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November 9, 2004 MEMORANDUM TO: Ground Water Commission Members FROM: Suzanne M. Sellers, Designated Basins Team SUBJECT: Rulemaking Hearing Regarding New Appropriations in the Republican River Basin within the Northern High Plains This rulemaking hearing concerns rules which are being promulgated so that no new appropriations may be granted in the Northern High Plains that would deplete any steam within the Republican River Drainage. The proposed rule changes are attached to this document, along with the basis and purpose of the rules. cc: Ground Water Management Districts (w/ enclosures) Commission Staff (w/ enclosures) Memorandum Upcoming Commission Meeting Page 2 FRED A. HEFLEY, CHAIRMAN, Walsh; JON B. BROWNELL, VICE-CHAIRMAN, Hooper; EUGENE A. BAUERLE, Julesburg; ANNE J. CASTLE, Denver; DENNIS W. CORYELL, Burlington; MICHAEL GROSS, Silt; RICHARD F. HUWA, Keenesburg; F. W. (BILL) KERKSIEK, Strasburg; ERNEST L. MIKITA, Calhan EARNEST L. MIKITA, CHAIRMAN, Calhan; C. MAX SMITH, VICE-CHAIRMAN, Walsh; EUGENE A. BAUERLE, Julesburg; LARRY W. CLEVER, Grand Junction; DENNIS W. CORYELL, Burlington; RALPH G. CURTIS, Alamosa; RICHARD F. HUWA, Keenesburg; FRANK P. JAEGER, Elizabeth; ROBERT R. LOOSE, Wiggins Memorandum Upcoming Commission Meeting Page 2 RuleNotes.docManagement and Control of Designated Ground Water, 2 CCR 410-1 Rulemaking Hearing This rulemaking hearing concerns amending Rule 5.2.2 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 the rule amendment is to ensure that the streams of the Republican River Drainage are not depleted by the issuance of new ground water rights. The rule amendment also clarifies that a new appropriation may be granted within an overappropriated 3-mile circle if an approved plan is in place. It further clarifies 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. These rule amendments were promulgated pursuant to C.R.S. § 37-90-111(1)(h), which grants the Ground Water Commission the authority to adopt rules as necessary to carry out the provisions of the Ground Water Management Act, and the rulemaking provisions of the Administrative Procedure Act, C.R.S. § 24-4-101, et. seq. (the “APA”). The rules were submitted to the Secretary of State on September 15, 2004; were published in the October 2004 edition of the Colorado Register; and were submitted to the Department of Regulatory Agencies (“DORA”) in accordance with the APA. On October 27, 2004 DORA personnel reviewed the rules and determined that the proposed changes met DORA requirements. Those persons wishing to obtain party status in order to testify or comment on the rules at the November 19, 2004 hearing were required to submit a Notice of Party Status on or before October 29, 2004. No such notices were received. Comments and/or objections to the proposed rules were also due on October 29, 2004, and no comments or objections were received. SmallCapStatute.docTITLE: Concerning the remediation of ground water using small capacity wells in the designated basins. SECTION 1: 37-90-105, Colorado Revised Statutes, is amended to read: 37-90-105. Small capacity wells - repeal. Statute text (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: (a) Wells not exceeding fifty gallons per minute and used for no more than three single-family dwellings, including the normal operations associated with such dwellings but not including the irrigation of more than one acre of land; (b) Wells not exceeding fifty gallons per minute and used for watering of livestock on range and pasture; (c) (I) One well not exceeding fifty gallons per minute and used in one commercial business. (II) To qualify as a "commercial business" under this paragraph (c), the business shall be: (A) A business that will be operated by the well owner and that will have its own books, bank accounts, checking accounts, and separate tax returns; (B) A business that will use water solely on the land indicated in the permit for the well and for the purposes stated in such permit; (C) A business that will maintain its individual assets and will own or lease the property on which the well is to be located or where the business is operated; (D) A business that will have its own contractual agreements for operation of the business; (E) A business that agrees not to transfer a permit issued under this paragraph (c) to another entity that also holds a small capacity commercial well permit under this paragraph (c); and (F) A business that agrees to notify any potential buyer that such buyer shall notify the state engineer of any change in ownership of such business within sixty days after any such change in ownership. (d) Wells to be used exclusively for monitoring and observation purposes if said wells are capped and locked and used only to monitor water levels or for water quality sampling; or (e) Wells to be used exclusively for fire-fighting purposes if said wells are capped and locked and available for use only in fighting fires. ; OR (f) (I) Wells not exceeding fifty gallons per minute and pumped for remediation of contaminated ground water. (II) Water pumped for the purposes of ground water remediation may not be used for any other purposes EXCEPT THOSE AUTHORIZED UNDER THIS SECTION. (III) tHE ANNUAL AMOUNT OF GROUNDWATER WITHDRAWN FROM ANY RECOVERY WELL MAY NOT EXCEED THE acre-foot limitations for small capacity wells set forth in this section. ADDITIONALLY, tHE TOTAL COMBINED ANNUAL AMOUNT OF GROUNDWATER WITHDRAWN FOR THE ENTIRE REMEDIATION PROJECT THROUGH A COMBINATION OF RECOVERY WELLS MAY NOT EXCEED 80 acre-FEET. (IV) A state or federal approved remediation plan must be in place for a project to qualify for remediation well(s). (2) The state engineer has the authority to adopt rules in accordance with section 24-4-103, C.R.S., to carry out the provisions of this section. Any party adversely affected or aggrieved by a rule adopted by the state engineer may seek judicial review of such action pursuant to section 24-4-106, C.R.S. (3) (a) (I) (A) Wells of the type described in this section may be constructed only upon the issuance of a permit in accordance with the provisions of this section. A fee of four hundred eighty dollars shall accompany any application for a new well permit under this section; except that, if the application is for a monitoring well filed pursuant to paragraph (d) of subsection (1) of this section, the fee shall be one hundred ninety dollars. A fee of two hundred forty dollars shall accompany any application for a replacement well of the type described in subsection (1) of this section. (B) This sub-subparagraph (B) and sub-subparagraph (A) of this subparagraph (I) are repealed, effective July 1, 2006. (C) Effective July 1, 2006, wells of the type described in this section may be constructed only upon the issuance of a permit in accordance with the provisions of this section. A fee of one hundred dollars shall accompany any application for a new well permit under this section. A fee of sixty dollars shall accompany any application for a replacement well of the type described in subsection (1) of this section. (II) Notwithstanding the amount specified for any fee in subparagraph (I) of this paragraph (a), the commission by rule or as otherwise provided by law may reduce the amount of one or more of the fees if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of one or more of the fees is credited. After the uncommitted reserves of the fund are sufficiently reduced, the commission by rule or as otherwise provided by law may increase the amount of one or more of the fees as provided in section 24-75-402 (4), C.R.S. (b) Beginning on August 5, 1998, the state engineer shall not approve a permit for a small capacity well with an annual volume of use in excess of five acre-feet, unless the well is located in a ground water management district that has adopted rules that allow an annual volume in excess of five acre-feet. This limitation shall not apply to a replacement permit for a well where the original permit allows an annual volume of use in excess of five acre-feet or to a permit for a well covered by the provisions of subsection (4) of this section where the actual annual volume of use was in excess of five acre-feet. (c) If the application is made pursuant to this section for a well that will be located in a subdivision, as defined in section 30-28-101 (10), C.R.S., and approved on or after June 1, 1972, pursuant to article 28 of title 30, C.R.S., for which the water supply plan has not been recommended for approval by the state engineer, the cumulative effect of all such wells in the subdivision shall be considered in determining material injury, and the state engineer shall deny the application if it is determined that the proposed well will cause material injury to existing water rights. (d) (I) If any person wishes to replace an existing well of the type described in subsection (1) of this section, such person shall file an application pursuant to this subsection (3) for the construction of a well and shall state in such application such person's intent to abandon the existing well that is to be replaced. (II) If such a replacement well will not change the amount or type of use of water that can lawfully be made by means of the existing well, a permit to construct and use the replacement well shall be issued, and the existing well shall be abandoned within ninety days after the completion of the replacement well. (e) (I) (A) Wells for which permits have been granted or may be granted shall be constructed within two years after the permit is issued, which time may be extended for successive years at the discretion of the state engineer for good cause shown. Applicants for such an extension shall pay a two-hundred-dollar fee to the state engineer. (B) This subparagraph (I) is repealed, effective July 1, 2006. (II) Effective July 1, 2006, wells for which permits have been granted or may be granted shall be constructed within two years after the permit is issued, which time may be extended for successive years at the discretion of the state engineer for good cause shown. (4) (a) (I) (A) Any wells of the type described by this section that were put to beneficial use prior to May 8, 1972, and any wells that were used exclusively for monitoring and observation purposes prior to August 1, 1988, not of record in the office of the state engineer, may be recorded in that office upon written application, payment of a processing fee of three hundred forty dollars, and permit approval. The record shall include the date the water is claimed to have been first put to beneficial use. (B) This subparagraph (I) is repealed, effective July 1, 2006. (II) Effective July 1, 2006, any wells of the type described by this section that were put to beneficial use prior to May 8, 1972, and any wells that were used exclusively for monitoring and observation purposes prior to August 1, 1988, not of record in the office of the state engineer, may be recorded in that office upon written application, payment of a processing fee of one hundred dollars, and permit approval. The record shall include the date the water is claimed to have been first put to beneficial use. (b) Any owner of an existing well that was constructed prior to May 8, 1972, or has a well permit issued prior to January 1, 1996, under the provisions of this section, and that was put to beneficial use for watering livestock in a confined animal-feeding operation prior to January 1, 1996, and has been used for that purpose, may apply by December 31, 1999, to obtain a new permit for that well up to the extent of its beneficial use prior to January 1, 1996, for watering livestock in that commercial business pursuant to paragraph (c) of subsection (1) of this section. Such well shall be in addition to the one commercial business well allowed in paragraph (c) of subsection (1) of this section. Such an application shall include a sixty dollar filing fee and shall provide documentation of the annual volume of water put to beneficial use from the well. The state engineer shall have the authority to determine the adequacy of the submitted information for the purpose of approving completely, approving in part, or denying the application. Permits issued after January 1, 1996, up to August 5, 1998, shall remain valid thereafter according to the terms and conditions of those permits. (5) The state engineer shall act upon an application filed under this section within forty-five days after such filing and shall support the ruling with a written statement of the basis therefor. (6) (a) Any person aggrieved by a decision of the state engineer granting or denying an application under this section may request a hearing before the state engineer pursuant to section 24-4-104, C.R.S. The state engineer may, in the state engineer's discretion, have such hearings conducted before such agent as it may designate for a ruling in the matter. Any party who seeks to reverse or modify the ruling of the agent of the state engineer may file an appeal to the state engineer pursuant to section 24-4-105, C.R.S. (b) Any party aggrieved by a final decision of the state engineer granting or denying an application filed under this section may within thirty days after such decision file a petition for review with the district court in the county in which the well is located. Upon receipt of such petition, the designated ground water judge for the basin in which the well is located shall conduct such hearings, pursuant to section 24-4-106, C.R.S., as necessary to determine whether or not the decision of the state engineer shall be upheld. In any case in which the state engineer's decision is reversed, the judge shall order the state engineer to grant or deny the application, as such reversal may require, and may specify such terms and conditions as are appropriate. (7) The board of any ground water management district has the authority to adopt rules that further restrict the issuance of small capacity well permits. In addition, the board of any ground water management district has the authority to adopt rules that expand the acre-foot limitations for small capacity wells set forth in this section. However, in no event shall an annual volume of more than eighty acre-feet be allowed for any small capacity well. Rules adopted by the board may be instituted only after a public hearing. Notice of such hearing shall be published. Such notice shall state the time and place of the hearing and describe, in general terms, the rules proposed. Within sixty days after such hearing, the board shall announce the rules adopted and shall cause notice of such action to be published. In addition, the board shall mail, within five days after the adoption of the rules, a copy of the rules to the state engineer. Any party adversely affected or aggrieved by such a rule may, not later than thirty days after the last date of publication, initiate judicial review in accordance with the provisions of section 24-4-106, C.R.S.; except that venue for such judicial review shall be in the district court for the county in which the office of the ground water management district is located. smallcapstatutebackground.docRemediation of Ground Water Using Small Capacity Wells in the Designated Basins. Purpose: To protect public health, it is necessary to prevent contaminants from entering and migrating in ground water that is utilized for drinking, irrigation, stock watering and other beneficial uses. Remediation of ground water contaminants can be accomplished by utilizing wells that are constructed specifically for the removal of contaminants from an aquifer. The purpose of this legislation is to allow remediation projects to pump a limited amount of ground water in order to remediate this contaminated ground water. Currently, in areas where the ground water is over appropriated within the Designated Basins, a replacement plan would be required to allow withdrawal and consumption of this contaminated ground water. Because remediation of contaminated ground water would facilitate the beneficial use of this ground water, which may otherwise be unusable without remediation, it is proposed that the burden of finding and providing replacement water be lifted. Additionally, in areas where designated ground water is available for appropriation, publication and a longer review process is currently required before remediation wells can be issued, thus delaying the remediation of ground water contaminants and potentially allowing those contaminants to further migrate. Scope: Through the proposed language, it is intended that water removed for the purpose of remediation not be allowed for any uses other than those currently allowed under this section. This language would limit the potential for users to obtain water for other uses that are not allowed under this section under the guise of remediation. It is anticipated that remediation uses allowed under the proposed language would be for a limited duration because these remediation systems are typically only operated as long as necessary to achieve their remediation goals. It is proposed that the amount of ground water that may be withdrawn from a single remediation well be limited to the same amount that the other type of wells allowed under this section are limited. However, language is proposed that would allow a well field, rather than a single well, to extract contaminated ground water up to a maximum amount of 80 acre-ft for the entire project. This would allow flexibility in the design of an effective and efficient remediation system. To ensure that the goals of a remediation project are consistent with the intent of this statute, it is proposed that a state or federal approved remediation plan (i.e. corrective action plan, remedial action plan, etc.) must be submitted to qualify for remediation well(s). StaffReportNov04.doc STATE OF COLORADO GROUND WATER COMMISSION Division of Water Resources Department of Natural Resources 1313 Sherman Street, Room 818 Denver, Colorado 80203 Phone (303) 866-3581 FAX (303) 866-3589 Bill Owens Governor Russell George Executive Director, DNR Hal D. Simpson, P.E. Executive Director November 9, 2004 MEMORANDUM TO: Hal D. Simpson, Executive Director - Ground Water Commission FROM: Suzanne M. Sellers, Designated Basins Team SUBJECT: Staff Activity Report for August 1, 2004 through October 31, 2004 AGENDA ITEM # 9 Various activities performed during the last quarter are briefly described below. New and Replacement Applications Table 1 provides a breakdown, by basin, of permitting activity for the last quarter. The following permit activities were performed: Small capacity: 163 small-capacity well applications were received 129 small-capacity well permits were issued Large Capacity: 45 large-capacity well or Determination of Water Right applications were received 73 large-capacity well permits or Determination of Water Rights were issued Table 2 shows the current status of new and replacement permit applications for the large-capacity wells. Change Applications Table 3 provides the current status of the change applications. During the last quarter the following change application activities occurred: 15 new applications were received; 16 change applications were approved; and 37 applications are currently in different stages of processing, including 26 in initial processing, 6 in publication, and 5 in hearing as shown in Table 3. Final Permit Activities Below is a summary of the Final Permit Activity for the last quarter and a summary of the status of the Final Permit Project as a whole. Last quarter 42 final permits were issued in the Southern High Plains. Southern High Plains Final Permit Activity This Quarter Requests for SBUs* Permits Clarified Permits Published Final Permits Issued Misc. Contacts** 57 32 89 42 236 * This field tracks only the first request for a Statement of Beneficial Use (SBUs). ** This field tracks meetings with the irrigators, telephone conversations, second and third requests for SBUs and other correspondence such as corrections to a previously submitted statement, reminders to return an amended statement or a request for a change in ownership form. Final Permit Activity to Date Basin Total Number of Permits Total Final Permits Issued Percent Complete Upper Crow Creek 101 101 100% Northern High Plains 4369 4360 99.8% Lost Creek 302 292 97% Camp Creek 45 44 98% Upper Black Squirrel Creek 281 198 70% Southern High Plains 1255 104 8% Kiowa-Bijou 1100 0 0% Upper Big Sandy 127 0 0% Total 7582 5099 67% Objections/Hearings Pending hearing cases are listed in the Hearing Officer's report. The Staff took part in pre-hearing conferences and spent time trying to resolve or otherwise work on the hearing cases related to following applicants. The Gallegos Curtailment Request is currently in Weld County District Court and the Booker applications have been appealed to El Paso County District Court. Also the Hunker (UBSC Division Reapportionment) case is before the El Paso County District Court.