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

approached the Commission and reminded them of the reason that they agreed to the fast track approach on these rules in August. He said that Lost Creek Land and Cattle LLC and others
in the basins had recently spent hundreds of thousands of dollars defending their water rights against the deep pockets of Front Range Resources and it’s replacement or storage and
recovery plan, they were not quite sure which. Mr. Curtis asked that the fast track continue so that the Rules can be clarified prior to the next application for a replacement plan
or for aquifer storage and recovery. Ms. Leila Behnampour representing Central Yuma, Frenchman, Marks Butte and Sandhills GWMD and North Kiowa LLC, addressed the Commission. Ms. Behnampour
expressed the concern of her clients that amendments to all of the Rules are being put on hold because of the fast tracking of a few rules. She would like to see the general rule changes
be expedited as well and not have to wait until 2018. Ground Water Commission Meeting Minutes Page 10 November 18, 2016 Commissioner Farmer stating that the Commission needs to be
educated on the matter suggested that an interim meeting might be helpful. Responding to questions from Mr. Rein, Mr. Buchanan said that it is their belief that the stake holder process
has begun and that they want to be treated the same as any private party participating in drafting the proposed rule changes. Responding to a question of Commissioner Farmer encouraging
the process for amending Rule 5.2.9 continue on a fast track, Mr. Vander Horst said that the process for Rule 5.2.9 is well along and ready for publication. Commissioner Arnusch said
that the process should continue for Rules 5.6 and 5.8 and that he did not see a motion as being necessary to do so. Responding to a question of Mr. Kowaleski, Mr. Vander Horst said
that based on the August meeting and the discussion today he is of the belief that he should proceed with the stake holder meetings and come back to the Commission for authorization
to file the proposed rules with the Secretary of State without further consultation with Mr. Curtis or other parties. 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. Vander Horst briefed the Commission on the history of the request and
of the stake holder process recently completed. He asked the Commission for authorization to file the Notice of Rule Change with the Secretary of State and to publish the Rule change.
Mr. Jones approached the Commission. Noting that there was no opposition to the proposed change, Mr. Jones requested that the hearing be scheduled to be heard by the Commission at
the February meeting. Commissioner Gourley moved to file the rule change with the Secretary of State. Commissioner Fowler seconded the motion which passed unanimously. c) The Office
of the State Engineer’s role as an implementing agency under SB-181 of 1989. Mr. Vander Horst, covering his November 8, 2016 memorandum to the Commission, provided the Commission with
a history of SB-89-181 noting that while the State Engineer is an implementing Agency, the Ground Water Commission is not. Commissioner Fowler said that based on the information provided
she does not believe that the Commission needs to be an implementing agency at this time. Mr. Jones addressed the Commission, reminding them that the reason the subject of the Commission
being an implementing agency was to give credence to their Rules which speak to water quality. He suggested amending the Rules to specifically say that Rule 41 applies. Commissioner
Farmer asked if Rule 42, dealing with site specific as opposed to the general regulations of Rule 41 could also be considered. Mr. Jones said it could. Ground Water Commission Meeting
Minutes Page 11 November 18, 2016 Chairman Valdez called for agenda item no. 11, new business. a) Request for Authorization to Proceed with Rulemaking: Amendments to 2 CCR 402-3,
Rules of Procedure for All Hearings Before the Colorado Ground Water Commission. Mr. Kevin Rein, speaking on behalf of Hearing Officer Grantham reminded the Commission that this action
is in accord with direction from the Governor and legislature to review and amend all rules associated with regulatory agencies. Mr. Rein said that Mr. Grantham is asking for authorization
to begin the rulemaking process, publication and stakeholder meetings. The Commission authorized Mr. Grantham to proceed with the rulemaking process. b) Selection of next year’s meeting
dates and locations. Mr. Chris Grimes presented February 17, 2017 in Denver as the date and location for the first (1st) quarterly meeting of the Commission. The Commission approved
this date. Commissioner Arnusch, noting that the November 2017 meeting date would conflict with the largest agricultural meeting in the State asked if the 2017 November meeting could
be moved up a week. The Commission directed Mr. Grimes to bring this matter to the attention of Secretary Nielsen. Commissioner Fowler requested that staff, at the next meeting, present
a proposed rule making schedule for 2017 that considers all of the Rules, not just those that are being fast tracked. Chairman Valdez called for agenda item no. 12, public comment,
there was none. There being no further business the meeting adjourned. Respectfully submitted, Richard A Nielsen, P.E., Secretary Colorado Ground Water Commission
Minutes_November_2016.docxMINUTES

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.
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-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;
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.
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.
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.
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. 12025-FP 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.<
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.
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. 16927-FP 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.
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. 12025-FP.
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.
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.
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. M<s. 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.