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Our Water, Their Water

Anadarko Petroleum, one of the worlds largest oil and gas producers, is seeking to intervene in a lawsuit that pits Montana water rights against Wyoming. The company had a net income of over $3 billion last year and fears that a ruling in favor of Montana would compromise it’s lucrative coal bed methane operations in the Power River basin in Wyoming.

Apportionment of interstate streamflows in the Yellowstone River basin, which includes the Powder, Tongue, Big Horn and the Clarks Fork of the Yellowstone is regulated by the nearly 60-year-old Yellowstone River Compact. In 1950, the states of Montana, Wyoming and North Dakota ratified the compact to provide for an equitable sharing of the waters of the Yellowstone basin. The compact divides the waters of Yellowstone tributaries on the basis of water rights existing in 1950. Waters that were unused or unappropriated in 1950 were allocated to each state. Montana got 60% of the waters of the Tongue River and 58% of the unappropriated water of the Powder River.

CBM well discharge

CBM well discharge

In 2007, Montana sued the state of Wyoming claiming overuse of the interstate waters. The suit asks the court to order Wyoming to release more water downstream into Montana and to pay damages to the Montana economy. Montana claims that through 15 new and expanded water storage facilities in the Powder and Tongue river basins, Wyoming is holding back more water than allowed by the agreement. It also claims that Wyoming has allowed the expansion of irrigated, cultivated lands in the basin and that it has encouraged more water-intensive forms of irrigation. One of the main objections in the suit relates to the construction and use of groundwater wells, in particular coal bed methane wells in Wyoming. For its part, Wyoming argues that the Compact does not address or regulate groundwater and that Montana cannot prove which diversions were built pre-1950 and which were built post-1950.

Wyoming filed to have the suit thrown out. The Supreme Court hired Special Water Master, Professor Barton H. “Buzz” Thompson, Jr. a water law expert from Stanford University to write an opinion on Wyoming’s claims. Last month, Thompson released his opinion allowing the suit to proceed. In the opinion, Thompson found that pre-1950 water users in Montana were protected from uses in Wyoming that began after 1950. He also found that those protections extend to groundwater in aquifers that may feed into the rivers. “The language reflects a clear intent to cover all sources of water for the Yellowstone River and its tributaries,” he wrote.

Coal bed methane wells pump an average of 10-12 gallons of water per minute, or around 15,000-20,000 gallons per day. There are about 12,000 currently existing CBM wells in the Wyoming portion of the Powder River Basin with around 50,000 planned. It is estimated that there may be as many as 138,000 CBM wells drilled over the life of methane extraction in the Powder River country. Most of the water is not re-injected and most does not return to aquifers and can have serious effects on streamflows, particularly in small basins. Much of the discharged water is highly saline. Along with the thousands of CBM wells comes the development of thousands of miles of roads, pipelines and powerlines as well as storage reservoirs, well pads, compressor stations and associated impacts. This massive development can have serious effects on the quality of water leaving Wyoming. Anadarko and two related companies were recently fined more than $1 million and must spend over $8 million in cleanup and mitigation to settle violations of the Clean Water act in connection with spills of over 31,000 barrels of oily water and crude on 35 occasions between 2003 and 2008. The spills resulted in pollutants being discharged into the tributaries of Silver Tip Creek and Salt Creek which, respectively, are tributaries to the Clarks Fork and Powder Rivers. Montana has also instituted strict

CBM well pads along the Powder River

CBM well pads and roads along the Powder River

water quality rules to restrict pollutants flowing north from Wyoming. The oil and gas industry has attempted to have the rules rescinded although they have been approved by the EPA.

I realize that much of the fight over water flowing north is driven by Montana’s desire to have enough water to institute our own ecological nightmares in places like Otter Creek, but protecting our resources one step at a time is still a good thing even if it’s sometimes for the wrong reasons.

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