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

He also explained the procedures and requirements for doing so. Mr. Jones said that at this time his clients are asking for Commission approval to begin the process.
Mr. Keith Vander Horst addressed the Commission. He said that statute requires the Commission to do a hydrogeological study of the boundaries and make any necessary recommendations
for changes. Mr. Vander Horst said that because the proposed district boundaries correspond to the Basin boundaries there are no changes to recommend and that the Commission may accept
and consent to the boundaries as presented.
Chairman Valdez opened the discussion to the public.
Mr. Tommy Rae addressed the Commission. He said that according to a report he had read, that there are about 600,000 acre-feet of water available in the alluvium and 6,000,000 acre-feet
in the Upper Laramie and the Laramie Fox-Hills, Mr. Rae said that within a 20 miles boundary of Upper Crow Creek and over a 10 to 20 year span that the oil and gas industry will probably
use no more than 100,000 acre-feet. He expressed concern that a district would forbid the export of water out of the basin to preserve it for future generations. Mr. Rae said that
he would work with the proponents to form a district if they would allow for the export of bedrock water for oil and gas development.
Chairman Valdez reminded the Commission that what was before them was to approve the proposal to begin the process. He then asked for a motion to do so.
Commissioner Wolfe asked for confirmation that the Basin boundaries agree with the proposed district boundaries. He said that this concern in based on experience with the Republican
River Basin boundaries and the Republican River Conservation District Boundaries not agreeing.
Mr. Jones confirmed that the two boundaries do agree. He said that he believes that it is the intent of his clients that the boundaries agree and that the proposed boundaries would
be adjusted as needed depending on the ruling in the Gallegos case which is before the Supreme Court.
Commissioner Arnusch moved to approve the proposed district boundaries as requested.
Commissioner Gourley seconded the motion which passed unanimously.
Chairman Valdez called for agenda item no. 12, public comment.
Commissioner Wolfe advised the Commission of a conflict with the May meeting. He informed the Commission that there is going to be a seminar covering the State Engineers role in Water
Court on Friday the 19th, the scheduled day of the next Commission meeting. Mr. Wolfe said that many staff present at the meeting, including himself, would be in attendance at the
seminar. He asked for consideration in moving the meeting date. Mr. Wolfe also invited the Commissioners to attend the seminar.
Chairman Valdez instructed Secretary Nielsen to coordinate moving the meeting date.
Ms. Leila Behnampour, representing Central Yuma, Frenchman, Sandhills and Marks Butte Ground Water Management Districts addressed the Commission. She asked that the Commission monitor
the Republican River rule making process and to be prepared to comment if the proposed rules effect the administration of Designated Ground Water. Ms. Behnampour next spoke for the
four Districts and North Kiowa-Bijou LLC regarding the pace of the rule making for the Designated Basins Rules. She asked for an update on the status of the rulemaking process for
the entire Rules, including a time line at the next meeting. She said that her clients want that process to continue as expediently as possible because some Districts may be injured.
Mr. Vander Horst said that he plans to get the proposed rules out by May, July at the latest. Responding to Ms. Behnampour he addressed the process to be followed after the proposed
rules are sent out.
Commissioner Wolfe informed Ms. Behnampour and the Commission that the rulemaking is being done under direction of an executive order by Governor and that Mr. Vander Horst cannot begin
the formal rulemaking until after the informal stakeholder process, as directed by the provisions of the Smart Government Act, is complete.
Mr. Bob Longenbaugh addressed the Commission. He suggested that the local management districts follow the example of the Texas District mentioned in the literature that Mr. Farmer provided
to the local districts. He also informed the Commission that there is a study currently going on that covers the 7 state Ogallala aquifer. He said that Colorado State University (CSU)
is the lead university in the study. He suggested that the Commission consider inviting the CSU project leader to provide the Commission with an update on the purpose and progress
of the study.
Commissioner Farmer noting that some legislative deadlines occur in a matter of days, said that he would like to see a method whereby the Commission could let its position be made know
to the legislature in a timely manner on the proposed legislation.
There being no further business the meeting adjourned.
Respectfully submitted,
Richard A Nielsen, P.E., Secretary
Colorado Ground Water Commission
Ground Water Commission Meeting MinutesPage 13
February 17, 2017
Minutes_2017-2-17.pdfMINUTES
MINUTES FIRST QUARTERLY MEETING COLORADO GROUND WATER COMMISSION FEBRUARY 17, 2017 The first Quarterly Meeting of the Colorado Ground Water Commission took place on February 17,
2017, at the Centennial Building, 1313 Sherman St, Room 318, Denver, Colorado. Chairman Valdez called the meeting to order at 10:00 a.m. Secretary Nielsen called the roll and determined
that a quorum was present. Commission members present were Marc Arnusch, Dan Farmer, Blake Gourley, Steve Kramer, Greg Larson, Jim Noble, Scott Tietmeyer, Virgil Valdez, Lauren Ris
(on behalf of Robert Randall), Dick Wolfe and Carlee Brown (on behalf of James Eklund). Staff members present were Kevin Rein, Keith Vander Horst, Rick Nielsen, Chris Grimes, Shannon
Johnson, Neelha Mudigonda, Matt Sares, Andy Flor and Kevin Donegan. Also present were Jody Grantham, Hearing Officer, 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, Commissioner Wolfe said that he would like to discuss the May meeting date and location during
agenda item no. 12, public comments. Commissioner Arnusch moved to amend the agenda as suggested. Commissioner Larson seconded the motion which passed unanimously. Approval of
Minutes for Meeting of November 18, 2016, Chairman Valdez asked if there were any corrections or additions to the minutes. There being none, Commissioner Kramer moved to approve
the minutes as amended. Commissioner Tietmeyer seconded the motion which carried unanimously. Report of the Executive Director by Dick Wolfe Mr. Wolfe opened his remarks advising
the Commission that Colorado, Nebraska and Kansas continue to meet on a monthly basis to discuss the Republican River Compact. He said that all parties remain determined to honor the
long term agreements reached last August. Mr. Wolfe informed the Commission that the Bureau of Reclamation has been attending the meetings which help with the dialogue on the Federal
projects of which Nebraska has many. He noted that the Bureau of Reclamation, Colorado Division of Parks and Wildlife, Kansas, Nebraska and the Division of Water Resources continue
to discuss bringing water back into Bonny reservoir at sometime in the future, especially if there is a major storm event. Mr. Wolfe noted that it had been five (5) years since the
reservoir was drained. Ground Water Commission Meeting Minutes Page 2 February 17, 2017 Mr. Wolfe continued with his Republican River report saying that the parties are attempting
to reconcile the handling of the Beaver Creek allocation, in the Southern part of the Basin, in dry years. He added that when this reconciliation is finalized the states plan to hold
a special meeting, hopefully by the end of June of this year to finalize that last ten (10) years worth of accounting. Mr. Wolfe noted that ongoing litigation has prevented this in
the past. In the Rio Grande Basin Mr. Wolfe reported they have been having successful meetings with the objectors to the rules. The goal is to reach a stipulated agreement to avoid
going to trial which is scheduled for eight (8 weeks) beginning in January of 2018. Commissioner Wolfe concluded his comments with the announcement that he will be retiring at the
end of June. Chairman Valdez called for agenda item no. 5, Commissioners’ reports. Commissioner Kramer reported that the Water Preservation Partnership (WPP) passed a resolution
encouraging all Districts to develop a plan to reduce the consumption of water. He said that the response to the survey he mentioned at the last meeting showed that the producers were
overwhelmingly in favor of doing some type of conservation. Commissioner Wolfe added to his report that the advisory committee has been meeting monthly to develop the Republican River
Compact Compliance Rules. He hopes that they will be finalized and submitted to the Division 1 Water Court shortly. Commissioner Tietmeyer advised the Commission that he will recuse
himself from the discussion and vote on Agenda Item no. 6. Chairman Valdez called for agenda item no. 6, Hearing on 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, 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 amend Rule 5.2.9 of the Rules and Regulations of the
Management and Control of Designated Ground Water, to close the Alluvial, Fan and White River Aquifers 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. Ground Water Commission Meeting Minutes
Page 3 February 17, 2017 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 Ground Water Commission Meeting Minutes Page 4 February 17, 2017 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. Ground Water Commission Meeting Minutes Page 5 February 17, 2017 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. Ground Water Commission Meeting Minutes Page 6 February 17, 2017 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. Ground Water Commission Meeting Minutes Page 7 February 17, 2017
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. Ground Water Commission Meeting Minutes Page 8 February 17, 2017 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