Reviewers urge clarity in draft measure to hold injectors liable for drinking-water damage

Legislative reviewers on April 2 summarized concerns about proposed initiative 3-11, which would make oil-and-gas operators and waste injectors jointly and severally liable for remediation costs and harms when an underground source of drinking water is damaged by injected waste.

Samantha Falco read the memorandum description: the initiative appears to require operators and waste injectors that generate or inject waste resulting in damage to an underground source of drinking water to be held jointly and severally liable for remediation, economic and health-related harms, and penalties under applicable law.

Reviewers urged the proponents to rely on existing definitions in Colorado Revised Statutes (title 34, article 60) and to clarify whether ‘operator’ should be used consistently across sections. Staff also suggested adding language defining what constitutes damage to an underground source of drinking water or explicitly authorizing the Energy and Carbon Management Commission to make that determination; staff cited the commission’s existing responsibilities under C.R.S. §§34-61-05 and 34-61-06 and federal Safe Drinking Water Act authority.

Staff warned that the measure’s cross-references to penalties under state or federal law could create federal–state conflicts and recommended qualifying language such as “except as otherwise provided in federal law.” Proponents indicated they would remove the penalties section to avoid conflict and would standardize terminology (for example, use the noncount noun 'waste' consistently).

Staff also recommended an applicability clause and an effective date provision to avoid retroactive liability or impairment-of-contracts claims; proponents agreed to include wording limiting the measure to conduct occurring on or after the effective date.

No action was taken at the hearing; proponents will revise the initiative text to address the drafting and constitutional concerns raised by staff.