Background: The Montana / Wyoming Agreement on Water Standards for Montana Rivers

September 27, 2007

Until April 2003, water quality standards applying to rivers impacted by methane drilling pollution had no numerical components - they were merely narrative, making them very difficult to enforce. Responding to a petition from Northern Plains and three irrigation groups (Tongue & Yellowstone Irrigation District, Tongue River Water Users, Buffalo Rapids Irrigation District), the Montana Board of Environmental Review (BER) established numeric standards for electrical conductivity (a measure of salinity) and the sodium adsorption ratio (a relative measure of sodium) for rivers and streams that will be impacted by coal bed methane discharges. These numeric standards followed an extended public comment period by the BER throughout 2002. More than 200 people attended and 50 people testified at BER hearings in support of Northern Plains' position.  

In May 2005, Northern Plains again petitioned Montana's BER to adopt our "Water Beyond Methane" proposal to help ensure a vital farm and ranch industry after the methane drillers have left our state. We sought a combination of reinjection and/or treatment of discharge waters, and limits on new drilling permits in order to protect southeast Montana's rivers. In preparation for the summer 2005 hearing to initiate rulemaking, members and staff met with BER members to explain the details of our petition and answer their questions.

 Several meetings and hearings were held throughout the state during the Water Beyond Methane rulemaking process between May and December 2005. During this time period, more than 250 members traveled thousands of miles to testify or show their support. Northern Plains mailed hearing invitations to more than 18,000 households in southeastern Montana. We also ran radio ads during the six days leading up to the hearings on target radio stations.

 Our Water Beyond Methane campaign drew a strong response from the methane industry, which bankrolled a full-page attack ad against Northern Plains in the Billings Gazette. This ugly response underscored the fact that our rules would make it harder for the methane industry to pollute our rivers and get away with it.

The BER traveled to eastern Montana for two field hearings in Lame Deer and Miles City in November. In Miles City, 55 landowners and concerned citizens testified in favor of Water Beyond Methane (with only 12 in opposition). Testimony at the Lame Deer hearing was overwhelmingly in support of rulemaking.

As the date approached for the BER's final rulemaking decision, both Montana's Department of Environmental Quality (DEQ) and the U.S. Department of Energy issued reports warning of the economic consequences of Water Beyond Methane. To refute their analyses-which used numbers based on low gas prices from 1990-Northern Plains responded with an economist's findings that our rulemaking would have no impact on state coffers nor on drilling for methane in Montana.

On March 23, 2006, the Board of Environmental Review took action on the Water Beyond Methane proposal. As we suspected would happen, the BER made a "compromise" decision which we see as a major victory:

• They removed the methane industry's three-year-old exemption to Montana's "non-degradation" policy for southeast Montana rivers. Removing this exemption would allow Montana to restrict new drilling permits when pollution limits are being approached on affected rivers.
•  They refused to require reinjection of methane discharge water.
•  They postponed our call for treatment of discharge waters and directed the DEQ staff to come forward with a new proposal. (This has yet to happen.)

The removal of the non-degradation exemption, coupled with the numeric standards adopted in 2003, prompted the Wyoming methane industry to object strenuously because the rule would restrict their ability to pollute Montana rivers with their discharges.

These hard won standards cost us more than $150,000 in scientific and legal experts alone. We provided credible and convincing scientific evidence and over came enormous lobbying from the oil and gas industry. These standards are the only thing right now standing between us and the pollution from coal bed methane development.

It wasn't long before the state of Wyoming sued the state of Montana (they also sued the Environmental Protection Agency (EPA), which had approved the Montana rules). Since 2006, the two states, the EPA, and the Northern Cheyenne tribe have negotiated in an effort to arrive at an out-of-court settlement.

 In September 2007, the parties produced a draft agreement for adoption by the parties. This document fails the interests of Montanans for the following reasons:

•  It sacrifices the Powder River to pollution from coal bed methane-produced water  by declaring that the non-degradation standards for SAR (sodium adsorption ratio) and EC (electrical conductivity) established by the Board of Environmental Review do not apply in this river;
•  It appears to us to ignore standards set for the tributaries (Hanging Woman and Badger Creek) which will make enforcement of the non degradation provision for the Tongue River impossible to achieve;
•  It lacks any effective monitoring program (funding for the U.S. Geological Survey monitoring stations has been cut) for the "protections" agreed to for the Tongue River and does not provide any assurance for state enforcement if the standards are exceeded.