Produced Water from 

Oil and Gas Development in 

Colorado

Water Management for Shale Plays

Denver, Colorado

May 28, 2014

Kevin Rein, P.E., Deputy State Engineer

Colorado Division of Water Resources
Basic understanding

• Oil and gas wells produce ground water

• That water production is incidental

• Pumping ground water, potential for injury

• The Colorado Division of Water Resources 

administers the use of water, no injury
• Energy production in Colorado meets

• Hydrogeology, which leads to

• A water rights issue, creating a

• Difficult regulatory obligation.

• The existing law provided for some 

discernment in administration

• These conditions led to a legislative effort 

creating new law, providing for

• Efficient regulation.
Geologic Perspective
Shale

Shale

Sandstone

Shale

Gas Producing

Formation

Domestic Well Gas Well

3000’

300’ Shallow Aquifer

Example of Gas Well to Water Well Isolation
Findings of the Colorado 

Supreme Court Case 

07CA293, Vance v. Wolfe
 Coal bed methane wells that produce water make 

an “appropriation” of water for beneficial use.

◦ Must obtain water well permits from State Engineer.

◦ If tributary, must replace injurious stream depletions.

 Non-Coal bed methane wells that produce water, 

not necessarily a beneficial use.

◦ Water well permit is dependent on subsequent use.

◦ If tributary, must replace injurious stream depletions.
 Potential for State Engineer to issue many water 

well permits

 Potential for State Engineer to curtail oil and gas 

wells due to possible injury to surface water rights

However,

 If any wells produce nontributary ground water, the 

law provides that regulation of those wells can be 

reduced or eliminated.
Solution: Legislative Action

Summary of HB 09-1303
HB 09-1303 authorizes rulemaking by the State 

Engineer 

 HB 09-1303 authorizes the State Engineer to adopt rules to 

assist in the process for determining that ground water meets the 

definition of nontributary. 

 Scope of rulemaking

◦ Methodologies, assumptions, accepted values, definitions, etc.

◦ Proposals for nontributary determinations for oil and gas formations

Tributary ground water

 All ground water is presumed tributary to natural 

surface streams

 Withdrawal of tributary ground water impacts the 

surface streams, water rights

 That impact, can cause injury
Nontributary ground water

 Some ground water is isolated from surface water.

 Impact of withdrawal is minimal 

 Colorado law acknowledges this type of ground 

water with the term “nontributary” 

◦ Quantitative standard. 
Tributary and Nontributary -

It’s all about ground water’s interaction 

with surface water

Clay

Aquifer

?

Great distance 

to stream

Tributary

Nontributary
1985 Law (SB5)

 Allows nontributary water withdrawal when 

mining minerals

 Premised on incidental withdrawal 

(dewatering of a geologic formation)

This necessarily limits the amount that can be 

withdrawn

This necessarily limits the duration
Therefore, a determination of nontributary is 

desirable because:

 No water well permit will be required in 

many situations

 No administration under the prior 

appropriation system

 No augmentation plan required 

 What is an augmentation plan? 
Rulemaking

RULES AND REGULATIONS FOR THE DETERMINATION OF 

THE NONTRIBUTARY NATURE OF GROUND WATER 

PRODUCED THROUGH WELLS IN CONJUNCTION WITH 

THE MINING OF MINERALS

“PRODUCED NONTRIBUTARY GROUND WATER RULES” 

2 CCR 402-17 
Rules and 

Rulemaking

(Exactly what kind of rules?)
Potential for connection of coal interval to surface 

water

Well Permit Requirements

Water Administration 

Requirements
No Subsequent Beneficial Use

Tributary Nontributary

CBM

Permit?: 

Yes

Permit?: 

Yes

Replacement required?: 

Yes1

Replacement required?: 

No

Non-CBM

Permit?: 

No

Permit?: 

No

Replacement required?: 

Yes1

Replacement required?: 

No

1. For depletions that impact an over-appropriated stream. No replacement is required for 

depletions that impact a stream that is not over-appropriated.
Subsequent Beneficial Use

Tributary Nontributary

CBM

Permit?: 

Yes

Permit?: 

Yes

Replacement required?: 

Yes1

Replacement required?: 

No

Non-CBM

Permit?: 

Yes

Permit?: 

Yes2

Replacement required?: 

Yes1

Replacement required?: 

No

1. For depletions that impact an over-appropriated stream. No replacement is required for 

depletions that impact a stream that is not over-appropriated.

2. No permit required if “Subsequent Beneficial Use” is limited to uses in SB-165
 Energy production occurs in Colorado 

 Impacts to water resources

 We need a thoughtful approach to administration

 Senior water rights must be protected

 The law allows energy production with provisions for 

protecting water rights