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 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. Ground Water Commission Meeting Minutes Page 9 February 17, 2017 Chairman Valdez called for agenda item no. 10, old business. a. 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. b. 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. a. “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 Ground Water
Commission Meeting Minutes Page 10 February 17, 2017 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. Ground Water Commission Meeting Minutes Page 11 February 17, 2017 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. b. 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. c. 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 Ground Water Commission Meeting Minutes Page 12 February 17, 2017 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. 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. Ground Water Commission Meeting Minutes Page 13 February 17, 2017 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
Minutes_2017-2-17_draft.docxMINUTES

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.<
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.
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