Oil and Gas Well Construction 

Regulation of Fresh Water Sources 

in Colorado 

Kevin Rein, PE 

Deputy State Engineer 

Colorado Division of Water Resources 

October 29, 2013 
! Water needs for hydraulic fracturing in Colorado 

! Water sources for hydraulic fracturing in 

Colorado 

TOPICS 
Water Demands in Colorado 
Orienting ourselves 
Orienting ourselves 

5 
Per Well Hydraulic Fracturing 

Demand 

! Amount of water used per well 

" 1-5 million gallons per well (3-15 acre-feet1) 

" More water used for horizontal drilling 

" 80% of wells (in Colorado) now use horizontal 

drilling 

1. An acre-foot is approximately equal to 326,000 gallons. 

Typically, an acre-foot is enough water for 2-3 households for 

a year. 
! What is the total amount used annually for 

fracking? 

! How does this compare to other uses of 

water in Colorado? 

7 

WHAT DOES THIS MEAN TO COLORADO’S 

LIMITED WATER RESOURCES? 
8 

STATEWIDE FRACKING WATER USE 

" Future trends are difficult to predict 

Source: COGCC 

2013 

Consider the order of 

magnitude 

Actual 
Colorado Water Diversions 

! Total annually (all uses) = 16,400,000 ac-ft 

" Agriculture = 14,000,000 ac-ft 

" Municipal and Industrial = 1,200,000 ac-ft 

" All others combined = 1,200,000 ac-ft 

" Hydraulic fracturing ! 14,000 ac-ft 

! diversions, not consumption 

9 
0 

2,000,000 

4,000,000 

6,000,000 

8,000,000 

10,000,000 

12,000,000 

14,000,000 

16,000,000 

18,000,000 

Total Agriculture Municipal and 

Industrial 

Total All Others 

Acre-Feet 

Amount of Water Currently Diverted Annually 

for all Uses in Colorado 

0 

200,000 

400,000 

600,000 

800,000 

1,000,000 

1,200,000 

1,400,000 

Acre-Feet 

Amount of Water Currently Diverted Annually, 

Breakdown of “All Others”-Type Uses 
HYDRAULIC FRACTURING 

Water Sources 

11 
DIVISION OF WATER RESOURCES' 

PURVIEW ON WATER SOURCES 

! Potential sources for well construction 

! Discussion of nontributary ground 

water 

! Discussion of produced water 
! Potential sources for well construction 

! Discussion of nontributary ground 

water 

! Discussion of produced water 

DIVISION OF WATER RESOURCES' 

PURVIEW ON WATER SOURCES 
POTENTIAL SOURCES 

! Water must be legally allowed 

" Leased or purchased irrigation water (surface water) 

# Must be changed, public process

" Municipal lease/purchase (industrial uses) 

# Raw or treated water 

# Effluent 

" New diversion, in priority 

" Tributary ground water (requires augmentation) 

" Denver Basin nontributary ground water 

" Other nontributary water 

" Produced water 

" Recycled 
! Potential sources for well construction 

! Discussion of nontributary ground 

water 

! Discussion of produced water 

DIVISION OF WATER RESOURCES' 

PURVIEW ON WATER SOURCES 
! Nontributary ground water 

"Land ownership/water rights 

"Withdrawal allocation 

DIVISION OF WATER RESOURCES' 

PURVIEW ON WATER SOURCES 
DENVER BASIN GROUND WATER, 

OUTSIDE DESIGNATED GROUND WATER BASINS 

Water user wishes to 

withdraw nontributary 

Denver Basin ground 

water. Does the water 

user own the subject 

land? 

Water user submits a well permit 

application to the Division of Water 

Resources. Water user acquires 

landowner’s written 

consent. 

Water user applies to the water court 

to adjudicate the ground water 

underlying the subject land. The 

water user obtains a final court 

decree. 

Yes 

No 

Division of Water Resources evaluates the well 

permit application: 

Ensure landownership or proper consent 

Review source and amount requested 

Determine amount of water available if no decree 

Consider provisions of decree 

or 

Division of Water 

Resources issues a well 

permit. The well must 

be constructed on the 

subject land. 
! Potential sources for well construction 

! Discussion of nontributary water 

! Discussion of produced water 

DIVISION OF WATER RESOURCES' 

PURVIEW ON WATER SOURCES 
! Energy production in Colorado meets 

! Hydrogeology, which creates 

! A water rights issue, requiring a 

! Difficult regulatory obligation. 

! The law provides for some discernment in 

administration 

! These conditions led to a legislative effort 

allowing 

! Efficient regulation 

Produced Water: A Discussion of 

Quantitative Impact to Water Rights
Geologic Perspective 
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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 well permits from State Engineer 

" If tributary, must replace injurious out-of-priority 

stream depletions 

! Non-Coal bed methane wells that produce water 

" Permit is dependent on subsequent use 

" If tributary, must replace injurious out-of-priority 

stream depletions 

WHAT DID VANCE V. WOLFE FIND?
! Potential for State Engineer to issue many 

water well permits 

! Potential for State Engineer to curtail 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 

WHAT DOES VANCE V. WOLFE MEAN?
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 

" Identify methodologies, assumptions, accepted values, definitions, 

etc. 

" Consider proposals for nontributary determinations for formations 

that have, or will have oil and gas production 

HB 09-1303 
WHY THE FOCUS ON NONTRIBUTARY 

GROUND WATER? 
Tributary ground water

! All ground water is presumed tributary to natural 

surface streams (Colorado case law) 

! Withdrawal of tributary ground water impacts the 

surface streams and, therefore, senior water rights 

on the surface streams 

! That impact, in an over-appropriated stream 

system is presumed to cause injury (Colorado case 

law) 

TRIBUTARY VERSUS NONTRIBUTARY 

GROUND WATER
Nontributary ground water

! Some ground water is so isolated from surface 

water that the impact is minimal. 

! Colorado statute acknowledges this type of ground 

water with the term “nontributary” and states a 

quantitative standard. 

TRIBUTARY VERSUS NONTRIBUTARY 

GROUND WATER
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

PRODUCED NONTRIBUTARY GROUND 

WATER LAW 
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 substitute water supply plan or augmentation 

plan required (we’ll discuss this further later) 

PRODUCED NONTRIBUTARY GROUND 

WATER LAW 
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 

Non-tributary 

Tributary 

Well Permit Requirements 

Water Administration Requirements 
Beneficial Use ? 

 Tributary Nontributary 

CBM 

Permit? Yes Permit? Yes 

Replace? Yes Replace? No 

Non-CBM 

Permit? Depends Permit? Depends 

Replace? Yes Replace? No 

WELL PERMIT AND ADMINISTRATION 

REQUIREMENTS 
! Sources: 

" Numerous 

" Various types 

" Not straightforward 

# Colorado’s system of water rights 

! Nontributary ground water (shallow) 

" Landownership requirements 

" Statutory allocation approach 

! Produced water 

" Viable source 

" Must be accounted for (tributary or nontributary?) 

" Permitting and replacement requirements 

CONCLUSIONS