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1/29/2010 By:
Gas companies seek water rights
By Carole McWilliams
Times senior staff writer
Oil and gas companies operating in La Plata County have filed massive applications in District 7 Water Court for rights to the water pumped out of coalbed methane wells, and also for some deeper conventional gas wells.
Filers include BP America, Conoco-Phillips, XTO Energy, the Southern Ute Indian Tribe, Samson Resources, Four Star Oil and Gas, Chevron Midcontinent, and Chevron USA.
Legal notices filed by those companies filled several pages of the Durango Herald on Jan. 25.
The filings are in response to a State Supreme Court ruling in spring 2009 in favor of two local ranch families who wanted the State Water Engineer to take permit responsibility for coalbed methane water and protect the interests of senior water rights holders.
Since then, the State Engineer has declared water from coalbed methane wells in the deeper parts of the Fruitland coal formation in La Plata County to be “non-tributary,” meaning a water well permit isn’t needed. That area is all south of Highway 160 except for a very small area just east of the Florida River.
The company filings cover both tributary and non-tributary groundwater. The filings also state intention to file separate augmentation plans for wells determined to have tributary water.
The San Juan Citizens Alliance and local water attorney Amy Huff held a community meeting on the filings Tuesday evening at the Florida Grange Hall.
In a recent news column, Huff said that in response to the Vance vs. Wolfe ruling, the State Legislature and State Water Engineer (Dick Wolfe) have in effect created a special right for one category of user to have access to non-tributary water.
The right to non-tributary water has historically been with the surface owner, she said. Anyone else withdrawing that water had to show they had landowner consent.
The legislature changed that consent requirement to exempt mineral development, while the State Engineer has declared large parts of the coalbed methane area in La Plata County to be non-tributary, she said, questioning the legality of special treatment for one industry.
Traditionally all groundwater has been considered tributary unless specifically proved otherwise, and has been administered according to the state’s prior appropriations system.
The rules’ stated intent is to establish procedures for operators to petition for a determination that water is non-tributary, and to identify areas where the State Engineer will “regard ground water removed from geologic formations to facilitate or permit mining of minerals to be non-tributary.”
It also says, “These rules apply only to ground water removed from geologic formations to facilitate or permit mining of minerals.”
It says part of the reason for this is “to obviate the need for administration of wells subject to permitting consideration…”
However, much of the designated non-tributary area is within the Southern Ute Indian Reservation. The rules say they “shall not be construed to establish the jurisdiction of either the State of Colorado or the Southern Ute Indian Tribe over non-tributary ground water within the boundaries of the Southern Ute Indian Reservation…”
Although water well permits aren’t needed for non-tributary water, the rules also say the State Engineer’s final decision on a permit application will depend on whether or not non-tributary water will be used beneficially.
The Vance ruling affirmed that where water removal is necessary for the gas to flow, it’s a beneficial use. Operators had argued that it’s a waste product.
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