'Beneficial Use' or Toxic Nightmare? The EPA's Livestock Loophole for Produced Water is Poisoning the Wind River Reservation

Abstract

Reports of hazardous “produced water” dumping on the Wind River Reservation in western Wyoming have trickled into local news broadcasts over the years, but these reports have failed to receive much national attention until recently. According to one recent report on National Public Radio, so much wastewater from oil and gas operations (“produced water”) is discharged or dumped onto reservation land that it creates toxic chemical streams of known carcinogens and radioactive material, which are consumed by Arapaho ranchers’ beef cattle. In spite of the Resource Conservation and Recovery Act’s (RCRA) mandate prohibiting discharges of produced water onto open lands, EPA has created an exemption for ranchers who can put produced water to beneficial use for livestock watering. The exemption is referred to as “the livestock loophole”. This article discusses how the livestock loophole represents a breach of the federal government’s promise, in the treaty establishing the Wind River Reservation, to protect the reserved land for agricultural and domestic purposes. While ranchers outside the reservation are unfortunately “on their own,” the federal government has obligated itself, by treaty, to protect the Arapaho and Shoshone residents of the Wind River Reservation and support their agricultural practices. This article argues that the obligation cannot be waived simply because native ranchers were desperate for water, regardless of its contents, to support their livestock herds in an extremely arid region of the country. Finally, this article concludes that the livestock loophole must be amended to exclude the Wind River Reservation because it violates RCRA and the Treaty of Fort Bridger.

Keywords: produced water, RCRA, treaty rights, treaty obligations, Wind River Reservation