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Tributary vs. Non-tributary water

by Brian Orr

DENVER- In response to the State Supreme Court’s decision last month on the Vance vs. Wolfe water case, the Colorado State Engineer, Dick Wolfe, held the first of a series of meetings at his office in Denver last Thursday.

    The purpose of the meeting was to discuss the ramifications of the Vance case, and of recently passed Colorado House Bill 1303.

    HB 1303 essentially gives the State Engineer the authority to decide whether water is tributary or non- tributary.  By law, all groundwater in Colorado is tributary unless proven otherwise.

    This makes for a sticky wicket for coalbed methane producers, who according to the recent ruling must apply for permits to drill where water is expected to be.

    If that water can be proven to be nontributary water, then they don’t need to go through the lengthy and expensive permit process.

    With HB 1303’s help, CBM producers will now have until March 31, 2010 before this law applies to them.  In addition, HB 1303 allows CBM producers that produce tributary water to stay outside Colorado water court’s jurisdiction for three years, subject only to the State Engineer’s administrative authority.  Most importantly, HB 1303 allows the State Engineer to determine exactly what is and what is not tributary water, and thus, what well project will need a permit to drill.

    Wolfe is looking to create an ad hoc committee to advise him on how to define the water terms, and how to “streamline” the well permit process.  Wolfe asked for volunteers to serve on the committee from those present at the Thursday meeting, most of whom are oil and gas executives. Many volunteered.  Quis custodiet ipsos custodes?

    One of those watching will be Huerfano native Al Tucker, who attended the meeting and also volunteered.  “I figured somebody NOT working for the oil and gas industry should be serving on that committee,” Tucker said.