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fees,” and the petitioners should pay the cost for notice of publication. She stated that was the key point in the Hearing Officer’s order, and the staff requests that the Commission uphold the Hearing Officer’s decision. Commissioner Huwa made a motion to affirm the decision by the Hearing Officer to have the petitioners pay the publication costs; the motion seconded by Commissioner Jaeger and passed unanimously. Hearing on rulemaking on proposed changes to the Colorado Ground Water Commission Rules of Procedure for all Adjudicatory Hearings, by Joseph Grantham Chairman Smith called the hearing to order. Mr. Pat Kowaleski, of the Attorney General’s Office, was conflicts counsel. The following persons provided testimony before the Commission: Mr. Joseph (Jody) Grantham, Hearing Officer, presented the proposed adjudicatory rules. He stated that he requested and received public comment, which were incorporated into these rules and regulations, and there were no protests or changes from the last version. Mr. Kowaleski stated that the rules would become effective 20 days following publication following final adoption, depending on when it was published. Commissioner George added that these rules discuss how hearings will be conducted. Mr. Mike Shimmin, representing several ground water management districts, stated that they appreciated that staff circulated the rules for public comment before proceeding with the formal rulemaking procedure. They were given an opportunity to provide comments and work out their concerns, and their suggested changes have been incorporated into the rules. Commissioner Clever made a motion that the Commission adopt these rules and procedures for all hearings before the Colorado Ground Water Commission; the motion was seconded by Commissioner Loose and was approved unanimously. Hearing on whether to proceed with publication of the Petition to Create the Box Elder Creek Designated Ground Water Basin (Case No. 06-GW-23) Chairman Smith called the hearing to order. Mr. Pat Kowaleski, of the Attorney General’s Office, was conflicts counsel. Mr. Kowaleski stated that the motion today should be whether or not adequate factual data has or has not become available as a result of the submittals to justify the Commission’s initiation of the proceedings to create a new basin. The Commission should not decide whether the basin should or should not be created, that matter will be determined only after a public hearing is held. He clarified that what should be considered, as decided at the last meeting, was to act on and consider the petition and supporting materials that were submitted by the applicant. This is not an evidentiary hearing, the Commission should not be hearing new testimony, but will decide whether or not the motion to dismiss should be granted. The following persons provided testimony before the Commission: Mr. Andy Jones, attorney, noted for the record that this hearing process is improper, that the petition should have been published three months ago, the petitioner submitted all of the materials that are required by CRS 37-90-106, the staff recommended publication, and this proceeding puts the petitioner in the untenable position of trying to demonstrate whether adequate factual data is available to create a new basin and responding to allegations that the data is not adequate because it does not meet one or two of the prongs of the definition. Mr. Mike Shimmin distributed a color cross-section map that shows the location of irrigation land in relation to the proposed basin boundary. Mr. Shimmin questioned the Commission whether they have adequate facts and data to put everyone through the process which may cost upwards of a million dollars; and, if not, the case should be dismissed. The petitioners have to prove that ground water was the principle use of water for the past 15 years. He stated that the factual data before the Commission does not meet the definitions of Prongs 1 and 2 of the statutes. Mr. Shimmin stated that this basin is not a natural ground water basin and will never be a ground water basin, it is predominately a surface water basin. Mr. Andy Jones, representing petitioners Central Colorado Water Conservancy District and John Moser, provided a summary of the report that was attached to the petition. He stated that Central is concerned with augmenting wells in the South Platte River basin that are subject to curtailment. He also stated that the Box Elder boundary is not adjacent to a continuously natural flowing stream, and that ground water has been the principle water source for at least 15 years prior to designation. Mr. Jones stated that many wells in Box Elder would meet Prong 1 and that tributary water can be designated, and cited the Southwestern Colorado Water Conservancy District case. He requested the Commission to make a motion to publish the petition and to set a hearing date before the next meeting. He added that it will not take millions of dollars or four to six weeks. Mr. Jon Ford, Vice President of Leonard Rice Engineers, registered professional engineer and geologist and author of the report, responded to a question regarding the Nine-Mile Reach and stated that in many cases there was limited or no flow. The following individuals testified and concurred that the creek has been historically dry and asked the Commission to allow them to have their day in court: Mr. Eric Millage - his interest in the matter is his family farm is at the top of the boundary. He stated that Box Elder Creek is not a continuously flowing creek and is dry most of the time. He is Vice President of Lower Latham Reservoir and Latham’s filling is through the Union Ditch off of the Platte River. Mr. Steve Foos – farmer, grew up near Box Elder Creek; stated that other than releases from reservoirs, no water fills the creek. Mr. Bill Coyle – he owns a farm near Box Elder Creek and stated that there is no flow in the creek. Mr. Dave Dacon – owns wells in Box Elder; he is a member of Central, Henrylynn and FRICO; he doesn’t feel the Closed Basin designation will affect him. Mr. Gerald Redhammer – farmer, stated that water never flows through the farm from Box Elder; even when the reservoir broke, the water never reached his farm. Mr. Paul Sater – has a farm in the bottom of Box Elder east of the drainage ditch; stated that because the basin was not designated before, does not mean that it should not be now. Mr. Tom Cech, manager of the Central Colorado Water Conservancy District in Greeley, stated that Central’s board of directors spent $200K to 300K for Leonard Rice to do a report and said that engineers should describe the physical nature of Box Elder Creek instead of lawyers. He asked the Commission to deny the motion to dismiss this and to set a date because this is important to the farm families in the area. Commissioner Clever stated that the petitioners presented adequate data to justify publication and will give the petitioner the right to a hearing and the objectors the right to dispute the facts; therefore, he made a motion to deny all of the motions to dismiss pending before the Commission. The motion was seconded by Commissioner Loose. Commissioner Jaeger stated that this is an important enough issue that sending this to hearing makes sense and the motion that was made is appropriate because this needs more time, there is a lot of confusion, and both sides have a right to be heard before an informed decision is made. Commissioner Coryell added that interpretation of factual data will be debated for a long time, even after a finding. A roll call motion was held and the motion passed unanimously. Commissioner George made a motion that the Commission publish notice of the petition to create a new designated ground water basin to be known as the Box Elder Designated Ground Water Basin, and to begin the process for formal hearing on the petition granting to the Hearing Officer discretion in determining the date and location of the hearing. The motion was seconded by Commissioner Clever and was passed unanimously. Staff Report by Keith Vander Horst - Mr. Vander Horst presented the Staff Activity Report for the last quarter, the written report of which was included in the Commissioners’ packets. He reported on the small capacity and large capacity well permit applications, change applications, final permit activities, the fourteen pending cases before the Hearing Officer or the court, the eight completed hearings, and enforcement items and actions. Regarding miscellaneous items, Mr. Vander Horst reported that staff are working on metering requirements and plans are to require installation of acceptable metering by March 2007. They are also working on dry-up of irrigated lands under the CREP program. Report of the Attorney General by Ginny Brannon – Ms. Brannon stated that the report that provides a summary of the matters that the Attorney General’s Office was involved in is included in the packets. Main issue for this meeting was publication of Pioneer which was heard this morning. Management District and Conservation District Reports - Chairman Smith called for the Management District reports. Mr. Aaron Nein reported from the Frenchman, Sandhills, Marks Butte and Central Yuma Ground Water Management Districts. Mr. Nein thanked Sandy Johnson for assisting with emergency permits and Jay Bloomfield for assisting with well file documents. He reported that it has been extremely hot and dry and precipitation has been below normal. Regarding well administration, they are currently administering 173 high capacity wells; six wells were over the 90 percent mark on water used this year, five wells were over the 80 percent mark, and he was still waiting for 52 more power readings from the power companies. Mr. Nein reported that regarding enforcement, he is working with staff on finding and correcting illegal expanded acres. Regarding the new metering requirements, the cost is approximately $1,000 per well, and if there is any funding to assist well owners pay for installation, he would like to know. Mr. Nein questioned how the $500 per day fine for cease and desist orders are enforced. Mr. Jack Dowell, from the W-Y Ground Water Management District, reported that he checked 140 wells for chemigation this summer; of which five failed, the flapper was not working on three, and two were never chemigated before. The crops look good considering sporadic rains and wind, and the corn and sugar beets are ahead of normal and they are considering shutting their wells off. There was no report from the Arikaree Ground Water Management District. Commissioner Coryell reported on behalf of the Plains and East Cheyenne Management Districts. Deb Daniels was not able to attend, so he read her faxed report. The average change in static level wells is less than one-half foot for the combined districts. Regarding well administration, the majority of growers are far from using their allocated amount of water for irrigation. There was an enforcement issue with a grower who is not in compliance with his permit. It’s been a hot and dry year, the corn is looking better than last year and other crops are more mature than normal at this time of year. Commissioner Coryell added that the Plains District held a rulemaking hearing on small capacity wells on areas less than 35 acres, and the district promulgated rules requiring meter administration. Commissioner Smith reported for the Southern High Plains Ground Water Management District. He stated that he gave a presentation using data from the Natural Resources Conservation Service that showed precipitation in the 1930’s during the dust bowl, the 1950’s, and currently. Commissioner Smith said that prior to last week, they were drier than the 1930’s or 50’s. Commissioner Loose reported for the North Kiowa-Bijou Ground Water Management District. He stated that irrigators are complying, but the “pilgrims” want to irrigate non-stop. There was no report from the Upper Black Squirrel Creek Ground Water Management District, from the Upper Big Sandy Ground Water Management District, or from the Lost Creek Ground Water Management District. Mr. Stan Murphy, from the Republican River Water Conservation District, reported that the NRCS acquired more funds and offered 5-year contracts, resulting in approximately 7100 acres in the EQIP program. Not all wells will be shut down this year, they will be spread over this irrigation season and some in 2007. This year, almost 75 percent are permanent retirements. He reported that in 2006 they offered a one-year lease program because the CREP program was not available, and shut down 1400 acres. They collected 85 to 90 percent of the water use fees. They billed the Department of Natural Resources for $33,000 and are still waiting for the money. Old Business – None New Business – None Next Meeting – November 17, 2006, in Denver. The meeting adjourned at 12:25 p.m. Respectfully submitted, Marta Ahrens Secretary to the Ground Water Commission Ground Water Commission Meeting Page 6 August 18, 2006 Minutes-4th '06.doc MINUTES FOURTH QUARTERLY MEETING COLORADO GROUND WATER COMMISSION NOVEMBER 17, 2006 The Fourth Quarterly Meeting of the Colorado Ground Water Commission took place on November 17, 2006, at 1313 Sherman Street, Room 318, Denver, Colorado. Chairman Max Smith called the meeting to order at 10:00 a.m. Marta Ahrens called the roll and determined that a quorum was present. Commission members present were Grant Bledsoe, Larry Clever, Dennis Coryell, Corey Huwa, Frank Jaeger, Robert Loose, Earnest Mikita, Doug Shriver, Max Smith, Hal Simpson, Russell George and Ted Kowalski. Review and Approval of Agenda Items – The agenda as written was approved. Approval of Minutes for Meeting of August 18, 2006 - Chairman Smith asked if there were any corrections or additions to the Minutes of the May 17, 2006 meeting. Commissioner Coryell moved to accept the Minutes; the motion was seconded by Commissioner Jaeger and carried unanimously. Report of the Executive Director by Hal Simpson – Mr. Simpson reported that the Colorado Supreme Court issued an opinion on the Gallegos Case, in the Upper Crow Creek Designated Ground Water Basin, and Alexandra Davis will provide a briefing on the opinion during the Attorney General’s report and will give the Commission additional guidance on what to consider in modifying the boundaries of a designated ground water basin. Mr. Simpson reported on the rules for new appropriations from confined aquifers in the San Luis Valley. A six-week trial was held in early 2006 and Judge John Kuenhold issued a 191-page decision a week ago upholding the proposed promulgated rules restricting new ground water withdrawals from the valley’s confined aquifer ruling that the valley has no water to spare. This ruling is available on the Water Court's website in several large Adobe pdf files at http://www.courts.state.co.us/supct/watercourts/wat-div3/casesofinterest/04CW24/04cw24.htm Mr. Simpson stated that Scott Richrath, a valuable DWR staff person, recently transferred to the Department of Transportation. Mr. Richrath was particularly valuable with getting the Conservation Reserve Enhancement Program approved by the Federal government. The Republican River Water Conservation District prepared a resolution recognizing the efforts of Scott. Mr. Simpson reported on meetings with Kansas to resolve the outstanding issues on proper administration of the Arkansas River Compact, particularly the accounting for evaporation and releases from John Martin Reservoir. In December, Colorado will present to the Compact Administration four agreements for approval as well as the major unresolved issues. The states are slowly working on controversial issues and making significant progress without attorneys. Regarding compact compliance in the Republican River Basin, there have been on-going discussions and concern due to the effects of drought as well as soil and water conservation measures. It is hopeful that next year with normal conditions there will be good runoff to deal with the current shortage of 35,000 acre-feet. Hearing on staff’s appeal of Hearing Officer’s Final Orders for consolidated Case Nos. 05GW15, 05GW16, and 05GW17, in the matter of denial of the applications for Determinations of Water Rights (AD-14669 through AD-14671, and AD-14673 through AD-14678) to allow withdrawal of ground water from the Laramie-Fox Hills, Arapahoe, and Denver Aquifers by Cherokee Metropolitan District in the Upper Black Squirrel Creek Designated Ground Water Basin. Chairman Smith called the hearing to order. Mr. Pat Kowaleski, of the Attorney General’s Office, was conflicts counsel. The following persons provided testimony before the Commission: Ms. Ginny Brannon, of the Attorney General’s Office, provided a summary and procedural background. She stated that this case involves nine determinations of water right applications for the withdrawal of Denver Basin ground water on the basis of overlying land ownership in the Upper Black Squirrel Creek Designated Ground Water Basin. There are approximately 30 landowners. Staff denied these applications as they did not have signed landowner consent statements which are required by Rule 5.3.2.2. The signed lease does not give sufficient evidence of landowner consent and does not allow a provision to apply for a water right. Ms. Brannon stated that what matters is the language in the decree, not the language in the lease. The Hearing Officer denied the motion filed by staff and remanded the staff to make determinations and vacated the hearing. The staff filed a motion for clarification by the Hearing Officer. The three primary issues are: whether there is sufficient evidence of landowner consent; whether the decrees grant rights to alluvial water only or also allows the use of Denver Basin water; and whether the landowners should individually be notified. The staff requests that the Commission remand this case to the Hearing Officer. Mr. James Culichia, of Felt, Monson & Culichia LLC, attorney for applicant, reported that the Hearing Officer twice ruled that the applicant has met the requirements of Rule 5.3.2.2, the applications should be published, and they should be allowed to proceed with the determinations. They disagree with the issue raised by staff that the leases are inadequate under the rule. He stated that the Hearing Officer ruled that Cherokee’s leases are sufficient to establish consent and ownership of water. At issue is also whether the leases themselves grant the right to apply for the determinations. Mr. Jim Burnside, property owner for over 22 years, stated that he owns property on two of the major wells under Cherokee and he has three agriculture irrigation wells. He stated that they have not received any notification. Cherokee has a lease on 1,591 acres of his ranch and he feels that this is a maneuver by Cherokee to obtain different transportation rights on this water. Ms. Darlene Williams, representing Springs East Airport, stated that they owned the land for 14 years and have run it as an airport, and she has not seen any lease. The water they have is designated for use on the airport and if Cherokee is interested, they will need to change the water right. Discussion ensued among the Commission members and clarification was made on what action the Commission is asked to take. Commissioner George expressed concerns regarding the ambiguous language and interpretation of the lease. Commissioner Loose agrees with staff that they need to notify the landowners. Commission Jaeger stated that the Commission’s concerns are the rules under which they operate. Mr. Kowaleski stated that the Commission’s position is to affirm or deny the initial decision of the Hearing Officer. Commissioner Jaeger moved to deny the request for appeal and affirm the order of the Hearing Officer; the motion was seconded by Commissioner Clever. A roll call vote was held and the motion was denied with four in favor and six against. The motion was amended. Commissioner Clever made a motion that the Commission deny the staff’s appeal of the determination of water rights for the Cherokee Metro District and affirm that staff will make every attempt to notify the legal landowners of the application at the same time it is published. The motion was seconded by Commissioner Coryell. The motion passed with nine in favor and one against. Executive Session – Pioneer Irrigation District, Colorado Board v. Colorado Ground Water Commission, Yuma County District Court, Case No. 06CV31 – Commissioner Clever moved to go into Executive Session, seconded by Commissioner Mikita, and passed unanimously. For the record, Alexandra Davis stated that the Ground Water Commission discussed litigation strategy in the Pioneer and Laird Ditch Petition litigation. Staff Report by Keith Vander Horst - Mr. Vander Horst presented the Staff Activity Report for the last quarter, the written report of which was included in the Commissioners’ packets. He reported on the small capacity and large capacity well permit applications, determination of water rights, changes of water rights, final permitting activities, objections/hearings, and enforcement actions. The Booker application went to trial two weeks ago, and a ruling from the District Court will be forthcoming. Under miscellaneous items, Mr. Vander Horst reported that staff are working on enforcement of meter requirements within the Republican River Basin, they are working with the RRWCD on water conservation programs, migration of some Denver Basin aquifer permitting information into digital format, and staff have been performing field inspections for changes of water rights and large capacity applications. Report of the Attorney General by Alexandra Davis – Ms. Davis reported on the Gallegos decision. The case was a question of jurisdiction of the Commission and the State Engineer’s Office. The District Court held that the Commission was required to administer designated ground water wells pursuant to prior appropriation and that they have jurisdiction over surface water rights for this purpose, however, the District Court put several conditions on such administration. The Supreme Court overturned the jurisdictional findings of the District Court and stated that the Commission has jurisdiction over surface water rights only to the extent that they need to revisit boundary designations based on new information. The Supreme Court remanded this back to the District Court, and the District Court should remand it to the Ground Water Commission, but has not yet, to see if there is any further work to be done. Management District and Conservation District Reports - Chairman Smith called for the Management District reports. Mr. Aaron Nein reported from the Frenchman, Sandhills, Marks Butte and Central Yuma Ground Water Management Districts. Mr. Nein stated that there are new natural gas developments in Yuma County. Regarding the well administration program, they administered 200 wells in 2006 for the four districts. They had five cases of over-pumping in the Central Yuma District, and four of those wells were administered under district rules, and the owners of those wells will be subject to a 2 to 1 payback penalty in 2007. Mr. Nein stated that he attended a Republican River meeting in Nebraska. Mr. Nein inquired whether there are any investigations on whether or not water municipalities could supply water outside their boundaries. Mr. Simpson responded that the matter regarding municipal by-laws is currently being researched by the State Engineer’s Office with additional guidance from the Attorney General’s Office. Mr. Nein stated that 1,200 to 1,500 wells will be metered and he questioned whether all wells in the Northern High Plains will be required to have meters. Mr. Simpson responded that the Commission will need to promulgate rules to require meters on all designated ground water wells. Mr. Jack Dowell, from the W-Y Ground Water Management District, reported that they had pretty good year, some moisture, and good crop production. He also stated that they have had a couple of applications for small capacity commercial wells that the owners want to sell or give water to gas companies for fracking. Mr. Simpson responded that the State Engineer’s Office can work with his district to promulgate rules to put a limit on the volume pumped. Mr. Roger Brenner, from the Arikaree Ground Water Management District, stated that it was their district that sent the letter to Mr. Simpson regarding selling water to gas producers. There is a lot of natural gas activity and stated that this could net a considerable amount of money to individuals, ranging from $500 to $2500 per well. Ms. Deb Daniels, from the Plains and East Cheyenne Management Districts, reported that they have had 16 inches of precipitation in the Burlington area and approximately 17 inches in Cheyenne Wells. Most of the crops have been harvested. She reported on a couple of violations of pumping in the Plains District. Ms. Daniels reported that she also attended the Republican River Compact meeting in Nebraska. She stated that she has been measuring wells, monitoring change of use, co-mingled, and expanded acre wells. During the next two months, they will be measuring over 200 large capacity wells and will have a better idea of the static level in the district area. Finally, Ms. Daniels stated that Dennis Coryell received an award at the Ground Water Foundation’s Annual Conference in Michigan for his efforts in working with irrigators, environmental organizations and state and local officials in conserving ground water. Commissioner Smith reported for the Southern High Plains Ground Water Management District. He stated that they had enough moisture to get the winter wheat crop in the ground. There are not many dry land crops due to the dry summer. Between the hail and dry weather, the yields were below normal for irrigated crops. There was no report for the North Kiowa-Bijou Ground Water Management District. Mr. Keith Vander Horst read the district report from Kathy Hare of the Upper Black Squirrel Creek Ground Water Management District. The district is waiting for the Supreme Court ruling regarding the Cherokee stipulation. The district finished a 4-day trial in El Paso County District Court objecting to the relocation of several wells by Wayne and Frances Booker. The district published proposed Rule 21 Metering Rule and had a hearing on November 7, 2006, received two objections, and voted to continue the hearing until the December meeting. Mr. Dave Taussig, from the Upper Big Sandy Ground Water Management District, reported that they received their first batch of final permits, and the second batch has been published. They hired Martin-Wood to perform additional studies on the water balance. In Phase 5 of the study, they will try to determine whether they are in the alluvium recharging the Denver Basin aquifers, or whether the Denver Basin aquifers are contributing to them, and determine whether or not they can sustain the alluvium. Mr. Taussig reported that they held a hearing to approve an application to allow hauling water for dust control. With regard to the Gallegos case, Mr. Taussig reported that it is a serious problem and the Commission and the districts need to look at the provision that allows for making or adjusting boundaries. He suggested that it may take legislation to find a way to address this concern or it will continue to arise. There was no report from the Lost Creek Ground Water Management District. Mr. Stan Murphy, from the Republican River Water Conservation District, also reported on the issue of small capacity wells, hauling water out of communities, and water for gas wells. Between the EQIP and CREP programs in 2006, they have applications and contracts for about 36,000 acres to be taken out of production. They have expectations for 2007 to see some changes in their allotment used in the compact. They leased 117 acres of surface water on the Laird Ditch from August to December and options for leasing it for the next three years.