Doesn't the present owe the future the chance to know the past?

:: Rod Nash

Energy & Water

Public Counsel Energy and Water projects include:

Colorado Supreme Court Subjects Oil and Gas Industry to Colorado Water Law
Friends of Rivers and Renewables
Community Mediation Session for Aspen’s Castle Creek Energy Center
Project Rulison: Halting “Ground Zero” Gas Drilling

Colorado Supreme Court Subjects Oil and Gas Industry to Colorado Water Law

Preventing Water Depletion and Waste During Oil & Gas Production

Thanks to Public Counsel’s success in 2009 in Vance v. Wolfe, Colorado is the only state in the Rocky Mountains in which the industry’s significant diversions of tributary ground water in connection with gas production are conditioned on avoiding injury to vested senior water rights. That Colorado Supreme Court ruling subjected the industry, for the first time, to Colorado Water Law. Oil & Gas industry producers must now first secure well permits and water court-approved augmentation plans in order protect senior property rights in ground and surface water held by others … farmers and ranchers, water districts and municipalities.

Evolution of a “best-facts” test case: the Vance v. Wolfe story

In 2005, Public Counsel hosted a mini-conference to design a “best-facts” test case to halt large-scale waste of groundwater by natural gas producers statewide. After interviewing dozens of landowners in the Northern San Juan Basin, long the epicenter of coalbed methane (CBM) production in Colorado, two families volunteered to become the rancher plaintiffs in a test case. Bill and Beth Vance were long-time alfalfa hay farmers near Bayfield east of Durango, and Jim and Terry Fitzgerald have a small organic produce farm a few miles further to the east.

Terry Fitzgerald

Jim Fitzgerald


Both families had senior vested water rights, which they believed were being depleted by CBM ground water diversions made outside the prior appropriation system. And both wrote letters to the Colorado State Engineer to request regulation of CBM ground water diversions made on or adjacent to their property. The State Engineer declined to regulate the CBM producers, and the ranching families sued in a case designed, funded and supervised by Public Counsel.

Our public counsel since 2005 has been Sarah Klahn, a partner in the Denver water law firm White & Jankowski, along with co-counsel Amy Beatie (currently executive director of the Colorado Water Trust) and, more recently, Alan Curtis.

In July of 2007, the Water Court in Durango agreed. After decades of de facto exemption from water law rules and priorities, La Plata County District Court Judge Gregory Lyman ruled that the State Engineer had a legal obligation to regulate CBM ground water diversions, since “produced water” diversions from coal seams to release the methane gas were made for a beneficial use—the production of CBM. In 2009, the Colorado Supreme Court agreed in Vance v. Wolfe. Since that ruling, Public Counsel has engaged in broad spectrum of implementation and enforcement activities including rulemaking, legislative initiatives, follow-up water court cases and a variety of public outreach and educational efforts.

The State Engineer expressed concern in 2009 that the outcome of Vance would require him to require permits, augmentation plans, or to curtail diversions for all 40,000 oil and gas wells in Colorado, not just the 5,000 CBM wells, and further that many of the conventional oil and gas wells were pumping non-tributary ground water which by its terms does not injure vested water rights.

The Colorado Legislature authorized the State Engineer to engage in rulemaking to determine which oil and gas formations contained non-tributary ground water, and thus avoid any obligation to permit or require augmentation plans of such wells. Public Counsel lawyers and engineers participated in every stage of this rulemaking. The rules were duly promulgated and have largely withstood the test of judicial review.

Thus, as Vance envisioned, oil and gas operations that divert tributary ground water are required to obtain permits and augmentation plans the same as other users of tributary ground water. This allows due process through the Water Court for other water rights holders to have notice of industry’s plans, and to participate in Water Court cases to ensure adequate terms and conditions are imposed on industry operations to avoid injury to vested water rights. By the same token, oil and gas operations that divert non-tributary ground water for enumerated non-beneficial uses may avoid regulation. This dual approach is protective of vested property rights, and requires the treatment of oil and gas diverters within the same legal regime as all other water rights users.

Son of Vance and other
Implementation Efforts

When we won Vance v. Wolfe in the Colorado Supreme Court in 2009, we immediately commenced efforts throughout the state to secure and then implement this victory. The Supreme Court for the first time in the west declared that “produced water” from many thousands of coal bed methane wells is a “beneficial use” of that ground water. As such, under Colorado law these massive amounts of water could no longer be wasted by industry, lost forever by deep injection wells and evaporation pits. Instead, such produced water must now be protected and subjected to well- permitting and Court-approved augmentation plans for its replacement, in order to respect and protect farmers, ranchers, municipalities and others with senior water rights.In 2010, Public Counsel initiated two complex litigation matters that were critical for both short and long-term success in implementing the Vance ruling statewide. Public Counsel won both of these cases in rulings by Water Courts in Greeley and Durango, and one is now awaiting oral argument in the Colorado Supreme Court. Here are a few of the highlights:

A. Son of Vance

The Son of Vance litigation consists of the representation of the San Juan Citizens AllianceOil & Gas Accountability Project, our rancher plaintiffs and many others – all as Objectors –  in a series of nine separate Water Court applications filed by industry involving over 4,000 CBM wells. The applications were filed on the same day in mid-2010 by BP America, Chevron USA, Conoco/Phillips, the Southern Utes and all the other major industry players in La Plata County (Durango) – the epicentre of the CBM industry in Colorado and the place where Vance originated as a test case in 2005.

Each of the nine Water Court applications consisted of both a Vance-compliant application for all of each company’s existing and admittedly tributary CBM wells and a surprise claim for water rights to all non-tributary (NT) water produced by each company’s thousands of wells. But each application was filed without the legally required written consent of the overlying landowners. This second claim was a brazen attempt to avoid having to negotiate with the overlying landowners and to appropriate at no cost yet another valuable commodity from energy production to market in the 21st century.

On May 27, 2011, we won Son of Vance et al in the same Durango Water Court that ruled for our rancher plaintiffs in 2007. This time, joined by the U.S. Forest Service, the City of Durango and many other municipalities, water districts and landowners, we secured outright dismissal of thousands of industry Water Court applications claiming ownership of non-tributary ground water underlying the over four-thousand CBM leases in the San Juan Basin.

Starting the week of September 19, 2011 and building upon this Water Court dismissal of industry’s non-tributary ground water claims, we launched a series of public meetings in Durango, Cortez, Walsenburg and Trinidad designed to encourage landowners to take appropriate steps to protect their non-tributary ground water. With our support, San Juan Citizens Alliance and other groups sent out over 6,000 postcard notices; our team developed a terrific step-by-step PowerPoint and templates to use in Water Court filings; and we have continued to offer technical assistance, referral services and other resources to assist these rural landowners. These simple steps enabled landowners to become insulated from any changes in Colorado statutory law that would give industry the right to withdraw this water without the overlying landowner’s consent, a move we anticipate might surface in a future legislative session.

B. The Pawnee Well Users “Non-Tributary Rules” Appeal

In 2010 we simultaneously filed the Pawnee Well Users v. Wolfe(the “NT Rules” appeal cases) in six of the seven Water Divisions and basins throughout Colorado. This litigation challenged the Non-Tributary Rules, adopted by the State Engineer (SEO) in January of 2010. The Rules were developed by the SEO in a rulemaking process hijacked by industry. In short, the Rulemaking was a sham.

The Colorado Supreme Court Multi-District Litigation Panel consolidated all cases into Division 2, the Water Court in Weld County (Greeley). The goal of this appeal was to ensure that the State Engineer’s NT rules (and underlying rulemaking authority as it may be wielded in the future) would not effectively undo or circumvent the sweeping effect of the Vance decision.

On September 8, 2011 the Chief Judge of the Weld County Water Court in Greeley found that the SEO Rules have no applicability or affect whatsoever in Water Court proceedings. In short, we succeeded in avoiding these non-tributary rules becoming industry’s way “around” the Vance decision. Both industry and the state appealed, the case is fully briefed in the Colorado Supreme Court, and oral argument is on November 8, 2012. We are anticipating a ruling that preserves the statewide benefits to landowners, communities and water rights holders established by that Court when it decided Vance in 2009.

Public Education and Outreach

Under the leadership of Alan Curtis and Matt Sura, Public Counsel is pursuing activities designed to build a broader and deeper citizen constituency to defend and expand existing regulatory and legal protections available to private property owners impacted by oil and gas development. Here is a brief summary of some of these activities and pending cases:

1. “Landowners’ Guide to Colorado Oil & Gas Development”

The Landowners’ Guide to Colorado Oil and Gas Development (Guide) was conceived of as a way to provide substantive information and assistance to Colorado landowners who are faced with oil and gas development impacts to their private property rights, whether those threats involve damage to the surface estate or water rights. Individual landowners, through their lease and surface use agreement negotiations, have significant power to protect their land, water and local environment. Recent changes in COGCC regulations, as well as changes brought about by the Vance decision, have increased landowners’ power to protect their property.

© Bruce Gordon

Unfortunately, most landowners do not understand these laws and regulations and are ill-equipped to negotiate a fair and protective lease or surface use agreement on their own, or to take steps to either adjudicate their own water rights or participate in industry’s efforts to obtain augmentation plans in Water Court. The Landowner’s Guide is an effort to get information into the hands of landowners that may act to level the playing field in their negotiations with the oil and gas industry.

The Guide is a production of Public Counsel of the Rockies with support provided by the Getches-Wilkinson Center for Natural Resources at the University of Colorado. The Getches-Wilkinson Center is willing to participate in the editing, layout and design of the Guide as well as pay for half of the printing costs. NRLC is also willing to host the Guide on the Intermountain West Oil and Gas BMP (Best Management Practices) website.

The Guide is being written by Matt Sura, an attorney specializing in the representation of landowners, mineral owners, and local governments in their negotiations and legal disputes with the oil and gas industry. The Guide will become a link on dozens of regional and statewide environmental and community organization websites (e.g., Oil and Gas Accountability Project (OGAP), Citizens Alliances, Western Resource Advocates, etc.), and a print run of 1000 will be used in Workshops and Forums across the state described below.

2. Statewide Workshops and Forums for Landowners

Public Counsel is organizing presentations over the next two years that will help raise the public’s level of understanding about individuals’ rights and remedies to protect private property, including ground and surface water, from impacts of oil and gas development. The presentations will be targeted in areas that are being hardest hit by oil and gas development as well as those that are experiencing oil and gas development for the first time. The presentations will cover many of the topics outlined in the Landowners’ Guide.

The presentations will be advertised on the Oil and Gas BMP website as well as through regional and statewide environmental and community organizations. In areas that are being hardest hit, where there are not local environmental or community organizations, we may set up presentations though homeowner associations, realtor associations, and service organizations.

The CU Law Natural Resources Law Center is expected to fund travel for Matt Sura and we propose that CU Law be a co-sponsor of these presentations. The University of Colorado is the state’s largest university and is widely perceived by the public as an unbiased source for information.

3. Database from Forums

The oil and gas forums in various places in Colorado will allow us to collect contact information from people interested in the topic of landowner and environmental protection during oil and gas development. These contacts are likely to happen in rural areas and possibly in politically conservative districts. Having some way to access these people, through the mail or email, may be very helpful in the event of a COGCC rulemaking or oil and gas legislative effort.

It is expected that the NRLC will be able to create and maintain this database at no expense to Public Counsel.

4. Continuing Legal Education for
Landowners’ Counsel

The CLEs envisioned will be directed at attorneys who have clients with oil and gas related water and surface use issues but who might not be specialists in either oil and gas or water law. The Natural Resources Law Center and White & Jankowski, LLP will also be sponsors of the events. Attorneys Matt Sura, Alan Curtis and Sarah Klahn would be presenters once the details and cost allocation of these events are pinned down.

5. The Future of Oil and Gas
Regulation in Colorado

Oil and gas development remains strong in Colorado. In 2010, the COGCC issued 5,996 drilling permits—the third highest total ever permitted. In 2011, the pace of development continued with  4,659 new drilling permits issued. The recent oil discovery in the Niobrara field, extending from NW Colorado to Weld County, and south to Douglas County, promises to keep Colorado’s oil and gas development booming for the foreseeable future.

Without a proactive effort to support and extend the current protections in Colorado Oil and Gas regulations, it is likely that many of those protections will eventually be rolled back.

Farmers know, ranchers know, water engineers know and municipal water managers know that water depletion in Colorado has incalculable economic cost. Unprecedented population growth and persistent drought exacerbate the projected impact. When water is ruined or wasted in the West and when iconic rural landowners are injured without recourse, the tables turn and the scales come into balance.

Public Counsel acknowledges that the principal funding for this project has been generously provided by The William and Flora Hewlett Foundation.

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Friends of Rivers and Renewables

Friends of Rivers and Renewables ( is a group of citizens working to engage and educate residents of the Roaring Fork Valley around the issues related to healthy rivers conservation and clean energy solutions.

FORR recognizes that the best outcomes come from the best process.

Good process allows stakeholders who are affected by a decision to be involved in the decision-making process and their contributions to influence the decision. Through inclusive stakeholder collaboration, participants improve a project’s end result and proponents benefit from increased project support.

FORR strives to facilitate good process through each of its projects. Current projects focus on Science, Education, and Community.

Science – Stream Gaging

FORR believes a community that is knowledgeable about its water resources will be more empowered to protect those resources.

Demands for water for municipal uses, irrigation, recreation (including snowmaking) and energy production put pressure on both the quantity and quality of water in the Roaring Fork Watershed. These demands, coupled with growing population and climate change in the decades ahead, make it essential that we develop a comprehensive system of stream gages to inform the wise management and long-term conservation of local rivers and streams.

Currently, the Roaring Fork Watershed holds stream gages installed over several decades by different agencies to measure flows and diversions at critical locations in the watershed. There is a need to identify new stream monitoring needs, to create an intelligent, interactive and useful gaging network that will support immediate and long-term water management and conservation goals. Federal and state agencies, local governments and conservation organizations in the Roaring Fork Watershed have expressed keen support for such an effort. Furthermore, the region’s leading watershed management organization, the Roaring Fork Conservancy, has identified the creation and maintenance of an adequate network of stream gages in the watershed as a “high priority” in its 2011 Roaring Fork Watershed Management Plan.

A comprehensive stream gaging network provides hydrologic information needed to help define, use, and manage the region’s water resources. An integrated gaging network provides a continuous, well documented, well-archived, unbiased, and broad-based source of reliable water data that may be used for a variety of purposes including the assessment of the health of these ecosystems, a basis for evaluating potential new diversions and impacts, and opportunities for wise restoration or mitigation.

FORR has assumed the role of catalyzing, organizing and coordinating  public and private involvement  in an effort to design and implement a basin-wide system of stream gages. These gages will monitor flows and other indices of stream health in threatened or impaired reaches in the Roaring Fork Watershed. FORR will also coordinate the collection and distribution of real-time data from this network of gages so that it is available and useful to all interested parties who have access to the internet. By identifying technological approaches that are cost-effective and efficient in streamlining and integrating the collection of stream data, FORR hopes to demonstrate that accurate, useful and defensible stream data can be acquired within a reasonable timeframe and budget. At the same time, FORR hopes this collaborative planning process will generate broad public support for efforts to understand and improve the management of scarce water resources.

Public Counsel acknowledges that the principal funding for this gaging project has been generously provided by The Walton Family Foundation.

Education – FORR Dialogues

FORR is committed to engaging and educating citizens in this community about the issues related to our shared appreciation for rivers, and our shared commitment to finding clean energy solutions that do not sacrifice the lifeblood in our streams. FORR dialogues aim to engage the community in lively, informative discussions about the related issues of stream health, renewable energy, climate change and water development.

JOIN FORR! Or “Like” FORR on Facebook to get reminders about our upcoming Dialogues and events

Past FORR Dialogues include:

“Colorado Water at a Crossroads: Options in the face of Energy, Agriculture, Growth, and Climate Change”

December 32012: Bart Miller, Water Program Director at Western Resource Advocates, discussed the multiple water demands that are forcing Colorado to assess its future water supplies.

CO-SPONSORS: Community Office for Resource Efficiency (CORE)Western Rivers InstituteRoaring Fork ConservancyClean Energy Economy for the Region (CLEER)Aspen Global Change InstituteWilderness Workshop, and Thompson Divide Coalition.

Watch Bart’s presentation on Grassroots TV: Colorado Water at a Crossroads

“Sustainable Hydropower in Mountain Communities”

August 27/28: Richard Roos-Collins, Chair, Low Impact Hydro Institute and John Seebach, Director, Hydropower Reform Initiative, American Rivers presented on sustainable hydropower in mountain communities.”
Host: Aspen Center for Environmental Studies (ACES) and the Third St. Center in Carbondale
Co-sponsors: Roaring Fork Conservancy (RFC)Clean Energy Economy for the Region (CLEER)Community Office for Resource Efficiency (CORE), and Aspen Global Change Institute (AGCI).
Watch their presentation on Grassroots TV: Sustainable Hydropower in Mountain Communities

“Climate Change and the Roaring Fork Watershed: The Knowns, The Unknowns, and the Unknowable”

July 11, 2012, Brad Udall, Director of Western Water Assessment at the NOAA-CIRES Climate Diagnostics Center in Boulder discussed how climate change will potentially effect precipitation distribution throughout the nation and our region. He explained how this, along with over allocation and overuse will alter Colorado river flows.

Host: Aspen Center for Environmental Studies (ACES)
Co-sponsors: Roaring Fork Conservancy (RFC)Clean Energy Economy for the Region (CLEER), and Aspen Global Change Institute (AGCI).

Watch Brad’s presentation on GrassRoots TV: Climate Change and the Roaring Fork Watershed

“Protecting Climate, Protecting Nature”

April 26, 2012: Canadian environmentalist Harvey Locke and Montana stream ecologist Ric Hauer in a discussion of the challenges of climate change mitigation and biodiversity conservation.

Their presentation focused on deepening the community’s understanding of the importance of healthy gravel-bed river systems in maintaining regional biocomplexity and biodiversity, critical to the capacity to adapt to climate change.

Host: Aspen Center for Enviromental Studies (ACES)
Cosponsor: Roaring Fork Conservancy (RFC)

Watch their presentation on Grassroots TV: Protecting Climate, Protecting Nature. 

Community – Hydroelectric Collaborative

How does our community move toward cost-effective hydropower projects that mitigate climate change without sacrificing the health and biodiversity of river systems?

FORR believes that the preservation of rivers and the development of renewables are not mutually exclusive.  The Roaring Fork Valley region can acquire additional clean energy in a way that is broadly supported by the community, that protects healthy functioning stream ecosystems, and that is fiscally responsible.

FORR will organize a facilitated stakeholder process that will utilize local expertise to identify and support the region’s best hydropower opportunities.  This process will consider all hydropower alternatives and demonstrate the value of a public engagement process.  It will be facilitated by Michael Kinsley, senior consultant at Rocky Mountain Institute and former Pitkin County Commissioner.

Through a responsible community collaborative process, the Roaring Fork Valley region can claim a leadership role as a community that understands and is willing to debate the critical tradeoffs between climate change mitigation and ecosystem preservation.

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Community Mediation Session for Aspen’s Castle Creek Energy Center

CCEC Proposal (click to enlarge)

Beginning in 2010, Public Counsel participated in a series of efforts to engage the community and the City of Aspen in a public process to examine the environmental, economic and other impacts of the proposed Castle Creek Energy Center. These efforts include beginning to identify alternatives that may achieve the City’s “clean energy” goals while protecting the aquatic ecosystems of Castle and Maroon Creeks.

Public Counsel worked with the Pitkin County Healthy Rivers & Streams Board to initiate and fund the Independent Review of CCEC project assumptions and recommendations, utilizing a team of outside experts in water law, hydropower, hydrology, and aquatic biology.  The expert reports were completed January 21, 2011 and challenged a number of critical project claims.  The reports were also submitted to FERC before the public comment deadline on the City’s draft conduit exemption application. Public Counsel funded and convened a Community Mediation session at the Aspen Institute on March 22, 2011, designed to revisit the proposed project to better protect healthy functioning stream ecosystems.  The session was facilitated by Owen Olpin and attended by senior city staff, nonprofit and community leaders, clean energy and hydropower consultants, and streamflow protection experts.

Owen Olpin

While no binding settlement agreement ensued, a report of the ideas generated at the session and endorsed by most participants was released by Mr. Olpin on May 25, 2011.  In response, the City in June announced that (a) it was no longer going to seek exemption from FERC licensing but would instead seek a minor power project license with NEPA review and that (b) science-based decision-making by a Board of Experts would govern all creek diversions for hydropower production following a “slow start.”

Public Counsel acknowledges that the principal funding for this project has been generously provided by General Service Foundation, New-Land Foundation, Rodell Foundation, Walton Family Foundation, Ruth H. Brown Foundation and other generous individual donors.

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Project Rulison: Halting “Ground Zero” Gas Drilling

Project Rulison is an egregious example of the muddled thinking prevalent during the 1960s as part of the federal government’s “Operation Plowshare” which promoted the peaceful uses of atomic energy. One project under Operation Plowshare was to liberate natural gas trapped in tight sandstone or shale formations deep underground, and six atomic bombs were detonated for this purpose, two in Colorado. Watch a YouTube overview of Project Rulison (6 mins).

In 1969 at Rulison, CO the Atomic Energy Commission used a bomb three times larger than the one used on Hiroshima inserted 8,000 feet below the surface. A six-mile radius was evacuated, the ground shook, and the blast cracked a huge fracture zone liberating natural gas, but it was so highly radioactive it was unfit to use and was instead flared into the atmosphere for several months. The AEC resealed the opening and announced that no drilling would be allowed within a 3-mile radius of the crater. The story made national headlines and the CBS evening news with Walter Cronkite, and a plaque was erected on the site as a “no-drill” zone.

Watch historic Walter Cronkite news coverage of Project Rulison (2 mins)

The Game-Changer: 600% Increase in
Gas Prices in the 1990s

Thirty years after the blast, several gas companies obtained leases to drill inside the 3-mile radius. Connie Harvey and other citizens who protested the ’69 blast contacted the Department of Energy (DOE), the EPA, the Nuclear Regulatory Commission and the Colorado Oil & Gas Conservation Commission (COGCC), and all agencies denied any interest and disclaimed responsibility for risks to workers, the public, or commercial consumers of groundwater and gas. In 2004, Presco, a small natural gas producer from Texas, filed four applications for permits to drill (APDs) within ½ mile of “ground zero.”

In late 2004, Public Counsel was contacted and immediately engaged Gunnison attorney Luke Danielson to represent the landowners at “ground zero”. The perseverance of landowners Ruth and Cary Weldon and Wes and Marcia Kent as well as the Grand Valley Citizens Alliance and Western Colorado Congress enabled a growing team of experts and lawyers to continue to block gas drilling near the blast site.

Cary and Ruth Weldon

Over the next five years, the efforts of Public Counsel and its team:

  • forced Presco in 2004 to withdraw APDs for four wells inside the ½ mile radius;
  • blocked all APDs since 2007 and thereby prevented all drilling within one-half mile of ground zero through a series of consecutive one-year moratoriums on APDs within the ½ mile radius;
  • organized the all-day COGCC information session in Grand Junction in 2007, leading to the development of a “Sampling and Monitoring Plan,” adopted by COGCC and imposed as conditions for continued drilling and production operations as well as conditions of approval for all proposed new wells within three miles of ground zero;

  • secured a COGCC Order in 2009 that the Colorado Department of Public Health & Environment review and comment on any public health and safety issues or hazards raised by each APD within three miles and that special radionuclide monitoring conditions to be endorsed on all new permits to drill within three miles;
  • organized a second COGCC information session in 2009 in Glenwood Springs where DOE presented its “Path Forward” recommending, incredibly, that industry keep inching toward ground zero until an operator hits something;
  • convinced Garfield County’s BOCC and Oil & Gas Liaison in 2009 to reject DOE’s “Path Forward” as making gas field workers into guinea pigs and posing unnecessary risks to groundwater resources; and
  • convinced Garfield County’s Oil & Gas Liaison and Attorney’s Office in 2010 to file an amicus brief in support of our position in the Court of Appeals “test” case.
Citizens WIN “Test” Case in Court of Appeals

Important public health, safety, water, wildlife and similar public interest issues are almost impossible to be raise by citizens, their local or national organizations, or even the immediately adjacent neighboring landowners. Again and again for four years, our legal team requested hearings each and every time Encana, Williams, Nobel Energy or their predecessors applied for drilling permits inside the thre mile radius. Each request was denied, and in late 2008 Public Counsel filed a “best facts” law reform test case against the COGCC on behalf of our “ground zero” landowners, the Grand Valley Citizens Alliance and Western Colorado Congress.

Under existing rules, only the energy company applying for a permit, the surface landowner where the down-hole is proposed and the local county has a right to request a hearing before the permit issues. The result is that virtually 100% of industry well permit requests are granted by administrative staff — with little notice, no hearings and no transparency.

The Denver District Court dismissed the case, and the landowners organized an appeal. Public Counsel organized and enlisted significant amicus curiae support in the Court of Appeals case. In addition to strong briefs from Gunnison, Saguache, Pitkin, and even Garfield County (the epicenter of gas drilling in Colorado the last few years) weighed in on our side. These counties all addressed the important policy reasons why the narrow COGCC standing rule should be declared illegally restrictive. These briefs in varying degrees pointed out that county politics and county budget shortfalls preclude most elected County Commissioners most of the time from asking for an adjudicatory hearing against major industry players where the tab for lawyers and experts – to prevail at the hearing and in ensuing court proceedings — could easily exceed $1 million.

On June 24, 2010, the Court of Appeals struck down the restrictive rule, declaring that the agency rule that excluded ordinary citizens, neighboring landowners and public interest groups could not “trump” the plain meaning of the Commission’s authorizing statute which allows “any interested person” to petition for a hearing. Citizens finally had the right to be heard in formal hearings in order to raise issues of contamination of ground water, land and air, other public health, wildlife habitat and refuges, encroachment on wilderness study areas or state and national parks, and proximity to homes and schools.

Predictably, the industry and state agency sought and obtained a hearing in the Colorado Supreme Court, and the “test” case was briefed and argued a second time. On November 30, 2011, the Supreme Court reversed and vacated the Court of Appeals ruling, reinstating the restrictive rule on citizen participation.

Public Counsel is currently evaluating options to revise and expand standing through a Rulemaking proceeding before the COGCC. Public Counsel is also considering initiating a mineral lease exchange and withdrawal strategy whereby Encana, Williams and Nobel Energy and their underlying royalty holders would receive comparable mineral leases elsewhere. If this could be secured, then a proposed exclusionary zone around the Rulison blast site could be withdrawn from any future gas drilling, in perpetuity through an Act of Congress.

Public Counsel acknowledges that the principal funding for this project has been generously provided by The New-Land Foundation.

© Jonathan Kloberdanz









Have you been curious what all the concern for “fracking” is about?

Here is a fabulous music video explaining it.

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© jeremy swanson

© Thomas O'Brian

© David Hiser

© Bryan Long

© Gino Hollander

© John Fielder

© Burnie Arndt

© Jill Sabella