GILLETTE - A showdown appears to be shaping up between Gov. Dave Freudenthal's office and the Wyoming Environmental Quality Council over the council's authority to regulate coal-bed methane water discharges.

Attorney General Pat Crank advised the governor's office this week that the council's proposed rule changes to better manage coal-bed methane water might be "arbitrary and capricious." That was followed up with a terse letter from a governor's adviser to the council, criticizing the citizen board for scheduling a hearing to proceed with the public rulemaking process.

C.A. "Kip" Crofts, counsel to the governor, told EQC members, "We can't always be certain, when we adopt new rules, that some Court won't someday find them to be improper, but it is irresponsible to go forward, as here, when potential problems seem so apparent."

Crank and Crofts both insist the rulemaking is at a point where the governor's office must agree to allow the process to move forward - a point the EQC itself apparently disagrees with. The council plans to conduct a hearing on the rulemaking Jan. 17 and 18 at the city council chambers in Cheyenne.

No EQC members were available for comment on Friday.

Kate Fox, an attorney representing citizen petitioners for the rulemaking, said she suspects Freudenthal's administration simply wants to kill the rulemaking effort. She warned that if the administration's actions intentionally or inadvertently weaken the EQC's authority to act on this rulemaking, it may diminish a critical self-governance tool for Wyoming's citizens in the future.

"It's all about checks and balances and having a government that is responsive to its citizens," said Fox, an attorney with Davis & Cannon in Cheyenne.

In an interview with the Casper Star-Tribune, Crank said he is not an expert in water or soil sciences, but said he still doesn't see that there's enough scientific evidence presented so far in the rulemaking process to justify a rule change.

"I have some concern about whether there is enough evidence in the record. It should already be there by the time they propose a rule," Crank said.

The Powder River Basin Resource Council, and other petitioners for the rulemaking, say they are carefully working through the process to force the Wyoming Department of Environmental Quality to impose stipulations on the industry to protect their lands from being flooded and damaged by coal-bed methane water. They're asking for more stringent limits on effluents such as barium and sulfates.

But even those changes are an attempt to address the bigger issue of water volumes. The state engineer's office holds the view that the production of methane gas alone is a legal beneficial use of that water. For more than six years state regulators have said they are helpless to remedy the legal notion that only the state engineer can limit water volumes and only DEQ can regulate water quality.

DEQ Water Quality administrator John Wagner said during a recent public meeting that his office was still issuing coal-bed methane water discharge permits understanding full well that the water would add to some six years of flooding on the Clabaugh ranch in Campbell County.

Crank said there's no attempt to interfere with the EQC's ability to consider rules. However, Crank said this particular rulemaking is unusual in that it was brought by private citizens rather than officials within DEQ.

"This rule, as it exists today, has not gone through the usually substantial vetting process that it would have had it come through advisory councils to the DEQ," Crank said.

Wagner had asked the University of Wyoming to study the question of effluent limits after the EQC had already decided to hear the petition for rulemaking. In Crofts' letter to the EQC this week, he said the EQC ought to wait until those study results are available sometime this summer.

"Thus it would appear to me that perhaps we have the 'cart before the horse' and a public hearing, before the Department itself has all the facts, and knows what it wants to propose, is simply inappropriate timing," Crofts wrote.

Fox said the EQC held three hearings and considered "a whole stack of public comments and a great deal of scientific data from all sides before it decided to set this matter for rulemaking."

"There is a reason that the laws give the board a degree of independence," Fox continued. "And in my opinion they have exercised their authority with great care and deliberation."

Energy reporter Dustin Bleizeffer can be reached at (307) 682-3388 or dustin.bleizeffer@casperstartribune.net.