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2005 Legislative Language Recommendations 10-28-04.docMURPHY/ SHIMMIN DRAFT – 10-28-04 37-90-126. Management district - directors - qualifications - oath - bond - vacancies. The members of the board of directors shall be resident taxpaying electors within the DIVISION OF THE DISTRICT THAT THEY REPRESENT district. Each member of the board shall take an oath of office, and shall give bond in the sum of five thousand dollars conditioned that he shall faithfully perform the duties of director and of such further office to which he may be elected in such district, and shall account for all funds or property coming into his hands as such director or other officer. Such bonds shall run to the district, shall be signed by a surety approved by the ground water commission, and shall be filed and recorded in the office of the state engineer. When such bond is so filed and approved, such person so elected shall take and hold office until his successor is APPOINTED OR elected, and qualified. When a vacancy occurs on the board, such vacancy shall be filled by the remaining members of the board. 37-90-127. Management district - directors - election - term of office. As the terms of the members of the board of directors expire, their successors shall be nominated by petitions containing the signatures of not less than fifteen percent of the number of THREE qualified RESIDENT taxpaying electors of the division OF THE DISTRICT THAT THEY WOULD REPRESENT who voted at the last preceding district election, to be filed with the secretary of the not less than thirty days before district OFFICE NO LATER THAN THE THIRTY-FIRST DAY OF DECEMBER IMMEDIATELY PRECEEDING the election. NOTICE OF THE DEADLINE FOR NOMINATING PETITIONS SHALL BE PUBLISHED, WITH THE FIRST PUBLICATION NO EARLIER THAN NOVEMBER 1 AND WITH THE LAST PUBLICATION NO LATER THAN DECEMBER 15. Thereafter, the members shall be elected for terms of four years. EACH DISTRICT SHALL HAVE THE OPTION OF ELECTING ITS DIRECTORS FOR EACH DIVISION by the plurality vote of the taxpaying electors of the division of the district which they represent, OR BY THE PLURALITY VOTE OF THE RESIDENT TAXPAYING ELECTORS OF THE DISTRICT AS A WHOLE. EACH DISTRICT BOARD SHALL CHOOSE WHICH ELECTION OPTION IT WISHES TO USE BY A MAJORITY VOTE AT A REGULAR MEETING, AND SHALL INCLUDE NOTICE OF THAT DECISION IN THE NOTICE OF THE DEADLINE FOR NOMINATING PETITIONS. Such elections shall be held on the first Tuesday in February preceding the expiration of such terms and shall be conducted by the district board in the general manner prescribed in section 37-90-124. the BOARD OF DIRECTORS shall divide the DISTRICT into as many election precincts as it deems APPROPRIATE for the convenience of the DISTRICT and shall designate the polling place(S) FOR EACH PRECINCT. IF THE BOARD RECEIVES ONLY ONE TIMELY NOMINATING PETITION FOR A BOARD SEAT, THEN THE BOARD MAY CANCEL THE ELECTION FOR THAT SEAT, AND THE REMAINING MEMBERS OF THE BOARD SHALL APPOINT THE PERSON NOMINATED TO SERVE THE TERM FOR WHICH THAT PERSON WAS NOMINATED. 37-90-127.5. Management district - ballot questions - ballot issues. Any ballot question or ballot issue CONCERNING ONLY THE OPERATION OF THE DISTRICT SHALL be placed on the ballot of the DISTRICT AT THE SAME TIME AS THE ELECTION FOR BOARD MEMBERS IS HELD, UNLESS THE DISTRICT bOARD DEICDES BY A MAJORITY VOTE AT A REGULAR MEETING TO PLACE SUCH A BALLOT QUESTION OR ISSUE ON THE GENERAL BALLOT FOR A COUNTY-WIDE ELECTION. IN EITHER ELECTION PROCESS, ALL SUCH BALLOT QUESTIONS OR ISSUES shall be decided by a plurality vote of the RESIDENT taxpaying electors of the district. 37-90-105. Small Capacity wells – repeal. (1) The state engineer has the authority to approve permits for the following types of wells in designated ground water basins without regard to any other provisions of this article: * * * * (f) ONE WELL NOT EXCEEDING FIFTY GALLONS PER MINUTE AND USED EXCLUSIVELY TO SERVE ONE PUBLIC OR PRIVATE K-12 SCHOOL THAT IS LOCATED OUTSIDE THE BOUNDARIES OF AN INCORPORATED TOWN OR CITY OR ANY SPECIAL DISTRICT THAT IN EITHER CASE PROVIDES CENTRAL WATER SERVICE TO A POPULATION OF MORE THAN 1,000 PEOPLE. SUCH USE MAY INCLUDE THE NORMAL OPERATIONS ASSOCIATED WITH SUCH A SCHOOL BUT SHALL NOT INCLUDE THE IRRIGATION OF MORE THAN FOUR ACRES OF LANDSCAPING AND ATHLETIC FIELDS AT ANY ONE SUCH SCHOOL. AG Report2004-11-19.docATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 19, 2004 The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission. Reinaldo gallegos, et al. Case No. 03CV1335 Designated Basin: Upper Crow Management District: Before: Hon. Roger A. Klein, Weld County District Court Attorney: Pat Kowaleski Subject: The Gallegos family requested 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. At its August, 2003 meeting the Commission affirmed its Hearing Officer and concluded that the Commission has no jurisdiction over surface rights, and is not required to administer the basin based on the priority system. On September 26, 2003 the Gallegos family appealed the Commission’s decision to District Court, and also brought an additional action against the State Engineer in his capacity as the administrator of surface rights. Assistant Attorney General Alexandra Davis is handling the latter litigation. In the Commission litigation, we filed a Motion with the Court, asking that the Court notify and join all well permit holders who might be adversely affected if the Court were to call out permit holders, based on the Gallegos’ decreed surface right. Gallegos has also filed a Motion to join this case with the case against the State Engineer. In a decision which we received on February 11, 2004, the Court agreed with us that junior well permit holders might be adversely affected, and therefore required them to be joined in the litigation. The Court also denied the Motion to join this case with the case against the State Engineer. Status: The Plaintiffs amended their complaint to include junior well permit holders. They served most of those parties, who have retained attorneys and filed responses to the complaint. The case against the State Engineer is being held in abeyance, pending a decision in the case against the Commission. A five-day trial is scheduled to begin on April 17, 2006. PEORIA CROSSING, LLC. Case No. 02-GW-18 Designated Basin: Kiowa-Bijou Management District: North Kiowa Bijou Before: Jody Grantham, Hearing Officer Attorney: Tanya Light 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 was held on October, 22, 2002. Peoria Crossing, LaFarge West and the Staff participated in the hearing. 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 published the notice of intent to issue final permit on July 31, and August 7, 2003. LaFarge West filed a Motion to Vacate Order, which was subsequently withdrawn. On September 11, 2003, the Hearing Officer issued an order stating that the Initial Decision of the Hearing Officer is the Final Decision of the Commission. Lafarge and Staff are in the process of settling the Lafarge case. Once the settlement is complete, the Peoria Crossing case may proceed. WAYNE E. and frances g. booker Case No. 04-CV-2800 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Hon. David Gilbert, El Paso County District Court Attorneys: Pat Kowaleski and Tanya Light 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 Commission Rules. 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. A hearing in this matter was held on September 9, 2003. On September 17, 2003, the Hearing Officer issued his Initial Decision and found as follows: (1) The applications are for changes of water right pursuant to section 37-90-111(1)(g), C.R.S. and Commission Rule 7; (2) According to Commission Rule 7.3.2, there is no water available to move to the new well locations requested by the Applicant; (3) The Applicants’ request to be excluded from the requirement of including years of non-use in their historic use analysis “for good cause” pursuant to Commission Rule 7.10.1 is denied; and (4) Because there is no water available to move, the applications are denied. The Applicants filed Exceptions to the Hearing Officer’s Initial Decision, and by order dated June 15, 2004, the Commission upheld the Initial Decision. On July 15, 2004 the Applicants appealed the Commission’s decision to the El Paso County District Court, and a 5-day trial has been scheduled to begin on November 28, 2005. appeal of rules adopted by the upper black squirrel creek ground water management district Case No. 03-GW-14 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya Light 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. Status: A prehearing conference was held on November 5, 2003. The Hearing Officer determined that the Commission had no jurisdiction to hear appeals of rules regarding small capacity wells, and therefore had no jurisdiction to hear the appeal of proposed District Rule 3. The parties agreed that the remaining issues could be decided on the briefs, and therefore the hearing set for March, 2004 was vacated. In April 2004 the Hearing Officer issued Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer, whereby he ruled that, as a matter of law, the District exceeded its statutory and decisional law authority, and therefore Rules 17, 18 and 19 were null and void. On May 6, 2004 the District timely filed a request to reverse or modify the Initial Decision. On that same date the District also timely filed a Designation of the Record. Briefs were due to the Commission on August 6, 2004. This case was argued before the Commission at the August 20, 2004 Commission meeting. On September 30, 2004 the Commission reversed the Hearing Officer’s ruling that the District had exceeded its statutory and decisional law authority in enacting Rules 17, 18 and 19, and remanded to the Hearing Officer for further proceedings to determine whether the rules, as adopted by the District, are reasonable and in compliance with applicable statutes. Briefs are due to the Hearing Officer on November 30, 2004, and oral arguments will be conducted before the Hearing Officer on December 16, 2004. appeal of rules adopted by the upper black squirrel creek ground water management district Case No. [Unassigned] Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: El Paso County District Court Attorney: Tanya Light 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. Status: This is the same matter referred to in the previous item. After the Commission issued its Remand Order, the Applicants, on October 29, 2004, filed an appeal with the District Court in El Paso County. The Commission will be filing a Motion to Dismiss the District Court action on the grounds that the Commission has not yet completed its review, and the matter is therefore not ripe for an appeal to District Court. Hunker, et al. v. Upper Black SquirRel and Ground Water Commission Case No. 04-CV-4205 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: El Paso County District Court Attorneys: Pat Kowaleski and Tanya Light Subject: Timothy Hunker and several Metropolitan Districts that are regulated by the Upper Black Squirrel Creek Ground Water Management District, (the “District”) have filed an action in El Paso County District Court asserting that the five Divisions within the District need to be reapportioned. The background is that in 1968 a petition was filed with the Ground Water Commission to establish the District. Pursuant to the statute, § 37-90-121(1)(b) C.R.S., the Divisions within the district were to be “as nearly equal in size as may be practicable, and considering the population thereof,…” Pursuant to statute the Commission set a public hearing to consider creation of the District, and, after that hearing, the District was formed. The Plaintiffs assert that the Divisions within the District are no longer “nearly equal.” They assert, as an example, that of the 11,104 taxpaying electors in the District, one division has 3631 electors while another has only 473. The Plaintiffs assert that this is a “violation of the principal of ‘one man-one vote.’” The lawsuit says that the Commission, while not having authority to oversee the redistricting, is a necessary party to the litigation because the Commission approved the original divisions within the District. The specific assertion involving the Commission is contained at Par. 6 of the Complaint: “6. The Colorado Ground Water Commission (‘the Commission’) oversees the designated groundwater basins in the State of Colorado and is the administrative body to which certain matters concerning the designated basins are appealed to. The Commission authorized the designation of the Basin, the formation of the Black Squirrel, and approved the division of the Black Squirrel into the five (5) election divisions and therefore, is a necessary party to this action; however, this Court, and not the Commission, has jurisdiction to oversee the redistricting of the Black Squirrel.” Status: The lawsuit was served on Wednesday, October 20 and we will be filing a response moving the Court to dismiss the Commission since it is not a necessary party to the action. lafarge west, inc. Case No. 03-GW-15 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Tanya T. Light Subject: LaFarge West filed an objection to the approval of its final permit. LaFarge objected to the utilization of 11.3 acre-feet as the measure of beneficial use and requested 31 acre-feet be utilized as the appropriate measure. Status: A hearing was held on February 2, 2004. LaFarge and the Staff participated in the hearing. Subsequent to the hearing, Staff and Lafarge agreed to settle the case by permitting the well for 14.1 acre-feet as the measure of beneficial use. The settlement agreement has not been signed as of the date of this report. john and rita field Case No. 03-GW-18 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya Light Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to the application to change the allowed beneficial uses for Determination of Water Right No. 273-BD. Status: A hearing before the Hearing Officer had been set for April 23, 2004. On March 26, 2004 the District withdrew its objection. On April 2, 2004 the Hearing Officer dismissed the case and remanded to the Staff for administrative action. The change was approved on September 7, 2004. This case is closed. ELDRINGHOFF FAMILY LTD. PARTNERSHIP Case Nos. 04-GW-03; 04-GW-04; and 04-GW-05 Designated Basin: Kiowa Bijou Management District: North Kiowa Bijou Before: Jody Grantham, Hearing Officer Attorney: Tanya Light Subject: Objection by the North Kiowa Bijou Ground Water Management District to three Determination of Water Rights applications. The applications are for determination of water right to allow the allocation of designated ground water from the Laramie-Fox Hills aquifer underlying a 2625-acre property. The property is located within the Kiowa-Bijou Designated Ground Water Basin and the North Kiowa-Bijou Ground Water Management District. The District and a Mr. Kenneth Ross filed objections to the applications. The District objected on the grounds that the applicant’s claim of the subject water for beneficial use is speculative, and that an attempt to determine the maximum allowable annual amount of ground water in the aquifer underlying the property is also speculative. Mr. Ross objected on the grounds that water table is dropping, and therefore granting the applications would be “detrimental to the community.” The applicant filed a Motion for Summary Judgment on October 5, 2004, and the Staff filed a Response in Partial Support of the Motion for Summary Judgment on October 15, 2004 (on the District's speculation claims). A hearing has been set for November 15, 2004 in front of the Hearing Officer. 4 6 AgendaNov04.doc Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of August 20, 2004 Report of the Executive Director by Hal Simpson Presentation on "Aquifer Storage and Artificial Recharge - A Statewide Assessment" by Ralf Topper of the Colorado Geologic Survey Discussion on permanent well set aside through the EQIP Program by Dennis Alexander of NRCS Rulemaking hearing regarding new appropriations in the Republican River Basin within the Northern High Plains by Suzanne Sellers Follow up discussion on future legislation the Commission may wish to pursue: Potential changes to statute regarding GWMD elections by Stan Murphy of the Plains and East Cheyenne GWMDs Potential changes to Section 37-90-105, C.R.S. to allow 1) schools with small capacity wells to irrigate more than one acre of lawn by Stan Murphy and 2) ground water remediation as a use for small capacity wells by Suzanne Sellers Staff Report by Suzanne Sellers Report of the Attorney General by Tanya Light 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 a. Selection of meeting dates for 2005 Adjournment NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, November 19, 2004 Parker Water & Sanitation District North Reclamation Facility Administration Building 18100 E. Woodman Drive (NW corner of E-470 and Parker Road) Parker, CO 80138 Phone: 303-841-4627 A G E N D A Directions to Parker WS.docParker Water & Sanitation District North Reclamation Facility Administration Building 18100 E Woodman Dr Parker, CO (303) 841-4627 FinalNoticeRuleChangesNov04.docNOTICE OF PUBLIC RULEMAKING HEARING BEFORE THE COLORADO GROUND WATER COMMISSION SUBJECT MATTER, STATEMENT OF BASIS, PURPOSE AND SPECIFIC STATUTORY AUTHORITY The Colorado Ground Water Commission (Commission) pursuant to Section 37-90-111(1)(h), C.R.S. is considering amending certain portions of the rules and regulations titled “MANAGEMENT AND CONTROL OF DESIGNATED GROUND WATER”, 2 CCR 410-1. These rules apply to designated ground water within the designated ground water basins in Colorado. The Commission to date has designated a total of eight ground water basins, all of which are located in Eastern Colorado. The basins are: Camp Creek, Kiowa-Bijou, Lost Creek, Northern High Plains, Southern High Plains, Upper Big Sandy, Upper Black Squirrel Creek, and Upper Crow Creek. The proposed amendments to the rules are attached herewith. The purpose of the proposed amendments to the rules is as follows: Rule 5.2.1 To amend this rule to indicate that no new appropriation may be granted that depletes any stream within the Republican River Drainage, absent a replacement plan. The intent of this rule amendment is to ensure that the streams of the Republican River Drainage are not depleted by the issuance of new ground water rights. To clarify that a new appropriation may be granted within an overappropriated 3-mile circle if an approved replacement plan is in place. Additionally, to amend the rule to state that the replacement plan must replace depletions to any stream within the Republican River Drainage as well as prevent injury to all wells within that 3-mile circle. To clarify that the Ogallala aquifer within the Northern High Plains includes the alluvium as indicated in both the Northern High Plains Designation Order and the Northern High Plains Designation Report. The Commission solicits input on these amendments to the rules in order to achieve the above-stated purpose by the most effective means. Any comments you may have which have a bearing on the proposed amendments would be appreciated by the Commission and should be directed to the Executive Director at his address at the end of this notice. HEARING SCHEDULE: DATE: Friday, November 19, 2004 TIME: 10:00 am LOCATION: Parker Water & Sanitation District North Reclamation Facility Administration Building 18100 E. Woodman Drive (NW corner of E-470 and Parker Road) Parker, CO 80138 Oral testimony at the hearing will be limited to the amendments enclosed herein, and any interested parties must provide written materials on or before Friday, October 29, 2004. Direct testimony should primarily draw attention to previously submitted written evidence. At the hearing, the Commission may question parties about their written submittals. Introduction of written materials by parties at the hearing generally will not be permitted. Parties are prohibited from oral presentation of written material not submitted to the Commission by the October 29, 2004 deadline. PARTY STATUS: Although it is not necessary to obtain party status in order to testify or comment on the proposed amendments to the rules, those persons or entities requesting party status must file a written request for such status. These requests are due in the office of the Commission on or before: DATE: Friday, October 29, 2004 TIME: 5:00 p.m. DATED this _________ day of September 2004 at Denver, Colorado. Colorado Ground Water Commission ______________________________ HAL D. SIMPSON Executive Director 1313 Sherman Street # 818 Denver, CO 80203