The Water Theft Bill


This week, the Montana Senate is voting on legislation that could give gas companies much more control over water pumped out of coalbed methane wells in the Powder River Basin. Senate Bill 505, if passed, will legitimize what many Montanans consider "water theft."

A single coalbed methane well can produce around 16,800 gallons of water every day. Water lawyer Ken Wonstolen called the copious runoff a "gift" to the West at the Colorado Water Congress. Why not, he asked with a gleam in his eye, treat this water and sell it? Although children in Montana are often told not to use water from coal seams for watering plants due to its high salinity, and it is often contaminated with chemicals like lead and arsenic, it can be treated, or used for stock and dust control.

The main obstacle to gas companies treating and selling produced water, or just dumping it, is the question of who that water actually belongs to. In Montana and Wyoming,  groundwater is often subject to senior water rights held by property owners. If the produced water is defined legally as surface water, on the other hand, it becomes fair game. Consequently, there's been quite a bit of wrangling over the definition of produced waters-- are they groundwater or surface water?  

Counterintuitive as this may seem, the bill designates methane company pipes the legal source of produced water, rather than the aquifers those pipes draw the water from. This redefines the water as "surface water" and makes it available for use by gas companies if they file for a "temporary" use permit and promise to put it to "beneficial" use. 

The Northern Plains Resource Council protests that a) water doesn't come from pipes and b) "temporary" actually just means that companies can use the water until it runs out, leaving farmers and ranchers in the lurch.

A March Journal of Hydrology study predicts that aquifer drawdown in the Powder River Basin due to gas development could be 290 feet deep in the middle of the drilling fields, sucking water from more than 46 miles away. The depletion could affect aquifer recharge, river flows, wells and springs for 200 years.