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Fitting a Square Peg in a Round (Drill) Hole: The Evolving Legal Treatment of Coalbed Methane-Produced Water in the Intermountain West

September 2008

Citation: 38 ELR 10661

Issue: 9

Author: Colby Barrett

Editors' Summary: Groundwater resources in the intermountain West (Colorado, Montana, New Mexico, Utah, and Wyoming) continue to dwindle while populations expand. In the 1950s, states set up oil and gas conservation commissions to regulate the disposal of small amounts of highly saline water produced during conventional oil and gas extraction. Beginning in the mid-1980s, however, energy producers began extracting methane trapped in coal seams too deep to mine conventionally. Today, this coalbed methane (CBM) comprises nearly 10% of total domestic natural gas production. To extract CBM, large quantities of often high-quality water must be removed and disposed. Traditionally, that water is exempted from western states' groundwater laws requiring it to be beneficially used and subject to senior uses. But states are now recognizing this produced water should not belong in the regulatory schemes of mining waste governed solely by state oil and gas conservation commissions. In this Article, Colby Barrett examines Colorado's recent shift from the byproduct waste model to a groundwater resource model and proposes specific legislative changes that would integrate mining-produced water into western water law.

Colby Barrett is a 2008 graduate of Yale Law School. He thanks Prof. Thomas Merrill for his assistance and encouragement, as well as Sen. Greg Brophy, Thomas F. Darin, and Dave Stewart for their comments and suggestions. The author would like to extend special thanks to Dick Wolfe and Dave McElhaney at the Colorado State Engineer's Office and to Sarah Klahn and Ken Wonstolen for the diverse perspectives they provided.

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