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Locals win court ruling on water from gas wells
7/6/2007 By: Carole McWilliams
Two local ranching families have won a court ruling on state regulation of huge quantities of water pumped out of coal bed methane gas wells.
District 7 Water Court Judge Greg Lyman issued the 20-page ruling on July 2 on the suit filed in Nov. 2005 by Jim and Terry Fitzgerald and Bill and
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Lyman granted summary judgment for the plaintiffs and denied motions by the State Engineer’s Office and BP for summary judgement in their favor. Lyman granted “the relief requested” by the plaintiffs.
Jim Fitzgerald said, “In other words, we won. I think it will be quite a deal. We kind of expect the state and BP will take it to the Colorado Supreme Court, but until then, it will be the law.”
He stressed that the ruling granted everything they asked for in their suit, including an immediate halt to pumping water out of coal bed methane wells so the gas will flow. “Apparently they don’t have to comply with the order for 15 days,” he said. He expects BP and the State Engineers Office to file for a stay on enforcement and file an appeal.
The original suit included copies of letters from the state engineer denying responsibility for regulating gas well water and charged that he had abdicated his statutory duties. That has violated the Vances’ and Fitzgeralds’ due process rights, the suit said.
It sought a declaration that “CBM wells, including those now or in the future located in Division 7, are subject to the State Engineer’s well permitting responsibilities,” and that the state engineer’s office “must curtail any ground water diversion occurring until such wells are permitted by the State Engineer and covered by a decreed plan for augmentation, or the wells are operating under a substitute water supply plan approved by the State Engineer…”
The suit also sought a declaration that the State Engineer must stop groundwater diversions through coal bed methan wells that don’t have a permit from the engineer’s office; and must curtail diversions that aren’t put to beneficial use, whether or not a permit is required.
The Vances and Fitzgeralds are represented by a Denver attorney, Sarah Klahn.
Coalbed methane wells in La Plata County generally depend on the companies pumping out huge quantities of water from the Fruitland coal formation to reduce pressure so the gas will release from the coal.
Most of the water goes into disposal wells, pumped into much deeper geologic formations.
The Vances and Fitzgeralds filed the suit in November 2005 against the state engineer’s office and the District 7 water engineer, a departure from previous suits that were filed unsuccessfully in the 1990s against gas production companies claiming damage to water wells.
Fitzgerald said the suit came out of a statement in the Forest Service/ BLM draft EIS on coalbed methane development north of the Ute Line and in the HD Mountains. The draft EIS was issued in June 2004 and referred to gas well water as “tributary” to state waters.
If it is tributary, the state engineer’s office is required to regulate it, the suit asserted. It argued that the water is being put to “beneficial use” because its removal is what allows the gas to flow.
In this week’s ruling, Lyman said several times that the coal bed methane water is presumed to be tributary.
He said, “The court reaches the unavoidable conclusion that non-exempted mineral-related activities, such as oil and gas activities, are subject to the scrutiny of state water law. … Thus, the statute implies that dewatering of geologic formations by removing tributary groundwater to facilitate or permit mining of minerals requires a water well permit.”
Lyman continued that a gas well isn’t subject to technical rules on construction of water wells, but “an oil and gas well that affects water rights is subject to the permitting requirements of the Ground Water Act.”
He cited information from BP that coal bed methane production had depleted an estimated 156 acre feet of water per year as of August of 2005.
Fitzgerald said the ruling is drawing interest across the state and in Wyoming.
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