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was granted, and Cherokee filed a motion to dismiss for lack of jurisdiction which was denied. The District Court has not yet ruled on whether Cherokee may use the waste water as a replacement supply. Meridian moved to intervene but that motion was denied. </ cherokee metropolitan district Case No. 08-GW-78 09-GW-15</w:t></w:r></w Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Applications to change the type and place of use of wells. Objections were submitted by the District and other water users in the basin. Both cases were consolidated with 08GW71. Status: See above. edna farmer et al. Case No. 09-GW-02 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Subject: This case involves the determination of water right in the Laramie-Fox Hills aquifer. An objection was filed by Cherokee Metropolitan District. The applicant moved to consolidate this case with 08GW71, the replacement plan application by Cherokee and Meridian Service Metropolitan District, and09GW03, another application for determination of water right (discussed below). This motion was denied by the hearing officer. Status: The hearing officer will set the matter for a hearing. daniel and theresa farmer et al. Case No. 09-GW-03 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Subject: This case involves the determination of water right in the Laramie-Fox Hills aquifer. An objection was filed by Cherokee Metropolitan District. The applicant moved to consolidate this case with 08GW71, the replacement plan application by Cherokee and Meridian Service Metropolitan District, and 09GW02, another application for determination of water right (discussed above). This motion was denied by the hearing officer. Status: The hearing officer will set the matter for a hearing. Yokam land holdings, llc Case No. 09-GW-04 Designated Basin: Lost Creek Management District: None Before: Jody Grantham, Hearing Officer Attorney: Subject: An application for six new appropriations in the alluvial aquifer for irrigation and export for municipal purposes. An objection was filed by Morgan County Quality Water District, which has moved (with Staff’s consent) to stay the application pending the Commission’s consideration of its petition to amend Rule 5.2.5.2 so as to declare the Hay Gulch subdivision overappropriated. The applicant opposes the motion. The hea<ring officer granted a motion (consented to by all parties) by Lost Creek Land & Cattle Company, allowing it to intervene in the case. Status: Applicant has withdrawn the application based on the amended rule declaring the Hay Gulch portion of the basin in which the new appropriations would be located to be over-appropriated. meridian service metro district Case No. 09-GW-11 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for a change of water right. Two parties filed objections. Status: The hearing set for February 25 and 26, 2010 has been stayed because the water rights to be changed were for use in the replacement plan in 08GW71. The matter is stayed pending</ resolution of the motion for declaratory judgment in 98CW80. Lost Creek (Main stem) petition for rulemaking Case No. 09-GW-13 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Petition for rulemaking to amend Rule 5.2.5.2 to make the main stem of the Lost Creek Designated Basin overappropriated and to require replacement plans for new large capacity wells. Status: A fact finding hearing was held on September 13, 2010 in front of the Hearing Officer. The Hearing Officer received reports and information on the proposal. In addition to the petitioners Lost Creek Land & Cattle Company, Equus Farms, Inc., and the Lost Creek Ground Water Management District, requests for formal Party Status were received from Morgan County Quality Water District, PV Water III LLC, Sweetwater LLC, and Yokam Land Holdings, LLC. The last three listed parties did not participate in the Fact Finding hearing before the Hearing Officer. Yokam Land Holdings filed a notice that it would not participate in the oral argument rulemaking hearing before the Commission. On September 14, 2010 the Hearing Officer issued Findings of Fact which were supported by Lost Creek Equus, the District and Staff. The matter will go before the Ground Water Commission at the November 19, 2010 meeting. upper big sandy petition for rulemaking Case No. 09-GW-29 Designated Basin: Upper Big Sandy Management District: Upper Big Sandy Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Petition for rulemaking to amend Rules 5.2.7.1 and 5.2.7.2 to define the extent of the alluvial aquifer and determine the alluvial aquifer within the basin is overappropriated and require replacement plans for new large capacity wells. Status: The unopposed petition went before the Commission at the August 20, 2010 meeting. The Commission ordered that rule be changed so that the Upper Big Sandy is considered <overappropriated and replacement plans are required for any new large capacity well. Northern colorado water association Case No. 09-GW-14 Proposed Designated Basin: Upper Spring Creek Management District: Before: Jody Grantham, Hearing Officer Attorney: Scott Steinbrecher Subject: Petition to form new designated basin filed by the owners of several wells located just west of I-25 and south of the Colorado-Wyoming border. Fort Collins has objected to the petition largely due to the fact that they own the majority of the land within the proposed designated basin. Status: Due to a joint motion by the petitioner and objector Fort Collins the hearing in front of the Hearing Officer in this matter that had been scheduled for January 4-11, 2011 has been vacated and will be re-set. 6 5 Enforcement Items and ActionsNOv.docx Enforcement Items and Actions Enforcement actions performed by staff this quarter are summarized below NORTHERN HIGH PLAINS Plains GWMD: Cynthia Halde was found to be in violation of her final permits, commingling two irrigation wells without first obtaining approval from the Ground Water Commission. A show cause letter was sent out to Mrs. Halde, and she responded by signing a Well Permit Compliance Notice, agreeing to use the wells for only the uses allowed under their respective final permits. Staff plans to perform a field inspection in the coming spring to ensure compliance. W-Y GWMD It was discovered that Yuma Ethanol has been using a small capacity commercial well without installing a totalizing flow meter as required by the permit. A show cause letter has been sent to Yuma Ethanol and we are awaiting their response. Arikaree GWMD Last quarter staff reported that we had discovered six irrigation wells in violation of their permits, irrigating illegally expanded acres. Show cause letters were sent to the owners of these wells, and we received responses from all of them. Each well owner has agreed to operate in compliance with their Final Permits, and each owner has signed a Well Permit Compliance Notice to that effect. Some of the land areas associated with the irrigation wells will be required to have permanent stops in the fields to ensure the illegal irrigation of expanded acres does not continue. We will be field inspecting all six wells in the coming spring to ensure compliance with the final permits. The enforcement action involving Robert Boyd’s illegally expanded acres has yet to be resolved. The Arikaree district believes that Mr. Boyd’s rotation of acres operation is not in violation of the final permit, however staff believes otherwise, and addressed the violation in a show cause letter. Members of the staff attended the Arikaree GWMD Board meeting in October to discuss enforcement actions in their district, and a significant amount of time was spent on the Boyd enforcement action. Staff presented their evaluation of the matter and stated that at this time our office believes the well is irrigating illegally expanded acres. Mr. Boyd, Rod Mason (the district manager), and Dave Taussig (the district’s attorney) requested a meeting with staff to discuss the matter further. It was requested that staff arrange the meeting, which we have attempted to do without response. We will make one more attempt to arrange this meeting before proceeding with Cease and Desist orders. UPPER BLACK SQUIRREL CREEK Upper Black Squirrel Creek GWMD Last quarter our office worked on an enforcement action involving a large capacity well owned by Dean Goss. It was believed that the well was using more water than allowed by the Final Permit. A show cause letter was sent to Mr. Goss and the violation was verified. Staff is currently working with Mr. Goss to ensure that the well is used in compliance with its permit. It was reported that Travis Amendt was using a small capacity well to fill a pond on his property. A show cause letter was sent to Mr. Amendt and he responded, claiming the well is not used for those purposes. He signed a Well Permit Compliance Notice, agreeing to use the well for only the uses allowed under the permit. Staff plans to perform a field inspection in the coming spring to ensure compliance. KIOWA BIJOU Shayne Schultz was discovered to be in violation of his domestic well permit, using the well for small capacity commercial uses. Mr. Schultz has been contacted, and he has agreed to use the well for domestic purposes only. A field inspection will be performed in the coming spring to verify compliance. It was reported that William Thomas was using an irrigation well with a cancelled well permit. A field inspection was performed, and it was determined that well has been abandoned and it is not in use. The enforcement action has been closed. It was reported that Nancy Herter and Richard Huffsmith have been using a commercial well for irrigation purposes without a permit. The owners have been contacted and we are awaiting their response. </ North Kiowa Bijou GWMD: Last quarter staff worked on an enforcement action involving a number of cancelled irrigation well permits owned by Freund Investments. The Ground Water Commission previously ordered the wells to be plugged and abandoned and cancelled, however the wells continued to be used and false abandonment reports were submitted to our office. A show cause letter was sent to Freund Investments and they agreed to properly plug and abandon the wells and cease their use. Staff plans to verify the plugging and abandonment of these wells in the first week of November. Pauls Development East LLC has been operating large capacity wells without first meeting the well administration requirements outlined in their Change of Use Findings and Orders. Water measurement devices have not been installed on the wells, and they are currently not under contract with a 3rd party for the meter administration. A show cause has been sent out and we are waiting for a response. On September 21, 2010, a field inspection was performed to address some potential violations of two large capacity wells owned by Dale Arnold. Multiple violations were discovered during this inspection, and staff is currently drawing up an enforcement letter. HO_Report2010-11-19.pdf MinutesOf2010-08_draft.docxMINUTES MINUTES THIRD QUARTERLY MEETING COLORADO GROUND WATER COMMISSION AUGUST 20, 2010 The Third Quarterly Meeting of the Colorado Ground Water Commission took place on August 21, 2009, at Castle Rock Town Hall, 100 N Wilcox, Castle Rock, Colorado. Chairman Dennis Coryell called the meeting to order at 10:00 a.m. Mr. Rick Nielsen called the roll and determined that a quorum was present. Commission members present were Carolyn Burr, Dennis Coryell, Corey Huwa, Earnest Mikita, George Schubert, Max Smith, Virgil Valdez, Mike King, Dick Wolfe and Jennifer Gimbel. Staff members present were Kevin Rein, Keith Vander Horst, Rick Nielsen, Chris Grimes, Jay Bloomfield, Justina Farris, Ivan Franco, David Keeler, and Tracy Kosloff. Also present were Jody Grantham, Hearing Officer, Pat Kowaleski, A.G. for the Commission and Devin Odell, A.G. for staff. Review and Approval of Agenda Items, Agenda item no. 7 was removed from the agenda at the request of the petitioner. Approval of Minutes for Meeting of May 21, 2010, Chairman Coryell asked if there were any corrections or additions to the minutes. There being none<, Commissioner Burr moved to approve the minutes as presented. Commissioner King seconded the motion which carried unanimously. Report of the Executive Director by Dick Wolfe Mr. Wolfe restricted his comments to matters of the Republican River Basin. <He advised the Commission that after three days of presentation, at the compact compliance pipeline arbitration hearing held in mid-July, the arbiter is fully advised of Colorado’s position. The hearing went so well that direct settlement negotiations with Kansas have been resumed. Mr. Wolfe further advised the Commission that changes to the model and accounting procedures proposed by Colorado at the Republican River Compact meeting in Burlington had been approved by the Commissioners. Chairman Coryell called for agenda item no. 5, being a hearing on a petition by the Upper Big Sandy Ground Water Management District to amend Rules 5.2.7.1 and 5.2.7.2 of the Rules and Regulations for the Management and Control of Designated Ground Water to define the extent of the Alluvial Aquifer of the Upper Big Sandy Designated Ground Water Basin, to identify such basin as overappropriated, and to require replacement plans for new large capacity wells in such basin, Case no. 09-GW-29. Mr. Scott Krobb, attorney for the District addressed the Commission. He first provided the Commission with a synopsis of the history of the petition and how it got to them. Mr. Krobb informed the commission that there were no requests for party status at the hearing and that the petition they have in front of them is the result of collaboration with staff. He concluded by <referencing a few paragraphs of the Hearing Officer’s favorable decision and asking the Commission to grant the petition. Mr. Keith Vander Horst, speaking for staff, addressed the Commission. He stated that the report given by Mr. Krobb was accurate and complete. Mr. Vander Horst said that staff agrees with the decision of the Hearing Officer and supports the rule change. There were no public comments and the hearing was closed. Commissioner Burr moved to amend Rules 5.2.7.1 and 5.2.7.2 in accordance with the language contained in the Hearing Officer’s Finding of Fact in Case no. 09-GW-29. Commissioner Huwa seconded the motion which carried unanimously. Chairman Coryell called for agenda item no. 6, being a hearing of an appeal by Cherokee Metropolitan District to the Hearing Officer’s Findings of Fact, Conclusions of Law and Initial Decision regarding applications for Determinations of Water Rights to ground water from the Laramie-Fox Hills, Arapahoe, and Denver Aquifers. Case nos. 05-GW-15, 16, & 17. Commissioner Burr advised the Commission that Cherokee Metropolitan District had retained her legal firm to represent them. She said that she is not involved in the matters before the Commission and that she believes that she can fairly consider said matters and sees no reason to recuse herself. Ms. Marty Phillips Whitmore, attorney representing Cherokee, provided a background for the case and subject matter on appeal before the Commission. Ms. Whitmore advised the Commission that Cherokee does not dispute any of the facts identified in the initial decision of the Hearing Officer. She agreed with the Hearing Officer about what is in question, did the land owner’s, in the leases, give their consent to use the Denver Basin aquifers? Ms. Whitmore read paragraphs 10 & 14, from the supplemental lease, which describe the rights being leased and defining the type of water covered, leading to the question of intent. Ms. Whitmore argued the applicability of the Chatfield East case being cited by the Hearing Officer and determined that it supported her position. She closed stating that the leases were clear, all water was leased and asked the Commission to overrule the Hearing Officer’s decision. Mr. Matthew Spangler, representing twenty (20) objectors in this matter addressed the Commission. He opened saying that the Hearing Officer’s decision should be upheld based on the plain language, the finding of evidentiary fact and the application of the Chatfield East and Bayou Land Company cases. Mr. <Spangler then provided the Commission with a history of the development of the water rights in question and the Court Case granting the water right mentioned in the leases. In closing, Mr. <Spangler cited the ruling in the Bayou Land Company case which states that any conveyance instrument which severs the right to withdraw nontributary groundwater must be explicit terms. Mr. Tim Beaton, attorney for the Booker and King families addressed the Commission. He reminded the Commission that Cherokee does not contest the factual determinations of the Hearing Officer. In discussing the leases, Mr. Beaton noted that the associated engineering report referred to alluvial groundwater, not bedrock water and that the leases are controlled by the specific language in the supplemental lease which states that the waters subject to the lease have been adjudicated. Next, Mr. Beaton addressed the intent of the landowners at the time they signed the leases. He stated that his client, Mr. Booker, testified that the lessors understood they were granting an alluvial project and that they were not aware of the bedrock aquifer. He <closed questioning why Cherokee took fifty years to claim the Denver Basin Water. The Commissioners proceeded to ask the attorneys questions on their testimony. Ms. Jen Mele, attorney for staff addressed the Commission. Staff’s position is consistent with that presented by Mr. Spangler and Mr. Beaton and that the Hearing Officer’s decision should be upheld. She said that the leases are not ambiguous and if they are the record supports the Hearing Officer’s decision. Staff also believes that Cherokee needs clear consent from the landowners for the bedrock water. Commissioner Huwa questioned if in 1955 there was knowledge of the Denver Basin. Mr. Keith Vander Horst stated that geologists and a few well drillers were aware of the Denver Basin aquifers but general knowledge would not have been around. In rebuttal testimony Ms. Whitmore agreed that the supplemental leases control. She directed the Commissioners to paragraph 6 specifically noting the wording “without regard to the specific location or depth from which the water might be extracted”. Ms. Whitmore restated that paragraph14 was not required if the only water being discussed in the lease is that water that had been adjudicated. She also reaffirmed her testimony that the Commission should look at the “four corners” of the lease and not attempt to discern the intent of the parties, as ruled in the Chatfield East case. The hearing was closed and the Commission deliberated the matter. Commissioner Huwa moved to affirm the Hearing Officer’s decision. Commissioner Schubert seconded the motion. By roll call, the vote was unanimous and the motion passed. Chairman Coryell called for agenda item no. 8, the staff report by Mr. Keith Vander Horst. Mr. Vander Horst began his report by introducing two new team members to the Commission. The primary duties of Ms. Tracy Kosloff and Mr. Ivan Franco are to process final permits. He continued with a review of the activity report as presented. Mr. Vander Horst advised the Commission that the Gallegos case, 03-GW-06, to de-designate portions of the Upper Crow Creek Designated Basin has been returned to the Commission for action. He <informed the Commissioners that based on complaints, show cause letters have been sent to several land owners in the Northern High Plains, Upper Black Squirrel and Kiowa-Bijou Basins. Mr. Vander Horst closed his report with updates on the Lost Creek and Spring Creek petitions. Mr. Vander Horst next addressed the Commission regarding the matter of the issuance of Determinations of Water Rights that allow export outside of the Management District in apparent violation of District Rules. There was extensive discussion regarding <the proper handling of applications for a Determination of Water Right that includes export outside of the District. It was decided that a working group of District representatives and staff should collaborate on a procedural policy or rule.< Chairman Coryell called for agenda item no. 9, the Attorney General’s report. Ms. Jen Mele informed the Commission that the Supreme Court decided that the District Water Court has jurisdiction in the matter of the application by Cherokee to use their effluent as a source of replacement water in their pending replacement plan. She concluded by informing the Commission that the objector in the rule change for the Lost Creek main stem does not plan to participate in the hearing on September 13th. Chairman Coryell called for agenda item no. 10, Management District Reports Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, reported that his districts had received a lot of rain, six (6) inches at his house. The dry land corn looks very good. He reports that about half of the chemigation inspections have been completed and there are only four (4) minor violations. He expressed appreciation for releases of water from Bonnie Reservoir and the attendance of Mr. Wolfe at a District meeting on August 4th. His districts continue to watch the arbitration process and discuss conservation. Ms. Deb Daniel, reporting for the W-Y GWMD reported that chemigation inspections continue and all have passed. With around 9 inches of rain in July the dry land corn looks as if it is irrigated. Irrigators are going to start shutting off their wells in two weeks. There was no report for the Arikaree GWMD. Mrs. Deb Daniel reporting for the Plains and East Cheyenne GWMD’s, reported that everything is green with the great moisture, just over sixteen (16) inches in the Plains District and a little over fourteen (14) inches in the East Cheyenne District. There was an extremely good wheat harvest, probably record setting, and you can’t tell the difference between dry land and irrigated corn. Ms. Daniel attended the Ground Water Management District Association conference in Arkansas. The focus was irrigation system efficiencies. Arkansas and Mississippi, which receive 60 to 70 inches of rain a year, reported depleting their groundwater. Texas reported they have started installing totalizing flow meters at district expense. She reported that the Republican River Water Sustainability Coalition is seeking funding and looking for conservation practices. She thanked Mr. Wolfe for hosting the Republican River Compact Administration work session and meeting in the basin, noting that the other states do not. Ms. Daniel said that she continues the chemigation inspections and well testing. She reported that East Cheyenne District has adopted their measurement rules. The flow meters are being installed and verified on a continuing basis. Ms. Daniel reported that the Plains Board attended a field tour at the irrigation research foundation, sponsored by Fontinell and Aqua-view. Aqua-view is a company that deals in moisture monitoring systems. These systems measure the soil moisture up to a depth of 4 feet, allowing producers to more closely monitor moisture and nutrient application for their crops. One irrigator that Ms. Daniel spoke with estimated that he will save six (6) inches of water on the field that he has the system installed on. The system manufacturer says that they have documentation demonstrating savings of $4,000 to $5,000 in production costs per circle. Mr. Max Smith reporting for the Southern High Plains GWMD stated the buffalo grass is still green, a first. He also said that a person can tell the difference between dry land corn and irrigated corn, if you looked closely. He closed with saying that there is a lot of winter wheat land being fertilized. There was no report for the North Kiowa Bijou GWMD. There was no report for the Upper Black Squirrel GWMD. < Mr. Dave Tausig reporting for the Upper Big Sandy GWMD, thanked the Commission for amending the Rules. He commented on what the District had done to keep the District from going into a terrible decline situation: the water balance study, close the Basin to new wells unless there was a replacement plan and to revise their rules. He notified the Commission that the Town of Limon is challenging their export rules. Mr. Tausig closed by reporting on the hit and miss rainfall. Mr. Tom Souter reporting for the Lost Creek GWMD, said that there had been a widespread and severe hailstorm in the Prospect Valley area that did a lot of damage. He said that the District is preparing for the November meeting and the hearing on closing the main stem. Mr. Stan Murphy reporting for the Republican River Water Conservation District, noted that the District is anxiously awaiting the arbiters decision on the pipeline. He informed the Commission that the District continues to purchase surface water rights on the South Fork just below Bonnie Reservoir. Mr. Murphy said that the CREP program is being amended to allow Lincoln and Washington Counties into the program. He also said that after two years of study it was determined that well owners closer to the Arikaree River will also be allowed the higher rate for river proximity. The modified CREP program will use the years 2002 thru 2007 as the crop year. They are also attempting to get the wells in the pipeline well field enrolled into the CREP program and still use them for the pipeline. Mr. Murphy concluded his report stating that he has begun field inspections to verify for Kansas and Nebraska that retired fields are no longer irrigated. He noted that it will be difficult to explain to them why the dry land corn looks irrigated. Commissioner Coryell asked when numbers would be available regarding the volume of water pumped and how that relates to compact requirements and how that will go on as an annual process. Mr. Chris Grimes responded that he believed it would be a year before all of the records would be verified and an accurate number reached. Thereafter, with anticipated changes to the data system, annual reports on the volume of water pumped could be available almost immediately. Chairman Coryell, Commissioner Wolfe, Mr. Grimes and Mr. Keeler </continued to discuss administrative and logistical difficulties for the base year of 2009 and their expectations going forward. Chairman Coryell called for agenda item no. 11, old business. There was none. Chairman Coryell called for agenda item no. 12, new business. Mr. Stan Murphy advised the Commission that it was time to appoint a representative to the RRWCD for a three (3) year term. Commissioner Bledsoe nominated Commissioner Coryell. Commissioner Gimbel seconded the nomination which passed unanimously on voice vote. Chairman Coryell called for agenda item no. 16, public comment. Mr. Jody Grantham, Hearing Officer introduced Ms. Nicholle (Nikki) Rainey his Administrative Assistant to the Commission. There being no further business the meeting adjourned. Respectfully submitted, Richard A Nielsen, P.E. Secretary to the Ground Water Commission Ground Water Commission Meeting MinutesPage 3 August 20, 2010 MinutesOf2010-08_draft.pdf PacketMemo2010Nov.docx </w:t></w:r><w:r><w:rPr><w:rFonts w:ascii="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 </w:t></w:r></w:p><w:p w:rsidR="00707 FAX (303) 866-3589 Bill Ritter, Jr. Governor Mike King Executive Director, DNR Dick Wolfe, P.E. Executive Director November 9, 2010 MEMORANDUM TO: Ground Water Commission Members FROM: Keith Vander Horst, Designated Basins Team