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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. Ground Water Commission Meeting Minutes Page 5 November 16, 2012 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. Ground Water Commission Meeting Minutes Page 6 November 16, 2012 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. a) 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, Ground Water Commission Meeting Minutes Page 7 November 16, 2012 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. Ground Water Commission Meeting Minutes Page 8 November 16, 2012 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. b) 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. Ground Water Commission Meeting Minutes Page 9 November 16, 2012 Chairman Huwa called for agenda item no. 12, new business. a) 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. b) 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 2013 - 02.docxMINUTES MINUTES FIRST QUARTERLY MEETING COLORADO GROUND WATER COMMISSION FEBRUARY 15, 2013 The first Quarterly Meeting of the Colorado Ground Water Commission took place on February 15, 2013, at the Centennial Building, 1313 Sherman St, Room 318, Denver, Colorado. Chairman <Dennis 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, Larry Clever, Corey Huwa, Steve Kramer, Earnest Mikita, George Schubert, Max Smith, Virgil Valdez, Robert Randall, Mike Sullivan and Suzanne Sellers. Staff members present were Kevin Rein, Keith Vander Horst, Richard Nielsen, Chris Grimes, Jay Bloomfield, Justina Mickelson, Ivan Franco, David Keeler and Ralf Topper. 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, parties to Agenda Item no. 7 requested that the matter be continued to the May meeting. The agenda was approved as modified. Approval of Minutes for Meeting of November 16, 2012, Chairman Huwa asked if there were any corrections or additions to the minutes. Commissioner Clever noted that he was not identified as being present for the meeting. Commissioner Clever moved to approve the minutes as amended. Commissioner Mikita seconded the motion which carried unanimously. Report of the Executive Director by Mike Sullivan, Mr. Sullivan opened his remarks by updating the Commission on enforcement actions in the Republican River Basin. He noted that to-date, it had been determined that 300 wells had over pumped in the 2012 irrigation season. Of these, one-third over pumped by 15 acre-feet or less. He reminded the Commission of Colorado’s efforts to be in compliance with the compact; the pipeline, 30,000 acres being retired and the purchase of surface water rights. Mr. Sullivan informed the Commission that the litigation over pumping in Nebraska is interfering with our negotiations with Kansas. He advised the Commission that Kansas had sued Nebraska for 72 million dollars in damages and penalties for under delivery of water and that this litigation is delaying the response from Kansas regarding an agreement on pipeline operations, specifically the credit for water Colorado delivers through the pipeline. Mr. Sullivan noted that in the draft ruling, the judge found that Nebraska did not intentionally under deliver to Kansas, and awarded Kansas $3.2 million in damages and $1.7 million in fines. Colorado objected to the fines because of the implications for the future. Mr. Sullivan informed the Commission that Nebraska had filed for fast track arbitration on their request for water short year determination and is constructing a pipeline, the Rock Creek Pipeline, similar to our compliance pipeline and other various augmentation plans. Commissioner Mikita asked why the users are paying for the pipeline without water being delivered through it. Commissioner Sullivan responded that the application process began in 2009 and that negotiations with Kansas has delayed the process. He said that <if we did not fight for 100% credit it would cost us more. He went on saying that Kansas wants Nebraska to dry up 300,000 acres to maintain compliance and that if we pumped the pipeline now we would only receive 22% credit and Colorado does not have five times the water to pump. Ms. Deb Daniels addressed the Commission and reminding them that the District proceeded with the pipeline and other measures because of concerns that the financing terms offered by CWCB might be modified in the tough economic times. Recalling the years it took to litigate the Arkansas River compact with Kansas, Commissioner Mikita asked how long the users would be paying without any benefit. Mr. Sullivan assured the Commission that the Republican Compact litigation will not take as long as that of the Arkansas because the Supreme Court has ordered the matter expedited. Mr. Sullivan reminded the Commission about the Bureau of Reclamation requiring all three states to participate in a basin wide water smart study. He noted that Kansas is seeking to enlarge its reservoirs, Nebraska is looking at special projects such as land retirement and augmentation and that Colorado is providing data for the Bureaus climate models of the Basin. Mr. Sullivan advised the Commission that the measurement rules are in place for the Arkansas, Republican and Rio Grande rivers while eight objectors remain on the South Platte. He noted that while there are near 3,000 water rights on the abandonment list, only 3% are being objected to. In the Rio Grande Basin, Division 3, Mr. Sullivan reported that Texas has requested to open a case with New Mexico and Colorado. As currently written, the pleadings imply basin wide issues rather than the more specific issues of water below Elephant Butte Reservoir. He also mentioned that the first reports of the Sub-District replacement plans are due February 28th. In Division 7, The Animas – La Plata project operating protocols are being finalized. On the La Plata River, New Mexico remains concerned about our delivery of low flows. We have, this year, begun construction of a 5,000 acre-foot reservoir, near the border, to aide in the delivery. Mr. Sullivan concluded his remarks by noting that the new Colorado River protocols are 29 pages long while the interim protocols, which were in effect for 10 years, were 1 page. Chairman Huwa called for agenda item no. 5, Commissioners reports. Commissioner Huwa, together with Commissioner Kramer, Mr. Dennis Coryell and Mr. Kevin Rein updated the Commission on the efforts to get legislation passed to allow Districts to fine water user’s operating in violation of the permits. It was noted that Representative Sonnenburg is not receptive to the proposed language while another representative suggested going through the interim water committee over the summer. It was decided that the management districts will be responsible for carrying the matter forward this year. Chairman Huwa called for agenda item no. 6, the presentation of the 2012 ground water level measurements by Ralf Topper. Mr. Topper distributed and went over his reports, basin by basin, discussing the Northern High Plains by District. He noted the number of wells measured, the 1 year, 5 year and 10 year changes in static water level and anomalies such as the rise in static water level near the Limon area. Mr. Topper pointed out that the report is available on the website in a pdf format. He also noted that he is working on other improvements in addition to the new well location maps. There were no questions for Mr. Topper< Chairman Huwa called for agenda item no. 7, the staff activity report. Mr. Keith Vander Horst reviewed his report. He noted that the final permit activity has slowed because one group remains to be processed in the Kiowa-Bijou and Upper Big Sandy Basins and that the Southern High Plains Basin is on maintenance. Mr. Vander Horst advised the Commission that final action on bedrock final permits has been delayed until the legislation, SB-72, is finalized. He pointed out that there were no new hearings in the last quarter. On the matter of enforcement, Mr. Vander Horst noted that work on the over-pumping problem continues. Staff mailed 296 orders with the 1:1 pay back provisions and is negotiating with the users. On the good side, Mr. Vander Horst informed the Commission that there was not a lot of over-pumping. He noted that of the 3163 wells located in the Republican Basin, fewer than 10% over-pumped and of those, 152 over-pumped by less than 50 acre-feet. In response to a query by Commissioner Mikita regarding the reported permit activity in the Upper Big Sandy District, Mr. Vander Horst said that he would research the matter and call him. At the request of Commissioner Huwa, Mr. Vander Horst reminded the Commission of the provisions of SB-72, mainly that wells completed into the bedrock formations will not be subject to the provisions of the final permit statute. Chairman Huwa called for agenda item no. 8, the Attorney General’s report. Ms. Jen Mele informed the Commission that the Meridian Hearing was over and we are waiting on the ruling of the Hearing Officer. She also informed the Commission that Mr. Pat Kowaleski will be representing the Commission before the District Court on the Gallegos matter of de-designating portions of Upper Crow Creek. Chairman Huwa called for agenda item no. 9, Management District Reports Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, reported that it has been dry in his districts. He noted that he has been busy with over-pumping orders and that two of his three districts that have a 2:1 pay back rule will amend their rule to correspond to the State’s 1:1 pay back. Mr. Midcap concluded his comments with the observation that he drives 2600 miles to measure static water levels. Mr. Jack Dowell, reporting the W-Y GWMD, reported that it is dry all over and that several stock wells have gone dry. Mr. Rod Mason, reporting for the Arikaree GWMD, reported that during his static water level measurements he observed a decline of anywhere from 10 feet to 18 feet. He also reported that his District had taken charge of all third party administration within the District. Ms. BreAnn Ferguson, reporting for the Plains and East Cheyenne GWMD’s, informed the Commission that she has observed static water level declines, on average of 15 feet. Ms. Ferguson noted that wells in her districts were already pumping. She also thanked staff for the clear and understandable answers given at various local meetings on the over-pumping matter. Mr. Max Smith, reporting for the Southern High Plains GWMD reported that it has been dry, windy and cold in the Southern High Plains. He observed that after 13 years of little rain and snow a lot of user’s no longer take the water for granted. Mr. Robert Loose reporting for the North Kiowa Bijou GWMD, reported that his District is working with Mr. Chris Grimes on ponds that are new or have been enlarged and possible expansion of use on some feedlot wells. He also mention that small capacity permits make up a large portion of the District staff’s workload and that legislation allowing the assessment of small capacity permits would be good. Mr. Tim Hunker, reporting for the Upper Black Squirrel GWMD, reported that there were few issues, excepting Meridian, in the District the past quarter. Mr. David Tausig reporting for the Upper Big Sandy GWMD, reported that it has been dry, windy and cold. He also provided the Commission with the dates of the Arkansas Roundtable meetings. Mr. Andy Jones, reporting for the Lost Creek GWMD, reported that the District has been busy. They are amending the small capacity rules to ban alluvial wells and restrict the Laramie Fox-Hills Aquifer to a 300 year life. He briefly discussed the Lost Creek Dairy applications to change the use of existing wells and the leasing, by Front Range Resources, of water for fracking. Mr. Jones provided the opinion that SB-75, will protect well owners who participate in conservation practices without effecting the historic consumptive use analysis when they decide to change the use of the well. In response to a question by Commissioner Burr, Mr. Jones said that the District is considering extending the 300 year aquifer life rule to determinations of water rights. He also said, in response to a question by Commissioner Huwa, that the rules are more stringent than those of the State. Mr. Dan Lloyd, reporting for the Upper Crow Creek Basin, reported that the Basin had received 2.2 inches of precipitation between January 2012 and January 2013. H e reported that it takes anywhere from 500,000 to 4,000,000 gallons of water to frack a well in this area. Mr. Lloyd did note that since oil and gas production is down, a lot of drilling rigs are moving to North Dakota. Ms. Deb Daniel, reporting for the Republican River Water Conservation District, reported that 2008 farm bill had been extended, making money available for the CREP and EQUIP programs, unfortunately with the good prices there is little interest in setting lands aside. Ms. Daniel again brought up the user fees and taxes that user’s are paying, saying that they are used to fund the District’s portion of the CREP and EQUIP programs, purchase of surface water rights and implementation of other conservation programs. She noted that the District is currently surveying user’s to see where they want help in instituting conservation measures. Chairman Huwa called for agenda item no. 10, old business, there was none. Chairman Huwa called for agenda item no. 11, new business, there was none. Chairman Huwa called for agenda item no. 12, 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 5 February 15, 2013 AG Report2013-1-31.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission February 15, 2013 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of February 1, 2013. cherokee metropolitan district Case No. 08-GW-71 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: An application for approval of a replacement plan to make new appropriations from the alluvial aquifer within the basin. Objections were submitted by the District, along with four other water users in the basin. A hearing was held for two weeks in Denver beginning on June 8, 2009 during which the applicants completed their initial presentation and the objectors began their presentations. An additional week of hearing scheduled for August 3 through 7, 2009 was vacated following a ruling from the Division 2 Water Court regarding Cherokee’s use of some of its wells, subject to further negotiations and amendment of the proposed replacement plan. This case was consolidated with change cases 08GW78 and 09GW15, and the trial was set to continue in January 2010 Status: In November of 2009, the Upper Black Squirrel Creek Ground Water Management District filed in District Court, in Case No. 98CW80 for a declaratory judgment asking the court to determine whether Cherokee is required to use its waste water as recharge for the basin or if that waste water can be claimed as replacement credit under a replacement plan. The District also filed for a preliminary injunction to prevent Cherokee from claiming waste water returns in the Basin as augmentation credit in the replacement plan in 08GW71 until the motion for declaratory judgment is resolved. The preliminary injunction was granted. Meridian moved to intervene but that motion was denied, the issue appealed to the Supreme Court and the decision reversed. Meridian also moved to dismiss the case for lack of jurisdiction and the Supreme Court awarded the District attorney fees as a result, since the issue has