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would include uses such as offices, restaurants, gas stations, retail establishments, hotels, and other businesses involved in the purchase, sale, lease or exchange of goods or services. Uses that involve the production or manufacture of goods, commodities, or raw materials that would then be transported and sold in commerce, or situations where the water itself would be sold and applied to other types of end beneficial use, would not be included in the specific category of commercial use. Therefore, for purposes of issuing new permits for commercial use, the Staff will apply the definition that is underlined above. If there are questions about whether a proposed use is commercial or not, we will consider those on a case-by-case basis. Uses allowed under the category of commercial Page 2 August 4, 2014 If questions arise about the allowed uses of an existing well permitted for commercial use, we will consider the allowed uses on a case-by-case basis, with the appropriator’s intent at the time of the appropriation, as supported by satisfactory evidence, generally controlling. If evidence of the intent shows uses other than what would be included in the definition that is underlined above, those uses would generally be allowed to continue. In the absence of evidence of intent the definition that is underlined above would generally apply. We do note that statute contains a specific statutory reference to issuing small capacity commercial well permits for confined (or concentrated) animal-feeding operations (“CAFO”s). Section 37-90-105(4)(b) C.R.S. specifically allows small capacity commercial permits to be issued pursuant to § 37-90-105(1)(c) C.R.S., until December 31, 1999, to unpermitted wells constructed prior to May 8, 1972 that served CAFOs prior to January 1, 1996, and to wells permitted for other small capacity uses that served CAFOs prior to January 1, 1996. Such wells were in addition to the one commercial business well otherwise allowed in subsection 105(1)(c). Since existing CAFO wells could be issued small capacity commercial use permits pursuant to subsection 105(4)(b), new CAFO wells will be allowed to be permitted under subsection 105(1)(c). Any questions or comments from the Commissioners are welcome. ### DeNovoMemoToGWC.pdf 1313 Sherman Street, Room 821, Denver, CO 80203 P 303.866.3581 F 303.866.3589 www.water.state.co.us Ground Water Commission 1313 Sherman Street, Room 821 Denver, CO 80203 August 1, 2014 To: Ground Water Commissioners From: Dick Wolfe, Executive Director Re: Proposed statute change to “de novo” appeals of GWC decisions As the Commission is aware the decisions of the Commission in the Gallegos and Meridian cases have recently been appealed to District Court. After an 8 day administrative hearing in the Gallegos case and a 3 day administrative hearing in the Meridian case, an 8 trial and a 3 day tail were subsequently required in the respective cases before the District Courts. When a party is “adversely affected or aggrieved’“ by a decision of the Commission, that party may take an appeal of the decision to District Court, pursuant to the provisions of the Colorado Ground Water Management Act, § 37-90-115, C.R.S. (2013), Pursuant to that section of the act, “[p]roceedings upon appeal shall be de novo; except that evidence taken in any administrative proceeding appealed from may be considered as original evidence, subject to legal objection, as if said evidence were originally offered in such district court.” Over the years it has not been unusual for a party to appeal a decision of the Ground Water Commission, but the appeal was typically based solely on the evidence that had been adduced before the Commission and its Hearing Officer. However, in the Gallegos and Meridian cases, due to the de novo provision of statute, the Courts held new trials that considered evidence that the Commission had not considered. Based on direction from the Commission members, Staff has prepared the following reasons for your consideration as a basis for recommending changes to the existing statute. 1. Two complete trials are a significant investment of time and resources by Staff, the Hearing Officer, the Commission, the AG’s Office, and other parties in the case. 2. Appeals of the Commission are apparently the only appeals of any State agency that allow for new evidence to be introduced and considered. 3. Appeals of Commission decisions allow a party to rehabilitate a losing case by having the opportunity to present additional facts. We understand that at its February 16, 2014 meeting, following a presentation by Pat Kowaleski on the matter, the Commission requested proposed language that would amend the existing statute regarding how appeals of the Commission’s decisions are handled by the District Court. The decisions of most State agencies, unlike decisions of the Ground Water Commission, are reviewed solely on the record that is created by the agency, and the parties are not allowed to introduce new testimony on appeal. In those appeals the reviewing Court will look at things, such as whether the agency’s decision was arbitrary or capricious, or unsupported by any evidence when the record is considered as a whole. Unless such is found, the decision will be Ground Water Commissioners Page 2 August 1, 2014 upheld. See § 24-4-106 & 107, C.R.S. (2013). The amendment to the statute as herein proposed would not adopt the “arbitrary and capricious” standard applied to appeals of other State agencies, and would retain a Court’s de novo review, and therefore, independent review. The legislative change proposed herein would, however, require that the Court only review the record that was created by the Commission, and would not allow the consideration of any additional testimony on appeal, beyond that which was presented to the Commission. After reviewing the testimony and materials that had been presented to the Commission, the Court would reach its own conclusion on whether the relief sought on appeal should be granted. The existing statutory language of § 37-90-115(1)(b)(III) C.R.S. (2013) is: "Proceedings upon appeal shall be de novo; except that evidence taken in any administrative proceeding appealed from may be considered as original evidence, subject to legal objection, as if said evidence were originally offered in such district court." The proposed change to statute is: "Proceedings upon appeal shall be a de novo review of the record; except that with evidence taken in any administrative proceeding appealed from may being considered by the courtas original evidence, with such evidence subject to legal objection, as if said evidence were originally offered in such district court." It is believed the proposed statutory change would have a positive fiscal impact and save the State and other parties money because they would not have to prepare and participate in a second trial to defend new issues. Ideally, a legislative change like this could be brought before the Legislative Water Resources Review Committee (“WRRC”). The WRRC would hear presentation of a bill and consider comments from other parties to determine whether they would sponsor it. To bring the bill before the WRRC, an advocate on behalf of the Commission should prepare a presentation and contact the WRRC chairs to be put on the agenda as soon as possible. While DNR may not take a position on the bill, Commission staff will assist the Commission’s advocate in making contact with the Committee chairs. The alternative to the WRRC sponsoring a bill would be that the Ground Water Commission members would be responsible for finding sponsors for the legislation. ### Enforcement Items and Actions August Meeting.docx Enforcement Items and Actions NORTHERN HIGH PLAINS Plains GWMD It was reported that Fred Ebert was using a domestic well to irrigate a tree farm without a well permit for commercial use. A show cause letter was sent to Mr. Ebert, and it was discovered that he had been granted a commercial permit for said use in May of 2013, but our office had not filed the permit with the correct permit file. At this time, Mr. Ebert is in compliance with his permit, and staff will be performing a field inspection to verify the irrigated acreage is less than one acre. John Stewart was found to be using his domestic well to irrigate in excess of the one acre allowed by the permit. A field inspection performed by a water commissioner calculated the well to be irrigating around four acres of lawn, garden, and trees. Mr. Stewart has agreed to irrigate no more than one acre, signing a well permit compliance notice to that effect. Staff will be following up with field inspections to ensure compliance. Jesus Perez was found to be using his domestic well to irrigate in excess of the one acre allowed by the permit. A field inspection performed by a water commissioner calculated the well to be irrigating around three acres of lawn, garden, and trees. Mr. Perez has agreed to irrigate no more than one acre, signing a well permit compliance notice to that effect. Staff will be following up with field inspections to ensure compliance. Arikaree GWMD Cure LLC was found to be using a small capacity commercial (Confined Animal Feeding Operation) well for unpermitted commercial uses, specifically for sale of water for oil and gas and/or road construction projects. A show cause letter was sent to the owners and they acknowledged the violation. They have agreed to use the permit within the confines of the permit. Staff will be following up to ensure compliance. W-Y GWMD Ruben Richardson was found to be using a small capacity commercial well (permitted to be used in a potato processing facility) in a Confined Animal Feeding Operation. Mr. Richardson is working with staff to ensure the well is operated in compliance with the well permit, and plans to change the use of the permit. < KIOWA BIJOU Staff continues to work with the Rocky Mountain Rooster hunting club to address violations associated with a number of illegal groundwater ponds discovered to be in existence on the ranch. During a recent meeting with the owner, Brett Axton, Staff requested that Mr. Axton immediately backfill the ponds to a point where groundwater is no longer exposed OR apply to permit the ponds as wells and apply for a replacement plan to offset the evaporative losses. At this time, the owners of the ranch are pursuing the well permitting option. Grd Wtr Comm - Hrg Off Report 8-01-14.pdf 1 HEARING OFFICER'S REPORT Prepared for the August 15, 2014, meeting of the Colorado Ground Water Commission The listing below summarizes all adjudicatory matters pending before the Colorado Ground Water Commission as of August 1, 2014. Updated/new information is indicated in bold italics. Gallegos, Reinaldo etc Case No. 03-GW-06 Designated Basin: Upper Crow Creek Date of request: 30-Apr-03 Subject: Petition to de-designate portions of the Upper Crow Ck Designated Basin Status: Hearing Officer issued decision on March 27, 2012. Commission upheld Hearing Officer’s decision. Case appealed to District Court for de novo review (see Case No. 03CV1335, Weld County District Court). Trial was held in February. Awaiting decision from District Court. Woodmen Hills Metro Dist, Case No. 03-GW-20 Designated Basin: Upper Black Squirrel Date of request: 30-Oct-03 Subject: Objection to (3) three applications to appropriate designated ground water from the alluvial aquifer of Black Squirrel Creek, or its tributaries and an application for a replacement plan to prevent injury to water rights of other appropriators and allow the proposed appropriation from the alluvial aquifer. Receipt No 501564-A, B, and C. Status: Awaiting republication and information from the Applicant. Cherokee Metro & Meridian Svc Dist. Case No. 08-GW-71 Designated Basin: Upper Black Squirrel Date of request: 15-Oct-08 Subject: Objection to an application for approval of a replacement plan to make new appropriations from the alluvial aquifer within the Upper Black Squirrel Creek Designated Basin. Status: Two weeks of hearing held June 8th thru June 19, 2009. Case consolidated with Case Nos. 08GW78 as well as the change case filings for well nos. 9 through 12 (09GW15). Case is presently stayed pending outcome of district court declaratory judgment proceedings on stipulation interpretation. Supreme Court issued a decision in December on the ability of Meridian to Intervene in the declaratory action regarding the 2 stipulation in 98CW80 and indicated Meridian could intervene and remanded to water court for further action. All cases related to the replacement plan are stayed pending the outcome of a determination concerning interpretation of the stipulation as it relates to use and reuse within the basin. Action still pending determination by District Court as to whether Order entered by Court is presently appealable. Relevant cases before Commission therefore remain stayed. Cherokee Metropolitan District Case No. 08-GW-78 Designated Basin: Upper Black Squirrel Date of request: 29-Dec-08 Subject: Objection to an application to change the type and place of use of Well Permit No. 49988-F. Status: See Case No. 08GW71 above. Case stayed pending resolution of declaratory judgment action in water court. Farmer, Edna I Case No. 09-GW-02 Designated Basin: Upper Black Squirrel Date of request: 12-Mar-09 Subject: Objection to an application for Determination of Water Right Status: Stayed pending outcome of Cherokee replacement plan case, Case No. 08GW71. Farmer, Daniel & Teresa Case No. 09-GW-03 Designated Basin: Upper Black Squirrel Date of request: 12-Mar-09 Subject: Objection to an application for Determination for Water Right Status: Stayed pending Cherokee replacement plan case, Case No. 08GW71. Meridian Service Metropolitan Dist., Case No. 09-GW-11 Designated Basin: Upper Black Squirrel Date of request: 15-Jun-09 Subject: Objection concerning an application to change a determination of water right Status: Stayed pending outcome of Case No. 08GW71 (Cherokee replacement case). 3 Cherokee Metro & Meridian Svc Dist. Case No. 09-GW-15 Designated Basin: Upper Black Squirrel Date of request: 17-Nov-09 Subject: Objection to an application to change the type and place of use Status: See 08GW71 above. Case is presently stayed pending outcome of district court declaratory judgment proceedings. Greathouse, William Case No. 11-GW-06 Designated Basin: Southern High Plains Date of request: 3-May-11 Subject: Objection to the Issuance of a Final Permit Status: Prehearing conference scheduled for August 4, 2011. At prehearing conference parties agreed to attempt to resolve the matter. Case is stayed pending outcome of negotiations. Staff sent letter to Applicant in June of 2012 and is awaiting reply. As of February 5, 2014, staff informed hearing officer they have spoken to lessee and expect response in near future. Stay Order continues. Meridian Service Metropolitan District Case No. 12-GW-10 Designated Basin: Upper Black Squirrel Date of request: 12-Jan.-12 Subject: Nature of water. Status: Initial decision of Hearing Officer entered on April 25, 2013. Commission upheld Hearing Officer’s decision. Meridian appealed to El Paso County District Court. Certification of record on appeal is complete. Trial completed, awaiting District Court decision. Front Range Resources, LLC Case No. 13-GW-05 Designated Basin: Lost Creek Date of request: 12-Sept-13 Subject: Change the place of use of ten wells located in the Lost Creek Designated Basin Status: The case is set for a 3 day hearing commencing on August 25, 2014. 4 Front Range Resources, LLC Case No. 13-GW-07 Designated Basin: Lost Creek Date of request: 12-Sept-13 Subject: Application for approval of a replacement plan located in the Lost Creek Designated Basin Status: Case is set for a fifteen day hearing commencing February 23, 2015. Blake and Chelsea Gourley Case No. 14-GW-01 Designated Basin: Southern High Plains Date of request: May 12, 2014 Subject: Application to construct a new well Status: Case is set for trial to commence on October 17, 2014. Meridian Service Metropolitan District Case No. 14-GW-02 Designated Basin: Upper Black Squirrel Date of request: May 27, 2014 Subject: Applications for approval of under drain well permits Status: Case is set for 3 day hearing, January 14 through 16, 2015. James T. Gardner (Deceased) Case No. 14-GW-03 Designated Basin: Upper Black Squirrel Date of request: May 27, 2104 Subject: Application for change of description of irrigated acreage. Status: Status conference set for August 12, 2014. Meridian Service Metropolitan District Case No. 14-GW-04 Designated Basin: Upper Black Squirrel Date of request: July 14, 2014 Subject: Applications to change determinations of water rights. Status: Setting conference scheduled for August 5, 2014. Respectfully submitted ___________________ ___________ Joseph (Jody) Grantham, Hearing Officer Hotel_&_Tour_memo.docx Ground Water Commission 1313 Sherman Street, Room 821 Denver, CO 80203 June 26, 2014 MEMORANDUM TO: </w:Ground Water Commission Members, DWR Staff, Ground Water Management Districts and Other Interested Parties</w: FROM: </w:Rick Nielsen, Secretary to Ground Water Commission SUBJECT: August 14 & 15, 2014 Commission Meeting, Loveland Colorado __ A block of rooms has been reserved at the Embassy Suites Hotel, 4705 Clydesdale Pkwy, Loveland Colorado 80538. I will make reservations for the Commission Members and staff on a master bill so you will not pay when you check out. Commission Members and staff, please let me know by July 16, 2014 if the information provided earlier (whether you plan to attend the meeting, the number in your party and if you need a room) has changed so that I can prepare a final rooming list. If you are not planning to attend the meeting, please let me know. Note: the discounted room rates are available from two days before to two days after or from 8-13-14 through 8-17-14.< Ground Water Management Districts and other interested parties, a block of rooms has been reserved for you as well. You must make your reservations, under Colorado Division of Water Resources, not later than 5:00 P.M. on July 21, 2013, at 970-593-6200. Note: the discounted room rates are available from two days before to two days after or from 8-13-14 through 8-17-14. The meeting will be held in the Goldenglow Room at the Embassy Suites Hotel, 4705 Clydesdale Pkwy, Loveland Colorado 80538. The tour for August 14th is not finalized. At this time it is anticipated that we will visit a gas/oil drill rig site and local areas of recovery from the devastating flooding of last year. More information will follow.< Dinner, keynote speaker Justice Gregg Hobbs, will be in the Goldenglow Room at the Embassy Suites Hotel beginning at 6:30. For $<50.00, you will be able to dine on Roast Beef Tri-Tip, cowboy rub with Shanahan’s Colorado Whiskey barbecue sauce and/or Filet of Salmon stuffed with crabmeat, spinach and pine nuts, with sides, beverage and dessert. I will collect the $<50.00 for guests of Commissioners and staff and all other parties attending prior to boarding the bus or, for those not attending the tour, starting at 6:15 at the dining room. Minutes2014-5-16_Draft.docxMINUTES MINUTES SECOND QUARTERLY MEETING COLORADO GROUND WATER COMMISSION MAY 16, 2014 The Second Quarterly Meeting of the Colorado Ground Water Commission took place on May 16, 2014, at Castle Rock Town Hall, 100 N Wilcox, Castle Rock, Colorado. Vice-Chairman Steve Kramer 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, Larry Clever, Steve Kramer, Greg Larson, George Schubert, Max Smith, Scott Tietmeyer, Virgil Valdez, Dick Wolfe and Andy Moore, Staff members present were Keith Vander Horst, Richard Nielsen, Chris Grimes, Jay Bloomfield, David Keeler, Matt Sares 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. Vice-Chairman Kramer called for agenda item no. 2, Review and Approval of Agenda Items. Mr. Kramer noted that there were two changes to the agenda, recognition of Commissioner Huwa’s service and the election of chair and vice-chair. Commissioner Valdez moved to accept the agenda as amended. Vice-Chairman Kramer called for agenda item no. 3, election of Chair and Vice-Chair. Commissioner Larson nominated Commissioner Burr for chairwoman. Commissioner Valdez seconded the nomination. Commissioner Smith moved to close nominations and that Commissioner Burr be elected chairwoman by acclamation. Commissioner Schubert seconded the motion which passed unanimously with Commissioner Burr abstaining. Chairwoman Burr called for nominations for Vice-Chair. Commissioner Clever nominated Commissioner Kramer for vice-chairman. Commissioner Larson seconded the nomination. Commissioner Valdez moved to close nominations and that Commissioner Kramer be elected vice-chairman by acclamation. Commissioner Tietmeyer seconded the motion which passed unanimously with Commissioner Kramer abstaining. Commissioner Wolfe read a resolution thanking Commissioner Huwa for his service and dedication to the Commission. Commissioner Larson moved to accept the resolution into the record. Commissioner Clever seconded the motion which passed unanimously. Chairwoman Burr presented Commissioner Huwa with a framed copy of the resolution and a plaque thanking him for his service. Approval of Minutes for Meeting of February 21, 2014, Chairwoman Burr asked if there were any corrections or additions to the minutes. <Commissioner Wolfe advised the Commission that he had located a few errors and that he would pass them on to Secretary Nielsen. Ther<e being no further edits; Commissioner Kramer moved to approve the minutes as amended. Commissioner Smith seconded the motion which carried unanimously. Report of the Executive Director by Dick Wolfe Mr. Wolfe opened his remarks acknowledging the election of Commissioner Burr as Chairwoman and Commissioner Kramer as Vice-Chair. He also acknowledged the appointment of Mr. Marc Arnusch to the Commission and the re-appointment of Commissioners Burr and Valdez. Mr. Wolfe brought the Commission up-to-date on the RRWCP. He noted that the pipeline was operational under the one-year approval of Kansas and Nebraska and that the delivery of approximately 4,000 acre-feet went well. Mr. Wolfe noted that discussions with Kansas continue and that the State Engineer of Kansas was going to take our proposal to the people in the field, a first. Mr. Wolfe concluded his remarks by noting that the measurement rules for the Northern High Plains will be amended to include that southern most portion not previously included by the end of the summer or early fall. Chairwoman Burr called for agenda item no. 7, Commissioners’ reports. Commissioner Tietmeyer advised the Commission that he had attended the State of the Basin symposium and really enjoyed it. He asked to be invited to any symposium or information sharing gathering that anybody holds or learns of. Commissioner Kramer advised the Commission that Mr. Jim Martin, Water Commissioner in the Republican Basin, has attended a few local District meetings answering questions and providing information, keeping the users up-to-date. It has been appreciated. He also said that the Water Preservation Partnership is slowly moving forward with plans to formally organize this week or next. Chairwoman Burr called for agenda item no. 8, a Report on water level measurements in the Designated Basins, by Ralf Topper. Mr. Topper provided a brief introduction into the monitoring well data base, procedures and how to read the page of the report and associated maps. He advised the Commission that Upper Crow Creek is the only Basin without a measurement program. Mr. Topper went through each basin, informing the Commission of the number of monitoring wells in the basin (Northern High Plains has the most at 686 with Southern High Plains next with 88 wells), water level declines or increases. He noted that Upper Big Sandy around Limon, is stable with the water table 15 feet below ground surface and that Kiowa-Bijou has no monitoring wells South of I-70 and Lost Creek declines are different in the northern, middle or southern portions of the Basin while those in the Southern High Plains vary by the aquifer with the Dockum having the largest decline of 18.5 feet. Commissioner Burr asked Mr. Topper if there were plans to add to the network in those areas of no or little coverage. Mr. Topper said that finances inhibit adding to the program. He said that most of the wells in the program are inherited from the USGS and CSU who closed their programs because of budget concerns. Commissioner Burr expressed the opinion that the water levels in the atlases are a snapshot in time for the year, specifically spring as that is when the measurements are taken. Mr. Topper agreed. Commissioner Wolfe brought the Commissions attention to the name Kevin Donegan on the report. He advised the Commission that Mr. Donegan is a new employee in the hydrogeologic section, replacing Elizabeth Pottorff. Mr. Wolfe said that these reports are brought to the Commission as a tool for them to use. He went on to point out that in Mr. Toppers report, most Basins showed a decline in the static water level, information that Commission could use going forward, when deciding on reducing the aquifer decline or stabilizing the aquifers. Chairwoman Burr called for agenda item no. 9, the staff activity report. Mr. Keith Vander Horst discussed his written report. He noted that large capacity permits are being issued in Upper Crow Creek, Camp Creek and the Southern High Plains. Mr. Vander Horst noted that though technically open the Northern High Plains is essentially closed by over appropriation. Regarding enforcement actions, Mr. Vander Horst identified a well permitted for CAFO operations being used to fill ponds for irrigation and two wells in the Arikaree District that are providing water for oil and gas development and/or fracking. He said that the division receives a lot of calls regarding the use of water for fracking purposes, an industrial use not a commercial use. Mr. Vander Horst acknowledged Mr. Chris Grimes and Mr. Dave Keeler for conducting the recent well testers’ class and Ms. Sandy Johnson for assisting other areas of the state in issuing well permits. There were no questions of Mr. Vander Horst. Mr. Kowaleski took this time to acknowledge Mr. Vander Horst’s efforts in the eight (8) days of trial for the Gallegos case. Chairwoman Burr called for agenda item no. 10, the Attorney General’s report. Ms. Jen Mele reported that they were working on the closing arguments for the Gallegos matter. She also noted that she was preparing for the Meridian case which begins at the end of July. Ms. Mele ended her remarks on the upcoming hearings for Front Range Resources; one hearing regards a change in place of use and the other a replacement plan. Chairwoman Burr 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 his Districts had received up to 6 inches of snow in May but that there were 3 days of frost the hurt the wheat farmers. Mr. Midcap noted that the variability of static water levels as reported by Mr. Topper makes it difficult to get farmers to agree on conservation methods. He reported that he had finished his static water level measurements and is approximately one-third of the chemigation inspections. In response to a question of Commissioner Burr, Mr. Midcap advised the Commission that the water preservation project committee is made up of 1 board member from each District. Once they arrive at a plan they will include the users because if the users were in now nothing would be agreed on. Mr. Jack Dowell, reporting the W-Y GWMD, reported that his District had also received good moisture this month. They have probably received more moisture this month than the past two