U.S. Water News Online
BILLINGS, Mont. -- A federal appeals court has agreed to stay its ruling that water released during coal-bed methane drilling is a pollutant and subject to permitting requirements. The decision will allow Fidelity Exploration & Production Co. time to ask the U.S. Supreme Court for a review of the ruling.
The decision surprised the Northern Plains Resource Council, which said the 9th U.S. Circuit Court of Appeals granted Fidelity's request for a stay before the conservation group had a chance to oppose it.
Fidelity is a subsidiary of Bismarck, N.D.-based MDU Resources Group Inc.
``The day of the ruling was the day we were going to file'' a motion to oppose, attorney Mike Reisner said, noting that Northern Plains has since asked the appeals court to reconsider the stay.
The case stems from a lawsuit filed in 2000 by Northern Plains, alleging that Fidelity had illegally discharged water from its coal-bed methane operations in southeast Montana into the Tongue River.
Fidelity, the only commercial producer of coal-bed methane in the state, has maintained that it sought and received the proper permits to discharge water -- even after the Montana Department of Environmental Quality said none were needed because of an exemption. But DEQ also made clear the federal Environmental Protection Agency doesn't agree with the permit exception.
Last summer, a U.S. District Court judge in Montana dismissed Northern Plains' case, ruling the water isn't a pollutant under the federal Clean Water Act and that discharging coal-bed methane water doesn't require a permit under Montana law.
But the appeals court overturned that decision last month.
The stay it granted this week is for 90 days, pending the filing before the Supreme Court.
That, Reisner said, means the district court ruling is in effect and ``that creates a lot of uncertainty right now.''
Mike Caskey, Fidelity's executive vice president and chief operating officer, said a stay was logical.
``You don't want to implement something and then undo what you implemented,'' he said.
Caskey said that, while Fidelity's operations are properly permitted, the company is ``still very concerned about the ability of Montana to rightfully take advantage of its natural resource potential.''
``A lot of these obstructionist, forever-delaying tactics NPRC takes is very detrimental to Montana,'' he added.
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