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February 18, 2004 MEMORANDUM TO: Ground Water Commission Members FROM: Suzanne M. Sellers, Designated Basins Team SUBJECT: Request for a Variance to Designated Basin Rule 7.10.1 by Steve and Ronda Hayes to Expand the Acres for the Well with Permit No. 11744-FP Permit History Permit No. 11744-F was issued by the Ground Water Commission on April 11, 1967 for a well located in the NE1/4 of the SW1/4 of Section 11, Township 5 North, Range 43 West, 6th P.M. to use 320 acrefeet annually to irrigate 160 acres described as part of the E1/2 of the SW1/4 and the W1/2 of the SE1/4 of said Section 11. On August 13, 1976 the Commission granted a request by Vern Hayes to increase the irrigated acres by 160 acres so that the well may irrigate a total of 320 acres in the S1/2 of said Section 11. The applicant has claimed that 65 additional acres were initially irrigated on May 15, 1979. A Statement of Beneficial Use for the expanded acres was not received by the statutory deadline of December 31, 1979. Final Permit No. 11744-FP was issued on December 5, 2002 to irrigate the original 160 acres. The expanded acres were not included in the final permit because staff considers these expanded acres to be expired. The applicant appealed this decision and on November 21, 2003 the Commission remanded this issue back to the hearing officer. Variance Request for Permit No. 11744-FP On December 19, 2003 the applicant submitted an application pursuant to § 37-90-111(1)(g), C.R.S., to expand the acres irrigated by the well with Permit No. 11744-FP and requested a variance to Rule 7.10.1. Rule 7.10.1 reads as follows: It shall be the burden of the applicant to determine the average annual historic withdrawal and depletion by a well. The evidence required to determine historic withdrawal and depletion may include irrigation system and pump efficiency tests, information on pump and irrigation method(s), flow meter readings and water consumption records where available, power and crop data and such other data as is determined by the staff to be necessary. Ten or more most recent consecutive years of records shall be submitted unless the applicant can show good cause why the data cannot be supplied. Staff ‘s understanding of the variance request is that the applicant would like a variance on the requirement that the ten or more most recent consecutive years of records be used and that the average historic withdrawal be based on the pumping and irrigation practices that occurred in 1979. The application for the expanded acres and the variance request was published in Wray Gazette on December 31, and January 7, 2004. No objections were received by the statutory deadline of February 6, 2004. The applicant has 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 7.10.1 to ensure that an expanded acres request will not result in material injury through an expansion in the historic use of designated ground water. Consequently, this 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 the Hayes 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. As noted on the following table, in the last five years the Commission has rarely granted a variance. History of Variance Requests brought before the Commission since May of 1998 Date Name Rule Request Well Use Ruling Aug. 1998 Brown 7.3 Replacement distance of 300 feet. Irrigation Denied Nov. 1998 City of Holyoke 7.3 Replacement distance of 300 feet. Municipal Granted May 2000 Kelling Emergency change of description and expansion of acres. Irrigation Denied Nov 2001 Lost Creek Land and Cattle 7.6.7 Commingling without administration. Irrigation Denied Feb. 2003 Booker 7.10.1 and 7.3.2 Ten or more most recent consecutive years in historic use calculation and saturated thickness reduction. Irrigation Denied As noted in the above table, the Commission granted a variance to the replacement well distance specified in the Rules for the City of Holyoke. This variance was granted because this well was a part of the city’s water supply and was contaminated with nitrate. Further, moving the well within 300 feet of the permitted location would not solve the nitrate problem. Therefore the Commission granted this variance to the replacement well distance, but stated that the original well’s permitted location would not change. As the nitrate contamination dissipates, the city can move its well back within 300 feet of the originally permitted location. As indicated above, the Commission rarely grants variances to their rules, and when they do it is under an extremely high unusual hardship standard.