State Engineer’s rules for non-tributary coalbed methane produced water affirmed by water court


Here’s an in-depth look at Thursday’s decision by Water Court Division One Judge James Hartmann, from Joe Hanel writing for The Durango Herald. Their headline asks the question, “Did gas industry win water ruling?” From the article:

Judge James Hartmann of the water court in Greeley ruled in favor of State Engineer Dick Wolfe, who adopted rules in 2010 that allowed his office to avoid detailed regulation of the water use by many of the 40,000 gas and oil wells in Colorado. However, he threw out the portion of the rules that covers the Southern Ute Indian Reservation, where most of the region’s gas drilling occurs…

Until the Vance ruling, the industry and state regulators had treated the water as a waste product that did not need to be regulated under Colorado’s complicated set of water laws.

Fearing a deluge of 40,000 well permit applications, the Legislature gave the state engineer the authority to decide which gas wells are so deep they will not hurt other people’s water rights, and which ones need stricter scrutiny, including plans to replace the water they use.

The Vances, Fitzgeralds and many others sued again, but on Thursday, the judge upheld most of the rules Wolfe adopted. “For the most part, I think it was a good ruling for the state,” said First Assistant Attorney General John Cyran, who defended the state engineer’s office in the lawsuit.

But the plaintiffs also are happy about the ruling because of one paragraph near the end. In that paragraph, the judge declared the rules apply only to the use of water in gas and oil drilling, and they can’t be used in court to win a water right for the industry. “That is the main event, believe it or not,” said Sarah Klahn, a lawyer for the plaintiffs…

However, Hartmann’s ruling leaves much of Southwest Colorado in a legal limbo.

Although the judge upheld the state engineer’s rules statewide, he ruled that they should not apply within the boundaries of the Southern Ute Indian Reservation because it is unclear who has jurisdiction over water. Lawyers for the state and the tribe said they are considering appealing that portion of Hartmann’s ruling or at least asking him for clarification. “We were surprised by the decision,” said Adam Reeves, a lawyer for the Southern Ute tribe. “We’re evaluating our next step.”

Here’s the link to Coyote Gulch when the original ruling was announced. Scroll down to the end of the page for the article.

More coalbed methane coverage here and here.

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