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

to dismiss the case based on speculation. This matter remains before the Designated Ground Water Judge because of a dispute regarding the awarding attorneys’ fees and costs. Ms. Mele
expects this matter to go before the Supreme Court.
On the Axton/Rocky Mountain Roosters hearing Ms. Mele noted that some of the ponds have been filled in and that there is a pending replacement plan to cover the losses from the other
ponds. She said that discussions continue to try and resolve the reaming points of concern and that a hearing is scheduled for June 2017.
Ms. Mele provided a general overview the Einspahr hearing. She noted that the Hearing Officer ruled in staff’s favor and that he, Mr. Einspahr had objected. Ms. Mele expects that the
Commission will hear the matter at its November meeting.
Ms. Mele concluded her comments by touching on the Meridian and Woodman Hills matters, noting that the hearing for Woodman Hills begins October 31 and that of Meridian begins on February
6, 2017.
Chairman Valdez called for agenda item no. 10, Management District Reports
Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, reported that discussions on conservation, at the last District meetings, went on for two
(2) hours. He noted that most of his area had received up to five (5) inches of rain. Mr. Midcap thanked Ms. Deb Daniel and the Republican River Board for their efforts to stimulate
the discussion on conservation.
Ms. Deb Daniel, reporting for Mr. Jack Dowell and the W-Y GWMD, reported that the crops are looking good and that all chemigation inspections are complete. She noted that Mr. Dowell
had resigned as District manager effective the end of October.
Mr. Rod Mason, reporting for the Arikaree GWMD, informed the Commission that because of good spring rains most irrigators did not turn on their pivots until the end of June or the beginning
of July. Mr. Mason has been busy reading meters and performing chemigation inspections. Mr. Mason concluded his comments saying that he had spent a lot of time coordinating matters
with the County for the implementation of a fifteen cent ($0.15) per acre-foot fee that the Board adopted to pay for the litigation attached to the Hutton Foundation.
Ms. Brandi Baquera, reporting for the Plains GWMD, noted that she has been busy reading meters and performing chemigation inspections. She said that the District Board is considering
updating the Rules. Ms. Baquera closed her comments by remarking that people in the District have a positive outlook on things.
Ms. Deb Daniel read a report for Ms. Carolyn Talbert of the East Cheyenne GWMD. Ms. Talbert wrote that her scheduling of compact well owners for their testing has progressed smoothly
because of the great cooperation with the farmers. Also, she has added five (5) farmers to the chemigation program.
There was no report for the Southern High Plains GWMD.
Mr. Robert Loose reporting for the North Kiowa Bijou GWMD, commented on waste of water from all the ponds he saw on the tour the day before. He also said that his District is pleased
with the ruling from the Water Quality Control Commission on the request of Cherokee Metropolitan District to lower the standards for Total Dissolved Solids in their discharge water.
Mr. Loose further reported that his District tries to educate the new residents in ways to conserve water, such as no ponds.
Mr. Don Booker, reporting for the Upper Black Squirrel GWMD, reported that his District was pleased with the decision of the Water Quality Control Commission to maintain the discharge
standards for Total Dissolved Solids at 400 mg/l rather than increasing them to 600 mg/l as requested by the Cherokee Metropolitan District.
Mr. David Tausig reporting for the Upper Big Sandy GWMD, reported that the USGS is conducting a study to better understand the connection between the alluvial aquifer and the bedrock
aquifers. He said that when the District re-wrote their large capacity rules they included a requirement to meter the wells but held that rule in abeyance at the request of the farmers
due to cost. However, now with the study it is time to ask the farmers to meter their wells. Mr. Tausig also said that the District will consult with staff when it re-writes its small
capacity rules.
Mr. Andy Jones, reporting for the Lost Creek GWMD, reported that the crops are ok, not real good and not bad. He did note that it had been dry over a lot of the Basin and that some
areas had received hail. Mr. Jones advised the Commission that the District is considering requiring meters on all large capacity wells.
He observed that reports have stated that the Lost Creek Basin is the best area in the state for recharge and recovery programs. Mr. Jones said that the Board is looking into how best
to regulate those plans and is currently seeking public input on the matter.
Mr. Jones informed the Commission that the Board is currently administering over 50 wells that have gone through a change in use, administering them in accordance with the Findings and
Order of the Commission and any stipulations attached to each change in type of use. Commissioner Arnusch mentioned that because of the complexity in administering these wells that
the Board had reached out to Ms. Deb Daniel for advice, he thanked her for the presentations she has given to the Board.
Mr. Andy Jones, reporting for Upper Crow Creek Basin, reported that the season is going as well as can be expected. He said that there is continued and growing concern over the water
table in the White River aquifer at the end of the season. Mr. Jones said that there is a local group of residents that are looking into rulemaking to close the White River and Fan
aquifers to appropriation and to form a district. He added that as there is no compact between Colorado and Wyoming on Crow Creek that Colorado farmers who also own land in Wyoming
are working in Wyoming to develop recharge areas near the Colorado state line which could force a call in Wyoming bringing water down to the state line. These actions, if successful,
will counter the practice of Wyoming in appropriating the flow of Crow Creek above the state line.
Ms. Deb Daniel, reporting for the Republican River Water Conservation District, opened her comments thanking out going Commissioners Carolyn Burr and Larry Clever for their service.
Ms. Daniel provided a short history of the District as she thanked Mr. Wolfe for his administration and guidance, especially allowing the locals to be so directly involved in the decision
making. Ms. Daniel noted that the Republican River Water Conservation District (RRWCD) was going to the legislature this year to try and amend their boundary to agree with the boundary
of the model domain used to calculate depletions. She also indicated that the District will be talking with the Central Yuma and Sandhills Districts about the “orphan well” this year.
Ms. Daniel went on to discuss conservation. She questioned who could implement it, the State or <the Districts and who could provide financing, perhaps the Republican River Conservation
District. She mentioned that Mr. Midcap and other District Managers were inserting the idea of conservation into conversations users and at meetings. Ms. Daniel stressed the importance
of flow meters in the discussions on conservation because with a meter you know what you are pumping. In the general discussion it was mentioned by more than one Commissioner that
a person will reduce pumping as they watch the meter go around. Commissioner Wolfe said that pumping is reduced on average by 8% once a meter is installed.
Chairman Valdez called for agenda item no. 11, old business, consultation regarding the Water Quality Control Commission’s rulemaking to change ground water standards for Total Dissolved
Solids in the Upper Black Squirrel Creek alluvial aquifer.
Ms. Jen Mele addressed the Commission. She began by providing a short history of the matter and ending with telling the Commission that the Water Quality Control Commission (WQCC) had
decided not to change the standards as the Ground Water Commission had requested in its resolution. Ms. Mele said that she had attended the meeting and noted that some of the Commissioners
thought that Cherokee should have know about the limit they were trying to change before beginning the operation of treatment plant and rapid infiltration ponds.
Mr. Bob Longenbaugh approached the Commission. He noted that when looking at potential injury of ground water quality and protection of that quality are becoming more of a concern than
the quantity. Mr. Longenbaugh pointed out that the WQCC and not the EPA has jurisdiction over ground water discharges. He said further that there were three (3) votes taken at the
WQCC meeting. The first, to change Rule 41 which governs ground water quality, to allow for site specific <data over the existing statewide levels, passed. He is of the opinion that
this vote should concern the Commission. The second measure before the Commission was a vote concerning the application of site specific data to the entire Upper Black Squirrel Basin,
this measure failed as did the third measure allowing for a TDS discharge of 440 mg/l. Mr. Longenbaugh asked that water quality be written into the Rules.<
Mr. Dave Tausig addressed the Commission. He said that he disagrees with the content of the August 4, 2016 letter of Dick Wolfe and James Eklund to the WQCC which said that the only
component of material injury is the quantity of water. <Mr. Tausig advised the Commission that in a case he worked on and in many other cases the courts have ruled that discharging
contaminants into the water supply so that the water cannot be used for the decreed rights is injury to that water right. Mr. Tausig concluded his remarks saying that he would like
to see the water quality and quantity components of injury as a part of the Rules.
Mr. Andy Jones addressed the Commission. He said that the Lost Creek GWMD supports the call of Mr. Longenbaugh and Mr. Tausig to have water quality in the Commission Rules. Mr. Jones
also noted that the WQCC is charged with setting the standards but it then cooperates with implementing agencies such as the State Engineer, CWCB, mining etc. He thinks that the Commission
not being an implementing agency was an oversight and suggested that the Commission might want to consider a statutory amendment that would make it an implementing agency.
In response to Commissioner Wolfe’s recollection that the statutory amendment had been attempted a few years back, Mr. Jones responded that the attempt did not so much fail as fizzle.
He recalled that a lack of interest on the part of the Ground Water Commission and a lack of enthusiasm on part of the WQCC to approach the legislature. Mr. Jones continued that the
issue with Cherokee Metropolitan District and the adoption of the WQCC standards by the Lost Creek Management District are the reasons the topic continues to surface.
Commissioner Wolfe stated that he would work with staff to provide additional information for discussion on this topic at the November meeting.
Chairman Valdez called for agenda item no. 12, new business.
a) Appointment of Commission representative to the Republican River Water Conservation District.
Ms. Deb Daniel, Manager of RRWCD addressed the Commission. She said that every three (3) years the Commission is asked to appoint a representative to the District Board. Ms. Daniel
identified the criteria required to be appointed to this position, concluding that Commissioners Kramer and Larson are qualified.
Commissioner Farmer nominated Commissioner Kramer to the position.
Commissioner Tietmeyer seconded the nomination which passed unanimously.
b) Petition to initiate rulemaking to amend Rule 5.2.9 to determine that the alluvial aquifer and all of the Fan and White River aquifers, in the Upper Crow Creek Basin are over appropriated.
Mr. Andy Jones and Ms. Curran Trick addressed the Commission. Ms. Trick provided a background on the Upper Crow Creek Basin. This included orientating the Commissioners to towns, geographic
areas and the aerial extent of the aquifers within the Basin. She noted that the Alluvial Aquifer is underlain by the Fan Aquifer which is underlain by the White River Aquifer which
is underlain by the Upper Laramie Formation and the Laramie Fox Hills aquifer. In response to a question by Commissioner Wolfe, Mr. Jones stated that the Little Crow Creek is not a
part of the Basin because during the designation process Mr. Michael Shimmin, representing the Lamberts, convinced the Commission that Little Crow Creek was connected to the White River
Aquifer.
Mr. Jones explained the current status of what aquifers are open for appropriation and where they are located. He noted that the Upper Laramie Formation and Laramie Fox-Hills Aquifer
are open for appropriation and will remain so if the Rule is amended. Mr. Jones pointed out that the Fan and White River Aquifers are open west of Crow Creek and that they are closed
east of Crow Creek where the White River Aquifer underlay’s the Fan Aquifer. He said that the proposal is to close< the Alluvial, Fan and White River Aquifers to appropriation. Mr.
Jones provided proposed language to change Rule 5.2.9.
Mr. Jones explained that his clients want to close the Basin because they believe that it is over appropriated. He provided graphs that show the static water level and the yield of
wells greatly reduced from the time that the wells were constructed and from start to end of irrigation season.
Mr. Jones stated that the petitioners have held public meetings in the Basin and have not encountered any opposition. He concluded his remarks requesting that the Commission direct
staff to proceed with the publication of the petition. <
In response to a question from Commissioner Wolfe, Mr. Jones said that the yield information was from tests and not meters. Commissioner Wolfe asked if Wyoming was feeling the same
effects of declining water level and what they were doing about it. Mr. Jones said that they were feeling the effects and have called for regulation but nothing has been done as yet.
Commissioner Tietmeyer said that Wyoming has required meters on all wells and has restricted drilling of new wells in the area.
In response to a question of Commissioner Larson, Mr. Vander Horst said that most if not all of the 160 potential final permits mentioned in the staff activity report for the Basin are
in the Upper Laramie Formation or the Laramie Fox-Hills aquifer. Further, he said that if the Rule were changed permits would continue to be issued in these aquifers based on overlying
land ownership.
Mr. Derek Turner, counsel for the Commission, advised the Commission that the APA Rules require that the Rulemaking body initiate the stakeholder process. He suggested that setting
a publication date should wait until the stakeholder process is complete.
Staff was directed to work with Mr. Jones to initiate the stakeholder process.
In response to Commissioner Wolfe’s question, Mr. Jones said that district formation will be handled after the rule change is concluded; take them one at a time.
c) Enforcement action regarding wells owned by Donald Booker in the Upper Black Squirrel Creek Basin.
Mr. Keith Vander Horst explained the situation to the Commission. He said that based on a complaint from another user in the Basin a field inspection was performed in October. Mr.
Vander Horst said that the inspection revealed four wells providing water to a center pivot and that two of those wells were permitted for zero (0) acres of irrigation. He said that
Mr. Donald Booker was advised of the situation at that time. <Mr. Vander Horst said that Mr. Booker agreed to shut off one of the wells and submitted an application to permit the other
as a replacement for a permitted but nonexistent well. He said that the subject application was subsequently amended so as to apply for construction of a new well of the permitted but
nonexistent well rather than to obtain a permit for the other well. <He said that he worked with Mr. Booker on the matter over the summer but that no resolution had been achieved.
Mr. Vander Horst reported that as no acceptable application was pending to permit the other well he had therefore advised Mr. Booker by letter the previous week that he must submit
documentation that the well in question had been turned off and that the response date was this day.
Commissioner Farmer spoke to the matter, saying that it had been presented to him as a technical matter. He informed the Commission that Mr. Booker owned five (5) of the ten (10) most
senior rights in the Basin. Mr. Farmer said that he did not think now was the proper time to shut down a well as the end of the irrigation season was nearing. He also noted the speed
of the enforcement action being since October and that the Commission has been trying to bring two (2) municipalities in compliance for ten (10) years. Mr. Farmer said that he believed
that Mr. Booker should have an opportunity to explain his case to the Commission.
Mr. Derek Turner, Counsel for the Commission, noted that all parties were not present and that proper notice for a hearing had not been provided. He cautioned the Commission about making
any decision or getting into the specifics and legal conclusions because this is an ongoing investigation that may come before the Commission in the future. In response to a question
of Mr. Booker, Mr. Turner said that as staff had stated their position it would be appropriate for Mr. Booker to state his position but cautioned the Commission about taking any formal
action at this time.<
Mr. Booker addressed the Commission. He said that the well in question has been used the same way for forty (40) years. Mr. Booker informed the Commission that the well was permitted
for an annual appropriation of 2600 acre-feet for domestic, mechanical and irrigation but with zero (0) acres of irrigation allowed. He said that he decided to replace two (2) of the
permits that are not drilled into this structure. Mr. Booker said that they cannot get all of the uses out of one structure so they will just drill another well as the permits are
there. He believes that he is trying to resolve the situation as he submitted an application to drill a well that is permitted. Mr. Booker said that he cannot shut off the well because
he will lose his sod crop. He just wants time to correct the problem.<
Commissioner Wolfe said that he agreed with Mr. Turner regarding public notice and suggested that Mr. Booker meet with staff after the meeting to discuss a solution. Mr. Booker agreed
to do so.
Chairman Valdez called for agenda item no. 13, public comment.
Mr. Robert Loose requested an update on the Gallegos matter. Ms. Jen Mele responded that the matter is before the Supreme Court and has not been set for argument. She said that she
has no knowledge regarding the requests for costs and fees of the plaintiffs. Mr. Andy Jones said that the costs and fees were awarded by the District Court but are under appeal.
Mr. Alan Curtis approached the Commission. He said that he represented Lost Creek Land and Cattle and Equus Farms. Mr. Curtis said that in response to Mr. Vander Horst’s general request
that his clients had made several proposed changes to the Rules. Further, he stated that he is present to ask the Commission to proceed with the proposed changes to Rule 5.6 and 5.8
independent of the other suggested changes. He said that this action is necessary because the vagueness of the Rules could mean that almost anything can be approved, potentially injuring
his clients and the Basin as a whole. Mr. Curtis also asked the Commission to enact a moratorium on replacement plans (Rule 5.6) and recharge and recovery plans (Rule 5.8) until the
amended Rules were adopted.
Commissioner Wolfe, speaking on behalf of staff, said that he was unsure if there is adequate staffing to run the day to day operations and also two independent rule change proposals.
He also said that staff is at the direction of the Commission. If the Commission wants these changes to Rule 5.2.9.2, 5.6 and 5.8, to move forward at this time that that is how it
will be. Mr. Vander Horst agreed saying that working on these subsets of the proposed Rule changes will push the amendments for the bulk of the Rules further into 2017. Mr. Wolfe also
expressed concerns about the Commission’s authority to initiate a moratorium.<
Mr. Dave Tausig addressed the Commission saying that local governments and agencies enact moratoriums as a way to buy time while rule changes are taking place. Commissioner Wolfe said
that he would ask for the AG’s office to look into the matter and report at the November meeting.
Mr. Robert Longenbaugh approached the Commission. He said that staff has been working for over a year on changing the Rules as they relate to the outcrop of the Denver and Arapahoe
aquifers in the Kiowa-Bijou Basin and that those changes are part of a hearing. Mr. Longenbaugh does not agree with staff that the Rules do not need to be immediately changed because
Rule 5.3.1.2 already allows for site specific data to be used in evaluations.
Commissioner Wolfe asked the Commission if they wanted staff to proceed with changes to Rule 5.2.9, as requested by Mr. Jones and to Rules 5.6 and 5.8 as requested by Mr. Curtis. The
Commission directed staff to proceed on these matters.
There being no further business the meeting adjourned.
Respectfully submitted,
Richard A Nielsen, P.E., Secretary
Colorado Ground Water Commission
Tour - 8-18-16
Name
Arnusch
Mark
Barrett
Steve
Baquera
Brandi
Bond
JR
Daniel
Deb
Farmer
Dan
Fowler
Angie
Frihauf
Glen
Grimes
Chris
Hecox
Eric
Johnson
Shanon
Keeler
Dave
Kramer
Steve
Larson
Greg
Longenbaugh
Bob
Loose
Robert
Mc Clary
Andy
Midcap
Fred
Mele
Jen
Mikita
Earnie
Mikita
Jean
Mudigonda
Neelha
Murphy
Julia
Nielsen
Rick
Rein
Kevin
Thompson
Lisa
Tietmeyer
Scott
Turner
Derek
Valdez
Virgil
Vander Horst
Keith
Wolfe
Dick

Count
31
Ground Water Commission Meeting MinutesPage 3
August 18 and 19, 2016
Minutes_2016-8-19_Draft.pdfMINUTES
MINUTES THIRD QUARTERLY MEETING COLORADO GROUND WATER COMMISSION AUGUST 18 and 19, 2016 On Thursday, August 18, 2016, Commissioners, Commission Staff and members of the public
as identified on the attached list, participated in a tour of selected areas within the Upper Black Squirrel Designated Basin. The scheduled stops for the tour were the Cherokee Metropolitan
District Rapid Infiltration Basins (6475 Bar 10 Rd), Blue Springs subdivision, the Woodman Hills drainage system and the Meridian Ranch under drain system. Mechanical problems with
the bus prevented the bus from reaching the Meridian Ranch site. Representatives from Meridian Service Metropolitan District came to the bus to present their operation to those in
attendance. At the rapid infiltration basins, the Commission, staff and guests were introduced to the Board members of the Cherokee Metropolitan District by Mr. Brian Bodette. He
then described the physical layout and size of the basins. The basins are 26 feet deep with a combined surface area of just over 1 million square feet. This site process 1.34 MGD
from Cherokee, 0.19 MGD from the Meridian Service Metropolitan District and 0.17 from the Shriver Air Force Base. Plans for a reverse osmosis system to meet the TDS discharge limits
were mentioned and the facility was compared to the one operated by the City of Aurora. The next stop was at the Blue Springs subdivision. Tour participants remained on the bus which
drove through the subdivision while Mr. Chris Grimes explained the concern of staff and the Upper Black Squirrel District regarding the numerous ponds impounding water tributary to
the Upper Black Squirrel Creek. The final stop was at a site in the Woodman Hills subdivision, close to the operations office. Here the Commission, staff and guests were met by representatives
of Woodman Hills who explained the operation. Water is collected in storm drains and under drains around the houses and directed to wetlands. At this point, Mr. Tom Kirby, representing
Meridian Service Metropolitan District met the Commission, staff and guests on the bus. He explained to them the typical infiltration structure present at Meridian Ranch. It is an
underground vault that collects ground water from near the buildings and allows a majority of the water to infiltrate into the alluvium. The commissioners, staff and a few guests returned
to the Hotel Elegante for dinner and a presentation by Mr. Steve Witte, Division Engineer for Water Division 2 in Pueblo, on the difficulties marijuana grows have created in the administration
of the water in the Arkansas River Basin. Ground Water Commission Meeting Minutes Page 2 August 18 and 19, 2016 The Third Quarterly Meeting of the Colorado Ground Water Commission
took place on August 19, 2016 at The Hotel Elegante, 2886 South Circle Drive, Colorado Springs, Colorado, 80906. Vice Chairman Steve Kramer called the meeting to order at 8:30 a.m.
Secretary Nielsen called the roll and determined that a quorum was present. Commission members present were Marc Arnusch, Dan Farmer, Angela Fowler, Eric Hecox, Steve Kramer, Greg
Larson, 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 and David Keeler. Also present were Jody Grantham, Hearing Officer, Derek Turner, A.G. for the Commission
and Jennifer Mele, A.G. for staff. Members of the public were also present. Commissioner Wolfe took a few minutes to introduce incoming Commissioners Fowler and Hecox and to express
gratitude to outgoing Commissioners Burr and Clever. He also congratulated Commissioner Kramer on his re-appointment. Vice-Chairman Kramer read into the record a resolution, unanimously
adopted by the Commission, recognizing the service of Ms. Carolyn Burr as Commissioner and Chairwoman. He also read a resolution, unanimously adopted by the Commission, recognizing
the service of Mr. Larry Clever as Commissioner. Vice-Chairman Kramer presented the resolution together with a plaque, commemorating their service, to each of them. Vice-Chairman
Kramer called for agenda item no. 3, the election of the interim Chair and Vice-Chair. Commissioner Arnusch nominated Commissioner Vigil as chair. Commissioner Tietmeyer seconded the
nomination. There being no further nominations, Vice-Chairman Kramer closed the nominations. Commissioner Arnusch moved to approve Commissioner Vigil as chair. Commissioner Farmer
seconded the motion which passed unanimously. Commissioner Kramer remains vice-chairman. Review and Approval of Agenda Items Commissioner Farmer requested that the Booker matter,
originally on the draft agenda, be placed back on the agenda. Mr. Keith Vander Horst, advised the Commission that the item was placed on the draft agenda at the request of legal counsel
for Mr. Goss. He said that Mr. Goss decided not to pursue the issue at this meeting causing the item to be removed from the agenda. Commissioner Farmed moved to amend the agenda by
re-inserting Mr. Booker under new business. Commissioner Hecox seconded the motion which passed unanimously. Ground Water Commission Meeting Minutes Page 3 August 18 and 19, 2016
Commissioner Larson moved to accept the agenda as amended. Commissioner Arnusch seconded the motion which passed unanimously. Approval of Minutes for Meeting of May 20, 2016, Chairman
Valdez asked if there were any corrections or additions to the minutes. There being none, Commissioner Farmer moved to accept the minutes as presented. Commissioner Tietmeyer seconded
the motion which passed unanimously. Report of the Executive Director by Dick Wolfe Mr. Wolfe opened his remarks commenting on the tour the previous day. He said that though there
were concerns over the Commission visiting sites associated with contested matters that are or may come before the it, he felt that it was important for the Commission to see for themselves
what is going on. Mr. Wolfe spoke briefly on enforcement matters for the Division of Water Resources in dealing with marijuana grows as presented by Mr. Steve Witte the night before.