DWR_3364076

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 2/17/2017
• Subject: MEETING MATERIALS

16GW04_PetitionersPrehearingStatement.pdf
BEFORE THE COLORADO GROUND WATER COMMISSION CASE NO. 16-GW-04 PETITIONERS' PREHEARING STATEMENT ________________________________________________________________________ IN THE
MATTER OF: THE COLORADO GROUND WATER COMMISSION'S RULEMAKING TO AMEND RULE 5.2.9 OF THE RULES AND REGULATIONS FOR THE MANAGEMENT AND CONTROL OF DESIGNATED GROUND WATER TO DECLARE THE
ALLUVIAL, FAN AND WHITE RIVER AQUIFERS TO BE OVERAPPROPRIATED, AND TO REQUIRE REPLACEMENT PLANS FOR NEW LARGE CAPACITY WELLS THEREIN In accordance with the Notice of Public Rulemaking
Hearing dated December 14, 2016, Loyd Farms (“Loyd”), Vonda J. Tietmeyer (“Tietmeyer”), BCK Heath Property, LLC (“BCK”), and Dennis Zitek (“Zitek”) (collectively, the “Petitioners”),
by and through their undersigned attorneys, hereby submit the following Prehearing Statement: I. IDENTIFICATION OF PETITIONERS Loyd Farms c/o Dan Loyd 66732 County Road 87 Grover,
CO 80729 Vonda J. Tietmeyer c/o Scott Tietmeyer 67125 Weld County Road 83 Grover, CO 80729-9474 BCK Heath Property, LLC, a Colorado Limited Liability Company c/o Burton C. Kross,
Manager 608 East Harmony Road, Suite 203 Fort Collins, CO 80525 Dennis Zitek 46499 Weld County Road 136 Grover, CO 80729 2 All pleadings, communications and other documents related
to this rulemaking should be sent to: P. Andrew Jones, Esq. Curran A. Trick, Esq. Lawrence Jones Custer Grasmick LLP 5245 Ronald Reagan Blvd., Suite 1 Johnstown, CO 80534 Telephone:
[phone] [e-mail] [e-mail] II. SPECIFIC FACTUAL AND LEGAL CLAIMS TO BE ASSERTED 1. Petitioners ask the Commission to amend Rule 5.2.9 to declare that the
Alluvial, Fan and White River Aquifers in the Crow Creek Designated Basin are overappropriated and so preclude the granting of new large capacity well permits in these aquifers unless
a replacement plan is approved by the Commission in accordance with Rule 5.6 of the Rules and Regulations for the Management and Control of Designated Ground Basin. 2. Rule 5.2.9.2
currently provides that the Fan aquifer East of Crow Creek and the White River Aquifer underlying this part of the Fan aquifer is overappropriated and requires replacement plans for
any new large capacity wells in that portion of the Basin. The rule further provides that a well permit can be approved for locations not described as overappropriated- to wit, these
aquifers West of Crow Creek, the White River Aquifer East of Crow Creek where it is not overlain by the Fan Aquifer, and the Alluvial Aquifer- if the appropriation does not unreasonably
impair existing water rights. 3. Loyd owns approximately 8789 acres within the Crow Creek Designated Basin and is the holder of permits for 19 large capacity irrigation wells in
same, allowing the irrigation of up to 1785 acres. These wells currently irrigate only 1535 of the permitted 1785 acres due to decreases in production capacity 4. Tietmeyer owns
approximately 3200 acres within the Crow Creek Designated Basin and is the holder of permits for 3 large capacity irrigation wells in same (being that portion of the basin located in
Colorado), allowing the irrigation of up to 410 acres. These wells currently irrigate only 310 of the permitted 410 acres due to decreases in production capacity. 5. BCK owns approximately
1920 acres within the Crow Creek Designated Basin and is the holder of permits for 8 large capacity irrigation wells in same, allowing the irrigation of up to 1090 acres. These wells
currently irrigate only 380 of the permitted 1090 acres due to decreases in production capacity. 3 6. Zitek owns approximately 1120 acres within the Crow Creek Designated Basin
and is the holder of permits for 2 large capacity irrigation wells in same, allowing the irrigation of up to 140 acres. These wells currently irrigate only 120 of the permitted 140
acres due to decreases in production capacity 7. Water levels in the Alluvial, Fan and White River Aquifers have been declining and these aquifers are in a “mining” condition (i.e.
withdrawals are materially in excess of recharge to the aquifer) due to pumping of existing large capacity wells. Accordingly, the Fan and White River aquifers in the Crow Creek Designated
Basin are overappropriated. The proposed amendment to Rule 5.2.9 would establish an allowable rate of depletion for the Crow Creek Designated Basin that would prohibit new appropriations.
8. Measured static water levels in wells in the Alluvial, Fan and White River Aquifers have exhibited a downward trend since at least 1960. Declining water levels in the Alluvial,
Fan and White River aquifers show that total recharge to these aquifers is less than total discharge. The aquifers are being mined. 9. Production from Petitioner’s wells
in the White River aquifer has decreased dramatically since the wells were drilled, and continues to decrease, indicating a mining condition. Many of these wells suffer dramatically
reduced yields or fail in the latter half of the in the irrigation season, indicating that the useable aquifer has effectively been depleted at existing pumping levels. 10. The
Fan aquifer East of Crow Creek and the White River aquifer underlying this portion of the White River Aquifer are already declared to be overappropriated. Water levels in the White
River aquifer East of Crow Creek where it is not overlain by the Fan aquifer have continued to decline since the declaration that areas overlain by the Fan aquifer are overappropriated.
Declining water levels in both the portion of the White River aquifer declared to be overappropriated and that portion currently open to appropriation indicate that the portion open
to appropriation should be closed. 11. Petitions for rule-making are to be acted upon by the Commission in accordance with the State Administrative Procedure Act, §§ 24-4-101, et
seq., C.R.S., and the Colorado Ground Water Management Act, §§ 37-90-111, 112 and 131, C.R.S. 12. Section 37-90-111(h), C.R.S. authorizes the Commission to adopt rules necessary to
carry out the policy of the State of Colorado to conserve designated ground water resources and to protect vested rights in accordance with the procedures set forth in §37-90-131, C.R.S.
13. The Commission is required to protect vested rights for the withdrawal of designated ground water and maintain reasonable pumping levels. §§ 37-90-102(1), 107, 109 and 111, C.R.S.;
Thompson v. Colorado Ground Water Commission, 575 P.2d 372, 377 (Colo. 1978). 4 14. The Commission has the authority to determine “the allowable rate of depletion for ground water
in each designated ground water basin,” which serves as the basis for determining “whether a proposed permit would result in unreasonable impairment to existing water rights.” 2 Colo.Code
Regs. 410-1, Rule 3.1; §37-90-111(b), C.R.S. 15. The Commission has the authority to establish reasonable ground water pumping levels in determining whether pumping will unreasonably
affect any prior water right or result in withdrawing the ground water supply at a rate materially in excess of the reasonably anticipated average rate of future recharge. §37-90-111(b),
C.R.S. 16. Pursuant to 2 Colo.Code Regs. 410-1, Rule 4.2.20: “Overappropriated Aquifer” means an aquifer for which the net average annual depletion rate of ground water is considered
to be in excess of the allowable net average annual depletion rate for that aquifer as set by the Commission. 17. For other overappropriated aquifers, the Commission has adopted rules
that declare the aquifers to be over-appropriated and disallow any additional new large capacity wells in order to prevent additional depletions. 2 Colo.Code Regs, 410-1, Rules 5.2.2.8
(portions of Northern High Plains alluvial and Ogallala aquifers), 5.2.4.2 (KiowaBijou alluvial aquifer), 5.2.5.2 (remainder of the Lost Creek alluvial aquifer), 5.2.6.2 (Upper Black
Squirrel alluvial aquifer), The proposed amendment to Rule 5.2.9 is similar to these rules. 18. Petitioners reserve the right to assert any additional factual and legal claims as
this matter proceeds. III. EXHIBITS TO BE INTRODUCED AT HEARING 19. Map depicting the Crow Creek Designated Basin 20. List of Petitioners' Well Permits for large capacity irrigation
wells 21. Site Map entitled "Upper Crow Creek Static Water Levels" for White River, Alluvium, and All Unnamed Aquifers 22. Line Chart entitled "Trend in Static Water Levels, Upper
Crow Creek Designated Basin" 23. Bar Graph entitled "White River Well Production" 24. Updated Site Map entitled "Upper Crow Creek Static Water Levels," including specific Aquifer
Designation for White River, Alluvium, and Fan aquifer 5 25. Updated Line Chart entitled "Trend in Static Water Levels," including specific Aquifer Designation for White River, Alluvium,
and Fan aquifer 26. All other records or documentation maintained by the Office of the State Engineer related to the Upper Crow Creek Designated Basin or this Rulemaking. 27. Any
and all pleadings and documents filed with the Hearing Officer in this matter. 28. Any exhibits needed to lay proper foundation. 29. Any exhibits needed for rebuttal or impeachment.
30. Any exhibits identified by counsel for any other party. 31. Any other exhibit(s) as discovery in this matter proceeds and to respond to any pleadings filed on behalf of any other
party. IV. LIST OF WITNESSES 32. Dan Loyd, Petitioner, 66732 County Road 87, Grover, CO 80729, may call 33. Scott Tietmeyer, Petitioner, 67125 Weld County Road 83, Grover, CO 80729-9474,
may call 34. Burton C. Kross, Petitioner, 608 East Harmony Road, Suite 203, Fort Collins, CO 80525, may call 35. Dennis Zitek, Petitioner, 46499 Weld County Road 136, Grover, CO
80729, may call 36. Willem Schreuder, President, Principia Mathematica, 445 Union Blvd, Suite 230, Lakewood, CO 80228, will call 37. Employees of the offices of the State Engineer
and Division Engineer, 1313 Sherman Street, Room 818, Denver, Colorado 80203, may call 38. Any witness designated, testifying or called to testify by any other party 39. Any witness
necessary for the authentication of, or to lay the foundation for, any exhibit. 40. Any witness necessary for rebuttal or impeachment testimony. 6 V. SPECIFIC LANGUAGE PROPOSED FOR
RULE 41. Petitioners request that the Commission amend the existing Rule 5.2.9 as follows (proposed changes consist of additions indicated in bolded italics): 5.2.9 Upper Crow Creek
Designated Ground Water Basin - Alluvial, Fan and White River Aquifers 5.2.9.1 The extent of each aquifer shall be defined as the area identified in Plate 1 of the report entitled,
"Water Resources of Upper Crow Creek, Colorado" prepared for the Colorado Geological Survey by Robert Kirkham and John Rold, Denver, Colorado 1986. All but the southern tip of the study
area is underlain by the White River Aquifer. The southern tip area is underlain by the Laramie formation. 5.2.9.2 The Alluvial Aquifer, Fan Aquifer east of Crow Creek and the White
River Aquifer underlying this part of the Fan Aquifer is are determined to be overappropriated and, therefore, no new large capacity well permits shall be granted in these aquifers
unless a replacement plan is approved by the Commission in accordance with Rule 5.6. A well permit can be approved in the Alluvial Aquifer and in the Fan and White River Aquifer not
mentioned above if this appropriation does not unreasonably impair any existing water rights. 5.2.9.3 For any existing large-capacity well that was constructed and put to beneficial
use in compliance with all applicable statutory procedures, and is completed in more than one of the aquifers identified above in Rule 5.2.9.1, an additional large capacity well permit
can be granted by the Commission pursuant to Section 37-90-107, C.R.S. for an increase in appropriation, including an increase in irrigated acres, provided that the requirements of
Rule 5.2.9.2 are met. Any such additional well permit shall have an appropriation date based on the date of application for the additional permit consistent with Section 37-90-109,
C.R.S., which shall be separate and distinct from the original appropriation for the existing well. V. OUTLINE OF TESTIMONY 42. Measured static water levels in wells in the Alluvial,
Fan and White River Aquifers have exhibited a downward trend since at least 1960. Declining water levels in the Alluvial, Fan and White River aquifers show that total recharge to these
aquifers is less than total discharge. The aquifers are being mined. 43. Production from Petitioners' wells in the White River aquifer has decreased dramatically since the
wells were drilled, and continues to decrease, indicating a mining condition. Many of these wells suffer dramatically reduced yields or fail in the latter half of the in the irrigation
season, indicating that the useable aquifer has effectively 7 been depleted at existing pumping levels. Petitioners have in some cases reduced irrigated acreage due to decreased production
from Petitioners' wells. 44. The Fan aquifer East of Crow Creek and the White River aquifer underlying this portion of the White River Aquifer are already declared to be overappropriated.
Water levels in the White River aquifer East of Crow Creek where it is not overlain by the Fan aquifer have continued to decline since the declaration that areas overlain by the Fan
aquifer are overappropriated. Declining water levels in both the portion of the White River aquifer declared to be overappropriated and that portion currently open to appropriation
indicate that the portion open to appropriation should be closed. 45. Petitioners may supplement the information provided herein as more data and information are obtained by the Petitioners.
Respectfully submitted this 17th day of January, 2017. LAWRENCE JONES CUSTER GRASMICK LLP P. Andrew Jones, #29076 Curran A. Trick, #44914
5245 Ronald Reagan Blvd., Suite 1 Johnstown, CO 80534 Telephone: [phone] Facsimile No: [phone] E-mail: [e-mail]; [e-mail] Attorneys for Petitioners
Loyd Farms, Vonda J. Tietmeyer, BCK Heath Property, LLC and Dennis Zitek Upper Crow Creek Designated Basin PETITIONERS' EXHIBIT 1 LOYD WELLS Name Permit Number Use Permitted
Acres Aquifer 1 LOYD FARMS 16236-F IRRIGATION 140 ALL UNNAMED AQUIFERS 2 LOYD FARMS 4886-F IRRIGATION 140 ALL UNNAMED AQUIFERS 3 LOYD FARMS 9189-F IRRIGATION 133 ALL UNNAMED AQUIFERS
4 LOYD FARMS 13896-F IRRIGATION 67 ALL UNNAMED AQUIFERS 5 LOYD FARMS 13897-F IRRIGATION 134 ALL UNNAMED AQUIFERS 6 LOYD FARMS 14645-F IRRIGATION 100 ALL UNNAMED AQUIFERS 7 LOYD
JESSE E 16334-F IRRIGATION 480 ALL UNNAMED AQUIFERS 8 LOYD JESSE E 16344-F IRRIGATION 160 WHITE RIVER 9 LOYD JESSE E 20522-F IRRIGATION 360 WHITE RIVER 10 LOYD JESSE E 21497-F IRRIGATION
135 WHITE RIVER 11 LOYD FARMS 22089-F IRRIGATION 135 WHITE RIVER 12 LOYD FARMS 22090-F IRRIGATION 135 WHITE RIVER 13 LOYD JESSE E 16345-F IRRIGATION 160 WHITE RIVER 14 LOYD FARMS
GENERAL PARTNERSHIP 157438 COMMERCIAL N/A ALL UNNAMED AQUIFERS PETITIONERS' EXHIBIT 2 15 TAPPY LEE A 12102-R IRRIGATION 80 ALL UNNAMED AQUIFERS 16 TAPPY LEE A 12103-R IRRIGATION
80 ALL UNNAMED AQUIFERS 17 TAPPY LEE A 6900-F IRRIGATION 425 ALL UNNAMED AQUIFERS 18 TAPPY LEE A 6901-F IRRIGATION 425 ALL UNNAMED AQUIFERS 19 TAPPY LEE A 2161-F IRRIGATION 425 ALL
UNNAMED AQUIFERS 20 DEERCO LLC 4920-F IRRIGATION 140 ALL UNNAMED AQUIFERS PETITIONERS' EXHIBIT 2 TIETMEYER WELLS Name Permit Number Use Permitted Acres Aquifer 1 TIETMEYER VONDA
JEAN 10460-F IRRIGATION 130 WHITE RIVER 2 TIETMEYER CLARENCE 13183-F IRRIGATION 150 ALL UNNAMED AQUIFERS 3 TIETMEYER SCOTT W & PAULA 13184-F IRRIGATION 150 ALL UNNAMED AQUIFERS
PETITIONERS' EXHIBIT 2 BCK HEATH PROPERTY, LLC WELLS Name Permit Number Use Permitted Acres Aquifer 1 BCK HEATH PROPERTY LLC 22173-F IRRIGATION 320 WHITE RIVER 2 BCK HEATH PROPERTY
LLC 21287-F IRRIGATION 160 WHITE RIVER 3 BCK HEATH PROPERTY LLC 23872-FP IRRIGATION 160 WHITE RIVER 4 BCK HEATH PROPERTY LLC 24290-FP IRRIGATION 128 WHITE RIVER 5 BCK HEATH PROPERTY
LLC 24658-F IRRIGATION 128 WHITE RIVER 6 BCK HEATH PROPERTY LLC 24657-F IRRIGATION 509 WHITE RIVER 7 BCK HEATH PROPERTY LLC 28989-F IRRIGATION 509 WHITE RIVER 8 BCK HEATH PROPERTY
LLC 40461-F IRRIGATION 320 WHITE RIVER 9 BCK HEATH PROPERTY LLC 21287-F IRRIGATION 160 ALL UNNAMED AQUIFERS 10 BCK HEATH PROPERTY LLC 22173-FP IRRIGATION 128 ALL UNNAMED AQUIFERS
11 BCK HEATH PROPERTY LLC 77266-F IRRIGATION 110 WHITE RIVER PETITIONERS' EXHIBIT 2 ZITEK WELLS Name Permit Number Use Permitted Acres Aquifer 1 ZITEK VERA S 22806-F IRRIGATION
160 WHITE RIVER 2 ZITEK DENNIS 37875-F IRRIGATION 160 WHITE RIVER 3 ZITEK DENNIS 93400-VE COMMERCIAL N/A ALL UNNAMED AQUIFERS 4 ZITEK DENNIS 93404-VE COMMERCIAL N/A ALL UNNAMED AQUIFERS
PETITIONERS' EXHIBIT 2 PETITIONERS' EXHIBIT 3 PETITIONERS' EXHIBIT 4 PETITIONERS' EXHIBIT 5 PETITIONERS' EXHIBIT 6 PETITIONERS' EXHIBIT 7
16GW04_PrehearingConferenceStatusReport.pdf

16GW04_StaffPrehearingStatement.pdf
BEFORE THE GROUND WATER COMMISSION, COLORADO 1313 Sherman St., Rm. 821 Denver, CO, 80203 [phone]  HEARING OFFICER OR COMMISSION USE ONLY IN THE MATTER OF THE
PETITION TO THE COLORADO GROUND WATER COMMISSION FOR RULEMAKING TO AMEND RULE 5.2.9 OF THE RULES AND REGULATIONS FOR THE MANAGEMENT AND CONTROL OF DESIGNATED GROUND WATER TO DETERMINE
THAT THE ALLUVIAL AQUIFER, FAN AQUIFER, AND WHITE RIVER AQUIFER OF THE UPPER CROW CREEK DESIGNATED GROUND WATER BASIN ARE OVERAPPROPRIATED, THEREBY REQUIRING REPLACEMENT PLANS FOR ISSUANCE
OF NEW LARGE CAPACITY WELL PERMITS THEREIN In the Upper Crow Creek Designated Ground Water Basin In Weld County Attorney for the Colorado Ground Water Commission Staff: CYNTHIA
H. COFFMAN, Attorney General JENNIFER MELE Senior Assistant Attorney General Attorney Reg. #30720* Natural Resources & Environment Section Office of the Colorado Attorney General 1300
Broadway, 7th Floor Denver, CO 80203 Telephone: [phone] Email: [e-mail] *Counsel of Record Case No. 16GW04 STAFF'S PREHEARING STATEMENT 2 The Staff
of the Ground Water Commission (“Staff”), by and through the undersigned attorney, hereby submits the following Prehearing Statement: A. Specific factual and legal claims to be asserted:
1. Petitioners are requesting that the Colorado Ground Water Commission (“Commission”) amend Rule 5.2.9 of the Rules and Regulations for the Management and Control of Designated Ground
Water (“Rules”) to declare that all of the Alluvial, Fan and White River aquifers in the Upper Crow Creek Designated Ground Water Basin are overappropriated and to therefore preclude
the granting of new large capacity well permits in these aquifers unless a replacement plan is approved by the Commission in accordance with Rule 5.6 of the Rules. 2. Rule 5.2.9.2
of the Rules currently provides that the Fan aquifer east of Crow Creek and the White River aquifer underlying this part of the Fan aquifer are overappropriated and therefore no new
large capacity well permits can be granted unless a replacement plan is approved by the Commission in accordance with Rule 5.6 of the Rules. This rule also allows that a well permit
can be approved in the Alluvial aquifer and in the portions of the Fan and White River aquifers not referenced in the rule if the appropriation does not unreasonably impair any existing
water rights. 3. It is the policy of the Commission to maintain reasonable ground water pumping levels and conserve designated ground water resources. §§ 37-90-102(1); 37-90-111,
C.R.S. 4. The Commission is authorized to determine the allowable net average annual depletion rate of a designated ground water aquifer and therefore is authorized to determine when
an aquifer is considered to be overappropriated. Rule 3.1; Rule 4.2.20. 5. Staff has reviewed the information submitted by the Petitioners, as summarized below, and has no reason
to believe the information and data provided in support of the petition is false. a. The petition contains information the Petitioners state indicates that measured static water
levels in wells withdrawing water from the subject aquifers have exhibited a downward trend since at least 1960. The Petitioners have stated to Staff that they have measured water
levels in their wells that produce from the subject aquifers (both in areas that are currently determined to be overappropriated and areas that are currently not determined to be overappropriated)
that show a downward trend in water levels. The Petitioners have stated to Staff that they have talked to other well owners within the Basin who state 3 that wells have to be drilled
deeper in the subject aquifers than they did in the past to reach the water table and produce usable rates of flow. Downward trends in static water levels indicate that total recharge
to these aquifers is less than total discharge, the aquifers are being mined, and are therefore physically overappropriated. b. The petition contains information indicating, and the
Petitioners have stated to Staff, that the production rates from the Petitioner’s wells withdrawing water from the subject aquifers has decreased since those wells were drilled, and
continue to decrease. The petition states that the Petitioners’ wells currently irrigate fewer acres than the permitted acres due to decreases in production capacity. The petition
states that many wells suffer dramatically reduced yields or fail in the latter half of the irrigation season, indicating that the useable aquifer has effectively been depleted at existing
pumping levels. Decreases in production rates indicate a decline in water levels, which indicate the aquifers are being mined, and are therefore physically overappropriated. 6. The
State of Colorado has not been gathering water level data for the aquifers in the Upper Crow Creek Basin, and Staff has done no independent analysis of the ground water levels or amounts
of water in the subject aquifers. Staff has reviewed the following information from the report titled Special Publication 29, Water Resources of Upper Crow Creek, Colorado, dated 1986,
by Robert M. Kirkham and John W. Rold of the Colorado Geological Survey (“Kirkham Report”) that was prepared for use by the Commission in deciding whether to create the Upper Crow Creek
Basin in 1987. a. According to the Kirkham Report, water levels in the Fan aquifer and White River aquifer were declining during the period prior to designation of the Basin, and exhibited
trends indicating that such declines would continue (See Section 1.5 in Exhibit 1; See Section 5.1.4 on pages 61, 66, and 68, Figure 24 on page 60, Figure 25 on page 61, Figures 26
and 27 on pages 62 and 63, and Figure 31 on page 67, all in Exhibit 2). b. According to the Kirkham Report, the Alluvial aquifer, Fan aquifer and White River aquifer are all unconfined
and act as a single aquifer system (See Section 5.1 in Exhibit 3). c. A water budget of the unconfined single aquifer system in the Kirkham Report shows an annual reduction in storage
of 1,300 acre-feet, indicating that the aquifers were physically overappropriated at the time of designation (See Section 5.3 and Table 4 in Exhibit 4). 4 7. Based on the available
information as given above, it appears the Alluvial, Fan and White River aquifers are physically overappropriated and therefore there exists a rationale for the Commission to determine
that those aquifers are over appropriated under Designated Basin Rule 4.2.20. B. List of all exhibits: 1. Kirkham Report Section 1.5 2. Kirkham Report Section 5.1.4 3. Kirkham Report
Section 5.3 4. Kirkham Report Section 5.1 5. Proposed statement of basis and purpose for the proposed changes to Rule 5.2.9 C. List of witnesses to be called and a brief summary of
the facts to which they will testify: 1. Keith Vander Horst, Team Leader, Designated Basins, will testify about the Upper Crow Creek Designated Ground Water Basin generally and the
rulemaking procedure to change Rule 5.2.9 to allow for the Commission’s determination that the Alluvial, Fan and White River aquifers of the Upper Crow Creek Designated Ground Water
Basin are overappropriated. Mr. Vander Horst will also testify that a determination by the Commission that the Alluvial, Fan and White River aquifers are overappropriated is appropriate
and therefore the proposed changes to Rule 5.2.9 are appropriate. D. Specific language proposed for the rule and proposed statement of basis and purpose for the rule 5.2.9 Upper
Crow Creek Designated Ground Water Basin - Alluvial, Fan and White River Aquifers 5.2.9.1 The extent of each aquifer shall be defined as the area identified in Plate 1 of the report
entitled, "Water Resources of Upper Crow Creek, Colorado" prepared for the Colorado Geological Survey by Robert Kirkham and John Rold, Denver, Colorado 1986. All but the southern tip
of the study area is underlain by the White River Aquifer. The southern tip area is underlain by the Laramie formation. 5.2.9.2 The Alluvial Aquifer, Fan Aquifer east of Crow Creek
and the White River Aquifer underlying this part of the Fan Aquifer is are determined to be overappropriated and, therefore, no new large capacity well permits shall be granted in these
aquifers unless a replacement plan is approved by the Commission in accordance with Rule 5.6. A well permit can be approved in the Alluvial Aquifer and in the Fan and White River Aquifer
not mentioned above if this appropriation does not unreasonably impair any existing water rights. 5 5.2.9.3 For any existing large-capacity well that was constructed and put to
beneficial use in compliance with all applicable statutory procedures, and is completed in more than one of the aquifers identified above in Rule 5.2.9.1, an additional large capacity
well permit can be granted by the Commission pursuant to Section 37-90-107, C.R.S. for an increase in appropriation, including an increase in irrigated acres, provided that the requirements
of Rule 5.2.9.2 are met. Any such additional well permit shall have an appropriation date based on the date of application for the additional permit consistent with Section 37-90-109,
C.R.S., which shall be separate and distinct from the original appropriation for the existing well. The proposed statement of basis and purpose is attached as Exhibit 5 to this Prehearing
Statement. E. Outline of testimony to be offered into evidence: See response to A, C, and D, above. Staff reserves the right to supplement and amend this Prehearing Statement upon
proper notice to all parties. DATED this 3rd day of February, 2017. CYNTHIA H. COFFMAN Attorney General JENNIFER MELE Senior Assistant Attorney General Water Resources Unit Natural
Resources and Environment Section Staff Prehearing Statement - Exhibit 1 Staff Prehearing Statement - Exhibit 1 Staff Prehearing Statement - Exhibit 2 Staff Prehearing Statement
- Exhibit 2 Staff Prehearing Statement - Exhibit 2 Staff Prehearing Statement - Exhibit 2 Staff Prehearing Statement - Exhibit 2 Staff Prehearing Statement - Exhibit 2 Staff Prehearing
Statement - Exhibit 2 Staff Prehearing Statement - Exhibit 2 Staff Prehearing Statement - Exhibit 2 Staff Prehearing Statement - Exhibit 2 Staff Prehearing Statement - Exhibit 2 Staff
Prehearing Statement - Exhibit 3 Staff Prehearing Statement - Exhibit 4 Staff Prehearing Statement - Exhibit 4 PROPOSED STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE
FOR THE FEBRUARY 17, 2017 RULEMAKING TO AMEND RULE 5.2.9 OF THE RULES AND REGULATIONS FOR THE MANAGEMENT AND CONTROL OF DESIGNATED GROUND WATER, RULE 2 C.C.R. 410-1 I. STATEMENT
OF PURPOSE The purpose of the amendment to Rule 5.2.9 of the Rules and Regulations For the Management and Control of Designated Ground Water (“Designated Basin Rules” or “Rules”) is
to determine that the Alluvial Aquifer, Fan Aquifer and White River Aquifer within the Upper Crow Creek Basin are overappropriated, requiring approval of a replacement plan to obtain
new permits for large capacity wells in those aquifers. II. STATEMENT OF BASIS AND SPECIFIC STATUTORY AUTHORITY A. Basis and Relevant Provisions of Statute and Rule Pursuant to