DWR_3353973

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 11/16/2012
• Subject: MEETING MATERIALS

will “clarify” the authority. Regarding the ability to assess small capacity wells, his district would like to wait and see what develops.<
In response to questions from Commissioner Burr, Mr. Tausig said that his District agrees with Andy’s provision of adding language to specific Commission Rules to incorporate district
rules and that they support enforcement legislation if it is a clarification and did not undermine existing rules.
Commissioner Coryell asked Mr. Tausig how his district could know that a judge would interpret matters the way the district does if somebody were to take the district to court over the
enforcement authority. Mr. Tausig replied that would be why clarification was necessary. Chairman Coryell continued that it would< be dangerous territory if the districts spent their
limited budget on legal fees for enforcement matters before the year was done.
Commissioner Schubert stated that is the position his district finds itself, too many legal fees. He acknowledged that not all districts have their problems of heavy development at
this time. Today, there are a half dozen people at the meetings saying that their wells have gone dry and blaming the board. He says that in 5 years or 10 years that number could
be 5,000 people without water. He said that the districts and the state need to work together. Mr. Schubert posed the question of if the district fails and is disbanded, who takes
over administration, the State does. He is of the opinion that rulemaking is the way to go.
Mr. Mike Shimmin addressed the Commission and advised them that this issue has come and gone for the past 34 years. It was heavily debated in 1992 when the replacement consideration
was finally resolved. He went on to note that going through the rulemaking process forces the state and the districts to talk through issues. <Mr. Shimmin mentioned an observation
that occurred to him during the meeting to discuss these matters. He noticed that his interpretation of the district export rules differed from that of staff’s, something that is not
realized until you are in the same room and talk about it. That is what makes the rulemaking process a valuable tool. It gets everybody into the same room to talk through issues,
solve a problem and get on the same page, something that cannot be done through the legislature. As to issue 1, the authority matter should be worked out through rulemaking process<.
Mr. Shimmin stated that he had re-read the Goss case and determined that it says the state has the authority to issue orders enforcing management district rules. Mr. Shimmin believes
that there is more common ground than what has been looked at lately and that those areas of tension can be resolved through rulemaking.
Regarding enforcement authority Mr. Shimmin says that districts have not done that many because it is expensive, slow, time consuming and not all costs are recouped under existing statute.
Having explicit authority to levy fines and recover costs would be helpful.
Mr. Shimmin observed that compact compliance changed the dynamics of the enforcement issue in the Northern High Plains because the state has taken a more aggressive position on enforcement
because of the compact. With that, he informed the Commission that his districts do not want to take the lead on this matter nor will they oppose any attempt to address the issue.
On the issue of more funding, his districts are living with what they have and are not interested in spending money to change things. Not all of his districts have De-Bruced which means
they could not spend the additional monies.
Commissioner Clever asked Mr. Shimmin how many rules would need to be changed or could one rule be written to cover everything.
Mr. Shimmin responded that yes one rule could be written but that his preferred method would be going issue by issue for the three to five topics that need attention now.
Commissioner Coryell asked Mr. Shimmin for ideas on procedures that could be established to ensure communication between the district and staff especially in those instances when their
interpretations of the rules differ.
Mr. Shimmin’s response referenced statutory wording and use of “may” and “shall”, noting that statute states that the Commission and Districts shall confer and consult with each other.
He called for more issue specific communication.
Commissioner Burr confirmed her understanding that there should be a ‘confer and consult’ clause in the amended rules to help avoid interpretation differences.
Mr. Robert Loose, representing Kiowa-Bijou District addressed the Commission. Mr. Loose stated that his district supports what Mr. Jones, Mr. Tausig and Mr. Shimmin have said. He added
that his district is not in a position to take the lead financially. Mr. Loose stated that his district and others along the Front Range have different issues than those in the Northern
and Southern High Plains. His district supports changing the rules because things are different then from 20 years ago and they are outdated.
Ms. Lisa Thompson representing the Upper Black Squirrel District addressed the Commission. Ms. Thompson advised the Commission that her board is very interested in the topics, especially
the first two, but that they have not met to discuss them as yet. She requested that they be given an opportunity to discuss the items at a meeting and submit written comments. Ms.
Thompson went on to say that the district does have enforcement issues on a monthly basis. She added that the district has concerns over the cost of processing the violations and the
ambiguity about collecting fines and fees. The <board has, in the past, supported legislative changes for enforcement matters. One area of concern is the enforcement of orders and
old decrees, not just permit terms.
In response to a question of Commissioner Coryell, Commissioner King said that he believed a bill, specifically identifying fines and enforcement costs, could be passed, especially if
supported by the interim legislative water committee.
During a discussion over the costs of putting the legislation through, Commissioner King stated that if the interim committee supported the legislation, then the Department would take
lead in advancing it through the legislature.
Commissioner Burr confirmed that if the interim committee had unanimous support for the legislation then the bill would be a committee bill and not a Department of Natural Resources
bill.
Commissioner Burr moved to require staff to work with the districts to arrive at suggested rule amendments that incorporate district rules for the proposed rule making process.
Commissioner Huwa seconded the motion
Commissioner Bledsoe asked to amend the motion to include that staff return in November with the suggestions. Commissioners Burr and Huwa accepted the amendment and the motion passed
unanimously.
Chairman Coryell called for agenda item no. 8, Update on possible change to Rule 5.5, by Keith Vander Horst.
Mr. Vander Horst reviewed the history of the item for the Commission. He went on to state that he had received his first comments on the proposed change that morning when Mr. Shimmin
indicated that his districts discussed the matter and determined that as proposed, the amended rule has no standards, it is entirely at the discretion of staff to grant or not.
Commissioner Smith reminded the Commission that this issue came about because of a land owner in the Southern High Plains. Mr. Smith concluded his remarks by stating that he was not
sure if this was the way to go or not. Mr. Vander Horst agreed with Commissioner Smith saying that due to the small number of wells the amendment would apply to, the well owners could
continue to come before the Commission on a case by case basis. The other options, if the Commission wants to proceed with changing the rule, are to have interested parties discuss
the proposal and bring it to the November meeting or to pass a motion now to proceed with the rule making and discuss it through the process.

Commissioner Smith recommended continuing the discussion to the next meeting.
Chairman Coryell called for agenda item no. 9, Staff Report by Keith Vander Horst
Mr. Vander Horst reviewed the written report. Regarding the final permit process, he informed the Commission that the last group for the Southern High Plains had been published and
that new permits will be handled as the statement of use is submitted. He also indicated that one (1) group in Upper Black Squirrel had been published, leaving staff working on finalizing
one (1) group in each of Lost Creek and Upper Black Squirrel. Mr. Vander Horst informed the Commission that there was not much change in the matter of hearings. There was one new case,
12-GW-26, which was also closed because the objector withdrew the objection. On enforcement actions; in Kiowa-Bijou, the Sullivan permit was irrigating an unpermitted green house which
has been eliminated. Also in Kiowa-Bijou, a permit owned by Magnum Feed yards was being used in the feed lot without proper being properly permitted for that use. Staff is working
with the well owner<. In the W-Y District, a show cause letter had been sent to a well owner with expanded acres. Mr. Vander Horst advised the Commission that staff in Denver and
in the Northern High Plains have received phone calls from irrigators concerned that they may pump more than they are permitted this year. He continued saying that staff’s response
had been the permit is good for the permitted volume and that orders may be issued if the well owner exceeds his permitted annual appropriation. This item will be discussed by Mr.
Kevin Rein under new business.
There were no questions of Mr. Vander Horst.
Chairman Coryell called for agenda item no. 10, the Attorney General’s report.
Ms. Jen Mele addressed the Commission, noting that the two main cases being worked on at the present time are the Gallegos case, to be heard by the Commission on September 5th and the
Meridian case, to be heard by the Hearing Officer in January. In this case, staff has joined the applicant, Meridian, in their motion for summary judgment that the water is surface
water. The Hearing Officer has not ruled so there is a possibility that the hearing will not take place.
There were no questions of Ms. Mele.
Chairman Coryell called for agenda item no. 11, Management District Reports
Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, reported that the weather has been hot, dry and windy. He expects a lot of wells, mostly
under appropriated, to go over their allocation. Of the 175 wells that the districts watch, 6 are already over their allocations. His districts will have enforcement proceedings against
these violators with paybacks next year. Mr. Midcap stated that cease and desist orders will be issued if irrigators exceed their allotment next year during the payback. Mr. Midcap
closed his remarks thanking the Commission holding its meeting in Burlington and RRWCD for the ceremony Thursday.<
Mr. Jack Dowell, reporting the W-Y GWMD, opened his remarks thanking the RRWCD staff for the dedication of the pipeline. He too reported that it has been hot, dry and windy. He also
stated that the rain they have received has been minimal and spotty. Mr. Dowell advised the Commission that he had begun his chemigation inspections, with one failure to-date. He
added that it is difficult to get in because farmers have sprayed two & three times for spiders. He said that the wheat harvest was surprisingly good with up to 50 bushels reported
with test weights of 62 pounds and protein at 13.
Mr. Rod Mason, reporting for the Arikaree GWMD, reported that he is receiving 2 to 5 calls a day from irrigators concerned about over pumping, he expects more than 100 wells will be
over pumped this year. Mr. Mason reported that his district is looking at instituting a 1:1 pay back rule.
Ms. BreAnn Ferguson, reporting for the Plains and East Cheyenne GWMD’s, reported that the Plains District has received more rain the East Cheyenne. She added that the wheat harvest
was completed on July 4 and that corn was being cut for silage with the dry land corn burnt up. She has had one (1) well in Cheyenne County go dry.
Mr. Max Smith, reporting for the Southern High Plains GWMD reported the same as the other districts. He noted that what rain did fall, fell in town rather than in the country.
Mr. Robert Loose reporting for the North Kiowa Bijou GWMD reported that things in his district are the same as everywhere else. He questioned what procedures needed to be followed to
cancel a well permit. Mr. Loose then referred the Commission to page 5 of the Staff Activity Report, the small capacity permit section of the chart. He noted that of the 108 new applications
for a small capacity well, 57 (Kiowa-Bijou-30; Lost Creek-4; Upper Black Squirrel-17 and Upper Big Sandy-6) are located in one of the Front Range Basins. Mr. Loose also noted that
of the 79 new small capacity permits issued 39 (Kiowa-Bijou-23; Lost Creek-4; Upper Black Squirrel-8 and Upper Big Sandy-4) are in the same Front Range basins. He pointed out that
these numbers are not for the full year but are only for three (3) months. He believes that these numbers demonstrate the need for small capacity levies and revision of the rules.
Mr. Vander Horst addressed the Commission stating that to cancel a well permit, the well owner need only submit a request to cancel a well permit. Staff would then cancel the well permit
and associated water right, a very simple procedure.
Mr. Tim Hunker, reporting for the Upper Black Squirrel GWMD, reported that the district, in conjunction with El Paso County and several municipal users, has started phase II of ground
water contamination study. Information on the study is available under development services on the El Paso County website. He affirmed Commissioner Schubert’s comments about people
coming to the meetings and complaining of being out of water, especially for those located in the southern end of the basins.<
Mr. David Tausig reporting for the Upper Big Sandy GWMD, reported that there are a few producers in his district that have shut down because the water does not go far enough in the heat.
He advised the Commission that the district received its first check for export of water by the Town of Limon.
Mr. John Cordiss, reporting for the Lost Creek GWMD, reported that the dry land farmers did fairly well this year but the hot, dry weather is going to affect them next year. He also
stated that the lack of recharge will affect not only dry land farming but irrigated lands as well. Mr. Cordiss concluded his remarks with mention of two large dairy farms moving into
the area.
Ms. Deb Daniel, reporting for the Republican River Water Conservation District, lauded the cooperation of the land owners, districts, communities and counties in the pipeline project.
She did thank the Commission for holding its meeting in Burlington< and invited them back.
Chairman Coryell called for agenda item no. 12, old business. There was none.<
Chairman Coryell called for agenda item no. 13, new business.
Mr. Kevin Rein addressed the Commission on the matter of over pumping of irrigation wells. He said that at this point in time, for staff to take action it would be the end of the irrigation
season before anything is done. He did note that year end pumping reports are due by the first of December and staff can then compile list of those that did over pump in 2012 and observe
them more closely in 2013 by a stepped up meter reading program. Mr. Rein noted that the four (4) districts with pay back rules will be self enforcing them.
There were no questions of Mr. Rein
Chairman Coryell called for agenda item no. 14, public comment.
Mr. Scott Tietmeyer from the Upper Crow Creek Basin addressed the Commission. He asked the Commission if a report from the Upper Crow Creek could be made a regular part of the agenda
as he and his neighbors believe that the Commission needs to be aware of Basin matters.<
Mr. Tietmeyer reported that the basin is suffering from the drought along with everybody else, they have had approximately 4” of rain since March. He noted larger than normal cattle
culling this year because of sparse grass. He reported that the amount of water being sold for fracking purposes has declined. Mr. Tietmeyer closed his comments by advising the Commission
that some in the basin are discussing forming a management district.
In response to a question from Commissioner Burr, Mr. Tietmeyer stated that there are about 100 wells in the Basin.
Commissioner Mikita asked about the kinds of regulations the state of Wyoming has. Mr. Tietmeyer responded that they have shut down for any new wells but admit to a policy of over appropriating
the area to prevent water from leaving the state. As a land owner in Wyoming he attends such meetings and said that they are being asked to adopt their own conservation methods in
Wyoming.
Mr. Vander Horst questioned the Commission about the request of Mr. Tietmeyer to have Upper Crow Creek put on the agenda. The Commission agreed to the request.
Commissioner King suggested that the Commission take five (5) minutes on September 5th, before hearing the Gallegos case, to discuss the proposed legislation.
Commissioner Smith addressed the Commission and audience. He acknowledged the dedication and efforts of Chairman Coryell over the past sixteen (16) years both for the Ground Water Commission
and the Republican River. He presented three apple trees to Commissioner Coryell.
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 10
August 17, 2012
Minutes2012-8-17.pdf
MinutesSpecial-2012-9-5.docxMINUTES

MINUTES
COLORADO GROUND WATER COMMISSION
SPECIAL MEETING
SEPTEMBER 5, 2012
A special teleconference meeting of the Colorado Ground Water Commission took place on September 5, 2012, at 1313 Sherman Street, Room 318. Chairman Coryell 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 Carolyn Burr, Corey Huwa, Dennis Coryell, Ginny Brannon
and Dick Wolfe. Commission members present by telephone were Grant Bledsoe, Larry Clever, Ernest Mikita, George Schubert, Max Smith, Virgil Valdez, Staff members present were, Keith
Vander Horst, Richard Nielsen and Chris Grimes. 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.
Chairman Coryell called for agenda item no. 2, an update on submittal to the Legislative Interim Water Resources Review Committee.
Mr. Kevin Rein distributed the language of the proposed legislation to the Commissioners. He then provided a short summary of the matter from the motion of the regular quarterly meeting
in May directing Director Wolfe to draft the proposed language through the discussion at the quarterly meeting in August and subsequent discussion with the districts. Mr. Rein said
that the framework of the language, written by Mr. Shimmin in 2009, is to amend 37-90-130(4), to allow Management Districts greater authority for the issuance of orders, enforcement
of those orders and collecting monetary penalties on violations by large capacity wells over District Rules and permit conditions of approval. He detail<ed the next steps to bring the
proposal through the committee and before the legislature. In response to a question of Commissioner Coryell, Mr. Rein concluded his report stating that one member of the committee
will introduce the bill but that the bill would be recognized as a committee bill.
Chairman Coryell called for agenda item no. 3, being a hearing of appeal of the Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer in the matter of the
petition to de-designate portions of the Upper Crow Creek Designated Ground Water Basin submitted by the Gallegos family, Case No. 03-GW-06
Chairman Coryell set forth the guidelines that would be followed during the hearing. Each party, petitioners, objectors and staff would present their arguments before the Commission
in thirty minutes or less, with petitioners being allowed to use part of the thirty minutes for rebuttal.
Commissioner Brannon advised all parties that this case began when she was an attorney with the Attorney General’s Office as staff representative. She also stated that she left that
office in 2007 and did not recall working on this case. Ms. Brannon questioned all parties and the Commission about objections to her sitting for the hearing. There was none.
Mr. Tim Buchanan, attorney for petitioners, addressed the Commission. He opened his remarks with a short history of the case which was first filed in 2003 and ending with the 2012 Supreme
Court Decision to remand the matter back to the Commission. Mr. Buchanan argued that this remand requires the Commission to alter the boundaries of the Basin <to exclude surface water
and improperly designated ground water under 37-90-101(1)(a) if future conditions and factual data justify or if pumping of ground water has more than a de-minimus effect on surface
water other than that present at the original designation.
Mr. Buchanan next discussed the 1987 designation of Upper Crow Creek Basin. He claimed that in the designation hearing the Commission only considered prong 2, ground water not adjacent
to a continuously flowing stream and which has constituted the principal source of water for at least 15 years prior to the first designation hearing. <Mr. Buchanan argued that the
first designation prong, ground water not available or required for the fulfillment of surface water rights, was not considered except for the area of Little Crow Creek which was excluded
from the Basin because objections were filed based on potential injury to a surface right.
Mr. Buchanan next discussed the requirement of new factual data that was not present at the time of designation. He argued that what is required is a new interpretation or conclusion
of the data available in 1987 but not considered by the Commission at that time. Mr. Buchanan stated that the Supreme Court was clear that the Gallegos family must have the opportunity
to prove that future conditions and factual data justify modification of the Basin boundaries through the presentation of evidence that was not available to the Commission at the time
of designation. He went on to remind the Commission of his earlier argument that the Commission did not consider injury to the Gallegos surface water rights nor were any determinations
made by the Hearing Officer under prong 1 at the time of the designation.
Mr. Buchanan said that the issue for the Commission to decide is if future conditions and factual data require the modification of the Basin boundaries and the reversal of the decision
of the Hearing Officer. He asserted that the Hearing Officer’s ruling that the Commission, in 1987, had evaluated all available information is fundamentally wrong as a matter of law.<
Mr. Buchanan <put forth that the Hearing Officer erred in looking at anything the Commission may have had before it in 1987 rather than looking strictly at the evidence of the present
proceedings. Specifically diminished surface flows due to drought and development in Wyoming, both claimed to not have been considered in 1987, both a future condition and both reducing
the surface water available to meet his client’s rights. He added that the alluvial neck discussed in the hearing was information available to 1987 but never discussed or made a part
of the determinations. He< asserted that the Hearing Officer dismissed all of the evidence that was submitted and held that the Gallegos family had to determine their historic consumptive
use before they could ask for their decreed water, contrary to Colorado’s history of priority administration.
Mr. Buchanan closed his arguments and answered questions by the Commissioners.
Commissioner Burr asked if, during designation proceedings, the Commission was required to examine both prongs? Mr. Buchanan responded that no, the Commission had only to look at one
prong but in doing so left the elements of the other prong open for future< contestation of the designation.
Commissioner Burr and Mr. Buchanan then discussed the permanency of designation if successors in interest can come back 20 years later and petition for de-designation when their predecessors
did not object at the time of designation.
In response to a question from Commissioner Coryell, Mr. Buchanan explained how it was determined that his clients were short 150 acre-feet of water annually from well pumping.
Commissioner Wolfe and Mr. Buchanan had a discussion on how well operation and the changed circumstances of the drought and development in Wyoming relate to the matter. Mr. Buchanan
stated that it was in time of drought that priority matters and that if approved, wells would need to be augmented thereby making whole injuries to the stream caused by their pumping
and allowing the Gallegos to divert their water rights.
Responding to Commissioner Mikita, Mr. Buchanan stated that there is no evidence in the file which indicates that in 1987, the owners of the water rights ceded the surface water rights
or otherwise understood that the surface water rights would be lost.
Mr. David Jones, attorney for the objectors addressed the Commission.
Mr. Jones opened his arguments by stating that injury was considered at the time of designation and that boundaries of the basin were redrawn in response to objections by holders of
surface water rights. He continued with <a discussion on the appeal process through the District Court. Mr. Jones outlined how the petitioners’ motion for a determination of a question
of law prevented the District Court from hearing any evidence or rule on the appeal. Mr. Jones said that it was the denial of this motion that was appealed to the Supreme Court, not
the ruling of the Hearing Officer denying the petition to de-designate portions of the Basin. Mr. Jones said that the District Court order denying the motion on the question of law
held that the Commission was not required nor did it have the jurisdiction to curtail wells to protect surface water rights.
According to Mr. Jones the Supreme Court said that the Commission has limited jurisdiction to adjust boundaries of a basin and may do so only if justified by proof that the wells in
question are pumping ground water that is hydraulically connected to the surface stream and causing injury, which the petitioners have not yet done but rather they went directly to
the relief sought. He n<oted that the petitioners request to the Supreme Court for reconsideration on this ruling was denied.
Mr. Jones advised the Commission that in their ruling, the Supreme Court stated that the petition must fail if the petitioner is unable to present evidence of connectivity and injury
that was not available to the Commission at the time of designation.
Mr. Jones argued that in the present petition, the petitioners know, based on the ruling of the Supreme Court, that they need to prove that the wells to be excluded from the Basin are
not pumping designated water but water hydraulically connected to the surface stream, that their water rights have been injured by these wells since designation in 1987 and do so with
evidence not before the Commission at designation.
Objectors are of the opinion that petitioners did not present evidence of connectivity and injury that was not before the Commission at the time of designation. He said that the information
presented was taken directly from the Kirkham Report, the report prepared specifically for the Commission in the designation process, and reframed it. Mr. Jones s<tated that the petitioners’
expert witness agreed that the majority of injury occurred before designation and that diversion records were incomplete.
In conclusion Mr. Jones asserted that the Gallegos predecessors’, by their involvement in and support for the designation waived their right to assert injury.
In response to a question of Commissioner Wolfe, Mr. Jones stated that the issue of “waiver” will not arise again because the statute was changed eliminating the provision allowing for