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for discovery and pre-hearing motions. Status: The applicant has filed two motions to resolve basic issues in the case. Certain objectors have filed motions to stay the proceedings pending resolution of a recently filed district court action to determine the legal effect and validity of the applicant’s leases. As of the time of this writing, these motions are all pending. FALCON HIGHLANDS METRO DISTRICT Case No. 06-GW-24 Designated Basin: Black Squirrel Creek Management District: Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Devin Odell Subject: Falcon Highlands Metro District submitted three applications to change the place of use of Determinations of Water Rights and the Upper Black Squirrel Creek Ground Water Management District objected based, among other things, on their concern that the application would involve the export of water from the Upper Black Squirrel Designated Basin. Status: The District denied the request to export water, and that decision has been appealed to district court. The Commission is not a party to that appeal, and the case before the Commission is on hold pending the outcome of the district court case. PV wATER AND SANITATION Case No. 07-GW-06 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Devin Odell Subject: This case involves two applications for determination of water rights to allow the allocation of designated ground water from the Laramie-Fox Hills and Araphoe aquifers underlying 19 parcels, totaling about 4,400 acres. All or a portion of the water may be exported out of the Lost Creek Designated Basin, according to the application. Status: The parties reached a settlement decreasing the amount of water the applicant will withdraw, and the hearing officer remanded the matter to Staff. The Staff has requested information from the applicant needed to issue a determination. pETITIONS TO amend boundaries of basin—Kroskob and Uhrick Case No. 07-GW-19 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Devin Odell Subject: This matter involves two petitions to expand the boundaries of the Kiowa-Bijou Designated Ground Water Basin to include two square-mile parcels on the northeastern edge of the basin, one contiguous with the existing basin and the other not contiguous. Staff published the petitions pursuant to direction from the Commission and received two objections, one from the North Kiowa-Bijou Ground Water Management District and one joint objection from the Bijou Irrigation Co. and Bijou Irrigation District. The hearing officer has set a hearing for March 25 through March 28, 2008 in Denver. Status: The parties have filed prehearing statements, the applicant has filed supplemental engineering, and the Staff is now preparing rebuttal engineering in preparation for the hearing. Various final permits Case No. 07-GW-23 to 26, 27 to 33, 35 to 37, 43 to 46, 48 to 51 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Devin Odell Subject: These matters involve issuance of final permits for a number of wells that had been issued conditional permits prior to 1991. The Staff published final permit notices, as required by statutes, and the District objected in a number of cases because the wells had not been included on the records of the assessor, and had therefore not paid any special assessment to the District. The District originally contended that the Commission should not issue final permits until the well owners have paid a $500 fee under its rules. It amended this position to claim that the hearing officer should consider whether certain of the permits for the wells have been “abandoned.” The Staff has taken the position that the concept of “abandonment” does not apply to the issuance of permits in designated basins. The parties briefed the issue and the hearing officer ruled that “abandonment” does apply in designated basins and that the District may therefore submit evidence on the issue at hearings on the issuance of final permits. Status: The first case involving the issue of abandonment (as well as other issues) is set for a two-day hearing on March 4 and 5, 2008. Hearings in other pending cases involving the issuance of final permits, and thus potentially abandonment, will be set by the hearing officer soon, to the extent that they have not been resolved. Shaw, sharon and Terry Case No. 07-GW-67 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Devin Odell This case involves three applications for determinations of water rights. The Cherokee Metropolitan District has submitted an objection. Status: Because the application involves lands also at issue in Cherokee Metropolitan District’s applications in Case No. 05-GW15-17, the case has been stayed pending resolution of that case. Rock springs, LLC Case No. 07-GW-68 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Devin Odell This matter involves three applications for determination of water rights. An objection was filed by the district on the following grounds: 1) Approval without conditions would result in an adverse effect on vested rights in the basin; 2) The application involves export, which the District has not approved; 3) The application involves four non-contiguous parcels, and thus approval must contain conditions regarding overlap of the cylinders of appropriation and well placement. Status: A hearing in this matter has been set for April 22, 2008. Springs east airport, inc Case No. 07-GW-69 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Devin Odell This matter involves an application for a change of water right. The Cherokee Metropolitan District filed an objection. The applicant and objector entered into settlement discussions and requested that further proceedings be stayed until further notice. Status: The hearing officer granted the request and no proceedings have been scheduled in this matter. State engineer v. Cure Case No. 07-CV-48 Designated Basin: Northern High Plains Management District: Sand Hills Groundwater Management District Before: Judge Douglas R. Vannoy, Yuma County District Court Attorney: Devin Odell Subject: The Commission, through the State Engineer, filed a complaint to enforce orders regarding two wells operated by William Cure. The Commission alleged that Mr. Cure is using the wells to irrigate more land than he is allowed to under the permit. Mr. Cure did not respond to the complaint, and the commission obtained a default judgment against him in which the court ordered him to comply with the Commission’s earlier orders and to pay a penalty in the amount of $110,000, representing $500 per day for each day Mr. Cure violated the two orders (a total of 110 days) and the Commission’s costs, including reasonable attorney’s fees, for bringing the action. Status: Mr. Cure has not complied with the order to pay the penalty and costs. The Commission has filed a motion for contempt of court, seeking both punitive and remedial sanctions. A hearing set for February 5, 2008 in district court in Wray was vacated so as to allow Mr. Cure’s newly hired attorney to become familiar with the case. A new hearing on the contempt motion will be set for a date after March 8, 2008, if necessary. 6 5 AG ReportFeb08.pdf AgendaFeb08.doc Determine quorum Review and approval of agenda items Approval of Minutes for meeting of November 16, 2007 Report of the Executive Director by State Engineer Dick Wolfe Hearing: Amendment to the Rules and Regulations for the Management and Control of Designated Ground Water, to authorize Republican River Compact Compliance Wells. Staff Report by Keith Vander Horst. Attorney General’s Report by Devin Odell. This is a background briefing on legal issues in the written report. The Board may refer any item contained or discussed under this topic to Agenda Item No. 13 for discussion in Executive Session if the Board has questions about the litigation. District Reports: Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Nate Midcap W-Y GWMD by Jack Dowell Arikaree GWMD by Roger Brenner Plains and East Cheyenne GWMDs by Deb Daniel Southern High Plains GWMD by Max Smith North KiowaBijou GWMD by Robert Loose Upper Black Squirrel GWMD by Tracy Doran Upper Big Sandy GWMD by Dave Taussig Lost Creek by GWMD by Thomas Sauter Republican River Water Conservation District by Stan Murphy Old Business New Business Public Comments Executive Session (if needed) Adjournment NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION May 19, 2006 Revised A G E N D A (cont.) NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, February 15, 2008 Parker Water & Sanitation District North Reclamation Facility Administration Building 18100 E. Woodman Drive (NW corner of E-470 and Parker Road) Parker, CO 80138 Phone: 303-841-4627 A G E N D A AgendaFeb08.pdf AgendaSuggestions.doc From: Wolfe, Dick Sent: Monday, January 14, 2008 7:44 AM To: Rein, Kevin; Byers, Jack; Vander Horst, Keith Subject: FW: Suggestions Suggestions for your consideration for the GWC. From: Patrick E. Kowaleski [mailto:patrick.kowaleski@state.co.us] Sent: Friday, January 04, 2008 2:47 PM To: Wolfe, Dick Subject: RE: Suggestions Dick, Here is the language that CWCB puts in its agenda to allow any item to be referred to executive session: Attorney General’s Report & Legal Briefing – This is a background briefing on legal issues contained in the Attorney General’s written report and the items listed below. The Board may refer any of the items discussed under this topic to Agenda Item No. 8 [Executive Session] for discussion in Executive Session if the Board has questions about the litigation. I think we could work out something similar for the GWC. Pat >>> "Wolfe, Dick" <Dick.Wolfe@state.co.us> 12/28/2007 7:20 PM >>> Thanks Pat, these are very helpful suggestions. I would appreciate it if you could send me the langauage the CWCB uses. I will get with Keith regarding your other suggestions. Thank you for being a mentor. I am sure I will be talking to you a lot in the near future. Thanks, Dick From: Patrick E. Kowaleski [mailto:patrick.kowaleski@state.co.us] Sent: Wed 12/19/2007 6:57 AM To: Wolfe, Dick Subject: Suggestions Dick, I have a couple recommendations that you might want to consider as you begin your tenure. These are my own thoughts, and haven't been run past anyone else here. Feel free to do with them as you wish. I think we could do more as far as orientation for new Board and Commission members. My recent experience has been with the Ground Water Commission, but I think this would apply to other Boards that you staff as well. With regard to the GWC specifically, for a while Hal met with me and staff prior to the Board meeting to discuss what was on the agenda and how items would be handled. I think such a meeting with Keith, and possibly even Max by phone, would be helpful. Another issue that has come up periodically is the problem of what to do when, at the last minute, we want to discuss new developments in a case that is in litigation. This typically has led to our amending the agenda ,and having to send the amended agenda out to our full mailing list. The CWCB has standard language that they put in their meeting notice, saying that any item in the legal report is subject to being discussed in executive session. At the start of each meeting they announce whether, and which, items will be discussed in executive session. I think this is a very good idea and I'd be happy to send you the language they use if you are interested in pursuing this further. One last minor item would be a suggestion to add "Public invited to be heard." at the end of each GWC, and other, meeting agenda. I know this is a very busy time for you, and I understand your comment about sometime feeling you are drinking from a fire hydrant. Good luck, and let us know if there is any way we can be of assistance. Pat DraftRule.pdf EnforcementItemsandActions#.doc Enforcement Items and Actions Enforcement actions performed by staff this quarter are summarized below: NORTHERN HIGH PLAINS Sand Hills GWMD Staff continues to works with the Attorney General’s office to enforce cease and desist orders issued to William Cure of Cure Land LLC for the illegal irrigation of expanded acres. Fines have been issued through the District court, and we are awaiting Mr. Cure’s payment/respsonse. Central Yuma GWMD Birdsall Young was identified as using an irrigation well to irrigate illegally expanded acres. Staff is currently working with Mr. Young to reach compliance with the Final Permit. KIOWA BIJOU GWMD Staff investigated a complaint regarding illegal use of a small capacity well to fill a pond. A violation has been verified and staff is working with the owners to correct the violation. Staff investigated a complaint involving two small capacity wells being used for un-permitted irrigation (in excess of two acres). A field inspection was performed, and one of the wells was identified as being used in violation of its permit. The well owner has since shut down this small capacity well, as it was required to be abandoned as one of the terms and conditions of a replacement permit. GWMDOpinionOfRule.pdf HearingOfficerFeb08.pdf MINUTES-1st '08.docMINUTES FIRST QUARTERLY MEETING COLORADO GROUND WATER COMMISSION FEBRUARY 15, 2008 The First Quarterly Meeting of the Colorado Ground Water Commission took place on February 15, 2008, at the Parker Water and Sanitation District, 18100 E. Woodman Drive, Parker, Colorado. Chairman Max Smith called the meeting to order at 10:00 a.m. Mr. Chris Grimes called the roll and determined that a quorum was present. Commission members present were Grant Bledsoe, Dennis Coryell, Corey Huwa, Frank Jaeger, Robert Loose, Earnest Mikita, Doug Shriver, Max Smith, Dick Wolfe, and Jennifer Gimble. Review and Approval of Agenda Items –Commissioner Mikita moved, and Commissioner Shriver seconded, approval of the agenda. Approval of Minutes for Meeting of November 16, 2008 - Chairman Smith asked if there were any corrections or additions to the Minutes of the November 16, 2008 meeting. Commissioner Coryell requested that line five of Stan Murphy’s report on the Republican River Conservation District read: “The deadline for signup for the ‘CREP’ program”, be corrected to “EQIP”. Commissoner Huwa moved to accept the Minutes as amended; the motion was seconded by Commissioner Shriver and carried unanimously. Report of the Executive Director by State Engineer Dick Wolfe – Mr. Wolfe reported on the following: There has been some recent reorganization within the Denver office to accommodate the ongoing and future needs of Division of Water Resources. The Designated Basins group has been moved under the supervision of Ken Knox as the Deputy State Engineer, and there is a decision item before Legislature to reallocate four additional staff members to the Designated Basins team to deal with compact compliance and well measurement rules within the Republican River Basin. It was reported that Marta Ahrens will no longer be doing the minutes and other secretarial duties for the Ground Water Commission meetings. These duties will be taken over by the Designated Basins staff. Mr. Wolfe asked the Commission to consider formally recognizing Marta for all her hard work and the years of service she has provided the Board. Mr. Wolfe reported that the water supply conditions around the state are great right now. All of the Basins in the state are over 100 percent of average; the South Platte is at 112 percent of average, the Upper Rio Grande is at 172 percent, and the Arkansas is up 168 percent of normal. While snow water and water availability is great, but there are some flooding concerns. We need to be prepared for this impact, and work closely with the CWCB for flood protection mitigation. Republican River Basin We are moving forward with the promulgation of measurement rules. Dates have not been set yet, but we are looking at March to implement these rules. There has been broad support to move forward with the measurement rules. Mr. Wolfe reported that he continues to evaluate comments that have come in about the Compact Rules. Ken Knox and Katie Radke have spent a significant amount of time speaking to folks throughout the basin about the Compact Rules. There have been no decisions made on the proposed rules or dates of promulgation just yet. Dick Wolfe, Harris Sherman, Ken Knox, Jim Miller, and others met with Kansas on January 28th to discuss Compact compliance. It was a productive meeting. There is a follow-up meeting on March 14th in Denver to continue a direct dialogue with representatives from Kansas on Compact Compliance. Kansas has requested that Nebraska fast track arbitration, and tentative meetings have been scheduled for March 11th and 12th in Kansas City. There has been a request to do a presentation on the Compact compliance pipeline at the Kansas City Meeting. There will be upcoming meetings with the Pioneer Ditch and Bonnie Reservoir water users to address their concerns with the pipeline project. Arkansas River Basin There has been some resistance to the Water Efficiency Rules, and Mr. Wolfe has requested that we step back a bit to meet with some of the water user associations and districts in smaller groups to discuss why we are trying to move forward with these rules. In April, Mr. Wolfe hopes to put together some broader meetings to educate the public and water users a little more before adopting the rules. At the last CWCB meeting, the Board approved $300,000 over a three year period for the lycimeter project going on in the Arkansas basin. We will continue to look for long term funding sources if it is decided that the project should continue after that three year period. Rio Grande Basin Mr. Wolfe reported that there are efforts being made by subgroups within the Rio Grande Basin to possibly utilize CREP and EQIP programs to take irrigated agriculture out of production, and try to bring the water use into balance. It’s important that we meet with folks in the Basin and get a dialogue going so that we can discuss how we will move forward. Well use rules for the Basin will be adopted, but Mr. Wolfe stressed the importance of getting the subdistricts up and running. South Platte River Basin The South Platte Task Force continues to address some of the issues of wells in the basin. Some of the recommendations approved by the Task Force are moving forward through legislation. The Chief Justice of the Colorado Supreme Court has established a committee, the South Platte Task Force, to study methods to streamline the Water Court Process. Commissioner Gimble and her agency, the CWCB, have been very supportive with funding for the committee. The report is expected out on August 1st but you may review the activities at the State Court’s website. La Plata River Basin There is some concern regarding the outcome of the Vance Case concerning the coalbed methane issue in the Durango area, and the potential adverse effect of the Supreme Court’s decision on coalbed methane wells. Within the San Juan and Raton Basins, two primary basins where coalbed wells are operating, there are groups putting models together to determine nontributary areas in those basins. If they can prove larger areas of nontributary water in those basins, the coalbed methane wells would not be subject to augmentation plans, and thus, they would not be under the authority of the Division of Water Resources. The oil and gas well numbers continue to grow each year; we are expecting 7000 new wells of this type in the state this year, and the prospect of potentially having oil and gas wells under the authority of the State Engineer is not an exciting one. . Mr. Wolfe reported that Senate Bill 53 has been pulled by Senator Brophy. Our modeling group applied the “100 Year Travel Time Test” from the Bill to the South Platte Basin, and it resulted in 1300 of 8200 wells falling under a Designated Ground Water category. After seeing these results, the Senator killed the Bill. Hearing: Amendment to the Rules and Regulations for the Management and Control of Designated Ground Water, to authorize Republican River Compact Compliance Wells. Commissioner Bledsoe recused himself from the rule making hearing due to a conflict of interest. Chairman Smith called the hearing to order. A motion was made by Commissioner Coryell to grant party status to the Ground Water Management Districts and accept the written materials. The motion was seconded by Commissioner Mikita and carried unanimously. Mr. Pat Kowaleski, of the Attorney General’s Office, was conflicts counsel. The proponents were allowed 30 minutes for testimony, staff was allowed 10 minutes, and the Commission reserved an unspecified amount of time for public comment. The following persons provided testimony before the Commission: Mr. Mike Shimmin, representing the Marks Butte, Frenchman, Sandhills, Central Yuma, W-Y, Arikaree, and Plains Ground Water Management Districts (GWMD’s), stated that at the February 4th pre-hearing conference staff requested some revisions to the rules, specifically to the proposed rule that would have dealt with new wells and the possibility of well owners within three miles of Compact compliance wells having veto power over new Compact compliance permits. The Sandhills District and a few directors on some of the other district’s boards have some concerns with staff’s amendments to the language, but these concerns should not be misinterpreted as a lack of support for rule amendments or the Compact compliance pipeline Project. Mr. Shimmin stated that they are concerned that the proposal made by the staff (to allow Compact compliance permits to be issued after a hearing held by the Commission) does not provide any standards of protection and/or criteria for injury in one of those hearings. The districts are supportive of a rule and sensitive to the staff’s concern that, as originally published, the rule may have given well owners veto power. However, they are concerned with the wording of the rule and how it will be implemented, so they request that the rule wording be worked on before final approval. Mr. Shimmin stated the GWMD’s are still supportive of that part of rule amendments dealing with “changes of existing well permits”, and all seven of his GWMD’s are supportive of having that part of these amendments adopted. Mr. Shimmin requested that the Commission adopt the amendments written in paragraphs 1 and 5 of the written material titled “Potential GWC Rule Amendments To Authorize Compact Compliance Wells”, and table action on paragraphs 2, 3, and 4 and continue this process to the next Commission meeting so that the language on those proposals can be worked on. Mr. Keith Vander Horst, representing staff, stated that he does agree with the overall concept of the rules and allowing compact compliance wells to be drilled in otherwise overappropriated areas to help Colorado meet Compact compliance. Mr. Vander Horst clarified the basis for staff’s re-write of item of 4 of the proposed rule amendments. Two main issues drove the re-write -- (1) item two of the initial proposed rule required meeting existing Commission rule 5.2.1 (dealing with ½ mile spacing) and (2) consent was required from well owners within three miles. Staff felt these rules overlapped. Staff was concerned with well owners having veto power. Staff understands the GWMD’s concern that, as written in Staff’s revision, there are no standards set out for which the Commission could grant a new well in a hearing. Mr. Vander Horst stated that the staff supports Mr. Shimmin’s request to adopt items 1 and 5 of the proposed Rules, and table items 2, 3, and 4 for further discussion. Mr. Bill Paddock, representing Bledsoe Cattle Company, stated that the Bledsoe Cattle Company supports the efforts of the Commission and Republican River Water Conservation District to develop compact compliance wells and the Compact compliance pipeline, but they are concerned about what the standards will be for the issuance of compact compliance wells, who will be able to apply for those wells, and what standards will be applied when determining if permits will be issued. He was concerned that we may be opening up the Basin for entrepreneurs to come in and create private pipelines and get into the business of selling water for Compact compliance purposes. This implicates the law of speculation as it applies to Designated Ground Water. The Commission needs to think carefully about compact compliance wells, and how they will manage and structure the development of those wells. The Commission should limit the issuance of compact compliance wells to only governmental entities whose charge it is to assist the state of Colorado in meeting its Compact obligations. Mr. Paddock also stated that there needs to be more consideration by the staff in the determination of the injury standards for compact compliance wells. The landowners in the Basin who will be asked to consent to a new appropriation (that they themselves could not get if they applied for) are entitled to know what the impacts will be on them, and how much they are being asked to give up for the benefit of the Basin. And finally, Mr. Paddock stated that if there is a recalcitrant landowner who would not be injured by a compact compliance well, but is trying to hold up the Basin to get more money, the Commission should consider the use of condemnation. Mr. Mike Adamson, representing Pioneer Irrigation Ditch, stated that he is opposed to the pipeline. project, and because we are already overappropriated, drilling more wells seems like more bad ideas. If the Commission allows new permits to assist with Compact compliance, something else should be set aside as well. He stated that we can’t keep putting more wells in the Basin to pump water that has not been appropriated before. Mr. Adamson agrees with passing rule amendment items 1 and 5, and tabling 2, 3, and 4. Mr. Pat Kowaleski, of the Attorney General’s Office, recommended a procedural change and the Commission move to adopt rule amendment items 1 an 5, and not table 2, 3 and 4, but rather direct staff to set that up as a new rule making hearing at the next meeting. Following deliberation by the Commission Members, Commissioner Coryell made a motion to adopt rules amendment items 1 and 5 and set 2, 3 and 4 for another rule making hearing. The motion was seconded by Commissioner Corey Huwa, and passed unanimously. 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, change applications, final permitting activities, objections/hearings, and enforcement actions. Under miscellaneous items, Mr. Vander Horst reported that the Pioneer Irrigation District is scheduled for a three week hearing in June, and the Richard Uhrick and Craig Kroskob petition to amend the boundaries of the Kiowa Bijou Basin is scheduled for four day hearing at the end of March. Also, the Hearing Officer has vacated and stayed action on the hearing concerning the Cherokee Metropolitan District’s applications for determination of water rights because some of the landowners and lessees filed an action in the El Paso County Court for a District