Ridenbaugh Press/Water Rights

Montana House Bill 575, sought by miners to effectively determine that water pumped out of the ground during production of coal bed methane production should legally be considered surface water, was passed by the state legislature but vetoed on April 29 by Governor Brian Schweitzer.

The Northern Plains Resource Council, which strongly opposed the measure, said that it “has never opposed coal bed methane development—as long as it is done responsibly. Northern Plains’ members care passionately about how this development proceeds because of the industry’s potential to ruin Montana’s waters (surface and groundwater) and its lands and our agricultural livelihoods. We believe that the devastating effects that methane development will have on our water do not have to happen if the methane industry will simply “do it right” and leave the water in the ground or re-inject it.” A substantial number of farmers and other water users also opposed it.

From Schweitzer’s veto message:

I have vetoed House Bill 575 because I believe the bill reverses longstanding principles of Western and Montana water law by allowing the issuance of a permit for the use of water associated with coal bed methane (CBM) production without providing protection to senior water rights holders, other than some limited compensation under a government program. Some of the water rights in jeopardy date back to the late 1800s.

Reliance on this water has served as the basis of a stable agricultural economy in southeast Montana for generations. Montanans want energy development but they also want to ensure that their agricultural neighbors are able to continue their successful operations well into the future without compromise of their established rights.

House Bill 575 was written in response to recent court decisions, but the “solution” devised in the bill is contrary to those decisions. With a sleight of hand, House Bill 575 classifies CBM groundwater as surface water, thereby circumventing the requirements of Montana’s Water Use Act, Montana’s cornerstone for protection of senior water rights. Ultimately, the bill fails lo reconcile the substantive conflict between the extraction of water in the CBM process and senior water rights.

We must do better. Montana needs to take a new approach to devising a strategy that protects senior water rights holders, reduces discharges of untreated water into our surface waters, and allows responsible CBM development. CBM producers, like all other users of water, need to show that existing water rights are not being adversely affected, or they must develop long-term mitigation plans that will provide replacement water now and into the future after CBM production ceases.

The New York Times reports on the water rights (and quality) implication of drilling for natural gas in the Marcellus Shale, a massive deposit of gas buried in the Appalachian Mountains.

In an editorial on the subject: “Retrieving Marcellus natural gas requires hydraulic fracturing with horizontal drilling, a process that shoots millions of gallons of water deep underground to break the rock and unlock the gas. Now that prospectors are using this process increasingly in Pennsylvania and hoping to begin soon in New York, there are two important questions: Where will all that water come from? And what happens to it when it is no longer needed?”

The paper advised that drilling should not be allowed near drinking water supplies, but indicated it could work with proper care and exploration.