DWR_3364090

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 11/18/2016
• Subject: MEETING MATERIALS

that increases the volume of appropriation beyond that authorized by the original decree, conditional permit, registration statement, or other well permit issued prior to basin designation
shall be authorized, and no such change shall be approved until after publication of such application as provided in section 37-90-112; except that publication shall not be required
to approve a temporary change pursuant to the rules adopted by the commission and except that publication shall not be required for replacement wells that are relocated no further than
the maximum distance allowed by district rules and regulations without prior board approval or by commission policy where no district exists or where no district rule has been adopted.”
36. A proper analysis for the Applicant’s requested change in irrigated acreage requires an analysis of what the Applicant can legally irrigate under that well. To properly evaluate
what the Applicant can legally irrigate with the well associated with Permit No. 12025-FP, the well with which it has an overlapping legal description of land to be irrigated must also
be considered in order to properly define the subject right and protect against expansion of use. 37. A change in the place of use of a water right may be allowed only when the change
will not cause unreasonable harm to a prior appropriator. Danielson, v. Kerbs AG., Inc., 646 P.2d 363 (Colo. 1982). 38. The irrigation that has been occurring since 1982 under Well
Permit No. 12025-FP was illegal use under the terms and conditions of the permit. 39. Clerical error is defined by case law as “simple, minor mistakes”, and those mistakes appearing
on the face of a record. Boulder County Bd. Of Comm’rs v. HealthSouth Corp., 246 P.3d 948, 952 (Colo. 2011). As it pertains to water right decrees, the Supreme Court has noted that
clerical errors include those errors apparent on the face of the record whether made by counsel or the court during the case, and which cannot “reasonably be attributed to exercise
of judicial consideration or discretion”. Telluride Co. v. Division Engineer of Water Div. 4, 195 Colo. 143 144, 575 P.2d 1297, 1298 (1978). The order of a court is intended to be
the embodiment of the determination by the court, and the court, by virtue of the same authority under which it originally rendered a judgment, can revise the rendered order to capture
the true intent of the court based on the record. Bessemer Irrigating Co. v. W. Pueblo Ditch & Reservoir Co., 65 Colo. 258, 261-262, 176 P. 302, 303-304 (1918). Findings of Fact,
Conclusions of Law and Initial Decision of the Hearing Officer Einspahr, Case No. 15GW10 Page 10 of 12 40. With clerical errors, the mistake, that is, the claimed clerical error,
must be apparent on the fact of the record. Meyring Livestock Co. v. Wamsley Cattle Co., 687 P.2d 955 (Colo. 1984). 41. There is insufficient evidence to prove that the description
of acres irrigated in Permit No. 12025-FP was the result of clerical error. While the 1968 Map, as shown below from Ex. E17, indicates an “area to be irrigated” by Permit No. 12025
as being different than that described in the permit application, it is insufficient to prove a clerical error when taken in total with all other evidence as provided by the various
owners of the permit throughout the life of the permit. The preponderance of evidence in the record shows the various owners of the well intended to irrigate in Section 6 alone. Nothing
in the record suggests the Commission could have decided in 1990, when issuing final permit 12025-FP, that the land to be irrigated under the permit was in both Section 1 and Section
6. An application for water right to irrigate land in both Section 1 and Section 6 was never before the Commission and was never properly noticed to other water right owners at the
time of application or final publication. 42. The statutory requirements for issuance of permits within designated basins clearly require reliance on the conditional permit and the
SBU in issuing the final permit. See sections 37-90-107 and 108, C.R.S. (2015). Staff cannot ignore these documents in the event an owner says they are not true. The statute is clear
that the Commission cannot issue a final permit for an amount of water beyond that allowed in the conditional permit. Section 37-90-108(3)(b) C.R.S. (2015). 43. The application before
the Commission for the conditional permit, the conditional permit itself, the SBU and the final permit, only describe the irrigated acreage as being in Section 6. Because the irrigated
acreage that the Applicant now claims was intended to be irrigated by the subject well was never published, was never before the Commission, and never considered by the Commission as
land to be irrigated by the well associated with Permit No. 12025-FP, the Commission could not have decided then that it was the land to be irrigated by the Applicant and it cannot
do so now. Such a determination is not considered a clerical error and requires a change of water right. 44. The documents in the well permit files at the Division of Water Resources
must have meaning otherwise water users would have no stability in the use of their water. If Staff were required to ignore the documentation in their files and assume a typographical
error based on mere statements of a water user, all orders and records Staff and water users rely on would be called in to question. The historical documents would essentially be meaningless.
Such a result is untenable and would create confusion and inconsistency in the administration of water rights within designated basins. INITIAL DECISION OF THE HEARING OFFICER 45.
The Findings of Fact and Conclusions of Law are incorporated herein by reference. 46. The Applicant would have the Hearing Officer deny the terms and conditions specific to the reduction
in acreage and acre feet removed from the permit as it currently stands and return it to the form as it existed prior to its issuance on July 22, 2015. This request is DENIED. The
required reduction of 61 acres and 152.5 AF was a condition of the change in description of Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer Einspahr,
Case No. 15GW10 Page 11 of 12 irrigated acreage for Permit No. 12025-FP and the reduction taken by Staff in the amount of 32 acres and 80 AF from permit no. 16927-FP to bring the allowable
irrigated acreage to 10 acres with a 25 AF appropriation is upheld. Dated this 16thday of May 2016. Joseph (Jody) Grantham, Hearing Officer Colorado Ground Water Commission
1313 Sherman Street, Room 821 Denver, CO 80203 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Findings of Fact,
Conclusions of Law and Initial Decision of the Hearing Officer Einspahr, Case No. 15GW10 Page 12 of 12 CERTIFICATE OF SERVICE I hereby certify that I have duly served the within
FINDINGS OF FACT, CONCLUSIONGS OF LAW AND INITIAL DECISION OF THE HEARING OFFICER to the parties herein by email this 16th day of May 2016, addressed as follows: Via Email: Kimbra
L. Killin, Esq. Russell J. Sprague, Esq. Attorneys for Applicant [e-mail] [e-mail] Jennifer Mele, Esq. Assistant Attorney General Attorney for Staff of the Colorado
Ground Water Commission [e-mail] Pauline Wilber Legal Assistant, Attorney General’s Officer [e-mail] Keith Vander Horst and Rick Nielsen Staff for
the Colorado Ground Water Commission [e-mail] [e-mail] ______________________________
2016.11.09 Staff's brief on appeal to GWC final.pdfBEFORE
BEFORE THE GROUND WATER COMMISSION, COLORADO 1313 Sherman Street, Room 821 Denver, CO 80203 IN THE MATTER OF AN OBJECTION TO AN APPLICATION FOR REDUCTION IN PERMITTED ACRES AND AUTHORIZED
ANNUAL APPROPRIATION FOR PERMIT NOS. 13530-FP/16927-FP Applicant: Gayln Einspahr In the Northern High Plains Designated Ground Water Basin In Yuma County  COMMISSION  OR HEARING
OFFICER USE ONLY Attorneys for Staff Colorado Ground Water Commission CYNTHIA H. COFFMAN, Attorney General JENNIFER MELE Senior Assistant Attorney General Attorney Reg. #30720* Natural
Resources & Environment Section Office of the Colorado Attorney General 1300 Broadway, 7th Floor Denver, CO 80203 Telephone: [phone] Email: [e-mail] *Counsel of
Record Case Number: 15GW10 STAFF’S BRIEF ON APPEAL TO THE GROUND WATER COMMISSION Staff of the Colorado Ground Water Commission (“Staff”), by and through the undersigned
attorney, hereby submits the following Brief on Appeal to the Ground Water Commission. 15GW10, Petition of Gayln Einspahr Page Staff’s Brief on Appeal to the GWC 2 A one-day hearing
before Hearing Officer Grantham was held on March 15, 2016, on the objection to an application for reduction in permitted acres and authorized annual appropriation for permit nos. 13530-FP/16927-FP.
Staff was the only opposer to the application. On May 16, 2016, Hearing Officer Grantham issued the Findings of Fact, Conclusions of Law, and Initial Decision of the Hearing Officer
finding in favor of Staff. On June 15, 2016, Gayln Einspahr ("applicant" or "Mr. Einsphar") filed a Notice of Appeal and Exceptions to the Initial Decision of the Hearing Officer with
the Commission. This matter pertains to two wells owned by Mr. Einspahr that are permitted for irrigation use. When Mr. Einspahr applied for a replacement well for one of the wells
in 2015, Staff discovered that the well the applicant desired to replace was not irrigating the acreage it was permitted to irrigate, and that the permits for the two wells described
overlapping acreage as land that can legally be irrigated by each well. Staff therefore required the applicant to apply for a change in description of acreage for the well to be replaced,
and apply to deduct the amount of the overlap, either all from one of the permits or some portion from both, from the land that can be irrigated under the resulting permits. Mr. Einspahr
applied for a change in description of acreage for the well to be replaced, and for reductions in acreage to the permits of both wells. Mr. Einspahr believes he is entitled to the
sum of the acreage listed on his permits even when the descriptions of permitted acreages have been changed, regardless of the overlap. Such a result would be an expansion of use of
the permits and inconsistent with the result to which Mr. Einspahr agreed in order to obtain a replacement permit. The facts in evidence are as follows: 15GW10, Petition of
Gayln Einspahr Page Staff’s Brief on Appeal to the GWC 3 Permit Information Permit no. 12025-F was issued to Financial Investments on June 6, 1967 for the use of 400 acre-feet
of water on 160 acres described as the S1/2 of the NW1/4 and the N1/2 of the SW1/4 of Section 6, Township 4 North, Range 44 West, 6th P.M. (Staff’s Exhibit 14). On January 31, 1985,
Ceres Land Company filed a Statement of Beneficial Use (“SBU”) (Staff’s Exhibit 15). This SBU claims that the well was first used on June 15, 1968 in the amount of 400 acre-feet of
water at 1,000 gpm for the irrigation of 160 acres described as the S1/2 of the NW1/4 and the N1/2 of the SW1/4 of Section 6, Township 4 North, Range 44 West, 6th P.M. The diagram
on page 2 of the SBU depicts a square 160 acres, the legal description for which is provided on page 1. Final permit no. 12025-FP was issued on June 21, 1990, for irrigation of 160
acres described as the S1/2 of the NW1/4 and the N1/2 of the SW1/4 of Section 6, Township 4 North, Range 44 West, the P.M. (Staff’ Exhibit 5), as had originally been permitted and as
was claimed on the SBU. Permit no. 13530-F was issued to Jack Stahl on January 13, 1969 in the amount of 400 acre-feet of water to irrigate 160 acres, described as in the W1/2 of
section 6, the NE1/4 of the SW1/4 and portions of the SE1/4 of the SW1/4, the NW1/4 of the SW1/4, the SW1/4 of the NW1/4, the SE1/4 of the NW1/4, the SW1/4 of the NE1/4, the NW1/4 of
the SE1/4 and the SW1/4 of the SE1/4 of Section 6, Township 4 North, Range 44 West, 6th P.M. (Staff Exhibit 20). The diagram on page 2 of what is both the application and the resulting
permit depicts a circle with the pivot point located in the NE1/4 of the SW1/4 of said Section 6. On January 31, 1985, Ceres Land Company filed a SBU (Staff’s Exhibit 21). This SBU
claims that the well was first used on June 15, 1970 in the amount of 400 acre-feet of water at 1,200 gpm for the irrigation of 160 acres described as part of the E1/2 of the SW1/4,
the 15GW10, Petition of Gayln Einspahr Page Staff’s Brief on Appeal to the GWC 4 S1/2 of the NE1/4, the SE1/4 and the SE1/4 of the NW1/4 of Section 6, Township 4 North, Range 44
West, 6th P.M. Testimony from Mr. Rick Nielsen, Water Resource Engineer with the Division of Water Resources, was that at that time, when a SBU was filed with a description of irrigated
lands other than as permitted, the SBU was considered a request to change the description of irrigated acres. Hearing Transcript (“Tr.”), pp. 148-149. Staff published this change
in the description of irrigated acres pursuant to Section 37-90-108(4) C.R.S. and on July 16, 1985 issued orders approving the request (Staff’s Exhibit 22). Final permit no. 13530-FP
was issued on June 21, 1990 for 400 acre-feet of water for the irrigation of 160 acres described as parts of the SE1/4, the E1/2 of the SW1/4, the S1/2 of the NE1/4 and the SE1/4 of
the NW1/4 of Section 6, Township 4 North, Range 44 West, 6th P.M. (Staff’s Exhibit 11). Mr. Nielsen testified that Staff views this to be a 160 acre circle per the depiction on the
application, and as being a portion of the existing irrigated circle, that is, the inner circle of the existing irrigated circle, as shown in the aerial photography (Staff’s Exhibit
29); Tr. p. 124, 145-146. Permit No. 16927-F was issued to Ceres Land Company on February 21, 1973 as an increase of 105 acre-feet for the irrigation of 42 acres described as part
of the E1/2 of the SW1/4, the W1/2 of the SE1/4, 20 acres in the NE1/4 and 20 acres in the NW1/4, all in Section 6, on well permit no. 13530-F (Staff’s Exhibit 25). The diagram on
page 2 of what is both the application and the resulting permit depicts a circle with the pivot point located in the NW1/4 of the SE1/4 of said Section 6. The SBU submitted by Ceres
Land Company on March 30, 1973 claims first use of the permit on March 1, 1973, for the irrigation of 42 acres in the E1/2 of the SW1/4 and the W1/2 of the SE1/4 of Section 6. (Staff’s
Exhibit 26). The diagram on page 2 of the SBU shows a circle with the pivot point located approximately 15GW10, Petition of Gayln Einspahr Page Staff’s Brief on Appeal to the GWC
5 in the center of the NW1/4 of the SE1/4 of Section 6. Final permit no. 16927-FP was issued on June 21, 1990 for 105 acre-feet to irrigate 42 acres described as part of a circle
covering parts of the SE1/4, the E1/2 of the SW1/4, the S1/2 of the NE1/4 and the SE1/4 of the NW1/4 of Section 6, Township 4 North, Range 44 West, 6th P.M. (Staff’s Exhibit 12). Mr.
Nielsen testified that Staff views this 42 acres as an increase to the 160 acres that can be legally irrigated under permit no. 13530-FP and as represented by the outer circle in Staff’s
Exhibit 29. Tr. p. 146-147. On February 10, 1992, the Yuma County Assessor notified the Office of the State Engineer that Gayln Einspahr was the owner of Section 6, Township 4 North,
Range 44 West, 6th P.M. (Staff’s Exhibit 16). On February 14, 1992, Staff sent Mr. Einspahr a letter requesting a change in ownership form be filed for, among others, permit nos. 12025-F,
13530-F and 16927-F, and notifying him that the final permit publication costs had not been paid (Staff’s Exhibit 17). On March 5, 1992, Mr. Einspahr submitted Change in Ownership
forms for permit nos. 12025-FP, 13530-FP and 16927-FP (Staff’s Exhibits 18, 23 and 27). On March 6, 1992, payment for the final permit publication was received (Staff’s Exhibits 19,
24 and 28). Mr. Nielsen testified that after Mr. Einspahr's payment, Staff sent him a copy of the final permit, and that Staff did not receive an objection to the description of irrigated
acres contained within any of the final permits. Tr. p. 159. As the permits reflect and as Mr. Nielsen testified, originally permitted well permit nos. 12025-FP, 13530-FP and 16927-FP
are authorized to irrigate a combined total of 362 acres with 905 acre-feet of water, comprised of: 160 acres and 400 acre-feet under permit no. 12025-FP, 160 acres and 400 acre-feet
under permit no. 13530-FP and 42 acres and 105 acre-feet under permit no. 16927-FP. These wells are not authorized to commingle water 15GW10, Petition of Gayln Einspahr Page Staff’s
Brief on Appeal to the GWC 6 on the lands to be irrigated under the permits. Of the 362 acres authorized to be irrigated, there are 70 acres located in the SE1/4 of the NW1/4 and
the NE1/4 of the SW1/4 that are described in permits for both wells ( see Staff’s Exhibit 29, in particular the area that is both within the square and inside the outer circle).
Administrative Procedural History It is uncontested that this case began as an application for a replacement permit for the well associated with permit no. 12025-FP, which Staff received
February 20, 2015. Upon evaluation of the application, Staff determined that the lands actually irrigated, described as being in both Section 6 and Section 1 (Section 5.A of Staff’s
Exhibit 4), did not match the description of irrigated acreage on the final permit 12025-FP, which is all within Section 6 (Staff’s Exhibit 5). Staff also determined that the permitted
description of acres irrigated by that well overlapped with the permitted description of acres irrigated with the well associated with permit nos. 13530-FP and 16927-FP ( s ee Staff’s
Exhibit 29). As a result, Staff required the applicant to submit a change in description of irrigated acreage pursuant to Rule 7.4.1 for permit no. 12025-FP before it would issue a
replacement permit. Furthermore, because of the overlap in the description of irrigated acres, Staff required a reduction of 61 acres and 152.5 acre-feet between the two wells (Staff’s
Exhibit 32). The letter from Staff informing the applicant of these requirements noted that because the total number of acres that can legally be irrigated by both wells totaled 301
acres (160 acres permitted to 12025-FP + 202 acres permitted to 13530-FP/16927-FP – 61 acres = 301 acres), the applicant must “reduce the number of acres individually permitted to 12025-FP
and/or 13530-FP to a total of 301 acres”. (Staff’s Exhibit 32). 15GW10, Petition of Gayln Einspahr Page Staff’s Brief on Appeal to the GWC 7 The applicant re-submitted the application
for a replacement well permit for permit no. 12025-FP on March 6, 2015, without complying with Staff’s requirements but changing the legal description of section 5 of the application,
entitled the Parcel On Which Well Will Be Located, to match the permitted description of acres irrigated on permit no. 12025-FP. (Staff’s Exhibit 4). Staff responded with correspondence
dated March 9, 2015, again rejecting the application for the replacement well and reiterating the suggestion that applications for a change of description of irrigated acres for permit
no. 12025-FP, and for a reduction in acres and appropriation for 12025-FP and 13530-FP/16927-FP, be submitted as a way to bring the use of the well into compliance with the permits.
(Staff’s Exhibit 34). Staff noted that with a combined reduction of 61 acres taken by both wells, a loss of three irrigated acres would occur since the applicant is currently irrigating
304 acres (131 acre circle + 173 acre circle = 304 acres, see Staff’s Exhibit 32). Tr. p. 130. Staff also invited other suggestions on how to bring the well into compliance. (Staff’s
Exhibit 34). On March 30, 2015, the applicant again submitted the application for a replacement well permit, as well as an application for a change of description of irrigated acres
for permit no. 12025-FP, applications for a reduction in acres and appropriation for 12025-FP and 13530-FP/16927-FP, and a letter from the applicant’s attorney (Staff’s Exhibits 4,
31, 33 and 35). The letter from applicant’s attorney notes that he is submitting the applications pursuant to Staff’s recommendation (Staff’s Exhibit 31). The applications for reductions
request a reduction of 29 acres and 72.5 AF for permit no. 12025-FP and 32 acres and 80 acre-feet for permit nos. 13530-FP/16927-FP. Staff issued a Findings and Order changing the
description and reducing the number of acres and appropriation of permit no. 12025-FP, a permit for a replacement well under permit no. 12025-FP, and issued the Findings and Order and
a permit for the reduction of acres and appropriation for 15GW10, Petition of Gayln Einspahr Page Staff’s Brief on Appeal to the GWC 8 permit nos. 12025-FP and 16927-FP. Mr. Nielsen
testified that Staff issued the Findings and Order and revised permit for permit no. 16927-FP in error as Staff did not see that an objection to the publication had been filed by the
applicant (Tr. p. 167-168), which should have initiated a contested case before the hearing officer instead of issuance of the Finding and Order and new permit. Mr. Nielsen's testimony
during trial was that for the well associated with permit nos. 13530-FP/16927-FP the reduction was applied to permit no. 16927-FP because it had the more junior priority. Tr. p. 169.
Mr. Nielsen also testified that the applicant was only irrigating about 13 acres out of the 42 acres allowed to be irrigated under that permit, for a total of 173 acres being irrigated
under permit nos. 13530-FP/16927-FP, instead of the permitted 202 acres. Tr. p. 147, 169. It was uncontested at trial that Mr. Einspahr historically irrigated 304 acres between his
two wells, a 131 acre circle with the well associated with permit no. 12025-FP and a 173 acre circle with the well associated with permit nos. 13530-FP/16927-FP. Mr. Nielsen testified
that the applicant’s two wells were permitted to irrigate an overlapping area of land consisting of 70 acres. Tr. p. 161. Mr. Nielsen also testified that Staff mistakenly made the
representation based on actual irrigated acreage that the overlap consisted of only 61 acres, and that Staff was only requiring a reduction of 61 acres based on that representation.
Tr. p. 186. Mr. Nielsen testified that such a reduction was required for the change in description of irrigated acreage in order to prevent an expansion of use and injury to other
water rights. Tr. p. 174-175. There was no testimony at trial that an error was committed by Staff as to the description of irrigated acreage listed on any permit. Rather, the testimony
from Staff was that the permits issued by Staff are consistent with all paperwork they received pertaining 15GW10, Petition of Gayln Einspahr Page Staff’s Brief on Appeal to the GWC
9 to the wells. Tr. p. 173. In fact, Mr. Einspahr’s expert witness conceded that no clerical error was made by Staff. Tr. p. 102. ANALYSIS A. Staff must consider both wells
when analyzing the replacement permit application for the well associated with permit no. 12025-FP. Water court applications and applications to the Ground Water Commission for appropriations
cannot be considered in a vacuum, since a water right cannot be appropriated without the application to beneficial use, and beneficial use cannot be made without an evaluation as to
whether the applicant truly needs the water right. See §§3792-103 (3)(a) and (4), 37-90-107 (1) and 108(2)(a) C.R.S; Jaeger v. Colorado Ground Water Commission , 746 P.2d 515, 522
(Colo. 1987). In fact, the Water Rights Determination and Administration Act of 1969 (“1969 Act”) specifically requires the court in a change of water rights case to consider relinquishment
of part of the subject right or other rights owned by the applicant to prevent expansion of use of the subject right. § 37-92-305(4)(a)(II) C.R.S. The applicant’s water rights portfolio
is considered when the court is evaluating whether a water right sought is actually needed. See Upper Eagle Reg'l Water Auth. v. Wolfe , 371 P.3d 681, 687 (Colo. 2016); Pagosa Area
Water & Sanitation Dist. v. Tr out Unlimited , 170 P.3d 307 (Colo. 2007) ; s ee also Jaeger , 746 P.2d at 520 (principles underlying the doctrine of prior appropriation are applicable
in designated basins). Here, Mr. Einspahr applied for a replacement permit for the well associated with permit no. 12025-FP. After noticing the well was not irrigating land it was
permitted to irrigate, Staff required an application to correct the description of irrigated acres, to make the permit consistent with what was actually occurring on the ground. To
make that change in irrigated acreage, an analysis of what the applicant can legally irrigate under that well is 15GW10, Petition of Gayln Einspahr Page Staff’s Brief on Appeal to
the GWC 10 required. To properly evaluate what the applicant can legally irrigate under that well associated with permit no. 12025-FP, Staff must look at the well with which it has
an overlapping legal description of land to be irrigated. Otherwise, Staff is ignoring the whole picture with regard to the permitted acreage and established need for each well. The
final permits issued for the two wells allow irrigation of a total 362 acres if one simply adds up the numbers on the permits. However, only 292 acres (362-70 = 292) can legally be
irrigated, after taking into consideration the legal descriptions for both wells that describe overlapping acreages, which is a required component of the analysis. Since Staff mistakenly
made representations that there should only be a 61 acre reduction, and did not feel in fairness it could then require a larger reduction after realizing its mistake, the applicant
is allowed to irrigate a total of 301 acres (362-61 = 301) between the two wells. Mr. Einspahr must be limited to irrigating no more than 301 acres with these two wells to prevent
an expansion of use in the future. Indeed, Mr. Einspahr currently irrigates and historically irrigated 304 acres, thus the reduction in his permitted acreage by 61 acres will only
result in a loss of three historically irrigated acres. The resulting 301 acres will exceed the 292 legally irrigated acres described above. Although Mr. Einspahr’s expert, Ken Knox,
testified that it was improper for Staff to consider permit nos. 13530-FP/16927-FP in their analysis of permit no. 12025-FP, he offered no authority for such an assertion and the Commission
should give no weight to his testimony. If Staff were to approve use of the well associated with permit no. 12025-FP on the 160 acres as the applicant believes is appropriate, it
would result in an expansion of what the applicant could legally do with that well at the time the final permit was issued. Such approval would be in violation of Rule 7.4 of the Rules
and Regulations for the Management 15GW10, Petition of Gayln Einspahr Page Staff’s Brief on Appeal to the GWC 11 and Control of Designated Ground Water, 2 CCR 410-1, and would potentially
result in injury to other water rights. Because of the duplicated permitted acres, the permits together only ever allowed for the irrigation of 301 acres and other users were only
ever noticed of the potential for Mr. Einspahr to irrigate 301 acres. To now allow him to irrigate 362 acres is expanding on what he is legally allowed to irrigate based on the permits
issued in 1967, 1969 and 1973. Expansion of use and injury are a risk because if a 61 acre reduction was not taken to reflect the actual permitted duplication of permitted acres, Mr.
Einspahr could potentially expand the number of acres he is allowed to irrigate in the future as a result of a subsequent change of description of acreage of well permit no. 12025FP.
In this case, the wells and the permits issued for those wells must be considered together. To hold otherwise is to conclude that when Staff considers a well permit application,
Staff cannot consider whether there is already a water supply for the claimed beneficial use. Such a result is inconsistent with Colorado laws that require water rights not be granted