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

in the Upper Crow Creek Basin to new appropriations. The proponents own 13,900 acres in the Upper Crow Creek Basin and use 30 wells to irrigate 3285 acres, a substantial portion of
the irrigated land in the Basin. <Mr. Jones next provided a background of the Basin, an orientation of the area under consideration. He then identified the statutory authority and
those Rules governing the action being requested.
Mr. Jones outlined the arguments for approving the petition. The designation report identified the aquifers as being in a mining condition and that the most current data available shows
that the water levels continue to decline. He stated that continued water level declines are unreasonably injuring his users in the Basin by causing drastic reductions in yield, the
failure of many wells, noting that his clients have re-nozzled their sprinklers and in response to the declining water levels have reduced their irrigated lands by 1100 acres.
Regarding the letter of Mr. Topper, Mr. Jones put forth that the objection should not be considered because it was filed 3 weeks after the objection period ended. He also said that
Mr. Topper had not submitted any new data to contradict that on record and that staff was in support the petition.
Mr. Jones closed his remarks reminding the Commission that the petition was initiated by water users in the Basin and that there was no local opposition to the request.
In response to a question of Commissioner Farmer, Mr. Jones said that the 1100 acre reduction in irrigated acres was not reflected in the 3285 acres permitted for irrigation. He said
that with consideration of the 1100 acres, the proponents are irrigating 2185 acres. He noted that other users have also reduced their irrigated lands in a similar manner.
Responding to Commissioner Arnusch, Mr. Jones said that he will let Mr. Tietmeyer and Mr. Schreuder define “dramatic yield reduction”.
Mr. Pat Kowaleski said that because this was a public hearing, that Mr. Topper could speak on the matter. He did note that Mr. Topper was not a party to the case because he did not
follow the protocols but should be allowed to address the Commission.
Commissioner Noble asked Mr. Jones if the Commission had set an average annual depletion rate for the aquifers in the Upper Crow Creek Basin. Mr. Jones responded that to his knowledge
and understanding the depletion rate had been set, by default, to the rate existing at the time of designation.
Mr. Scott Tietmeyer addressed the Commission. In answering the question of Commissioner Arnusch, Mr. Tietmeyer identified a dramatic reduction as being when a 120-acre circle becomes
a 60-acre circle, or when a 700 GPM well suddenly becomes a 300 GPM well. He added that there have been users in the area that searched for water and could find no producible irrigation
water in the area. Mr. Tietmeyer closed his comments remarking on how little respect was shown to residents of Upper Crow Creek in the State Water Plan.
Commissioner Noble asked Mr. Tietmeyer if he had noticed a trend in the new wells. Mr. Tietmeyer said that it was the oil and gas companies or people providing water to them that were
applying for the new wells and that when he and his neighbors objected, those applications were withdrawn.
In response to a question of Commissioner Arnusch, Mr. Tietmeyer responded that the Fan and underlying White River formations are to be closed to all but household and livestock wells.
That his neighbor, Mr. Cross, had spent over $40,000 looking for water approximately 1 mile east of his well that had a 50% reduction in irrigated lands mentioned earlier and found
insufficient water to irrigate with.
Mr. Willam Schreuder addressed the Commission. He opened his comments saying that he agrees with the Kirkham report, that the aquifers in the basin are being mined. He noted that the
Kirkham Report used data acquired from a USGS water level monitoring network which was closed down in 1984. Since that time there has been no ongoing program to measure water table
depths in the Crow Creek Basin. Mr. Schreuder said that data today is gathered from user observations and water levels as reported on the work reports filed with the Division of Water
Resources. He said that though this data is not ideal, it is all over the charts, it does show that the downward trend in the water table continues. Mr. Schreuder closed his comments
by pointing out that the declining saturated thickness is responsible for the declining production.
Responding to a question of Commissioner Wolfe, Mr. Schreuder stated that he used a regression analysis to develop petitioners’ exhibit no. 4.
Mr. Keith Vander Horst addressed the Commission. He said that staff did not conduct an independent analysis because of the lack of new data. Mr. Vander Horst said that staff has no
reason to doubt the statements of the petitioners about the declining water table and well production. Mr. Vader Horst said that the statements of petitioners appear to agree with the
conclusions in the Kirkham Report that the aquifers, which act as one, are over-appropriated.<
Mr. Vander Horst concluded his comments by saying that it is staff’s opinion that the Alluvial, Fan and White River Aquifers are physically over-appropriated and that based on this physical
over-appropriation, the Commission can determine that the aquifers are over-appropriated according to the Rules.
Mr. Vander Horst noted for the Commissioners and the audience that the basis and Purpose for the Rule change as attached to staff’s hearing statement is different than the one of December
19, 2016 and is based on the opinion that the Commission would approve the rule change today.
There were no questions of Mr. Vander Horst.
Chairman Valdez opened the hearing to comments from the public.
Mr. Ralf Topper addressed the Commission. He identified himself as a registered geologist and a hydro-geologist by profession. Mr. Topper said that the basis of his objection is that
the evidence of over-appropriation is not adequate. <He said that since Rule 5.2.9 does not address reasonable depletion there can be no over-appropriation. Mr. Topper disagreed with
the previous interpretations of the Kirkham report because he read it as saying the net inflow exceeds net outflow of the aquifers by over 6000 acre-feet per year. Mr. Topper noted
that review of the information on file with the Division of Water Resources shows that the wells are completed in all unnamed aquifers. He wondered, that if this means the wells are
multiply completed how a person could calculate depletions per aquifer. Mr. Topper said that since the data is insufficient it cannot validate the petition.< In closing he suggested
that any action should be compared to the state water plan before a decision is made.
Responding to a question of Commissioner Farmer regarding the testimony presented, Mr. Topper responded that the testimony is the testimony but regarding the well production it could
be that these wells, constructed in the 60’s and 70’s may not have been re-habilitated and production is down.
Commissioner Blake asked Mr. Topper if he agreed with the position that there were no local objectors in the matter. Mr. Topper responded that he did question the level of notification
to the local residents.
Commissioner Farmer asked how there can be a declining water table and declining pumping without acknowledging a mining condition. Mr. Topper responded that he must not have made his
case very well.
Commissioner Arnusch asked Mr. Topper about the timing of his opinion and if he had been in touch with any of the proponents. Mr. Topper said that his involvement was recent, that he
had been in contact with staff but had not had any contact with the petitioners. Commissioner Arnusch then asked what information would be needed to conclusively determine the aquifers
as being over-appropriated. Mr. Topper said water well measurements from the same wells over a period of time.
Mr. Andy Jones responded to the comments of Mr. Topper. He said that Mr. Topper did not present any evidence contradicting the testimony presented, only criticism. Mr. Jones informed
the Commission that the proponents held two public meetings on the matter even though statute requires only one meeting.
Mr. Robert Longenbaugh addressed the Commission. He advised the Commission that he had extensive knowledge of the Crow Creek Basins. In the 1970’s he was an irrigation specialist with
the Colorado State University (CSU) extension service also performing ground water research. Then in the 1980’s while Assistant State Engineer he was deeply involved in the designation
proceedings. He proceeded to provide a history of geology, surface flow in Crow Creek, well construction and restrictions on location of the wells and water level measuring. Mr. Longenbaugh
stated that the definition of over appropriation is when the natural recharge is less than the consumptive use. He said that in his experience that is the definition used by the Commission
in its discussions. Mr. Longenbaugh closed his comments by saying that he believes that the Basin is over appropriated. There were no questions of Mr. Longenbaugh.
Chairman Valdez closed the hearing.
Commissioner Arnusch moved to amend Rule 5.2.9 as proposed and to adopt the Statement of Basis, Specific Authority and Purpose as proposed by staff in exhibit 5.
Commissioner Larson seconded the motion which passed unanimously.
Chairman Valdez called for agenda item no. 7, the staff activity report.
Mr. Keith Vander Horst went over his written report. He noted that in November he had reported that there were 50 conditional permits in the Southern High Plains to be finalized. Mr.
Vander Horst said that research into those files showed that 12 have been cancelled because they were beyond the 3 year diligence period to demonstrate beneficial use. On the matter
of legal cases pending before the Commission he reported that there had been no change. Mr. Vander Horst noted that the Front Range Resources and Gallegos cases remain under appeal
and that Mr. Einspahr did not appeal the November ruling of the Commission to uphold the Hearing Officers decision in his case.
On the matter of enforcement issues, Mr. Vander Horst stated that Mr. Erker, in the Plains Ground Water Management District, was discovered to be pumping above his permitted limit.
He was not issued an order because of problems with his metering. He was instructed to stay within his permit limits. Also in the Plains District, Mr. Clapper was sent a “show cause”
letter to explain his unauthorized commingling of four wells. He has not yet responded. <He also advised the Commission that most of the pond owners in the Blue Springs Subdivision
have resolved their respective issues by modifying the impoundment structure to allow for unrestricted stream flow. Staff is following up with the remaining ponds. Mr. Vander Horst
informed the Commission that three well owners in the Northern High Plains have received orders to pump their wells less in the 2017 irrigation season to make up for the over pumping
during the 2016 season. He said that other enforcement activity was directed to Magnum feed yards for using an irrigation well in a commercial business and Gary Kramer in Marks Butte
District has been told to submit an application to change the description of irrigated acres to correspond to his current pattern.
Mr. Vander Horst closed his remarks informing the Commission that the person hired in August for the vacant Engineering/Physical Science Assistant position has resigned. There were
no questions of Mr. Vander Horst.
Chairman Valdez called for agenda item no. 8, the Attorney General’s report.
Ms. Jen Mele addressed the Commission. She advised the Commission that the oral arguments in the Gallegos case were heard by the Supreme Court in early December and that a decision
could be within a couple of months. Ms. Mele also informed the Commission that the Meridian case had been heard by the Hearing Officer and that we were waiting on his initial decision.
She noted that the Cherokee hearing had been stayed while the parties work on a settlement and that the update on the Hutton matter was in the AG’s report.
Ms. Mele closed her remarks by informing the Commission that Phil Lopez and Michael Toll have been assigned to represent staff in the future and to provide the AG report.
There were no questions of Ms. Mele.
Mr. Pat Kowaleski informed the Commission that Ms. Mele had received a promotion to First assistant AG. In this position she will be representing the CWCB and supervising other attorneys.
Commissioner Wolfe took this time to inform the Commission that the appeal by the Commission to limit the issues in the Hutton case was granted. The Hutton’s cannot raise the issue
of the constitutionality of SB-52. This is a big win for the Commission.
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 he has been unusually busy because it has been so dry. He said that he has
been working with the WPP on conservation ideas to reduce the pumping in his districts. Mr. Midcap noted that there is a resolution before his boards to reduce pumping by 25% by the
year 2025. He said that he has been keeping tabs on the Republican River rulemaking and that he hopes the Commission will get involved if it is needed to protect the wells. Mr. Midcap
ended his comments requesting the status of the timeline for the general ground water rulemaking, as discussed in November.
There was no report for the W-Y GWMD.
Rod Mason, reporting for the Arikaree GWMD, reported that his district has had one snow of six to eight inches and that is it for moisture. He said that moisture in the District is
hit or miss with some areas having had no measurable moisture since June, and others in the eastern portion of the district have reported up to 33 inches of rain. In this area, the
static water levels are up 2 feet to 5 feet while the areas that have received little moisture are the opposite, down 2 feet to 5 feet. Mr. Mason closed his comments by noting that
the <district hopes to establish, within the next year, conservation measures to be implemented in the event that the compact goal (as agreed to with Kansas) of retiring 25,000 acres,
most of which fall within the Arikaree District, is not achieved.
Ms. Brandi Baquera, reporting for the Plains GWMD, reported that she has been measuring the static water levels, finding that most of her district is down. Ms. Baquera reported that
her district is also working on a conservation plan. She said that they have been in touch with their neighbors in Kansas to see what they are doing to get ideas. Ms. Baquera said
that the next phase is to bring the users together and have them agree on a plan for today, not 50 years from now.
Ms. Carolyn Talbert, reporting for the East Cheyenne GWMD, reported that they held an open house in January, inviting the users to come and learn the things they need to do to get into
compliance by the end of the year. She is pleased with the progress the district has made in making plans and informing the irrigators that the Board is there to help them.
Mr. Blake Gourley, reporting for the Southern High Plains GWMD reported that like every where else, it has been dry. He said that his neighbors are beginning to fertilize in preparation
of planting corn.
Mr. Robert Loose reporting for the North Kiowa Bijou GWMD, reported that his district has been busy noting that of the 47 high capacity applications in the last quarter, 19 were in North
Kiowa Bijou. He thanked staff for their efforts with Magnum Feedlot, noting that the intent is to bring them into compliance. Mr. Loose said that the District is actively participating
in the Rocky Mountain Rooster (Axton) case. He also noted that the Meridian under drains are a concern because they effect the upper most part of the Basin and that they want to see
the water follow historic patterns. Mr. Loose closed his comments by saying that the District has been actively supporting the De Novo legislation.
Mr. Dave Doran, reporting for the Upper Black Squirrel GWMD, reported that their attorneys and consultants have been busy with the Meridian hearing that just ended. He also said that
he went with Mr. Chris Grimes to inspect the ponds in the Blue Springs subdivision and other diversions. He praised Mr. Grimes for his diplomacy and efforts, adding that the District
would like his assistance with some ponds off stream of the main stem of Upper Black Squirrel Creek. Mr. Doran noted that the District had, in 2016, spent $170,000 on attorney fees
and $104,000 on consultant fees. He mentioned that the District has also supported the De Novo legislation and are happy that it is out of committee. He concluded his remarks noting
that he receives 30 – 40 call per week with questions about marijuana, some for information others to report illegal or commercial grows.
Commissioner Farmer clarified in the Meridian case that the hearing was completed but that no decision has been handed down by the Hearing Officer.
Commissioner Wolfe informed Mr. Doran and the Commission that he and Robert Randall, the Executive Director of the Department of Natural Resources, are members of the governor’s committee
regarding the matter of marijuana and how to handle the various effects it is having.
Mr. David Tausig reporting for the Upper Big Sandy GWMD, reported that his District, like all the others, is dry. He said that the District continues to work on the small capacity and
export rules. Mr. Tausig noted that the USGS aquifer study is ongoing and that the District continues to assist the irrigators in installing meters. Mr. Tausig concluded his comments
saying that they also supported the De Novo legislation and that they are glad to see it out of committee.
Mr. Andy Jones, reporting for the Lost Creek GWMD, reported that the District had been spearheading SB-36, the De Novo legislation. He said that it is currently in the House Ag committee
and encouraged users to contact their representatives, especially if they are on the committee. Mr. Tom Souter said that the Board had attended the Ground Water Management District
Association meeting, held in Texas, in January. He reported that Amarillo and Lubbock Texas have changed from 100% surface water to 100% ground water as they have 43 wells pumping
into their reservoir year round. Mr. Souter concluded his comments saying that after speaking with ground water management district managers from around the country he has found that
the issues are the same across the country.
Mr. Andy Jones, for Upper Crow Creek Basin, thanked the Commission for approving the petition to amend Rule 5.2.9.
Mr. Greg Larson, for the Republican River Water Conservation District, read the written report of Ms. Deb Daniel. In her report, Ms. Daniel noted that the District was working closely
with the State on the Republican River Rules. She also noted that the District was working closely with the Arikaree District to help adopt conservation measures as regards the 25,000
acres to be retired. Ms. Daniel noted that they had made good progress in the acquisition of surface water rights. It was also reported the representatives from the District will
be going to Washington D.C. to meet with the NRCS people to see about getting the CREP programs fully funded and to bring the CRP program back to its historic funding before the cap
was imposed.
Chairman Valdez called for agenda item no. 10, old business.
Status of stakeholder process on proposal to amend Rule 5.6 regarding replacement plans, and Rule 5.8 regarding artificial recharge, storage, and recovery plans.
Mr. Keith Vander Horst updated the Commission regarding the proposal to amend Rules 5.6 and 5.8. He said that based on stakeholder input from two stakeholder meetings and comments posted
on the internet that he, staff and Jen Mele were rewriting the rules as presented on December 23, 2016. Mr. Vander Horst expects another round of stakeholder meetings before presenting
the proposed Rules to the Commission for its review.
Status of proposed amendments to 2 CCR 402-3, Rules of Procedure for All Hearings Before the Colorado Ground Water Commission.
Hearing Officer Grantham provided the Commission with an update on the progress of amending the Rules. He said that it appears he will be able to accommodate all of the comments he
has received from the first review of the proposed amendments. Mr. Grantham would like to complete the second round of stakeholder comments and get the final draft before the Commission
possibly at their May meeting and definitely the August meeting. He advised the Commission that because he wrote the Rules they, the Commission, will be the body holding the hearing
on the amended rules. There were no questions of Mr. Grantham.
Chairman Valdez called for agenda item no. 11, new business.
“Petition For Determination of Jurisdiction Over Surface Water Within the Upper Black Squirrel Creek Designated Ground Water Basin”, from Meridian Service Metropolitan District.
Mr. Mason Brown addressed the Commission. He briefed the Commission on who Meridian Service Metropolitan District (MSMD) is and where they are located. He also provided a brief history
on the subject matter of the petition. Mr. Mason said that based on recent Court rulings that MSMD chose to have the Commission rule on the nature of the water in question so that
future filings (replacement plans or augmentation plans) are filed with the proper body. Mr. Mason asked the Commission to publish the petition so that interested parties could comment.
He also requested that the matter be placed before the Hearing Officer because of matters of fact to be decided.
Commissioner Noble confirmed with Mr. Brown that, based on his reading of the petition, that Mr. Brown’s client was not taking a position on the nature of the water. Commissioner Noble
also questioned the absence of any analysis of the standard for the Commission to assert jurisdiction. Mr. Mason responded that would be addressed in front of the Hearing Officer.
Commissioner Farmer recused himself from this discussion.
Mr. Keith Vander Horst said that there may be legal and/or factual issues to be decided, he therefore agreed that the matter should go before the Hearing Officer.
Ms. Lisa Thompson, Council for Upper Black Squirrel Ground Water Management District (District) addressed the Commission. She noted that because the District had not received notice
of the petition in time for the District to submit official comments she was now providing initial comments for the District. Ms. Thompson said that it was the opinion of the District
that the Supreme Court had answered the question as to nature of precipitation in a Designated Basin. She also said that there are several other ponds within the MSMD that should be
included in the replacement plan, the District does not want to do them piecemeal. Ms. Thompson advised the Commission that she had an opportunity to speak with council for MSMD earlier
and that they agreed the petition needed to be published but that they did not agree on the need to go before the Hearing Officer.
Mr. Pat Kowaleski advised the Commission that the matter before them was to decide if the subject of the petition would be heard before them or before the Hearing Officer. Responding
to comments of Commissioner Noble, Mr. Kowaleski said that the Commission does have the authority to hear testimony and take evidence. He said that there is a history of the Commission
doing so but the it routinely has the Hearing Officer take the testimony and evidence and then issue an initial decision. He noted that there are occasions when a party to the hearing
will appeal the initial decision to the Commission which then decides to uphold that decision or not.
Mr. Brown agreed with Mr. Kowaleski and added that the MSMD does not believe it necessary to discuss the other ponds because they are storm water retention ponds that do not permanently
hold water.
Mr. Bob Longenbaugh addressed the Commission. He said that the issue of ponds is widespread and that any decision should have broad coverage so that the matter does not keep returning.
Mr. Famer addressed the Commission. He said that this issue has been going on for years. It has been before the Hearing Officer, before the Commission, in front of the District Court
and before the Supreme Court. Now they want to go before the Hearing Officer again. Mr. Farmer said that the legal battles are an attempt to financially break the District. He said
they have twice gone before the Senate Ag committee for an exemption to having to replace. Mr. Farmer said that the only reason there is surface water present is because of their construction
of and dewatering around the houses. He said that if they get a surface water right it will be a super right without enforcement because it would be a futile call. That going before
the Hearing Officer again is just another way to cause the expenditure of money. He said that in the last go round, the Farmer family personally spent $50,000 in legal and professional
fees while probably costing the Meridian home owner $2.00 a month.
Responding to a question of Chairman Valdez, Mr. Vander Horst agreed with Commissioner Nobel’s idea that interested parties should get together to discuss and reach a decision on the
nature of the water. He said that publication should occur to make sure all interested parties were involved.
Chairman Valdez asked Mr. Brown if his client would be open to a scenario as described by Mr. Vander Horst. Mr. Brown agreed to the discussion as long as it occurred after publication
so that all interested parties would be involved.
Ms. Thompson responded in a like manner when asked the same question. She did say that she thought they could achieve a joint resolution on jurisdiction but not necessarily the number
of ponds to be involved.
Commissioner Wolfe question if the matter was or could be an enforcement action. He suggested that if that is the case that if they wanted, the Commission could give direction to staff
to hold enforcement in this matter until the case is resolved.
Hearing Officer Grantham addressed the Commission. He expressed concern regarding the ability of the Commission to manage the process. Mr. Grantham said that there are or can be a
lot of issues that arise and by meeting every three months they, the Commission, are limited in their ability to respond timely.
Mr. Dave Doran addressed the Commission. Mr. Doran expressed his frustration over the path the issue has taken. He said that it has been before the Hearing Officer, the Commission,
the District Court and the Supreme Court and subject to mandated mediation, all requiring the expenditure of large sums of money. He would like to see the matter come before the commission
and be resolved once and for all. Responding to Commissioner Arnusch, Mr. Doran said that staff could maintain the process, that the District has been before the Commission on many
hearings and they all went smoothly.
Commissioner Noble moved that the petition be published, that the interested parties agree to those issues that they can and bring the remaining issued before the Commission to decide
the next step.
Commissioner Larson seconded the motion which passed unanimously.
Designated Basins water levels reports update, by Hydrogeological Services.
Mr. Kevin Donegan addressed the Commission. Mr. Donegan introduced the Hydrogeological Services staff to the Commission before providing a background of the branch and the monitoring
well network. He then walked the Commission through accessing and manipulating the website to obtain any information they want on water levels throughout the state. He did add that
they could contact staff with their request and staff would compile the data.
Proposal regarding formation of a Ground Water Management District within the Upper Crow Creek Designated Basin.
Mr. Andy Jones, legal counsel, addressed the Commission. He identified his clients, Loyd Farms, Vonda Tietmeyer, BCK Heath Property, LLC and Dennis Zitek, as the proponents of the matter
before the Commission to create a ground water management district in Upper Crow Creek Basin. Mr. Jones proceeded to identify the statutory authority for creation of a management district.