2011 Colorado legislation: HB 11-1286 (Clarify State Engineer Nontributary Rule Authority) passes the House Agriculture, Livestock and Natural Resources Committee

A picture named nontributarycoalbedmethane.jpg

From The Colorado Statesman (Marianne Goodland):

The state is made up of groundwater basins, designed by the Colorado Ground Water Commission. Nontributary groundwater is located outside those basins, and is defined as places where water withdrawal, within 100 years, will not “deplete the flow of a natural stream at an annual rate greater than one-tenth of one percent” per year. It is water that is so deep and isolated from surface water that the impact of its withdrawal would be minimal.

More importantly, nontributary groundwater is not subject to the doctrine of prior appropriation. That’s a fundamental concept within Colorado water law, and in its simplest form says whomever was there first gets the water right. According to the HB 1286 fiscal note, nontributary groundwater “is based on ownership of the overlying land and a 100-year aquifer life expectancy.”

According to [State Engineer Dick Wolfe’s] presentation, a domestic water well generally drills down to about 300 feet. An oil or gas well may need to drill down by 3,000 feet or more, and in Southwestern Colorado, they’re drilling for coal bed methane at levels up to 7,000 feet deep. When an oil or gas well is drilled, it results in “produced water.” That’s water that is removed from a geologic formation during the extraction process of mining for oil or gas. Once the water reaches the surface it must be separated from the mineral. If the state engineer determines that groundwater is coming from a tributary source, then the oil and gas company must get a water permit. No permit is needed if the water comes from a nontributary source.

More 2011 Colorado legislation coverage here.

One Response to 2011 Colorado legislation: HB 11-1286 (Clarify State Engineer Nontributary Rule Authority) passes the House Agriculture, Livestock and Natural Resources Committee

  1. Richard G. Hamilton says:

    27 March 2011

    Opinion on Colorado House Bill 11- 1286 –
    State Engineer, Tributary vs Non-tributary taking of water.

    SUGGESTION: Legislature should petition the Colorado Supreme Court to ask for an opinion (ARTICLE III, section IV. JUDICIAL POWERS.) that seeks to determine if H. B. 11 – 1286 would be constitutional, if passed and signed.

    Richard G. Hamilton
    531 Front Street
    P. O. Box 156
    Fairplay, Colorado 80440-0156
    719.836.4619

    27 March 2011

    More here on an impertinent, and a possibly unconstitutional legislative proposal, that seeks to impose through granting of unwarranted powers to an appointed executive department official, a conversion of a fundamental right (the public ownership of water) to create a situation / condition where “the statutory classification does not have a reasonable basis in fact and does not bear a reasonable relationship to a legitimate governmental interest” (see below . . . with particular interest to H.B. 11 -1286, as proposed . . .). The proposed statute might also be able to be opposed under constitutional provisions regarding “delegation of powers” provisions due to elements in the proposal wherein the waters of the people of Colorado would be legislatively usurped by the state, and thereafter, be managed under a “rule” meant to promote “a subsidy to businesses”, an action prohibited by long-established constitutional provisions ((1.) see ARTICLE V, section 34, – Appropriations to Private Institutions Forbidden; (2.) see ARTICLE V, section 35 Delegation of Power; (3.) see ARTICLE XI, section 2 – No Aid to Corporations – “This section is subject to a “public purpose” exception which is in some respects similar to the “public purpose” exception to section 2 of article XI, but will not be presumed from the mere passage of a legislative enactment – in re House Bill 91S -1005, 814 P.2d 875 (Colo. 1991)”; and (4.) see also ARTICLE III – Distribution of Powers: “The constitution defines the powers and duties of each department, and should one department venture to substitute its judgment for that of the other in a case where the constitution has vested power over the subject , it would enter upon a field where it is impossible to set limits to authority, and where discretion alone would measure the extent of the interference. Van Kleek v Ramer, 62 Colo. 4, 156 P. 1108 (1916); Watrous v. Golden Chamber of commerce, 121 Colo. 521, 218 P.2d 498 (1950)).

    ANNOTATIONS – ARTICLE III, section IV. JUDICIAL POWERS.
    Supreme court can give its opinion upon important questions when requested to do so. “The same instrument which divides the powers of government into distinct departments has been so amended by the voice of the people as to require the supreme court to give its opinion upon important questions, upon solemn occasions, when required by the governor, the senate or the house of representatives. In re Speakership of the House of Representatives, 15 Colo. 520, 25 P. 707 (1890); People ex rel. Elder v. Sours, 31 Colo. 369, 74 P. 167 (1903).

    ANNOTATIONS – ARTICLE VI, section III. OPINIONS. B. Questions submitted. 1. In General.
    (1. ) Question must related to purely public rights, be propounded upon solemn
    occasion, and possess a peculiar or inherent importance not belonging to all questions of the kind; that executive questions must be exclusively publici juris, and legislative ones be connected with pending legislation, and relate either to the constitutionality thereof or to matters connected therewith of purely public right. In re Lieutenant Governorship, 54 Colo. 166, 129 P. 811 (1913). This section has been construed by the supreme court as applying only to cases where questions of publici juris are raised, thus excluding from this branch of its jurisdiction all controversies wherein private rights alone are involved. In re Senate Resolution, 12 Colo. 466, 21 P. 478 (1889).
    (2. ) And particular section of constitution to be considered must be pointed out.
    (note “particular section of constitution” … see ARTICLE III – Distribution of powers I. GENERAL CONSIDERATIONS.).
    (3.) Object of the article. The plain object of this article is to inhibit one department of government exercising any power that by the constitution is vested in another. The constitution defines the powers and duties of each department , and should one department venture to substitute its judgment for that of the other in any case where the constitution has vested power over the subject, it would enter upon a field where it is impossible to set limits to authority, and where discretion alone would measure the extent of the interference. Van Kleek v Ramer, 62 Colo. 4, 156 P. 1108 (1916); Watrous v. Golden Chamber of commerce, 121 Colo. 521, 218 P.2d 498 (1950); People v Davis, 186 Colo. 186, 526 P.2d 312 (1974).
    The concept of separation of powers requires co-equal branches of government, the executive, legislative, and judicial, exercise only their own powers and not usurp the powers of another co-equal branch of government. People v Hollis, 670 P.2d 441 (Colo. App. 1983).

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