CO. Supreme Court affirms ground water rights

Comment: the state of Virginia needs to protect our water just like CO! Write your local leaders and our state leaders to give rights to ground water NO!

by Brahman Colorado
Apr 24, 2009 at 07:54:59 PM PDT

In a landmark, potentially far reaching decision released on 4-20-2009, the Colorado Supreme Courtaffirmed the Water Right Determination and Administration Act of 1969, ("1969 Act"), and the Colorado Ground Water Management Act, ("Ground Water Act").

The Engineers and BP America Production Company ("BP"), an intervenor in the action, opposed the Ranchers’ request for a declaratory judgment, arguing that the use of water during Coal Bed Methane (CBM) production is not a "beneficial use." The water court held, however, for the Ranchers, finding that CBM production constitutes an appropriation for a "beneficial use," and that consequently, the Engineers cannot allow out-of-priority diversions for CBM production without a well permit and, where necessary, a decree adjudicating an augmentation plan.

In laymans terms,the court determined that CBM wells producing tributary ground water are water wells that require well permits issued by the Colorado State Engineer, and where applicable, a water court-approved plan to replace depletions to impacted stream systems.

Brahman Colorado's diary :: ::
In a previous article, I wrote of the impact in Huerfano County on my best friends water well. He was represented and backed by numerous Attorneys for Amicus Curiae (friends of the court) including the City of Trinidad, Colorado, Purgatoire River Water Conservancy District, Western Resource Advocates, Trout Unlimited, San Juan Citizens’ Alliance, North Fork Ranch Landowners’ Association and La Plata County, Colorado.

La Plata, Huerfano and Las Animas counties have all been affected historically by the refusal of the State Engineer to regulate CBM produced water on the grounds that it is a waste product (!) and the management and disposal of which is subject to the jurisdiction of the Colorado Oil and Gas Conservation Commission.

Imagine that for one minute.

CBM wells that produce tributary water are now subject to water well permitting, water court adjudication and administration in Colorado’s water rights system. The Court expressly declined to give deference to the State Engineer’s long-standing, pretentious and contrarian interpretations of the 1969 Act.

The implications of taking away the interpretations of State Engineers and the Colorado Oil and Gas Commission, who have been very friendly to oil and gas interests and redefined water as a "nuisance" and "waste product", and placing it into the constitution under the jurisdiction of the Colorado Water Court; will have far reaching impacts on the oil and gas industry in Colorado. Their ability to "dewater" and pollute tributaries, aquifers and ground water will hopefully now be severely limited.

It is a rare victory for land owners, ranchers and the citizens of Colorado in defending the most precious of our natural resources...water.

It removes the Oil and Gas industry and it's allies in the State Engineer's office and COGCC from redefining water as a "waste product".

In fact they are now required to "augment" it as a priority resource.

Let's face it. We can all survive without methane gas.(and Uranium mining)

We cannot live with polluted watersheds.

We (Colorado Supreme Court) now affirm the water court. The 1969 Act defines "beneficial use" as "the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste( emphasis mine) the purpose for which the appropriation is lawfully made." Under the language of the 1969 Act, the CBM process "uses" water -- by extracting it from the ground and storing it in tanks -- to "accomplish" a particular "purpose" -- the release of methane gas. The extraction of water to facilitate CBM production is therefore a "beneficial use" as defined in the 1969 Act. We reject the Engineers’ and BP’s argument that water used in CBM production is merely a nuisance (emphasis mine) rather than a "beneficial use." On the contrary, the use of water in CBM production is an integral part of the CBM process itself. The presence and subsequent controlled extraction of the water makes the capture of methane gas possible.

As our precedent in the gravel cases makes clear, the fact that the water used during the CBM process may become a nuisance after it has been extracted from the ground and stored in above-ground tanks (that is, after it has been beneficially used) does not prevent a finding that the water is put to a beneficial use.

The concerns of the court were expressed by Justice Coats that would allow the Legislative Branch a chance to devise Beneficial Use legislation.

The Colorado House has introduced the following bill:

House Bill 09-1303, that would provide an orderly process for bringing CBM wells that produce tributary groundwater into the state’s well permitting and water rights administration system. Under the legislation, operators of CBM wells that produce tributary groundwater will be required to obtain well permits and administrative approval of plans to replace depletions caused by well pumping, no later than March 31, 2010, and to file with the Water Court an application for approval of long-term "plans for augmentation" no later than December 31, 2012. The legislation also authorizes the State Engineer to adopt rules to assist with regulation of the production of nontributary groundwater by delineating areas of nontributary groundwater withdrawal.

In its decision The Court stated broadly that the "production of oil and gas" is subject not only to regulation by the COGCC, but is also subject to the state’s water laws and the Colorado water court.

Certainly a step in the right direction.

http://www.dailykos.com/storyonly/2009/4/24/724211/-CO.-Supreme-Court-affirms-ground-water-rights