Yesterday, Monday, April 20 — in a first of its kind decision in Colorado — the Colorado Supreme Court ruled in Vance v. Wolfe that coal bed methane producers have to adhere to the same water rules and regulations as other state water users.
For years, coal bed methane (CBM) producers were allowed to pump large amounts of tributary groundwater (groundwater connected to nearby streams) as part of their extraction operations without a water right or approvals from the State Engineer and the water courts. Water keeps the CBM in place in underground formations. When groundwater is pumped, the gas is released from the formation and can be captured by producers. CBM producers often re-inject most of the water underground, but in different, deeper formations, so the water is not available to other water users or the nearby streams as it was before the CBM operation.
A State Engineer permit and water court approval are usually required before tributary groundwater can be pumped. These approvals are designed to ensure that the water rights of others, including in-stream flow rights held by the Colorado Water Conservation Board, are not injured.
CBM producers have for years argued that they are not “using” the water but are simply disposing of it, therefore they are not subject to these requirements.
 In 2005, two ranchers and water rights owners in Archuleta and La Plata county sued the State Engineer, arguing that his failure to require British Petroleum (BP) to get permits and water court approvals to pump tributary groundwater as part of the company’s CBM production was illegal. Judge Gregory G. Lyman, the water judge in Durango, agreed and the State Engineer and BP appealed to the Colorado Supreme Court. Today’s decision affirms Judge Lyman’s decision, finding that the extraction of tributary groundwater for CBM production is a beneficial use of water subject to water rights administration and approvals by the water courts.
“This is a victory for both ranchers and our streams,” said Mely Whiting, an attorney with the conservation group Trout Unlimited, which participated in the appeal in support of the ranchers. “The decision sends a strong message that just because you are part of the oil and gas industry, you are not above and beyond Colorado water laws.”
“The court made a sound ruling based on a common-sense reading of Colorado law,” said Bart Miller, with Western Resource Advocates, also participating in the appeal by filing an amicus—“friend of the court”—brief on the appeal. “The decision implicitly recognizes the scarcity and value of water in Colorado. It’s an important decision.”
Whiting gave credit for the ruling to the Vance and Fitzgerald families, the ranchers who brought the suit, as well as to Sarah Klahn of the Denver law firm of White & Jankowski. “They did the lion’s share of work, and they deserve congratulations for this important achievement,” she said.
Trout Unlimited is the nation’s largest coldwater conservation organization, with 140,000 members dedicated to conserving, protecting, and restoring North America’s trout and salmon fisheries and their watersheds.
Western Resource Advocates protects the West’s land, air, and water. We work in collaboration with other conservation groups, hunters and fishermen, ranchers, American Indians, and others to ensure a sustainable future for the West.
|