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the pumping equipment therefor, by the drilling of a replacement well, or otherwise, in order to make it possible for the owner of a well to obtain the water to which such owner may <br /> be entitled by virtue of his original appropriation. <br />(d) In the exercise of any of the powers or duties conferred by this section, to confer and consult with the board of directors of the ground water management district board in the affected <br /> area, if any such board exists, before promulgating any orders or regulations which would affect the district in general; <br />(e) To order the total or partial discontinuance of any diversion within a ground water basin to the extent the water being diverted is not necessary for application to a beneficial <br /> use; <br />(f) In any area where a ground water management district has not been formed, to prescribe satisfactory and economical measuring methods for the measurement of water levels in and the <br /> amount of water withdrawn from wells and to require reports to be made at the end of each pumping season showing the date and water level at the beginning of the pumping season, the <br /> date and water level at the end of the pumping season, and showing any period of more than thirty days' cessation of pumping during such pumping season; <br />(g) Upon application therefor by any permit holder, to authorize a change in acreage served, volume of appropriation, place, time, or type of use of and by any water right, or of any <br /> well location, either conditional or final, granted under the authority of the commission but only upon such terms and conditions as will not cause material injury to the vested rights <br /> of other appropriators. No such change that increases the volume of appropriation beyond that authorized by the original decree, conditional permit, registration statement, or other <br /> well permit issued prior to basin designation shall be authorized, and no such change shall be approved until after publication of such application as provided in section 37-90-112; <br /> except that publication shall not be required to approve a temporary change pursuant to the rules adopted by the commission and except that publication shall not be required for replacement <br /> wells that are relocated no further than the maximum distance allowed by district rules and regulations without prior board approval or by commission policy where no district exists <br /> or where no district rule has been adopted. <br />(h) To adopt rules necessary to carry out the provisions of this article. <br />(2) No supplemental wells or alternate point of diversion wells shall be allowed in any area of any designated ground water basin in which the proposed well or wells combined would deplete <br /> the aquifer in excess of the rate of depletion prescribed by the ground water commission or by the ground water management district rules and regulations. <br />(3) In the exercise of any of the powers or duties conferred by this section, the commission shall confer and consult with the board of directors of the ground water management district <br /> board in the affected areas, if any such board exists, before promulgating any orders or regulations which would affect the district in general, and shall request written recommendations <br /> from the board of any existing district within which the conditional or final permit has been issued, before taking final action on any request or application made pursuant to this <br /> section. <br />(4) In any area within a designated ground water basin which has not been included within the boundaries of a ground water management district, the commission has the authority to exercise <br /> any power given by this article to the board of directors of a ground water management district, but, before instituting control measures pursuant to section 37-90-130, the commission <br /> shall follow the procedures set out in section 37-90-131. <br />(5) Notwithstanding any other provision of this article, the commission shall allocate, upon the basis of ownership of the overlying land, any designated ground water contained in the <br /> Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers. Permits issued pursuant to this subsection (5) shall allow withdrawals on the basis of an aquifer life of one hundred years. <br />History <br />37-90-111.5 Enforcement - injunction. <br />Statute text <br />(1) (a) In the event THAT an order of the commission or the state engineer issued pursuant to sections 37-90-105, 37-90-110, 37-90-111, 37-90-137 is not complied with, the commission <br /> or the state engineer in the name of the people of the state of Colorado, through the attorney general, shall apply to the district court with jurisdiction over a particular DESIGNATED <br /> basin for an injunction enjoining the person to whom such order was directed from continuing to violate the same. The term "injunction" includes mandatory relief. <br />(b) In such proceeding, if the district court upholds the order of the comission or state engineer, the person against whom such order was issued shall pay the costs of the proceeding, <br /> including the allowance of reasonable attorney fees. <br /> (2) In the case of an order with respect to the withdrawal of designated ground water, the judge in ruling upon such injunction shall consider, depending on the basis for the order, <br /> whether the water is being applied to a beneficial use and whether the withdrawal is causing or will cause injury to persons owning or entitled to use water under vested water rights. <br />(3) Any person who has an interest in the subject matter of such proceedings may intervene, if such intervention is timely and will not cause undue delay. <br />(4) In the case of a violation of an injunction issued under the provisions of this section, the judge shall try and punish the offender for contempt of court. <br />(5) Such proceedings shall be in addition to, and not in lieu of, any other penalties and remedies, public or private, provided by law. <br />(6) (a) Any person who diverts ground water contrary to a valid order of the commission or state engineer issued pursuant to sections 37-90-105, 37-90-110, 37-90-111, AND 37-90-137 or <br /> in violation of rules and regulations adopted by the commission or state engineer, shall forfeit and pay a sum not to exceed five hundred dollars for each day such violation continues. <br />(b) Any person who, when required to do so by rules and regulations adopted by the commission or state engineer, fails to submit data as to the amounts of water pumped from a well, makes <br /> a false or fictitious report of the amounts of water pumped from a well, falsifies any data as to amounts pumped from a well, makes a false or fictitious report of a power coefficient <br /> for a well, or falsifies any power coefficient test shall forfeit and pay a sum not to exceed five hundred dollars for each violation. <br />(c) It is unlawful for any person not authorized by the well owner, the commission or state engineer to willfully interfere with any power meter, totalizing flow meter, or other device <br /> used to measure ground water diversions. Any person who willfully injures or destroys a power meter, totalizing flow meter, or other device used to measure ground water diversions or <br /> who tampers with or falsifies any record made or being made by any such power meter, totalizing flow meter, or other device shall forfeit and pay a sum not to exceed five hundred dollars <br /> for each violation. <br />(d) Any fine collected for violations of the provisions of this subsection (6) shall be transmitted to the STATE TREASURER, WHO SHALL DEPOSIT THEM IN THE WELL ENFORCEMENT CASH FUND, <br /> WHICH FUND IS HEREBY CREATED IN THE STATE TREASURY. alL MONIES CREDITED TO THE FUND AND UNEXPENDED AT THE END OF ANY GIVEN FISCAL YEAR SHALL REMAIN IN THE FUND AND SHALL NOT REVERT <br /> TO THE GENERAL FUND. aLL INTEREST EARNED ON THE INVESTMENT OF MONEYS IN THE FUND SHALL BE CREDITED TO THE FUND. mONEYS IN THE FUND SHALL BE APPROPRIATED SOLELY TO THE DIVISION OF <br /> WATER RESOURCES FOR COSTS ASSOCIATED WITH THE INVESTIGATION AND ENFORCEMENT OF VIOLATIONS OF ORDERS ISSUED BY THE STATE ENGINEER OR THE COMMISSION FOR THE ILLEGAL WITHDRAWAL OF GROUND <br /> WATER, INCULIDING COSTS ASSOCIATED WITH THE IMPLEMENTAION OF THIS SECTION. <br />(1) tHE STATE ENGINEER IS EMPOWERED TO ADOPT RULES NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SUBSECTION. <br />(e) The commission or state engineer in the name of the people of the state of Colorado, through the attorney general, shall apply to the district court judge of the particular COUNTY <br /> WHERE THE ORDER WAS ISSUED to recover the civil penalties specified in paragraphs (a), (b), and (c) of this subsection (6) or for a temporary restraining order, preliminary injunction, <br /> or permanent injunction, as appropriate, enjoining further violations of this subsection (6). If the commission or state engineer prevail, the court shall also award the costs of the <br /> proceeding including the allowance of reasonable attorney fees. <br />(7) Any person required by a valid order of the commission or the state engineer, or by existing rules of the commission or state engineer, to replace depletions caused by diversions <br /> of ground water and whose failure to replace such depletions results in the violation of an interstate compact shall be liable for all direct, actual, and necessary expenses incurred <br /> by the state of Colorado in performing any action, including the purchase of water or payment of damages, necessary for the state of Colorado to remedy the violation of such compact. <br /> The commssion or state engineer in the name of the people of the state of Colorado, through the attorney general, shall apply to the district judge of the particular designated basin <br /> to recover such expenses. If the commisison or the state engineer prevail, the court shall also award the costs of the proceeding including the allowance of reasonable attorney fees. <br /> See Colo. Rev. Stat. § 37-90-104 (2002). <br /> See Commission Resolution 1983, reaffirmed 1992. <br /> <br /> <br /> <br />Minutes-3rd '03.doc <br />MINUTES <br /> <br /> THIRD QUARTERLY MEETING <br /> COLORADO GROUND WATER COMMISSION <br /> <br /> AUGUST 15, 2003 <br /> <br /> <br />The Third Quarterly Meeting of the Colorado Ground Water Commission took place on August 15, 2003, at the Comfort Inn, Gunnison, Colorado. Chairman Earnest Mikita called the meeting <br /> to order at 8:30 a.m. Marta Ahrens called the roll and determined that a quorum was present. Commission members present were Eugene Bauerle, Larry Clever, Dennis Coryell, Ralph Curtis, <br /> Richard Huwa, Robert Loose, Max Smith, and Hal Simpson. Commissioner Frank Jaeger and Ex-Officio members Kent Holsinger and Ted Kowalski were absent. <br /> <br />Review and Approval of Agenda Items - Mr. Simpson recommended that Item 8, Motion for reconsideration of May 16, 2003 Commission decision concerning the petition for reinstatement of <br /> a well permit no. 11744-FP owned by Steve and Ronda Hayes, be deleted from the agenda and to deal with it at the next meeting. <br /> <br />Approval of Minutes for Meeting of May 16, 2003 - Chairman Mikita asked if there were any corrections or additions to the Minutes of the May 16, 2003 meeting. Commissioner Coryell moved <br /> to accept the Minutes; the motion was seconded by Commissioner Smith and carried unanimously. <br /> <br />Report of the Executive Director by Hal Simpson – Mr. Simpson suggested sending a letter of appreciation, on behalf of the Ground Water Commission, to the local representative of the <br /> Bureau of Reclamation thanking him for the informative tour of Morrow Point Dam. Mr. Simpson summarized the correlation between the Aspinall Unit’s three dams and the Colorado River <br /> Compact entitlement. The project can provide for consumptive use in Colorado up to 250,000 acre-feet of water per year with some water released for mitigation for endangered species, <br /> and is an important component for Colorado’s ability to use it’s unused compact entitlements. Of the 15 million acre-feet of water presumed to be available from the Colorado River <br /> Compact, Colorado is entitled to 51.75 percent of the 7.5 million acre-feet of the upper basin’s entitlement. This is about 3.8 million acre-feet of water, which is not fully being <br /> utilized, and two studies are currently underway to potentially bring additional water to the front range to deal with growing demands. <br /> <br />Mr. Simpson reported on Federal Senate Bill 212, of which a copy was included in the packets. This bill was passed in Senate and they are currently looking for house sponsors to authorize <br /> additional studies of the Ogallala aquifer by the federal government and other state agencies. A special panel would be created to authorize additional data collection and models to <br /> understand how this aquifer could be managed better. They are looking for sponsors from eight states, and the lead sponsor will be a representative from Kansas. Mr. Simpson recommended <br /> that if the Commission Members feel this is important legislation, to contact Representative Musgrave in the U.S. Congress, to consider being a sponsor. <br /> <br />Mr. Simpson reported on the Colorado State Fair and stated that the Commission Members, along with Legislators, are invited to attend the luncheon on August 22. He encouraged the Commissioners <br /> to attend this luncheon and tour the water exhibit depicting the hydrologic cycle. <br /> <br />Mr. Simpson reported on a special study called the Core Mission project that began the first of July. The Department of Natural Resources decided to study how the Department can become <br /> more efficient and more effective and brought in an outside consultant. The staff has invested numerous hours with very tight timelines and will come forth with suggestions on how <br /> to operate more efficiently by the end of September. A possible outcome would be to combine the Division of Water Resources with the Colorado Water Conservation Board and to look at <br /> whether this makes sense or saves money. Mr. Simpson stated that the Commission may be involved with giving their recommendation of whether they support some of these ideas or not. <br /> <br />With regard to the Arkansas River Compact litigation, the Special Master has not issued his report, but intends to have a draft report sometime this month that will, hopefully, show <br /> that Colorado is in compliance with the compact. <br /> <br />Discussion and presentation on the Republican River Compact settlement by Ken Knox Mr. Knox reported on the parallel efforts between the three states that have occurred since the last <br /> meeting. One component was to assess the impacts on terracing and non-federal reservoirs. The intent is to provide the compact administration a scope of work for a detailed study <br /> that will be conducted. Another component is the completion of the ground water model that was scheduled to be delivered to the court on June 30 of this year. The model was a success <br /> for Colorado. The model showed that in the year 2000, Colorado was approximately 4,000 acre-feet out of compliance, which was compounded by the drought and lack of streamflow. In-house <br /> analysis is being done to project what the future will look like by looking at data from previous years. Mr. Knox stated that the Republican River Compact meeting will be held on August <br /> 21-22 in Alma, Nebraska. Mr. Simpson added that all three states in certain areas are out of compliance based on the model. <br /> <br />Discussion on a possible moratorium on the issuance of all new well permits within the Northern High Plains Designated Basin by Bill Fronczak – Mr. Fronczak reported that his intent <br /> is for this agenda item is for the Commission to look into possibly changing Rule 5.2.2 regarding the three-mile circle evaluation. He stated that new wells compound the problem of <br /> depletions in the Northern High Plains Designated Basin, which could impair Colorado’s compliance with the Republican River Compact. Discussion ensued on whether this rule should be <br /> changed or to leave the rule alone and continue with the three-mile circle. Commissioner Coryell asked whether new appropriations in this area would reflect additional depletions from <br /> the Republican River Compact. Mr. Knox proposed to enter hypothetical numbers into the model and bring it to the November meeting. Commissioner Smith agreed with Mr. Knox’s suggestion, <br /> provide the information to the districts, and then bring it back to the Commission for discussion. <br /> <br />Discussion and decision on the processing of changes of water rights in designated basins where ground water is available for appropriation by Bill Fronczak. Mr. Fronczak reported <br /> that this issue is affecting their analysis and final permitting activities in various basins, particularly in the Southern High Plains. There are four basins where designated ground <br /> water is still available for appropriation. The issue is how to change or expand the consumptive use of existing wells within said basins without causing material injury to other vested <br /> water rights. Mr. Fronczak stated that staff is considering looking at change of water rights cases where there is no increase in the original well permit’s annual withdrawal and limiting <br /> the said well to the original permitted amount, and not the currently required average annual historic consumptive use. It is thought that this would not require a rule change, but <br /> a policy declaration allowing the staff to look at the change of water right applications and not strictly apply a straight historical consumptive use analysis. Mr. Fronczak proposed <br /> to put together a resolution or document for the Commission to sign at the November meeting to continue with the current rules. <br /> <br />Commissioner Smith stated that, as far as the Southern High Plains is concerned, in the majority where there is expanded acres, it was done years ago. If there was going to be any material <br /> injury, it would have been going on for quite some time, and no complaints have been brought to his attention. <br /> <br />Mr. Mike Shimmin, attorney, stated that this is a potentially very complicated issue because of the potential for it to affect priority dates of water rights. It’s just a matter of <br /> time until every designated basin faces the issue of what does the modified prior appropriation system really mean. He stated that expanding the use of existing wells without assigning <br /> them a junior water right and a priority date when they can be administered within the modified appropriation system is a complicated issue. Mr. Shimmin suggested that if staff wants <br /> to pursue this, it is important to get a draft out for review and comment by the districts and let them know what areas this applies to and how it fits into a priority system. <br /> <br />Mr. Fronczak stated that the new use (the expansion) would be the date on the new application, the original water right is not affected. Chairman Mikita suggested that the staff put <br /> together packets and make it available to the districts and present it at the November meeting. In addition, Mr. Fronczak will provide a draft to allow grandfather provisions where <br /> permits are completed in multiple wells. <br /> <br />Appeal of the decision of the Hearing Officer in the matter of the petition for appeal of action of the State Engineer and the Colorado Ground Water Commission causing injury to senior <br /> water rights of Gallegos, et al., located in the Upper Crow Creek Designated Ground Water Basin, Weld County (Case No. 03-GW-06) by Tim Buchanan – Chairman Mikita called the hearing <br /> to order. Mr. Pat Kowaleski, Assistant Attorney General, was Conflicts Counsel representing the Commission. The following persons addressed the Commission: <br /> <br />Mr. Tim Buchanan, represented the Gallegos family on this appeal. He stated that this issue arises out of the issue regarding priority of appropriation and the rights attributable to <br /> the rights of prior appropriation. The Gallegos family has a vested water right in the Upper Crow Creek Basin that is entitled to protection by Colorado water law and the Commission. <br /> The basis for this appeal was a similar case in the Supreme Court appeal in the Pioneer Irrigation case. It is their position that the Commission has jurisdiction over the designated <br /> basin wells and must regulate those wells in accordance with the Ground Water Management Act. They request that the Commission and the State Engineer order curtailment or regulation <br /> of the wells in order to insure adequate water supplies owned by the Gallegos family in the Upper Crow Creek Designated Basin. <br /> <br />Mr. Matt Poznanovic, from the Attorney General’s Office, representing staff, stated that designated ground water and tributary ground water are mutually exclusive of administration of <br /> the 1969 Ground Water Act and cannot order the curtailment of surface rights. The staff asks that the Commission affirm the decision of the Hearing Officer. The Commission only has <br /> jurisdiction over designated ground water and does not include administration of surface rights. The Commission should affirm the decision that administration is according to modified <br /> appropriation. The petitioner is asking the Commission to shut off wells that are tributary to their surface water rights. The staff requests that the Commission affirm the Hearing <br /> Officer’s decision on each issue. <br /> <br />Following discussion by the Commission Members, Commissioner Clever made a motion to deny the appeal by Gallegos and accept the decision of the Hearing Officer. The motion was seconded <br /> by Commissioner Smith and approved unanimously. <br /> <br />Staff Report by Suzanne Sellers and Megan Sullivan - Ms. Suzanne Sellers presented the Staff Activity Report for the last quarter. She reported on the small capacity and large capacity <br /> applications, determinations, the status of change of water right applications, the objections and hearings that are pending before the Commission, enforcement actions, and other miscellaneous <br /> items which included staff attending Republican River Compact meetings, the Core Mission Project, and field inspections for statements of beneficial use. Ms. Megan Sullivan reported <br /> on the final permitting for the last quarter, and stated that they are still clarifying well permits that were issued prior to 1973. <br /> <br />Report of the Attorney General by Matthew Poznanovic - Mr. Matt Poznanovic stated that the report that provides a summary of the matters that the Attorney General’s Office is involved <br /> in was included in the packets. <br /> <br />Management District Reports - Chairman Mikita called for the Management District reports. <br /> <br />Mr. Aaron Nein reported from the Frenchman, Sandhills, Marks Butte and Central Yuma Ground Water Management Districts. Mr. Nein stated that since July 1, it has been very hot and dry, <br /> and with the exception of a few isolated areas, they have received very little rainfall. Between the four ground water management districts, there are 200 high capacity wells that <br /> are being registered. Mr. Nein requested clarification regarding wells that are out of compliance on the Republican River Compact in his district and the possibility of pumping water <br /> from wells into the river to replace depletions. Mr. Simpson offered some solutions and will be setting up meetings this fall with water users and districts to discuss this. <br /> <br />Mr. Jack Adams, from the W-Y Ground Water Management District, reported that they had one of the best wheat crops in his area that they have ever had even though it’s been dry since <br /> July. <br /> <br />There was no report from the Arikaree Ground Water Management District. <br /> <br />Mr. Stan Murphy, from the Plains and East Cheyenne Management Districts, provided information on the state of affairs on how water management is working at the local level. He reported <br /> on violations regarding commingled wells. Mr. Murphy stated that he sent a letter to the staff and received a cease and desist order. He said that the violations continue, however, <br /> the staff is too busy to deal with it. Mr. Fronczak stated that they will contact the landlord next week regarding the illegal use of water and may have to file a contempt action against <br /> the well owner. <br /> <br />Commissioner Max Smith, reporting for the Southern High Plains Ground Water Management District, stated they had some moisture in June, but it’s been dry since then with strong winds. <br /> With regard to the EQIP program, the drip systems that were funded are now installed in the county and are operating and getting good yield from the crops. Between 800 to 1000 acres <br /> of onions are being grown, along with cantaloupe, cucumbers and peppers. He stated that the EQIP program is working well. <br /> <br />There was no report from the North Kiowa-Bijou Ground Water Management District. <br /> <br />Mr. Andy Jones, attorney, reported for the Upper Black Squirrel Creek Ground Water Management District. He stated that the new rules have been adopted for small and large capacity <br /> wells for subdivisions. They eliminate small capacity wells for domestic and commercial uses that are proposed in over-appropriated aquifers. Denver Basin wells are also limited to <br /> one-half acre-foot per residence. With regard to the proposed rule for priority enforcement, the Upper Black Squirrel Creek Ground Water Management District will be first basin that <br /> will face this issue. The modified priority system will require written calls by the party who claims they are injured by other wells, and this will need to be accompanied by an engineering <br /> report. The wells that are sought to be curtailed will be notified and given an opportunity to provide their own comments. The district would then request a review by staff of the <br /> engineering reports. The district would hold a hearing and make a discretionary decision on whether unreasonable injury is occurring and how curtailment would help the complaining <br /> senior water user. The district will forward a draft of this process to staff and the State Engineer. <br /> <br />There were no reports from the Upper Big Sandy Ground Water Management District, or from the Lost Creek Ground Water Management District. <br /> <br />Old Business – None <br /> <br />New Business – Commissioner Coryell asked whether there is a timetable for the meetings between Senator Hillman and the districts concerning implementation of the Republican River Compact <br /> settlement. Mr. Simpson replied that it will be following the Core Mission Project at the end of September. <br /> <br />Mr. Andy Jones requested time to address the Commission prior to going into Executive Session. Mr. Jones stated that at the last meeting, the Commission instructed the district and <br /> staff and Eagle Peak Farms to engage in settlement discussions. He provided an update on those discussions. The district met twice with the applicant and staff; there is no settlement <br /> at this point. The primary differences have to do with whether certain parcels were irrigated and historic consumptive use. In terms of a proposed course of action for the Commission, <br /> the district feels that the Commission has supported them in this issue. The District Court has stated it is out of the Commission’s hands. Mr. Jones asked the Commission the following: <br /> to request the parties here to continue discussion of the issue and work towards a settlement; to encourage the parties to come forward with the requested information and proof so <br /> everyone is on the same page; and asked the Commission to renew instruction to staff to continue to include the district in settlement negotiations. <br /> <br />Messrs Joel Farkas and Harvey Deutsch, partners and equal managers of Eagle Peak Farms, addressed the Commission. Mr. Farkas reported that they have had at least four formal meetings <br /> with the state and corresponded to obtain engineering data, including aerial photography. Mr. Farkas thanked the efforts of the staff for all the work they put into this matter. Their <br /> position remains the same in that they have an interest in settling and, in the best interest of the state, to bring this to conclusion. Mr. Harvey Deutsch stated that January of 2004 <br /> will be the 10-year anniversary of this case, and it has been in court for the past six years. He stated that the decision on determinations should be made by the Ground Water Commission. <br /> They are willing to live with the staff’s determinations and want to continue to work with the Commission in the future in the same fashion as in the past. <br /> <br />The public meeting of the Ground Water Commission adjourned at 11:20 a.m. <br /> <br />Commission in Executive Session - Commissioner Bauerle made a motion to go into Executive Session; the motion was seconded by Commissioner Coryell and passed unanimously. The Commission <br /> went into Executive Session to discuss settlement negotiations and proposals with respect to the Eagle Peak litigation, Case Nos. 99CV0097 and 98CV1727. <br /> <br />Following the Executive Session, Pat Kowalski reported that the Commission discussed pending litigation against the Commission and, as a result of that discussion, a motion was offered <br />