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RESOLUTION OF THE COLORADO GROUND WATER COMMISSION May 16, 2008 To Marta Ahrens WHEREAS, Marta Ahrens served as Secretary to the Colorado Ground Water Commission for 15 years, from November 1992, to November 2007; and WHEREAS, Ms. Ahrens did faithfully carryout the duties of Secretary to the Commission; and WHEREAS, during her tenure the Commission developed appreciation for her services to the Commission; and WHEREAS, Ms. Ahrens has assumed other duties within the Colorado Division of Water Resources. NOW THEREFORE, BE IT RESOLVED, that the Colorado Ground Water Commission does hereby wish to express its gratitude for her devoted service and extends its best wishes for a prosperous and enjoyable future. Mr. Keith Vander Horst presented the Commission with two choices for the location of the August meeting. The Commission could travel to the Fraser Valley and tour the collection system for the Big Thompson diversion project or they could tour a lysimiter operation at the CSU Research Center near La Junta. Commissioner Davis indicated that the mountains, in August, are nice. The Commission opted for the Frasier Valley choice. Next Meeting – August 14th and 15th, location to be arraigned. There being no further business before the Commission, the meeting adjourned at 12:20 p.m. Respectfully submitted, Richard A Nielsen, P.E. Secretary to the Ground Water Commission Ground Water Commission Meeting Page 2 May 16, 2008 AG Report2008-05-16.docATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission May 16, 2008 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of May 5, 2008. appeal of rules adopted by the upper black squirrel creek ground water management district Case No. 04-CV-4457 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Hon. Larry Schwartz, El Paso County District Court 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. Status: After a status conference, the parties concluded that the matter can probably be decided by motions, without the necessity for a trial. A briefing schedule has been set to allow the parties to do so over the next six months. Moser v. Ground Water Commission Case No. 07-CV-487 Designated Basin: Proposed Box Elder Creek Management District: Before: Hon. Roger Klein, 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. Status: The Court ordered the setting of the trial to be stayed until July, 2008 so as to allow the parties to brief 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. pioneer irrigation district Case No. 05-GW-14 Designated Basin: Northern High Plains Attorney: Devin Odell Before: Jody Grantham, Hearing Officer Subject: The Pioneer Irrigation District, Colorado Board, certain owners of the Laird Ditch, and the Division of Wildlife (“Petitioners”) are prosecuting (after remand from the district court) a Petition to redraw the current boundaries of the Northern High Plains Designated Ground Water Basin (“Basin”) for the purpose of excluding water that is allegedly tributary. The Petition is opposed by the seven ground water management districts, certain well users and the Commission Staff (“Objectors”). The hearing officer has issued an order scheduling a hearing in Wray during the first three weeks in June. Status: Discovery has been completed, including several expert depositions and, as of the date of this report, the parties are preparing for the June hearing. Attempts at mediating this dispute are ongoing as of the date of this report. 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: Devin Odell 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. Following publication, the Commission received some 400 objections. However, the hearing officer ruled that only those objections—totaling about 80—that had been filed by the deadline and with the statutory $10 fee would be considered in the proceeding. The hearing officer issued an order setting a hearing in the matter for April 8, 9 and 11 in Colorado Springs and establishing a schedule for discovery and pre-hearing motions. Status: The proceedings in this matter have been stayed pending the outcome of a district court action to determine the legal effect and validity of the applicant’s leases. The Commission is not a party to that action. As of the time of this writing, a motion by the applicant to dismiss the district court case is pending before the court. 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. 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 hearing in this matter has been stayed, at the request of the applicants, until July 4-7, 2008. The parties have completed discovery. Various final permits Case No. 07-GW-23 to 26, 27 to 33, 35 to 37, 43 to 46, 48 to 51; 08GW02 to 10 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: Hearings or prehearing conferences in a number of these cases will be set shortly. 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. 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: The Staff entered into a stipulation settling this matter requiring Mr. Cure to comply with the permits and orders of the Commission and pay $56,455.50 in penalties and costs, including attorney’s fees. Mr. Cure has paid the funds, and they have been deposited into the well enforcement fund, pursuant to statute. 6 4 AG Report2008-05-16.pdf AgendaMay08.doc Determine quorum Review and approval of agenda items Approval of Minutes for meetings of February 15, 2008, and March 21, 2008 Report of the Executive Director by Deputy State Engineer Jack Byers Hearing on request of the Republican River Water Conservation District for a variance to Rule 7.3, involving applications for Republican River Compact Compliance Wells, to allow the relocation of 44 permits over 300 feet to 8 existing well locations. Hearing on the request of the USDA-ARS Central Great Plains Research Station for a Variance to Rules 7.4 and 7.5, to allow applications for a change in description of irrigated acres for three permits (allowing them to irrigate 40 acres anywhere within a 260 acre area) to be evaluated under the standards of a change in description of acres of Rule 7.4 rather than under the standards of rotational acres of Rule 7.5. Request by Birdsall Young Jr. to amend the irrigated aces allocation of Final Permit no. 20172-FP. 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. 14 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