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

Mr. Wolfe spoke to the rulemaking progress on the Rio Grande. He has met with all of the objectors to the Rules and believes that stipulated settlements with all objectors will be
achieved soon. Mr. Wolfe noted that this effort to adopt rules governing the 6,000 wells in the Valley have been ongoing for nine (9) years. On the Republican River, Mr. Wolfe noted
that the process to bring Colorado into compact compliance began in 2008 and that over one hundred million dollars has been spent on the efforts. He is optimistic that the long term
agreement will be approved in the near future. It is down to word smithing the agreement and making sure that Colorado’s users, inside and outside of the Republican River District,
are on board. Chairman Valdez called for agenda item no. 7, Commissioners’ reports Commissioner Tietmeyer advised the Commission that he will be recusing himself from the discussion
and decision making on item no. 12-b, dealing with rulemaking in Upper Crow Creek. Commissioner Lauren Ris advised the Commission of leadership changes at the Division of Natural Resources,
Mr. Robert Randall has been appointed as Director and that Ms. Ginny Brannon has been appointed as Assistant Director. Chairman Valdez called for agenda item no. 8, the staff activity
report. Mr. Keith Vander Horst went over his written report. He did point out that the issuance of final permits for the alluvial wells owned by the Town of Kiowa and the Town of
Strasburg is being held up because the well owners objected to the published annual appropriation. They are before the Hearing Officer. He mentioned that one active enforcement action
involves Mr. Booker and will be discussed under new business. Mr. Vander Horst noted that there had been thirteen (13) complaints filed with the office. Of those thirteen complaints
two (2) led to violations both of which Ground Water Commission Meeting Minutes Page 4 August 18 and 19, 2016 have been resolved. Nine (9) of the complaints concerned marijuana grows.
Investigation determined that there were no violations of well permits. The Division of Water resources does not enforce Federal or County regulations. Commissioner Wolfe took a
few minutes to introduce Ms. Carlee Brown, representing James Eklund and the CWCB. He noted that she was taking the place of Mr. Ted Kowalski Chairman Valdez called for agenda item
no. 9, the Attorney General’s report. Ms. Jen Mele briefed the Commission on the Front Range Resource matter. She said that last May the Court found that Front Range had no definite
plans and approved a motion by objectors 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 Ground Water Commission Meeting Minutes Page 5 August 18 and
19, 2016 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. Ground Water Commission Meeting Minutes Page 6 August 18 and 19, 2016 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 Ground Water Commission Meeting Minutes Page 7 August 18 and 19, 2016
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. Ground Water Commission Meeting
Minutes Page 8 August 18 and 19, 2016 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. Ground Water Commission Meeting Minutes Page 9 August 18 and 19, 2016 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 Ground Water Commission
Meeting Minutes Page 10 August 18 and 19, 2016 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 Ground Water Commission Meeting Minutes Page 11 August 18 and 19, 2016 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
NewAdjHearingNoRedlineDraft.pdfMicrosoft Word - AdoptedRules2006-00274.rtf
DRAFT 2016 DEPARTMENT OF NATURAL RESOURCES Colorado Ground Water Commission 2 CCR 402-3 RULES OF PROCEDURE FOR ALL HEARINGS BEFORE THE COLORADO GROUND WATER COMMISSION Rule 1 Authority
This regulation is adopted pursuant to the authority in section 37-90-111(1)(h), C.R.S. and is intended to be consistent with the requirements of the State Administrative Procedure
Act, section 24-4-101 et seq., C.R.S. (the “APA”) and the Colorado Ground Water Management Act, sections 37-90-101 et seq., C.R.S. (the “Act”). Rule 2 Scope and Purpose A. These regulations
shall govern the procedure to be followed by Parties in rulemaking and adjudicatory hearings held by the Colorado Ground Water Commission, hereinafter referred to as the “Commission.”
B. These rules of procedure are intended to establish procedures to assure that all hearings held by the Commission are conducted in a fair and impartial manner, to assure that all
Parties to proceedings under the Colorado Ground Water Management Act are accorded due process of law, and to provide the Commission with all relevant facts and information pertinent
to decision making. These rules shall be construed to carry out these purposes. C. These regulations do not apply to interpretive rulings, guidelines or general statements of policy,
which are not meant to be binding. D. Except when necessary to comply with applicable statutes, the Commission may waive the requirements of these regulations whenever it is determined
that strict adherence to the rules will not promote fairness or impartiality. In any such instance, appropriate justification shall be provided to all Interested Persons and Parties.
E. These rules of procedure are promulgated pursuant to sections 37-90-113, and 24-4-103, C.R.S. F. In the event of a conflict between these regulations and the APA or other statutes,
the statutes shall prevail. Rule 3 Applicability A. These rules apply to rulemaking, adjudicatory proceedings, declaratory orders, reconsideration of rulemaking decisions, and reconsideration
of adjudicatory proceedings before the Commission. B. Except when necessary to comply with applicable statutes, the Commission may waive the requirements of these rules whenever it
is determined that strict adherence to the rules will not promote fairness and impartiality. In any such instance, appropriate justification shall be provided to all Interested Persons
and Parties. C. In the event of a conflict between these rules and the APA or the Management Act, the statutes shall prevail. The provisions of the APA generally apply to all hearings
held by the Commission. Specifically, the provisions of § 24-4-103, C.R.S., shall apply to all rulemaking hearings, the provisions of § 24-4-104, C.R.S., shall apply to all decisions
regarding the grant, renewal, denial, revocation, suspension, annulment, limitation or modification of Licenses (permits), and the provisions of § 24-4-105, C.R.S., shall apply to all
Adjudicatory Proceedings and petitions for declaratory orders unless such provisions are inconsistent with the specific provisions of the Management Act, in which case the those statutory