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

Section 37-90-107(5), C.R.S., the Colorado Ground Water Commission (“Commission”) has the authority to ascertain whether a new large capacity well will unreasonably affect the rights
of other appropriators and impair uses under existing water rights beyond a reasonable economic limit of withdrawal or use, and determine what amount of lowering of the water level
caused by a new large capacity well would unreasonably affect the rights of other appropriators and impair the uses of existing water rights. Pursuant to Designated Basin 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. In making a determination that aquifers in the Upper Crow Creek Designated Ground Water Basin are overappropriated, the Commission is:
1. Making a determination that the net average annual depletion rate of the aquifer associated with the currently issued large capacity well permits is in excess of the allowable net
average annual depletion rate of ground water for the aquifer. 2. Ascertaining that any withdrawals pursuant to a new large capacity well permit would unreasonably lower the water level
and unreasonably affect the rights of other appropriators and impair the uses of existing water rights (absent approval of a replacement plan). If there is more water discharging from
an aquifer than is recharging into the aquifer, with the result that there is a decline in the amount of water stored in the aquifer, the aquifer is physically overappropriated. If
the physical state of the Staff Prehearing Statement - Exhibit 5 Proposed Basis, Statutory Authority, and Purpose Page 2 of 3 February 17, 2017 Rulemaking Hearing on Designated Basin
Rule 5.2.9 aquifer is overappropriated there exists a rationale for the Commission to determine that the aquifer is an overappropriated aquifer as defined in Rule 4.2.20. Prior
to this rule change, pursuant to Designated Basin Rule 5.2.9, the Fan Aquifer east of Crow Creek and the White River Aquifer underlying this part of the Fan Aquifer were determined
to be overappropriated as defined in the Rules. The petition that was submitted to the Commission requesting this change to Rule 5.2.9 contains information the Petitioners state exhibit
a downward trend in measured static water levels in wells withdrawing water from the subject aquifers since at least 1960. Declines in water levels indicate the aquifers are physically
overappropriated. The petition contains information indicating, and the Petitioners have stated to Staff of the Commission, 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 of the Petitioners’ 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 physically overappropriated. The Petitioners have stated to Staff of the Commission 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) and that such measurements
show a downward trend in water levels. The Petitioners have stated to Staff of the Commission that they have talked to other well owners within the Basin who state 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
the aquifers are physically overappropriated. 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, contains the
following information. a. 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. Staff Prehearing Statement - Exhibit 5 Proposed Basis, Statutory Authority, and Purpose Page 3 of 3 February 17, 2017 Rulemaking Hearing on Designated
Basin Rule 5.2.9 b. The Alluvial aquifer, Fan aquifer and White River aquifer are all unconfined and act as a single aquifer system. c. A water budget of the unconfined single aquifer
system shows an annual reduction in storage of 1,300 acre-feet, indicating that the aquifers were physically overappropriated at the time of designation. Based on the available information
as given above the actual physical net average annual rate of depletion of ground water in the Alluvial Aquifer, the Fan Aquifer, and the White River Aquifer in the Upper Crow Creek
Basin is in excess of the actual physical net average annual rate of recharge to those aquifers, with the result that the amount of water stored in those aquifers is declining. Therefore
those aquifers warrant a determination that the net average annual depletion rate of the aquifer associated with the currently issued large capacity well permits is in excess of the
allowable net average annual depletion rate of ground water for the aquifer. Such a determination means: 1. The aquifers are overappropriated as defined by Rule 4.2.20. 2. Any withdrawals
pursuant to a new large capacity well permit in the aquifers would unreasonably lower the water level and unreasonably affect the rights of other appropriators and impair the uses of
existing water rights in those aquifers (absent approval of a replacement plan). B. Specific Statutory Authority Concerning Rule Making The Commission’s Rules and any amendments thereto
are promulgated pursuant to Section 37-90-111(1)(h), C.R.S. to carry out the authority and responsibilities of the Commission to supervise and control the exercise and administration
of rights acquired to the use of designated ground water. The proceedings will be conducted pursuant to the Commission’s Rules for Procedure for All Hearings Before the Colorado Ground
Water Commission, 2 CCR 402-3. The Commission announced the required Section 24-4-103(2), C.R.S. notice and invited public comment and participation during the stakeholder process.
The proposed rule, and this proposed statement of basis, specific statutory authority and purpose are being made available to the public at least five (5) days prior to the hearing
as required by Section 24-4-103 (4)(a), C.R.S. ### Staff Prehearing Statement - Exhibit 5
16GW04_TopperComments_Rule5-2-9.pdf

16GW07_TopperComment_Rule5-2-9.pdf

AG Report2017-2-17.docxATTORNEY GENERAL’S REPORT

ATTORNEY GENERAL’S REPORT
Cases involving the Colorado Ground Water Commission
February 17, 2017
The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of February 3, 2017.
cherokee metropolitan district
Case No. 08-GW-71
13SA330</w:t></w:r></w
Designated Basin: Upper Black Squirrel Creek
Management District: Upper Black Squirrel Creek
Before: Jody Grantham, Hearing Officer
Attorney: Jen Mele
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 neither Cherokee nor Meridian is prohibited from claiming wastewater return credits for its replacement plan. UBS filed an
appeal on December 18, 2013. The Supreme Court has issued a decision in which they said they upheld the decision of the District Court that under the 1999 Stipulation, but included
in the decision ambiguous language as to whether or not Cherokee can use effluent as a source of replacement water in a replacement plan. Staff has not heard from Cherokee as to how
they plan to proceed with the application still pending before the Hearing Officer.
cherokee metropolitan district
Case No. 08-GW-78 09-GW-15</w:t></w:r></w
Designated Basin: Upper Black Squirrel Creek
Management District: Upper Black Squirrel Creek
Before: Jody Grantham, Hearing Officer
Attorney: Jen Mele
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.
Status: See above.
meridian service metro district
Case No. 09-GW-11
Designated Basin: Upper Black Squirrel
Management District: Upper Black Squirrel
Before: Jody Grantham, Hearing Officer
Attorney: Jen Mele
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.
Gallegos, Reinaldo, et al
Case No. 03-GW-06
03CV1335</w:t></w:r></w
15SA118</w:t></w:r></w
Designated Basin: Upper Crow Creek
Management District:
Before: Supreme Court
Attorney: Pat Kowaleski
Subject: Petition to de-designate portions of the Upper Crow Creek Designated Ground Water Basin.
Background: The petitioners originally sent letters to the State Engineer in 2002 and 2003 seeking curtailment of wells within the Basin. The State Engineer declined to curtail wells
and the petitioners appealed the issue of the Commission’s jurisdiction over surface water rights first to District Court and eventually to the Supreme Court. The Supreme Court held
that the Commission has jurisdiction over surface water rights only to the extent the holder of surface rights seeks to change a boundary of a designated basin, in which case the surface
rights owner must show, using information that was not before the Commission at the time of designation, that pumping of the designated ground water has more than a de minimis effect
on the surface rights and is causing injury to those rights. The matter was remanded to the Commission, and this petition to de-designation a portion of the designated basin was filed
with the Commission on August 11, 2010.
Status: A 7 ½ day trial was held in February 2014 and on March 9, 2015 the district court issued its decision denying the Gallegos Family’s petition to de-designation a portion of the
basin. On April 27, 2015 the Gallegos Family filed an appeal of that order to the Supreme Court. Oral Argument was held on December 6, 2016, and the parties await a ruling.
meridian service metro district
Case No. 12-GW-10
14SA302</w:t></w:r></w:
Designated Basin: Upper Black Squirrel
Management District: Upper Black Squirrel
Attorney: Pat Kowaleski & Susan Schneider
Subject: An application for junior surface and storage rights was filed in water court (10CW95), however objectors argue that the claimed water is actually designated ground water since
if not for the diversion, it would recharge the basin. Since only the Commission has the authority to decide when water is designated basin water, the matter is now before the Commission
to make this determination.
Status: The hearing was held January 22 - 24, 2013 before the Hearing Officer. <The Hearing Officer issued the Initial Decision of the Hearing Officer on April 25, holding that the
applicant must determine what portion of the water claimed in the water court application historically contributed to the water supply of the designated basin and subtract that out
from the surface water claim. The Commission upheld the Initial Decision. Meridian appealed the Commission’s decision to the district court and trial was held July 29 – 31, 2014.
<The district court held in favor of the Management District and the Commission, finding that a portion of the water claimed by Meridian is designated ground water over which the
Commission has jurisdiction. Meridian appealed the matter to the Supreme Court and oral argument was held on September 30, 2015. The Supreme Court issued its decision on November
16, 2015, upholding the decision of the district court and the hearing officer, and finding that a portion of the water Meridian sought to appropriate was designated ground water.
The case was remanded to the district court for further proceedings.
FRONT RANGE RESOURCESCase No. 13-GW-7
15CV30493</w:t></w:r></w:p><w:p w:rsidR="00567999" w:rsidRDefault="00567999" w:rsidP="00567999"><w:pPr><w:rPr><w:b/><w:sz w:val="24"/
Designated Basin: Lost Creek 16SA243</w:Management District: Lost CreekAttorney: Jen Mele & Pat Kowaleski
Subject: Front Range Resources filed for a replacement plan. Objections were filed by Equus Farms Inc., Lost Creek Land and Cattle Company, the Lost Creek Ground Water Management District
and Staff.
Status: The matter was dismissed by the Commission and appealed to the District Court where it was set for trial June 6-16, 2016. Defendants, including the Commission, filed a motion
dismiss the application on the grounds that it is speculative because there are no binding contracts with actual end users for the water. On May 26, 2016 the Court ruled that Front
Range Resources was seeking to appropriate and change water rights and that the anti-speculation doctrine does apply to the application. The Court further found that Front Range Resources’
existing contracts were not binding and do not constitute obligations to provide water, and that the proposed replacement plan did not detail how or if water would be used on land owned
by Front Range Resources. <Front Range Resources filed a notice of appeal with the Supreme Court on September 2, 2016, on the issue of speculation and whether the District Court erred
in determining the Designated Ground Water Rules require that water rights be legally available for use in replacement plans in order to be included in replacement plan application.
On September 19, 2016 Lost Creek Land and Cattle, Equus Farms and the Lost Creek Ground Water Management District filed a notice of cross appeal. Opening Briefs on the appeal are
due Friday, February 3, 2017.
MERIDIAN SERVICE METRO. DIST.Case No. 14-GW-2
Designated Basin: Upper Black SquirrelManagement District: Upper Black SquirrelAttorney: Jen Mele
Subject: Applicants filed an application for six new wells, which are French drains that were discussed in Case No. 12-GW-10. Objections were filed by Staff, Farmers and Upper Black
Squirrel Ground Water Management Dist.
Status: The matter was dismissed by the Hearing Officer after the applicant presented its case at the hearing that began on January 14, 2015 because the applicant did not have a replacement
plan for its new appropriations. See below Case No. 15GW14.<
AXTON (Rocky Mountain Roosters) Case No. 15-GW-5
</w:Case No. 15-GW-6
Designated Basin: Kiowa BijouManagement District: North Kiowa Bijou Attorney: Jen Mele
Subject: Applicants filed an application for determination of water rights and a replacement plan. Objections were filed by the North Kiowa Bijou Ground Water Management District,
Earnest Mikita, Robert Alexander, Joe Eurich, Vincent & Jacqueline Eurich, Harold Eurich, Alvin Eurich, Darrel & Carol Dutro, Bob Pemberton and E. Scott Mikita.
Status: This matter has been set for a five day hearing scheduled to begin on June 5, 2017.
EINSPAHR, Gayln Case No. 15-GW-10
Designated Basin: Northern High Plains
Management District: Sand Hills
Attorney: Jen Mele
Subject: Staff required the applicant to file an application for reduction in number of irrigated acres and associated annual appropriation in order to obtain a replacement well for
one of the applicant’s wells. Applicant does not believe a reduction is required and claims an apparent overlap of irrigated acres with another well is a clerical error on the permit
for the other well.
Status: The hearing officer issued Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer on May 16, 2016, agreeing with the reductions required by Staff.
Mr. Einspahr filed a Notice of Appeal and Exceptions to the Initial Decision of the Hearing Officer and the matter was heard by the Commission at the November meeting. The Commission
upheld the Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer. <
MERIDIAN METRO DISTRICT Case No. 15-GW-14
Designated Basin: Upper Black Squirrel
Management District: Upper Black Squirrel
Attorney: Jen Mele
Subject: Application for replacement plan to replace depletions of underdrains that were the subject of 14GW02. Objections were filed by Pain Brush Hills Metro District, Upper Black
Squirrel Creek Ground Water Management District, Woodmen Hills Metro District, the Wayne E. Booker Revocable Living Trust and the Frances G. Booker Revocable Living Trust, Dan Farmer,
Joe Farmer, Jr., Jerry Farmer, Teresa Farmer, Edna Farmer and the Farmer Pipeline Company, LLC, and Staff of the Ground Water Commission.
Status: This matter is scheduled for a five day hearing to begin on February 6, 2017.
CHEROKEE METRO DIST v. GROUND Case No. 15CW3028</w:t></w:r><w:r><w:rPr><w:b/>WATER COMMISSION and UPPER BLACK 15GW15SQUIRREL CREEK GROUND WATER MANAGEMENT DIST
Designated Basin: Upper Black Squirrel CreekManagement District: Upper Black Squirrel CreekAttorney: Jen Mele
Subject: Cherokee Metropolitan District originally filed a Complaint for Declaratory Judgment in district court seeking a determination as to the legal uses of Cherokee Well Nos. 1-8,
specifically a finding that those wells can legally be used both inside and outside the designated basin and that irrigation use is not limited to the acreage that was specified in
the statement of claim filed with the original application. Defendants filed a Motion to Dismiss, arguing that the Ground Water Commission has jurisdiction over this determination
since the subject rights are designated ground water. The motion was granted and Cherokee has submitted the Complaint for Declaratory Judgment to the Hearing Officer.
Status: The Commission was named as a defendant and Staff filed a motion to dismiss the Commission as a defendant since the matter is before the Commission. That motion was granted.
The matter is set for a 5 day hearing scheduled to begin on March 30, 2017. On January 9, 2017, both Cherokee and the Upper Black Squirrel Creek Ground Water Management District filed
motions for summary judgment asking the Hearing Officer to decide the main controversy in the case, the proper place of use of Cherokee Well Nos. 1-8. Responses to the motions are
due February 3, 2017. </w:t

WOODMEN HILLS METRO DIST. Case No. 03-GW-20
Designated Basin: Upper Black Squirrel
Management District: Upper Black Squirrel
Attorney: Jen Mele
Subject: Application for a replacement plan for depletions resulting from the pumping of 16 wells. Objections were filed by the Upper Black Squirrel Creek Ground Water Management District,
Wayne E. Booker Revocable Living Trust and the Frances G. Booker Revocable Living Trust, Dan Farmer, Joe Farmer, Jr., Jerry Farmer, Teresa Farmer, Edna Farmer and the Farmer Family
Pipeline Company and Staff. This application is technically a republication required by the hearing officer in 2005 to include additional structures to the replacement plan filed in
2003 and therefore the original case number was used.
Status: The applicant filed a motion to postpone the hearing that was set for October 31, 2016 in order to include additional structures causing depletions and the concept of using
recharge facilities in its replacement plan. A <five day hearing is set for December 4, 2017. <
STRASBURG SANITATION & WATER DISTRICT Case No. 16-GW-1
Designated Basin: Kiowa Bijou
Management District: North Kiowa Bijou
Attorney: Jen Mele & Michael Toll
Subject: Objection by the applicant to the requirement that the well be subject to final permitting requirements and to the reduction of the annual appropriation upon issuance of the
final permit for the well with permit no. 2642-F. < <
Status: This matter in conjunction with the Kiowa Water & Wastewater Authority, case no. 16GW2, is set for a four day hearing scheduled to begin on May 22 – 25, 2017. The hearings
are set back-to-back so that the hearing in 16GW2 will begin when the hearing in this case ends. < <The applicant filed a motion for summary judgment on August 23, 2016, seeking a determination
from the Commission that the original permit issued for the subject well in 1960 is the final permit and therefor the requirements of § 37-90-107, i.e. issuance of a final permit based
on actual beneficial use of the well, do not apply. Staff argued in its response that all wells, including the subject well, are subject to diversion limits based on actual beneficial
use. The Hearing Officer denied the applicant’s motion. <
KIOWA WATER & WASTEWATER AUTHORITY Case No. 16-GW-2
Designated Basin: Kiowa Bijou
Management District: North Kiowa Bijou
Attorney: Jen Mele
Subject: Objection by the applicant to the requirement that the well be subject to final permitting requirements and to the reduction of the annual appropriation upon issuance of the
final permit for the well with permit no. 2794-F. <
Status: This matter in conjunction with the Strasburg Sanitation & Water District, case no. 16GW1, is set for a four day hearing scheduled to begin on May 22-25, 2017. The hearings
are set back-to-back so that the hearing in this case will begin after the hearing in 16GW1 ends. The applicant filed a motion for summary judgment on August 23, 2016, seeking a determination
from the Commission that the original permit issued for the subject well in 1960 is the final permit and therefor the requirements of § 37-90-107, i.e. issuance of a final permit based
on actual beneficial use of the well, do not apply. Staff argued in its response that all wells, including the subject well, are subject to diversion limits based on actual beneficial
use. The Hearing Officer denied the applicant’s motion and because the applicant indicated it intended to offer evidence at trial as to intended future use of the well, on February
3, 2017 Staff filed a motion for summary judgment arguing that evidence considered by the Commission must be limited to evidence of the extent of actual beneficial use of the water
and that evidence of future projected water demand is not relevant for the purpose of issuance of the final permit. <
Meridian Service Metropolitan District Case No. 16-GW-05
Designated Basin: Upper Black Squirrel
Management District: Upper Black Squirrel
Attorney: Jen Mele
Subject: Petition for determination of jurisdiction pertaining to surface water in Pond B and Pond C. < <
Status: This matter was filed on December 16, 2016 and no deadlines have been set.
HUTTON EDUCATIONAL FOUNDATION V. WOLFE, ETAL 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, not just surface rights, 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 sought certification of the dismissal for appeal to the Colorado Supreme
Court. The trial court certified its order of dismissal for appeal and stayed the remaining claims until the appeal is resolved. Hutton has identified the issues for appeal to include
the trial court’s dismissal and the underlying question of whether SB 10-52, amending the Management Act, is unconstitutional. Some of the defendants, joined by the Commission, filed
a motion with the Supreme Court to limit the issues on appeal to the dismissal, and to exclude any arguments on the constitutionality of Management Act statutes. No schedule is set
for resolving the motion to limit issues. Briefing on the appeal is currently set to occur this spring.
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AG Report2017-2-17.pdfATTORNEY GENERAL’S REPORT
ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission February 17, 2017 The listing below summarizes matters in which the Office of the Attorney General represents
the Colorado Ground Water Commission as of February 3, 2017. CHEROKEE METROPOLITAN DISTRICT Case No. 08-GW-71 13SA330 Designated Basin: Upper Black Squirrel Creek
Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele 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 neither Cherokee nor Meridian is prohibited from claiming wastewater return credits for its replacement plan. UBS filed an appeal on December 18, 2013.
The Supreme Court has issued a decision in which they said they upheld the decision of the District Court that under the 1999 Stipulation, but included in the decision ambiguous language