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AG Report2003-05-16.docATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission May 16, 2003 The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission. EAGLE PEAK & PROSPECT VALLEY Case number: 96-GW-13, 99CV97 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: Pat Kowaleski Subject: Application for ten new well permits and changes for 39 existing wells, with a replacement plan and export out of the District. Status: At the November, 1998 meeting the Commission affirmed the Initial Decision of its Hearing Officer that it was not appropriate to hear Eagle Peak’s change applications because the Lost Creek District had not yet approved Eagle Peak’s export application. The Commission took the position that it could not approve an application involving export unless the export had been approved by the District. On January 14, 1999 Eagle Peak appealed this decision to the Adams County District Court and, among other things, has requested that the District Court rule on the substance of the change applications, even though the Commission has not reviewed the substance of the applications. The Complaint also seeks unspecified damages against the State for impairment of Eagle Peak’s water rights. This Office filed an Answer to the complaint on February 12, 1999 and the record was certified on June 15, 1999. A 3 week trial has been scheduled for October, 2003. Motions were filed in June, 2002 and the Commission argued that the applications should not be heard by the Judge without input from the Commission and, at most, this matter should be remanded to the Commission for further proceedings. Eagle Peak has subsequently sold its water rights to Sweetwater Development, which is proposing to use the rights without a change in well location. The Court proceedings are temporarily on hold. The parties have been meeting, but there has been no resolution of the matter. There have been some preliminary Motions filed, and the Court will soon decide whether to add Sweetwater Development as an additional party. EAGLE PEAK FARMS LTD Case Number: 98CV1727 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: Pat Kowaleski Subject: Denial by the Lost Creek District of Eagle Peak’s application for export Status: The District denied Eagle Peak’s application for export and when Eagle Peak appealed the decision to District Court, the Court dismissed the challenge because all parties had not been properly served. The Court of Appeals overturned this procedural decision and remanded the case to the District Court for a determination on the merits. The District filed a Petition for Rehearing with the Court of Appeals and the Petition for Rehearing was denied on February 3, 2000. The Lost Creek District filed a Petition for Writ of Certiorari with the Colorado Supreme Court on March 3, 2000 and the petition was denied on August 20, 2000. Motions affecting how this matter will proceed are pending before the District Court. This case is related to the case above, but the Commission is not a party to the case, since it involves the District’s decision to deny export. town of bennett Case No. 02-GW-02 Designated Basin: Kiowa Bijou Management District: North Kiowa Bijou Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the Management District to two applications for changes of determination of water right to combine the allocations of two determinations of water right and to change the place of use and type of use in each determination. Status: In response to a request by the District, the Hearing Officer issued an order that the District Court’s Revised Order in the Bradbury case is relevant to this action, and the change sought in this action is merely a continuation of the determination that such water exists as stated in Judge Phelps order. A hearing before the Hearing Officer was held on November 7, 2002. After the hearing, the Hearing Officer issued the Initial Decision to approve the applications for changes of determination of water right. The District appealed the Initial Decision of the Hearing Officer and this matter will be heard by the Commission at the May 2003 Commission meeting. KENNETH POTTORFF Case No. 02-GW-14 Designated Basin: Northern High Plains Management District: Plains Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the District to the issuance of amended final permits and the temporary change of use applications for 2 wells from irrigation to highway construction and irrigation. The amended final permits concern a claimed 320 additional approved acres put to use by both wells prior to August 5, 1977. The temporary change of use was approved by the Commission on May 2, 2002 and will expire on December 31, 2002. Status: At the prehearing conference, it was noted that Mr. Pottorff has filed for bankruptcy and an automatic stay was granted by the Bankruptcy Court. The Hearing Officer made an inquiry with the Bankruptcy Court regarding the effect of the automatic stay on these proceedings. As a result, the Bankruptcy Court set a preliminary hearing on relief from stay for November 6, 2002. Consequently, the Judge granted the relief from stay, which allowed this matter to be set for hearing before the Hearing Officer. A hearing before the Hearing Officer was set for May 14 and 15, 2003. The Hearing Officer has vacated the hearing because the property involved in this matter will be at auction on April 22, 2003. Mr. Pottorff must provide the hearing officer with a status report by May 27, 2003. PEORIA CROSSING, LLC. Case No. 02-GW-18 Designated Basin: Kiowa-Bijou Management District: North Kiowa Bijou Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Peoria Crossing filed an application for determination of water right to allow appropriation of designated ground water from the Laramie-Fox Hills aquifer underlying its 241.36 acre property. Peoria Crossing filed an appeal challenging the Staff’s calculation of a cylinder of appropriation for an existing well owned by LaFarge West, Inc., and the resulting decrease in the amount of allocation determined for the aquifer underlying Peoria Crossing’s property. Status: A hearing for this matter was held on October, 22, 2002. Peoria Crossing, LaFarge West and the Staff participated in the hearing. At the conclusion of the hearing, the Hearing Officer requested the parties to brief several issues. After reviewing the briefs, on December 2, 2002, the Hearing Officer issued his initial decision and found: (1) a cylinder of appropriation is not a water right, but rather a measure of the beneficial use that is the actual water right for a pre-213 well; (2) although LaFarge’s well was permitted and completed prior to implementation of the 1965 Act, the 1965 Act and modified prior appropriation doctrine apply to the determination of the final extent of LaFarge’s water right; (3) Staff’s calculation of the cylinder of appropriation for LaFarge’s well is incorrect; and (4) LaFarge does not yet have a final permit, and in order to proceed with the proper determination of the amount of water available to the Applicant, Staff must proceed with final permitting and notice of LaFarge’s water right in a separate proceeding. The Hearing Officer ordered that this matter is held in abeyance until Staff completes final permitting for LaFarge’s well, and ordered Staff to initiate final permitting within a reasonable time frame. Staff has commenced final permitting for LaFarge’s well. WAYNE E. and frances g. booker Case No. 02-GW-20 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objections by the District, Cherokee Metropolitan District, and Schubert Ranches to applications to relocate the wells with Permit Nos. R-16265-FP, R-16271-FP, R-16272-FP, 27560-FP, and 27585-FP Status: The Applicants appealed the Staff’s evaluation of their application and requested a hearing before the Commission to obtain a variance from the Commission Rules. Consequently, the setting of a hearing before the Hearing Officer was postponed until after the variance request hearing. The Commission denied the variance request at its February 21, 2003 meeting. The Hearing Officer has scheduled a hearing in this matter for September 9 and 10, 2003. john l. harding Case No. 02-GW-21 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the District to applications for determinations of water right to allow appropriations from the Laramie-Fox Hills and Arapahoe aquifers underlying a 10 acre property. Status: On March 10, 2003, the Applicant and District entered into a Stipulation, and as a result, the District withdrew its objection. Consequently, the Determinations have been granted. This case is closed. vernie houtchens and gary nanninga Case No. 02-GW-22 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the District to applications for determinations of water right to allow appropriations from the Laramie-Fox Hills, Arapahoe, and Denver aquifers underlying a 193.7 acre property. Status: The Applicant and District have entered into a Stipulation, and as a result, the District withdrew its objection. Consequently, the Determinations have been granted. This case is closed. county line estates llc and case holdings llc Case No. 02-GW-23 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the District to an application to change the allowed beneficial uses for a determination of water right, Determination No. 4-BD. Status: On April 4, 2003, the Applicant and District entered into a Stipulation, and as a result, the District withdrew its objection. As a result, the requested change has been granted. This case is closed. TODD WISDOM Case No. 03-GW-01 Designated Basin: Northern High Plains Management District: Frenchman Ground Water Management District Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objections by Vince Hoefler, John and Mary Wiebers, Bernard and Arlene Loos and James Bell to Mr. Wisdom’s application to drill a new well and appropriate designated ground water from the Ogallala aquifer for irrigation of a 154.8 acre property. Status: The Applicant moved to withdraw the application in this matter. As a result, the Hearing Officer dismissed the case. This case is closed. GREGORY A. SMITH Case No. 03-GW-02 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the District to applications for determinations of water right to allow appropriations from the Laramie-Fox Hills, Arapahoe, and Denver aquifers underlying a 35 acre property. Status: The Hearing Officer has scheduled a hearing in this matter for June 26, 2003. TOWN OF LIMON Case No. 03-GW-03 Designated Basin: Big Sandy Management District: Big Sandy Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objections were filed by Jerry T and Judith M. Golding and Mary Judith Dickens to the Town’s application to construct a well and appropriate water from the alluvium of Big Sandy Creek for municipal purposes located within the service area of the Town. Status: A hearing before the Hearing Officer shall be scheduled. WOODMAN HILLS METROPOLITAN DISTRICT Case No. 03-GW-04 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the Upper Black Squirrel Ground Water Management District to Woodman Hill’s application for a replacement plan to allow withdrawals from the Dawson aquifer underlying a 1648.25 acre overlying land area, in accordance with Determination of Water Right Nos. 129-BD and 133-BD. Status: A hearing before the Hearing Officer shall be scheduled. alpha & omega, llc. Case No. 03-GW-05 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the District to Alpha & Omega’s application for a replacement plan to allow withdrawals from the Arapahoe aquifer underlying a 40 acre overlying land area, in accordance with Determination of Water Right No. 224-BD. Status: A hearing before the Hearing Officer shall be scheduled. Reinaldo gallegos, et al. Designated Basin: Upper Crow Management District: Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: The Gallegos family has filed a Petition for appeal of the State Engineer Action Cauing Injury. In the Petition, the Gallegos family requests a hearing to determine whether administration and curtailment is required of the wells and junior surface water rights along Crow Creek to satisfy the Gallegos Family’s senior surface water right. Status: A hearing before the Hearing Officer shall be scheduled. Thomas H. Bradbury et al Case No. 02 SA 216 Designated Basin: Kiowa-Bijou Management District: North Kiowa Bijou Before: Colorado Supreme Court Attorney: Pat Kowaleski Subject: The Bradburys filed 14 applications for Determinations of Water Rights, pursuant 37-90-107(7)(c). The District filed objections claiming that the statute is unconstitutional in that it “attempts to separate the administration of groundwater contained in the Dawson, Denver, Arapahoe, or Laramie-Fox Hill Aquifers and that they be treated differently from all other groundwaters covered in the Act…” The District contends that a system which uses ownership of land to determine interests in water is violative of Article 16, Section 5 of the Constitution which declares that the water of the state is the property of the public and subject to appropriation. Status: After a hearing, the Hearing Officer issued his initial decision, determining that the applications were not speculative and should be granted. At its May, 2001 meeting, the Commission reviewed the initial decision and approved the applications. The District challenged this decision before the Designated Ground Water Judge in Adams County. A hearing was held by the Court on March 8, 2002 to determine, de novo, whether the applications should be granted. After issuing several amended orders, the Court ultimately determined that the anti-speculation doctrine applies to consideration of applications in the Denver Basin aquifers of the Designated Basins, but concluded that the doctrine should be considered at the time that well permit applications were sought rather than when the determinations were sought. The Commission has appealed the finding of the Court that a determination of water right is not a water right. The District has cross-appealed, raising all issues which it presented to the District Court. The Bradburys have not appealed any aspect of the Court’s decision. The briefing has been completed and the case will probably be heard by the Supreme Court sometime this summer. P:NR\H2O\GWC\02-21 AG Report.doc 5 7 AgendaMay03.doc NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m. Friday May 16, 2003 1313 Sherman St. Rm. 318 Denver, CO 80203 A G E N D A Determine Quorum. Review and Approval of Agenda Items. Approval of Minutes for Meeting of February 21, 2003. Report of the Executive Director by Hal Simpson. Kansas v. Nebraska and Colorado litigation – Republican River Compact by Hal Simpson. Hearing on the Objection to the Hearing Officer’s Initial Decision and Ruling in the Matter of an Objection to the Applications for Change of Water Right to Combine the Allocations of Two Determinations of Water Right and to Change the Place of Use and Type of Use in Each Determination from the Kiowa-Bijou Ground Water Basin and North Kiowa-Bijou Ground Water Management District in Arapahoe County, by Don McClary. Discussion and Decision on the Processing of New Well Permits and Changes of Water Rights in the Southern High Plains by Bill Fronczak. Petition for Reinstatement of a Well Permit Regarding Expanded Acres on the Well with Permit No. 11744-FP in Yuma County by Randy Fair, Attorney for Well Owners. Repromulgation of Rule Adopted on February 21, 2003 Requiring Historic Use Analysis and Administration for Rotational Acres by Suzanne Sellers. Staff Report by Suzanne Sellers and Megan Sullivan. Status of Eagle Peak Farms Ltd. v. Colorado Ground Water Commission (Case No. 99CV0097) and Eagle Peak Farms Ltd. v. Lost Creek GWMD (Case No. 98CV1727) both in Adams County District Court by Bill Fronczak. Report of the Attorney General by Matthew Poznanovic. Management District Reports: a. Frenchman e. WY i. Southern High Plains b. Sand Hills f. Arikaree j. North KiowaBijou c. Marks Butte g. Plains k. Upper Black Squirrel d. Central Yuma h. East Cheyenne l. Upper Big Sandy Lost Creek Old Business. New Business. Adjournment. B&PRulechange7&8.doc STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE FOR CHANGING COMMISSION RULE 7.4.2 The provisions of Section 37-90-111(1)(h), C.R.S. provides the specific statutory authority for the adoption of the attached regulation. The Commission also adopted, in compliance with Section 24-4-103(4), C.R.S., the following Statement of Basis and Purpose. BASIS AND PURPOSE BACKGROUND Designated Basin Rule 7.4.2 allowed an application to irrigate lands on a rotational basis to be evaluated by the Commission as a change of description of irrigated acres application. However, several local Ground Water Management Districts (GWMDs) have expressed concern that the current practice of allowing rotational irrigated acres as a change of description of irrigated acres may result in an increased usage of water over that historically used, causing material injury to vested water rights. PURPOSE As a result of this local concern, the Commission has decided that rotation of irrigated acres be considered as an increase in the permitted irrigated acreage to be evaluated under Rule 7.5. Rule 7.5 requires that wells be limited to historic use and be subject to certain administration requirements to prevent material injury to other vested water rights when the additional acres are being irrigated. Furthermore, language has be added to Rule 7.4.2 indicating that successive fillings of change of description of acres applications may be considered as rotational acres applications to be evaluated under Rule 7.5.