From The Durango Herald (Joe Hanel):
The case, Vance v. Wolfe, earned plaintiffs Bill and Elizabeth Vance a spot in the history of Colorado water law. The fellow plaintiffs, Jim and Theresa Fitzgerald, of Bayfield, celebrated the ruling as a protection of their water rights and the springs they worked for decades to restore to health. But the Legislature’s bill led to a chain of events that has everyone back in court this summer to fight out three new lawsuits…
The Legislature did two things: It gave the engineer’s office until Aug. 1 this year to process the permits, and it allowed State Engineer Dick Wolfe to make rules that exclude gas wells drilled into deep formations from the need to obtain water permits. Wolfe held hearings last year and early this year and eventually decided that many wells in the San Juan Basin don’t need permits. In general, the wells farther north, closest to where the coal formations climb to the surface, still need water permits.
Sarah Klahn, a water lawyer for the Vance and Fitzgerald families, said the rules threaten to undo the significant victory of the Vance case. Klahn and fellow lawyer Alan Curtis filed two new lawsuits against Wolfe for adopting the rules. The first one will be heard in Greeley this year. It claims the state engineer illegally adopted the rules without notifying landowners that their water might be at risk. “The real people who stand to be injured on the ground because of this stuff did not get notice,” Curtis said.
Their first legal notification that something was up was the huge water-rights application to state Water Court by gas companies that landowners got in the mail this year, he said. They are not alone in the fight this time. Other plaintiffs include heavyweights like the Denver Board of Water Commissioners, the cities of Boulder, Centennial and Sterling, and several other water users.
The second lawsuit, filed in Durango, challenges the map that Wolfe used to decide which wells to regulate. Gas companies paid for the expert who drew the map, and it leaves out wells that should face scrutiny from water regulators, Klahn and Curtis say.
A third lawsuit takes the fight to all of Southwest Colorado. In February, the state engineer amended the rules to include other geological formations, including the shales found in Montezuma, Dolores and western La Plata counties. The rules determined that groundwater in the Paradox formation – which covers a wide swath of Southwest Colorado – is nontributary, meaning gas companies will not have to prepare expensive plans to replace the water they use in their wells. The area has not been drilled for gas yet, but the rocks hold a potentially large amount of shale gas, so it could become an important drilling area in the future. Durango water lawyer Amy Huff filed a separate lawsuit on behalf of several local landowners to challenge the rules over the Paradox formation and other geologic layers. Huff said the state engineer has not done enough to prove that gas companies can take water out of the rock formations without harming surface streams…
An Aspen group, Public Counsel of the Rockies, paid the plaintiffs’ legal fees in the Vance-Fitzgerald lawsuit. In March, the William and Flora Hewlett Foundation made a $300,000 grant to Public Counsel of the Rockies to continue the coal-bed methane work, according to the Hewlett Foundation. Public Counsel of the Rockies’ tax forms describe the Vance lawsuit as a test case to bring water regulation to gas wells