DWR_3364075

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 2/16/2018
• Subject: MEETING MATERIALS

evidence to support the claim being made. He also cited the statute which says that the Commission may not increase or decrease the annual appropriation beyond that authorized before
designation. He said that in the case of Strasburg and Kiowa that would be the volume of water demonstrated to have been placed to beneficial use. Commissioner Noble said that statute
allows for the presentation of evidence and it is clear that Kiowa relied on the permit and committed to serve areas based on what the permit said and that the statute does not limit
the type of evidence that may be considered to only that amount of water previously used. Mr. Toll replied that because a final permit is limited to the amount of water actually used
that it does limit the type of evidence that can be considered by the Commission. Chairman Valdez asked for a motion on the matter of 16-GW-01, an appeal by Strasburg Sanitation and
Water District to the initial decision of the Hearing Officer. Commissioner Arnusch moved that the Commission uphold the initial decision of the Hearing Officer and for Staff to issue
a final permit. Commissioner Kramer seconded the motion which passed unanimously. Ground Water Commission Meeting Minutes Page 10 November 3, 2017 Chairman Valdez asked for a motion
on the matter of 16-GW-02 an appeal by Kiowa Water and Wastewater Authority to the initial decision of the Hearing Officer. Commissioner Arnusch moved to affirm the Initial decision
of the Hearing Officer. Commissioner Larson seconded the motion which passed with Commissioners Fowler and Noble voting nay. Commissioner Noble said that he thinks that some relief
under 108(3)(b) for Kiowa is warranted because they relied on a permit with no volumetric limit and had no knowledge of final permit limits when they committed to serve lands annexed
into the town. Commissioner Tietmeyer said that relying on historical pumping rates and water levels without proof would be poor planning. Commissioner Noble responded that towns
have to appropriate water to plan for future growth. Commissioner Tietmeyer said that the Town has no proof that the well could produce 360 GPM if it ran 24 hours a day 365 days.
Commissioner Arnusch said that the Town took a risk committing to serve when they did not have a firm yield, the Town never pumped the well 24-7 at 360 GPM for a year to see what the
well will produce. He agrees with Commissioner Tietmeyer that this is the way to go. Chairman Valdez called for agenda item no. 8, the Staff activity report. Mr. Keith Vander
Horst went over his written report, slowing in the enforcement section so that he could identify each complaint, the action taken and the resolution of that complaint, if any. He reported
working with the Hearing Officer to initiate the formal process on amending Rules 5.6 and 5.8. The hearing is scheduled before the Hearing Officer for a week in June. Mr. Vander Horst
advised the Commission that on October 4, 2017, Staff had sent, via e-mail, an initial draft of the proposed changes to the overall rules. The first public/stakeholder meeting will
be held on November 13, 2017. He reported that to-date he had not received any comments or questions. Chairman Valdez called for agenda item no. 9, the Attorney General’s report.
Mr. Michael Toll updated the Commission on the Meridian Case, 17-GW-05. He said that negotiations have been successful enough to ask the Hearing Officer for an extension which was
granted. Philip Lopez updated the Commission on the Woodman Hills Metro District matter in 03-GW-20, advising the Commission that even though the parties are in active negotiations,
it appears that they will be going to the 5-day hearing beginning December 4, 2017. Chairman Valdez called for agenda item no. 10, Management District Reports. Mr. Nate Midcap, reporting
for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, reported that his Districts were watching the progress of the attempt to have the Republican Water Conservation District
(RRWCD) boundaries adjusted to coincide with those Ground Water Commission Meeting Minutes Page 11 November 3, 2017 boundaries used in the Republican River Model domain. He said that
if the effort is a success it would bring about 360 wells into the RRWCD. Mr. Midcap reported that his Districts are working with the Water Preservation Partnership (WPP) to achieve
the goal of the WPP to reduce irrigation pumping by 25% by 2025. This reduction is based on the total volume of water pumped in the previous 5 years. Mr. Kyle Sprouse, reporting for
the W-Y GWMD, advised the Commission that he had assumed the duties as manager of the W-Y District on October first and had nothing to report. There was no report for the Arikaree
GWMD. Ms. Brandi Baquera, reporting for the Plains GWMD, reported that she has been busy with meter enforcement and chemigation inspections. Ms. Baquera advised the Commission that
now, with things slowing down, the District is restarting it’s conservation conversation. There was no report for the East Cheyenne GWMD. Mr. Blake Gourley, reporting for the Southern
High Plains GWMD reported that there had been some good rains this fall and that the sprinklers are turned off. Mr. Robert Loose, reporting for the North Kiowa Bijou GWMD, reported
that the District will support any actions that will increase Staff numbers. He said that his District thinks that any changes to Rule 7.4 should be specific to the Northern High Plains.
Mr. Loose closed his comments noting that Kiowa-Bijou had 40 of 120 small capacity applications and that the District would like to see permits issued with an annual appropriation
of 1 acre-foot or less. Mr. Dan Farmer, reporting for Ms. Doran on the Upper Black Squirrel GWMD, advised the Commission that the District was working on settling the Woodman Hills
matter as well as other old business issues that are before the District. He noted that some of them had been around for 17 years. Mr. Farmer also mentioned that the District had
been asked to be a part of the El Paso County water management plan, he will keep the Commission updated. Mr. Farmer reported that the District continues to see a number of domestic
wells being used for marijuana grows and now hemp. The District would like to be a part of the State marijuana task force. It was also reported that there are numerous surface diversions
and ponds being built. There was no report for the Upper Big Sandy GWMD. Mr. Tom Sauter, reporting for the Lost Creek GWMD, reported that the District is involved with the City of
Aurora in an aquifer storage pilot project. He also said that the District has applied for a grant from the Water Conservation Board to purchase devices to monitor water levels in
the aquifer. Mr. Sauter introduced Board member Todd Denning who wrote the grant request. Mr. Scott Tietmeyer, reporting for Upper Crow Creek Basin, reported that the increased oil
field activity is supported by water from Wyoming. Ms. Suzanna Cure, reporting for the Republican River Water Conservation District (RRWCD), introduced herself to the Commission, informing
them that she had been with the District for about 5 months. Ms. Cure reported that the District has been working on components of the 2006 amendment to the CREP program, specifically
to allow CREP to request recent cropping history from applicants, to increase the total number of acres allowed and to allow for the conversion of an Ground Water Commission Meeting
Minutes Page 12 November 3, 2017 irrigation well into a small capacity well. She said that the District has instituted a new payment schedule to allow for a larger payment per acre
for those wells in the South Fork of the Republican. Ms. Cure reported that the Board continues to work on adjusting the District boundaries to coincide with those of the model domain.
She also said that the District had joined the South Fork Republican River restoration project between Flagler and the state line. Ms. Cure closed her report with a power point presentation
about interviews with water users and the users thoughts on the conservation discussion going on. Chairman Valdez called for agenda item no. 11, old business. Status on joint proposal
regarding the “Petition for Determination of Jurisdiction Over Surface Water Within the Upper Black Squirrel Creek Designated Ground Water Basin”, from Meridian Service Metropolitan
District Mr. Lopez advised the Commission that this item was discussed under the report of the Attorney General. Chairman Valdez called for agenda item no. 12, new business. Selection
of next year’s meeting dates and locations. Secretary Nielsen advised the Commission that room accommodations for the quarterly meetings of the Commission have been made for February
16th in room 318 of the Centennial building in Denver and for May 18th, August 17th and November 16th in Castle Rock. At the request of Commissioner Arnusch, the November 16th meeting
was moved to November 2nd. Chairman Valdez called for agenda item no. 13, public comment. There were no public comments There being no further business the meeting adjourned.
Respectfully submitted, Richard A Nielsen, P.E., Secretary Colorado Ground Water Commission
New 2CCR 402-3.pdfEQUUS/ 1/31/17 comments on changes to procedural rules (00094380).DOCX
1 DEPARTMENT OF NATURAL RESOURCES Colorado Ground Water Commission 2 CCR 402-3 RULES OF PROCEDURE FOR ALL RULEMAKINGS AND HEARINGS BEFORE THE COLORADO GROUND WATER COMMISSION Rule
1 Authority These Rules are adopted pursuant to the authority granted to the Ground Water Commission in § 37-90-111(1)(h), C.R.S., and are intended to be consistent with the requirements
of the State Administrative Procedure Act, §§ 24-4-101 et seq., C.R.S., (the “APA”) and the Colorado Ground Water Management Act (the “Management Act”), §§ 37-90-101 et seq., C.R.S.
Rule 2 Scope and Purpose A. These Rules shall govern the procedure to be followed by Parties in rulemaking and adjudicatory hearings held by the Colorado Ground Water Commission,
hereinafter referred to as the “Commission.” B. These Rules are intended to establish procedures to assure that all hearings held by the Commission are conducted in a fair and impartial
manner, to assure that all Parties to proceedings under the Colorado Ground Water Management Act are accorded due process of law, and to provide the Commission with all relevant facts
and information pertinent to decision making. These rules shall be construed to carry out these purposes. C. These Rules do not apply to interpretive rulings, guidelines or general
statements of policy, which are not meant to be binding. D. These Rules are promulgated pursuant to §§ 37-90-111(1)(h), 37-90-113, and 24-4-103, C.R.S. Rule 3 Applicability A. These
Rules apply to rulemakings, adjudicatory proceedings, declaratory orders, reconsideration of rulemaking decisions, and reconsideration of adjudicatory proceedings before the Commission.
Adjudicatory proceedings include, but are not limited to, the granting, renewal, denial, revocation, suspension, annulment, limitation or modification of licenses or permits, applications
for water right permits, changes in water right permits, applications for replacement plans, and applications for determinations of water rights. B. Except when necessary to comply
with applicable statutes, the Commission may waive the requirements of these Rules by timely written notice to all Interested Persons, Agencies, and Parties whenever it is determined
that strict adherence to the rules will not promote fairness and impartiality. In any such instance, appropriate justification shall be provided to all Interested Persons, Agencies,
and Parties. C. In the event of a conflict between these rules and the APA, the Management Act or statutes, the statutes shall prevail. The provisions of the APA generally apply to
all hearings held by the Commission. Specifically, the provisions of § 24-4-103, C.R.S., shall apply to all rulemaking hearings, the provisions of § 24-4-104, C.R.S., shall apply to
all decisions regarding the grant, renewal, denial, revocation, suspension, annulment, limitation or modification of Licenses (permits), and the provisions of § 24-4-105, C.R.S., shall
apply to all Adjudicatory Proceedings and petitions for declaratory orders unless such provisions are inconsistent with the specific provisions of the Management Act, in which case
those statutory provisions shall control. Rule 4 Definitions 2 A. “Adjudication” - The procedure used by the Commission for the formulation, amendment, or repeal of an order; including
orders regarding licensing and permitting under §§ 24-4-104 and 24-4-102(2), C.R.S. B. “Adjudicatory Proceeding”: - Adjudicatory Proceedings include notice, prehearing procedures and
hearings which are required or allowed by law in order to determine past and future rights and obligations of Persons or Agencies, including Persons or Agencies aggrieved by an administrative
action of the Commission, including all matters contemplated under the Commission’s Rules and Regulations for the Management and Control of Designated Ground Water, 2 CCR 410-1 other
than rulemaking. Adjudicatory Proceedings are governed by the procedures in Rules 9, 10 and 11 of these rules. C. “The APA” – The State Administrative Procedures Act, § 24-4-101 et
seq., C.R.S., as may be amended. D. “Agency” – Any board, bureau, commission, department, institution, division, section, or officer of the state, except those in the legislative branch
or the judicial branch. E. “Commission” – The Colorado Ground Water Commission as defined under § 37-90-104, C.R.S. as may be amended. The address of the Commission is: Colorado
Ground Water Commission c/o Colorado Division of Water Resources 1313 Sherman St., Room 821 Denver, CO 80203 F. “Determination Act” – The Water Rights Determination and Administration
Act of 1969. G. “Executive Director of the Commission” – The State Engineer as defined in § 37-90-105(6), C.R.S., as may be amended. H. “Ex parte Communication” – An oral or written
communication regarding a proceeding where the communication is between the Commission or Hearing Officer and a Party to the proceeding thatis not on the public record; is not authorized
by other specific provision of law or order of the Commission; and, with respect to which reasonable prior notice to all Parties is not given. Communications solely inquiring as to
the process of the proceeding that are not seeking any procedural or substantive relief, nor pertaining to any substantive issues, are not included in Ex parte Communication. I. “File
or Filed”: Received in the office of the Colorado Division of Water Resources and date-stamped by staff as received on that day or, when filed by electronic mail for rulemakings or
Adjudications as provided herein: 1. Electronic Mail - Service by electronic mail shall be complete when the Commission or Office of the State Engineer receives an electronic mail
containing an attached, signed version of the document to be filed. Received shall mean the date on which the electronic mail is delivered to an inbox. When any Person, Interested
Person, Agency or Party files by electronic mail, it shall be considered an agreement to be served by electronic mail. The filer is responsible for furnishing one or more electronic
notification addresses at which the electronic filer agrees to accept service and shall immediately provide the Commission and all Parties with any change to the electronic filer’s
notification address. Special filing arrangements may be made on a case-by-case basis as needed. 2. All filings for Rulemaking and Adjudicatory Proceedings under these Rules shall
be made by electronic mail. 3. Exception to Electronic Filing – Any Person or Agency may request approval by the Executive Director or his designee to file documents in paper copy
format if they are unable for any reason to 3 comply with the electronic filing requirements. Pro se Parties may file documents via U.S. mail if electronic filing is not available.
J. “Hearing Officer” - An agent designated by the Commission pursuant to §37-90-113(2) C.R.S. K. “Initial Decision” – A decision made by the Commission’s designated Hearing Officer
which will become the final action of the Commission unless reviewed by the Commission. § 24-4-102(6), C.R.S. L. “Interested Person” - Any Person who may be aggrieved by an action
of the Commission or its Staff. §24-4-102(6.2), C.R.S. M. “License” – The whole or any part of any Commission or Division of Water Resources permit, certificate, registration, charter,
membership, or statutory exemption. § 24-4-102(7), C.R.S. N. “The Management Act” - The Ground Water Management Act of 1965, § 37-90-101 et seq., C.R.S., as may be amended. O. “Party”
– Any Person or Agency named or admitted as a Party, or properly seeking and entitled as of right to be admitted as a Party in a proceeding before the Commission, subject to the provisions
of these Rules. P. “Person” – An individual, limited liability company, partnership, corporation, association, county, or a public or private organization other than an Agency. Q.
“Rules” – These Rules of Procedure For All Hearings Before The Colorado Ground Water Commission. R. “Rulemaking Proceedings” – Rulemaking Proceedings are the notice and hearing activities
required by law for the Commission to adopt rules, as authorized by the Management Act, the APA or other specific authority provided to the Commission, that are of general applicability
and future effect implementing, interpreting, or declaring law or policy, which are intended to be binding. They include adoption of whole generic rules, or deletion of, or revisions
or modifications to, existing rules of the Commission. Rulemaking Proceedings are governed by the procedures in Rules 6 and 7 of these rules. S. “State Engineer” – The person appointed
by the governor pursuant to section 13 of article XII of the state constitution having the general duties set forth in §§ 37-80-101, et seq., C.R.S., as well as duties under the Determination
Act, the Management Act, and other provisions of Title 35 and 37 of the Colorado Revised Statutes. The address of the State Engineer is: Colorado Division of Water Resources 1313
Sherman St., Room 821 Denver, CO 80203 T. “Stipulation” – An agreement or concession as to facts or the law made by the Parties in a proceeding before the Commission or Hearing Officer.
Rule 5 Alternative Means of Dispute Resolution A. For the purposes of Rule 5, the following definitions apply: 1. “Alternative means of dispute resolution” means any binding dispute
resolution procedure that is used to resolve issues in controversy, including, but not limited to, arbitration, fact finding, mini trials, and use of ombudsman, or any combination thereof;
2. "Dispute resolution proceeding" means any process in which an alternative means of dispute resolution is used to resolve an issue in controversy in which a Neutral is appointed and
some or all of the Parties participate; 4 3. "In confidence" means, with respect to information, that the information is provided: a. with the expressed intent of the source that
it not be disclosed; or b. under circumstances that would create the reasonable expectation on behalf of the source that the information will not be disclosed; 4. “Issue in controversy"
means an issue which is material to a decision concerning an action of the Commission or its Staff and with which there is disagreement between the Parties, Agency or Person who would
be substantially affected by the decision. 5.. "Neutral" means an individual who, with respect to an issue in controversy, functions specifically to aid the Parties in resolving the
controversy A Neutral may be a permanent or temporary officer or employee of the State of Colorado or any other individual who is acceptable to the Parties to a dispute resolution
proceeding. The Neutral shall have no official, financial, or personal conflict of interest with respect to the issues in controversy, unless such interest is fully disclosed in writing
to all Parties and all Parties agree that the Neutral may serve. A Neutral who serves as a conciliator, facilitator, or mediator serves at the will of the Parties. B. General authority:
1. The Commission or Hearing Officer may approve the use of a dispute resolution proceeding for the resolution of any issue in controversy in an Adjudicatory Proceeding, when all Parties
to such Adjudicatory Proceeding agree to such a process. The provisions herein regarding alternative means of dispute resolution are strictly voluntary and neither applicants nor objectors
may be forced to participate. Sections 37-90-113(4) and 13-22-313, C.R.S. 2. The Commission or Hearing Officer shall consider not using a dispute resolution proceeding if any of the
following apply: a. a definitive or authoritative resolution of the matter is required for precedential value, and such a proceeding is not likely to be accepted generally as an authoritative
precedent; b. the matter involves or may bear upon significant questions of state government policy that require additional procedures before a final resolution may be made, and such
a proceeding would not likely serve to develop a recommended policy for the Commission; c. maintaining established policies is of special importance, so that variations among individual
decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions; d. the matter significantly affects Persons, Agencies, or organizations
who are not Parties to the proceeding; e. a full public record of the proceeding is important, and a dispute resolution proceeding cannot provide such a record. 3. Alternative means
of dispute resolution authorized under this subchapter are strictly voluntary procedures which supplement rather than limit other available dispute resolution techniques. C. Confidentiality
- Except as provided herein, a Neutral in a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute
5 resolution communication or any communication provided in confidence to the Neutral, unless one of the following factors apply: 1. all Parties to the dispute resolution proceeding
and the Neutral consent in writing, and, if the dispute resolution communication was provided by a non-Party participant, that participant also consents in writing; 2. the dispute resolution
communication has already been made public; 3. the dispute resolution communication is required by statute to be made public, but a Neutral should make such communication public only
if no other Person is reasonably available to disclose the communication; or 4. a court determines that such testimony or disclosure is necessary. 5. A Party to a dispute resolution
proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication, unless one of the following factors
apply: a. the communication was prepared by the Party seeking disclosure; b. all Parties to the dispute resolution proceeding consent in writing; c. the dispute resolution communication
has already been made public; d. the dispute resolution communication is required by statute to be made public; e. a court determines that such testimony or disclosure is necessary.
6. Any dispute resolution communication that is disclosed in violation of these rules shall not be admissible in any proceeding relating to the issues in controversy with respect to
which the communication was made. 7. The Parties may agree in writing to alternative confidential procedures for disclosures by a Neutral. Any such agreement shall be provided to the
Neutral before the commencement of the dispute resolution proceeding. 8. If a demand for disclosure by way of discovery request or other legal process is made upon a Neutral regarding
a dispute resolution communication, the Neutral shall make reasonable efforts to notify the Parties and any affected non-Party participants of the demand. Any Party or affected non-Party
participant who receives such notice and within 15 calendar days does not offer to defend a refusal of the Neutral to disclose the requested information shall have deemed to have waived
any objection to such disclosure. 9. Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence
was presented in the course of a dispute resolution proceeding. 10. A decision by the Commission to use or not to use a dispute resolution proceeding under this subchapter shall be
committed to the discretion of the Commission or its appointed Hearing Officer and shall not be subject to judicial review. 6 D. Effect - A decision by a Neutral under this Rule 5
shall be submitted to the Commission at their regularly scheduled quarterly meeting. Upon acceptance of the Commission, the Neutral’s decision shall be adopted as the final decision
of the Commission and enforceable as a decision of the Commission. Rule 6 Hearing Procedures for Rulemaking A. All rulemaking proceedings shall be conducted by the Commission, however,
the Commission may designate a Hearing Officer to conduct fact finding hearings and make recommendations to be filed with the Commission for final consideration and adoption. Whenever
the Commission contemplates rulemaking, public announcement may be made at such time and in such manner as the Commission may determine. The Commission shall establish a representative
group of participants with an interest in the subject of the rulemaking to submit views or otherwise participate informally in conferences on the proposals under consideration or to
participate in public rulemaking proceedings on the proposed rules. It is within the discretion of the Commission to determine the duration and extent to which such informal proceedings
should occur. Section 24-4-103(2), C.R.S. B. Any Person or Agency shall have the right to petition the Commission in writing for the issuance, amendment, or repeal of a rule. Such
petition shall be open to public inspection. Action on such petition shall be within the discretion of the Commission, but when they undertake rulemaking on any matter, all related
petitions for the issuance, amendment or repeal of rules on such matter, shall be considered and acted upon in the same proceeding. Section 24-4-103(7), C.R.S. C. Petitions for rulemaking
shall be filed by electronic mail or pursuant to the paper format filing exception pursuant to Rule 4.I.3. D. Petitions for rulemaking shall include the following information: 1.
Identification of the Person or Persons or Agency requesting rulemaking and the nature of the requests; 2. The language of the proposed rule; 3. A statement of the Commission’s authority
to promulgate the rule; 4. A concise general statement of the rule’s basis and purpose. If the rule involves technological or scientific issues, this statement must include a detailed,
analytical statement of the scientific or technological rationale justifying the proposed rule. E. Notice. 1. After the Commission determines to proceed with formal rulemaking, official
notice of proposed rulemaking proceedings shall be filed with the secretary of state in sufficient time for publication in the Colorado Register. Sections 24-4-103(3)(a) and (11), C.R.S.
2. At the time of filing a notice of proposed rulemaking with the secretary of state as the secretary may require, the Commission shall submit a draft of the proposed rule or the proposed
amendment to an existing rule and a statement, in plain language, concerning the subject matter or purpose of the proposed rule or amendment, and any cost-benefit analysis prepared
to the office of the executive director in the Department of Regulatory Agencies. The provisions of § 24-4-103(2.5), C.R.S. shall apply. 3. Notice of proposed rulemaking shall be published
in the Colorado Register and shall state the time, place, and nature of public rulemaking proceedings, the authority under which the rule is proposed, and either the terms or the substance
of the proposed rule or a description of the subjects and issues involved. Section 24-4-103(3)(a), C.R.S. Publication of the notice in the Colorado Register shall be in accordance