DWR_3364084

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 5/18/2017
• Subject: MEETING MATERIALS

due to extenuating circumstances, a hearing shall be held within one hundred eighty (180) days after the filing of a request for such a hearing pursuant to § 37-90-113, C.R.S. 2. Adjudicatory
hearings heard by the Commission or Hearing Officer shall be held within the boundaries of the designated ground water basin and ground water management district, if one exists, in
which the water rights directly involved are situated, or at such other place as may be designated by the Commission or the Hearing Officer for the convenience of, and as agreed to
by, the Parties involved. §§ 37-90-107(4) & 37-90-113, C.R.S. 3. In conducting hearings the Commission or Hearing Officer shall, in addition to the authority specified elsewhere,
have authority to: administer oaths and affirmations; sign and issue subpoenas; regulate the course of the hearing; set the time and place for continued hearings; fix the time for
the filing of appropriate documentation; take depositions or have depositions taken; issue appropriate orders that shall control the subsequent course of the proceedings; and take any
other action authorized by statute or Division of Water Resources rule. § 24-4-105(4), C.R.S. 4. Burden of Proof a. Except as otherwise provided by statute, the proponent of the
order shall have the burden of proof. § 24-4-105(7), C.R.S. “Order” means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory
in form) by the Commission in any matter other than rule-making. § 24-4-102(10), C.R.S. The Commission or Hearing Officer shall determine the proponent or proponents of orders as
appropriate on a case-by-case basis based on the relief requested by the Parties. In making this determination and in holding the proponents of orders to their burdens of proof, the
Commission or Hearing Officer shall consider the following general principles: i. Applicants for well permits, changes of water rights, replacement plans and/or artificial recharge
plans shall have the intitial burden of proof. ii. When a Party is requesting that the Commission or Hearing Officer review to either reverse or modify an initial Commission action,
the Party seeking reversal or modification of the initial Commission action is the proponent of the order as to the requested relief. iii. When a Party is requesting any determination
by the Commission or Hearing Officer not previously made by the Commission, the Party seeking the determination is the proponent of the order as to the requested determination. iv.
If a proponent of an order presents initial evidence sufficient on its face to satisfy the burden of proof based on the preponderance of the evidence, the burden of proof may be shifted
to the opposing Party or Parties to present sufficient evidence to the contrary, but the ultimate burden of proof rests with the proponent of the order to prove its claims based on
the preponderance of all of the evidence. v. The Commission or Hearing Officer shallould give effect to any rebuttable presumptions established by statute or other law. 5. All hearings
shall be conducted in the following order unless otherwise directed by the Commission or Hearing Officer or as provided for under the Alternative Means for Dispute Resolution requirements
set forth in Rule 5: a. Call to order and introductory remarks; b. Presentation of any Stipulations or agreements between the Parties; c. Opening statements by the Party or Parties
supporting the order upon whom the burden of proof rests; d. Opening statements by all other Parties; e. Presentation of case-in-chief by the Party upon whom burden of proof rests:
f. Presentations by all other Parties wishing to offer evidence, with the order of presentation to be determined by the Commission or Hearing Officer; g. Rebuttal by the Party upon
whom the burden of proof rests; h. Closing statement by Party upon whom the burden of proof rests. Closing statements may be provided by written brief if the Commission or Hearing
Officer determines it is warranted ; i. Closing statements by all other Parties. Closing statements may be provided by written brief if the Commission or Hearing Officer determines
it is warranted;. j. At the conclusion of any witness’s testimony, all other Parties may then cross-examine each witness. The order of the cross examination shall be determined by
the person conducting the hearing. The Commission or Hearing Officer may examine any witness at any time. 6. No ex parte Communications with or by the Commission or Hearing Officer
may occur during the pendency of any Adjudicatory Proceeding within the scope of the Ground Water Management Act. The Commission or Hearing Officer may, through formal communication
with all Parties, request that certain information be provided to him or that certain tasks be performed. 7. Evidence a. The rules of evidence and requirements of proof before the
Commission shall conform, to the extent practicable, with the Colorado Rules of Evidence and the Colorado Rules of Civil Procedure. However, when necessary to do so in order to ascertain
facts affecting the substantial rights of the Parties to the proceedings, the Commission or Hearing Officer may receive and consider evidence not admissible under such rules if such
evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. Objections to evidentiary offers may be made and shall be noted
in the record. The Commission or Hearing Officer shall give effect to the rules of privilege recognized by law. Incompetent and unduly repetitious evidence may be excluded. Documentary
evidence may be received in the form of a copy or excerpt if the original is not readily available, but upon request, the Party shall be given an opportunity to compare the copy with
the original. § 24-4-105(7), C.R.S. b. Parties may make objections and all witnesses shall be subject to cross-examination. The Commission or Hearing Officer may question any witness
that testifies at the hearing and all witnesses shall also be subject to cross-examination by the Commission or Hearing Officer. 8. The Commission or Hearing Officer may allow Parties
to submit evidence not previously submitted or disclosed under prehearing procedures for Good Cause. 9. The Commission or Hearing Officer may permit Parties to submit motions not previously
submitted under prehearing procedures for Good Cause. 10. The Commission or Hearing Officer, after the receipt of the evidence, may allow or require Parties to present oral or written
summations of the facts and the law, either at the hearing or subsequent thereto. 11. Every Party shall have the right to present their case or defense by oral and documentary evidence.
They shall also have the right to submit rebuttal evidence and conduct cross-examination as may be required for a full and true disclosure of the facts. Subject to these rights, where
a hearing will be expedited and the interests of the Parties will not be substantially prejudiced, the Commission or Hearing Officer may receive all or part of the evidence in written
form. § 24-4-105(7), C.R.S. 12. The Commission or Hearing Officer may utilize their experience, technical competence, and specialized knowledge in the evaluation of the evidence
presented. § 24-4-105(7), C.R.S. 13. The Commission or Hearing Officer may take notice of general, technical, or scientific facts within their knowledge if the relevant fact noticed
is specified in the record or brought to the attention of the Parties before a final decision (or Initial Decision of the Hearing Officer) and all Parties are afforded an opportunity
to controvert the fact so noticed. § 24-4-105(8), C.R.S. 14. Any Party, or the agent, servant, or employee of any Party, permitted or compelled to testify or submit data or evidence,
shall be entitled to the benefit of legal counsel of his own choosing and at his own expense, but a Person may appear for himself. An attorney who is a witness may not act as counsel
for the Party calling him as a witness. § 24-4-105(9)(a), C.R.S. 15. The Commission or Hearing Officer shall cause the proceedings to be recorded by a reporter or by an electronic
recording device. When requested, the Commission or Hearing Officer shall cause the proceedings, or any portion thereof, to be transcribed, the cost thereof to be paid by the Party
requesting the transcription. If the Commission or Hearing Officer acquires a copy of the transcription, said copy shall be made available to any Party at a reasonable time for inspection
and study. If a party obtains a copy of a transcript paid for by another party, the receiving party is required to contribute to the cost for preparation of the transcript. § 24-4-105(13),
C.R.S. 16. Prompt notice shall be given of the refusal to accept for filing or the denial in whole or in part of any written applications or other request made in connection with any
adjudicatory hearing, with a statement of the grounds for such refusal or denial. 17. In any case where the Hearing Officer has conducted the hearing, the Hearing Officer shall prepare
and file an Initial Decision that shall be served upon each Party, except where all Parties with the consent of the Commission have expressly waived their right to have an Initial Decision
rendered by the Hearing Officer. 18. These procedures may be modified by the Commission or Hearing Officer if deemed necessary to affect the speedy resolution of the matter without
prejudice to the participating Parties before them. Rule 10 Requests for Administrative Hearings before the Commission under Section 37-90-114, C.R.S. A. Requests for all hearings
must be timely filed pursuant to these regulations and applicable statutory requirements. B. Requests for all hearings shall contain the following information: 1. Identification of
the person(s) requesting the hearing and the subject matter of the request. 2. The legal, statutory, and regulatory authority forming the basis and authority for the request. 3. The
basis upon which the applicant believes the Commission or the State Engineer has committed error with respect to the subject matter of the request. 4. An estimate of the time that
will be required for the hearing. 5. Any person wishing to request a hearing on or claim injury from an order of the Commission or the State Engineer pursuant to section 37-90-114,
C.R.S., shall file a written statement with the Commission setting forth the grounds for the request for hearing or claim of injury within thirty (30) days of receipt of the order.
6. After receipt of such a request for hearing or claim of injury, the Commission shall conduct a hearing thereon pursuant to these rules and statutory authority. Rule 11 Notice Concerning
Adjudicatory and Other Non-Rulemaking Hearings A. The Commission or Hearing Officer shall provide written notice of all adjudicatory and other nonrulemaking hearings in accordance
with the requirements of this section and Rule 4.I B. The Commission or Hearing Officer shall provide all Parties, including petitioner(s), if applicable, timely notice of the time,
place, nature of the hearing, and the legal authority under which the hearing will be conducted. C. Unless otherwise provided by law, notice shall be served personally or by mailing
by first-class mail to the last address furnished the Commission or Hearing Officer by the person to be notified, at least twenty (20) days prior to the hearing. The provisions of
Rule 4.I shall also apply. D. Due regard shall be given for the convenience and necessity of the Parties and their representatives in fixing the time and place for all hearings, including
the requirements set forth under section 37-90-113, C.R.S. E. A notice may contain requirements with respect to any special procedures, including requirements for written testimony
as deemed appropriate concerning any particular adjudicatory matter. F An amended notice may be issued any time prior to the hearing without necessitating a continuance of the hearing
date, provided the original notice is not substantially altered to the prejudice of any party. If an amendment is substantial and prejudicial, the hearing date shall be continued to
an appropriate date as determined by the Commission or Hearing Officer. G. The Commission or Hearing Officer may continue a hearing to another date by issuing written notice to that
effect at any time prior to the close of the record, or by announcement at the date, time, and place of the original hearing. Rule 12 Party Status for Adjudicatory and Other Non-Rulemaking
Hearings A. Any Person requesting an adjudicatory or other non-rulemaking hearing shall be granted Party status and need not file an application to be granted this status. B. Any
Person who may be affected or aggrieved by the Commission’s or State Engineer’s action shall be admitted as a Party to the proceeding upon filing a timely written request in accordance
with the requirements of this subsection. C. Application to be made a Party shall set forth a brief and plain statement of the reasons for seeking Party status, including the facts
that entitle admission and issues believed to be decided. The statement should contain a description of the general nature of the evidence to be presented in the course of the proceedings.
D. The Commission or Hearing Officer shall grant or deny Party status at the prehearing conference or other appropriate time prior to the hearing in a manner that does not prejudice
other Parties already participating in the proceedings. E. Staff of the Commission shall automatically be a Party in all adjudicatory or other administrative proceedings. The attorney
general shall represent staff. F. For good cause nNothing in this subsection shall prevent the Commission or Hearing Officer from admitting any Person as a Party to any proceedings
for limited purposes upon Good Cause. Rule 13 Final Agency Action for Adjudicatory and Other Non-Rulemaking Hearings Before the Commission A. The Commission or Hearing Officer shall
proceed with reasonable dispatch to conclude any matter presented to it with due regard for the convenience of the Parties or their representatives, giving precedence to rehearing proceedings
after remand by court order. § 24-4-105(10), C.R.S. B. Hearings before the Commission and initial decisions by a Hearing Officer shall be based on the record. The record shall include:
All pleadings, applications, evidence, exhibits and other papers presented or considered, matters officially noticed, ruling upon exceptions, any findings of fact and conclusions of
law proposed by any Party, and any written briefs Filed. § 24-4-105(14)(a), C.R.S. C. In any case where the Commission has conducted the hearing, it shall prepare, File and serve upon
each Party its decision and the provisions of Rule 4.I shall apply. In any case where the Hearing Officer has conducted the hearing, the Hearing Officer shall prepare and file an Initial
Decision that shall be served upon each Party, except where all Parties with the consent of the Commission have expressly waived their right to have an Initial Decision rendered by
the Hearing Officer. Each decision and Initial Decision shall include a statement of findings and conclusions upon all the material issues of fact, law or discretion presented by
the record and the appropriate order, sanction, relief, or denial thereof. §24-4-105(14)(a), C.R.S. D. In the absence of an appeal to the Commission the initial decision of a Hearing
Officer shall become the final decision of the Commission. In such case the evidence taken by the Hearing Officer need not be transcribed. Any appeal to the Commission from the initial
decision of the Hearing Officer shall be taken by a party by filing exceptions within thirty (30) days after service of the initial decision of the Hearing Officer upon the Parties,
unless extended by the Commission, or a review upon motion by any member of the Commission within thirty (30) days after service of the initial decision of the Hearing Officer. §§
24-4-105(14)(a)(II), (14)(a)(III), C.R.S. E. Within twenty days following an initial decision of the Hearing Officer, any Party seeking to reverse or modify the initial decision of
the Hearing Officer shall File a designation of the parts of transcript of the proceedings that shall be prepared and advance the cost therefore. Within ten days thereafter, any other
Party or the Commission may also File a designation of additional parts of the transcript of the proceedings that are to be included and advance the cost therefore. The transcript
or the parts thereof which may be designated by the Parties shall be prepared by the reporter or, in the case of an electronic recording device, the agency conducting the hearing, and
shall thereafter be filed with the Commission. No transcription is required if the Commission’s review is limited to a pure question of law. The Commission may permit oral argument.
The grounds of the decision shall be within the scope of the issues presented on the record. The record shall include all matters constituting the record upon which the decision of
the Hearing Officer was based, the rulings upon the proposed findings and conclusions, the initial decision of the Hearing Officer, and any other exceptions and brief filed. § 24-4-105(15(a),
C.R.S. F. Unless the Hearing Officer’s findings of evidentiary fact are contrary to the weight of the evidence, those findings, as distinguished from ultimate conclusions of fact,
shall not be set aside by the Commission on review of the Hearing Officer’s initial decision. The Commission may remand the case to the Hearing Officer for any further proceedings
as they may direct, affirm, set aside, or modify, including any sanction or relief entered therein, in conformity with the facts and the law. § 24-4-105(15(b), C.R.S. G. Each decision
and initial decision shall be served on each Party by first class or in person, or via electronic means (upon agreement between the Parties) and shall be effective as to such party
on the date mailed or such later date as is stated in the decision. § 24-4-105(16)(a), C.R.S. H. Upon application by a Party, and prior to the expiration of the time allowed for commencing
an action for judicial review, the Commission may change the effective date of a decision or initial decision. § 24-4-105(16)(b), C.R.S. I. A party seeking judicial review of Commission
action may apply to the Commission to postpone the implementation date of the agency action. The Commission, upon a finding that irreparable injury would otherwise result, shall postpone
the effective date of the action pending judicial review. Postponement of the implementation date of an action does not stay the time for seeking judicial review and does not constitute
Commission agreement to grant a hearing, rehearing or reconsideration. § 24-4-106(5), C.R.S. Rule 14 Reconsideration A. During the time permitted for seeking judicial review of
any final order rendered by the Commission or Hearing Officer in any adjudicatory or other administrative hearing, any Party affected or aggrieved by such order or determination may
apply to the Commission or Hearing Officer for a rehearing with respect to, or reconsideration of, such order or determination. The determination by the Commission or Hearing Officer
whether to grant or deny the application for a rehearing, or reconsideration shall be made within 10 days after receipt by the Hearing Officer of such application. Determinations
by the Commission as a body whether to grant or deny the application for a rehearing, or reconsideration shall be made at the next regularly scheduled Commission meeting. B. If the
application for a rehearing or reconsideration is granted, the order or determination to which such application pertains shall not be considered final for purposes of judicial review
and the Commission or Hearing Officer may affirm, reverse, or modify, in whole or in part, the pertinent order or determination. Thereafter, such order or determination shall be final
and not subject to reconsideration under this section. C. If the application before the Commission (an initial decision of the Hearing Officer is not included herein) for a rehearing
or reconsideration is denied, the applicable order or determination shall be considered final agency action as of the date the denial is originally signed or indicated in the relevant
decision under application for reconsideration. An application under this section extends the time period for seeking judicial review of the original order or determination only for
the number of days that it is pending, since such an application merely stays the time period for seeking judicial review. D. Applications for reconsideration by the Hearing Officer
shall stay the time for running an appeal to the Commission only by the number of days that it is pending. Applications for re-hearing or reconsideration filed with the Hearing Officer
must be filed within 10 days of the Hearing Officer’s initial decision and the Hearing Officer must file a written decision concerning such reconsideration within 10 days receipt of
its filing. E. The decision to grant or deny a rehearing or reconsideration pursuant to this section is not subject to judicial review.
StaffProposalToChangeRule7-4_2017-5-8.pdf

StaffReport2017May.docx
Ground Water Commission
1313 Sherman Street, Room 821
Denver, CO 80203
May 18, 2017 Meeting
MEMORANDUM
TO:Dick Wolfe, Executive Director – Ground Water Commission
FROM:Keith Vander Horst, Designated Basins Team Leader
SUBJECT:Staff Activity Report for November 1, 2016 through January 31, 2017
Various activities performed during the last quarter are briefly described below.
New and Replacement Applications
Table 1 provides a breakdown, by basin, of permitting activity for the last quarter. Permit activities are summarized as follows.
Small capacity:
148 small capacity new and replacement well permit applications were received
102 small capacity new and replacement well permits were issued
Large Capacity:
49 large capacity new and replacement well permit applications, and Determination of Water Right applications, were received
14 large capacity new and replacement well permits and Determinations of Water Rights were issued
Table 2 provides details on the individual pending large capacity new and replacement permit applications and Determination of Water Right applications.
Change Applications
Table 1 also gives a breakdown, by basin, of change of water right application activities for the last quarter:
6 new change applications were received
8 change applications were approved
Table 3 provides details on the individual pending change of water right applications.
Final Permit Summary
Below is a summary of the status of permits subject to Final Permitting as of April 30, 2017. The</ numbers do not include permits that are not subject to Final Permitting, such as for
Denver Basin bedrock aquifer permits. Conditional permits counted in the table below that have not been issued Final Permits consist of either recently issued conditional permits for
which the <well owner still has opportunity to use the well and prove up the conditional right and be issued a Final Permit, or older conditional permits that are still pending evaluation
and/or issuance of a Final Permit.
Final Permit Status as of April 30, 2017
Basin
Total Number of Permits
Number of Final Permits Issued
Number of Pending Conditional Permits
Northern High Plains
4096
4096
0
Southern High Plains
1227
1192
35
Lost Creek
372
372
0
Kiowa-Bijou
872
868
4
Upper Big Sandy
121
121
0
Upper Black Squirrel Creek
163
156
7
Upper Crow Creek
121
106
15
Camp Creek
51
48
3
Total
7023
6959
64
Objections/Hearings
Below is a list of pending cases. Details on these cases are contained in the Attorney General’s and Hearing Officer's reports. The Staff took part in meetings, pre-hearing conferences,
preparation of pre-hearing statements, and otherwise worked on resolving these cases.
Pending with the Commission
Axton, Brett, 15GW05 (Arapahoe and Denver aquifer rights)
Axton, Brett, 15GW06 (pond-wells and a replacement plan)
Cherokee Metro Dist. & Meridian Service Metro Dist., 08GW71 (replacement plan)
Cherokee Metro Dist., 08GW78 (change of use of alluvial well)
Cherokee Metro Dist., 09GW15 (change of use of alluvial wells)
Cherokee Metro Dist., 15GW15, (complaint on administration of wells)
Kiowa, Town of, 16GW02 (Final Permit)
Lost Creek Dairy, 17GW02 (change use of Laramie-Fox Hills well)
Lost Creek Dairy, 17GW03 (increase allocation of 2952-BD)
Meridian Service Metro Dist., 09GW11 (change of use of Denver Basin rights)
Meridian Service Metro Dist., 15GW14 (replacement plan, alluvial drains)
Meridian Service Metro Dist., 16GW05 (Petition for determination of jurisdiction)
Strasburg, Town of, 16GW01 (Final Permit)
Upper Crow Creek Parties, 17GW01 (creation of a ground water management district)
Woodmen Hills, 03GW20, (new alluvial rights and a replacement plan)
Under appeal
Front Range Resources, 13GW07 (replacement plan in Lost Creek)
Gallegos, 03GW06, (Request for de-designation in Upper Crow Creek)
Completed during the last quarter
Garner/Case/Seaton Realty/Cherokee MD, 15GW08 (change of use of alluvial well)
Upper Crow Creek Rulemaking, 16GW04
Enforcement Items and Actions
For the period of February – May, staff has responded to a variety of complaints involving the perceived unpermitted use of wells and designated groundwater. Show cause letters and subsequent
field inspections have been used to verify well permit compliance in most instances.
The issues described below have been determined to be violations occurring last quarter requiring additional action.
NORTHERN HIGH PLAINS
Plains GWMD
CL Karks was found to have commingled large capacity wells without GWC authorization. The owner/user has submitted an application to commingle the wells.
Gay Family Limited Partnership was found to have commingled large capacity wells without GWC authorization. A show cause letter was sent to the owners and we are awaiting their response.
Charles Clapper failed to enter into a contract for the 3rd party meter administration required pursuant to his large capacity well’s change of use authorization. A notice of violation
resulted in the owner contracting with the Plains GWMD for the meter administration. Staff also continues to work with Mr. Clapper on his application to commingle illegally commingled
wells.
East Cheyenne GWMD
It was discovered that Allen Schutte has been using a large capacity irrigation well for unpermitted uses, specifically in a confined feedlot. Staff has been in contact with Mr. Schutte
and he is pursuing GWC authorization via a change of use application.
Arikaree GWMD
Joe Fritzler was found to have commingled large capacity wells without GWC authorization. The owner/user has submitted an application to commingle the wells.
UPPER BLACK SQUIRREL
Upper Black Squirrel Creek GWMD
The El Paso County Sherriff has provided Staff with a list of 33 well permit violations associated with the commercial cultivation of marijuana. It is believed that domestic wells are
being illegally used to support the water supply in these commercial grows. Staff has begun researching each well permit file.
Staff will follow the described protocol to address perceived violations associated with marijuana cultivation:
Review the permit file to determine if the use may be allowed.
If we believe a violation is occurring, send out a certified show cause letter to the owner. The letter asks the well owner to complete a Well Use Questionnaire and get back to us within
30 days of the letter’s receipt to further discuss the matter.
For the time being, if we do not receive a response back, the matter will be put on hold. Staff will not be performing any field inspections to address/enforce well use associated with
marijuana cultivation until we have more direction and resources from state government to safely and effectively address the violations.
At the request of the District, Staff performed a field inspection of the Shaw Ranch surface diversion. While we did not find an illegal diversion occurring at the time of the inspection,