DWR_3365889

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 8/16/2013
• Subject: MEETING MATERIALS

hearing held before the full Commission at their May 2013 meeting. Commission denied variance. Application withdrawn case closed. Respectfully submitted ______________________________
Joseph (Jody) Grantham, Hearing Officer
HillApplication_VarianceRequest.pdf

HillVarianceStaffMemo_2013-8-1.pdf

Min_May_2013.pdf

Minutes2013-05_Draft.docxMINUTES

MINUTES
SECOND QUARTERLY MEETING
COLORADO GROUND WATER COMMISSION
MAY 17, 2013
The Second Quarterly Meeting of the Colorado Ground Water Commission took place on May 17, 2013, at Castle Rock Town Hall, 100 N Wilcox, Castle Rock, Colorado. Chairman Dennis Huwa
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 Grant Bledsoe, Carolyn Burr,
Corey Huwa, Steve Kramer, Earnest Mikita, George Schubert, Virgil Valdez, Mike Sullivan and Suzanne Sellers. Staff members present were Kevin Rein, Keith Vander Horst, Richard Nielsen,
Chris Grimes, Jay Bloomfield, Ivan Franco and David Keeler. Also present were Jody Grantham, Hearing Officer, Paul Benington, 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 February 15, 2013, Chairman Huwa asked if there were any corrections or additions to the minutes. There being <none,

Commissioner Mikita moved to approve the minutes as presented.
Commissioner Burr seconded the motion which carried unanimously.
Report of the Executive Director by Mike Sullivan, for Dick Wolfe
Mr. Sullivan opened his remarks covering recent events in the Republican River Basin:
Colorado submitted their application for the approval of the augmentation plan for the pipeline to the RRCA in April. At the meeting in May, Kansas voted against the plan.
At the meeting, Colorado filed an application to amend the accounting procedures for Bonny Reservoir since it is now dry. Kansas voted against the plan.
Colorado filed its notice of fast track arbitration on both applications. Plans are to contract with the same arbiter as was used last time. The contract will be signed in the coming
weeks and procedural dates will be set.
On the matter of the application filed by Nebraska for approval of the Rock Creek pipeline – Colorado and Nebraska voted for approval while Kansas voted no.
On the matter of the application filed by Nebraska for a water short year - Colorado and Nebraska voted for approval while Kansas voted no.
Nebraska’s applications are also on fast track arbitration but with a different arbiter. We will be working on four applications through two arbiters in the next six (6) months.
Elsewhere in the state, Mr. Sullivan noted that the court had approved the measuring rules for the South Platte Basin, bringing close to 8,000 wells under the same calibration standards.
Very similar to the way wells are calibrated in the Arkansas, Rio Grande and Republican Basins. In the Rio Grande Basin, Texas has filed for Cert with the Supreme Court to sue New
Mexico for claimed ground water depletions in the Elephant Butte Project area. Also in the Rio Grande, the 2013 replacement plan for Sub-District One was approved. There were no appeals
of the plan.
Mr. Sullivan concluded his remarks by reminding the Commission that there are three positions up for replacement or reappointment, Mr. Huwa’s, Mr. Bledsoe’s and that of Mr. Mikita.
Chairman Huwa called for agenda item no. 5, Commissioners Reports - There were none.
Chairman Huwa called for agenda item no. 6, a hearing on a request by Mary Ellen Hardwick for a variance to Rule 7.3.1, 7.3.2, and 7.3.4 to allow for the relocation of a well, permit
no. 23205-FP.
Ms. Andrea Benson, attorney for the Hardwick’s addressed the Commission. Ms. Benson provided a background of the Hardwick’s farming operation and in particular the use of well permit
no. 23205-FP. She noted that the well is permitted for an annual appropriation of 325 acre-feet but that for the past ten (10) years they have diverted 127 acre-feet. Ms. Benson noted
that problems with the well production, caused by excessive clay, began twenty (20) years ago but have worsened in the past five or six years to the point where weekly cleaning of the
nozzles is required.
Ms. Benson stated that her clients had constructed several test wells within the allotted 300 foot radius of the well but found similar clay deposits so they expanded the search for
a suitable well location beyond the 300 foot replacement limit. She stated that an application to relocate permit no. 23205-FP which was submitted in October was withdrawn due to objections
that had been filed. Ms. Benson informed the Commission that at the currently proposed location, the nearest well is over 2600 feet West and to the East, the closest well is three
miles distant.
In her arguments, Ms. Benson noted that the Rules do not define undue hardship. She ventured that it is unnecessary or unjust hardship. In this matter, the hardship will extend to
three families. Ms. Benson stated that the spirit of Rule 7 is to prevent injury to other wells and that at the proposed location no injury to other wells will occur.
Mr. Hardwick spoke to the Commission. He went into more detail regarding the operation of his farm and livestock operation. Mr. Hardwick stressed that he runs a conservative farm,
using gypsum blocks to monitor water requirements and often diverting half of the permitted annual appropriation. He stated that his arm would lose $130,000 to $140,000 if they could
no longer irrigate one of the circles. Mr. Hardwick again discussed the presence of and troubles of the clay in his well, noting the existence of clay within 300 feet of the existing
well. He said that he had talked with Mr. Coryell of the RRWCD and had provide all information to the local District. Mr. Hardwick volunteered to cancel all rights to the well in
excess of 600 GPM and 200 acre-feet annual appropriation.
Mr. Mike Shimmin, attorney for the Central Yuma Ground Water Management District, an objector to the request, addressed the Commission. He stated that the District opposes the variance
and requests that it be denied on four (4) points.
Mr. Shimmin advised the Commission that the pending request is in violation of District Rule 6, limiting replacement wells to no more than 150 feet of the original permitted location.
He further stated that the applicants have not responded to District requests for additional information such as logs of test holes and waivers of injury from neighbors within two
miles. Mr. Shimmin stated that as the applicants have not complied with the District Rule the variance request is not justifiable.
Mr. Shimmin discussed the Commission Rules, specifically Rule 7. He stated that wells being moved more than 300 feet (relocated) are required to have historic analysis completed to
ensure that there are no increased depletions to the aquifer in the new three-mile circle. He stated the intent of the rule is to prevent just this sort of action, which is commonly
referred to as walking to water.
Mr. Shimmin stressed that it is not unusual hardship to live with the water rights you have.
Mr. Shimmin brought up the concern of setting a precedent. He noted that there are dozens of wells along the Vernon Ridge that will request to move down the ridge to better water.
He also noted that there are others throughout the basin that have the same concerns as the Hardwick’s.
Mr. Shimmin concluded his comments by stating that granting the variance would be the same as repealing the three-mile rule.
Ms. Benson offered a rebuttal to the comments of Mr. Shimmin. She noted that there was no mention of District Rule 6 until the third application. She also mentioned that Mr. Hardwick
had submitted a request for a variance from Rule 6 and that this hearing concerns the Commission Rules. Ms. Benson argued that Mr. Shimmin set the precedent for this type of application
when he represented the Town of Arapahoe’s variance request last year.
In response to a question of Commissioner Bledsoe, Ms. Benson stated that there will be a 0.001 foot decline per year for the Hay’s livestock well and no impact on the nearby springs.
She also clarified an earlier answer for Commissioner Valdez by saying that conversations with previous objectors had been just that, conversations and no waivers of claim to injury
have signed.
Mr. Keith Vander Horst speaking for staff said that the information presented fairly represents most of the information provided in his memo to the Commission. He noted that item e,
on page 3 of his memorandum identifies a decline in the static water level from 124 feet when the well was constructed to 146 feet today, resulting in a decline in production from the
well. He also mentioned that this decline in the water table is noticed throughout the Basin and could have an impact on the well casing and integrity leading to or compounding the
applicant’s issues. He agrees with Mr. Shimmin that this is a general hardship basin wide. Drawing the Commission’s attention to item d on page 3 of his memorandum, Mr. Vander Horst
noted that despite any physical effect the proposed well may have on the surface water or springs because of the closer proximity, there is no legal effect.
On the matter of walking to water, Mr. Vander Horst noted that discrepancies in the reported total depth at the time of construction and that reported on subsequent test reports makes
it difficult to be absolutely certain but that it would appear that the applicant is moving towards a spot in the aquifer with better production.
Mr. Vander Horst stated that staff agrees with understanding of the intent of the Rules as presented by Mr. Shimmin and that staff is also concerned about the effect of precedence.
He clarified earlier discussion by stating that this application is a change in water right, moving that right to a new location but retaining the existing priority. Mr. Vander Horst
concluded his comments by stating that though the present hearing and the hearing scheduled before the Hearing Officer are two separate matters, the decision of the Commission today
will directly affect the outcome of the hearing on the application.
There were no questions of Mr. Vander Horst whereupon the hearing was closed and Commission discussion followed.
Commissioner Burr stated that she would have liked to see more complete resolution with the District first. She also said that wells do wear out and need to be replaced. She is generally
concerned about the application and the matter of historic use. She is in favor of denying the request.
Commissioner Bledsoe said that he would like to see the District act on the application before the Commission acts. He understands that this is a difficult part of the aquifer to irrigate
out of and is also concerned about the historic use matters. He favors denying the request.
Commissioner Mikita said that the District should have the main say in the matter. He believes that moving a well that far is the same as constructing a new well in an over appropriated
area. He is in favor of denying the request.
Commissioner Schubert said that the Hardwick’s are in a hardship situation but that it is a business that we are all in and things change after forty (40) years. He too thinks the
local District should be relied upon and is in favor of denying the request.
Commissioner Kramer moved to deny the variance request.
Commissioner Schubert seconded the motion which passed unanimously.
Following the vote, Ms. Benson requested to enter documents into the record. After discussion it was agreed that only those documents presented to the Commission prior to its vote could
be made part of the record.
Chairman Huwa called for agenda item no. 7, Hearing on a request by Verna Marlene Hill for a variance to Rule 7.3.1, 7.3.2, 7.3.3, and 7.3.4 to allow for the relocation of a well, permit
no. 6412-FP.
Ms. Teresa Hill, representing her parents, requested a continuance to hire legal counsel. The request was granted.
Chairman Huwa called for agenda item no. 8, the staff activity report. Mr. Vander Horst reviewed his written report. He noted that< with the exception of 57 bedrock aquifer wells, all
historic permits had been published for final permit. Mr. Vander Horst advised the Commission that on August 31 of this year SB-72 will become effective, removing those 57 bedrock
wells from the final permit process. He also noted that conditional permits remain in the Camp Creek, Upper Crow Creek and Southern High Plains Basins which remain open for appropriation
and that these will be processed for final permit as the wells are constructed and placed to beneficial use. Mr. Vander Horst noted that there was one new hearing as a well owner objected
to the cancellation of his permit. In the area of enforcement, he noted that Staff has sent several letters to well owners in the Plains GWMD regarding possible illegal use of their
wells and that we were waiting for responses. Additionally, Mr. Vander Horst noted that the Town of Vona had over-pumped its well in 2012 and that staff was working with them to ensure
a water supply for the residents and to bring the Town’s operations into compliance with their permits. He concluded his remarks noting that staff continued to work with Magnum Feed
Yards and its use of irrigation wells for feedlot operations. Commissioner Valdez asked for clarification of the process for Magnum Feed Yard. There were no other questions.<
Chairman Huwa called for agenda item no. 9, the Attorney General’s report. Ms. Mele updated the Commission on the Gallegos and Meridian cases. In Gallegos, the subject of doctrine of
waiver, where the previous owners favored designation and w<hether the current owners may now object, is being looked into. In Meridian, Ms. Mele informed the Commission that the Hearing
Officer ruled that the water which is the subject of the application is designated ground water. There has been no appeal to-date.
Chairman Huwa called for agenda item no. 10, Management District Reports
Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, commented that with recent weather it is hard to tell if it is summer or winter. Mr. Midcap
reported that all static water level measurements were completed in February and that he is beginning the chemigation inspections. He noted that most everybody in his Districts are
watching the Republican River litigation closely.
Mr. Denny Slavador, reporting the W-Y GWMD, reported that the District Board is discussing amending their rules to restrict changes in the description of irrigated acres and to allow
the banking of water. He reported that the Board wants to hold irrigators to the ten year historic average of irrigated lands. This is because irrigators with a water right for 160
acres have always irrigated 130 acres under a pivot and now want to combine corners for another circle, expanding the historic use of the wells. On the matter of banking, the Board
believes that if banking were permitted, it would allow farmers better management control of their water and there would have been no over-pumping in 2012. After a few questions from
Commissioners Burr and Kramer were answered, Mr. Vander Horst advised the Commission that for the change in description of acres to proceed the Commission would need to modify its rules
and that a statutory change is required to allow banking opportunities.
Rod Mason, reporting for the Arikaree GWMD, reported that with the recent snow falls the moisture outlook is better than last year and that the pastures are greening up nicely. He also
noted that there had been a lot of wheat winter kill and that what remained was infested with mites. Mr. Mason advised the Commission that the District had passed a rule requiring
irrigators to contract with the District for third party administration. He asked if the Commission and staff would support the rule. Commissioner Burr asked what support he was looking
for. Mr. Mason responded that he wants the Commission to allow only the District to be the third party administrators and to direct staff accordingly.
Ms. BreAnn Ferguson, reporting for the Plains and East Cheyenne GWMD’s, informed the Commission that the Plains District has received between 4 and 6 inches of moisture while the East
Cheyenne District has received between 2 and 4 inches. She noted that her Districts had suffered heavy freeze loss and that the wheat now had mites and cutworms. Ms. Ferguson concluded
her comments noting that she was keeping busy with flow meter and chemigation inspections.
Mr. Max Smith, reporting for the Southern High Plains GWMD there was no report.
Mr. Robert Loose reporting for the North Kiowa Bijou GWMD, reported that his District was in better shape than last year but that the recent blizzards resulted in a 10% calf loss.
Mr. Tim Hunker, reporting for the Upper Black Squirrel GWMD, reported that with the recent moisture the pastures were greening up nicely. He also noted that the District was working
with the County on a groundwater monitoring program.
Mr. David Tausig reporting for the Upper Big Sandy GWMD, reported that the soil moisture had been improved by the recent storms. He advised the Commission that the District was seeking
a grant from the Arkansas Round Table to fund a study of the interactions between Big Sandy Creek and the bedrock aquifers at the outcrops.
Ms. Allison Scott, reporting for the Lost Creek GWMD, reported that the District had recently amended its small capacity well rules. She also reported that the District is concerned
about water quality issues as they relate to replacement plans. Because of this concern the District is considering amending its current rule on water quality to allow it, the District,
to act as an implementing agency. In response to a question by Commissioner Valdez, Ms. Scott stated that no increase in cost is expected.
Mr. Scott Tietmeyer, reporting for the Upper Crow Creek Designated Basin, reported that the wetter than normal spring, 1.78 inches of precipitation for the month against a normal average
of 1.16 inches, has helped with the soil moisture, now at 50%. He stated that irrigation began two weeks ago.
Ms. Deb Daniel, reporting for the Republican River Water Conservation District, commented on the Republican River Compact Administration meeting that Mr. Sullivan mentioned in his opening
comments. She quoted the Nebraska “State Engineer” in his support of Colorado’s proposals. Ms. Daniel also noted the tough questions and stance from Colorado’s State Engineer to Kansas
on what they want.
Mr. Sullivan commented that Kansas is now working with us and that there is another meeting scheduled on Monday.
Chairman Huwa called for agenda item no. 9, old business. There was none.<
Chairman Huwa called for agenda item no. 10, new business. Secretary Nielsen <put before the Commission several options for the location and activities for the August meeting. He further
advised the Commission that Commissioner Smith would like to see the Colorado Springs Southern Delivery System. The Commission agreed to Commissioner Smith’s suggestion.
Chairman Huwa called for agenda item no. 11, public comment. There was none.
There being no further business the meeting adjourned.
Respectfully submitted,
Richard A Nielsen, P.E., Secretary
Colorado Ground Water Commission
Ground Water Commission Meeting MinutesPage 7
May 17, 2013
Minutes2013-05_Draft.pdfMINUTES
MINUTES SECOND QUARTERLY MEETING COLORADO GROUND WATER COMMISSION MAY 17, 2013 The Second Quarterly Meeting of the Colorado Ground Water Commission took place on May 17, 2013,
at Castle Rock Town Hall, 100 N Wilcox, Castle Rock, Colorado. Chairman Dennis Huwa 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 Grant Bledsoe, Carolyn Burr, Corey Huwa, Steve Kramer, Earnest Mikita, George Schubert, Virgil Valdez, Mike Sullivan and Suzanne
Sellers. Staff members present were Kevin Rein, Keith Vander Horst, Richard Nielsen, Chris Grimes, Jay Bloomfield, Ivan Franco and David Keeler. Also present were Jody Grantham, Hearing
Officer, Paul Benington, 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 February 15, 2013, Chairman Huwa asked if there were any corrections or additions to the minutes. There being none, Commissioner
Mikita moved to approve the minutes as presented. Commissioner Burr seconded the motion which carried unanimously. Report of the Executive Director by Mike Sullivan, for Dick Wolfe
Mr. Sullivan opened his remarks covering recent events in the Republican River Basin: Colorado submitted their application for the approval of the augmentation plan for the pipeline
to the RRCA in April. At the meeting in May, Kansas voted against the plan. At the meeting, Colorado filed an application to amend the accounting procedures for Bonny Reservoir since
it is now dry. Kansas voted against the plan. Colorado filed its notice of fast track arbitration on both applications. Plans are to contract with the same arbiter as was used last
time. The contract will be signed in the coming weeks and procedural dates will be set. On the matter of the application filed by Nebraska for approval of the Rock Creek pipeline
– Colorado and Nebraska voted for approval while Kansas voted no. On the matter of the application filed by Nebraska for a water short year - Colorado and Nebraska voted for approval
while Kansas voted no. Nebraska’s applications are also on fast track arbitration but with a different arbiter. We will be working on four applications through two arbiters in the
next six (6) months. Ground Water Commission Meeting Minutes Page 2 May 17, 2013 Elsewhere in the state, Mr. Sullivan noted that the court had approved the measuring rules for the
South Platte Basin, bringing close to 8,000 wells under the same calibration standards. Very similar to the way wells are calibrated in the Arkansas, Rio Grande and Republican Basins.
In the Rio Grande Basin, Texas has filed for Cert with the Supreme Court to sue New Mexico for claimed ground water depletions in the Elephant Butte Project area. Also in the Rio
Grande, the 2013 replacement plan for Sub-District One was approved. There were no appeals of the plan. Mr. Sullivan concluded his remarks by reminding the Commission that there are
three positions up for replacement or reappointment, Mr. Huwa’s, Mr. Bledsoe’s and that of Mr. Mikita. Chairman Huwa called for agenda item no. 5, Commissioners Reports - There were
none. Chairman Huwa called for agenda item no. 6, a hearing on a request by Mary Ellen Hardwick for a variance to Rule 7.3.1, 7.3.2, and 7.3.4 to allow for the relocation of a well,
permit no. 23205-FP. Ms. Andrea Benson, attorney for the Hardwick’s addressed the Commission. Ms. Benson provided a background of the Hardwick’s farming operation and in particular
the use of well permit no. 23205-FP. She noted that the well is permitted for an annual appropriation of 325 acre-feet but that for the past ten (10) years they have diverted 127 acre-feet.
Ms. Benson noted that problems with the well production, caused by excessive clay, began twenty (20) years ago but have worsened in the past five or six years to the point where weekly
cleaning of the nozzles is required. Ms. Benson stated that her clients had constructed several test wells within the allotted 300 foot radius of the well but found similar clay deposits
so they expanded the search for a suitable well location beyond the 300 foot replacement limit. She stated that an application to relocate permit no. 23205-FP which was submitted in
October was withdrawn due to objections that had been filed. Ms. Benson informed the Commission that at the currently proposed location, the nearest well is over 2600 feet West and
to the East, the closest well is three miles distant. In her arguments, Ms. Benson noted that the Rules do not define undue hardship. She ventured that it is unnecessary or unjust
hardship. In this matter, the hardship will extend to three families. Ms. Benson stated that the spirit of Rule 7 is to prevent injury to other wells and that at the proposed location
no injury to other wells will occur. Mr. Hardwick spoke to the Commission. He went into more detail regarding the operation of his farm and livestock operation. Mr. Hardwick stressed
that he runs a conservative farm, using gypsum blocks to monitor water requirements and often diverting half of the permitted annual appropriation. He stated that his arm would lose
$130,000 to $140,000 if they could no longer irrigate one of the circles. Mr. Hardwick again discussed the presence of and troubles of the clay in his well, noting the existence of
clay within 300 feet of the existing well. He said that he had talked with Mr. Coryell of the RRWCD and had provide all information to the local District. Mr. Hardwick volunteered
to cancel all rights to the well in excess of 600 GPM and 200 acrefeet annual appropriation. Ground Water Commission Meeting Minutes Page 3 May 17, 2013 Mr. Mike Shimmin, attorney
for the Central Yuma Ground Water Management District, an objector to the request, addressed the Commission. He stated that the District opposes the variance and requests that it be
denied on four (4) points. Mr. Shimmin advised the Commission that the pending request is in violation of District Rule 6, limiting replacement wells to no more than 150 feet of the
original permitted location. He further stated that the applicants have not responded to District requests for additional information such as logs of test holes and waivers of injury
from neighbors within two miles. Mr. Shimmin stated that as the applicants have not complied with the District Rule the variance request is not justifiable. Mr. Shimmin discussed
the Commission Rules, specifically Rule 7. He stated that wells being moved more than 300 feet (relocated) are required to have historic analysis completed to ensure that there are
no increased depletions to the aquifer in the new three-mile circle. He stated the intent of the rule is to prevent just this sort of action, which is commonly referred to as walking
to water. Mr. Shimmin stressed that it is not unusual hardship to live with the water rights you have. Mr. Shimmin brought up the concern of setting a precedent. He noted that there
are dozens of wells along the Vernon Ridge that will request to move down the ridge to better water. He also noted that there are others throughout the basin that have the same concerns
as the Hardwick’s. Mr. Shimmin concluded his comments by stating that granting the variance would be the same as repealing the three-mile rule. Ms. Benson offered a rebuttal to the
comments of Mr. Shimmin. She noted that there was no mention of District Rule 6 until the third application. She also mentioned that Mr. Hardwick had submitted a request for a variance
from Rule 6 and that this hearing concerns the Commission Rules. Ms. Benson argued that Mr. Shimmin set the precedent for this type of application when he represented the Town of Arapahoe’s
variance request last year. In response to a question of Commissioner Bledsoe, Ms. Benson stated that there will be a 0.001 foot decline per year for the Hay’s livestock well and no
impact on the nearby springs. She also clarified an earlier answer for Commissioner Valdez by saying that conversations with previous objectors had been just that, conversations and
no waivers of claim to injury have signed. Mr. Keith Vander Horst speaking for staff said that the information presented fairly represents most of the information provided in his memo
to the Commission. He noted that item e, on page 3 of his memorandum identifies a decline in the static water level from 124 feet when the well was constructed to 146 feet today, resulting
in a decline in production from the well. He also mentioned that this decline in the water table is noticed throughout the Basin and could have an impact on the well casing and integrity