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AG Report2010-2-19..pdf AG Report2010-2-19.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission February 19, 2010 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of February 5, 2010. pETITIONS TO amend boundaries of basin—Kroskob and Uhrick Case No. 09CV61 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Morgan County District Court, Judge C. Vincent Phelps Attorney: Pat Kowaleski 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. Following a hearing on August 4-7, 2008, the hearing officer issued an order denying the petitions, ruling that the petitioners did not meet their burden of proof. The Commission affirmed this initial decision at the February meeting. <Petitioners have appealed the Commission’s decision, and the matter will be heard “de novo” by the District Court. Status: A Motion to Dismiss two of the three claims of the complaint has been filed. There is no trial date yet. appeal of rules adopted by the upper black squirrel creek ground water management district Case No. 09CA131 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Colorado Court of Appeals Attorney: Pat Kowaleski Subject: Cherokee, Meridian Ranch, Meridian Service, Paint Brush Hills and Woodmen Hills Metropolitan Districts filed an appeal to the adoption of Rule Nos. 3, 17, 18, and 19 by the Upper Black Squirrel Creek Ground Water Management District. The Upper Black Squirrel Creek District issued rules limiting withdrawals from large capacity wells, and, pursuant to statute, the Commission was required to approve the rules. On October 29, 2004, Cherokee et al filed an appeal with the District Court in El Paso County. The Commission filed a Motion to Dismiss the District Court action on the grounds that the Commission had not yet completed its review, and the matter was therefore not ripe for an appeal to District Court. The District Court put the matter on hold until the Hearing Officer and the Commission acted on the remand to the Hearing Officer. On December 12, 2008, the El Paso County District Court upheld the Commission’s approval of the Management District Rules. On January 20, 2009, the District Court’s decision was appealed to the Court of Appeals by the parties who had objected to the rules. The Appellants sought to have the matter heard by the Supreme Court, prior to review by the Court of Appeals, but their request was denied by the Supreme Court. Status: The case has now been fully briefed at the Court of Appeals, and unless oral argument is scheduled by the Court, the matter is ready for decision. Moser v. Ground Water Commission Case No. 07CV487 Designated Basin: Proposed Box Elder Creek Management District: Before: Hon. James Hartmann, Weld County District Court Attorney: Pat Kowaleski Subject: The Commission denied the request of John Moser, et al, to create the Box Elder Creek Designated Basin, and Moser appealed the Commission’s decision to District Court. Pursuant to statute, the matter will be tried de novo by the Court. The Court ordered the setting of the trial to be stayed so as to allow the parties to brief the disputed legal issues, including the preclusive effect of the court’s final decree (to be issued this spring) in Central Colorado Water Conservancy District’s Well Augmentation Subdistrict case, which included findings by the court regarding the Box Elder Creek drainage. On July 31, Moser filed a 45 page Motion For Determination of Questions of Law. Status: The Court has ruled on the Motion, and the matter will now continue to trial. Trial has been set for April 26-May 14, 2010 (15 days). CHEROKEE METROPOLITAN DISTRICT Case No. 05-GW-15, 16, 17 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: These cases involve nine applications for the withdrawal of groundwater from the Upper Black Squirrel Designated Ground Water Basin on land leased by the applicant. <In its November 2006 meeting, the Commission directed Staff to proceed with evaluation and publication of the applications and notify the legal land owners of the applications. The proceedings were stayed pending the outcome of a district court action to determine the legal effect and validity of the applicant’s leases. After the district court held that the Ground Water Commission has jurisdiction over this matter, the case went before the Hearing Officer for a hearing. The Hearing Officer determined that the leases did not convey rights to Denver Basin water, although also held that Cherokee does have the right to Denver Basin water in situations in which Cherokee has express consent from the landowner to withdraw Denver Basin water. Cherokee has appealed. Status: The matter is set in front of the Ground Water Commission for oral argument on May 21, 2010. cherokee metropolitan district Case No. 08-GW-71 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: An application for approval of a replacement plan to make new appropriations from the alluvial aquifer within the basin. Objections were submitted by the District, along with four other water users in the basin. A hearing was held for two weeks in Denver beginning on June 8, 2009 during which the applicants completed their initial presentation and the objectors began their presentations. An additional week of hearing scheduled for August 3 to 7 was vacated following a ruling from the Division 2 Water Court regarding Cherokee’s use of some of its wells, subject to further negotiations and amendment of the proposed replacement plan. Status: This case was consolidated with change cases 08GW78 and 09GW15, and the trial was set to continue in January 2010. In November of 2009, the Upper Black Squirrel Creek Ground Water Management District filed in District Court, in Case No. 98CW80 for a declaratory judgment asking the court to determine whether Cherokee is required to use its waste water as recharge for the basin or if that waste water can be claimed as replacement credit under a replacement plan. The District also filed for a preliminary injunction to prevent Cherokee from claiming waste water returns in the Basin as augmentation credit in the replacement plan in 08GW71 until the motion for declaratory judgment is resolved. The trial was stayed pending the final outcome of the motions for declaratory judgment and preliminary injunction filed by the District. cherokee metropolitan district Case No. 08-GW-78 09-GW-15</w:t></w:r></w Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Applications to change the type and place of use of wells. Objections were submitted by the District and other water users in the basin. Both cases were consolidated with 08GW71. Status: See above. edna farmer et al. Case No. 09-GW-02 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Subject: This case involves the determination of water right in the Laramie-Fox Hills aquifer. An objection was filed by Cherokee Metropolitan District. The applicant moved to consolidate this case with 08GW71, the replacement plan application by Cherokee and Meridian Service Metropolitan District, and09GW03, another application for determination of water right (discussed below). This motion was denied by the hearing officer. Status: The hearing officer will set the matter for a hearing. daniel and theresa farmer et al. Case No. 09-GW-03 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Subject: This case involves the determination of water right in the Laramie-Fox Hills aquifer. An objection was filed by Cherokee Metropolitan District. The applicant moved to consolidate this case with 08GW71, the replacement plan application by Cherokee and Meridian Service Metropolitan District, and 09GW02, another application for determination of water right (discussed above). This motion was denied by the hearing officer. Status: The hearing officer will set the matter for a hearing. Yokam land holdings, llc Case No. 09-GW-04 Designated Basin: Lost Creek Management District: None Before: Jody Grantham, Hearing Officer Attorney: Subject: An application for six new appropriations in the alluvial aquifer for irrigation and export for municipal purposes. An objection was filed by Morgan County Quality Water District, which has moved (with Staff’s consent) to stay the application pending the Commission’s consideration of its petition to amend Rule 5.2.5.2 so as to declare the Hay Gulch subdivision overappropriated. The applicant opposes the motion. The hea<ring officer granted a motion (consented to by all parties) by Lost Creek Land & Cattle Company, allowing it to intervene in the case. Status: The matter has been stayed, upon consent by the Applicant, until resolution of the petition seeking to have the Commission enact a rule declaring the Hay Gulch portion of the basin (in which the new appropriations are located) to be over-appropriated. PV WAter II Case Nos. 09-GW-5 through 10 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for change of type and place of use of wells. Two objections were filed. Applicants stipulated with the objectors and moved for a remand to Staff. Status: The matter has been remanded and Staff has circulated draft finding and orders to the applicant and objectors for questions and comments. meridian service metro district Case No. 09-GW-11 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for a change of water right. Two parties filed objections. Status: The hearing set for February 25 and 26, 2010 has been stayed because the water rights to be changed were for use in the replacement plan in 08GW71. The matter is stayed pending</ resolution of the motions for declaratory judgment and preliminary injunction in 98CW80. Hay gulch petition for rulemaking Case No. 09-GW-12 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Petition for rulemaking to amend Rule 5.2.5.2 to make the main stem of Lost over-appropriated and to require replacement plans for new large capacity wells. Status: This matter is set for a fact finding hearing in front of the Hearing Officer March 15-19, 22-24 and 30-31, 2010. Expert reports have been exchan<ged and depositions scheduled. The petition will go before the Ground Water Commission on May 21, 2010. Lost Creek (Main stem) petition for rulemaking Case No. 09-GW-13 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Petition for a rulemaking to amend Rule 5.2.5.2 to make the Hay Gulch basin over- appropriated and to require replacement plans for new large capacity wells. Status: A fact finding hearing has been set for September 13-22, 2010 in front of the Hearing Officer and the matter will go before the Ground Water Commission on November 19, 2010. PV WAter II Case Nos. 09-GW-16 through 27 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for change of type of use of wells. Two objections were filed. Applicants have stipulated with one of the objectors but two objectors remain. Status: Applicant is working with objectors to reach an agreement as to form and content of the final orders to be issued in this matter. Moshe Silagi Case Nos. 09-GW-28 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for determination of water right in the Laramie-Fox Hills aquifer. The city of Aurora filed an objection. Status: The matter is set for hearing on August 5, 2010. < upper big sandy petition for rulemaking Case No. 09-GW-29 Designated Basin: Upper Big Sandy Management District: Upper Big Sandy Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Petition for rulemaking to amend Rules 5.2.7.1 and 5.2.7.2 to define the extent of the alluvial aquifer and determine the alluvial aquifer within the basin is overappropriated and require replacement plans for new large capacity wells. Status: A hearing has been set for August 20, 2010 in front of the Hearing Officer. Northern colorado water association Case No. 09-GW-13 Proposed Designated Basin: Upper Spring Creek Management District: Before: Jody Grantham, Hearing Officer Attorney: Scott Steinbrecher Subject: Petition filed by the owners of several wells located just west of I-25 and south of the Colorado-Wyoming border. Fort Collins has objected to the petition largely due to the fact that they own the majority of the land within the proposed designated basin. Status: This matter is set for a hearing in front of the Hearing Officer June 15-19, 2010. 6 3 Agenda2010February.doc Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of November 20, 2009 Report of the Executive Director by State Engineer Dick Wolfe Hearing on petitions by the Upper Big Sandy Ground Water Management District to correct errors in the Final Order and Decree forming the Upper Big Sandy Ground Water Management District, to issue an order approving the expansion of the District, and to change the name of the District. Staff Report by Keith Vander Horst Report of the Attorney General by Jen Mele. 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. 12 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 Rod Mason 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 Dave 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 November 20, 2009 A G E N D A (page 2, cont.) NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, February 19, 2010 1313 Sherman St., Room 318 Denver, CO 80203 A G E N D A Agenda2010February.pdf EnforcementItemsandActionsNov-Feb2.docx Enforcement Items and Actions Enforcement actions performed by staff this quarter are summarized below: NORTHERN HIGH PLAINS Sand Hills GWMD: It was discovered that Virginia and Barry Brown have been operating an irrigation well to irrigate illegally expanded acres. Staff has sent a show cause letter to the Browns and we have yet to receive a response. KIOWA BIJOU Staff investigated a claim that a small capacity well owned by Frank Ehman was being used to supplement a large capacity irrigation well. A field inspection was performed and a violation was not identified. North Kiowa Bijou GWMD: Staff continues to work with the Ground Water Management to ensure 6 wells owned by Freund Investments have been plugged and abandoned as required by the state. There is some confusion over the location of these wells, and if the wells in question by the district are actually the same wells in the field. Staff has scheduled a field inspection to clear up the matter which the GWMD has been invited to attend. HOReport2010-2-19.pdf MinutesNovember2009.docxMINUTES MINUTES FOURTH QUARTERLY MEETING COLORADO GROUND WATER COMMISSION NOVEMBER 20, 2009 The Fourth Quarterly Meeting of the Colorado Ground Water Commission took place on November 20, 2009, at Castle Rock Town Hall, 100 N Wilcox, Castle Rock, Colorado. Chairman Dennis Coryell called the meeting to order at 10:00 a.m. Mr. Rick Nielsen called the roll and determined that a quorum was present. Commission members present were Carolyn Burr, Larry Clever, Dennis Coryell, Earnest Mikita, George Schubert, Doug Shriver, Dick Wolfe and Jennifer Gimbel. Staff members present were Keith Vander Horst, Rick Nielsen, Chris Grimes, David Keeler and Jay Bloomfield. Also present were Jody Grantham, Hearing Officer, Pat Kowaleski, A.G. for the Commission and Jennifer Mele, A.G. for staff. Review and Approval of Agenda Items – Chairman Coryell suggested amending the agenda to include item 6(a), a proposal by the Yuma County Water Authority to support legislation by Senator Greg Brophy to amend statutes regarding “Altering the boundaries of Designated Ground Water Basins”. Mr. Coryell also suggested amending item no. 7, Staff Activity Report, to recognize an update on the Republican River Administration team by Chris Grimes.< Commissioner Mikita moved to approve the agenda as amended. Commissioner Schubert seconded the motion which passed unanimously. Approval of Minutes for Meeting of August 21, 2009 Chairman Coryell asked if there were any corrections or additions to the minutes. <Commissioner Clever noted the absence of his name as being in attendance and Commissioner Gimbel noted the misspelling of her name. There being no further corrections, Commissioner Burr moved to approve the minutes as amended. Commissioner Clever seconded the motion which carried unanimously. Report of the Executive Director by Dick Wolfe Mr. Wolfe opened his remarks by addressing the Republican River drainage. Settlement discussions with Kansas and Nebraska over the pipeline and augmentation plan continue. They are close to agreeing on the arbiter. The hearing scheduled in early February may need to be moved back a few weeks depending on when the final selection is made. He advised the Commission that stream flow at the Binkelman gage has picked up to 15cfs and that he has requested the release of additional waters from Bonny Reservoir. In Water Division 2, the Arkansas River Basin, Mr. Wolfe reported that the proposed Irrigation Improvement Rules had been submitted to the Water Court in September and that there had been 3 or 4 statements of opposition. He believes that the trial should be late next year. Mr. Wolfe also noted that additional information is available on the Division of Water Resources web site. In Water Division 3, The Rio Grande Basin, Mr. Wolfe reported good progress in the monthly meetings with the advisory committee on the Well Compliance Rules. He also reported that the second leg of the trial on sub-district one is complete. He stated that the judge has been paying close attention and that a ruling may come by the end of the year. Mr. Wolfe updated the Commission on the Produced Water Rules. He stated that this set of Rules is also moving along at a fast pace. There is an eight (8) day hearing set to begin on December 2nd for those wells producing coal bed methane and a ten (10) day hearing has been scheduled for all other wells beginning January 10th. Mr. Wolfe advised the Commission that there have been seventy (70) filings for party status. Mr. Wolfe concluded his report by addressing budget and personnel issues. <He advised the Commission that $800,000 needs to be cut from next year’s budget. He reported that of the existing thirty (30) vacancies six (6) will need to be made permanent unless alternative funding can be located. There is legislation proposed to use the severance tax as one possible source of alternative funding. Mr. Wolfe closed by informing the Commission that the CWCB is also seeing a significant fiscal impact. Chairman Coryell called for agenda item no. 5, being a petition by the Upper Big Sandy Ground Water Management District to initiate rulemaking to amend Rule 5.2.7.1, to redefine the extent of the alluvial aquifer in the Upper Big Sandy Basin, and to amend Rule 5.2.7.2 so as to determine that the alluvial aquifer in the Upper Big Sandy Basin is over-appropriated. Mr. Scott Krob, attorney for the District addressed the Commission. He informed the Commission that the existing alluvial boundaries are based on a 1946 map. Mr. Krob stated that the District’s petition is based on a 2009 study conducted by Martin and Wood who found fingers of alluvial material not previously identified. The 2009 study also found that the basin loses 2,090 acre-feet of water annually in a normal year. In a dry year the loss is 5,590 acre-feet and in a wet year there is a net gain of 7,510 acre-feet. However, the study found that if all wells were used at their permitted levels the basin would lose 10,000 acre-feet annually. The management district is therefore seeking to amend the Rules to redefine the extent of the alluvial aquifer and declare the Basin as over appropriated based on the 2009 Martin and Wood study. Mr. Kowaleski advised the Commission that they are not taking any substantive testimony at this time. That their only decision is whether or not to accept the petition and send it to the Hearing Officer for fact finding. In response to a question from Commissioner Burr, Mr. Dave Tousig stated that the Basin boundaries are not being adjusted. Mr. Keith Vander Horst for staff addressed the Commission. He stated that though the staff geologists have some questions on the boundaries of the alluvial aquifer, the evidence submitted indicates that the process should move forward. Commissioner Clever moved that the matter proceed to rule making with the Hearing Officer conducting fact finding. Commissioner Shriver seconded the motion which passed unanimously. Chairman Coryell called for agenda item no. 6, being a petition by the Upper Big Sandy Ground Water Management District to correct clerical errors in the Commission’s Final Order and Decree forming the Upper Big Sandy Ground Water Management District. Scott Krob, attorney for the District addressed the Commission. He informed the Commission that the 2009 Martin and Wood study showed that the Division boundaries within the Basin are not consistent with the Basin boundaries. There are some sections outside of the Basin that are identified as being within a Division. He said that this action is only to clarify the Division boundaries and that the Basin boundaries are not being amended. Mr. Pat Kowaleski advised the Commission that the matter does not appear to require a vote of the people but that a public hearing would be appropriate. He further said that the Hearing Officer is not needed in this matter. During discussion it was brought up that though procedures were followed in 1994, there is no order of the Commission expanding the boundaries of the District to match the 1988 expansion of the Basin. Mr. Kowaleski advised the Commission that acknowledgment of the new boundaries would be an administrative or procedural process and that again a public hearing before the Commission would be advisable. Commissioner Clever moved that the petition be set for a public hearing. Commissioner Burr seconded the motion which passed unanimously. Chairman Coryell called for agenda item no. 6a, being a proposal by the Yuma County Water Authority to support legislation by Senator Greg Brophy to amend statute regarding “Altering the Boundaries of Designated Ground Water Basins”, SB08-219. Mr. Mike Shimmin provided members of the Commission with a copy of the proposed legislation. He noted that the proposed legislation was brought about by the 2006 Court decision in the Gallegos case. Essentially the changes to statute allow land to be removed from a Designated Basin only so long as the removal does not remove from a basin wells for which permits have been issued. Commissioner Clever moved that the Commission support Senator’s Brophy proposed legislation. Commissioner Schubert seconded the motion. After discussion, Commissioner Clever amended his motion to be that the Commission supports the concept of the legislation. Commissioner Schubert agreed with the amendment which passed unanimously. Chairman Coryell called for agenda item no. 7, the staff report. Mr. Keith Vander Horst reviewed the staff activity report as submitted. He pointed out that staff is catching up on the backlog of determinations due to the hard work of Justina Farris. He stated that though the number of cases is large, most are not active due to appeals and there are a number that are resolved before going to a hearing. On enforcement matters, Mr. Vander Horst noted that a number of violations are being resolved because of cooperation by the well owners. Mr. Vander Horst updated the Commission on the status of the Lost Creek and Upper Spring Creek petitions. The petition for Hay Gulch has been published with the fact finding hearing set for March and the rulemaking hearing set for the May meeting. The petition on the main stem has been published but the fact finding hearing is not yet set. The Upper Spring Creek petition is in publication. Mr. Chris Grimes updated the Commission on the Republican River Measurement Program. He reported that with the addition of two new Water Commissioners the team is now fully staffed. Mr. Grimes advised the Commission that 3200 wells have their paper work in and that there are approximately 1000 remaining to account for. The Water Commissioners are going to concentrate on these 1000 wells and either get the PCC’s/meter reports or tag them. He reported that the required annual pumping reports are being submitted. Mr. Grimes closed his report by informing the Commission that this year the Water Commissioners will begin to affix brass identification tags to well heads and get a GPS location for each well. Chairman Coryell called for agenda item no. 8, the report of the Attorney General’s Office. Ms. Jennifer Mele reporting for the Attorney General’s Office referred the Commission to her written report. She noted that the Cherokee hearing is set for January. She also informed the Commission of two motions filed by the Upper Black Squirrel GWMD in regards to Cherokee. First they are seeking a declaratory judgment regarding a stipulation in an earlier case dealing with return flows and recharge to the alluvial aquifer. They are also seeking a preliminary injunction on the same matter prior to a ruling on the motion. Chairman Coryell called for agenda item no. 9, the Management District Reports. Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, reported that his districts have received a lot of moisture this year and that the moisture and lower temperatures have delayed the corn harvest and contributed to a problem with mold on the corn. Mr. Midcap concluded his report by thanking Mr. Wolfe for finding the money to fully fund the static water level measurement program this year. Mr. Roy Smith, reporting for the W-Y GWMD echoed Mr. Midcap’s comments on moisture and the corn crops. He also noted that the yield is down for the irrigated land but up for the dry land corn. He concluded his report by indicating that he expects the water levels to be up this year due to the wet year. There was no report for the Arikaree GWMD. Mrs. Deb Daniel reporting for the Plains and East Cheyenne GWMD’s, reported that the Plains District has received 25 inches of moisture this year with some areas receiving as much as