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AG Report2010-2-19..pdfMicrosoft Word - AG Report2010-2-19.docx 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 2 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 3 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 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer 4 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: 5 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 hearing 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 overappropriated and to require replacement plans for new large capacity wells. 6 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 exchanged 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 7 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. 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. 3 6 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,