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 Doe OK, CDOW says
2/5/2010 By: Times Staff report
Photo courtesy CDOW
Stephanie Schuler, district wildlife manager with CDOW, says this doe photographed on East Street in downtown Bayfield last week apparently has a recycling bin lid wrapped around her neck. She may have been checking out a bin and got it stuck over her head.
Schuler said the doe appears to be doing well and can still eat, so the division recommends leaving her alone. She is running away from any humans trying to approach her. Although some people have called and asked if division staff can tranquilize her to remove the lid, Schuler said this is a bad time of year to do so because tranquilization lowers body temperature, and she could become ill in the cold weather. The division will keep an eye on the doe and try to remove the lid this spring if necessary.
It’s complicated
Local landowners try to figure out new rules for gas drilling
By Carole McWilliams
Times senior staff writer
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.
The new rules and the Water Court filings are prompted in turn by a State Supreme Court ruling last April and related legislation on a suit filed in 2005 by two local ranch families against the State Engineer’s Office to force DWR to administer coalbed methane water under state prior appropriation law.
“It’s unique to coalbed methane wells that the water has to be removed to get the gas to flow,” State Engineer Dick Wolfe said. One of the key elements of the Vance v. Wolfe ruling last year was affirmation of the local Water Court ruling that pumping that water is a beneficial use, since it is necessary for gas production.
That brings it under the State Engineer’s authority. “In the past, if there was no beneficial use, no water well permit or augmentation plan was required,” 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…”
Asked if that means the rules only apply north of the Ute Line, Wolfe and Cyran said the intent is to exempt land controlled by the Southern Ute Indian Tribe, not fee land within the reservation. But the rules do not make that distinction.
Wolfe said the non-tributary coalbed methane rules became effective on Jan. 30. Rules for non-coalbed methane wells (generally to deeper formations) will be released by Feb. 15 and will go into effect on March 17, he said.
Some audience members objected to the non-tributary map in the coalbed methane rules.
“Garbage in, garbage out. You just don’t want to do the work,” Janine Fox said. “It’s Nintendo geology with people coming from Denver telling us there’s no connection. Our experience is there is. A (gas) well gets drilled and the water goes dry.”
Fox is the daughter of Jim and Terry Fitzgerald, co-plaintiffs in the Vance suit.
Bill Vance, one of the other plaintiffs, asked why the non-tributary area goes right to the Fruitland outcrop in some places, including near his ranch on the east side of Yellowjacket Pass.
Wolfe said the small-scale map could be misleading.
Cyran said, “With the rulemaking, we wanted to give (the Engineer’s Office) a way to do their job. Whether it’s binding in court is another matter.”
Wolfe said the non-tributary map is based on a geologic model by a consultant paid by the companies.
Fox asserted, “This map represents a conflict of interest. It’s important that we know that.”
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.
An audience member asked whether companies can sell the non-tributary water they withdraw from under land they don’t own.
Another question was whether they can use that water for augmentation for tributary coalbed methane wells.
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.”
Cyran added, “The short answer is they are going to buy it.”
The state representatives said water from non-tributary coalbed methane wells could be used for that. Cyran said, “They have to figure out how to move it. If they are taking it out while they are mining; only while they are mining.”
Cyran said companies can only pump that water as needed to get the gas out. “You can’t just take water out.”
As for the flood of company Water Court filings, 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.
Another audience member noted the wide range of uses listed in recent company filings for both tributary and non-tributary gas well water. Who monitors what they do with the water, he asked.
The state responders indicated that would depend on how the water is used.
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.”
Wolfe said the forms for that and instructions are available as a link on the DWR website: http://water.state.co.us.
Tone said people have a very short time to get all the information needed on those forms.
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