DWR_3364094

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 11/21/2014
• Subject: MEETING MATERIALS

1. Determine quorum 2. Review and approval of agenda items 3. Approval of Minutes for Meeting of August 15, 2014 4. Report of the Executive Director by State Engineer Dick
Wolfe 5. Commissioners’ Reports 6. Staff Report by Keith Vander Horst. 7. Report of the Attorney General by Jennifer Mele. This is a background briefing on legal issues in the written
report. The Board may refer any item contained or discussed under this topic to Agenda Item No. 13 in Executive Session if the Board has questions. 8. District Reports: a. Marks Butte,
Frenchman, Sand Hills and Central Yuma GWMDs by Nate Midcap b. W-Y GWMD by Jack Dowell c. Arikaree GWMD by Rod Mason d. Plains and East Cheyenne GWMDs by BreAnn Ferguson e. Southern
High Plains GWMD by Max Smith f. North Kiowa-Bijou GWMD by Robert Loose g. Upper Black Squirrel GWMD by Tim Hunker h. Upper Big Sandy GWMD by Dave Taussig i. Lost Creek GWMD by Thomas
Sauter j. Upper Crow Creek Basin by Scott Tietmeyer k. Republican River Water Conservation District by Deb Daniel 9. Old Business a. Coordination of enforcement actions between the
Commission and the Ground Water Management Districts under HB 14-1052 10. New Business 11. Public Comments 12. Executive Session (if needed) 13. Adjournment NOTICE OF GENERAL MEETING
OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, November 21, 2014 Town of Castle Rock Council Chambers 100 Wilcox, 2nd Floor, Castle Rock, CO 80104 A G E N D A
AppealProcedureMemoToGWC.pdf
1313 Sherman Street, Room 821, Denver, CO 80203 P 303.866.3581 F 303.866.3589 www.water.state.co.us Ground Water Commission 1313 Sherman Street, Room 821 Denver, CO 80203
November 7, 2014 To: Ground Water Commissioners From: Keith Vander Horst and Jen Mele Re: Procedure for appeals within Designated Basins In its August 15, 2014 meeting the Commission
requested additional information on the procedures for appealing actions on small and large capacity wells (e.g. issuance or denial of applications, administration of the use of existing
wells under their rights). Following is a general description of the procedures for appeal. Small Capacity Wells Pursuant to section 37-90-105(6)(a), C.R.S. (2014), any person aggrieved
by a decision of the State Engineer granting or denying an application for a small capacity well permit may request a hearing before the State Engineer. That statutory provision allows
for the State Engineer, in his discretion, to have such hearings conducted before an agent, and any ruling by the agent is also appealable to the State Engineer. Any such appeal is
conducted pursuant to section 24-4-105, and the review of the decision is restricted to a review of the scope of the issues presented on the record and no new testimony is taken. Findings
of fact are not set aside unless such findings are contrary to the weight of the evidence. Pursuant to section 37-90-105(6)(b) any person aggrieved by a final decision of the State
Engineer granting or denying an application for a small capacity well permit may, within thirty days, file a petition for review with the district court in the county in which the well
is located. Hearings under this provision are conducted pursuant to section 24-4-106, C.R.S. (2014) and are also limited to a review of the record. The district court will not overturn
the agency decision unless it is, inter alia, arbitrary or capricious, an abuse of discretion or clearly erroneous. Procedures for appealing Staff’s administration of existing small
capacity well permits after such permits have been issued are not set out in statute. However, since the Commission has no role in processes involving small capacity well permits,
and there must be a remedy for a person aggrieved by a decision of Staff in the administration of small capacity well permits, any appeal of Staff’s administration of an existing small
capacity well should be to the State Engineer, and any appeal of a final decision of the State Engineer should be to the district court, as set forth in sections 37-90-105(6)(a) and
(6)(b). Large Capacity Wells Statute provides various procedures for dealing with issuance or denial of applications for well permits, Determinations of Water Rights, and changes of
water rights of large capacity wells. If Staff determines an application does not meet the requirement for publication, the application Procedure for appeals within Designated Basins
Page 2 November 5, 2014 is not published. The application may be either returned to the applicant, withdrawn, or denied. If Staff determines an application meets the requirements
for publication, the application is published. Publication occurs pursuant to section 37-90-112, C.R.S. (2014).  Any party (including Staff) may object to the application. If an
objection is filed to a published application, the application is set for a hearing or otherwise resolved, typically before the Hearing Officer. Subsequent to a hearing, the Hearing
Officer issues his initial decision.  The Hearing Officer’s initial decision may be appealed to the Commission itself. Such appeals occur under section 37-90-114, C.R.S. (2014) and
are also governed by Rules 7, 10.C & D of the Rules of Procedure For All Hearings Before the Colorado Ground Water Commission. Under Rule 10.D., the review of the initial decision
is restricted to a review of the scope of the issues presented on the record and no new testimony is taken, although the Commission may permit oral argument.  Once the Commission
issues a decision regarding the appeal of the initial decision that is considered to be the final agency action on the matter, such decision may be appealed to district court in the
county wherein the water rights or wells involved are situated pursuant to section 37-90-115, C.R.S. (2014). Proceedings on such an appeal are heard de novo in district court, meaning
that all new evidence may be presented at this hearing and no deference is given to the decision of the agency.  If a published application is not objected to Staff will act on the
application By resolution of the Commission on May 21, 1993, the Commission delegated to the executive director all powers granted to the Commission in the Ground Water Management
Act of 1965 except those powers specifically reserved to the Commission under section 37-90104(6), C.R.S. (2014), which are the determination of a designated ground water basin, the
creation of ground water management districts, and the adoption of policies and approval of variances from the Commission rules and regulations. Pursuant to section 37-90-104(6), if
any person is dissatisfied with any action of the executive director under the exercise of the powers delegated by the Commission, the person may appeal said action to the Commission,
which shall hear the person’s appeal as specified in sections 3790-113 and 37-90-114, C.R.S. (2014). Thus, any action or inaction by Staff, who work under the state engineer, can be
appealed to the Commission under section 37-90-114, and then to the district court under section 37-90-115, as described above. This would include actions such as Staff’s denial of
a non-published application and Staff’s administration of the use of large capacity wells
Grd Wtr Comm - Hrg Off Report 11-04-14.pdf
1 HEARING OFFICER'S REPORT Prepared for the November 21, 2014, meeting of the Colorado Ground Water Commission The listing below summarizes all adjudicatory matters pending before
the Colorado Ground Water Commission as of November 4, 2014. Updated/new information is indicated in bold italics. Gallegos, Reinaldo etc Case No. 03-GW-06 Designated Basin: Upper
Crow Creek Date of request: 30-Apr-03 Subject: Petition to de-designate portions of the Upper Crow Ck Designated Basin Status: Hearing Officer issued decision on March 27,
2012. Commission upheld Hearing Officer’s decision. Case appealed to District Court for de novo review (see Case No. 03CV1335, Weld County District Court). Trial was held in February.
Awaiting decision from District Court. Woodmen Hills Metro Dist, Case No. 03-GW-20 Designated Basin: Upper Black Squirrel Date of request: 30-Oct-03 Subject: Objection
to (3) three applications to appropriate designated ground water from the alluvial aquifer of Black Squirrel Creek, or its tributaries and an application for a replacement plan to prevent
injury to water rights of other appropriators and allow the proposed appropriation from the alluvial aquifer. Receipt No 501564-A, B, and C. Status: Staff is working with applicant
to obtain permits and replacement plan. Underground drains. Cherokee Metro & Meridian Svc Dist. Case No. 08-GW-71 Designated Basin: Upper Black Squirrel Date of request:
15-Oct-08 Subject: Objection to an application for approval of a replacement plan to make new appropriations from the alluvial aquifer within the Upper Black Squirrel Creek Designated
Basin. Status: Two weeks of hearing held June 8th thru June 19, 2009. Case consolidated with Case Nos. 08GW78 as well as the change case filings for well nos. 9 through 12 (09GW15).
Case is presently stayed pending outcome of district court declaratory judgment proceedings on stipulation interpretation. Supreme Court issued a decision in December on the 2 ability
of Meridian to Intervene in the declaratory action regarding the stipulation in 98CW80 and indicated Meridian could intervene and remanded to water court for further action. All cases
related to the replacement plan are stayed pending the outcome of a determination concerning interpretation of the stipulation as it relates to use and reuse within the basin. Action
still pending determination by District Court as to whether Order entered by Court is presently appealable. Relevant cases before Commission therefore remain stayed. Cherokee Metropolitan
District Case No. 08-GW-78 Designated Basin: Upper Black Squirrel Date of request: 29-Dec-08 Subject: Objection to an application to change the type and place of use of Well
Permit No. 49988-F. Status: See Case No. 08GW71 above. Case stayed pending resolution of declaratory judgment action in water court. Farmer, Edna I Case No. 09-GW-02 Designated
Basin: Upper Black Squirrel Date of request: 12-Mar-09 Subject: Objection to an application for Determination of Water Right Status: Stayed pending outcome of Cherokee replacement
plan case, Case No. 08GW71. Farmer, Daniel & Teresa Case No. 09-GW-03 Designated Basin: Upper Black Squirrel Date of request: 12-Mar-09 Subject: Objection to an application
for Determination for Water Right Status: Stayed pending Cherokee replacement plan case, Case No. 08GW71. Meridian Service Metropolitan Dist., Case No. 09-GW-11 Designated
Basin: Upper Black Squirrel Date of request: 15-Jun-09 Subject: Objection concerning an application to change a determination of water right Status: Stayed pending outcome
of Case No. 08GW71 (Cherokee replacement case). 3 Cherokee Metro & Meridian Svc Dist. Case No. 09-GW-15 Designated Basin: Upper Black Squirrel Date of request: 17-Nov-09
Subject: Objection to an application to change the type and place of use Status: See 08GW71 above. Case is presently stayed pending outcome of district court declaratory judgment
proceedings. Greathouse, William Case No. 11-GW-06 Designated Basin: Southern High Plains Date of request: 3-May-11 Subject: Objection to the Issuance of a Final Permit
Status: Prehearing conference scheduled for August 4, 2011. At prehearing conference parties agreed to attempt to resolve the matter. Case is stayed pending outcome of negotiations.
Staff sent letter to Applicant in June of 2012 and is awaiting reply. As of February 5, 2014, staff informed hearing officer they have spoken to lessee and expect response in near
future. Staff has informed the Hearing Officer they are not obtaining any responses from the lessee. Order to show cause as to why this matter should not be dismissed for failure
to prosecute mailed November 4, 2014. Meridian Service Metropolitan District Case No. 12-GW-10 Designated Basin: Upper Black Squirrel Date of request: 12-Jan.-12 Subject: Nature
of water. Status: Initial decision of Hearing Officer entered on April 25, 2013. Commission upheld Hearing Officer’s decision. Meridian appealed to El Paso County District Court.
Certification of record on appeal is complete. District Court upheld Commission decision. Appealed to Supreme Court Front Range Resources, LLC Case No. 13-GW-05 Designated
Basin: Lost Creek Date of request: 12-Sept-13 Subject: Change the place of use of ten wells located in the Lost Creek Designated Basin Status: Parties stipulated prior to hearing.
Hearing vacated and case 4 remanded to staff on August 20, 2014. Front Range Resources, LLC Case No. 13-GW-07 Designated Basin: Lost Creek Date of request: 12-Sept-13
Subject: Application for approval of a replacement plan located in the Lost Creek Designated Basin Status: Case is set for a fifteen day hearing commencing February 23, 2015. Motions
for determination of question of law and partial summary judgment pending before the hearing officer. Blake and Chelsea Gourley Case No. 14-GW-01 Designated Basin: Southern High
Plains Date of request: May 12, 2014 Subject: Application to construct a new well Status: Hearing Officer granted Motion for Summary Judgment on August 18, 2014. No appeal filed.
Case is closed. Meridian Service Metropolitan District Case No. 14-GW-02 Designated Basin: Upper Black Squirrel Date of request: May 27, 2014 Subject: Applications for approval
of under drain well permits Status: Hearing Officer denied motion to stay and or dismiss on October 21, 2014. Case continues to be set for 3 day hearing, January 14 through 16, 2015.
James T. Gardner (Deceased) Case No. 14-GW-03 Designated Basin: Upper Black Squirrel Date of request: May 27, 2104 Subject: Application for change of description of irrigated
acreage. Status: The executor for the estate of Mr. Gardner has met with the District and their attorney and diligent progress continues to be made between the parties in working toward
settlement. Status conference scheduled for December 8, 2014. 5 Meridian Service Metropolitan District Case No. 14-GW-04 Designated Basin: Upper Black Squirrel Date of
request: July 14, 2014 Subject: Applications to change determinations of water rights. Status: Objection withdrawn. Case remanded to Staff for processing. Case Closed on September
16, 2014. Respectfully submitted ______________________________ Joseph (Jody) Grantham, Hearing Officer
HB14-1052_CoordinationMemo2014-11-21.pdf
1313 Sherman Street, Room 821, Denver, CO 80203 P 303.866.3581 F 303.866.3589 www.water.state.co.us Ground Water Commission 1313 Sherman Street, Room 821 Denver, CO 80203
November 21, 2014 To: Ground Water Commission and Commission Staff From: Dick Wolfe, Executive Director, Ground Water Commission Re: Coordination between Ground Water Commission,
Commission Staff, and Ground Water Management Districts on matters of violations by water users in the Designated Basins HB14-1052 was passed by the legislature and signed by the Governor
on March 21, 2014. During the drafting of HB14-1052 and during the legislative hearings that led to its passage through the legislature, different parties expressed concern that the
changes to the law created potential for multiple entities to pursue relief for the same violation. This concern was addressed by an explicit provision in the bill that states that
the Ground Water Commission (“Commission”), the State Engineer, and the Ground Water Management Districts (“District”) coordinate enforcement actions. Further, before the Governor
signed the bill, his staff contacted the State Engineer’s Office seeking assurance that some mechanism would be put in place to ensure proper coordination between different entities
when enforcing Commission and District Rules. The intent of this memo is to set an approach to coordinating enforcement that will ensure that coordination takes place. Method
of coordination of enforcement action between the Commission and the Districts Among other things, HB14-1052 added the following direction to Section 37-90-111.5(2), C.R.S.: “The Commission,
State Engineer, and District shall coordinate enforcement actions to ensure that multiple actions are not filed with regard to the same violation or failure to comply.” The primary
objective of the method of coordination documented in this memo is to ensure there is only one action taken in regard to a violation or failure to comply; even while multiple parties
may join in that action in a coordinated way. The following steps will guide the Commission, State Engineer, and District’s approach to enforcement matters: 1. Consistent with past
practice, except in the case of emergency, the Commission Staff and the Districts will continue a process of notifying each other regarding an upcoming enforcement action. This communication
will precede the actions that are directed by the following steps. 2. Circumstances giving rise to violations are unique and fact specific, and the Commission and District wish to preserve
corresponding flexibility to tailor enforcement actions, subject to the statutory mandate to “coordinate enforcement actions to ensure that multiple actions are not filed with regard
to the same violation or failure to comply.” The following are intended as general guidelines, subject to amendment by agreement between the Commission staff and District or upon the
direction of the Executive Director or Commission. When a violation occurs: a. If the occurrence is a violation of the District’s rule only but not a violation of the Commission’s
or State Engineer’s rule or permit, the District will pursue any enforcement action and issue any subsequent order that may result, b. If the occurrence is a violation of the Commission’s
or State Engineer’s rule; permit; or prior Commission Order regarding a change in use, export, etc. or a Commission Determination for Denver Basin water (“Prior Commission Order”),
but not a violation of a District rule, the Commission will pursue any enforcement action and issue any subsequent order that may result. c. If the occurrence is a violation of both
the Commission’s or State Engineer’s rules, permit, or Prior Commission Order and the District rules, the Commission will pursue any enforcement action in coordination with the District.
This coordination shall include permit/water right/decree research, field inspections, and correspondence with the violator. Any subsequent order that may result from this coordinated
effort will be issued by the Commission. If there are multiple violations resulting in the requirement of an order, only those violations of both the Commission’s or State Engineer’s
rules, permit or Prior Commission order and the District rules will be addressed in the order issued by the Commission. The district may reserve the right to issue its own order to
address violations not included in the Commission order. 3. The party that issues the order will pursue that order in District Court. 4. If the circumstances of a violation do not
conform with the general guidelines in 2.a. – c. above, the Commission Staff and the District shall confer for purposes of determining how coordinated enforcement should occur. 5.
If disagreement on any potential or ongoing Commission enforcement action occurs, either the Commission Staff or the District may request a joint meeting with the Executive Director
of the Commission to present the matter and receive direction on how to proceed with coordinated enforcement. 6. If a District disagrees with the direction given by the Executive Director
in item 5 above, the District may present the matter to the Commission at the next regularly scheduled Commission meeting and request a decision from the Commission regarding how to
proceed. . 7. None of the guidance contained in this document prevents the Commission, State Engineer, and the District from joining together in a coordinated effort to pursue any violation
or failure to comply; however, in that coordinated effort, the timeliness of the actions must show due regard for the urgency to resolve the matter.
Minutes_2014-8-15.docxMINUTES

MINUTES
THIRD QUARTERLY MEETING
COLORADO GROUND WATER COMMISSION
AUGUST 15, 2014
The Third Quarterly Meeting of the Colorado Ground Water Commission took place on August 15, 2014, at the Embassy Suites Hotel and Conference Center, 4705 Clydesdale Pkwy, Loveland
Co 80538<. Chair<woman Carolyn Burr called the meeting to order at 10:00 a.m. Mr. Richard Nielsen called the roll and determined that a quorum was present. Commission members present
were Marc Arnusch, Larry Clever, Steve Kramer, Greg Larson, George Schubert, Scott Tietmeyer, Virgil Valdez, Robert Randall, Dick Wolfe and Suzanne Sellers. Staff members present were
Kevin Rein, Richard Nielsen, Chris Grimes, David Keeler. Also present were Jody Grantham, Hearing Officer, Pat Kowaleski, A.G. for the Commission and Jennifer Mele, 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 May 16, 2014, Chairwoman Burr asked if there were any corrections or additions to the minutes. <Commissioner Wolfe advised the Commission that he had
already provided Secretary Nielsen with a few minor corrections. There being no additional comments,

Commissioner Kramer moved to approve the minutes as amended.
Commissioner Valdez seconded the motion which carried unanimously.
Report of the Executive Director by Dick Wolfe
Mr. Wolfe opened his remarks by welcoming Commissioner Arnusch to the Commission. He also informed the Commission that Katie Radke, the CREP coordinator among other duties, had left
employment with the Division of Water Resources.
Mr. Wolfe informed the Commission that there have been considerable changes in our talks with Kansas involving the Republican River Compact. Kansas has a new Secretary of Agriculture,
Jackie McClaskey, and the Chief Engineer’s office is in the Department of Agriculture. Mr. Wolfe said that Colorado had a productive meeting with the Kansas Secretary of Agriculture
and representatives of the Governor’s Office in Kansas on July 29 of this year. They intend to meet monthly for up to five (5) months, hopefully to work through resolution of the concerns
of Colorado and Kansas on Republican River Compact. The next meeting will take place on August 27th, just before the annual Republican River Compact Administration meeting in Lincoln
Nebraska. Mr. Wolfe advised the Commission that Colorado will be seeking approval for, at the minimum, another year of operation of the Compact Compliance Pipeline (CCP) and hopefully
a longer period of operation or general approval of the CCP and Bonny Reservoir resolution.
In closing, Mr. Wolfe informed the Commission that the San Luis Valley Advisory Committee for the has been meeting monthly and anticipates submitting the new well use rules to the court
within the next couple of months.
Chairwoman Burr introduced Mr. Robert Randall, Deputy Director for Department of Natural Resources and opened the floor to him.
Commissioner Randall took this time to thank Commissioner Wolfe and his staff for the ride along with a Division 1 Water Commissioner. <He said that the staff of the Executive Director’s
Office were appreciative to observe the daily operations of a water commissioner and had learned a lot.
Chairwoman Burr called for agenda item no. 5, Commissioners’ reports.
Commissioner Kramer commented that he enjoyed the tour of the previous day. He said that he came away with an added layer of confidence that the oil and gas companies are protecting
our water resources. Mr. Kramer thanked staff for attending the monthly meeting of the ground water management districts, noting that the boards and user’s present at those meetings
are very grateful for the outreach and the information provided. Mr. Kramer stated that the W<ater Preservation Partnership is still working to get organized. At a producers meeting
they, the producers, expressed disappointment at the reported static water levels. He mentioned that the some producers are looking forward and trying to figure out a way to enforce
self imposed pumping reductions when that day comes.
Commissioner Tietmeyer reported that a lot of water was going to the oil fields and that there are concerns from residents with the volume of water. Mr. Tietmeyer noted that the large
volume of water could be explained by water from wells two miles across the border into Wyoming selling water for oil and gas development in Colorado. He stated that in his talks with
the producers they indicated that they felt they were being fairly regulated. <
Commissioner Wolfe reminded the Commission that a rule making hearing on the proposed amended well measurement rules for the Republican River Basin will be held in Burlington at the
end of October.
Commissioner Burr thanked staff for organizing the tour. She said that it was good to be able to get so close and hands on in getting a good view on the different aspects of the activity
in the area.
Chairwoman Burr called for agenda item no. 6, the staff activity report.
Mr. Kevin Rein informed the Commission the Mr. Vander Horst was unable to attend the meeting because he is on jury duty. He then suggested that the Commissioners contact Mr. Vander
Horst directly if they had any questions regarding his written report. Mr. Rein concluded his comments by mentioning the success Mr. Chris Grimes has had in handling sensitive enforcement
issues.
Chairwoman Burr called for agenda item no. 7, the Attorney General’s report.
Ms. Jen Mele reported that the Gallegos and Meridian cases are both fully before the court and that there is no timeline for when a decision will be made. At Ms. Mele’s prompt, Mr.
Pat Kowaleski informed the Commission that the judge in the Meridian matter had requested proposed findings from the attorneys within ten (10) days which implies a speedy decision time.
Ms. Mele closed her report by advising the Commission that trial will begin August 25th in the matter of Front Range Resources application to change the place of use of ten (10) wells.
Chairwoman Burr called for agenda item no. 8, Management District Reports
Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, reported that his districts are quiet which means something is going to happen. He noted
that there had been good rain all around. Mr. Midcap thanked Mr. Wolfe for his work with the Republican River Compact and noted that he was working with the Water Preservation Partnership.
Mr. Jack Dowell, reporting for the W-Y GWMD, reported that his district too had had good rain which allowed the producers to pump about a third less water than normal. He said that
they had 50 – 60 bushel wheat and that the corn, beans and beets all look good. Of the 157 chemigation inspections that he has conducted three wells failed due to back flow preventers
not functioning properly. He also noted that he had found 65 un-permitted wells. In response to a question by Commissioner Burr, Mr. Dowell said there are two categories of unpermitted
wells. The first is for those that are new, never having been registered. Owners of these wells need to complete the paper work and pay a fee of $35.00. Owners of those wells that
had been previously permitted must complete all necessary paperwork and pay a fee of $70.00. Once the wells had been registered he will then inspect the wells to confirm proper installation
of the back flow preventer and electrical wiring.
Rod Mason, reporting for the Arikaree GWMD, reported that his district too, had had good rain producing 50 and 60 bushel wheat, in parts. Other parts had the white combine come through.
He said that he is kept busy with the chemigation inspections and third party administration. Mr. Mason advised the Commission that his district was very interested in the final item
on the agenda, use of commercial wells.
Ms. BreAnn Ferguson, reporting for the Plains and East Cheyenne GWMD’s, informed the Commission that the East Cheyenne District has been quiet and that she is confirming totalizing flow