DWR_3348350

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 5/21/2004
• Subject: MEETING MATERIALS

of applying these limitations is that there is no water available to move to the proposed new well locations.

Initial Decision at 6-7. The Hearing Officer also ruled that the applications were requests for changes in water rights pursuant to C.R.S. § 37-90-111(1)(g) and Commission Rule 7, as
opposed to replacement well requests pursuant to C.R.S. § 37-90-111(1)(c) and Commission Rule 6.
On November 17, 2003 the Bookers filed exceptions to the Initial Decision of the Hearing Officer (“Exceptions”). The Bookers appealed the following:
1. The Hearing Officer’s findings of evidentiary fact regarding Mr. Booker’s testimony about the availability of water on his property, as set forth in Section 8 of the Initial Decision;
2. The Hearing Officer’s finding (both as an evidentiary and an ultimate fact) that no water is physically available at the current well locations, as set forth in Section 12(c);
3. The Hearing Officer’s findings of evidentiary fact concerning the definition and purpose of Commission Rule 7.3.2, as explained in the first two paragraphs of 12(b);
4. The Hearing Officer’s finding of ultimate fact that the moves requested in the applications constituted “walking to water.”
See Exceptions at 2-6.
On October 7, 2003 the Bookers timely filed a Designation of Record. The hearing on the Bookers’ appeal was scheduled for the Commission’s meeting on February 24, 2004 in Wray, Colorado.
The Bookers were unable to attend and therefore requested vacating the hearing and resetting it for the May Commission meeting. Their request was granted, and this case is set for
a hearing on May 21, 2004 at the Commission meeting.
STANDARD AND SCOPE OF REVIEW
Under the Administrative Procedure Act, C.R.S. § 24-4-101, et. seq., the standard of review used by the Commission when reviewing an initial decision of a Hearing Officer is as follows:
[t]he findings of evidentiary fact, as distinguished from the ultimate conclusion of fact, made by the administrative law judge or the hearing officer shall not be set aside by the agency
on review of the initial decision unless such findings of evidentiary fact are contrary to the weight of the evidence. The agency may remand the case to the administrative law judge
or the hearing officer for such further proceedings as it may direct, or it may affirm, set aside, or modify the order or any sanction or relief entered therein, in conformity with
the facts and the law.

C.R.S. § 24-4-105(15)(b).

The scope of Commission review is limited to those issues expressly raised by the Bookers in the 4 Exceptions listed above.
Notably, the Bookers did not appeal the Hearing Officer’s finding that the applications constituted applications for changes in water rights as opposed to replacement wells. Nor did
they appeal the historic consumptive use analysis. Thus, those issues are outside the scope of this proceeding. Moreover, the Commission previously denied the Bookers’ request for
variances from Commission Rules 7.3.2. and 7.10. Res judicata therefore applies, and argument about whether the applications are subject to these rules is barred. See Concerning Application
for Water Rights of Midway Ranches Property Owners’ Ass’n, Inc. in El Paso and Pueblo Counties, 938 P.2d 515, 524 (Colo. 1997); see also Dale v. Guaranty Nat. Ins. Co., 948 P.2d 545,
549 (Colo. 1997) (explaining that res judicata applies to decisions by administrative agencies).
ARGUMENT
Commission Rule 7.3.2 should be Applied in its Entirety to the Booker Applications in Order to Prevent Material Injury to Vested Water Rights

This appeal primarily concerns the interpretation of Rule 7.3.2. Rule 7.3.2 states:
Where the proposed well site would have a greater saturated thickness than the original site, terms and conditions shall be imposed to limit future withdrawals to the permitted historic
withdrawal of the well. Future withdrawals shall also be limited so as to not exceed the amount of water physically divertable at the well site if the well was replaced under Rule
6. Limitations on future diversions may include consideration of the effect of any future water level declines at the original site.

The Hearing Officer held that this Rule should be applied in its in its entirety to the applications, and that the Rule requires an applicant to dig a replacement well or receive a replacement
well permit prior to changing the location of a well. The Bookers argue that the second sentence of Rule 7.3.2 does not apply to their well relocations, but rather only applies to replacement
wells.
Staff agrees that this Rule should be applied in its entirety to the applications, but does not agree that this Rule requires an applicant to dig a replacement well or receive a replacement
well permit prior to being allowed to relocate a well. Staff asserts that the purpose of Rule 7.3.2 is to prevent material injury to vested water rights. In light of that purpose,
Staff believes that four of the five applications should be granted, but that the future annual withdrawals should be limited for each well to account for the greater saturated thicknesses
at the proposed locations. The purpose of Rule 7.3.2 is to prevent material injury to other appropriators by preventing an applicant from pumping more water at a proposed well site
than he or she had at the original permitted site. In other words, this rule prevents applicants from “walking to water.”
Staff utilizes a two-pronged analysis when applying this rule to applications. First, as indicated by the first sentence of the rule, Staff considers historic withdrawals and depletions
of water from the well in accordance with Rule 7.10. In addition to crop data, an applicant must submit a wire to water pump efficiency test and power use data. Staff imposes terms
and conditions to prevent an increase over historic depletions to the aquifer.
Second, pursuant to the second sentence of 7.3.2, Staff considers the amount of water physically divertable at the well site; i.e., the saturated thickness. Staff limits the amount
of water at the proposed site based on the saturated thickness at the original site. Staff believes this limitation must occur in addition to the historic consumptive use limitation
in order to prevent the applicant from receiving a benefit at the new location that was not present at the prior location. For example, a permitted well site may overlie a shallow
portion of the aquifer. However, the proposed location may overlie a section of the aquifer that has a much greater saturated thickness. If only consumptive use limits were imposed
at the proposed location, as water levels continue to decline, the applicant would receive more water in subsequent years than he or she would have at the original site. It is acceptable
to allow the benefit of making more head and making pumping more economic at the new well site, but it is unacceptable to allow pumping of more water than would be available at the
original site.
Further, the wording of 7.3.2 indicates this limitation must be imposed in addition to the historic consumptive use limit: “[f]uture withdrawals shall also be limited so as to not exceed
the amount of water physically divertable at the well site if the well was replaced under Rule 6.” (Emphasis added). The Commission’s choice of the word “shall” as opposed to the
use of the word “may” indicates the Commission’s intent to make this second limitation mandatory, especially considering they chose to use the word “may” in the third sentence of 7.3.2.
The Commission’s choice of the word “also” indicates their intent to combine the saturated thickness limitation with the historic consumptive use limit.
Contrary to the Bookers’ assertion, Staff further believes the second sentence of Rule 7.3.2 applies to applications to relocate wells, regardless of whether replacement wells were first
permitted or dug. The Bookers contend:
The limitation in the second sentence of Commission Rule 7.3.2 does not apply in this case because that limit, by its own terms, only applies to applications for replacement wells under
Commission Rule 6.
Exceptions at 5. Staff disagrees. The Bookers apparently interpret the “if” in the sentence to be mandatory; i.e. “only if the well was replaced under Rule 6, then the saturated thickness
limitation applies.” Staff asserts that the “if” is hypothetical; i.e. “if the well had been replaced at the current location under Rule 6, what would the saturated thickness adjustment
be?” This interpretation allows an applicant to receive the same benefit of utilizing the entire saturated thickness that he or she would have received if a new replacement well had
been dug pursuant to Rule 6, thereby drawing water from the same source and location, but under the optimum well conditions afforded by a new replacement well.
This interpretation contemplates the reality well owners face: old wells often have age-related problems, such as wells not fully penetrating the aquifer, wells collapsing or becoming
damaged or biofouled, etc. These problems limit the ability of the existing well to pump the maximum amount of water available at the well site, which problems would not exist for
a new well. However, it is costly to dig a replacement well. Thus, Staff contends that it is unrealistic and contrary to the intent of Rule 7.3.2. to require an applicant to dig a
replacement well in order to determine the thickness of an aquifer or optimum performance of a new well at that site. Therefore, Staff disagrees with the Hearing Officer’s Initial
Decision insofar as it requires an applicant to dig a replacement well or receive a replacement well permit prior to changing the location of a well.
Staff’s interpretation and application of Rule 7.3.2 results in a saturated thickness adjustment that is not limited by the faulty operation of a well, but is limited only by the physical
limitations the aquifer at the existing well site; i.e., the amount of water that is physically divertable at the original location, which is the intent of Rule 7.3.2. A demonstrative
exhibit explaining Staff’s interpretation of Commission Rule 7.3.2 is incorporated herein and attached as Exhibit A.
Evidence indicated greater saturated thickness at all five proposed new well sites in the Bookers’ application, so the restrictions of Rule 7.3.2 would apply. The Staff evaluated the
applications and found that in accordance with the first sentence of Rule 7.3.2, the change in well locations could only be granted if future withdrawals were limited to the permitted
historic withdrawals. Additionally, Staff found that the wells had to be limited to the amount physically available at the permitted well sites, in accordance with the second sentence
of Rule 7.3.2. Staff’s calculation of the amount of water available for annual appropriation was lower than the number provided by the Applicants because the Applicants did not account
for the difference in saturated thickness between the two locations. Staff corrected the Applicant’s number to account for this difference. Staff further determined that without application
of Rule 7.3.2 in its entirety, the Bookers would be moving their wells to a location with a greater saturated thickness, thereby increasing the useful life of their appropriation beyond
what it would have been at the original location. Thus, they would have been “walking to water,” and material injury would have occurred to vested water rights.
The Rule 7.3.2. restrictions significantly limit the amount of water that may be withdrawn at the new locations, but the restrictions establish a presumption that material injury would
not occur to vested water rights. Based on Staff’s application of Rule 7.3.2 to the Booker applications, Staff recommended that the Well with Permit number 16271-R be limited to 20
acre-feet per year; Well with Permit Number 16272-R be limited to 7 acre-feet per year; well with permit number 27560-FP be limited to 13 acre-feet per year; well with permit number
27585-FP be limited to 31 acre-feet per year; and that the application to move well with permit number 16265-R be denied, for a total of 71 acre-feet per year granted to the Bookers.

Finally, the Bookers appeal the Hearing Officer’s finding that no water is available at the current well locations because of certain statements made by Mr. Booker that the Bookers contend
were taken out of context. The Staff takes no position regarding the Bookers’ appeal of the Hearing Officer’s evidentiary findings concerning the availability of water on the Booker
property. However, Staff would like to note that the “availability” of water is to be based on the physical ability to divert water and not the economic feasibility of pumping the
well.

CONCLUSION
Staff agrees with the Hearing Officer’s ruling that Commission Rule 7.3.2 should be applied in its entirety to the applications in order to prevent material injury to vested water rights.
However, Staff disagrees with that part of the Hearing Officer’s interpretation of Rule 7.3.2 that requires an applicant to replace a well prior to being allowed to relocate a well.

Therefore, for the reasons discussed above, Staff requests that the Commission confirm Staff’s interpretation of Rule 7.3.2; reject the Bookers’ interpretation of Rule 7.3.2; reject
that portion of the Hearing Officer’s interpretation of Rule 7.3.2 requiring an applicant to replace a well prior to being allowed to relocate a well; and remand this case back to the
Hearing Officer for further proceedings in accordance with Staff’s interpretation of Rule 7.3.2.
Respectfully submitted this ____ day of May 2004.
KEN SALAZAR
Attorney General

________________________________
TANYA T. LIGHT, 33951*
Susan Schneider, 19961
Assistant Attorneys General
Natural Resources and Environment Section
Attorneys for Ground Water Commission Staff

1525 Sherman Street, 5th Floor
Denver, Colorado 80203
Telephone: [phone]
FAX: [phone]
*Counsel of Record
See Commission Rules 6 and 7. See also C.R.S. §  37-90-111(1)(c), which authorizes the Commission to issue replacement wells, and § 37-90-111(1)(g), authorizing the Commission to adopt
rules for the evaluation of change of water right applications.
Prior to the September 9, 2003 hearing, the Applicants sought a variance from Commission rule 7.3.2 at the February 2003 Commission meeting. This rule requires that withdrawals at
proposed well sites be limited in accordance with the saturated thicknesses at the previous sites. The Applicants also sought a variance from Commission rule 7.10, which requires that
the Applicants utilize the most recent ten years of use in their historic consumptive use analysis. The Commission denied both variance requests.

Section 37-90-111(1)(g) provides that the standard of injury that applies to change applications is material injury. The Staff determines whether material injury will result to vested
rights of other appropriators by applying Commission rules to the applications.

1

10

BookerDiagram.doc
Current Sat. Thickness = 1 ft.

Sat. Thickness = 10 ft

Sat. Thickness = 15 ft.

Max Replacement Distance = 50 ft

Historic Water Level

Current Water Level

Bedrock

Alluvial Channel

Relocated
Well

Theoretical
Replacement Well

Original
Well

Ground Surface

Future Annual Withdrawal =
Historic CU x (Replace Sat. Thickness/Relocated Sat. Thickness) =
100 Ac-ft (10 ft/15 ft) = 67 Ac-ft

Relocation Distance =
< ½ mile and >50 ft

bookerfigure.pdf
DBRulesApril2004withFigs.doc

STATE OF COLORADO
GROUND WATER COMMISSION

Hal D. Simpson
Executive Director
1313 Sherman Street
Denver, Colorado 80203

RULES AND REGULATIONS FOR THE MANAGEMENT AND CONTROL
OF DESIGNATED GROUND WATER

2 CCR 410-1

Effective Date: May 1, 1992

Amended: March 30, 1995
Re-amended: April 1, 1997
Re-amended: February 1, 2001
Re-amended: June 30, 2003
Re-amended: April 30, 2004

DBRulesApril2004withFigs.doc

RULES AND REGULATIONS FOR THE MANAGEMENT AND CONTROL
OF DESIGNATED GROUND WATER

TABLE OF CONTENTS

Rule Page

1  Title 1
2  Authority 1
3 - Scope and Purpose 1
4  Definitions 1
5  Appropriation of Designated Ground Water 5
6 - Replacement Well Permits 21
7 - Change of Rights to Designated Ground Water 21
8  Flow Meter Requirements 29
9  Coordination with Ground Water Management Districts 30
10  Severability 30
11  Variance 30
12  Revision 31
13  Effective Date 31