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

the website, the Substitute Water Supply Plan notification list and by contacting all attorneys who practice before the State Engineer and Commission. He noted that one party had requested
a cost benefit analysis and regulatory analysis, both of which have been done and published. Mr. Grantham said that the amended rules do three things; 1. They update the language as
required by the administrative order, 2. Pursuant to 37-91-13, they provide for a voluntary alternate resolution process and 3. Identify those matters that can and cannot be delegated
to the Hearing Officer. He concluded with the recommendation that the amended Rules be adopted.<
Commissioner Noble asked for clarification between the participation of parties and interested persons in the hearing process. Mr. Grantham said that an interested person can attend
the pre-hearing conference and hearing but to participate they must become a party.
Commissioner Noble asked about the 180-day window to hold the hearing and the ability of the Hearing Officer to use the water court rules, noting that the time frame in the water court
rules is not consistent with those in the proposed procedural rules. Mr. Grantham explained that the setting of procedural dates is done at his discretion while working with the parties.
Commissioner Noble moved to adopt the proposed rules as presented.
Commissioner Tietmeyer seconded the motion which passed unanimously.
Chairman Valdez called for agenda item no. 9, the staff activity report.
Mr. Keith Vander Horst addressed the Commission. He went over his written report. Mr. Vander Horst noted that there were 2 new hearing cases, 18-GW-01 involves Meridian Service Metro
Districts application to amend their replacement plan to allow for a seventh underdrain. The second new case was an objection to an application by White Ranch for a new appropriation
in the Southern High Plains, the objection has been withdrawn. He added that the Front Range Resource case remains on appeal before the Supreme Court. Mr. Vander Horst noted that
four cases had been closed.
On enforcement, Mr. Vander Horst advised the Commission that there were six new cases in the Northern High Plains, all dealing with over pumping in the 2017 season; orders to restrict
2018 pumping have been issued. In the Upper Black Squirrel Basin, one case has been resolved with the plugging and abandonment of an illegal well and the replacement of an associated
well. The matter of Don Booker is ongoing, he is not being helpful. In the Kiowa-Bijou Basin a complaint on possible illegal well use has been resolved with the well owner submitting
and application to use the well as a small capacity well. He added that staff is in the initial stages of investigating a complaint in Upper Crow Creek Basin regarding some under ground
pipelines.
Mr. Vander Horst concluded his remarks with an update on the rule making for rules 5.6 and 5.8., noting that 14 parties had requested party status. He informed the Commission that there
will be a rulemaking hearing in June in front of Jody Grantham. Mr. Vander Horst advised the Commission that he is in the process of re-writing the draft amending the rules in general
based on input from public meetings.
Chairman Valdez called for agenda item no. 10, the Attorney General’s report.
Mr. Lopez advised the Commission the Cherokee Metropolitan case no. 08-GW-071, is back before the Hearing Officer after a nine year hiatus. In the matter of Meridian Metropolitan Service
District, case no. 16-GW-05, regarding jurisdiction over surface water he informed the Commission that the parties had reached a stipulation, they just needed to write it up.
Mr. Kowaleski noted a typographical error in the Report of the Attorney General on the Hutton case. He noted that the reference to the status conference should reflect that it was held
in 2018 and that the next conference is also in 2018.
Chairman Valdez called for agenda item no. 11, Management District Reports
Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, reported that the fields were too muddy for any filed work to be conducted. He reported
spending time working on the conservation conference referred to by Commissioner Rein.
Mr. Kyle Sprouse, reporting for the W-Y GWMD, reported that his District is also working on conservation plans. He said that at present it looks like the plan will be a “banking plan”.
They are to meet with specialists in the coming week.
Mr. Rod Mason, reporting for the Arikaree GWMD, reported that water levels are on a steady decline. He noted that 70% of the 25,000 acres to be retired for compact compliance are within
the Arikaree District. Mr. Mason advised the Commission that his District was also concentrating on conservation. He closed his comments noting that his District could use more snow.
Ms. Brandi Baquera, reporting for the Plains GWMD, reported that her District has been busy with a lot of meetings and a lot of conversation. Conversation not only about conservation
but also about getting the Republican River District boundaries to agree with the model domain boundaries and bring in the well owners on the south end. She noted that she and the
District Board have met with Mr. Midcap to discuss conservation ideas and they plan to meet with representatives from Kansas in the near future. She concluded her comments saying the
static water levels appear to be on a steady decline.
There was no report for the East Cheyenne GWMD.
Mr. Blake Gourley, reporting for the Southern High Plains GWMD reported that his area had not received much snow but has had a lot of wind. There is nothing more to report.
Mr. Robert Loose reporting for the North Kiowa Bijou GWMD, reported that the District continues to work with the owners of small capacity wells, educating them amount well use. He thanked
Mr. Grimes for the resolution of the small capacity commercial well the Mr. Vander Horst discussed. Mr. Loose identified the Town of Wiggins water supply plan regarding the alluvial
waters of Kiowa-Bijou and the South Platte River is the main concern of the Board at this time. He concluded saying that the Board is considering changing the small capacity rules
to restrict small capacity wells to an annual appropriation of 1 acre-foot.
Ms. Lisa Thompson, reporting for the Upper Black Squirrel GWMD, reported that they had a recent election where Mr. Dan Farmer had been elected to the Board and that Mr. Dave Doran had
been selected as president. She said that the Board is looking more into the future and focusing on water quality issues. Ms. Thompson said that they are looking into conducting studies
and expanding the monitoring network. She noted that the District had hired a water quality expert. Ms. Thompson concluded her report noting the return of the Cherokee matter, case
no. 08-GW-71 and the potential effects on the District.<
Mr. David Taussig reporting for the Upper Big Sandy GWMD, reported that they expect the ongoing study regarding the alluvial/bedrock interaction to be completed by April. He said that
preliminary reports show that there is a connection and that the alluvium is losing water to the bedrock formation. Mr. Taussig said that the District metering program continues to
move forward. He reported that the District had approved an agreement with the Colorado Department of Health, allowing them to monitor the water quality, specifically selenium, in
the Districts monitoring wells. Mr. Taussig said that the District would like to see the Commission keep an eye on the proposed aquifer storage and recovery legislation because of
its effects on what a replacement plan is. He concluded his remarks on a matter in the Republican River Basins. Mr. Taussig said that Judge Hartman had ruled against the Hutton Foundation,
dismissing the simple change application for the Tip Jack Ditch.
Mr. Tom Sauter, reporting for the Lost Creek GWMD, reported that the Board is considering tightening the rules for small capacity wells. Currently land owners are allowed 0.4 acre-feet
per house for no more than two houses or 0.8 acre-feet, on a tract of land. He said that people have been abusing that by saying they will have two houses when that is not the intent.
The Board intends to tighten this up.
Mr. Sauter reported that the District had received a grant from the Colorado Water Conservation Board for an aquifer monitoring program they have started. They plan to use this grant
money to expand the program begun last summer. Responding to questions from Commissioner Farmer Mr. Sauter commented that the Basin is being studied for water storage and recovery.
He continued that water quality, especially degradation is a big issue.<
There was no report for Upper Crow Creek Basin.
Ms. Deb Daniel, reporting for the Republican River Water Conservation District, addressed the Commission. She said that the Water Preservation Partnership (‘WPP’) is an entity designed
to keep the channels of communication between the Districts open. She said that each District, the Republican River Conservation District (‘RRWCD’) and another organization called
CAPA each have a representative. Ms. Daniel said that this meeting was designed to have legal counsel and the Office of the State Engineer available to answer questions on legal/liability
and administrative concerns.
Ms. Daniel advised the Commission that no information has been received regarding the petition to amend the CREP program which the RRWCD filed February 28, 2017. She hopes that things
will be finalized by April or May, if not they plan to get Colorado’s Senators and Representatives involved.
Ms. Daniel informed the Commission that the RRWCD had purchased a farm with the intent of cancelling some wells next to the Arikaree River that were points of diversion for senior surface
water rights. It was just sold as dry land farm, removing 580 acre-feet and 340 acres from the irrigation books. She went on to say that the South Fork Republican Restoration Coalition
applied for a grant from the Colorado Water Conservation Board and received a grant of $99,000 toward cleaning up the mess at Bonny Dam. Ms. Daniel said that the RRWCD, a part of the
group, is asking that the project begin at the State Line and proceed through Flagler.
Ms. Daniel said that the RRWCD budget committee will be meeting to review the water use fee, basing the fee on acre-feet pumped and not irrigated acres.
Chairman Valdez called for agenda item no. 12, old business, Mr. Vander Horst advised the Commission that this item was discussed under the Attorney General’s Report.
Chairman Valdez called for agenda item no. 13, new business. Mr. Jody Grantham informed the Commission that a publication notification list had been created. The purpose of this list
is to notify those persons on the list of any applications to be published. The notification includes the Basin, the <applicant’s name, the type of application, the name of the paper
the notice is to be published in and the dates of the publication. He went on to say that this does not eliminate the official publication.<
Mr. Dave Taussig addressed the Commission on the topic of the notification list. He said that the notification does not provide any information regarding the application such as location
or the amount of water involved. He would like to see the applications on the website.
Mr. Grantham responded stating that according to statute the application needs to be published in a legal newspaper and it is believed that the newspapers rely on the income. It is
the opinion that if you are interested you need get the paper and read the notice.
Commissioner Farmer expressed his desire to see the Commission more involved in water quality concerns, especially those related to aquifer storage and recovery plans.
Commissioner Rein asked the Commissioners if they would be interested in receiving training on the interrelationship between different authorities on water quality matters.
Chairman Valdez called for agenda item no. 14, public comment, there was none.
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 2
February 16, 2018
Minutes_2-16-2018_Draft.pdfMINUTES
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. Ground Water Commission Meeting Minutes Page 2 February 16, 2018 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 Ground Water Commission Meeting Minutes Page 3 February
16, 2018 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 Ground Water Commission Meeting Minutes Page 4 February
16, 2018 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. Ground Water Commission Meeting Minutes
Page 5 February 16, 2018 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 reasserted 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 Ground Water Commission Meeting
Minutes Page 6 February 16, 2018 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