Department of Environmental Quality acted properly in adopting numeric water quality standards and amending the state's policy protecting high-quality water from salty water associated with the drilling.

The agency "adequately considered all of the relevant information or evidence necessary for an informed decision," Jones said.

The Board of Environmental Review was not required to keep a narrative water quality standard, which had been in place for salinity, simply because damage had not yet occurred from prospective development, Jones said. "When water quality is at stake, the BER and the DEQ are mandated to afford protection, and to the extent these agencies have done so consistent with supportive scientific data, there is no error."

Jones issued his ruling in a 33-page order following a hearing July 2 in which parties presented their cases.

Pennaco Energy Inc. and four other energy companies sued the Board of Environmental Review in Big Horn County in June 2006, challenging the standards and changes to the state's nondegradation policy. They contended the standards were overly restrictive, were not based on science and violated state law.

In 2003, the board adopted numeric standards for sodium and salt indicators for rivers in southeastern Montana, where energy companies plan to drill for natural gas found in coal seams. In 2006, the board amended its nondegradation regulations to designate salinity as harmful. Those regulations prohibit industry from polluting rivers and streams unless they get authorization from the state.

The board acted after hearing requests from the Northern Plains Resource Council and the Tongue River Water Users Association and held numerous public hearings. Those groups sought stricter regulations, saying discharges of salty groundwater produced by coalbed methane drilling could damage agriculture.

Jones rejected all the industry claims, including one that attacked the scientific basis for the numeric standards. The judge declined to second-guess the choice of numbers to protect irrigated agriculture.

"The record is exhaustive and contains more than sufficient scientific justification for the numeric standards that were adopted," he said.

Jones also rejected industry's contention that the board's 2006 decision amending the nondegradation policy was arbitrary and capricious. "There is nothing in the record to suggest that the BER's decision was based on anything but a careful consideration of relevant factors, or that the BER committed a 'clear error of judgment.' "

Drilling for coalbed methane in the Powder River Basin of Montana and Wyoming requires pumping large volumes of groundwater to the surface to depressurize coal seams and to release the natural gas. Groundwater in the northern portion the basin tends to be high in sodium, which can affect soils and plants.

The companies manage the produced water through a variety of methods, including direct discharge to rivers or streams, treatment before discharge, irrigation, storage, livestock watering and re-injection into the ground.

Attorney John C. Martin of Washington, D.C., who represents the companies, said Friday that his clients had no comment on the decision.

"We are considering our options," he said. Joining Pennaco were Marathon Oil Co., Nance Petroleum Corp., Yates Petroleum Corp. and Fidelity Exploration and Production Co. The Montana Board of Oil and Gas Conservation also joined the case on the side of the industry.

Montana Attorney General Mike McGrath said he was pleased with the ruling.

"It is a very good development for the people of the state of Montana," he said Friday. "We felt we had a very strong case. That's why we filed for summary judgment."

McGrath said Jones' ruling should bolster Montana's position in a similar challenge to its water quality standard being waged in federal court in Wyoming.

In the federal case, energy companies sued the U.S. Environmental Protection Agency, seeking to overturn its approval of Montana's 2003 numeric standards. Both Wyoming and Montana intervened, along with environmental groups. The parties are trying to settle the case through negotiations.

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