DENVER – Lawmakers moved quickly Monday to strengthen the state’s legal defense against Southwest Colorado ranchers who have sued to protect their water rights from natural-gas and oil drilling.
House Bill 1286 raises the legal standard the ranchers will need to prove to win their lawsuits against State Engineer Dick Wolfe. Last year, Wolfe drew maps that showed which gas and oil wells needed to get water permits and which ones could drill without going to court to fight about who owns the water.
The House Agriculture, Livestock and Natural Resources Committee voted 13-0 in favor of the bill Monday.
The Vance and Fitzgerald families took Wolfe’s office to court several years ago for not protecting their water rights from gas wells, and they won at the state Supreme Court in 2009.
The ruling shocked the gas industry, and legislators worried all 40,000 gas and oil wells in the state would need to get water permits. So they gave Wolfe’s office the power to draw maps that show where gas wells interact with surface water.
Gas wells outside the zone do not need to replace the water they use because the water is assumed to be so deep underground that it will have no effect on surface streams.
But the Vance and Fitzgerald families sued again, along with the San Juan Citizens Alliance, the Oil and Gas Accountability Project and the city of Sterling. Several lawsuits are active, and the main one is working its way through the water court in Greeley.
The sponsor, Rep. Jerry Sonnenberg, R-Sterling, said HB 1286 strengthens the state’s case.
Mike King, director of the Department of Natural Resources, urged legislators to pass the bill. Wolfe’s office is in King’s department, and King cited the extensive work the engineer’s office did to draw the maps.
“What we’re asking is an affirmation of that to remove all doubt,” King said. “This is critical that we resolve this issue and that it doesn’t get litigated and then appealed to the Supreme Court, and we have a two-year window of uncertainty that would not be good for oil and gas production in Colorado.”
Philip Lopez, a lawyer for the plaintiffs, said the bill is moving too quickly for water-rights owners to be able to comment on it fairly.
“This bill appears to be an attempt to legislate around potential judicial decisions on the state engineer’s authority, and we don’t think this is appropriate,” Lopez said.
Sonnenberg introduced the bill Thursday, and the committee he leads voted on it Monday.
Lopez also complained that Wolfe’s maps give the gas industry a favored status with water rights that no one else has. Any gas well in the zones Wolfe designated are presumed to tap into nontributary water formations, which don’t have to get a court-approved water right.
A farmer or rancher would have to go to court to prove that water was nontributary, Lopez said.
But even traditional critics of the gas industry, like Fort Collins Democrat Randy Fischer, supported HB 1286 Monday.
If people had more trust in the state engineer’s office, costly battles in water court could be avoided, he said.
“There are folks out there who want to take everything to water court, and I know that there’s a lot of people who think the water court is the end-all and the be-all, no matter how obvious it is,” Fischer said.
Locally, Republicans J. Paul Brown of Ignacio and Don Coram of Montrose voted for HB 1286. It now goes to the full House.