From the Pine River Times (Carole McWilliams):
About 60 area residents plus gas production company and Colorado Division of Water Resources representatives turned out Tuesday evening at Bayfield High School for a presentation on all the water that’s pumped out of coalbed methane wells to get the gas to flow. The meeting was prompted by new state rules for coalbed methane well water deemed to be “non-tributary,” and by massive company filings in District 7 Water Court for rights to water – both tributary and non-tributary – that they are pumping out of coalbed methane wells…
“In the past, if there was no beneficial use, no water well permit or augmentation plan was required,” [State Engineer Dick Wolfe] said. “The change is in what’s considered beneficial use.” The other big distinction is whether the water is tributary to a stream. If it is, an augmentation plan may be needed to protect senior water rights from stream depletion.
Attorney John Cyran from the State Attorney General’s Office Water Rights Division said that as a result of the Vance decision, Fruitland formation coalbed methane wells need water well permits. “We have authority to issue permits or to stop any withdrawal if there’s injury to senior rights,” he said. “We still don’t think we should have to issue permits. If you issue permits, they are water rights.”
Cyran continued, “The Vance Supreme Court ruling means produced water is an appropriation for beneficial use, and they need well permits. If they are tributary, they have to replace any water that’s out of priority with augmentation. It means we have to issue thousands of permits. And we have to make sure there’s no injury to senior rights.” With many Fruitland coal wells, the connection with surface streams (mainly at the formation outcrop) is so distant that potential depletion “isn’t enough to worry about,” he said. “We have to administer the tributary wells and figure out which aren’t tributary. It’s a lot of them.”
The State Engineer’s recently released rules governing non-tributary coalbed methane wells include a map designating non-tributary areas, almost all south of Highway 160, and much of it south of the Ute Line.
The rules state that they “shall not be construed to establish the jurisdiction of either the State of Colorado or the Southern Ute Indian Tribe over non-tributory ground water within the boundaries of the Southern Ute Indian Reservation…”[…]
Wolfe described the 1973 and 1985 laws dealing with non-tributary groundwater rights. The 1973 law gave exclusive right to the surface owner. The 1985 law allows “incidental withdrawal of non-tributary water in mining operations,” only the amount necessary to produce the oil or gas, and only while oil or gas production is happening. A man asked about recent production company letters to landowners referring to an absolute water right. Wolfe said the term absolute refers to water production from existing wells while conditional right refers to potential future wells. Sarah Klahn, the palintiffs’ attorney in the Vance suit, said a primary legal issue yet to be determined is, “Can you get the right to non-tributary water if you don’t own the surface?” Cyran clarified that the Engineer’s Office issues water well permits, while water rights must go through Water Court…
Ron Burkett, whose family owns one of the county’s largest private properties with many gas wells on it, asked where the augmentation water will come from. From Vallecito or from ditch company rights, Assistant State Engineer Kevin Rein said. “There’s a real strict court process for that.”[…]
As for the flood of company Water Court filings [by energy firms], he said, “You can’t claim water you won’t actually use. No speculative claims.” It can’t injure senior rights, and it has to be administered in priority…
Wolfe advised a couple augmentation plans have just been filed, and March 31 is the deadline for producers to file augmentation plans for all existing tributary coalbed methane wells. These can be blanket applications by individual operators or groups of operators. They have to identify every coalbed methane well in the plan and the source of replacement water, he said. Anyone wanting to file statements of opposition to the company filings for water rights or augmentation plans must satisfy criteria to have standing with the court, Cyran said. “You need some kind of water right to have standing.” Owners of water wells that don’t have an adjudicated water right – which is different from a water well permit – have to the end of this month to apply for that and gain standing, he said, adding, “It’s not that hard to file a water right application.” However, Bayfield attorney Marian Tone pointed out to the Times that it costs $224 per water well to file a rights application, plus $158 to file a statement of opposition. “They say it’s no big deal, but it is.”
More coverage from Katie Burford writing for The Durango Herald. From the article:
“The oil and gas industry is only seeking the water rights associated with oil and gas production,” said Bruce Gantner, a ConocoPhillips environmental consultant who is handling comments about the company’s application. Others filing applications in the area include BP, the Southern Ute Tribe and Chevron.
But some observers of the process called it a “water grab” and question the legal framework for the gas companies’ claims. “I think that the applications are overreaching, and they’re very broad, and they’re probably speculative, as well,” said Amy Huff, a water attorney who recently presented at a public meeting about the subject…
Gas companies firmly assert that water to which they are seeking rights is deep underground and has no effect on water people use for drinking or irrigating. “This water is not of a drinking-water quality,” Gantner, with ConocoPhillips, said. Zeller argued that domestic wells run a couple hundred feet deep or less while gas wells are about 3,500 feet or deeper.