DWR_3353962

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 2/15/2013
• Subject: MEETING MATERIALS

with the latest appeal because they failed to follow procedures. Mr. Jones said that precedent gives the Commission the authority and that the hearing Officer believes they have the
authority. In response to a question of Commissioner Burr, Mr. Jones cited Rule 24-4-105(4) of the Administrative Procedures Act and Rule 54-D of the Rules for Civil Procedure in support
of his contention that the Commission has the authority to award costs.
Mr. Jacob Miller, attorney for petitioners, addressed the Commission. He stated that the request for costs is not properly before the Commission because the Hearing Officer denied a
previous request which decision was not appealed. As no review was done within thirty (30) days, the Hearing Officers decision becomes the final order of the Commission and it cannot
be reviewed now. Further, Mr. Miller argued that the neither the APA nor the Ground Water Management Act gave the Commission the authority to award costs. In response to a question
of Commissioner Huwa, Mr. Miller stated that the $6,700 in question today was part of the $100,000 request previously denied.
In rebuttal, Mr. Jones informed the Commission that the $6,700 in question today is for costs incurred in the appeal, not the original hearing. This money could not have been part of
the original petition for costs because the appeal had not yet occurred. Further, he attempted to counter Mr. Miller’s argument that the Commission does not have authority because
the case Mr. Miller cited was an entirely different subject matter. In response to a question by Commissioner Huwa, Mr. Jones stated that he was unsure why the matter was before the
Commission but that it may have something to do with the fact that the <Commission, had earlier advised the respondents to petition for costs.
Commissioner Wolfe and Mr. Kowaleski, in answer to a question by Commissioner Clever, stated that they were not aware of the Commission awarding costs in the past.
Commissioner Clever moved to deny the petition for costs.
Commissioner Mikita seconded the motion, which passed, with Commissioner Burr voting against the motion.
Chairman Huwa called for agenda item no. 8, the staff activity report. <Mr. Vander Horst reviewed his written report touching on the permit activity. He noted that there are three new
hearings, one each in Camp Creek, Lost Creek and Southern High Plains Designated Basins. Mr. Vander Horst also noted that the Gallegos have appealed the Commission’s decision to the
District Court.
Mr. Vander Horst next discussed the issue of over-pumping this past irrigation season, specifically in the Northern High Plains. He noted that the exact number of violations and the
degree of those violations will not be known until the annual reports are received around December 1st. He stated that staff expects most of the violations to be associated with wells
that are under appropriated, either as originally approved or through the expanded acres process. Mr. Vander Horst stated that the office is very concerned about this because of Compact
implications. He advised the Commission that at this time staff is considering requiring a 1:1 payback with third party administration for over pumping violations.<
Commissioner Burr requested clarification on the 1:1 payback procedures.
Mr. Dave Keeler addressed the Commission. He informed the Commission that Bonnie reservoir remained empty. He stated that plans were being made for weed control via a controlled burn.
Mr. Keeler reported that about four miles upstream there was live flow in the river of approximately 4cfs. There were no questions of Mr. Keeler.
Chairman Huwa called for agenda item no. 9, the Attorney General’s report. Ms. Jen Mele touched on the Gallegos and Meridian matters, the primary cases of concern. As Mr. Vander Horst
stated, the Gallegos have appealed the Commission’s decision to the District Court. There was also a cross-appeal in this matter. The objectors have claimed that the issue of “waiver”
was not properly decided.
The Meridian matter is set for hearing in January. It was originally filed in District Court as a surface water application however, objectors are arguing that the water involved is
not surface water but ground water because it will recharge designated water aquifers.
There were no questions of Ms. Mele.
Chairman Huwa called for agenda item no. 10, Management District Reports
Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, advised the Commission that he has issued 25 cease and desist orders for over pumping.
These orders will remain in effect until a settlement agreement is signed. He noted that three (3) of his Districts have a 2:1 payback rule. Mr. Midcap further reported that there
are a number of wells that remain running to build up the soil moisture. He added that the area is so dry that the wind is blowing the dirt. In response to a question by Commissioner
Huwa, Mr. Midcap stated that over pumping determinations were based on totalizing flow meter and power consumption coefficient information. He added that his Districts will, in the
end use, the official pumping numbers as determined by the state. There were no further questions for Mr. Midcap.
Mr. Jack Dowell, reporting the W-Y GWMD, advised the Commission that out of 117 chemigation checks, 13 did not have the necessary permit. He informed the Commission the wheat harvest
was over two (2) weeks early but that it looked good, that the sugar beets harvested at 40 tons and that there remained some corn to be picked. Mr. Dowell stated that so far he had
identified three (3) wells that had been over pumped. Weed control is occurring near Wray.<
Rod Mason, reporting for the Arikaree GWMD, advised the Commission that there was enough moisture in the recent snow to get the wheat up but things remained dry. He reported that the
farmers with water had good crops while those on dry land did not. He said that his District expects from 100 to 150 wells to have over pumped by year’s end. Mr. Mason mentioned that
State’s water year of November to October conflicts with producers on rotational acres who use the calendar year. Mr. Mason stated that the District also runs on a calendar year and
he hopes that policies can be changed so that the District and the State are on the same year.
Mr. Mason asked Commissioner Wolfe if the 1:1 payback program will continue beyond 2013. Mr. Wolfe responded that there are no plans at this time for it to do so but that what happens
in 2013 will be evaluated and if found appropriate the procedure could be carried forward.
Mr. Mason went on to state that of the 140 chemigation inspections he has conducted, 12 wells have failed. He concluded his remarks by asking if money was available for the water level
measurement program.
Ms. BreAnn Ferguson, reporting for the Plains and East Cheyenne GWMD’s, advised the Commission that as with everybody else it has been hot and dry. The wheat harvest in both Districts
was completed early. The corn harvest continues with yields dependent on location. A lot of corn was chopped for silage earlier in the year. Ms. Ferguson ended her report advising
the Commission that less than 10% of her chemigation inspections required repairs.
Southern High Plains GWMD there was no report
Mr. Robert Loose reporting for the North Kiowa-Bijou GWMD, advised the Commission that his District was, like all the others, hot and dry. He said that the producers with supplemental
water had decent crop yields while those without did not. Mr. Loose drew the Commission’s attention to the Staff Activity Report, specifically the numbers of small capacity permits
in the Kiowa-Bijou Basin. He said that the small capacity permits were responsible for the majority of the Districts work load but provided no revenue. Mr. Loose said that the District
board members travel around advising home owners of their permit limits and that they cannot dig ponds. He concluded his report touching on the topic of final permits. He said that
his District is talking to the owners of wells that are no longer in use to get them to cancel the permit so that there is an accurate count of the wells in the District and that he
continues to work closely with staff to get the final permits issued.
Ms. Tracy Doran, reporting for the Upper Black Squirrel GWMD, advised the Commission that her District had just put out an request for proposal to have the water level measurements read.
She said that she had heard from Ralph Topper the day before and found out that the state was continuing the project so she expects to cancel the request for proposal. Ms. Doran noted
that the District has two hearings coming up and pointed out that it would be helpful to their budget if anything could be done about the length of the hearings. Ms. Doran concluded
her comments by observing that they were having a lot of emergency and replacement applications being processed.
Mr. David Tausig reporting for the Upper Big Sandy GWMD, advised the Commission that his area was also warm and dry. He said that they had received the second check form the Town of
Limon for exporting water and that they intend to use this money to help well owners purchase meters. Mr. Tausig concluded his remarks with the comment that they were interested in
the proposed legislation dealing with the district to have enforcement powers.
Mr. Andy Jones, reporting for the Lost Creek GWMD, advised the Commission that the District’s engineers had submitted information, that was accepted by staff, which moved the northern
boundary of the outcrop of the Laramie Fox-Hills aquifer, in the Lost Creek Basin, several miles south of where it is currently located in the Rules. On another issue Mr. Jones mentioned
the Districts issues with water supplies for oil and gas drilling and fracking. The question is, does industrial use from decades ago include fracking? Mr. Jones spoke to the topic
of District and Commission relations when he stated that he had written an amendment to a Commission rule that would incorporate the District’s rule on water quality matters as they
relate to replacement plans. He closed his comments observing that Lost Creek is in support of legislation for the district to have enforcement powers.
Mr. Scott Tietmeyer, reporting for Upper Crow Creek Basin, advised the Commission that there was enough rain in September to get the wheat up. He said that most dry land crops were
not harvested this year and the yields on irrigated land depended heavily on pumping ability and personal practices.
Ms. Deb Daniel, reporting for the Republican River Water Conservation District, expressed her thanks to the Commission for traveling to the Republican River for the August meeting activities.
She advised the Commission that they are finishing the punch list on the pipeline. Ms. Daniel also informed the Commission that though the District has funds remaining for conservation
purposes, there are no Federal funds. She also said the District is considering its role in helping the producer’s with water conservation measures.
Chairman Huwa called for agenda item no. 11, old business.
Update on proposed legislation regarding enforcement authority for Management Districts.
Mr. Kevin Rein provided a history of the topic, and two others, from its inception at the May 2012 meeting through the present. He advised the Commission that the Interim Legislative
Water Resource Committee failed to act on the proposed legislation while it was convened. He said that it was now up to the Commission and Districts to determine if they wanted to
take it forward for this legislative session.
Commissioner Clever recommended pushing the issue and Commissioner Burr questioned the costs involved.
Commissioner King said that at this late point in time it cannot be an administration bill. He went on to say that he has heard the concerns are along the lines of an HOA analogy, being
that the power is given without any checks and runs amok. Mr. King said that the options are to press forward and most likely have the bill fail or to work with key legislators on
their concerns, get all the bugs out and run it next session.
Mr. Dennis Coryell approached the Commission. He said that his testimony before the interim committee went as Mr. Rein had stated. Mr. Coryell said that he discussed, at length, with
Chairman Sonnenburg, his concerns over the proposed bill. He also said that this is an important matter that should be pursued.
Commissioner Kramer commented that he thinks the legislation should be looked at further.
Mr. Dave Taussig approached the Commission and said that on behalf of the Upper Big Sandy District, he would support moving forward with the bill.
Mr. Dave Doran of Upper Black Squirrel District said that his District is in support of moving forward. He raised the question of whether or not the Goss Case says that the State Engineer
is not also “Executive Director” to the Districts thereby being their support and enforcer as well.
Commissioner Wolfe responded that he knows of no direct statutory language that describes that relationship between the State Engineer and the Districts and that it is not the position
of the Supreme Court to interpret broad sections of statute in the manner suggested
Mr. Pat Kowaleski agreed with Commissioner Wolfe.
Mr. Andy Jones addressed the Commission. He said that he was an attorney in the Goss Case and that his recollection is that enforcement is the Districts responsibility but that the
State Engineer is support for the District. He went on to say that he believes that if the Commission proceeded to enforce a District rule that the court would uphold that decision.
Additionally, he believes that the State is not doing so not because of the ruling but as a matter of policy. As to the currently proposed legislation, Mr. Jones stated that Lost
Creek is in support of the matter proceeding and said that as to the Districts “running amok”, the District Courts are the check and balance.
Commissioner King said that if the Commission proceeds that Representative Sonnenburg and Senator Brophy need to support the bill.
Commissioner Burr asked for clarification on the Commissions role in this proceeding from this point forward. Is the Commission the lead agency or are the Districts?
Commissioner King responded that this cannot be an administrative (Departmental) bill. The Commission does have the authority to reach out and seek sponsorship. Staff can provide technical
expertise but staff cannot lead the discussion until there is administrative buy in.
Chairman Huwa stated that as the Commissioners and the District representatives were all in favor of moving forward that is what will happen.
On a related matter, Mr. Kevin Rein introduced the Commission to a bill put forward by the water committee concerning loss of water rights when practicing conservation measures. The
bill, initiated out of concerns of a producer, as currently written says that the water right and the historic consumptive use of a water right shall not be reduced due to reductions
in irrigated acres initiated for conservation purposes.
Commissioner Clever expressed concerns about the bill as written and asked if the Commission was being asked to provide an opinion of the bill.
Commissioner Wolfe said no opinion was required at this time but possibly at the February meeting.
Mr. Mike Shimmin addressed the Commission, providing his opinion that the proposed bill, as written, does not affect the historic consumptive use analysis.
Mr. Rick Fendel and Mr. Dick Brown next addressed the Commission on the matter of pending legislation. Their bill, Interim Bill A addresses the issue of final permits for municipalities.
After working through the process it was determined that this bill, to address municipal growth beyond the first three years, would best be handled as a Denver Basin issue because
except for one or two wells, all the wells in question are constructed into the Denver Basin. Therefore, this bill amends 37-90-108 such that all wells constructed into a bedrock aquifer
are exempt from final permitting.
Update on possible change to Rule 5.5.
Mr. Keith Vander Horst provided a short background on the proposal. He reported that in meetings with interested parties the consensus was that the Commission continue to be the body
which decides on a variance request. It was suggested that the rule could be amended to require publication of the request. Mr. Vander Horst provided the Commission with a copy of
a proposed Rule 5.5 which requires publication of the request. He also suggested that the Commission could decide not to amend the rule but direct staff to publish all variance requests.
Commissioner Clever moved not to amend Rule 5.5.
Commissioner Bledsoe seconded the motion.
In response to a question of Commissioner Burr, Commissioner Clever amended his motion to include direction that staff publish all variance requests.
Commissioner Bledsoe agreed to the amendment and the motion passed unanimously.
Chairman Huwa called for agenda item no. 12, new business.
Appointment of a Commission representative to the Republican River Water Conservation District.
Commissioner Clever nominated Commissioner Steve Kramer for the position.
Commissioner Burr seconded the nomination.
Commissioner Clever moved to close nominations.
Commissioner Mikita seconded the motion and nominations were closed.
Commissioner Kramer was elected by acclamation.
Selection of the meeting dates for the year 2013.
Secretary Nielsen suggested February 15, May 17, August 16 and November 15 as possible meeting dates for 2013. The dates were accepted by the Commission as presented.
Chairman Huwa called for agenda item no. 13, public comment, there was none.
There being no further business the meeting adjourned.
Respectfully submitted,
Richard A Nielsen, P.E., Secretary
Colorado Ground Water Commission
Ground Water Commission Meeting MinutesPage 9
November 16, 2012
2012 - 11_Minutes_Draft.pdfMINUTES
MINUTES FOURTH QUARTERLY MEETING COLORADO GROUND WATER COMMISSION NOVEMBER 16, 2012 The fourth Quarterly Meeting of the Colorado Ground Water Commission took place on November
16, 2012, at Castle Rock Town Hall, 100 N Wilcox, Castle Rock, Colorado. Vice Chairman Cory Huwa called the meeting to order at 10:00 a.m. Mr. Richard Nielsen called the roll and
determined that a quorum was present. Commission members present were Grant Bledsoe, Carolyn Burr, Corey Huwa, Steve Kramer, Earnest Mikita, George Schubert, Mike King and Dick Wolfe.
Staff members present were Kevin Rein, Keith Vander Horst, Richard Nielsen, Chris Grimes, Jay Bloomfield, Justina Farris, Ivan Franco and Dave Keeler. Also present were Jody Grantham,
Hearing Officer, Pat Kowaleski, A.G. for the Commission and Jennifer Mele, A.G. for staff. Members of the public were also present. Review and Approval of Agenda Items, agenda item
no. 4 was amended to include review and approval of the minutes for the special meeting of September 5, 2012 and agenda item no. 8, staff activity report, was amended to include a report
by Mr. Dave Keeler. Election of the interim Chair and Vice-Chair, Vice Chairman Huwa called for nominations for Chairman. Commissioner Burr nominated Commissioner Huwa as Chairman.
Commissioner Clever seconded the nomination. Commissioner Bledsoe moved that nominations be closed. Commissioner Mikita seconded the motion. Commissioner Huwa was elected Chairman
by acclamation. Chairman Huwa called for nominations for Vice Chairman. Commissioner Clever nominated Commissioner Bledsoe as Vice Chairman. Commissioner Burr seconded the nomination.
Commissioner Mikita moved that nominations be closed. Commissioner Burr seconded the motion. Commissioner Bledsoe was elected Vice Chairman by acclamation. Ground Water Commission
Meeting Minutes Page 2 November 16, 2012 Approval of Minutes for Meeting of August 17 and September 5, 2012, Chairman Huwa asked if there were any corrections or additions to the
minutes. Commissioner Wolfe noted that he would confer with Secretary Nielsen over a few non-substantial items in the minutes for September 5, 2012. Commissioner Mikita moved to
approve the minutes as amended. Commissioner Clever seconded the motion which carried unanimously. Report of the Executive Director by Dick Wolfe, Mr. Wolfe opened his remarks
recognizing the work and dedication of Mr. Dennis Coryell to the Commission. He presented Mr. Coryell with a plaque and a resolution which he read into the record, thanking him for
his service. Mr. Wolfe continued with discussing matters related to the Republican River Basin. He reminded the Commission that he had missed the August 17th meeting because he was
in Maine attending a trial between Kansas and Nebraska on an arbitration issue. Though Colorado was not a party to the trial, he assured the Commission that Colorado’s interests were
represented throughout the trial. Mr. Wolfe went on to say that, based on the tone of the questions of the Special Master, he and Deputy State Engineer Sullivan believed the trial
went well for Colorado and that he hoped a decision will be rendered by the end of the year. He identified the two primary issues as how damages are determined if a signatory is out
of compliance and a change in accounting procedures, as requested by Nebraska. Mr. Wolfe proceeded to advise the Commission regarding the most recent annual meeting of the three compact
states. He said that Nebraska and Kansas had been updated on the status of the pipeline but that no action on final approval was taken. Mr. Wolfe also noticed the Commission that
Nebraska requested to change the water short year accounting period from a two year to a three year average. The request of Nebraska failed as Kansas voted against the modification.
He also informed the Commission that because of ongoing litigation regarding accounting procedures, the approval of the accounting for the past few years has not been finalized. On
the matter of the Compact Compliance Pipeline, Mr. Wolfe informed the Commission that Colorado is preparing the final resolutions for approval. He went on to say that if the resolutions
are not approved at the upcoming special meeting that Colorado will proceed down the road of non-binding arbitration. There were no questions for Mr. Wolfe. Chairman Huwa called
for agenda item no. 6, Commissioners reports, there were none. Chairman Huwa called for agenda item no. 7, being a Hearing on Objectors Motion to Recover Prevailing Party Costs associated
with appeal of the Initial Decision of the Hearing Officer regarding the Gallegos Family petition to de-designate portions of the Upper Crow Creek Basin, Case no. 03-GW-06. Ground
Water Commission Meeting Minutes Page 3 November 16, 2012 Mr. Andy Jones, attorney for respondents, addressed the Commission. He stated that the respondents are requesting the Commission
to order petitioners to pay $6,709.47 in costs associated with the latest appeal because they failed to follow procedures. Mr. Jones said that precedent gives the Commission the authority
and that the hearing Officer believes they have the authority. In response to a question of Commissioner Burr, Mr. Jones cited Rule 24-4105(4) of the Administrative Procedures Act
and Rule 54-D of the Rules for Civil Procedure in support of his contention that the Commission has the authority to award costs. Mr. Jacob Miller, attorney for petitioners, addressed
the Commission. He stated that the request for costs is not properly before the Commission because the Hearing Officer denied a previous request which decision was not appealed. As
no review was done within thirty (30) days, the Hearing Officers decision becomes the final order of the Commission and it cannot be reviewed now. Further, Mr. Miller argued that the
neither the APA nor the Ground Water Management Act gave the Commission the authority to award costs. In response to a question of Commissioner Huwa, Mr. Miller stated that the $6,700
in question today was part of the $100,000 request previously denied. In rebuttal, Mr. Jones informed the Commission that the $6,700 in question today is for costs incurred in the
appeal, not the original hearing. This money could not have been part of the original petition for costs because the appeal had not yet occurred. Further, he attempted to counter
Mr. Miller’s argument that the Commission does not have authority because the case Mr. Miller cited was an entirely different subject matter. In response to a question by Commissioner
Huwa, Mr. Jones stated that he was unsure why the matter was before the Commission but that it may have something to do with the fact that the Commission, had earlier advised the respondents
to petition for costs. Commissioner Wolfe and Mr. Kowaleski, in answer to a question by Commissioner Clever, stated that they were not aware of the Commission awarding costs in the
past. Commissioner Clever moved to deny the petition for costs. Commissioner Mikita seconded the motion, which passed, with Commissioner Burr voting against the motion. Chairman
Huwa called for agenda item no. 8, the staff activity report. Mr. Vander Horst reviewed his written report touching on the permit activity. He noted that there are three new hearings,
one each in Camp Creek, Lost Creek and Southern High Plains Designated Basins. Mr. Vander Horst also noted that the Gallegos have appealed the Commission’s decision to the District
Court. Mr. Vander Horst next discussed the issue of over-pumping this past irrigation season, specifically in the Northern High Plains. He noted that the exact number of violations
and the degree of those violations will not be known until the annual reports are received around December 1st. He stated that staff expects most of the violations to be associated
with wells that are under appropriated, either as originally approved or through the expanded acres process. Mr. Vander Horst stated that the office is very concerned about this because
of Ground Water Commission Meeting Minutes Page 4 November 16, 2012 Compact implications. He advised the Commission that at this time staff is considering requiring a 1:1 payback
with third party administration for over pumping violations. Commissioner Burr requested clarification on the 1:1 payback procedures. Mr. Dave Keeler addressed the Commission. He
informed the Commission that Bonnie reservoir remained empty. He stated that plans were being made for weed control via a controlled burn. Mr. Keeler reported that about four miles
upstream there was live flow in the river of approximately 4cfs. There were no questions of Mr. Keeler. Chairman Huwa called for agenda item no. 9, the Attorney General’s report.
Ms. Jen Mele touched on the Gallegos and Meridian matters, the primary cases of concern. As Mr. Vander Horst stated, the Gallegos have appealed the Commission’s decision to the District
Court. There was also a cross-appeal in this matter. The objectors have claimed that the issue of “waiver” was not properly decided. The Meridian matter is set for hearing in January.
It was originally filed in District Court as a surface water application however, objectors are arguing that the water involved is not surface water but ground water because it will
recharge designated water aquifers. There were no questions of Ms. Mele. Chairman Huwa called for agenda item no. 10, Management District Reports Mr. Nate Midcap, reporting for
the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, advised the Commission that he has issued 25 cease and desist orders for over pumping. These orders will remain in effect
until a settlement agreement is signed. He noted that three (3) of his Districts have a 2:1 payback rule. Mr. Midcap further reported that there are a number of wells that remain
running to build up the soil moisture. He added that the area is so dry that the wind is blowing the dirt. In response to a question by Commissioner Huwa, Mr. Midcap stated that over
pumping determinations were based on totalizing flow meter and power consumption coefficient information. He added that his Districts will, in the end use, the official pumping numbers
as determined by the state. There were no further questions for Mr. Midcap. Mr. Jack Dowell, reporting the W-Y GWMD, advised the Commission that out of 117 chemigation checks, 13