by Carla Dolce
HUERFANO- The short answer according to water attorney Alan Curtis from the Denver law firm White & Jankowski is, “Yes,” but only if water rights owners hire hydrologists, ground water experts and/or water quality experts to participate in the court process incident to getting a court-approved augmentation plan.
The requirement for augmentation is the result of the Vance case in which the Colorado Supreme Court ruled that water extraction for coal bed methane (CBM) production is subject to Colorado water laws. Following this decision, CBM producers like Petroglyph must obtain water permits and augmentation plans if their water extraction or “dewatering”, which is necessary to release methane from coal seams, injures senior water rights. According to Curtis, whose law firm successfully represented the ranchers in the Vance case, the court proceeding necessary for getting an augmentation plan may prevent the type of damage to well water supplies that has plagued parts of Huerfano County since Petroglyph began its CBM operations here.
An augmentation plan protects water rights by requiring anyone extracting water from wells tributary to surface water to augment their water depletions by releasing a sufficient quantity of water to the surface water system at a time and place that prevents injury to senior water rights owners. Under Colorado water law, there is a presumption that all wells are tributary. Curtis said that the water released for augmentation must be of a quality suitable for use by downstream senior water users. Thus, Petroglyph could not satisfy an augmentation requirement by releasing high-SAR water if such water would injure down-stream senior users. High-SAR water virtually destroyed the Corsentino Dairy during Petroglyph′s CBM operations. (SAR, or sodium adsorption ratio, characterizes the amount of sodium in a water relative to the amount of magnesium and calcium. Water with high SAR values damages soil and is not suitable for irrigation).
House Bill 1303, which the governor signed into law last June, adds complexity to the process in an effort to facilitate the well-permitting process. This bill provides a method for the State Engineer′s Office (SEO) to designate a well as nontributary for purposes of issuing a well permit. In an interview last April with Dick Wolf, the State Engineer, Wolfe stated that Petroglyph and Presco had been working on modeling studies for the past year to show which portions of the Raton Basin are nontributary. Wolfe said these studies will be significant in determining which CBM wells will be designated nontributary by his office. Curtis said that any such designation as nontributary is subject to court review. If a well is found to be nontributary, no augmentation plan is needed.
It′s important for local water rights owners to participate in the court process if they believe their water rights may be injured by CBM drilling. If a permit has been granted by the SEO after designating a well as nontributary, senior water holders who think their rights may be damaged would want to present evidence, such as the testimony of a hydrologist, that the well is actually tributary. Additionally, when a CBM driller seeks to obtain a court-approved augmentation plan, senior water rights owners may challenge the CBM driller′s evidence of the quantity of water depleted by having an expert show that water depletions are greater than alleged.
There is one catch: local water rights owners may not have the resources to hire groundwater experts, hydrologists and attorneys to challenge those hired by CBM drillers. Without such experts, more people may be asking questions similar to the one Curtis posed regarding proposed plans to extend Walsenburg′s water lines to River Ridge Ranch: “If Petroglyph′s CBM drilling caused the water contamination, why isn′t Petroglyph paying the full cost of running the water lines?”