DWR_3347722

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 8/18/2006
• Subject: MEETING MATERIALS

2006-8-7-PacketMemo.PDF
AG Report2006-08-18.docATTORNEY GENERAL’S REPORT

Cases involving the Colorado Ground Water Commission
August 18, 2006

The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission.

Reinaldo gallegos, et al. Case No. 03CV1335 Designated Basin: Upper Crow Management District: Before: Hon. Roger A. Klein, Weld County District Court ; Colorado Supreme Court Attorney:
Alex Davis
Subject: The Gallegos family requested a hearing to determine whether administration and curtailment is required of the wells and junior surface water rights along Crow Creek to satisfy
the Gallegos Family’s senior surface water right. At its August, 2003 meeting the Commission affirmed its Hearing Officer and concluded that the Commission has no jurisdiction over
surface rights, and is not required to administer the basin based on the priority system.

On September 26, 2003 the Gallegos family appealed the Commission’s decision to District Court, and also brought an additional action against the State Engineer in his capacity as the
administrator of surface rights. Assistant Attorney General Alexandra Davis is handling the latter litigation.

In the Commission litigation, we filed a Motion with the Court, asking that the Court notify and join all well permit holders who might be adversely affected if the Court were to call
out permit holders, based on the Gallegos’ decreed surface right.

In a decision which we received on February 11, 2004, the Court agreed with us that junior well permit holders might be adversely affected, and therefore required them to be joined in
the litigation.

Status: The Plaintiffs amended their complaint to include junior well permit holders. They served those parties, who retained attorneys and filed responses to the complaint. The case
against the State Engineer is being held in abeyance, pending a decision in the case against the Commission. The Plaintiffs filed a Motion asking the Court to rule, as a matter of law,
that their surface rights are entitled to protection from pumping in the designated basins. Upon motion by Gallegos the Water Court held his ruling to be a final order. Gallegos’ appealed
the case to the Colorado Supreme Court and we cross-appealed. All pleadings have been filed, and Oral Argument is scheduled in the Supreme Court for September 12, 2006 at 9:00 a.m.

cherokee metropolitan District Case No. 98 CW 80 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Dennis Maes, Water Judge ; Colorado Supreme
Court Attorney: Jennifer Mele
Subject: Cherokee Metropolitan District filed a Motion in Water Court to interpret the terms of a stipulation that was entered into among the District, the Management District, and the
Commission. The provision of the Stipulation that is at issue here is the following:
“Cherokee shall use Cherokee Wells no. 1-8 only for supplying in-basin beneficial uses that discharge any unconsumed water back into the Upper Black Squirrel Designated Basin and for
emergency and backup purposes. Emergency and backup use shall include the inability to get sufficient supply from the Cherokee owned Sweetwater wells.”
Cherokee asserted that the State has not properly interpreted the terms of the Stipulation and it has filed a Motion with the Water Court to force compliance with its interpretation
of the Stipulation. Cherokee is saying that they are not able to get sufficient supply from their Sweetwater wells and they can therefore use the 8 wells. They say that this is an emergency
use as defined by the Stipulation. The State Engineer, after conferring with all parties to the Stipulation, including the attorney from this office who represented the Commission,
interpreted the language to allow the 8 wells to only be used temporarily, in an emergency involving the Sweetwater or other wells, rather than as a permanent source of supply.

Status: Ass’t Attorney General Alexandra Davis represented the Commission and the Court heard testimony on December 16 and 19, 2005. On March 16, 2006 the Court ruled in favor of the
Management District and the Commission. The Metropolitan District appealed the decision to the Supreme Court and all briefs have been filed. The case will be argued to the Court on
September 13, 2006. A contempt hearing is also being set in the Water Court on the final order of the Water Court, since the District claims Cherokee is in violation of the Water Court’s
Order, and continues to pump outside of the designated basin. That hearing will probably be set in early December.

WAYNE E. and frances g. booker Case No. 04-CV-2800 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Hon. David Gilbert, El Paso County District
Court Attorney: Pat Kowaleski
Subject: Objections by the District, Cherokee Metropolitan District, and Schubert Ranches to
applications to relocate the wells with Permit Nos. R-16265-FP, R-16271-FP, R-16272-FP, 27560-FP, and 27585-FP

Status: The Applicants appealed the Staff’s evaluation of their application and requested a
hearing before the Commission to obtain a variance from Commission Rules. The setting of a hearing before the Hearing Officer was postponed until after the variance request hearing.
The Commission denied the variance request at its February 21, 2003 meeting. A hearing in this matter was held on September 9, 2003. On September 17, 2003, the Hearing Officer issued
his Initial Decision and found as follows: (1) The applications are for changes of water right pursuant to section 37-90-111(1)(g), C.R.S. and Commission Rule 7; (2) According to Commission
Rule 7.3.2, there is no water available to move to the new well locations requested by the Applicant; (3) The Applicants’ request to be excluded from the requirement of including years
of non-use in their historic use analysis “for good cause” pursuant to Commission Rule 7.10.1 is denied; and (4) Because there is no water available to move, the applications are denied.
The Applicants filed Exceptions to the Hearing Officer’s Initial Decision, and by order dated June 15, 2004, the Commission upheld the Initial Decision. On July 15, 2004 the Applicants
appealed the Commission’s decision to the El Paso County District Court, and a 5-day trial has been set, to begin on December 28, 2006.

appeal of rules adopted by the upper black squirrel creek ground water management district Case No. [Unassigned] Designated Basin: Upper Black Squirrel Creek Management District:
Upper Black Squirrel Creek Before: El Paso County District Court Attorney: Pat Kowaleski
Subject: Cherokee, Meridian Ranch, Meridian Service, Paint Brush Hills and Woodmen
Hills Metropolitan Districts filed an appeal to the adoption of Rule Nos. 3, 17, 18, and 19 by the Upper Black Squirrel Creek Ground Water Management District.

Status: This is the same matter referred to in the previous item. After the Commission issued its Remand Order, the Applicants, on October 29, 2004, filed an appeal with the District
Court in El Paso County. The Commission filed a Motion to Dismiss the District Court action on the grounds that the Commission has not yet completed its review, and the matter is therefore
not ripe for an appeal to District Court. The District Court has put the matter on hold until the Hearing Officer and the Commission act on the remand to the Hearing Officer.

WOODMAN HILLS METRO DISTRICT Case No. 03-GW-20 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney:
Ginny Brannon
Subject: Woodmen Hills Metro District submitted three applications to appropriate ground water from the alluvial aquifer of the Black Squirrel Creek or its tributaries, through the
use of three surface ponds and for approval of a replacement plan. The Upper Black Squirrel Creek Ground Water Management District objected, contending that approval will result in
an adverse effect on vested rights in the Upper Black Squirrel Creek Designated Basin. On August 12, 2005, the Hearing Officer signed a Motion to Vacate the hearing that was scheduled
to begin on August 15, 2005. Due to new information about the acreage of the surface ponds, the application needed to be republished to include an accurate account of the number of
ponds and other areas that are subject to the Commission’s jurisdiction. Because Woodmen Hills is working out some issues pertaining to the replacement plan with Staff, Woodmen Hills
has yet to submit the applications.

paint brush hills metro district Case No. 05-GW-02, 03, 04 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer
Attorney: Ginny Brannon
Subject: In these consolidated cases, Paint Brush Hills: 1) applied for a replacement plan to allow the withdrawal of designated ground water from the Dawson aquifer (05GW02); and,
2) submitted two applications for changes of water rights to change permitted beneficial uses (05GW03, 05GW04). The Upper Black Squirrel Creek Ground Water Management District objected
to all three applications, contending that approval will result in an adverse effect on vested rights in the Upper Black Squirrel Creek Designated Basin. Staff later determined that
they need to republish an application for a determination of water right that the Replacement Plan in this case will ultimately serve. Accordingly, the hearing scheduled for July 19,
2005 was vacated. In addition, because the replacement plan cannot be considered before the Staff approves the change of use applications, the Hearing Officer deconsolidated the cases.

A hearing was set for June 23, 2006 on the change cases. However, Paint Brush filed a motion with the Hearing Officer on June 16, 2006 to vacate the prehearing conference due to Paint
Brush’s decision to amend the applications on the changes in use and the replacement plan. Accordingly, the Hearing Officer vacated the prehearing conference and a new one has not
yet been set.

HARMONY LAND AND CATTLE Case No. 05-GW-08 Designated Basin: Kiowa-Bijou Management District: Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon
Subject: Harmony Land and Cattle (“Harmony”) filed an objection to the Commission’s findings relating to Harmony’s application for a determination of water right. The Commission contended
that the annual amount of water available for allocation from the Denver aquifer was 4 acre-feet, while Harmony argued that it was 177 acre-feet. Once, however, Staff received information
on historic consumptive use, they recalculated the allocation for the water right and discovered that encroachment was not an issue as they had originally thought. Accordingly, Staff
issued the final permit and is waiting for Harmony to withdraw their objection, after which time, this case will be closed.

town of wiggins Case No. 05-GW-10, 11, 12, 13 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon
Subject: This application concerns changes in the location of wells and use of those wells to include municipal use. The objection was based primarily on the change in consumptive use
and the resulting alleged injury to vested rights. This case was scheduled for a Prehearing conference on October 7, 2005, but was postponed to begin on February 21, 2006 due to pending
settlement negotiations. Stipulations have now been reached and this case was closed on July 6, 2006.

pioneer irrigation district Case No. 05-GW-14 Designated Basin: Northern High Plains Attorney: Ginny Brannon Before: Jody Grantham, Hearing Officer
Subject: The Pioneer Irrigation District, Colorado Board, and certain owners of the Laird Ditch (“Pioneer”) have filed a Petition for Hearing with the Ground Water Commission. The Petition
seeks, among other things, a hearing to ascertain the accuracy of the current boundaries and descriptions associated with the Northern High Plains Designated Ground Water Basin (“Basin”)
for the purpose of excluding water that is allegedly tributary. In addition to de-designating the ground water, the petition seeks to require wells in the Northern High Plains Designated
Ground Water Basin to curtail pumping or, in some cases, cease pumping all together. Consequently, this Petition potentially injures the owners of over 4,300 wells located in the Basin
and all eight ground water management districts in the Basin. Accordingly, Staff filed a Motion for Joinder of Necessary Parties requesting that the Commission’s Hearing Officer require
Pioneer to serve notice to the potentially affected parties. The Hearing Officer denied the Motion for Joinder.

Pioneer filed a Motion for Summary Judgment requesting a determination that: 1) the Commission is bound by the RRCA Ground Water Model; 2) the designated basin includes ground water
that is tributary to the North Fork, and wells that are extracting tributary ground water are causing depletions to surface flows; 3) the Commission must notice a hearing to alter the
boundaries of the designated basin; and, 4) the administration and adjudication of the tributary water falls within the jurisdiction of the water courts. Because the public notice of
hearing was still out for publication and the deadline for objections had not yet passed, Staff filed a motion to defer their motion until all potential parties had an opportunity to
enter the case. The Hearing Officer granted this motion and Staff met with some of the opposers on November 15, 2005 for the purpose of coordinating a response.

The Objectors then filed a Motion to Dismiss based on the fact that these issues have been heard before and, because it raises a crucial threshold issue of law, any decision by the Hearing
Officer will be appealed to the Commission. To avoid duplication of efforts in two hearings, the Opposers filed a Motion to Re-refer the Motion to Dismiss to the Commission for the
limited purpose of obtaining a decision on the Motion. In addition, the Objectors filed a Motion to Conduct Discovery for the purpose of obtaining information necessary to respond to
the Applicant’s Motion for Summary Judgment.

In addition, Pioneer filed a motion for a determination from the Hearing Officer that they should not be required to reimburse the State Engineer for the costs associated with publishing
the hearing notice. On April 10, 2006, the Hearing Officer ruled that Pioneer is responsible for the payment of the publication costs and, on April 26th, 2006, Pioneer filed an appeal
to the Commission.

The Commission heard oral argument on the Motion to Dismiss at its May 19, 2006 meeting and dismissed the petition. Pioneer has appealed that decision to the district court. A hearing
on the publication costs will be held at the Commission’s August 18th meeting.

CHEROKEE METROPOLITAN DISTRICT Case No. 05-GW-15, 16, 17 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer
Attorney: Ginny Brannon
Subject: These cases involve appeals of denials of nine applications for the withdrawal of groundwater from the Upper Black Squirrel Designated Ground Water Basin. The denials are based
on Staff’s determination that, because the landowner consent statements were not signed, there is insufficient evidence to prove consent of the various landowners to allow for the withdrawal
of the waters underlying each landowners’ parcel. On September 8, 2005, Staff filed a motion to consolidate the three cases and a motion to join the property owners as parties. The
Hearing Officer granted the motion to consolidate but denied the motion for joinder based on the determination that a hearing needs to be held first to ascertain whether sufficient
evidence of deemed consent can be provided by Cherokee.

Cherokee filed a motion for determination of threshold issue of law, contending that the leases granted the lessees the right to Denver Basin ground water. Staff responded that the
underlying decrees limited the water right to alluvial water and that the leases could not grant water rights beyond those specified in the underlying decrees. Staff then filed a motion
for determination of question of law contending that, at the time the leases were conveyed, inchoate rights based on land ownership did not exist within the designated basins. The Hearing
Officer ruled in favor of the District, holding that the leases do grant rights to apply for Denver Basin ground water underlying the relevant parcels. The Hearing Officer then proceeded
to vacate the hearing and close the case. Because the issue of landowner consent has not yet been resolved and there are existing water right holders that have determinations or well
permits for the same Denver aquifer water that Cherokee is claiming, Staff then filed a motion for clarification of these issues for the purpose of bringing them before the Commission
on appeal. A hearing on the motion for clarification will likely be held at the Commission’s next meeting in November.

MERIDIAN SESRVICE METROPOLITAN DISTRICT Case No. 06-GW-04 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer
Attorney: Ginny Brannon
Subject: Meridian submitted two applications involving a change of beneficial use, a change in the place of use, and a change in the annual amount of water to be withdrawn. The Upper
Black Squirrel Creek Ground Water Management District objected contending that, among other things, Meridian has not provided detailed accounting that includes all past historical appropriations.
Meridian and the District reached a stipulation and, on May 16th, 2006, this case was closed.

ELLICOT SPRING RESOURCES Case No. 06-GW-06 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Ginny
Brannon
Subject: Ellicott Springs Resources submitted two applications to change the allowed beneficial uses of two determinations. The Upper Black Squirrel Creek Ground Water Management District
objected contending that, among other things, the Laramie-Fox Hills aquifer may be tributary to the alluvial aquifer in the location of the determinations. A hearing is scheduled for
August 7, 2006.

TRIPLE BAR RANCH Case No. 06-GW-07 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon
Subject: Triple Bar Ranch applied for a determination of water right to allow the allocation of designated ground water from the Laramie-Fox Hills aquifer underlying a 2,853 acre property.
The Upper Black Squirrel Creek Ground Water Management District objected, contending, among other things, that the application is speculative. A hearing has been set for September 6,
2006.

buick power Case No. 06-GW-08 through 06-GW-21 Designated Basin: Upper Big Sandy Management District: Upper Big Sandy Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon
Subject: These cases involve 14 applications to construct a well to appropriate ground water from the alluvium of Big Sandy Creek or its tributaries to be used for industrial and commercial
purposes to supply water for a power plant project. Staff received seven objections from the Upper Big Sandy Ground Water Management District, the Town of Limon, and others. The objections
are largely based on the contention that approval of the applications will result in the impairment of existing rights. Because there was an error in the publication of these applications
regarding the intended place of use, Staff republished the applications. Then, on July 20, 2006, Buick withdrew the applications due to outstanding issues concerning its agreement with
the owners of the land upon which the new wells would have been constructed. This case will soon be closed.

STEPHEN SCHNURR Case No. 06-GW-22 Designated Basin: Black Squirrel Creek Management District: Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon
Subject: Stephen J. Schnurr Living Trust (“Applicant”) submitted applications for determinations of water rights to allow the withdrawal of designated ground water from the Laramie-Fox
Hills, Arapahoe, and Denver aquifers underlying 139 acres, consisting of two noncontiguous tracts. The Upper Black Squirrel Creek Management District objected contending, among other
things, that the applications are speculative. A prehearing conference has been set for August 11, 2006.

6

8

AgendaAug06.doc

Determine quorum

Review and approval of agenda items

Approval of Minutes for Meeting of May 19, 2006

Report of the Executive Director by Hal Simpson

Hearing on rulemaking on proposed changes to the Colorado Ground Water Commission Rules of Procedure for all Adjudicatory Hearings, by Joseph Grantham

Hearing on Petitioners’ Exceptions to Hearing Officer’s Order Concerning Publication Costs and Submission of Publication Costs Payment, in the matter of the Senior Water Rights of the
Pioneer Irrigation District, Colorado Board and Laird Ditch located in the Northern High Plains Designated Ground Water Basins (Case No. 05-GW-14)

Tentative Hearing, upon receiving an opinion from the Attorney General’s office that a hearing is allowed prior to publication of the petition, on whether to proceed with publication
of the Petition to Create the Box Elder Creek Designated Ground Water Basin (Case No. 06-GW-23)

Staff Report by Keith Vander Horst

Report of the Attorney General by Ginny Brannon

District Reports:
Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Aaron Nein
W-Y GWMD by Jack Dowell
Arikaree GWMD by Roger Brenner
Plains and East Cheyenne GWMDs by Deb Daniel
Southern High Plains GWMD by Max Smith
North KiowaBijou GWMD by Robert Loose
Upper Black Squirrel GWMD by Tracy Doran
Upper Big Sandy GWMD by Dave Taussig
Lost Creek GWMD by Thomas Sauter
Republican River Water Conservation District by Stan Murphy

Old Business

New Business

Adjournment

NOTICE OF GENERAL MEETING OF THE
COLORADO GROUND WATER COMMISSION
May 19, 2006

Revised A G E N D A (cont.)

NOTICE OF GENERAL MEETING OF THE
COLORADO GROUND WATER COMMISSION

8:30 a.m., Friday, August 18, 2006

Double Tree Hotel
743 Horizon Drive
Grand Junction, CO 81506-3609
970-241-8888 or toll free 1-800-460-1488
(Block of rooms reserved for GWC thru 7/31/06 - rate of $62 for single)

A G E N D A

agendaAug06.PDF
AG-ReportAug06.PDF
Aug2006Enforcement Actions.docEnforcement Items and Actions

This quarter staff has been involved in an intensive effort to ensure that the State of Colorado meets its obligations pursuant to the Republican River Compact. Staff’s part in this
effort requires that we ensure that all large capacity wells within the Northern High Plains Republican River Drainage Basin are being used within the confines of their final permits.
This process requires a water commissioner, Dave Keeler, to visually inspect each large capacity well within the Northern High Plains. Upon identification of a violation, a “Show
Cause” letter is sent to the well owner identifying the violation. This letter allows the owner a ten day response period, if at the end of the ten days the violation continues, a
cease and desist order is issued subjecting the owner to fines in the amount of up to five hundred dollars for each day the cease and desist order is violated. This quarter staff prepared
four show cause letters. They are listed below along with the rest of the enforcement actions performed by staff this quarter:

Northern High Plains

Central Yuma GWMD:
-Bill Cure has been using a stock well in a commercial operation, and to supplement an irrigation well. Mr. Cure has been contacted by both GWC staff and Aaron nein of Central Yuma
GWMD. We are currently working with Mr. Cure to correct the violation.

-Robert Pariset has been using a irrigation well to irrigate illegally expanded acres. On July 6, 2006 Mr. Pariset reduced is acreage to the permitted amount. A field inspection will
be performed in August to ensure the Mr. Pariset remains in compliance.

Sandhills GWMD:
-Bill Cure has two irrigation wells that have been irrigating illegally expanded acres. A ten day show cause letter was sent to Mr. Cure. We have yet to receive a response. Staff is
currently preparing cease and desist orders.

Arikaree GWMD:
-John Cure has two irrigation wells that have been irrigating illegally expanded acres. A ten day show cause letter was sent to Mr. Cure. We have yet to receive a response. Staff
is currently preparing cease and desist orders.

Plains GWMD:
-Charles Schulte has been using an irrigation well to irrigate illegally expanded acres. A ten day show cause letter was sent to Mr. Schulte. We have yet to receive a response. Staff
is currently preparing a cease and desist order.

Upper Black Squirrel
-Staff received information that J.H. Nardis has been using a small cap well for purposes exceeding his domestic. Staff performed a field inspection which revealed that he is actually
in compliance. The matter has been closed.

Lost Creek
-Manuel Guardado has been using a domestic permit for commercial use. Staff is currently working with Mr. Guardado to correct the violation.

HearingOffReportAug06.PDF
Minutes-2nd '06.doc
MINUTES

SECOND QUARTERLY MEETING
COLORADO GROUND WATER COMMISSION
MAY 19, 2006

The Second Quarterly Meeting of the Colorado Ground Water Commission took place on May 19, 2006, at 1313 Sherman Street, Room 318, Denver, Colorado. Chairman Max Smith called the meeting
to order at 10:00 a.m. Marta Ahrens called the roll and determined that a quorum was present. Commission members present were Grant Bledsoe, Larry Clever, Dennis Coryell, Corey Huwa,
Robert Loose, Earnest Mikita, Doug Shriver, Max Smith, Hal Simpson, Russell George and Ted Kowalski. Commissioner Frank Jaeger was absent.

Review and Approval of Agenda Items - Commissioner Coryell moved, and Commissioner Mikita seconded, approval of the agenda.

Approval of Minutes for Meeting of February 17, 2006 - Chairman Smith asked if there were any corrections or additions to the Minutes of the February 17, 2006 meeting. Commissioner
Clever moved to accept the Minutes; the motion was seconded by Commissioner Loose and carried unanimously.

Report of the Executive Director by Hal Simpson – Mr. Simpson welcomed Doug Shriver to the Commission. Commissioner Shriver is a potato farmer and very active in water matters in the
San Luis Valley. Mr. Simpson also introduced Mr. Keith Vander Horst as new team leader of the Designated Basins Branch.

Mr. Simpson reported on the following current legislation:
Long Bill - replacement of $3.2 million dollars of cash funds from the General Fund was approved, resulting in well permit fees being reduced from $480 to $100
Received 11.5 new FTEs to deal with additional ground water administration responsibilities in the South Platte and Rio Grande basins - 4.5 well commissioners for the South Platte Basin
and seven additional technical staff in the Rio Grande Basin to administer rules requiring meters on non-exempt wells
Received $50K increase in mileage appropriation to operate state vehicles
Legal services were increased approximately $59K to deal with the additional legal services workload
Received additional lease space to deal with new and growing staff in Glenwood Springs
House Bill 1124, Rotational crop management - has been approved and will allow fallowing as an alternative to permanently drying up agricultural lands

With regard to water supply conditions in the state, the majority of the basins except the Rio Grande and San Juan, were above average on April 1; the May 1 forecast showed that all
basins were below average in snowpack/water content. The call on the South Platte yesterday was an 1866 call, and today it moved up to 1871, but is still very senior. Mr. Simpson