DWR_3347722

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 8/18/2006
• Subject: MEETING MATERIALS

reported that the low water supply resulted in a decision he made to not approve substitute supply plans on a group of wells in the South Platte. The Conservation Reserve Enhancement
Program (CREP) was approved by the Governor and the head of the Department of Agriculture for the Republican River Basin. A kick-off event will be held on May 26 in Wray for additional
publicity. This will provide an opportunity to retire 30,000 irrigated lands to improve the conditions in the Republican River Basin.

Hearing on the Motion to Dismiss (Case No. 05-GW-14) in the matter of the Senior Water Rights of the Pioneer Irrigation District, Colorado Board and Laird Ditch located in the Northern
High Plains Designated Ground Water Basins by Mike Shimmin et al, attorney for seven Ground Water Management Districts, et al .

Chairman Smith called the hearing to order. Ms. Susan Schneider, of the Attorney General’s Office, was conflicts counsel. The following persons provided testimony before the Commission:

Mr. Steve Bushong, representing the Colorado Board of the Pioneer Irrigation District and the Laird Ditch, started with the motion to recuse Commissioners Coryell and Bledsoe. This
motion is due to the fact that these two Commission members are owners of several wells within the boundaries of the Northern High Plains Basin that could be directly impacted by the
litigation, and may create the appearance that these two Commissioners may not be able to objectively act on the Petition.

Mr. Mike Shimmin, representing seven of the ground water management districts in the Northern High Plains, stated that the Petitioner’s motion to recuse should be denied. He stated
that the recusal would defeat the legislative mandate of having residential agriculturists from designated basins serve as members of the Commission, and added that there is nothing
concerning these two Commissioners that is any different than any other well owner in the Northern High Plains basins and they were appointed to represent the common interests of the
basin as a whole.

Ms. Schneider stated that legally there is no requirement for Commissioners to recuse themselves. Commissioner Coryell stated that he does not intend to recuse himself based on the
fact that he can be an unbiased person in this case and will base his decision on what is heard at the hearing today. Commissioner Bledsoe also stated that he did not want to recuse
himself from this issue or any issues related to the petition and will make an unbiased decision based on the facts presented to the Commission. Chairman Smith ordered the hearing
to continue with the motion to dismiss.

Mr. Shimmin reported that there are a number of parties that joined in the motion to dismiss because this petition affects every high capacity well in the Northern High Plains Basin.
The implications of this decision are enormous and it will overturn 40 years of ground water administration in this basin as designated ground water. Mr. Shimmin stated that it has
been previously decided numerous times that this basin includes designated ground water, not tributary water and, as a matter of law, should be dismissed in its entirety.

Ms. Ginny Brannon, of the Attorney General’s Office, reported that staff joins the motion to dismiss, they fully support Mr. Shimmin’s recommendations, and reiterated that the Republican
River Compact administration ground water model was not designed to do anything other than administer the compact.

Mr. David Taussig, representing Robert Boyd and the Towns of Genoa and Flagler, urged the Commission to consider the notion of finality, security and liability, and that once something
is litigated, it should not be done again.

Ms. Sara Klahn, representing Patty Stulp Investments, who have approximately 1100 acres of corn and some wheat in Yuma County, supports the motion to dismiss.

Ms. Ann Castle, representing client Five Rivers Ranch Cattle Feeding, stated that if the boundaries of the basin are redrawn and her client’s wells are forced to shut down, the feed
yard operation will shut down. Ms. Castle urged the Commissioners to grant the motion to dismiss.

Mr. Steve Bushong, representing the petitioners, stated that the ground water model indicates that there is tributary water in the basin and the new depletions are impacting the streamflows.
He stated that the law mandates that the Commission consider new information and, therefore, can modify the boundaries as new information becomes available. Mr. Bushong asked the
Commission to deny the motion to dismiss.

Ms. Annette Quill, from the Attorney General’s Office representing the Division of Wildlife (DOW) and the Wildlife Commission, stated that the DOW became involved in this case because
they are concerned about depletions to its surface water rights and how future administration may further affect those rights if ground water pumping is not curtailed to meet compact
obligations. Ms. Quill stated that DOW feels that the Commission is legally obligated under the statute to consider the new evidence and to make a determination based on the new evidence,
and that the petition should not be dismissed.

Following deliberation and discussion by the Commission, Commissioner George made a motion to continue this hearing at the August 18 meeting for purposes of further briefing on the motion
to dismiss with the following timeline for submitting briefs 30 days from today (Monday, June 15, COB) and 15 days from that day (Wednesday, July 5, COB). The motion was seconded by
Commissioner Clever and a roll call vote was held. The motion failed with 3 ‘yes’ votes and 6 ‘no’ votes.

Commissioner Mikita made a motion to dismiss this case before the Commission; the motion was seconded by Commissioner Huwa. A roll call vote was held and the motion to dismiss passed
with 6 ‘yes’ votes and 3 ‘no’ votes.

Continued discussion on future rulemaking on proposed changes to the Colorado Ground Water Commission Rules of Procedure for all Adjudicatory Hearings by Joseph Grantham - Mr. Grantham
asked whether the Commission wanted to proceed with the rulemaking at the next meeting. Since the last draft, the major change included reorganizing it so that rulemaking hearings,
adjudicatory hearings and administrative hearings are in separate sections. In addition, the rules will be edited to conform with the Secretary of State’s formatting requirements.
Mr. Kowalski commented that the discovery, cross-examination, issuing subpoenas, etc., should be removed from rulemaking because rulemaking is less controversial. Commissioner Coryell
made motion to continue this hearing at the August meeting in Grand Junction; Commissioner Loose seconded the motion, and it passed on a unanimous vote.

Presentation on processing procedure for the Petition to Create the Box Elder Creek Designated Ground Water Basin by Keith Vander Horst – Mr. Vander Horst presented a summary of the
proposed designation process for processing the proposed Box Elder Creek designated ground water basin, which was submitted to the Commission in the packets. He stated that currently
the staff is in the process of developing the legal notice to be published, which will happen before the next Commission meeting.

Interested parties in the audience who wished to comment were given ten minutes to present.

Mr. Andy Jones, representing the petitioners, the Central Colorado Water Conservancy District and John Moser, wanted to make it clear for the record that it is their position that the
petition must be published, that there is no legal alternative, and if the Commission wanted to make comments on this, a shorter time limit is appropriate. Mr. Jones also suggested
publishing this immediately and to begin the hearing process.

Mr. Mike Shimmin, on behalf of a client on the South Platte River called the Bijou Irrigation District, asked the Commission to not publish this petition because it does not meet the
statutory requirements to become a designated ground water basin. He stated that if the petition is published and there is a hearing on the merits, there will be numerous disputed
facts. This is a surface water basin, not a ground water basin as defined in the statutes. More than half of the water in this basin is imported from diversions from the South Platte
River through the FRICO and Henrylyn systems. The reason there is a good supply of water for the basin is because of the surface water brought in from the Platte, not ground water
that is native to this basin. Mr. Shimmin stated that the Commission has an obligation to screen this before it is published.

Commissioner George interjected and stated that per the agenda, this is a presentation on processing procedure for the petition, it is not a hearing to determine whether or not a petition
could be filed. Chairman Smith suggested postponing action on this to a future meeting.

Mr. Steven Jansen, attorney for the Henrylyn Irrigation District and one of the opponents in the wells cases, stated that if tributary ground water is taken out of the system and withdrawn
without replacement, it reduces the amount of water in the South Platte River, and reduces water that is available to satisfy downstream priorities. It will directly affect the amount
of water his clients can divert. He supports and adopts Mr. Shimmin’s arguments.

Commissioner Clever moved that this matter be taken up at the August meeting and notice in the agenda that there will be a hearing on whether to publish this or not. Commissioner George
seconded the motion and added that this requires due process to flush out the procedure. Additional discussion ensued between the Commissioners and the attorneys who addressed the
Commission on this matter, and Commissioner Clever’s motion was withdrawn.

Commissioner Loose moved that the staff move forward with their processing procedures and publicize; the motion was seconded by Doug Shriver to open it up for discussion. Commissioner
Mikita stated that he would not be comfortable if the Commission went ahead and publicized until the facts from the staff were provided to the Commission. Commissioner Simpson supported
holding a “screening” or preliminary hearing as suggested by Mr. Shimmin to give everyone an opportunity to present their positions to decide whether it meets the threshold test for
a designated ground water basin prior to a formal hearing. Additional discussion ensued.

Commissioner Coryell amended the motion to move forward and not publish until the Commission has a chance to review what the staff has done and make it a screening process and, if at
the August Commission meeting the factual data is okay, they can make a decision and not force people to go to the expense of defending something that possibly may not be worth hearing.
The motion was withdrawn, continued by further discussion. Mr. Kevin Rein, of the staff, clarified that the original assessment of this petition was performed in the manner of a checklist.
Staff did not take a position on the petition or make a determination whether or not objectors would object to the factual data, but only made an assessment to move ahead on the process.

Commissioner Loose moved, and Commissioner George seconded, that staff proceed with the process including publication. Following discussion by the Commission, the motion failed.

Commissioner Clever made a motion that anyone who wants to dismiss the petition, based on the petition itself, make arguments in the form of a brief by July 1, response to that brief
by July 15, a reply by July 25, and then it will be heard at the August meeting in Grand Junction, and staff evaluate whether the proposal meets prongs 1 and 2 in their report to the
Commission. Commissioner Coryell seconded the motion. Commissioner George amended the motion by adding that the hearing will only go forward as outlined in the motion based upon an
opinion from the Attorney General’s Office that said procedure is allowed under the applicable statute. The amended motion was seconded by Commissioner Coryell and the motion passed
with a unanimous vote.

Staff Report by Keith Vander Horst - Mr. Vander Horst presented the Staff Activity Report for the last quarter, the written report of which was included in the Commissioners’ packets.
He reported on the small capacity and large capacity well permit applications, changes of water rights, evaluating and clarifying permits, final permitting activities, hearings, and
enforcement actions. He reported that staff made field trips to Hoyt and Kiowa to meet with water users and get SBUs. Mr. Vander Horst reported that they hired Mr. David Keeler, Water
Commissioner for the Republican River Basin, and he has started his duties. He also stated that staff has been granted overtime to work on getting SBUs in Kiowa-Bijou in May and June.

Report of the Attorney General by Ginny Brannon – Ms. Brannon stated that the report that provides a summary of the matters that the Attorney General’s Office was involved in is included
in the packets. She pointed out an error on page 3 of the report that the Wayne E. and Francis G. Booker hearing is on October 28, 2006 instead of December.

Management District and Conservation District Reports - Chairman Smith called for the Management District reports.

Mr. Aaron Nein reported from the Frenchman, Sandhills, Marks Butte and Central Yuma Ground Water Management Districts. Mr. Nein stated that they are extremely dry in northeast Colorado.
They finished the static water level measurements and he provided a summary on each district. Mr. Nein stated that he met with Dave Keeler and he will work on enforcement actions
such as illegal acreage.

Mr. Jack Dowell, from the W-Y Ground Water Management District, reported that it is dry and they had three to five inches of snow in March, followed by winds. The farmers were getting
their crops in before he completed the chemigation report.

There was no report from the Arikaree Ground Water Management District.

Commissioner Coryell introduced their new district manager, Ms. Deb Daniels, from the Plains and East Cheyenne Management Districts. Commissioner stated that Ms. Daniels has experience
in water working with the irrigation research station in Yuma and she has background in agriculture and water.

Commissioner Smith reported for the Southern High Plains Ground Water Management District. He stated that it’s been dry with lots of wind in March and April. They finished their static
water level measurements and the effects of drought are affecting the static water levels.

Commissioner Loose reported for the North Kiowa-Bijou Ground Water Management District. He stated that they finished static well measurements and all wells are down approximately three
feet. Some well owners are frustrated with the amount of terracing that has been going on in the upper reaches of the basin.

There was no report from the Upper Black Squirrel Creek Ground Water Management District.

Mr. Dave Taussig, from the Upper Big Sandy Ground Water Management District, echoed everyone’s report that it has been dry. He noticed a decline in their water table measurements and
they are concerned. Mr. Taussig reported that he appreciated Mr. Simpson’s work with the Legislature to get the permit fees back down, and they will help in getting final permits issued.

There was no report from the Lost Creek Ground Water Management District.

Mr. Stan Murphy, from the Republican River Water Conservation District, reported that to date only 40 out of the 70 EQIP contracts have been signed. About 36 of those wells are water
retirements where they will give up their water rights and plug their wells, which was due to the water district increasing the money they will pay for permanent retirements by 67 percent.
It will take 5,000 acres out of production, some temporarily but most are permanent. The District hired a lobbyist to keep them informed.

Old Business – There was no old business.

New Business – Mr. Simpson read a Resolution recognizing Commissioner Ralph Curtis’ service to the Commission. Commissioner Clever moved, and Commissioner Mikita seconded, approval
of the Resolution; it passed unanimously.

Selection of August meeting location – The August meeting will be held in Grand Junction, which will include a tour of the Grand Valley irrigation system and fish ladder; Peach Days
in Palisade will start on August 19 and winery tours are also available.

Next Meeting – August 17-18, 2006

The meeting adjourned at 3:40 p.m.
.

Respectfully submitted,

Marta Ahrens
Secretary to the Ground Water Commission

Ground Water Commission Meeting Page 7
May 19, 2006

Minutes-3rd '06.pdfMicrosoft Word - Minutes-3rd '06.doc
MINUTES THIRD QUARTERLY MEETING COLORADO GROUND WATER COMMISSION AUGUST 18, 2006 The Third Quarterly Meeting of the Colorado Ground Water Commission took place on August 18, 2006,
at the Double Tree Hotel, 743 Horizon Drive, Grand Junction, Colorado. Chairman Max Smith called the meeting to order at 8:30 a.m. Marta Ahrens called the roll and determined that
a quorum was present. Commission members present were Grant Bledsoe, Larry Clever, Dennis Coryell, Corey Huwa, Frank Jaeger, Robert Loose, Earnest Mikita, Doug Shriver, Max Smith,
Hal Simpson, Russell George and Ted Kowalski. Review and Approval of Agenda Items – Chairman Smith stated that items 5 and 6 of the agenda will be reversed. Commissioner Mikita
moved to approve the agenda change; the motion was seconded by Commissioner Coryell and approved unanimously. Approval of Minutes for Meeting of May 19, 2006 - Chairman Smith asked
if there were any corrections or additions to the Minutes of the May 19, 2006 meeting. Commissioner Coryell suggested changing “irrigation districts” to “ground water management districts”
in the fifth paragraph of page 2. Commissioner Coryell moved to accept the Minutes with the change; the motion was seconded by Commissioner Mikita and carried unanimously. Report
of the Executive Director by Hal Simpson – Mr. Simpson thanked Dick Proctor with the Grand Valley Water Users Association for organizing the tour of the various irrigation projects
in Grand Valley, he thanked Larry Clever for providing water for the tour, and Marta Ahrens for arranging for bus transportation and the barbeque dinner at the park. Mr. Simpson reported
that water supply conditions statewide continue to be dry, and most of the state is under drought conditions with senior calls throughout the river basins in Colorado. Regarding Kansas
v. Colorado, Mr. Simpson reported that they are meeting with the state of Kansas this month to discuss accounting of releases from John Martin Reservoir and administration of the Arkansas
River Compact. They are continuing to make good progress toward resolving issues that are not related to the litigation but are important to interstate ability to get along and operate
under the provisions of the compact. Mr. Simpson reported that the Republican River Compact Administration met in Kansas last week. The accounting for 2005 was received and indicates
that the situation has slightly improved, but still had a deficit of about 10,000 acre-feet for 2005, and Colorado is using half of its compact entitlement under average water supply
conditions. Mr. David Pope, Kansas Commissioner, stated at the end of the meeting that Kansas expects Colorado and Nebraska to be in compliance by the end of 2007. Colorado needs
to initiate internal discussions on various options to address compliance. Ground Water Commission Meeting Page 2 August 18, 2006 Mr. Simpson reported that the CREP program was
approved earlier this year; around 25,000 acres were enrolled initially and enrollment continues into August. The goal is 30,000 acres and the district put interesting incentives into
the program to pay an amount greater than what the Federal government will pay for retiring irrigated lands. At the end of 15 years, some producers would receive $2,400 per irrigated
acre to not to irrigate over that 15-year period and would not bring that land back into irrigation. In addition, the District entered into the EQIP program and permanently retired
approximately an additional 6,000 acres in the basin. Hearing on Petitioners’ Exceptions to Hearing Officer’s Order Concerning Publication Costs and Submission of Publication Costs
Payment, in the matter of the Senior Water Rights of the Pioneer Irrigation District, Colorado Board and Laird Ditch located in the Northern High Plains Designated Ground Water Basins
(Case No. 05-GW-14) Chairman Smith called the hearing to order. Mr. Pat Kowaleski, of the Attorney General’s Office, was conflicts counsel. The following persons provided testimony
before the Commission: Mr. Steve Bushong, attorney representing the Pioneer Irrigation District, Colorado Board and Laird Ditch, participated via telephone conference call. He stated
that they are proceeding under the understanding of the agreement to temporarily stay the issue of publication costs on appeal. They are objecting to being billed approximately $3400
in publication costs. He stated that the Commission does not have the authority to collect these types of publication costs. CRS 37-90-116(1)(f) provides for costs for applications
and permits, and does not authorize publication costs associated with petitions. Mr. Bushong stated that there is a publication fund for all types of petitions or other types of publication
costs where the Commission does not have the statutory authority to request those costs from either the applicant or the petitioner, and he is requested that that fund be used to pay
for these costs. Ms. Ginny Brannon, of the Attorney General’s Office, stated that CRS 37-90-116(1)(f) states that the State Engineer’s Office or Commission can collect the publication
costs under “other fees,” and the petitioners should pay the cost for notice of publication. She stated that was the key point in the Hearing Officer’s order, and the staff requests
that the Commission uphold the Hearing Officer’s decision. Commissioner Huwa made a motion to affirm the decision by the Hearing Officer to have the petitioners pay the publication
costs; the motion seconded by Commissioner Jaeger and passed unanimously. Hearing on rulemaking on proposed changes to the Colorado Ground Water Commission Rules of Procedure for
all Adjudicatory Hearings, by Joseph Grantham Chairman Smith called the hearing to order. Mr. Pat Kowaleski, of the Attorney General’s Office, was conflicts counsel. The following
persons provided testimony before the Commission: Ground Water Commission Meeting Page 3 August 18, 2006 Mr. Joseph (Jody) Grantham, Hearing Officer, presented the proposed adjudicatory
rules. He stated that he requested and received public comment, which were incorporated into these rules and regulations, and there were no protests or changes from the last version.
Mr. Kowaleski stated that the rules would become effective 20 days following publication following final adoption, depending on when it was published. Commissioner George added that
these rules discuss how hearings will be conducted. Mr. Mike Shimmin, representing several ground water management districts, stated that they appreciated that staff circulated the
rules for public comment before proceeding with the formal rulemaking procedure. They were given an opportunity to provide comments and work out their concerns, and their suggested
changes have been incorporated into the rules. Commissioner Clever made a motion that the Commission adopt these rules and procedures for all hearings before the Colorado Ground
Water Commission; the motion was seconded by Commissioner Loose and was approved unanimously. Hearing on whether to proceed with publication of the Petition to Create the Box Elder
Creek Designated Ground Water Basin (Case No. 06-GW-23) Chairman Smith called the hearing to order. Mr. Pat Kowaleski, of the Attorney General’s Office, was conflicts counsel. Mr.
Kowaleski stated that the motion today should be whether or not adequate factual data has or has not become available as a result of the submittals to justify the Commission’s initiation
of the proceedings to create a new basin. The Commission should not decide whether the basin should or should not be created, that matter will be determined only after a public hearing
is held. He clarified that what should be considered, as decided at the last meeting, was to act on and consider the petition and supporting materials that were submitted by the applicant.
This is not an evidentiary hearing, the Commission should not be hearing new testimony, but will decide whether or not the motion to dismiss should be granted. The following persons
provided testimony before the Commission: Mr. Andy Jones, attorney, noted for the record that this hearing process is improper, that the petition should have been published three months
ago, the petitioner submitted all of the materials that are required by CRS 37-90-106, the staff recommended publication, and this proceeding puts the petitioner in the untenable position
of trying to demonstrate whether adequate factual data is available to create a new basin and responding to allegations that the data is not adequate because it does not meet one or
two of the prongs of the definition. Mr. Mike Shimmin distributed a color cross-section map that shows the location of irrigation land in relation to the proposed basin boundary.
Mr. Shimmin questioned the Commission whether they have adequate facts and data to put everyone through the process which may cost upwards of a million dollars; and, if not, the case
should be dismissed. The petitioners have to prove that ground water was the principle use of water for the past 15 years. He stated that the factual data before the Commission does
not meet the definitions of Prongs 1 and 2 of the statutes. Mr. Shimmin stated that this basin is not a natural ground water basin and will never be a ground water basin, it is predominately
a surface water basin. Ground Water Commission Meeting Page 4 August 18, 2006 Mr. Andy Jones, representing petitioners Central Colorado Water Conservancy District and John Moser,
provided a summary of the report that was attached to the petition. He stated that Central is concerned with augmenting wells in the South Platte River basin that are subject to curtailment.
He also stated that the Box Elder boundary is not adjacent to a continuously natural flowing stream, and that ground water has been the principle water source for at least 15 years
prior to designation. Mr. Jones stated that many wells in Box Elder would meet Prong 1 and that tributary water can be designated, and cited the Southwestern Colorado Water Conservancy
District case. He requested the Commission to make a motion to publish the petition and to set a hearing date before the next meeting. He added that it will not take millions of dollars
or four to six weeks. Mr. Jon Ford, Vice President of Leonard Rice Engineers, registered professional engineer and geologist and author of the report, responded to a question regarding
the Nine-Mile Reach and stated that in many cases there was limited or no flow. The following individuals testified and concurred that the creek has been historically dry and asked
the Commission to allow them to have their day in court: ♦ Mr. Eric Millage - his interest in the matter is his family farm is at the top of the boundary. He stated that Box Elder
Creek is not a continuously flowing creek and is dry most of the time. He is Vice President of Lower Latham Reservoir and Latham’s filling is through the Union Ditch off of the Platte
River. ♦ Mr. Steve Foos – farmer, grew up near Box Elder Creek; stated that other than releases from reservoirs, no water fills the creek. ♦ Mr. Bill Coyle – he owns a farm near Box
Elder Creek and stated that there is no flow in the creek. ♦ Mr. Dave Dacon – owns wells in Box Elder; he is a member of Central, Henrylynn and FRICO; he doesn’t feel the Closed Basin
designation will affect him. ♦ Mr. Gerald Redhammer – farmer, stated that water never flows through the farm from Box Elder; even when the reservoir broke, the water never reached