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modification of basin boundaries. Ms. Jen Mele, attorney for staff addressed the Commission. Ms. Mele opened her comments by reminding the Commission of the standard for review of the matter which is controlled by Rule 10(e) of the Ground Water Commission Rules. Rule 10(e) states that the Commission shall not set aside the Hearing Officer’s findings of fact unless those findings are contrary to the weight of the evidence. She went on to remind the Commission that the Hearing Officer found that the petitioners failed to present evidence not previously before the Commission and that they failed to demonstrate injury to their rights. Ms. Mele asserted that the Hearing Officers decision should be upheld because it is not contrary to the evidence. Ms. Mele next discussed what is used in designating a ground water basin. Statute, 37-90-106(3) states that the Commission shall make its decision based on the factual information presented or available to them. She continued that the later part is important because it includes any information known or discussed together with personal knowledge and experience. That is why the Commission is composed of people knowledgeable in ground water matters. < Ms. Mele restated comments of Mr. Jones in that the Supreme Court found that the Gallegos skipped the injury determination and went directly to the remedy. Further, that the Gallegos petition must fail if they are unable to provide evidence of connectivity and injury that was not available to the Commission at the time of designation. Regarding the matter of the appeal that is before the Commission, Ms. Mele noted that the petitioners did not designate the record/transcript of the hearing as part of the record on appeal which is important because none of their experts or witnesses stated “here is the evidence that was not before the Commission at the time of designation”. Ms. Mele next discussed the issue of injury. She informed the Commission that injury is not the full amount of the decreed water right but rather a lessening of the available water supply that a water right holder would have placed to beneficial use based on historic practice. She went on to say that the petitioners failed to show the amount of water they needed to irrigate their property and the amount of water they would have had to irrigate if the wells had not been operating in relation the amount of water available to them if the wells had been pumping. Instead the petitioners testified as to the full amount of their decree not the amount they could place to beneficial use therefore they did not demonstrate injury.< Regarding the information on stream gage disparities, well pumping in Colorado and Wyoming and certain geologic features (the neck, thinning of alluvial and White River aquifers, loss of the Fan Aquifer and the ground water divide) claimed as evidence, by the petitioners, to not be before the Commission at the time of designation. Ms. Mele identified where those items could be found in the Kirkham Report. Ms. Mele used the fact that the Basin was designated under the second prong rather than the first, as evidence that the Commission was aware that the ground water was hydraulically connected to the surface stream. In fact, prior to designation the wells were required to have a plan of augmentation. Further, staff, at the hearing, presented several documents to demonstrate that the Commission was aware of the surface connection at the time of designation. Ms. Mele concluded her remarks by stating that the petitioners failed to present evidence of connectivity or injury that was not before the Commission at the time of designation. Further, she said that the Hearing Officer’s decision is in agreement with the evidence presented and should be upheld. In his rebuttal, Mr. Buchanan stated that the Supreme Court provided considerable guidance in what his clients must demonstrate in order for the boundaries of the basin to be modified. He cited two parts of the re-written opinion as support for the claim. Specifically the removal of the phrase “… new circumstances …” and leaving only “..future conditions require and factual data …”. The other change cited was changing the phrase “… changed circumstances or new data unknown at the time …” to “… evidence of connectivity and injury other than that before the Commission …”. He argued that these changes allow the< Commission to look at the same information but draw a different conclusion. As to the second change Mr. Buchanan argued that the only information considered for the designation was that identified in the designation orders. Further, he stated that the Commission did not consider all information in the reports and in fact could not look at or consider all possibilities. Specifically they, the Commission, did not address the claims brought forth by his clients because they are not in the report and as such are new and eligible for review lea<ding to adjustment of the basin boundaries. In response to a question of Commissioner Wolfe, Mr. Buchanan expounded on the concept of re-interpretation of information that existed at the time of designation. Commissioner Wolfe and Mr. Buchanan had a discussion about re-interpretation and the court’s ruling on preclusion. Commissioner Brannon questioned Mr. Buchanan on how the Commission of today was to know what information the Commission at the time reviewed and considered from that available to it. Mr. Buchanan responded that the designation orders specify that information considered by the Commission. In follow-up, Mr. Buchanan stated that though findings do not necessarily always note what was looked at in reaching the decision they should because that documentation is what the courts look for in any review. In answer to Commissioner Huwa’s question regarding the petitioner’s response to the matter of waiver by their predecessor, Mr. Buchanan said that testimony throughout indicates that previous owners did not give up their water rights. Chairman Coryell closed the hearing and opened the issue for discussion between the Commissioners. Commissioner Mikita expressed his concerns and confusion over retention of surface water rights when an area is being made a designated ground water basin and asked for clarification. Mr. Pat Kowaleski, councel for the Commission, determined that as a Commissioner asked for clarification of a matter during Commission discussion that all parties could put their opinion before the Commission. Mr. Buchanan responded that the transfer deed described not only the land but specified surface water rights. Mr. Jones stated that the matter of a surface water right in a system not tributary to any other system, an isolated right, was not considered by the legislature or ruled on by the water court. Ms. Mele provided that staff agrees with Mr. Jones, the water right still exists, but that it is administered under the “69” act, the prior appropriations act while the wells are administered under the ground water act, two separate and distinct management systems. Commissioner Huwa opined that the Gallegos bought a water right that was no longer there. There being no further discussion, Chairman Coryell presented the Commission with their choice of actions. Commissioner Wolfe asked Mr. Kowaleski to clarify what is before the Commission. Mr. Kowaleski reminded the Commission of what the Supreme Court ruled that the Gallegos family had to show and what the decision of the Hearing Officers was. He then advised the Commission on their possible actions. Commissioner Mikita moved to affirm the Hearing Officers decision. Commissioner Clever seconded the motion. There being no further discussion, Secretary Nielsen took a roll call vote. The motion carried unanimously. Respectively Submitted Richard A Nielsen, P.E., Secretary Colorado Ground Water Commission Ground Water Commission Meeting MinutesPage 2 September 5, 2012 MinutesSpecial-2012-9-5.pdf PacketMemo2012Nov.docx </w:t></w:r><w:r><w:rPr><w:rFonts w:ascii="STATE OF COLORADO GROUND WATER COMMISSION Division of Water Resources Department of Natural Resources 1313 Sherman Street, Room 821 Denver, Colorado 80203 Phone (303) 866-3581 </w:t></w:r></w:p><w:p w:rsidR="00707 FAX (303) 866-3589 John W. Hickenlooper Governor Mike King Executive Director, DNR Dick Wolfe, P.E. Executive Director November 6, 2012 MEMORANDUM TO: Ground Water Commission Members FROM: Keith Vander Horst, Designated Basins Team SUBJECT: Upcoming Ground Water Commission Meeting The upcoming Ground Water Commission meeting is scheduled for 10:00 a.m. on Friday, November 16, 2012, at the Town of Castle Rock Council Chambers, 100 N. Wilcox, 2nd Floor, Castle Rock, CO 80104. Please find enclosed herein the following: Meeting agenda. Minutes of the Commission meetings for August 17 and September 5, 2012, Agenda Item No. 4. Staff Activity Report, Agenda Item No. 8. Attorney General’s Report, Agenda Item No. 9. Update on Possible change to Rule 5.5, Agenda Item No. 11.b The Hearing Officer's Report will be provided by the Hearing Officer later The following items involving the 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, Agenda Item 7, is being provided to you via the Hearing Officer’s ftp site at: ftp://dwrftp.state.co.us/dwr/Hearings/Gallegos%2003GW06/Appeal/Costs2/ftp://dwrftp.state.co.us/dwr/Hearings/Gallegos%2003GW06/Appeal/Costs2/ Objectors’ Motion Gallegos’ Response Objectors’ Reply Please call myself or Rick Nielsen if there are any questions about the Commission meeting. cc:Commission Staff Designated Ground Water Management Districts Memorandum Upcoming Commission Meeting Page 2 Memorandum Upcoming Commission Meeting Page 2 COREY M. HUWA, VICE-CHAIRMAN, Roggen; STEVE KRAMER, Bethune; GRANT H. BLEDSOE, Wray; VIRGIL VALDEZ, Alamosa; C. MAX SMITH, Walsh; CAROLYN F. BURR, Denver; LARRY W. CLEVER, Grand Junction; EARNEST L. MIKITA, Calhan; GEORGE H. SCHUBERT, Calhan FRED A. HEFLEY, CHAIRMAN, Walsh; JON B. BROWNELL, VICE-CHAIRMAN, Hooper; EUGENE A. BAUERLE, Julesburg; ANNE J. CASTLE, Denver; DENNIS W. CORYELL, Burlington; MICHAEL GROSS, Silt; RICHARD F. HUWA, Keenesburg; F. W. (BILL) KERKSIEK, Strasburg; ERNEST L. MIKITA, Calhan PacketMemo2012Nov.pdf QRTSTAT-2012Nov.xlsQRTSTAT.XLS Print_Area_MI TABLE 1 DESIGNATED BASINS BRANCH QUARTERLY ACTIVITY REPORT C.R.S. 37-90- BASIN RECEIVED ISSUED KIOWA BIJOU LOST CREEK CAMP CREEK UPPER BIG SANDY TOTAL SUMMARY OF APPLICATION ACTIVITY INCOMPLETE AP NP AU AR AD & AW CHANGE APPLICATIONS UPPER CROW CREEK TOTAL RECEIVED NEW ISSUED REPLACE ISSUED NEW RECEIVED DENIED & WITHDRAWN NORTHERN HIGH PLAINS SOUTHERN HIGH PLAINS UPPER BLACK SQUIRREL CREEK RESUBMITTED SMALL CAPACITY PERMITS REPLACEMENT CA CANCELED LARGE CAPACITY PERMITS CHANGE OF WATER RIGHT LARGE CAPACITY PERMITS, LARGE CAPACITY PERMITS (NEW & REPLACEMENT) (INCLUES DETERMINATIONS OF WATER RIGHT) AUGUST 1, 2012 THROUGH OCTOBER 31, 2012 105.00 107.00 111.00 111.00 52.00 36.00 19.00 0.00 0.00 0.00 5.00 3.00 7.00 1.00 32.00 21.00 8.00 17.00 22.00 10.00 1.00 1.00 1.00 3.00 9.00 5.00 5.00 10.00 0.00 24.00 2.00 0.00 6.00 0.00 9.00 3.00 3.00 1.00 5.00 4.00 0.00 1.00 0.00 2.00 11.00 2.00 2.00 7.00 0.00 7.00 2.00 3.00 0.00 1.00 1.00 1.00 0.00 0.00 0.00 1.00 0.00 0.00 0.00 0.00 2.00 3.00 0.00 3.00 0.00 0.00 3.00 1.00 1.00 0.00 0.00 0.00 0.00 8.00 1.00 0.00 0.00 1.00 0.00 0.00 116.00 71.00 37.00 46.00 28.00 46.00 13.00 10.00 15.00 7.00 116.00 108.00 19.00 17.00 6.00 6.00 59.00 38.00 65.00 30.00 2.00 46.00 15.00 7.00 11.00 7.00 0.00 Rule55Change_StaffProposal2012-11-6.pdf StaffReport2012Nov.doc STATE OF COLORADO GROUND WATER COMMISSION Division of Water Resources Department of Natural Resources 1313 Sherman Street, Room 821 Denver, Colorado 80203 Phone (303) 866-3581 FAX (303) 866-3589 John W. Hickenlooper Governor Mike King Executive Director, DNR Dick Wolfe, P.E. Executive Director