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produced water. Before Vance,requests for determinations of nontributary ground water <br /> required case-by-case analysis. However, the State Engineer had not established a formal <br /> procedure for the review of such nontributary determinations, other than in the context of <br /> challenges to the well permitting process. In addition, the State Engineer had not <br /> established a procedure for submission or review of requests for nontributary ground <br /> water determinations where well permits may not have been required; specifically, in the <br /> context of requests for withdrawal of nontributary produced water. These adjudicatory <br /> procedures provide interested parties with notice of such determinations and an <br /> opportunity for a hearing. <br /> In addition, the rules delineate certain areas or formations of the State as nontributary for <br /> purposes of the State Engineer's administration of produced water. Currently, there are <br /> no rules or statutes designating areas within the State where ground water is nontributary <br /> (with the exception of the Denver Basin Rules, which delineate areas of nontributary <br /> ground water in specific bedrock aquifers that rarely are used for the mining of minerals). <br /> The most efficient means by which the State Engineer can fulfill his statutory <br /> administration and potential permitting for the over 35,000 existing oil and gas wells and <br /> new wells that withdraw produced ground water is through rulemaking that designates <br /> produced water withdrawn from a certain geologic formation, within a certain geographic <br /> area, as nontributary. <br /> Basis for Rulemaking <br /> The State Engineer finds adoption of these rules necessary for the following reasons. <br /> First, adoption of such rules is necessary in light of the Colorado Supreme Court's <br /> decision in Vance v. Wolfe, 205 P.3d 1165, 1173 (Colo. 2009). In holding that CBM <br /> operations place ground water to beneficial use, the Vance decision clarified that the State <br /> Engineer must permit CBM wells if they produce ground water. In addition, the State <br /> Engineer must evaluate all existing oil and gas wells for potential injury to vested water <br /> rights, and potentially require substitute water supply plans and eventually court <br /> approved augmentation plans for those oil and gas wells that withdraw tributary ground <br /> water. In order to most effectively comply with the Vance decision, the State Engineer <br /> must adopt rules delineating those areas of the State wherein he may regard ground water <br /> withdrawn to facilitate or permit the mining of minerals to be nontributary or in the <br /> alternative, conduct an adjudicatory process for such determinations after the rules are <br /> adopted. <br /> Second, adoption of such rules provides the State Engineer, water users, and other <br /> interested parties with an adjudicatory process pursuant to which an operator <br /> withdrawing ground water to facilitate or permit the mining of minerals may obtain a <br /> nontributary determination. As noted, the State Engineer has historically processed <br /> requests for nontributary determinations in the context of well permitting applications. <br /> The State Engineer has not documented a formal procedure for review of requests of <br /> nontributary determinations where such a request is made outside of the context of a well <br /> permit application or where a well permit may not be required; for example, a request for <br /> Produced Nontributary Ground Water Rules 2 CCR 402-17, Statement of Basis and Purpose <br /> -3- <br />