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AG Report2018-8-3.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission August 17, 2018 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of August 3, 2018. cherokee metropolitan district </w:t></w:r><w:r w:rsidR="004A16ECase No. 08GW71 </w:t></w:r><w: </w:t></w:r><w:r><w:rPr><w:b/><w:13SA330 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Paul Benington 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 under a 1999 Stipulation 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. On June 17, 2013 the Court found that the 1999 Stipulation does not address whether Cherokee may claim wastewater return credits for its replacement plan. UBS filed an appeal on December 18, 2013. The Supreme Court upheld the decision of the District Court under the 1999 Stipulation, but included in the decision ambiguous language as to whether Cherokee can use effluent as a source of replacement water in a replacement plan. The Supreme Court held that it was for the Commission to decide whether the recharged wastewater could be credited toward replacement under a replacement plan. Counsel for Cherokee filed a Motion for Determination of Question of Law on January 31, 2018 to clarify its use of effluent in its replacement plan. The Hearing Officer ordered Cherokee to publish notice of its requested relief sought in the Motion. Publication occurred on March 15 and March 22, 2018. Staff filed a response in opposition to Cherokee’s motion arguing that the recharged wastewater could not be used as a source of replacement water in a replacement plan to be approved by the Commission because Cherokee relinquishes dominion over the wastewater such that it becomes designated ground water subject to appropriation in accordance with the statutory scheme and the Commission’s rules. However, Staff pointed out that Cherokee receives a benefit from the recharge close to Cherokee’s Sweetwater wells and from otherwise helping to sustain the aquifer. UBS also filed a motion opposing the motion. Cherokee filed its reply to all opposers on July 24, 2018 and, barring any requests to file sur-replies based on new facts set forth in Cherokee’s reply for the first time, the motion is now fully briefed for the Hearing Officer. No hearing will be set until the Hearing Officer rules on Cherokee’s motion.< cherokee metropolitan district </w:t></w:r><w:r w:rsidR="008C4F42">Case No. 08GW78 </w:t></w:r><w: </w:t></w:r><w:r w:rsidR="00FC0F61">09GW15 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Philip Lopez Subject: Applications to change the type and place of use of wells. Objections were submitted by the District and other water users in the basin. Both cases were consolidated with 08GW71 above. Status: See above. meridian service metro district </w:t></w:r><w:r w:rsidR="00EBCase No. 09GW11 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Philip Lopez Subject: Application for a change of water right. Two parties filed objections. Status: The hearing set for February 25 and 26, 2010 has been stayed because the water rights to be changed were for use in the replacement plan in 08GW71. The matter is stayed pending</ resolution of the issues in Case No. 98CW80 as described above for Cherokee Metro District’s replacement plan. < HUTTON EDUCATIONAL FOUNDATION V. REIN, ET AL. Case No. 15CW3018 Designated Basin: Northern High Plains Management District: Attorney: Chad Wallace, Pat Kowaleski Subject: Lawsuit filed by the Hutton Educational Foundation in an effort to make the State Engineer administer designated ground water rights and surface rights together for the purpose of compact compliance under the Republican River Compact. Complaint also alleges that SB-52, which revised 37-90-106 to limit how designated basin boundaries may be modified, and the Colorado Groundwater Management Act of 1965, are unconstitutional. The Ground Water Commission filed a Motion to Intervene and an Answer to the Hutton Complaint on December 16, 2015 and such Motion was granted on January 18, 2016. Status: The Commission filed a motion to dismiss the second and third claims in which Hutton asserted that the Management Act and SB-52, amending the Act, were unconstitutional. The water court agreed and dismissed the second claim and part of the third claim. The water court held that it does not have jurisdiction over designated ground water and that the Commission must first determine whether designated ground water is implicated, and therefore the issue was not ripe. Hutton filed an appeal with the Colorado Supreme Court. The Supreme Court heard oral argument on November 14, 2017 and issued a decision on May 21, 2018. In its opinion, the Court upheld the dismissal of the Management Act claims, agreeing with the reasoning of the water court. It held that the Commission must first make a determination that the water in question is not designated groundwater before the water court can have jurisdiction. The water court has scheduled a status conference for January 15, 2019 on the remaining claims. MERIDIAN SERVICE METROPOLITAN DISTRICTCase No. 18GW01 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Attorney: Andy Nicewicz Subject: Applicant seeks to to amend its existing replacement plan previously approved by the Commission in Case No. 15GW14. The original replacement plan described how Applicant would replace depletions from underdrains installed in home basements connected to six centralized collection and recharge systems (“CCRSs”). The current application seeks to add a seventh CCRS to the existing replacement plan. Status: The District filed an objection, and the case was referred to the Hearing Officer. Meridian had originally sought to include a procedure to add further CCRS’s to the existing replacement plan under the Commission’s retained jurisdiction. After receiving comments from Staff and the District, Applicant agreed to remove this provision from the proposed amended replacement plan. Staff has signed a stipulation, and the District is anticipated to sign in the immediate future once its board has given its approval. LGS HOLDING GROUP 2013, LLCCase No. 18GW02 Designated Basin: Southern High Plains Management District: N/A Attorney: Philip Lopez Subject: Application for new wells and commingling of wells in Southern High Plains Designated Basin. Status: A number of parties have filed objections, including the Southwest Kansas Groundwater Management District No. 3 (“Kansas District”). The case has been referred to the Hearing Officer and a 5-day hearing has been set for November 5-9, 2018. LGS has filed a motion to dismiss the Kansas District’s statement of opposition for lack of subject matter jurisdiction, arguing that the Commission does not have jurisdiction to consider potential injury to water rights outside of the designated basin, including water rights in Kansas. Staff did not oppose this motion. Staff also filed its own motion to dismiss the Kansas District for lack of standing, arguing that the Kansas District does not own any water rights within the designated basin and therefore cannot show injury to a legally-protected interest under Colorado law. LGS also filed a motion for summary judgment to dismiss several pro se parties for lack of standing because such pro se parties only owned small capacity wells, or didn’t describe in their statements of opposition their water rights that could be injured by LGS’s requested appropriations. Staff <filed a response to this motion. All of these motions have been fully briefed for the Hearing Officer. LGS also filed its expert disclosures on July 16, 2018. Opposers’ and Staff’s expert disclosures are due on August 15, 2018. RAIL LAND COMPANY, LLC Case No. 18GW03</w Designated Basin: Lost Creek Management District: Lost Creek Attorney: Philip Lopez Subject: Applicant Rail Land Company, LLC filed applications for determinations of water rights in the Laramie Fox Hills, Lower Arapahoe, Upper Arapahoe and Denver aquifers. The City of Aurora filed an objection. Status: Applicant and Aurora reached a stipulation and provided proposed Findings and Order to Staff for review, which Staff approved. On July 16, 2018, the Hearing Officer approved the stipulation and remanded the applications back to Staff for administrative processing. Staff issued the final Findings and Order on July 16, 2018. OSBORNE REAL ESTATE, LLCCase No. 18GW04 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Andy Nicewicz Subject: Applicant seeks to change the use of its water right from irrigation of 160 acres to irrigation and commercial use in an egg production facility. The District filed an objection, and the case was referred to the Hearing Officer. Status: The initial status was held on June 6, 2018. The District and the Applicant represented that they could settle any issues, and so no hearing was set. Another status conference was scheduled for August 14, 2018. PROSPECT VALLEY DAIRY, LLC, et al.Case No. 18GW05 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Andy Nicewicz Subject: Applicants seek a change of determination of water right to allow the use of not-nontributary Larimer-Fox Hills aquifer water for the irrigation of approximately 400 additional acres of overlying land in Weld County. <Lost Creek Land and Cattle Co. filed an objection, and the case was referred to the Hearing Officer. Status: Black Mountain Properties, LP, was recently substituted as a party for Lost Creek Land and Cattle. A telephone status conference is set for August 31, 2018. THOMAS TRUSTCase No. 18GW06 Designated Basin: Lost Creek Management District: Lost Creek Subject: Applicant seeks a determination of water right in the Laramie-Fox Hills aquifer underlying 160 acres of land. The City of Aurora filed an objection. Status: The initial status conference is set for August 7, 2018. RULEMAKING PROCEEDING – RULE 7.4Case No. 17GW04 Designated Basin: All basins Management District: N/A Attorney: Philip Lopez Subject: Rulemaking to revise Rule 7.4 to require an applicant for a change of irrigated acreage to demonstrate to choose one of two options to demonstrate the change will not result in increased use of the well: (1) restrict the future number of acres to be irrigated to the historical average number of acres irrigated by the well; or (2) restrict the future use of the well to the historical depletion of the aquifer by the well, as demonstrated by a historical consumptive use analysis. < Status: At the April 9, 2018 special meeting, the Commission adopted changes to Rule 7.4., making them applicable to all applications filed after the adoption of the Rule on April 9, 2018. The Attorney General issued her opinion regarding the constitutionality of the Rule on April 11, 2018. The Rule was published in the Colorado Register on April 25, 2018, and became effective on May 15, 2018. RULEMAKING PROCEEDING - RULES 5.6 & 5.8Case No. 17GW05 Designated Basin: All basins Management District: N/A Attorney: Jen Mele Subject: Rulemaking to revise Rules 5.6 pertaining to replacement plans and Rule 5.8 pertaining to aquifer storage and recovery plans. < Status: In its August 11, 2017 meeting the Ground Water Commission directed its Staff and Hearing Officer to proceed with the formal rulemaking process to amend Rules 5.6 and 5.8. The hearing before the hearing officer is set for August 20-24, 2018. 2 6 AG Report2018-8-3.pdfATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission August 17, 2018 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of August 3, 2018. CHEROKEE METROPOLITAN DISTRICT Case No. 08GW71 13SA330 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Paul Benington 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 under a 1999 Stipulation 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. On June 17, 2013 the Court found that the 1999 Stipulation does not address whether Cherokee may claim wastewater return credits for its replacement plan. UBS filed an appeal on December 18, 2013. The Supreme Court upheld the decision of the District Court under the 1999 Stipulation, but included in the decision ambiguous language as to whether Cherokee can use effluent as a source of replacement water in a replacement plan. The Supreme Court held that it was for the Commission to decide whether the recharged wastewater could be credited toward replacement under a replacement plan. Counsel for Cherokee filed a Motion for Determination of Question of Law on January 31, 2018 to clarify its use of effluent in its replacement plan. The Hearing Officer ordered Cherokee to publish notice of its requested relief sought in the Motion. Publication occurred on March 15 and March 22, 2018. Staff filed a response in opposition to Cherokee’s motion arguing that the recharged wastewater could not be used as a source of replacement water in a replacement plan to be approved by the Commission because Cherokee relinquishes dominion over the wastewater such that it becomes designated ground water subject to appropriation in accordance with the statutory scheme and the Commission’s rules. 2 However, Staff pointed out that Cherokee receives a benefit from the recharge close to Cherokee’s Sweetwater wells and from otherwise helping to sustain the aquifer. UBS also filed a motion opposing the motion. Cherokee filed its reply to all opposers on July 24, 2018 and, barring any requests to file sur-replies based on new facts set forth in Cherokee’s reply for the first time, the motion is now fully briefed for the Hearing Officer. No hearing will be set until the Hearing Officer rules on Cherokee’s motion. CHEROKEE METROPOLITAN DISTRICT Case No. 08GW78 09GW15 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Philip Lopez Subject: Applications to change the type and place of use of wells. Objections were submitted by the District and other water users in the basin. Both cases were consolidated with 08GW71 above. Status: See above. MERIDIAN SERVICE METRO DISTRICT Case No. 09GW11 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Philip Lopez Subject: Application for a change of water right. Two parties filed objections. Status: The hearing set for February 25 and 26, 2010 has been stayed because the water rights to be changed were for use in the replacement plan in 08GW71. The matter is stayed pending resolution of the issues in Case No. 98CW80 as described above for Cherokee Metro District’s replacement plan. HUTTON EDUCATIONAL FOUNDATION V. REIN, ET AL. Case No. 15CW3018 Designated Basin: Northern High Plains Management District: Attorney: Chad Wallace, Pat Kowaleski Subject: Lawsuit filed by the Hutton Educational Foundation in an effort to make the State Engineer administer designated ground water rights and surface rights together for the purpose of compact compliance under the Republican River Compact. Complaint also alleges that SB-52, which revised 37-90-106 to limit how designated basin boundaries may be modified, and the Colorado Groundwater Management Act of 1965, are unconstitutional. The Ground Water 3 Commission filed a Motion to Intervene and an Answer to the Hutton Complaint on December 16, 2015 and such Motion was granted on January 18, 2016. Status: The Commission filed a motion to dismiss the second and third claims in which Hutton asserted that the Management Act and SB-52, amending the Act, were unconstitutional. The water court agreed and dismissed the second claim and part of the third claim. The water court held that it does not have jurisdiction over designated ground water and that the Commission must first determine whether designated ground water is implicated, and therefore the issue was not ripe. Hutton filed an appeal with the Colorado Supreme Court. The Supreme Court heard oral argument on November 14, 2017 and issued a decision on May 21, 2018. In its opinion, the Court upheld the dismissal of the Management Act claims, agreeing with the reasoning of the water court. It held that the Commission must first make a determination that the water in question is not designated groundwater before the water court can have jurisdiction. The water court has scheduled a status conference for January 15, 2019 on the remaining claims. MERIDIAN SERVICE METROPOLITAN DISTRICT Case No. 18GW01 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Attorney: Andy Nicewicz Subject: Applicant seeks to to amend its existing replacement plan previously approved by the Commission in Case No. 15GW14. The original replacement plan described how Applicant would replace depletions from underdrains installed in home basements connected to six centralized collection and recharge systems (“CCRSs”). The current application seeks to add a seventh CCRS to the existing replacement plan. Status: The District filed an objection, and the case was referred to the Hearing Officer. Meridian had originally sought to include a procedure to add further CCRS’s to the existing replacement plan under the Commission’s retained jurisdiction. After receiving comments from Staff and the District, Applicant agreed to remove this provision from the proposed amended replacement plan. Staff has signed a stipulation, and the District is anticipated to sign in the immediate future once its board has given its approval. LGS HOLDING GROUP 2013, LLC Case No. 18GW02 Designated Basin: Southern High Plains Management District: N/A Attorney: Philip Lopez Subject: Application for new wells and commingling of wells in Southern High Plains Designated Basin. Status: A number of parties have filed objections, including the Southwest Kansas Groundwater Management District No. 3 (“Kansas District”). The case has been referred to the Hearing Officer and a 5-day hearing has been set for November 5-9, 2018. LGS has 4 filed a motion to dismiss the Kansas District’s statement of opposition for lack of subject matter jurisdiction, arguing that the Commission does not have jurisdiction to consider potential injury to water rights outside of the designated basin, including water rights in Kansas. Staff did not oppose this motion. Staff also filed its own motion to dismiss the Kansas District for lack of standing, arguing that the Kansas District does not own any water rights within the designated basin and therefore cannot show injury to a legally-protected interest under Colorado law. LGS also filed a motion for summary judgment to dismiss several pro se parties for lack of standing because such pro se parties only owned small capacity wells, or didn’t describe in their statements of opposition their water rights that could be injured by LGS’s requested appropriations. Staff filed a response to this motion. All of these motions have been fully briefed for the Hearing Officer. LGS also filed its expert disclosures on July 16, 2018. Opposers’ and Staff’s expert disclosures are due on August 15, 2018. RAIL LAND COMPANY, LLC Case No. 18GW03 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Philip Lopez Subject: Applicant Rail Land Company, LLC filed applications for determinations of water rights in the Laramie Fox Hills, Lower Arapahoe, Upper Arapahoe and Denver aquifers. The City of Aurora filed an objection. Status: Applicant and Aurora reached a stipulation and provided proposed Findings and Order to Staff for review, which Staff approved. On July 16, 2018, the Hearing Officer approved the stipulation and remanded the applications back to Staff for administrative processing. Staff issued the final Findings and Order on July 16, 2018. OSBORNE REAL ESTATE, LLC Case No. 18GW04 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Andy Nicewicz Subject: Applicant seeks to change the use of its water right from irrigation of 160 acres to irrigation and commercial use in an egg production facility. The District filed an objection, and the case was referred to the Hearing Officer. Status: The initial status was held on June 6, 2018. The District and the Applicant represented that they could settle any issues, and so no hearing was set. Another status conference was scheduled for August 14, 2018. PROSPECT VALLEY DAIRY, LLC, et al. Case No. 18GW05 Designated Basin: Lost Creek Management District: Lost Creek 5 Attorney: Andy Nicewicz Subject: Applicants seek a change of determination of water right to allow the use of notnontributary Larimer-Fox Hills aquifer water for the irrigation of approximately 400 additional acres of overlying land in Weld County. Lost Creek Land and Cattle Co. filed an objection, and the case was referred to the Hearing Officer. Status: Black Mountain Properties, LP, was recently substituted as a party for Lost Creek Land and Cattle. A telephone status conference is set for August 31, 2018. THOMAS TRUST Case No. 18GW06 Designated Basin: Lost Creek Management District: Lost Creek Subject: Applicant seeks a determination of water right in the Laramie-Fox Hills aquifer underlying 160 acres of land. The City of Aurora filed an objection. Status: The initial status conference is set for August 7, 2018. RULEMAKING PROCEEDING – RULE 7.4 Case No. 17GW04 Designated Basin: All basins Management District: N/A Attorney: Philip Lopez Subject: Rulemaking to revise Rule 7.4 to require an applicant for a change of irrigated acreage to demonstrate to choose one of two options to demonstrate the change will not result in increased use of the well: (1) restrict the future number of acres to be irrigated to the historical average number of acres irrigated by the well; or (2) restrict the future use of the well to the historical depletion of the aquifer by the well, as demonstrated by a historical consumptive use analysis. Status: At the April 9, 2018 special meeting, the Commission adopted changes to Rule 7.4., making them applicable to all applications filed after the adoption of the Rule on April 9, 2018. The Attorney General issued her opinion regarding the constitutionality of the Rule on April 11, 2018. The Rule was published in the Colorado Register on April 25, 2018, and became effective on May 15, 2018. RULEMAKING PROCEEDING - RULES 5.6 & 5.8 Case No. 17GW05 Designated Basin: All basins Management District: N/A Attorney: Jen Mele Subject: Rulemaking to revise Rules 5.6 pertaining to replacement plans and Rule 5.8 pertaining to aquifer storage and recovery plans. 6 Status: In its August 11, 2017 meeting the Ground Water Commission directed its Staff and Hearing Officer to proceed with the formal rulemaking process to amend Rules 5.6 and 5.8. The hearing before the hearing officer is set for August 20-24, 2018. Agenda2018Aug.docxNOTICE OF GENERAL MEETING OF THE NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION Thursday, August 16, 2018 Friday, August 17, 2018 Holiday Inn Hotel & Suites 21636 Highway 160 West Durango, CO 81303 A G E N D A Thursday, August 16, 2017, 12:00 Noon Tour of Animas-La Plata Project and Lake Nighthorse Reservoir Friday, August 17, 2017, 8:30 am Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of May 18, 2018 Report of the Executive Director by State Engineer Kevin Rein Commissioners’ Reports Staff Report by Keith Vander Horst. Report of the Attorney General by Philip Lopez. This is a background briefing on legal issues in the written report.< The Board may refer any item< contained or discussed under this topic to Agenda Item No. 12 for discussion in Executive Session. District Reports: Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Nate Midcap W-Y GWMD by Kyle Sprouse Arikaree GWMD by Rod Mason Plains GWMD by Brandi Baquera East Cheyenne GWMD by Carolyn Talbert Southern High Plains GWMD by Blake Gourley North KiowaBijou GWMD by Robert Loose Upper Black Squirrel Creek GWMD by Tracy Doran Upper Big Sandy GWMD by Tracy Doran Lost Creek GWMD by Thomas Sauter Upper Crow Creek Basin by Dan Lloyd Republican River Water Conservation District by Deb Daniel Old Business New Business Public Comments Executive Session (if needed). The Board may refer any item contained or discussed under the Attorney General’s report, Agenda Item No. 7, for discussion in Executive Session. Adjournment</ NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION August 16 & 17, 2018 Agenda2018Aug.pdfNOTICE OF GENERAL MEETING OF THE Thursday, August 16, 2017, 12:00 Noon 1. Tour of Animas-La Plata Project and Lake Nighthorse Reservoir Friday, August 17, 2017, 8:30 am 1. Determine quorum 2. Review and approval of agenda items 3. Approval of Minutes for Meeting of May 18, 2018 4. Report of the Executive Director by State Engineer Kevin Rein 5. Commissioners’ Reports 6. Staff Report by Keith Vander Horst. 7. Report of the Attorney General by Philip Lopez. This is a background briefing on legal issues in the written report. The Board may refer any item contained or discussed under this topic to Agenda Item No. 12 for discussion in Executive Session. 8. District Reports: a. Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs