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August 11, 2005 MEMORANDUM TO: Ground Water Commission Members FROM: Suzanne M. Sellers, Designated Basins Team SUBJECT: Request for a Variance to Designated Basin Rule 7.10.2 by Ruben Richardson to Expand the Acres for the Wells with Permit Nos. 2250-FP and 10239-FP Permit History On August 5, 1959, the State Engineer issued Permit No. 2250-F for the irrigation of 200 acres described as part of the NW1/4 of Section 5, Township 2 North, and the SE1/4 of Section 32, Township 3 North, all in Range 47 West of the 6th P.M. On January 29, 1971, Russell R. Richardson submitted a Colorado Division of Water Resources questionnaire (attached) indicating that the well with Permit No. 2250-F was irrigating 300 acres described as part of the NW1/4 of said Section 5 and part of the SW1/4 of said Section 32 with an annual appropriation of 750 acre-ft. This questionnaire did not constitute an application for expanded acres. On May 12, 1982, based on the permitted acres and a duty of water of 2.5 acre-ft per acre, the Ground Water Commission issued an amended final permit (attached) for the well with Permit No. 2250-FP with an annual appropriation of 500 acre-feet for the irrigation of 200 acres described as part of the NW1/4 of said Section 5 and the SE1/4 of said Section 32. The amendment was to correct a typo so that it corresponded with the published and approved priority list. On August 23, 1965, the Ground Water Commission issued Permit No. 10239-F for the irrigation of 160 acres described as part of the SW1/4 of said Section 5. On January 29, 1971, Russell R. Richardson submitted a Colorado Division of Water Resources questionnaire (attached) indicating that the well with Permit No. 10239-F was irrigating 440 acres described as the SW1/4 of said Section 5, the NE1/4 of Section 7 and part of the NW1/4 of Section 8, both in Township 2 North, Range 47 West, 6th P.M. with an annual appropriation of 900 acre-ft. This questionnaire did not constitute an application for expanded acres. On December 16, 1988, based on the permit and the owner’s Statement of Beneficial Use, the Ground Water Commission issued a final permit (attached) for the well with Permit No. 10239-FP with an annual appropriation of 400 acre-feet for the irrigation of 160 acres described as the SW1/4 of said Section 5. For additional irrigated acres that occurred between the May 17,1965 and August 5, 1977 the State Legislature has provided us guidance in paragraph 37-90-108(3)(c) CRS which states: “Any owner of an existing valid conditional permit issued before July 1, 1978, may file with the commission an amended statement of beneficial use, in the form prescribed by the commission, on or before December 31, 1979, and not thereafter, if any such change occurred and was approved on or before August 5, 1977”. Mr. Richardson never requested and the Commission never approved the expanded acres claimed in the said questionnaires. Additionally amended statements of beneficial use were never filed with the Commission for the expanded acres. Not only did Mr. Richardson illegally expand his acres, recent pumping and crop records indicate that the annual withdrawal of these wells has some times almost doubled what is allowed by law. Expanded Acres Applications On June 23, 2005, Mr. Ruben Richardson submitted an amended application for the well with Permit No. 2250-FP to irrigate an additional 58 acres for a total of 258 acres described as part of the NW1/4 of said Section 5 and the SW1/4 of said Section 32. On July 6, 2005, Mr. Richardson also submitted an amended application for the well with Permit No. 10239-FP to irrigate an additional 218 acres for a total of 378 acres described as part of the SW1/4 of said Section 5, part of the NE1/4 of said Section 7, and part of the NW1/4 of said Section 8. These applications were published in the Yuma Pioneer on June 23 and 30, 2005 and on July 14 and 21, 2005. Variance Request On June 23, 2005, Mr. Ruben Richardson submitted his original complete request and then on July 5, 2005 an amended request for a variance from Designated Basin Rule 7.10.2 which states: “No credit toward historic use shall be given for water used on acreage which exceeds the number of permitted acres, or for any other water use not authorized by the permit.” The original and amended variance requests were published in the Yuma Pioneer on June 23 and 30, 2005 and on July 14 and 21, 2005. One objection to the variance (attached) was received from the Central Yuma Ground Water Management District by the statutory deadline. Additionally, Mr. Duane Richards submitted a request (attached) on June 28, 2005 for a variance for his own expanded acres claiming “a very similar situation” to Mr. Richardson’s. As of this date, the applicant has not paid all publication costs. Discussion on the Granting of Variance Requests by the Commission Rule 11.1.1 provides authority for the Commission to grant a variance from strict application of a Commission rule upon a determination of “unusual hardship.” Rule 11.1.1 reads as follows: When the strict application of any provisions of these rules would cause unusual hardship, the Commission may grant a variance for a specific instance provided a written request for the variance is made to the Commission and the Commission finds the request justifiable in accordance with the provisions of this rule. The term “unusual hardship” is not defined by Commission rules. Furthermore, the Commission has adopted its rules for specific purposes. In this case, the Commission adopted Rule 7.10.2 to ensure that an expanded acres request will not result in material injury through an illegal past expansion use. Consequently, a variance should only be granted upon a showing that circumstances or facts that exist will cause the applicant to be impacted by the restrictions imposed by the Commission rule that would not impact a typical applicant. Unless an applicant can satisfy a strict standard to distinguish the circumstances causing their “unusual hardship” from circumstances that may affect any typical applicant seeking expanded acres before a variance is granted, any applicant asserting similar facts could use a variance request to circumvent the requirements of a Commission rule and thereby cause material injury to other vested water rights. Although the applications that have been submitted are incomplete, Staff has performed a preliminary analysis of the expanded acres applications. The following table estimates the historic withdrawals for the two subject wells: Permit No. Legal Average Annual Historic Withdrawal (acre-ft) Average Annual Historic Withdrawal allowed by Variance (acre-ft) 2250-FP 393 474 10239-FP 322 400 Total 715 874 By granting this variance, the Commission would be allowing the illegal historic expansion of irrigated acres, which will create a higher demand on the aquifer of 159 acre-ft per year than if the applicant had irrigated his permitted acres according to the law. Staff maintains that this information clearly shows that there will be material injury caused to the aquifer if this variance is granted. Regardless of the Commission Variance Rule, Statute requires the Commission to protect against material injury regardless of how long that injury has historically occurred. There are rumors of many wells in the Northern High Plains that have illegally expanded their acres and thus are illegally draining the aquifer at a rate higher than allowed. The Division of Water Resources will be hiring another water commissioner to deal with these types of compliance issues. By granting this variance the Ground Water Commission will be setting a precedent that these well users with illegally expanded acres will also want to enjoy. This could ultimately take away the ability for the new water commissioner to crack down on these illegally expanded acres, and more importantly, take away an opportunity to reduce the current and future depletions to the Republican River. Memorandum Upcoming Commission Meeting Page 2 FRED A. HEFLEY, CHAIRMAN, Walsh; JON B. BROWNELL, VICE-CHAIRMAN, Hooper; EUGENE A. BAUERLE, Julesburg; ANNE J. CASTLE, Denver; DENNIS W. CORYELL, Burlington; MICHAEL GROSS, Silt; RICHARD F. HUWA, Keenesburg; F. W. (BILL) KERKSIEK, Strasburg; ERNEST L. MIKITA, Calhan EARNEST L. MIKITA, CHAIRMAN, Calhan; C. MAX SMITH, VICE-CHAIRMAN, Walsh; GRANT H. BLEDSOE, Wray; LARRY W. CLEVER, Grand Junction; DENNIS W. CORYELL, Burlington; RALPH G. CURTIS, Alamosa; COREY M. HUWA, Roggen; FRANK P. JAEGER, Elizabeth; ROBERT R. LOOSE, Wiggins Variance by Ruben Richardson Page 4 StaffReportAug05.doc STATE OF COLORADO GROUND WATER COMMISSION Division of Water Resources Department of Natural Resources 1313 Sherman Street, Room 818 Denver, Colorado 80203 Phone (303) 866-3581 FAX (303) 866-3589 Bill Owens Governor Russell George Executive Director, DNR Hal D. Simpson, P.E. Executive Director August 9, 2005 MEMORANDUM TO: Hal D. Simpson, Executive Director - Ground Water Commission FROM: Suzanne M. Sellers, Designated Basins Team SUBJECT: Staff Activity Report for May 1, 2005 through July 31, 2005 AGENDA ITEM # 7 Various activities performed during the last quarter are briefly described below. New and Replacement Applications Table 1 provides a breakdown, by basin, of permitting activity for the last quarter. The following permit activities were performed: Small capacity: 252 small-capacity well applications were received 198 small-capacity well permits were issued Large Capacity: 89 large-capacity well or Determination of Water Right applications were received 74 large-capacity well permits or Determination of Water Rights were issued Table 2 shows the current status of new and replacement permit applications for the large-capacity wells. Change Applications Table 3 provides the current status of the change applications. During the last quarter the following change application activities occurred: 11 new applications were received 30 change applications were approved Final Permit Activities Below is a summary of the Final Permit Activity for the last quarter and a summary of the status of the Final Permit Project as a whole. Staff is currently working on issuing permits for the Southern High plains as well as doing preliminary work on the Upper Big Sandy Designated Basin. During the week of June 20th, four staff members performed field inspections, collected SBUs and met with many irrigators at the Baca County Fairground in Springfield. During this week, staff conducted 32 field inspections and talked with the owners of approximately 400 wells. The trip was so successful, a second trip to the Southern High Plains is planned for the week of August 29th. Also a similar trip is planned to go to Simla on October 5-7, 2005 for the Upper Big Sandy Designated Basin. Southern High Plains Final Permit Activity This Quarter Requests for SBUs* Permits Clarified Permits Published Final Permits Issued Misc. Contacts** 20 40 0 0 243 * This field tracks only the first request for a Statement of Beneficial Use (SBUs). ** This field tracks meetings with the irrigators, telephone conversations, second and third requests for SBUs and other correspondence such as corrections to a previously submitted statement, reminders to return an amended statement or a request for a change in ownership form. Final Permit Activity to Date Basin Total Number of Permits Total Final Permits Issued Percent Complete Upper Crow Creek 101 101 100% Northern High Plains 4376 4376 100% Lost Creek 302 292 97% Camp Creek 45 44 98% Upper Black Squirrel Creek 281 198 70% Southern High Plains 1254 186 15% Kiowa-Bijou 1100 1 0% Upper Big Sandy 127 0 0% Total 7586 5198 69% Objections/Hearings Pending hearing cases are listed in the Hearing Officer's report. The Staff took part in pre-hearing conferences and spent time trying to resolve or otherwise work on the hearing cases related to following applicants. The Gallegos Curtailment Request is currently in Weld County District Court and the Booker applications have been appealed to El Paso County District Court. Also the Hunker (UBSC Division Reapportionment) case is before the El Paso County District Court and the Cherokee Metro. District (Sweetwater Stipulation) case was is before the Division 2 Water Court.