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

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.
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 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 10
February 17, 2017
Minutes_2017-2-17_draft.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