BILLINGS – A federal judge has overturned water quality rules which were meant to protect southeastern Montana cropland from natural gas drilling but were assailed by Wyoming as a threat to energy production.
The rules covered the Tongue and Powder rivers, which flow north from the rich gas fields of northeastern Wyoming into primarily agricultural land in Montana.
Drafted by Montana and approved by the Environmental Protection Agency, the rules limited how much salty water — a byproduct of drilling — could enter the rivers.
In a judgment issued Tuesday, U.S. District Judge Clarence Brimmer in Cheyenne, Wyo., annulled the rules and sent them back to the EPA to reconsider. Brimmer wrote that the EPA had failed to give the water quality standards a full review when it approved them in 2003 and 2008.
Montana Gov. Brian Schweitzer predicted the agency would eventually come down again in Montana’s favor and restore the rules.
“This is some legal maneuvering, but the EPA has been an advocate for Montana’s position from the get-go,” Schweitzer said.
Gas companies had argued the restrictions put a crimp on drilling, in an area straddling the Montana-Wyoming line known as the Powder River Basin.
A type of gas known as coal-bed methane is common in that area, where companies drilled more than 20,000 wells — mostly in Wyoming — over the last decade. The gas is typically found in underground seams saturated with water, meaning millions of gallons of water must be pumped out to free the trapped gas.
Despite a recent slowdown, thousands more wells are planned in both states.
Schweitzer said water produced by the gas industry inside his state would still be held to the old rules. Water coming in from Wyoming will not, at least until the EPA acts on the issue.
A spokesman for the EPA’s regional office in Denver, Rich Mylott, said the agency was reviewing Brimmer’s order. It came in a 2006 lawsuit that had pitted natural gas companies backed by the state of Wyoming against the EPA and Montana.
Some of the nation’s largest gas companies — including Marathon Oil, Anadarko Petroleum and Devon Energy — first challenged the EPA in April, 2006, over its approval of Montana’s water quality rules.
“We’re pleased with the Wyoming federal court’s ruling and look forward to a review of the complete administrative record by the EPA,” Marathon spokesman John Porretto said Wednesday.
The courtroom tussle between Montana and Wyoming is one of several running skirmishes between the states over the rivers that flow north across their shared border.
In a pending case before the U.S. Supreme Court, the argument is over whether Wyoming is depleting rivers before they cross into Montana and enter the Yellowstone River. Another disagreement has pitted trout fishers who use Montana’s Bighorn River against recreational boaters upstream on Wyoming’s Bighorn Lake.
Combined, the cases reflect a simmering animosity over who controls the spigot in an arid part of the country where water is treated as a precious commodity.
Wyoming’s director of Environmental Quality, John Corra, said few changes had been made to the gas drilling permitting process used by his state since Montana’s rules went into effect.
But he added that “there are principals at stake going forward” as the states maneuver for control over the region’s water.
“There’s no question that we need to pay attention to downstream water standards. The question is, are those standards set appropriately and fairly,” Corra said. “We felt that in fact they were pretty restrictive.”