Oil shale water rights nullified

A judge Friday canceled some 140,000 acre-feet of White River Basin conditional water rights that had been intended partly for use in potential oil shale development, attorneys say.

“It certainly is, I think, a pretty large victory for landowners in the upper White River Basin,” said Mike Sawyer, a Glenwood Springs attorney who represented landowners in the case.

In a Division 6 Water Court decision out of Steamboat Springs on Friday, Judge Michael A. O’Hara III, issued a summary judgment on behalf of opponents of diligence applications by the Yellow Jacket Water Conservancy District for rights for water projects east of Meeker. Sawyer said the rights in question date back to the 1960s and early 1970s and had been appropriated for a variety of uses, including agricultural and municipal ones, but primarily for oil shale and coal.

He said the rights had the potential of diverting probably upwards of 1,200 to 1,500 cubic feet per second.

The proposed projects included the 80,000-acre-foot Sawmill Mountain Reservoir, 28,000-acre-foot Ripple Creek Reservoir, 33,541-acre-foot Lost Park Reservoir, and related canals. Within the last year, the district voluntarily abandoned rights for another related reservoir project of some 130,000 acre-feet.

Water rights holders in Colorado must prove every six years they are diligently implementing their rights, or face losing them. O’Hara found the district’s rights were abandoned because it lacked a quorum when it filed its applications before the 2009 deadline. Sawyer said five of nine district directors’ terms had expired.

Attorneys for the district could not be reached for comment late Friday afternoon.

Robert Harris, a staff attorney for the conservation group Western Resource Advocates, which had joined in seeking the summary judgment, called the ruling “very significant.”

The water rights involved are “huge,” he said, noting Denver Water uses about 220,000 acre-feet per year.

While an appeal is possible, “We think that the order is pretty solid and is very unlikely to be overturned,” he said.

The district could reapply for the rights, but it would lose the priority date of the voided rights.

Sawyer said future water development eventually may occur in the upper White River for valid energy uses, but developers will have to talk to landowners and determine how to implement them in a responsible way.

With Friday’s decision, he said, “the potential impacts to a gem of the state of Colorado, that is, the upper White River, really have been significantly diminished.”


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