Here’s a guest commentary written by Eric Kuhn, David Modeer and Fred Krupp running in The Denver Post. The trio are issuing a call to arms of sort, asking for input for the Colorado River Basin Study. Here’s an excerpt:
Management of the Colorado River is a complex balancing act between the diverse interests of United States and Mexico, tribes, the seven basin states, individual water users, stakeholders, and communities. The challenges posed by new growth and climate change may dwarf anything we faced in the past. Instead of staring into the abyss, the water users, agencies, and stakeholder groups that make managing the Colorado River responsibly their business are working together, using the best science available to define the problem, and looking for solutions.
We’re calling our inquiry the Colorado River Basin Study, and we want your help. As Colorado River management professionals, we have a lot of knowledge and ideas, but we know that we don’t have them all. We want ideas from the public, from you, but we need your input by February 1. You can submit your suggestions by completing the online form at: http://on.doi.gov/uvhkUi.
The big question we need to answer is: What are the reasonable water management options and strategies that will provide water for people, but also maintain a healthy river system? We don’t believe there’s a single silver bullet that will resolve all of our challenges. We want to continue to explore the benefits and costs of every possibility, from conservation to desalination to importing water from other regions.
The West was built on innovation and hard work, and that spirit is still strong. Our landscapes and communities are unparalleled in their beauty, resilience, and character. The economic well-being of our rural and urban communities in the Colorado River basin is inextricably linked to Colorado River and its environmental health.
That’s why we are asking for the public’s input to help us craft a study showing a path forward that supplies our communities with the water they need to thrive and protects the health of the Colorado River-and the ecosystems and economies it supports.
More Colorado River basin coverage here.
Energy policy — coalbed methane: The state of Colorado and the Southern Ute Tribe are considering their options in light of Judge James Hartmann’s ruling last Thursday
September 13, 2011
From the Associated Press (Catharine Tsai) via The Albuquerque Journal. From the article:
The judge last week upheld rules by the state engineer that allowed some oil and gas wells in the state to be exempt from getting water well permits for their operations, but he also said the rules shouldn’t apply within the Southern Ute reservation because it is unclear who has jurisdiction over water…
Despite the ruling last week upholding the rules, [Colorado First Assistant Attorney General John Cyran] told The Durango Herald (http://bit.ly/qrNKDV) the state was considering whether to ask the judge for a clarification of part of the ruling that said the state engineer’s rules should not apply within the Southern Ute reservation. “I don’t think there was any problem with us passing that rule because I do think we have authority there,” Cyran said.
State Engineer’s rules for non-tributary coalbed methane produced water affirmed by water court
September 10, 2011
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.
State Engineer’s rules for non-tributary coalbed methane produced water affirmed by water court
September 9, 2011
From the Associated Press (Catharine Tsai) via Loveland Reporter-Herald:
…the rules’ challengers are cheering because the ruling Thursday also said those determinations don’t have any legal effects outside of decisions on water well permits…
The San Juan Citizens Alliance and others had challenged the rules [ed. for non-tributary wells], which were adopted after a court decision on water pumped out during coalbed methane drilling. That decision said the water wasn’t just a waste product. Therefore companies for 40,000 existing wells that withdraw water during drilling potentially had to get water well permits or file plans for replacing the water if senior water rights holders were affected.
Energy policy — coalbed methane: Water Court Division Seven judge dismisses BP America and others applications
June 20, 2011
From the Associated Press via The Denver Post:
The Durango Herald reports BP America Production Co. and others had sought claims to nontributary groundwater, which isn’t considered connected to surface streams. Water Judge Gregory Lyman said last month that state law gives landowners the right to such water under their property, so companies need landowners’ consent first.
2011 Colorado legislation: HB 11-1286 (Clarify State Engineer Nontributary Rule Authority) passes state Senate
April 20, 2011
From The Durango Herald (Joe Hanel):
House Bill 1286 tells the courts to give deference to state water regulators, who adopted maps last year to show when gas and oil wells need to be given greater scrutiny to make sure they don’t injure the water rights of nearby landowners. Farmers and ranchers have sued the state over the rules, saying they are a giveaway to the gas industry. HB 1286 passed 35-0, and the bill is now on its way to Gov. John Hickenlooper.
More 2011 Colorado legislation coverage here.
2011 Colorado legislation: HB 11-1286 (Clarify State Engineer Nontributary Rule Authority) sails through the state House
March 29, 2011
Click here for Joe Hanel’s analysis of the bill from The Durango Herald.
More coverage from Patrick Malone writing for The Pueblo Chieftain. From the article:
Under HB1286, Water Court would be the last line of appeal for decisions by the state engineer. The bill arose in response to a 2009 Colorado Supreme Court ruling that found oil and gas wells are subject to the tributary water permitting process. Supporters of the bill have said it would streamline the permitting and appeal processes. In a committee hearing, an opponent objected that it represents legislative side-stepping of the high court. Next, the bill will be heard by a Senate committee.
More HB 11-1286 coverage here.
2011 Colorado legislation: HB 11-1286, Clarify [State Engineer] Nontributary Rule [Authority]
March 22, 2011
From The Pueblo Chieftain (Patrick Malone):
The House Agriculture, Livestock and Natural Resources Committee voted 13-0 to adopt HB1286, sponsored by Reps. Jerry Sonnenberg, R-Sterling, and John Becker, R-Fort Morgan. The bill aims to streamline the decision-making process on water permits. A 2009 Colorado Supreme Court decision found that water used in coal-bed methane natural gas extraction is subject to the requirements of tributary water permitting. The ruling granted Water Courts authority over permitting conflicts and appeals…
Nontributary water can be exempt from permitting, Following the court’s ruling, the state engineer developed rules to govern permitting within the framework of the court’s decision, and developed a map that reflects extraction operations subject to permitting under it. Among them were some wells in the Raton Basin near Trinidad. Under HB1286, the state engineer’s rules would be acknowledged in statute, appeals of permit decisions would be routed through the rule-making process instead of through Water Court and further appeals of those decisions to a Water Court would require a higher standard of proof to overturn earlier rulings in the chain of appeals.
The chief opponent of the bill to testify Monday was lawyer Philip Lopez of the firm White & Jankowski, which represents the plaintiffs who were victorious in the 2009 case. He characterized the bill as an attempt to legislate around judicial decisions, argued the ruling has not led to the shutdown of any gas wells and said the state engineer’s map confers by default a water right to the oil and gas industry that other water users must follow process to attain.
More coverage from Joe Hanel writing for The Durango Herald. From the article:
House Bill 1286 raises the legal standard the ranchers will need to prove to win their lawsuits against State Engineer Dick Wolfe. Last year, Wolfe drew maps that showed which gas and oil wells needed to get water permits and which ones could drill without going to court to fight about who owns the water…
The Vance and Fitzgerald families took Wolfe’s office to court several years ago for not protecting their water rights from gas wells, and they won at the state Supreme Court in 2009. The ruling shocked the gas industry, and legislators worried all 40,000 gas and oil wells in the state would need to get water permits. So they gave Wolfe’s office the power to draw maps that show where gas wells interact with surface water. Gas wells outside the zone do not need to replace the water they use because the water is assumed to be so deep underground that it will have no effect on surface streams.
But the Vance and Fitzgerald families sued again, along with the San Juan Citizens Alliance, the Oil and Gas Accountability Project and the city of Sterling. Several lawsuits are active, and the main one is working its way through the water court in Greeley…
Mike King, director of the Department of Natural Resources, urged legislators to pass the bill. Wolfe’s office is in King’s department, and King cited the extensive work the engineer’s office did to draw the maps. “What we’re asking is an affirmation of that to remove all doubt,” King said. “This is critical that we resolve this issue and that it doesn’t get litigated and then appealed to the Supreme Court, and we have a two-year window of uncertainty that would not be good for oil and gas production in Colorado.”
More 2011 Colorado legislation coverage here. More coalbed methane coverage here and here.
From The Trinidad Times (Randy Woock):
The Colorado Oil and Gas Conservation Commission’s (COGCC) annual report to the Water Quality Control Commission and Water Quality Control Division of the Colorado Department of Public Health and Environment stated that the 2,055,900,000 gallons (6,309.3 acre feet) of produced water extracted by CBM wells in Las Animas County comprised 89 percent of the region’s produced water in the first half of 2010. The produced water amounts were reported in terms of barrels, with each of the 48,950,000 barrels extracted in Las Animas County equivalent to 42 gallons. A total of 55 million barrels of produced water were extracted by CBM operations in southeastern Colorado during the first half of last year. “There’s still numbers coming in for 2010,” COGCC Environmental Manager Debbie Baldwin said. “Those final numbers (for a 2010 produced water total) haven’t been published yet.”[...]
The most recent produced water figures are a drastic decline from previous years. The fiscal year (FY) 2009-2008 report showed 462,4746,197.4 gallons of produced water generated from Las Animas County wells, and the FY 2007-2008 reported 6,454,568,642.3 gallons of produced water in the area, though that amount was from a combined Las Animas and Huerfano counties calculation. The FY 2006-2007 report showed 7,127,366,514 gallons of produced water from CBM wells in Las Animas and Huerfano counties…
“Approximately 70 billion cubic feet of gas was produced in this region (southeastern Colorado) during the first six months of 2010, with 84 percent of the gas produced from the 2,906 CBM wells in Las Animas County,” the COGCC report stated. “Approximately 212 drilling permits were issued for oil and gas wells in southeastern Colorado in 2010. Approximately 82 percent of the 212 were issued in four counties (41 percent in Las Animas, 23 percent in Lincoln, 11 percent in Fremont, and 8 percent in Cheyenne).”
Energy policy — coalbed methane: Las Animas County producers implement substitute water supply plans for produced water
March 11, 2011
From The Trinidad Times (Randy Woock):
Las Animas County’s four largest gas companies — Pioneer Natural Resources, El Paso E&P Company, XTO Energy and Red River Ranch Holdings — have implemented SWSPs in order to continue gas production in the about 3,068 CBM wells operating within the central Raton Basin. Industry activities in the area discharge from CBM wells a combined total of about 10 million gallons of produced water per day. The SWSPs were approved by the State Engineer’s Office through March 31, 2011 and are nearing the end of their first approved year of implementation. The SWSPs call for replacement water to come from, “a lease with the City of Trinidad to supply up to 50 acre-feet of fully consumable water from the city’s storage account in Trinidad Reservoir.”[...]
A summer 2009 decision by the Colorado Supreme Court in the Vance v. Simpson case determined that the groundwater produced during CBM drilling production, previously considered a waste by-product, was of “beneficial use,” and thus had to undergo permitting and comply with Colorado groundwater laws. The state then passed an authorization for the State Engineer’s Office to approve alternates such as SWSPs in place of augmentation plans. That authorization for alternates extends from March 31, 2010 to Dec. 31, 2012 in order to provide energy companies in Colorado with extra time to integrate CBM wells that withdraw waters considered tributary and that impact “over-appropriated” streams into the state water court’s adjudication process.
Colorado Division of Water Resources Division 2 Engineer Steve Witte told The Times Independent that the Division had turned down initial requests by the companies to utilize the non-tributary water component of the CBM produced water as a replacement source. “The concern that we have is the native tributary water supply that water rights along the Purgatoire (River) depend upon are not diminished by the withdrawal of groundwater,” Witte said. “The initial proposal was that, of the water that they withdraw from the coal beds, they determined that a portion is tributary and a portion is non-tributary, and they thought that they would simply rely on the non-tributary water as a replacement for the stream depletions that were calculated.
Energy policy — coalbed methane: Two Rivers Water Company inks MOA with Petroglyph Energy to study treating coalbed methane produced water
October 12, 2010
From TradingMarkets.com:
Two Rivers Water Company, a company focused on acquiring and developing water, farming and alternative energy in southern Colorado, and Petroglyph Energy, Inc., an Idaho corporation, announced today they have entered into a non-binding Memorandum of Understanding to complete a feasibility study for the treatment of produced water originating from coal bed methane production in Huerfano County, Colorado.
From The Pueblo Chieftain (Chris Woodka):
Before last year, the state did not administer water produced by coal-bed methane wells. The water in question is groundwater commonly found along the seams of coal from which methane gas is extracted. In the Arkansas River basin, there are hundreds of wells located in Las Animas and Huerfano counties. There are also large coal-bed methane fields in the San Juan and Picance basins in Western Colorado, as well as at smaller sites around the state…
The state Legislature subsequently passed a law, 09-HB1303, that affirmed the Supreme Court decision that removal of water for coal-bed methane is a beneficial use. The law also directed State Engineer Dick Wolfe to develop rules for oil and gas wells. “So, what does it mean? It means the state could issue permits, and it could mean a big curtailment,” [Kevin Rein, assistant state engineer] said. Nontributary groundwater is not affected by the decision or the law, however. The state does not administer nontributary groundwater — that which is pumped from wells that would not have a 1 percent depletion on surface flows over 100 years. Earlier state laws, 73-SB213 and 85-SB5, give certain rights to landowners or oil and gas drillers to nontributary water. Because gas wells often are thousands of feet deep, as opposed to hundreds of feet for most domestic or irrigation wells, many could be nontributary, Rein explained…
In coal-bed methane production, the removal of water itself is considered a beneficial use, so all require a permit if the groundwater is deemed tributary. In other oil and gas production, the state still regards only water used for purposes such as dust suppression or fracturing geologic formations as beneficial. So far, about 5,000 coal-bed methane wells have obtained permits, and some companies have begun filing for water rights in Water Court or substitute water supply plans from the Division of Water Resources.
Energy policy coalbed methane: Aguilar town council hears presentation about coalbed methane well produced water
September 30, 2010
From The Trinidad Times (Randy Woock):
A presentation at the town council meeting on the water monitoring had been arranged, Pioneer’s Senior Public Relations Advisor, Karen Brown, told the meeting’s attendees, “So you all could hear more about what it is we do to protect the water that is coming off of the discharges CBM production…the intent (of the presentation) is to open the discussion, provide some information about how Pioneer is approaching this, that we want to approach it from a scientific perspective and have documentation to prove that, in fact, water is, in fact, within its permit limits.”
Pioneer has been discharging around the Apishapa River since 2005, though none of its four outfalls are on the Apishapa River’s mainstem. Pioneer is currently discharging at a rate of 1.8 acre-feet of water, or 600,000 gallons, per day. Pioneer has about 2,450 wells in the basin. The National Pollution Discharge Elimination System permit it has applied for, according to Pioneer’s senior energy environmental advisor, Gerald Jacob, would allow for a maximum surface discharge amount of 999,999 gallons per day.
The discharge permitting process begins with the preparation of a draft permit, of which are considered possible impacts of the proposed discharge levels, measured against the water quality standards as adopted by the Water Quality Control Commission. The standards consider variables like effluent limits based on in-stream water quality, the quality and types of expected effluents coming from the discharge facility and as well as impacts on the stream at extreme low-flow periods…
The three monitoring stations deployed on the Apishapa River — at Lisonbee, Eichler and Nations — were placed and are monitored by the Norwest Corporation, a environmental consulting firm specializing in hydrology. Norwest’s stations monitor in 15-minute intervals water levels and salinity at their deployment points, as well as conducting flow measurements and water quality sampling every two weeks. Processed data and the resultant charts are uploaded to the website, apishapawatershed.org, after several weeks, though each station also contains a direct display that updates every minute. “I really encourage you to use the website, and if you’re concerned and you want to keep track of stuff…we post all the lab data results, we’re comparing it to what we’re finding in the stream…it’s a really useful tool,” Hyrdrologist Angela Welch of Norwest said. “We really are trying to help you guys out by protecting your assets, which is your stream.”
Energy policy — Coalbed methane: State Engineer’s produced water rules lawsuit(s) update
August 31, 2010
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
Energy policy — coalbed methane: Las Animas County coalbed methane natural gas producers’ substitute water supply plans update
August 24, 2010
From The Trinidad Times (Randy Woock):
The proposed SWSP was outlined in a July 22 letter to the companies from the Division of Water Resources. The letter notes that, as of December 2009, about 2,600 CBM wells in the Raton and Vermejo formations were considered to have an impact on tributary waters in the Raton Basin. A total of about 3,068 CBM wells operate within the Central Raton Basin…
The letter gives the average pumping rate of all active CBM wells in the affected areas in 2008 to have been about 2.95 gallons per minute (gpm). “For production through 2008, 95 percent of the pumping rates were below 12.6 gpm per well,” it states. “Estimated water production from potential new tributary CBM wells was determined…(e)ach new well perforated in the Raton Basin was assigned a pumping rate of approximately 12 gpm (6 gpm for the Upper Raton Formation and 6 gpm for the lower Raton Formation.” Depletion amounts were calculated using MODFLOW, an industry standard numeric groundwater flow modeling code also used by the U.S. Geological Survey. A 2008 study of the impact of area CBM wells on the Purgatoire River, commissioned by Pioneer and XTO, had found…
Monthly depletions in the affected area for the SWSP’s effective period of April 2010 to March 2011 were estimated as 0.105 acre-feet of water. Depletions caused by CBM pumping prior to 2008 combined with the estimated depletions, figured as a maximum estimated production of tributary water through the plan’s validity endpoint of March 31, 2011, are projected at 4.126 acre-feet. The SWSP, as approved by the SEO, calls for replacement water to come from, “a lease with the City of Trinidad to supply up to 50 acre-feet of fully consumable water from the city’s storage account in Trinidad Reservoir.”[...]
Karen Brown, Pioneer’s senior public relations adviser, told the Las Animas County Board of Commissioners at its Aug. 17 meeting that Pioneer was considering at least five different methods to measure water produced from its wells, including those purchased over the past 15 years from, “numerous operators who, at the time the wells were drilled, did not foresee such a change in regulations that would give the (SEO) jurisdiction over the CBM water production.” She added that Pioneer did already take flow measurements at its wells, discharge points and injection wells, and that it should have completed in the next 30-60 days the tests on the five aforementioned methods to determine which it would utilize to meet the SEO’s water measuring requirements. “Our job is really to ensure that the accuracy of these methods meets the (SEO’s) standards,” she said. Brown also said that more than 700 of Pioneer’s CBM wells produced less than 1 gpm of water. “It’s hard to really gauge that kind of flow,” she said. “Obviously, we want to really assess all of the different options because any one of these things will pose significant costs to the company.”
Additionally, Pioneer, XTO Energy and Red River Ranches hired earlier this year the environmental engineering and consulting company, Tetra Tech, to install and monitor on the Purgatoire River and its tributaries a system of water data monitoring stations. The system, in place for the next two year, includes nine continuous monitoring stations and 25 monthly monitoring stations to collect data on such things as flow levels, temperature, pH and chloride levels, sodium absorption levels and the water’s electrical conductivity levels.
From The Durango Herald (Joe Hanel):
The case involves a challenge by Southwest Colorado ranchers and several other landowners to the water rules for gas and oil wells that the state engineer adopted early this year. Sarah Klahn, the plaintiffs’ lawyer, said the rules should be overturned because many affected landowners never received legal notice that the state was about to pass rules that affect their groundwater. “Industry wants to say, here are the rules. We’re done. We win,” Klahn said in a hearing Friday. “It’s only fair that the landowners have the same opportunity to participate in this. We think the only way that’s going to happen is if it’s in Durango.”
If the case had gone to Durango, it would have been heard by Judge Gregory Lyman, who ruled against gas companies in the water rights case that set these events in motion. But lawyers for the state engineer’s office and gas companies argued that the case should be heard in Greeley, which is much closer to Denver – the seat of government and headquarters for many gas companies. “This case should be heard here, where the agency is located,” said First Assistant Attorney General John Cyran. “It is a matter of statewide importance.”[...]
The first lawsuit challenges the legal procedure the state engineer used to pass the rules. It was moved to Greeley on Friday.
The second lawsuit challenges the map the engineer adopted for Southwest Colorado to show where the industry has to take extra steps to replace the water it uses. Lawyers on both sides agreed Friday to put that lawsuit on hold until the first one is decided.
Separately, gas companies have filed 11 different applications for water rights in Durango’s water court. As part of those cases, the industry sent out notices by mail to hundreds of landowners earlier this year. Several landowners – as well as the city of Durango, the U.S. Forest Service and others – filed statements of opposition. Lyman will decide later whether to grant the water rights.
Energy policy — coalbed methane: Governor Ritter signs SB 10-165 giving operators more time to score the necessary paperwork
March 26, 2010
From the Associated Press via the Grand Junction Free Press:
Gov. Bill Ritter signed Senate Bill 165 extending the deadline. State Engineer Dick Wolfe has said he needs the bill to keep his office from being overwhelmed with paperwork.
SB 165 also gives companies limited permission to use produced water from their gas wells.
More coalbed methane coverage here and here. More 2010 Colorado legislation coverage here.
Energy policy — coalbed methane: Pioneer Natural Resources files augmentation plan for coalbed methane produced water
March 14, 2010
From The Pueblo Chieftain (Chris Woodka):
Pioneer Natural Resources filed its application last month under new state rules brought on by a Supreme Court decision and legislation last year. The company operates nearly 3,000 wells in Las Animas County, mostly above Trinidad Lake in the Purgatoire River Basin.
Jeris Danielson, manager of the Purgatoire Water Conservancy District, said the district is close to reaching a stipulation on how many of those wells are tributary to the watershed. He has not seen the filing for the augmentation plan and could not comment.
In January, Pioneer filed a plan with the state Division of Water Resources claiming that about 1,800 of its wells are tributary. It also says that 1,170 of its wells produce nontributary water. Another 108 wells not yet drilled are also covered in the court filing. The filing describes how replacement water, or augmentation flows, would be discharged at numerous points throughout the watershed, accounting for both flowing and perennial streams. The application asks for storage rights at various points to use produced water from nontributary wells to augment flows. The application specifically avoids claiming salvaged water from tributary flows, based on previous court decisions.
From The Durango Herald (Joe Hanel):
The state engineer adopted rules this year to exclude many gas wells from added regulation. In Southwest Colorado’s San Juan Basin, only wells close to the basin’s edge will need plans for replacing water they use. In most cases, the state engineer ruled that the gas wells are too deep to affect streams and springs that ranchers use. But opponents, led by the Vances’ and Fitzgeralds’ lawyers, fought the rules. They said the state engineer relied too heavily on a map developed by the gas industry. They sued the state engineer Monday, seeking to overturn both the statewide rule and the map specific to the San Juan Basin. “We wish they’d done it right, but they didn’t,” said Alan Curtis, a lawyer with the firm…
Jim Martin, director of the Department of Natural Resources, was not aware of the lawsuit Tuesday, but he has said the state engineer’s office is trying to be fair to everyone without bringing the gas industry to a halt…
Also Tuesday at the Legislature, a House committee unanimously passed a bill to extend deadlines for gas companies to apply for water permits. Right now, gas companies are under a March 31 deadline to apply for thousands of water permits, thanks to the Supreme Court’s Vance ruling and a bill the Legislature passed last year. [Senate Bill 10-165: Adjust Oil and Gas Regulation] (pdf) extends the deadline to Aug. 1. Anything less would overwhelm the engineer’s office, Martin said…
Curtis and other opponents say a section of the bill could mess up Colorado water law by granting gas companies the right to use the water their wells produce. A water well permit is different from a water right. Well permits allow limited pumping from aquifers under a person’s land. The state engineer grants them. Only judges can grant a water right, which can allow water to be used, bought, sold and perhaps moved around the state. The Denver Water Department and several members of the Colorado Water Congress are worried about the bill’s future effects, said Sara Duncan of Denver Water. She led a Water Congress group that tried to reach an agreement about the bill. The group agreed to extend the deadline to apply for permits, but it split on saying what gas companies can do with the water they produce. Gas and oil companies joined Martin’s Department of Natural Resources to support the bill. It allows companies to use water they produce through their gas wells for things like dust control or mixing cement. This will cut down on fresh water use and truck traffic in the gas patch, Martin said.
The Legislature has never directly tackled the question of who owns produced water or how it can be used. Several members of the House Agriculture Committee said Tuesday that the Legislature will have to make a decision in a future year. “At some point in the future, we’re going to have to recognize the value that is in produced water,” said Rep. Wes McKinley, D-Walsh.
More coalbed methane coverage here and here. More 2010 Colorado legislation coverage here.
From the Cortez Journal (Joe Hanel):
[Senate Bill 10-165] (pdf) passed the Senate Agriculture Committee 6-0 on Wednesday. Sen. Bruce Whitehead, D-Hesperus, voted yes… SB165 extends the [March 31 deadline to file a substitute water supply plan] until August, because the state engineer’s office was facing a flood of paperwork.
Meanwhile the Colorado Water Conservation Board’s construction fund avoided being dried up completely as the legislature moves to pass a budget bill. Here’s a report from Joe Hanel writing for The Durango Herald. From the article:
A year ago, the Colorado Water Conservation Board had two of the richest bank accounts in the state government. But after the recession arrived, the Legislature took $107 million from the accounts. Today the balance stands at about $19 million, and the Legislature’s budget writers had plans to take that, too…
But Gov. Bill Ritter’s Department of Natural Resources rebelled, and a bipartisan group of representatives joined to defeat the effort on a 39-22 vote…
The spat was a sideshow to the major work the House did Wednesday – cutting hundreds of millions out of this year’s budget. Wednesday’s bills bring the total cuts to about $2 billion. And there’s more to come. In March, the Legislature will take up the 2010-11 budget, which needs an added $1 billion in cuts. For the most part, Wednesday’s work formalized cuts that Gov. Bill Ritter proposed last year. The savings come from eight unpaid days off for state workers and cuts in payments to Medicaid doctors and caretakers of disabled people. The plan also takes $64 million in gas and oil taxes that had been earmarked for local governments.
More 2010 Colorado legislation coverage here.
Energy policy — coalbed methane: Bayfield public meeting recap
February 6, 2010
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.
Energy policy — coalbed methane: Landowners mulling filing for water rights after industry filings surface
February 4, 2010
Here’s a call to arms of sort from the Director of the San Juan Basin Citizens Alliance, Megan Graham, via The Durango Herald. She is recommending that landowners get educated quickly about filing for water rights under their land now that the oil and gas operators in the area are filing for decrees as a result of the new rules for coalbed methane produced water from the State Engineer. From the article:
The map defining the two, issued by the state engineer’s office, has raised some questions in that it was based heavily on input from industry. But what has gotten even more attention is a blizzard of water-rights filings by industry on the water in question: rights that would trump those of the overlying surface owners who had not previously sought their own adjudicated water right. The nuances of this scenario are many, and landowners on whose property these rights have been filed understandably are full of questions about what the filings mean for their water and land.
There are larger questions, too, about what the industry is up to. Seeking legal, and arguably unnecessary, claim to thousands of acre-feet of water – albeit often brackish and of questionable use – without permission of the overlying landowner is hardly neighborly, and raises eyebrows at the very least. It also raises a number of legal issues that will be keeping water attorneys busy for the next several months, at a minimum. And that leaves aside, for the moment, the question of augmentation plans for the water deemed to be tributary.
In the meantime, though, landowners who received notice of a water-rights filing – tributary or nontributary – would be wise to educate themselves about what is at stake in their particular circumstance. Those with an adjudicated right or a ditch right, for example, might take a different course of action than someone who has no property rights to the water in question.
There are a number of options on how to proceed, and determining the best one requires diligence and access to knowledgeable resources. Fortunately, there are many of these available to help sort through this inherently murky situation.
Energy policy — coalbed methane: La Plata County Informational meeting on the State Engineer’s new coalbed methane produced water rules tonight
February 3, 2010
Here’s a recap of yesterday’s informational meeting, from Katie Burford writing for The Durango Herald. From the article:
State water officials were at Bayfield High School on Tuesday evening to provide information about a water case decided last year by the state Supreme Court and related to recently passed legislation. After nearly three hours of presenting and answering questions, more questions were still rolling in from the approximately 125 people in attendance. “I know people have a lot of concern,” said John Cyran, head of the water-resources unit at the state Attorney General’s office.
The most contentious issue at Tuesday’s meeting was a map released last month by the state Engineer’s Office showing where water is considered tributary – meaning it feeds into streams – and where it is not. Generally speaking, tributary wells were closer to the Fruitland Outcrop – where the lip of the San Juan Basin curves to the surface in an arch across La Plata County. Meanwhile, deeper wells farther out in the basin toward New Mexico were mostly nontributary…
State law gives nontributary water to both landowners and gas operators, so long as operators are using it specifically for mining. But only water court can grant either of them an adjudicated right to the water. The fact that gas companies are speaking up for the nontributary water by filing applications in water court had residents at the meeting asking if they should do the same. State officials said to have standing in the case, residents, too, must file for a right in court. Once they have a pending application before the court, they can file an objection, which is due by the end of the month. “You’ve got to show you’ve got a dog in this fight,” Cyran said.
Here’s the link to the proposed rules from the Colorado Division of Water Resources website.
Energy policy — coalbed methane: Do the recently issued produced water regulations fall short?
January 24, 2010
Here’s a guest column from Durango water attorney, Amy Huff, that is critical of the new rules promulgated by the legislature and the state engineer for regulating produced water from coalbed methane wells. Ms. Huff wonders if the rules will protect senior rights holders. From the article:
Last April, the court held that the extraction of water – often called “produced water” – that occurs in the process of extracting coal-bed methane is a beneficial use of water, requiring a water right, which must be administered in our priority system. That ruling resulted in the Legislature revising Colorado’s statutes to give special rights to those claiming to use nontributary water for mineral purposes, in the state engineer promulgating rules that define certain areas of the groundwater in the San Juan Basin to be nontributary, and in the gas industry racing to the courthouse to adjudicate water rights for its coal-bed methane wells. These significant changes to Colorado’s water administration system should be carefully reviewed to ensure all water users are treated fairly, and to protect their property rights…
Before the recent legislative changes, people seeking non-tributary water rights, which would not be subject to the prior appropriation system, had to demonstrate they had the landowner’s consent to withdraw the water. The recent legislative changes have exempted those seeking nontributary ground water for mineral development, including oil and gas development, from obtaining landowner consent, and now the state engineer has designated an area of groundwater in the San Juan Basin as nontributary, as long as the permittee is using the water for mineral development.
In response, there were 12 water court applications filed last month by gas operators to obtain water rights for coal-bed methane production purposes. In total, these applications identify approximately 1,300 existing coal-bed methane wells and contemplate an additional 2,000 wells. Many landowners have received notice that a company has filed for a water right that will be diverted through a structure located on their property. The applications filed by entities such as ConocoPhillips, XTO Energy, Southern Ute Tribe, BP, Samson Resources, Four Star Oil & Gas, and Chevron are confusing because, in many instances, the locations of the water rights sought by these companies are broadly defined and are often described as a “well field,” making it very difficult to know where the energy company is planning to drill.
Additionally, some applications claim a right to nontributary water. Colorado case law has confirmed that the legislative intent has been to allocate the right to withdraw nontributary ground water according to overlying land ownership; nonetheless, the Legislature has now exempted those using non-tributary water for mineral development from needing to obtain that landowner’s consent.
The legality of this preferential treatment is uncertain and, therefore, debatable. It is inequitable that an entity can withdraw nontributary water for mineral development without landowner consent, while an entity that wishes to withdraw the same water for any other purpose is still required to obtain such consent. A more detailed notice of the water court filings can be found at the following Web site: www.courts.state.co.us/Courts/Water/Division.cfm/Water_Division_ID/7.
With the Legislature’s authorization to promulgate rules to assist in the administration of nontributary water used for mineral development, the state engineer developed Produced Non-tributary Ground Water Rules, which set forth the procedures for obtaining a nontributary designation and also establish certain areas of ground water that are nontributary, if the permittee is using water to facilitate the mining of minerals. It is problematic whether the state engineer should have the authority to establish different procedures for permitting wells that withdraw nontributary water when the water is used to facilitate mineral development and whether he can designate the ground water beneath landowners’ property as non-tributary to benefit those who are in the business of mining minerals. For more details, visit http://water.state.co.us/ for a copy of the rules. In particular, examine the maps that show the boundaries of the nontributary area in the San Juan Basin.
Energy policy — coalbed methane: State Engineer Dick Wolfe uses industry maps to develop rules governing produced water augmentation
January 10, 2010
From The Durango Herald (Joe Hanel):
State Engineer Dick Wolfe finished new rules for area coalbed methane wells Dec. 30. They allow most of the wells in San Juan Basin to be treated as nontributary, meaning the water in the coal seams does not connect with surface streams. “There’s a lot at stake. If they can turn Colorado water law on its head like this and get away with it, I don’t know how anybody can feel like their water rights are safe,” said Jim Fitzgerald, who successfully sued the state in 2005 for not protecting his water rights from coalbed methane drilling. Fitzgerald’s wife, Mary, and Bill and Elizabeth Vance of Archuleta County also were plaintiffs.
Their case went to the state Supreme Court, which said coalbed methane wells need to get a water permit from the state engineer. What’s more, gas companies might be required to create augmentation plans to replace the water they use…
The Supreme Court case scared water regulators – who feared a blizzard of paperwork – and gas companies – who did not want large new costs for drilling wells. Shortly after the Supreme Court ruling last April, the Legislature directed Wolfe’s office to set rules about which wells don’t need augmentation plans. The rulemaking is ongoing, but the portion that covers coalbed methane wells in Southwest Colorado was finalized in December…
During the rulemaking, area gas companies collaborated to create a map of nontributary water. Wolfe adopted that map as official state policy. The change takes effect at the end of January, but Fitzgerald and other land-owners plan to appeal to water courts. Wolfe defended his decision to use the gas companies’ model of underground water. It used good science based on “complete and robust data,” Wolfe wrote in his justification for the rules. Zeller, too, defended the way companies drew the map. “If we were in doubt, we erred in the interest of the other water rights holders,” she said…
Durango City Manager Ron LeBlanc sent Wolfe a letter last month to say he thought the rules could hurt the city’s water rights on the Animas and Florida rivers. “We believe the results of such rulemaking may not be manifested for decades to come, and that the effect of the dewatering of aquifers in the area of our water rights will have a detrimental and irreversible effect on the city’s pubic water supply,” LeBlanc wrote…
San Juan National Forest Supervisor Mark Stiles sent Wolfe a letter asking for a delay until federal land officials could do detailed studies on springs in the land they manage. Wolfe didn’t grant the delay, but the Forest Service does not plan to appeal, Stiles said…
Wolfe said he took seriously the concerns from foresters, city officials and others. “I don’t want people to think that we were totally dismissive of these individuals’ concerns,” he said. In general, Wolfe’s map puts wells in the southern parts of La Plata and Archuleta counties into the nontributary zone, exempting them from strict regulations. Most of the Southern Ute Indian Reservation is in the nontributary zone.
Even with the nontributary exemption, gas companies still will have to file well permits for more than 4,000 Southwest Colorado wells. And the tributary wells will need court-approved plans to replace the water they use. Those plans will go back to Judge Gregory Lyman, the Durango water judge whose ruling started the whole affair, Zeller said. “He’s going to get a whole bunch of paperwork,” she said.
