GILLETTE - A battle is brewing over questions regarding the state's legal authority to regulate various aspects of coal-bed methane water discharges, and a recent Wyoming attorney general's opinion on the matter has only heated things up.

Both sides in the issue say they've found ammunition in Attorney General Patrick Crank's opinion, and each has filed various motions with the Wyoming Environmental Quality Council regarding it.

Now the council finds itself in the odd position of weighing a legal opinion ordered by Gov. Dave Freudenthal.

Some stakeholders involved in the process say they suspect politics are at play, given that a state agency is being asked to take a bold stance on the controversial issue during an election year.

"Why does the state seem to keep finding ways to do nothing? Why didn't the governor or the DEQ (Department of Environmental Quality) director ask a long time ago, 'What authority does DEQ have?"' said Davis & Cannon attorney Kate Fox.

Fox is representing several ranchers and the Powder River Basin Resource Council in their petition to the Environmental Quality Council.

The coal-bed methane industry, which is fighting the petition, is also frustrated with the process, but blames the Environmental Quality Council for not going to the attorney general's office in the first place.

"I really believe we wouldn't be as far down this process as we are had the Environmental Quality Council consulted with the attorney general's office prior to now," said John Robitaille, vice president of the Petroleum Association of Wyoming.

Stakeholders in the matter hope to get some indication of what role Crank's opinion will play when he meets with the council's seven-member board during the board's regularly scheduled hearing Thursday in Cheyenne.

Crank has asked to speak with the council in executive session before the 1:30 p.m. public session that the council has already scheduled. But the council won't decide whether to grant the executive session request until 11 a.m. that day.

Question of authority

At issue is whether state regulatory agencies have the authority to either ensure that all volumes of coal-bed methane water dumped on the surface are put to a measurable beneficial use, or at least can control the volumes of coal-bed methane water that are dumped on the surface.

Several Wyoming ranchers and the Powder River Basin Resource Council filed a petition for rulemaking to the Environmental Quality Council in December, asking the state to dump its long-held notion that it can regulate only the quality of coal-bed methane water discharges, not the quantity. The state has puzzled over the perceived conundrum for more than five years while some ranchers in the Powder River Basin say their operations are flooded over by water that may meet quality controls at the spigot, but cause a host of problems as it flows across the land.

In February, the Environmental Quality Council voted unanimously to proceed with the petition for rulemaking, signaling an acknowledgement that something is lacking with the way state regulatory agencies have approached the quality/quantity water issue. And when Crank's legal opinion was passed on to the council in April, the council found itself in the odd position of being somewhat of an involuntary client.

"It obviously will factor in, but how will be up to the council. That's the conversation that needs to take place," said Terri Lorenzon, director of the Environmental Quality Council.

Crank's opinion

The petition for rulemaking filed by the Powder River Basin Resource Council would amend a section of Wyoming's water quality rules, which describe how regulators interpret and enforce the Wyoming Environmental Quality Act.

According to the state's rules, authority regarding water volumes and appropriations historically has resided with the state engineer's office only, while water quality issues fall under the authority of DEQ. But the original petition argued that when the quantity of water causes a quality problem, DEQ can regulate both.

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Crank's opinion appeared to support that view, but at the same time he declared that the desired result - which is to ensure that all coal-bed methane water be put to a beneficial use on the surface - is outside the legal authority of the council and DEQ.

On Friday, a group of nine coal-bed methane producers filed a joint motion to throw out the petition based on the latter - Crank's assertion that the beneficial use goal is outside the council's authority.

On Monday, the petitioners filed an amendment using much of Crank's own language to support the former - that DEQ can regulate water quantity if it relates to water quality.

"I actually see lots of open territory for regulation within the confines of the AG's opinion," attorney Fox said. "I'm saying, 'Good. We can live with that."'

Industry representatives feel differently.

"The petitioners wanted to gauge how much water is being used," Robitaille said of the original petition language. "The petition says the only water that would be released is water that would be totally consumed. In the scheme of things, that is totally unrealistic."

Robitaille said DEQ already spells out in its discharge permits parameters that prevent erosion and ensure that coal-bed methane waters don't reach main streams that flow into Montana. Therefore, there are water quantity controls, he said.

Further, Robitaille noted, the state's legal definition of "beneficial use" regarding coal-bed methane water is the actual release of that water from the coal aquifer in order to produce methane gas.

"As soon as it is on the ground it is available for additional appropriation. It's already achieved its beneficial use," Robitaille said.

Energy reporter Dustin Bleizeffer can be reached at (307) 682-3388 or dustin.bleizeffer@casperstartribune.net.

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