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

Engineer and Director of Division of Water Resources Mark Arnusch, Lost Creek Designated Ground Water Basin James Noble, Welborn Sullivan Meck & Tooley Angie Fowler, SGM, Senior Water
Resource Engineer Page 3 Steve Kramer, Northern High Plains Designated Ground Water Basin Greg Larson, Northern High Plains Designated Ground Water Basin Dan Farmer, Upper Black Squirrel
Creek Designated Ground Water Basin Scott Tietmeyer, Upper Crow Creek Designated Ground Water Basin Blake Gourley, Southern High Plains Designated Ground Water Basin Keith Vander Horst,
Colorado Ground Water Commission Staff Rick Nielsen, Colorado Ground Water Commission Staff Jen Mele, Counsel for Ground Water Commission Staff Attachment A
Minutes_2016-11-18_draft.pdfMINUTES
MINUTES QUARTER QUARTERLY MEETING COLORADO GROUND WATER COMMISSION November 18, 2016 The Fourth Quarterly Meeting of the Colorado Ground Water Commission took place on November
18, 2016, at Castle Rock Town Hall, 100 N Wilcox, Castle Rock, Colorado. Vice Chairman Kramer called the meeting to order at 10:00 a.m. Chris Grimes called the roll and determined
that a quorum was present. Commission members present were Marc Arnusch, Dan Farmer, Angela Fowler, Blake Gourley, Steve Kramer, Greg Larson, Jim Noble, Scott Tietmeyer, Virgil Valdez
(arrived prior to agenda item no. 6), Kevin Rein (on behalf of Dick Wolfe) and Suzanne Sellers (on behalf of James Eklund). Staff members present were Keith Vander Horst, Chris Grimes,
Shannon Johnson, Neelha Mudigonda, David Keeler, Kevin Donegan and Andy Flor. Also present were, Pat Kowaleski, A.G. for the Commission and Jennifer Mele, A.G. for staff. Members
of the public were also present. Review and Approval of Agenda Items, the agenda was approved as presented. Approval of Minutes for Meeting of August 19, 2016, Vice Chairman Kramer
asked if there were any corrections or additions to the minutes. There being none, Commissioner Arnusch moved to approve the minutes as presented. Commissioner Fowler seconded the
motion which carried unanimously. Report of the Executive Director by Kevin Rein Mr. Rein opened his comments by advising the Commission that the long term agreement for the operation
of the Republican River Compact Compliance Pipeline had been reached. He also mentioned that the agreement covering Harlan Reservoir in Nebraska had been achieved. He noted that discussions
continue on both projects. Mr. Rein next updated the Commission on progress in the Rio Grande Rules. He reminded the Commission that a stipulation had been reached with one objector
and advised them that progress is being made with the remaining objectors. Mr. Rein closed his remarks by introducing the Commission to Jim Noble. Mr. Noble is replacing Eric Hecox
as the Commission representative for Front Range municipal and industrial users. Mr. Hecox had recently changed jobs and was no longer qualified for that post. Ground Water Commission
Meeting Minutes Page 2 November 18, 2016 Vice Chairman Kramer called for agenda item no. 5, Commissioners’ reports Commissioner Tietmeyer advised the Commission that he would be recusing
himself from the discussion of item a, under old business. He also informed the members that he had attended the American Ground Water Symposium in Denver over the last couple of days.
He said that he was intrigued because they took time at the symposium to educate those in attendance on the Ground Water Commission and its duties. Commissioner Kramer reported that
the WPP (Water Preservation Program) continues to work with CSU to develop an economic study regarding the effects of reduced pumping in the Northern High Plains. He noted that CSU
has sent a survey regarding this study to the farmers, which has caused a stir, and that the WPP is planning on discussing the results with the Management Districts and the County Commissioners
throughout the Basin. Vice Chairman Kramer called for agenda item no. 7, the staff activity report. Mr. Keith Vander Horst went over his written report. He noted that the Southern
High Plains, Camp Creek and Upper Crow Creek Basins remain open for appropriation and therefore will continue to have permits requiring evaluation for final permit. Mr. Vander Horst
also mentioned that while the Front Range Resources and Gallegos matters remain before the Supreme Court there are six (6) cases that will be heard by the Hearing Officer in the first
half of 2017. He closed his comments advising the Commission that of seventeen (17) complaints, two (2) were determined to be violations, a well without a meter in the Plains District
and the irrigation of unauthorized acres in the Upper Big Sandy District. Mr. Vander Horst concluded his comments by introducing the newest team member, Susan Linder, to the Commission.
Chairman Valdez called for agenda item no. 6, Hearing on the appeal from the Initial Decision of the Hearing Officer in the matter of an application by Gayln Einsphar for a reduction
in permitted acres and annual appropriation for permits nos. 13530-FP & 16927-FP, Case no. 15-GW-10. Commissioner Larson advised the Commission that he knows Mr. Einspahr and his attorney.
He also said that they have not discussed this matter and that he believes that he can be impartial. Mr. Russell Sprague, attorney for Mr. Einspahr, addressed the Commission. He
said that his client is asking that the Commission set aside the initial decision of the Hearing Officer, grant the objection to the reduction and return permit no. 16927-FP, issued
as an expansion of well permit no. 13530-FP, to the irrigation of 42 acres with 105 acre-feet of water. Mr. Sprague went on to say that though permit no. 12025-FP identifies only lands
in section 6 to be irrigated, that all the testimony and documentation show that the circle covered part of the west half of section 6 and part of the east half of section 1 to the
west. He said that action taken to replace well permit no. 12025-FP that led to the reduction on permit no. 16927-FP. Mr. Sprague continued to provide the Commission with the history
of the case, covering items in his brief, filed the previous week, identifying exhibits that demonstrated well permit no. 12025 Ground Water Commission Meeting Minutes Page 3 November
18, 2016 FP as irrigating lands in section 6 and 1 since it was first placed to use. He said that it is not possible for the two circles to overlap due to the lay of the land and
to power poles. He also said that his client was willing to reduce well permit no. 12025-FP by 29 acre to go down to the historic practice but was not willing to reduce permit no.
16927-FP. Mr. Sprague said that his client does not believe that he needs to reduce his acreage by the 61 acres of overlap but only by the 29 acres associated with permit no. 12025-FP.
Mr. Sprague suggested that there are four errors in the ruling of the Hearing Officer; 1) The ruling said that when the applications were submitted they were conditioned on a full
61 acre reduction. However, Mr. Einspahr always intended to object to the process as suggested by staff. 2) The Hearing Officer ruled that when evaluating an application to replace
an existing well staff has to look at neighboring wells and respond accordingly. He argues that Statute and Rule language are written as singular in nature. 3) Section 37-90-111(1)
C.R.S. and Rule 7.4.1 require that staff find material injury. He argued that when 12025-FP was reduced to historic use that there can be no injury because the reduction has occurred.
4) The fourth error was not recognizing that everything was caused by a clerical error in the description of acres irrigated by 12025-FP which was caused by the lay of the land. Mr.
Sprague suggested to the Commission that this case is just like the Myering Cattle case or the Telluride case where the Water Court Judge found that the issue was a clerical error and
ordered it corrected without prejudice. Commissioner Noble asked Mr. Sprague if the reduction in 16927-FP would leave the irrigation practice as it currently is and has been, within
2 or 3 acres. Mr. Sprague agreed that would be the case. Commissioner Noble also questioned if it was his clients belief that permit no. 12025FP continue with the 29 acre reduction
and that permit no. 16927-FP not be reduced by 32 acres. Mr. Sprague confirmed that statement saying that staff should only have looked at permit no. 12025-FP and that it is a final
permit that was never objected to and as such is a final action of the Commission. In response a question of Commissioner Farmer, Mr. Sprague said that he did not know how far it is
to the nearest appropriator but that Mr. Einspahr owned and operated the nine circles in the vicinity. Ms. Jen Mele addressed the Commission. Using a projection screen, she showed
the Commission the circles that are being irrigated by the wells in question. She also showed them the lands that permit no. 12025-FP is permitted to irrigate. Ms. Mele then spoke
to the documents in the permit files, the conditional permit, the statement of beneficial use, the final permit. Ms. Mele called these documents the cornerstone of how water rights
are administered and said that the language on the documents drives the administration of those water rights. Based on the language of the documents, she then showed the Commission
a map of the overlapping irrigated acres. Ms. Mele noted that though there are 70 acres of permitted overlap as shown in the photograph staff is holding with their original determination
of 61 acres of overlap that need to be addressed. Those lands could come from one well, essentially drying up the one circle or from the two wells, maintaining the existing irrigation
pattern. Ms. Mele said that weather staff can require action on another well or if Mr. Einspahr agreed to take action it are two different questions. Ground Water Commission Meeting
Minutes Page 4 November 18, 2016 Ms. Mele said that the Hearing Officer’s ruling held that staff did not require a reduction in both wells but that a 61 acre reduction was necessary
and that Mr. Einspahr chose to use both wells. She said that he got what he bargained for and now had to live with a 61 acre reduction. Ms. Mele spoke to the topic of “clerical error”.
Ms. Mele agreed with Mr. Sprague on his analysis of the court case that he cited but noted that the permit file for 12025-FP contained no such discrepancies, the conditional permit,
statement of beneficial use and final permit all agree on the place of use for the water. She said that as the lands in Section 1 were never before the Commission for consideration
of irrigation it could not be an error on staff’s part. Mr. Einspahrs’ expert witness, Mr. Ken Knox testified that the error was on the part of the applicant. Ms. Mele answered questions
from the Commission. In response to a question of Commissioner Farmer, Ms. Mele said that the total permitted lands are the sum of the three permits minus the 61 acres of overlap.
Commissioner Larson asked if the Staff and the Management District could object in the future if Mr. Einspahr wanted to expand the circle under permit nos. 13530-FP and 16927-FP from
173 acres to 202 acres. Ms. Mele responded that if objection is upheld the permit would be for 202 acres, thus there would be no opportunity for objection because notice or publication
would not be required. Commissioner Noble asked why it is considered a clerical error and not an incorrect description. Ms. Mele said that would be a question for Mr. Einspahrs’
attorney. She also said that the description of irrigated acres has been completed and that she did not think there was a request to go back to the original 160 acres. Responding
to Commissioner Arnusch, Ms. Mele said that the whole reduction would have been taken from permit no. 12025-FP if the well had been owned by different parties. Commissioner Rein asked
if what he was hearing was that “you cannot get a change in description of irrigated lands for lands that are already described in another water right”. Ms. Mele agreed that was a
good description. In response to Commissioner Farmer, Ms. Mele said that the situation did not come about because of new technology. She also said that she did not think that the
error was intentional. Commissioner Arnusch asked if the wells had been approved for commingling. After hearing the answer of no they had not been he questioned how the wells could
have been approved to irrigate the same lands. Ms. Mele stated that is how they applied and that staff did not see the overlap at that time. Ms. Mele, responding to Commissioner Farmer,
noted that when two or more wells are permitted to irrigate the same land without the benefit of commingling then the appropriation of each well is restricted to its contribution.
In answer to Commissioner Fowler’s question for clarification, Ms. Mele re-stated that if there were two different well owners involved, that the replacement permit for 12025-FP would
have been issued but that she did not know if it would be worth it since the whole reduction in irrigated acres would have been from permit 12025-FP. Ground Water Commission Meeting
Minutes Page 5 November 18, 2016 Responding to Commissioner Tietmeyer, Ms. Mele said that Mr. Einspahr filed a formal objection to the issuance of permit no. 16927-FP with reduced
acres and acre-feet. Ms. Mele agreed with Commissioner Arnusch that it is the well owner’s responsibility to verify that the permit limits agree with what is being done on the ground.
She also said that staff has to rely on the documents when evaluating a conditional permit or a final permit. To allow staff to throw a document out or disregard it because they felt
it was wrong places to much discretion in the hands of staff, they must rely on the documents signed by the land or well owner as being true. In his rebuttal, Mr. Sprague stated that
Mr. Einspahr is paying attention to the documents on file, specifically citing the Map and Filing Statement which shows a circle as being irrigated, questioning why staff did not consider
this document. Mr. Sprague noticed the Ms. Mele had indicated there had been an error and he agreed. He also said that that is all Mr. Einspahr is trying to do, correct that error
on 12025-FP. He also asked where the injury is, where is the harm? He said that staff did not show harm to other appropriators as required by Statute and Rule. Mr. Sprague noted
that his client may expand in the future, that being a right given to him in permit no. 16927-FP. He said that 16927-FP had already been reviewed and before the Commission when it
was issued a final permit and that there had been no objections to that publication. Mr. Sprague closed his comments by re-stating what Mr. Einspahr is looking for from the Commission.
Commissioner Noble asked Mr. Sprague if it was agreed that the reduction on permit no. 16927FP was an accommodation so that the entire reduction did not apply to permit no. 12025-FP.
Mr. Sprague responded that it was a recommendation that his client took with the full intent to object. Commissioner Noble then asked Mr. Sprague, that since the reduction on 12025-FP
was with the understanding that there would be a reduction on 16927-FP if his client would prefer the whole reduction be on 12025-FP. Mr. Sprague said no but that action can be revisited
if 16927-FP is returned to its full appropriation and acres. Responding to a question of Commissioner Larson, Mr. Sprague stated that if the initial decision were to be upheld that
his client would need to accommodate a reduction of 3 acres on the circle being irrigated by permit nos. 13530-FP and 16927-FP. Further, he said that there would be additional economic
hardship because he would not be able to expand the circle to the 202 acres he purchased by installing swing arms on the north or south side of the circle. Chairman Valdez closed the
hearing and opened discussion of the Commission. Commissioner Rein asked Mr. Kowaleski if the Commission could legally undo an action taken when that action was based on a promise
of a different action that ultimately did not occur. Mr. Kowaleski responded that the Commission has the authority to place restrictions that they believe are appropriate. Ground
Water Commission Meeting Minutes Page 6 November 18, 2016 Commissioner Rein clarified his question asking if the Commission can restore the 32 acres to permit no. 16927-FP without
looking at permit no. 12025-FP. Mr. Kowaleski responded that it would be a legal option. Responding to a comment of Commissioner Valdez, Mr. Kowaleski stated that it is his understanding
that Mr. Einspahr does not believe that any restrictions should be placed on 16927-FP, leaving it permitted for 202 acres while the position of staff is that if no restrictions were
placed on 16927-FP that injury would occur in the future if and when Mr. Einspahr increased his circle to irrigate the full 202 acres as permitted. Chairman Valdez allowed Mr. Sprague
to address the Commission. Mr. Sprague clarified his answer to Commissioner Noble in that his client believes that the restriction on permit no. 12025-FP is closed and that the only
question before the Commission is if the restriction that the Hearing Officer imposed on permit no. 16927-FP is confirmed or overturned. Chairman Valdez allowed Ms. Mele to address
the Commission. She said that it is staff’s opinion that the full 61 acre reduction needs to take place, either from both permits or one and that it is staff’s opinion that the Commission
can order the full reduction from permit no. 12025FP. Commissioner Fowler asked if there was an opportunity to bring the 70 acres back into the discussion or is it tied to the 61 acres.
Ms. Mele said that it is tied to the 61 acres. Responding to a question of Commissioner Farmer, Mr. Sprague said that he believed his client would close nozzles on the end of the
sprinkler to achieve the 3 acre reduction. Responding to Commissioner Larson, Mr. Kowaleski said that any future expansion of irrigated acres by Mr. Einspahr up to 202 acres could
not be prevented if the Commission rules in favor of Mr. Einspahr. Responding to Commissioner Valdez, Mr. Kowaleski stated that the Commission can modify the initial decision of the
Hearing Officer based on what they heard today. Commissioner Tietmeyer asked Mr. Kowaleski if a modification would set a precedent or if it would apply only to this case. Mr. Kowaleski
said that technically it would apply only to this case but that there are attorneys who would try to use it as a precedent. Responding to a question from Commissioner Fowler, Ms. Mele
said that if the Commission modified the initial decision from 31 acres to 29 acres there would be a corresponding increase of 71/2 acre-feet in annual appropriation on permit no. 16927-FP.
Commissioner Kramer moved to uphold the initial decision of the Hearing Officer. Commissioner Noble seconded the motion which passed on voice vote with Commissioner Farmer voting no.
Ground Water Commission Meeting Minutes Page 7 November 18, 2016 Chairman Valdez called for agenda item no. 8, the Attorney General’s report. Ms. Jen Mele informed the Commission
that oral arguments before the Supreme Court in the Gallegos matter would be in December. She reminded the Commission that the Front Range case had been appealed to the Supreme Court
but that no timeline is yet set. Ms. Mele noted that the Attorney General’s report contained an update on the Hutton Case by Chad Wallace. Ms. Mele said that she thinks the matter
will come before the Commission to determine if Designated Ground Water is involved. Chairman Valdez called for agenda item no. 9, Management District Reports Mr. Nate Midcap, reporting
for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, reported that his Districts have been dry. He said that some farmers with late sugar beets or a cover crop are irrigating.
Mr. Midcap advised the Commission that his Districts are closely watching the Hutton Case, the progress on the Republican River Compact Rules and are concerned about the timeline to
amend the Rules for Designated Basins. He reported that his Districts want to require a historic use analysis for a change in description of irrigated acres be adopted by the Commission
but that his Districts will amend their Rules if the timeline for the Commission rules is to far into the future. Mr. Bryon Mc Call, reporting for the W-Y GWMD, introduced himself
to the Commission, informing the Commission that Jack Dowell, after twelve years as manager, had retired. Mr. Mc Call said that since being appointed as manager, he has been using
his time to get organized. There was no report for the Arikaree GWMD. Ms. Deb Daniel, reporting on behalf of Brandi Baquera for the Plains GWMD, reported that Ms. Baquera has spent
the past months inspecting and verify totalizing flow meters and chemigation systems with very few requiring repair. Ms. Deb Daniel, reporting on behalf of Carolyn Talbert for the
East Cheyenne GWMD, told the Commission that the weather had kept Ms. Talbert from attending the meeting. She said that Ms. Talbert told her that the first year as manager has been
challenging and educational. Ms. Talbert told Ms. Daniel that she has been active in meter verification and well testing and that she is looking forward to the upcoming year. Mr.
Blake Gourley, reporting for the Southern High Plains GWMD advised the Commission that it is dry and windy; yesterday the wind was blowing at 50 mph. He noted that most of the crops
were in and that everybody is excited about the price of corn. Mr. Robert Loose reporting for the North Kiowa Bijou GWMD, reported that his area is also dry. Commenting on the Staff
Activity Report, he noted that North Kiowa-Bijou has the majority of large capacity applications, 29 and the majority of the small capacity applications, 45. Mr. Loose said that the
District Board members continue to educate the new home owners in the District on their responsibilities as small capacity well owners. He also reported that the Board is working with
the Town of Wiggins regarding its planned importation of South Platte River water to augment the town’s supplies. Ground Water Commission Meeting Minutes Page 8 November 18, 2016
Commissioner Farmer read the report of Ms. Tracy Doran for the Upper Black Squirrel GWMD. Ms. Doran’s report was a re-cap of the year 2016. It covered those matters of most concern
to the District, Cherokee Metropolitan District and its’ efforts to raise the allowed TDS in the Basin, pending hearings before the Commission and some discussion on High Capacity change
applications. Ms. Doran noted in her report that the District is concerned about illegal impoundment of surface water and the growing marijuana market. Mr. David Tausig reporting
for the Upper Big Sandy GWMD, advised the Commission that the District Board is working on the small capacity rules. He noted that small capacity permits allow for a yield of 50 gpm
and that the Board is considering tying the production to the number of acres involved. Mr. Tausig also said that the Board is tweaking their export rules to address some specific
issues that have come up. Mr. Tausig advised the Commission that the District study, conducted by the USGS, regarding the relationship between the alluvial waters and those of the
bedrock aquifers continues. In closing he said that the Board is continuing the program to help producers acquire meters and get them installed on their wells. Mr. Andy Jones, reporting
for the Lost Creek GWMD, informed the Commission the two big items of concern to the District at this time are the Front Range Resources replacement plan appeal and that the District
is taking steps to require totalizing flow meters on all wells. Mr. Andy Jones, reporting for Upper Crow Creek Basin, reported that though the Basin is dry, Crow Creek is flowing close
to the flow at the time of designation. He added that concern over end of season loss of production from those wells in the White River formation remains high. Mr. Jones informed
the Commission that there has been a new wave of oil and gas exploration. Currently, most of the water for this exploration is coming from Wyoming but residents expect that to change
if the expansion continues. He closed his remarks reminding the Commission that residents remain interested in forming a District. Ms. Deb Daniel, reporting for the Republican River
Water Conservation District, reported that there is a cost to the long term approval of the pipeline as reported by Kevin Rein. The approval requires that Colorado retire 25,000 acres
of irrigated land in the South Fork of the Republican River, 10,000 acres by 2022 and the remaining 15,000 acres by 2027. If Colorado fails to meet this goal, then Colorado must have
a reduction in consumption plan to present to Kansas and Nebraska. Ms. Daniel added that part of the reason for the approval of the Harlan Reservoir project in Nebraska is because
Kansas needed someplace to store water and Kansas can store 30,000 acre-feet there. Ms. Daniel advised the Commission that the administration of the old Bonny reservoir continues to
be an ongoing concern. She said that based on the calculations of the engineers, the RWWCD plans to run the pipeline through March or April. Ms. Daniel said that recognizing their
differences, the WPP is considering what method of conservation works best for each District. On other matters, Ms. Daniel reported that the negotiating committee is talking with the
owners of ground water rights and surface water rights in an effort to lease or purchase those rights for use in the RRCCP. Further, the legislative committee is looking into the concerns
surrounding the two different boundaries, the RRWCD boundary and the RR Domain Boundary as defined in the stipulation. There are wells in the domain boundary that are receiving the
protection of the RRWCD but are not located within the RRWCD boundary. Ground Water Commission Meeting Minutes Page 9 November 18, 2016 Ms. Daniel concluded her remarks saying that
the static water level measurements need to continue as they are extremely important for business in the Northern High Plains as are the historic pumping records. She also asked that
the Commission work on a timely schedule for the rule changes. Chairman Valdez called for agenda item no. 10, old business. a) Proposal to amend Rule 5.2.9 to determine that the
alluvial aquifer, and all of the Fan and White River aquifers, in the Upper Crow Creek Basin are over appropriated. Mr. Andy Jones, attorney for the proponents, addressing the Commission
advised them that he would make his presentation after item b, of old business. b) Proposal to amend Rule 5.6 regarding replacement plans, and Rule 5.8 regarding artificial recharge,
storage, and recovery plans. Mr. Keith Vander Horst re-acquainted the Commission with the proposed Rule changes. Mr. John Buchanan, representing Front Range Resources, urged the Commission
not to fast track the amendments to Rules 5.6 and 5.8. He said that Lost Creek Land and Cattle LLC, a private company is asking for the Rule changes to protect its property rights.
Mr. Buchanan said that bringing water from outside the Basin to recharge the aquifer is a good thing which would be essentially stopped if a provision in the rule change requiring
water rights be changed prior to filing an application with the Commission is approved. Mr. Buchanan brought his remarks to a close by informing the Commission that staff was working
with Lost Creek Land and Cattle LLC to write the suggested changes and not allowing Front Range Resources to participate, in violation of Rule. Mr. Vander Horst addressed the Commission.
He noted that staff does not have a position on fast tracking the Rule change. Mr. Vander Horst reminded the Commission that at the August meeting, at the request of Mr. Alan Curtis,
the Commission approved the fast track course. Mr. Vander Horst also advised the Commission that the process is not yet at the stakeholder process but that staff is composing suggested
changes, in consultation with Mr. Curtis, as proponent of the proposed rule change, to present to all stake holders, including Mr. Buchanan, at some point in the future. Mr. Alan Curtis