DWR_3364085

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 5/18/2018
• Subject: MEETING MATERIALS

Officer lifted the Stay of the case on February 15, 2018. The Applicant filed a motion for determination of question of law and at a status conference was held on March 6, 2018, and
the Hearing Officer ordered that the Motion be published for notice and potential entry of other parties. The time for objections has now expired with no further objections being received.
A status conference is set for May 11, 2018. Cherokee Metropolitan District Case No. 08-GW-78 Designated Basin: Upper Black Squirrel Date of request: Dec. 29, 2008 Subject:
Objection to an application to change the type and place of use of Well Permit No. 49988-F. Status: See Case No. 08GW71 above. 2 Meridian Service Metropolitan Dist., Case
No. 09-GW-11 Designated Basin: Upper Black Squirrel Date of request: June 15, 2009 Subject: Objection concerning an application to change a determination of water right Status:
See Case No. 08GW71 above. Cherokee Metro & Meridian Svc Dist. Case No. 09-GW-15 Designated Basin: Upper Black Squirrel Date of request: Nov. 17, 2009 Subject: Objection
to an application to change the type and place of use Status: See Case No. 08GW71 above. Meridian Service Metropolitan District Case No. 12-GW-10 Designated Basin: Upper Black
Squirrel Date of request: Jan.-12, 2012 Subject: Nature of water and jurisdiction. Status: Initial decision of Hearing Officer entered on April 25, 2013. Commission upheld Hearing
Officer’s decision. Meridian appealed to El Paso County District Court. Certification of record on appeal is complete. District Court upheld Commission decision. Appealed to Supreme
Court, briefs have been filed. Oral argument before the Supreme Court held on September 30, 2015. Decision issued by Supreme Court upholding District Court and Commission decision.
Still awaiting remand from District Court, however, technically, this matter is most likely closed due to the adjudication of Meridians replacement plans. Front Range Resources,
LLC Case No. 13-GW-07 Designated Basin: Lost Creek Date of request: Sept. 12, 2013 Subject: Application for approval of a replacement plan located in the Lost Creek Designated
Basin Status: Hearing Officer issued order per stipulation of the parties. Appealed to the District Court. Oral argument on motion to dismiss South Platte water rights from replacement
plan held. District Court dismissed South Platte 3 water rights for inclusion in replacement plan. District Court dismissed case based on issue of speculation. The Applicant appealed
the case to the Supreme Court. Decision by Supreme Court issued on April 9. 2018, upholding District Court decision that the replacement plan as proposed was in violation of the anti-speculation
doctrine. Meridian Service Metro District Case No. 16GW05 Designated Basin: Upper Black Squirrel Date of request: December 16, 2016 Subject: Determine jurisdiction over the
replace of depletions caused by evaporation to surface water flowing into and through lined impoundments in the basin. Status: The Commission will be addressing this matter at its
May 2018 meeting. Rulemaking, Rule 7.4 Case No. 17GW04 Designated Base: Statewide Date of request: August 2017 Subject: Rulemaking before the Commission Status: Rulemaking
to be held before the Commission at its February 16, 2018 meeting. A Special meeting of the Commission was held on April 9, 2018 and the Commission adopted the amendments to Rule 7.4.
Rulemaking, Rules 5.6 and 5.8 Case No. 17GW05 Designated Base: Statewide Date of request: August 2017 Subject: Rulemaking before the Commission Status: The matter was referred
to the Hearing Officer. Hearing to be held June 18 through 22, 2018. The setting for a June 18, 2018 hearing has been vacated and reset for August 20 – 24, 2018 due to the legislation
recently passed and Staff’s desire to prepare a new draft of the rules separating rules 5.6 and 5.8. Meridian Service Metro District Case No. 18GW01 Designated Basin: Upper Black
Squirrel Date of request: Feb. 5, 2018 Subject: This is an amendment to the replacement plan approved by the hearing officer in Case No. 15GW14. Applicant is seeking to add additional
areas to its plan. 4 Status: A status conference was held February 27, 2018 and the parties desired time to discuss potential settlement. The parties are exchanging proposed decrees/language.
Status conference is scheduled for June 26, 2018. LGS Holding Group Case No. 18GW02 Designated Basin: Southern High Plains Date of request: April 23, 2018 Subject: Twenty-nine
applications for new appropriations along with nine applications to commingle the new appropriations. Status: Six objections were filed including an objection from the Southwest Kansas
Groundwater Management District No. 3. Setting conference is set for May 8, 2018. Rail Land Co., LLC Case No. 18GW03 Designated Basin: Lost Creek Date of request: April
30, 2018 Subject: Applications for Determinations of Water Rights Status: The City of Aurora filed an objection to the applications. Pending May 23, 2018 status conference. Awaiting
Attorney General assignment to staff prior to sending notice to set. Respectfully submitted, ______________________________ Joseph (Jody) Grantham, Hearing Officer
Minutes_2018-5-18.pdf

Minutes_2-16-2018_Draft.docxMINUTES

MINUTES
FIRST QUARTERLY MEETING
COLORADO GROUND WATER COMMISSION
FEBRUARY 16, 2018
The First Quarterly Meeting of the Colorado Ground Water Commission took place on February 16, 2018, 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 Dan Farmer, Blake Gourley,
Steve Kramer, Greg Larson, Jim Noble, Scott Tietmeyer, Virgil Valdez, Kevin Rein, Amy Moyer (on behalf of Robert Randall) and Craig Godbout (on behalf of Rebecca Mitchell). Staff members
present were Keith Vander Horst, Sarah Brucker, Rick Nielsen, Chris Grimes, Shannon Johnson, Neelha Mudigonda, Matt Sares and Kevin Donegan. Also present were Jody Grantham, Hearing
Officer, Pat Kowaleski, A.G. for the Commission and Philip Lopez, A.G. for staff. Members of the public were also present.
Review and Approval of Agenda Items, the agenda was approved as presented.
Approval of Minutes for Meeting of November 3, 2017, Chairman Valdez asked if there were any corrections or additions to the minutes. <Commissioner Valdez noted some typographical errors.

Commissioner Farmer moved to approve the minutes as amended.
Commissioner Kramer seconded the motion which carried unanimously.
Report of the Executive Director by Kevin Rein
Mr. Rein opened his remarks by informing the Commission that the trial for the Rio Grande Ground Water Rules had just completed and all parties are waiting on the ruling. He noted that,
if approved, the Rules will bring ground water administration into conjunction with the surface water administration and be consistent with existing compact rules.
Mr. Rein continued, noting that rulemaking to implement HB-1028 from the 2016 legislative session is ongoing. He reminded the Commissioners that this is the law allowing for a change
in type of use of a water right without identifying the new use. Mr. Rein continued that this bill allows irrigators to change their water right and keep on irrigating but have the
ability to sell the water for a season at a time to a municipality or whomever. Mr. Rein said that the proposed rules are in the Water Court.<
Mr. Rein advised the Commission that Ms. Tracy Kosloff, in response to legislation passed last year, is heading the team to write rules concerning the withdrawal of artificially recharged
water in a non-tributary source outside of the Denver Basin. He said that these rules should be filed with the Secretary of State in the near future.
In the Republican drainage, Mr. Rein stated that he continues to work with the users and inform them so that they can choose the best approach resolving matters with the Republican River
Water Conservation District boundaries and the model domain boundaries, rulemaking and/or statutory changes.
Mr. Rein advised the Commission that he had attended a conference in Wray the previous week where the discussion was on conservation efforts. He said that this conversation is important
and because conservation efforts can lead to the sustainability of the aquifer and help with compact compliance.
Mr. Rein concluded his report with a discussion on current legislation. He said that there are four bills, concerning water that he is watching:
SB-41 clarifies the authority of the State Engineer over the types of uses that are allowed under a gravel pit Substitute Water Supply Plan.
HB-1199 would give the Commission authority to make rules that recognize aquifer storage and recovery.
HB-1151 would expand the current fallow and leasing program (currently operated only in Division 2) to allow for deficit irrigation, sometimes called vertical fallowing.
Another bill that has not been introduced yet would help the Northern Colorado Water Conservancy District to construct the northern integrated supply project. This bill would allow for
the release of stored water, in connection with an in stream flow right, for fish and wildlife mitigation in a critical stream reach without being part of any other river administration.
Chairman Valdez called for agenda item no. 5, Commissioners’ reports.
Commissioner Kramer reported on a recent meeting sponsored by the Republican River Water Conservation District and the Water Preservation Partnership. It was a meeting for all the ground
water districts in the Northern High Plains. He said that it allowed the district representatives an opportunity to speak with legal counsel and here presentations on water conservation,
growing good crops with less irrigation. Mr. Kramer thanked Mr. Rein and Mr. Grimes for attending and meeting with the 60 or 70 members present, their presence was appreciated.
Chairman Valdez called for agenda item no. 6, Continuation of Hearing on a proposal to amend Rule 7.4 to prevent a well from increasing depletions of designated ground water beyond the
well’s historical depletions when changing the description of irrigated acres allowed to be irrigated by the well, case no. 17-GW-04.
Mr. Keith Vander Horst addressed the Commission. He explained to the Commission that Rule 7.4 applies only to alluvial and other unconfined aquifers. Mr. Vander Horst said that a change
in the description of irrigated acres is a change in a water right that can only be approved if the change does not cause material injury to other vested appropriators. He said that
currently Rule 7.4 allows a request to change the description of irrigated acres to be approved without <considered of the historic use. He said that staff has observed an increase
in applications to change the irrigated acres over the past few years, applications were it appears that the intent is to increase the number of acres irrigated over the historic practice.
Mr. Vander Horst said that this increase leads to an increase in depletions to the aquifer, adversely affecting other users.
Mr. Vander Horst advised the Commission that the proposed amendment, as directed by the Commission at the November 3rd meeting, looks at the historical acreage and not historical consumptive
use. He said that Lost Creek Management District and most of the management districts in the Northern High Plains support the proposal. Mr. Vander Horst informed the Commission that
no public comments on the revised rule and basis of purpose were received. He proceeded to go over each of the rules, explaining the intent:
Rule 7.4.1 restricts the number of irrigated acres to the average for, at least the last ten years.
Rule 7.4.1.1 does not allow credit for those acres in excess of the currently permitted number of acres.
Rule 7.4.1.2 does not allow credit for those lands being irrigated that are not currently permitted for irrigation unless it is the original pattern used to establish the water right.
Rule 7.4.1.3 allows for those lands that may be in a conservation program to be excluded from any evaluation.
Rule 7.4.1.4 allows the owner to exclude a year from consideration if they make that request at the beginning of the year.
Rule 7.4.1.5 requires the annual appropriation not exceed the product of the number of acres irrigated times the duty of water as established in Rule 5.5.
Mr. Vander Horst stated that the proposed changes will not affect any existing right that is not undergoing a change. They will continue to be able to irrigate the number and description
of lands with the volume of water as permitted. He advised the Commission that staff is of the opinion that the proposed amendment to Rule 7.4 should apply to all Basins because most
alluvial and unconfined acquired are considered to be over appropriated.
Responding to a question from Commissioner Farmer, Mr. Vander Horst said that with available data, a farmer could use more than the most recent ten years in the evaluation.
Commissioner Noble asked if anyone had ever taken advantage of the ability to exclude a year from record by submitting the required form at the beginning of the year. Mr. Vander Horst
said that such action is rare, that he could recall less than a handful in eleven years.
Mr. Philip Lopez addressed the Commission. He went over the statutory authority for the Commission to promulgate rules. He said that Ground Water Management Act makes clear that the
policy of the State is to preserve Designated Ground Water resources and to protect vested water rights. Pursuant to that authority the General Assembly has authorized the Commission
to implement that policy. Mr. Lopez said that the Ground Water Management Act in 37-90-111(1)(g) gives the Commission the authority to approve a change in a permit so long as the change
does not cause injury to vested water rights. He advised the Commission that article 37-90-130, addressing the authority of the management districts, does not grant them authority
over permitting, only the Commission has the authority to approve permits or changes to permits. He noted that the statutory authority regulation and administration of permits for
management districts begins after the permit is approved. Mr. Lopez said that the wording of the statutes clearly indicates that ground water management districts cannot opt out of
regulations adopted by the Commission nor can the Commission delegate that authority to the districts.
Mr. Lopez said that the Supreme Court has ruled that changes in place of use of ground water are to be judged by the same standards as surface water. He also said the Court ruled actual
historic use must be used to ensure that a change in water right will not result in an increase the original appropriation. Further, the Court said that irrigated acreage is a common
basis for determining the historic use.
Mr. Lopez concluded his remarks saying that staff suggests that the amended rules apply from this day forward.
Chairman Valdez opened the hearing to public comment.
Mr. Dennis Coryell, representing Plains GWMD, addressed the Commission. He said that has long been a commonly accepted practice that if you are operating your well within the permit
limits that you can apply to change the description of irrigated acres without going through a historical consumptive use analysis. He said that the proposed change appears to be taking
the management district role and sounds like a conservation measure which is not within the Commissions duties. Mr. Coryell expressed the concern that this rule change may encourage
farmers to fully use their permitted acres and acre-feet because if they want to change they will be limited to the historic use so what is supposed to reduce the draft on the aquifer
will actually increase it.
Ms. Leila Behnampour, representing Marks Butte, Frenchman, Sandhills and Central Yuma Ground Water Management Districts addressed the Commission. Ms. Behnampour opened her comments
providing a history of the process to amend Rule 7.4. She then said that her Districts do not oppose the changes, they simply want a resolution. Ms. Behnampour took a few moments
to respond to the comments of Mr. Coryell. She said that pursuant to 37-90-102.1 and 37-90-111(h) it is the duty of the Ground Water Commission to maintain reasonable pumping levels
and to conserve designated ground water. This places conservation in the scope of the Commission duties.
Commissioner Farmer asked why the Districts have not implemented their own rules. Ms. Behnampour replied that they had considered adopting their own rules but that would take a lot
of resources. Further, if they did, an application to change the description of acres would be required to undergo two proceedings to get the change approved, creating additional expense.
Responding to a question by Commissioner Noble, Ms. Behnampour said that her Districts have no concerns with the exception identified in Rule 7.4.1.2.
Mr. Coryell re-approached the Commission. He stated that he is not opposed to rulemaking that would prohibit an increase in the number of irrigated acres or permitted acres. Mr. Coryell
re-asserted the concern that farmers currently conserving their water will be incentivized to fully use their wells so as not to lose water in a future change. He pointed out that
the only time the proposed rule would kick in is when a farmer wanted to change his acres from those permitted but he could always increase the historical irrigated acres to the permitted
160 without question. Mr. Coryell concluded his remarks asking the Commission to not make a statewide change to fix a local problem.
Mr. Andy Jones, representing Lost Creek GWMD, approached the Commission. He said the District does not have an official position on this and can be considered neutral. Mr. Jones went
on to say that what is at issue is what defines the water right, is it the permit or the historic use. He said that outside of the Basins it is the historical use, not the piece of
paper.
Commissioner Farmer asked why a District or the Commission could not tell an irrigator with a final permit allowing 160 acres but only irrigating 130 for 30 years that they can no longer
pick up the corners; their water right is now for 130 acres. Mr. Jones said that the topic has not been addressed in the Basins yet but outside the Basins a person would go to Water
Court to have the unused portion of the water right declared abandoned.
Mr. Dave Taussig representing the Upper Big Sandy GWMD. He reminded the Commission that it was his District that asked for the exception in Rule 7.4.1.2 and he appreciates it being
granted. Mr. Taussig said that Upper Big Sandy agrees about the potential for expanded acres under the current rule. He said that his District would like to see either proposal, the
historical consumptive use or the historical irrigated acres approved.
Mr. Rod Lenz, Sandhills GWMD addressed the Commission. He said that he would like to see something done today and not push it off for two years to get local control. Mr. Lenz said
that in his District, they consider this a good contribution to limiting depletions.
Mr. Keith Vander Horst addressed the Commission. He said that the Commission should look at what standard they want for a change in water right. He went on that currently there is
no standard for a change in description of irrigated acres. Mr. Vander Horst said that this proposal is to bring this type of change into the realm of standard Colorado water law,
something staff believes is reasonable and appropriate. He said that the current process allows for an irrigator to move the corners from the quarter section and begin a whole new
pivot, increasing the draft on the aquifer. Mr. Vander Horst stated that staff believes the rule change should be approved.
Chairman Valdez closed the hearing to public comment.
Commissioner Tietmeyer said that he sees the matter not as an issue of conservation but of injury.
Commissioner Farmer said that he not opposed to the rule but that it is not local control. Commissioner Valdez asked if that is not a matter of statute, Mr. Farmer agreed but disagrees
with the statute.
Commissioner Kramer said that he agrees with this version more than the HCU version. He continued that he is reluctant to vote for a rule change because he thinks that there will unintended
consequences in some cases. There will be situations, as explained by Mr. Coryell, where an irrigator picks up the corners so as not to lose that right. He said that he knows somebody
who cut back on the number of irrigated acres because of the price of corn was down, now they will be hurt for being good farmers. Mr. Kramer said that he believes that a lot of concerns
about the future which are causing some farmers to pick up the corners would be minimized if the Districts were to implement conservation measures.
Commissioner Farmer added that he would like to see the rule allow the irrigator to choose either the historic irrigated acres or the historical consumptive use.
Commissioner Gourley agrees with Commissioner Farmer regarding the choice but he does not want to drag this out any longer.
Commissioner Larson said that he could see restricting a permit to the current land use could restrict the use in the future when other technologies might be available. He said that
he does like the option method.
Commissioner Rein asked Mr. Vander Horst if the suggestion of Commissioner Farmer could be accomplished under the existing Rule 10. Mr. Vander Horst clarified that Rule 10 tells us
how to perform a historical consumptive use analysis and that rule is combined with other rules for specific changes. However, a farmer could apply for a change in use from irrigation
to irrigation to change the description of irrigated acres to allow for an increase in the historic acres under Rule 7 thereby having a historical consumptive use analysis conducted.
Mr. Lopez recommended that if they want to allow for the rule to provide an option then it is better to continue the hearing and get the language right then try and fix it now.
Commissioner Farmer asked Mr. Coryell about his thoughts on the idea of providing farmers with the option. Mr. Coryell said that, it was probably the safe way to go.
Commissioner Farmer asked Mr. Loose the same question. Mr. Loose responded that curtailment should have occurred at the time the final permits were issued. He said that his district
does not have any concerns about the rule one way or another.
Commissioner Noble said that he thought the rule should allow for a choice and that action should be delayed to get the wording right. He said that he is concerned about continuing
the matter but would be willing to do so if the Commission could come to an agreement on what the rule should look like.
Chairman Valdez asked Mr. Midcap for his comments. Mr. Midcap said that there three ways to get it done. The two as proposed by staff or issue the change with the reduced acres as
currently proposed then if the grower wants to pick up the other 30 acres he would apply for expanded acres which is done with an HCU analysis.
Commissioner Gourley said that he would like to continue the hearing to get the language right.
Chairman Valdez said that he would entertain a motion to continue the hearing to give staff time to get the language right.
Commissioner Noble moved to direct staff to draft language in the rule that would provide for an alternative of either the last draft or that shown in this draft as we continue the hearing.
Commissioner Farmer seconded the motion.
Commissioner Tietmeyer asked they could have a special meeting.
Commissioner Farmer asked about any publication requirements.
Mr. Kowaleski said that the proposed rule has been published but the Commission may change things as long as those changes are consistent with the notice.
Chairman Valdez called for a vote on the motion which passed with Commissioner Tietmeyer voting nay.
Chairman Valdez called for agenda item no. 7, Hearing on request by JDM Farmland for an exception to Rule 5.5 to allow issuance of a new conditional permit in the Southern High Plains
Basin with a duty of water less than 3.5 acre-feet per acre.
Mr. Daniel Gillham, representing JDM Farmland addressed the Commission. He said he has extensive personnel experience with crop consumptive use and that his company has been working
in the Southern High Plains for many years. Mr, Gillham advised the Commission that originally there were two wells permitted to irrigate the 474 acres but only one was constructed.
He said that a recent pump test showed that well permit no. 77052-F has a yield of 1163 GPM which translates into 2.75 acre-feet of water per irrigated acre. Mr. Gillham said that
he has spoken with the trustee of the owner and with the current tenet farmer; both are of the opinion that a viable crop can be raised on the available water supply. He stated that
his analysis shows that the well can provide 81% to 82% of the crop requirement for both corn and alfalfa which is not uncommon for surface water irrigators who in fact often have less
water (70% or less) available. Mr. Gillham stated that the farmer is aware that the pipeline connecting this well with another well will need to be severed to stop the unapproved commingling.
Mr. Rick Nielsen representing staff addressed the Commission. He informed < the Commission that as originally issued, the two permits approved for irrigating the 474 acres were each
given 829.5 acre-feet, being one-half of the 1659 acre-feet required under Rule 5.5. He said that the applicant has a pending application to increase the annual appropriation on well
permit no. 77052-F from the 829.5 acre-feet as permitted to 1305.7 acre-feet, the physical capacity of the well and being a duty of water of 2.75 acre-feet per irrigated acre and less
then as required by Rule 5.5. Mr. Nielsen went on to explain how staff would issue the permits, the increase on permit no. 77052-F and the final permits. He said that if the Commission
approved the exception then the final permits would be issued for 829.5 acre-feet under permit no. 77052-F and 476.2 acre-feet under the new permit, both for the irrigation of 474 acres.
If the Commission did not approve the exception the final permits would be issued for the same volume but for use on 373 acres, a difference of 101 acres.
Commissioner Larson asked if the permit that this well was being commingled with would be cancelled. Mr. Nielsen said that it would not because it is permitted to irrigate a different
quarter section.
Responding to a question by Commissioner Noble, Mr. Nielsen confirmed that the volume of water pumped would be the same if the Commission approved or denied the exception request. The
only difference would be that the number of irrigated acres would change.
Commissioner Farmer asked about the proximity of the nearest well that could be injured. Mr. Nielsen responded that the nearest well is owned by the applicant who has submitted a waiver
of injury.
Responding to a question from Commissioner Tietmeyer, Mr. Nielsen said that there is no requirement for a totalizing flow meter to be installed because the Basin remains open for appropriation.
Commissioner Kramer asked about the irrigation history for this well. Mr. Nielsen said that the aerial photographs indicate the irrigation of a 474-acre circle. He went on to mention
that the well was commingled with another well at the time.
Commissioner Farmer moved to grant the exception.
Commission Gourley seconded the motion which passed unanimously.
Chairman Valdez called for agenda item no. 8, Hearing on proposed amendments to 2 CCR 402-3, Rules of Procedure for All Hearings Before the Colorado Ground Water Commission.
Mr. Jody Grantham addressed the Commission. He said that this review of the Rules is in response to the Governors executive order D-2012-002, requiring review of all rules on a regular
basis. These Rules were last reviewed in 2006. Mr. Grantham advised the Commission that he initiated the stake holder process in December of 2016 by posting the proposed rules on