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Colorado, Southern Ute Tribe Consider Appeal of Water Ruling

DENVER — Lawyers for Colorado and the Southern Ute Indian tribe were considering their next steps after a judge threw out rules regarding water pumped from below ground during coal-bed methane drilling on the tribe’s reservation.

The judge last week upheld rules by the state engineer that allowed some oil and gas wells in the state to be exempt from getting water well permits for their operations, but he also said the rules shouldn’t apply within the Southern Ute reservation because it is unclear who has jurisdiction over water.

“For the most part, I think it was a good ruling for the state,” said First Assistant Attorney General John Cyran, who defended the state engineer’s office in the lawsuit that challenged the rules on procedural grounds.

The lawsuit was filed by a coalition of cities, ranchers and citizens. It was part of the fallout over a Colorado Supreme Court ruling that said water pumped out during coal-bed methane production qualified for regulation under state water laws.

The Colorado Supreme Court ruling said such water wasn’t just waste but was water being put to a beneficial use to be regulated under state water laws.

That meant companies controlling 40,000 existing wells that withdraw water during drilling potentially had to get water well permits or file plans for replacing the water if senior water rights holders were affected.

Fearing a deluge of well permit applications, the Legislature gave the state engineer authority to decide what water wasn’t covered by the ruling.

Despite the ruling last week upholding the rules, Cyran told The Durango Herald ( the state was considering whether to ask the judge for a clarification of part of the ruling that said the state engineer’s rules should not apply within the Southern Ute reservation.

“I don’t think there was any problem with us passing that rule because I do think we have authority there,” Cyran said.

The tribe also is considering what’s next. “We were surprised by the decision,” said Adam Reeves, a lawyer for the tribe.

Sarah Klahn, who represented the coalition challenging the rules, said she’s pleased with the ruling because it said the state rules apply only to the use of water in drilling and don’t imply a water right.

“This basically levels the playing field. This allows the state engineer to issue permits in a way that’s efficient, but it also allows water users to know that if industry comes into court, they’re going to be treated exactly the way other water users are treated,” Klahn said.

Energy companies including BP America Production Co. took the state’s side in the lawsuit and also were reviewing the ruling. BP spokeswoman Lisa Hough said the company already has water well permits for its coal-bed methane wells, so the ruling should not affect current operations.