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AG Report2004-02-24.docATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission February 24, 2004 The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission. EAGLE PEAK & PROSPECT VALLEY Case number: 96-GW-13, 99CV97 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: Pat Kowaleski Subject: Application for ten new well permits and changes for 39 existing wells, with a replacement plan and export out of the District. Status: At the November, 1998 meeting the Commission affirmed the Initial Decision of its Hearing Officer that it was not appropriate to hear Eagle Peak’s change applications because the Lost Creek District had not yet approved Eagle Peak’s export application. The Commission took the position that it could not approve an application involving export unless the export had been approved by the District. On January 14, 1999 Eagle Peak appealed this decision to the Adams County District Court and the Court concluded that the Commission no longer has jurisdiction of the matter and the Court will hear the dispute. At the August Commission meeting, the Commission directed the Staff to negotiate a settlement with the applicant if the parties were not able to reach a three way settlement, with the District, by September 30, 2003. No such settlement was reached, and the Staff sent its proposed stipulation to the Commission and to the District for comments. Minor modifications to the stipulation were made as a result of comments received from the District, and the stipulation has been signed. The Court approved the Stipulation, but it was challenged by the District, which asserted that the Commission could not agree to a Stipulation until after there had been a hearing on the applications. The Court disagreed, but allowed the District 15 days to request a hearing if the District felt that the Commission had not properly consulted and conferred with the District. The time for requesting the hearing passed without a request being filed by the District, and the Order of the Court is final. The case against the Commission is now concluded, although it continues against the other parties. EAGLE PEAK FARMS LTD Case Number: 98CV1727 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: Pat Kowaleski Subject: Denial by the Lost Creek District of Eagle Peak’s application for export Status: The District denied Eagle Peak’s application for export and when Eagle Peak appealed the decision to District Court, the Court dismissed the challenge because all parties had not been properly served. The Court of Appeals overturned this procedural decision and remanded the case to the District Court for a determination on the merits. The District filed a Petition for Rehearing with the Court of Appeals and the Petition for Rehearing was denied on February 3, 2000. The Lost Creek District filed a Petition for Writ of Certiorari with the Colorado Supreme Court on March 3, 2000 and the petition was denied on August 20, 2000. Motions affecting how this matter will proceed are pending before the District Court. This case is related to the case above, but the Commission is not a party to the case, since it involves the District’s decision to deny export. Reinaldo gallegos, et al. Case No. 03CV1335 Designated Basin: Upper Crow Management District: Before: Weld County District Court Attorney: Pat Kowaleski 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. Gallegos has also filed a Motion to join this case with the case against the State Engineer. 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. The Court also denied the Motion to join this case with the case against the State Engineer. Status: The junior well permit holders will be identified and joined in the action. PEORIA CROSSING, LLC. Case No. 02-GW-18 Designated Basin: Kiowa-Bijou Management District: North Kiowa Bijou Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Peoria Crossing filed an application for determination of water right to allow appropriation of designated ground water from the Laramie-Fox Hills aquifer underlying its 241.36 acre property. Peoria Crossing filed an appeal challenging the Staff’s calculation of a cylinder of appropriation for an existing well owned by LaFarge West, Inc., and the resulting decrease in the amount of allocation determined for the aquifer underlying Peoria Crossing’s property. Status: A hearing was held on October, 22, 2002. Peoria Crossing, LaFarge West and the Staff participated in the hearing. On December 2, 2002, the Hearing Officer issued his initial decision and found: (1) a cylinder of appropriation is not a water right, but rather a measure of the beneficial use that is the actual water right for a pre-213 well; (2) although LaFarge’s well was permitted and completed prior to implementation of the 1965 Act, the 1965 Act and modified prior appropriation doctrine apply to the determination of the final extent of LaFarge’s water right; (3) Staff’s calculation of the cylinder of appropriation for LaFarge’s well is incorrect; and (4) LaFarge does not yet have a final permit, and in order to proceed with the proper determination of the amount of water available to the Applicant, Staff must proceed with final permitting and notice of LaFarge’s water right in a separate proceeding. The Hearing Officer ordered that this matter is held in abeyance until Staff completes final permitting for LaFarge’s well, and ordered Staff to initiate final permitting within a reasonable time frame. Staff published the notice of intent to issue final permit on July 31, and August 7, 2003. LaFarge West filed a Motion to Vacate Order, which was subsequently withdrawn. On September 11, 2003, the Hearing Officer issued an order stating that the Initial Decision of the Hearing Officer is the Final Decision of the Commission. WAYNE E. and frances g. booker Case No. 02-GW-20 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic 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. The Applicant, District, Shubert Ranches and Staff participated in the hearing. 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. On November 17, 2003, the Applicants filed Exceptions to the Hearing Officer’s Initial Decision. Motion for Extension of Time to File Exceptions to the Initial Decision. This matter will be heard on appeal by the Commission at its May 2004 meeting. WOODMAN HILLS METROPOLITAN DISTRICT Case No. 03-GW-04 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic and Tanya T. Light Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to Woodman Hill’s application for a replacement plan to allow withdrawals from the Dawson aquifer underlying a 1648.25 acre overlying land area, in accordance with Determination of Water Right Nos. 129-BD and 133-BD. Status: On November 14, 2003 the District and the Applicant entered into a stipulation whereby the District withdrew its objection. The Hearing Officer vacated a hearing that had been set for November 19 and 20, 2003, and ordered Staff to proceed with the administrative steps necessary to process the application. Staff is processing the application accordingly. Additional information is needed from the Applicant to process the application, which Staff has requested. This case is pending. jerry r. landress Case No. 03-GW-07 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the Upper Black Squirrel Ground Water Management District to applications for determinations of water right to allow appropriations from the Laramie-Fox Hills, Dawson, Arapahoe, and Denver aquifers underlying a 119.34 acre property. Status: A hearing before the Hearing Officer was set for August 20, 2003. On August 12, 2003, the Staff filed a Motion for Summary Judgment to vacate the hearing and for an order holding that (a) The Applications are not speculative; (2) District Rules do not apply to the Applications. The District filed a response in opposition to the Motion on both issues. On September 29th, the Hearing Officer issued his Order finding: (1) The Applicant has satisfied the Commission’s criteria and the applications are not speculative; (2) As a matter of law, the applicability and effect of District rules is not relevant to the resolution of this determination of water right; and (3) The Motion for Summary Judgment is granted. The District filed exceptions to the September 29, 2003 Order. This matter was to be heard on appeal at the February 2004 Commission meeting, but the District withdrew its Appeal on February 5, 2004 according to a stipulation that it entered into with the Applicant. Consequently, the Initial Decision was made a Final Order of the Commission. This case is closed. falcon school district 49 Case No. 03-GW-08 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the Upper Black Squirrel Ground Water Management District to Falcon School District’s application for a replacement plan to allow withdrawals from the Dawson aquifer underlying a 40 acre overlying land area, in accordance with Determination of Water Right No. 307-BD. Status: A hearing before the Hearing Officer was set for November 14, 2003. On November 13, 2003, the Applicant and District entered into a Stipulation, and as a result, the District withdrew its objection. Consequently, the Hearing Officer vacated the hearing and ordered Staff to take necessary steps to finalize approval of the plan. This case is closed. jay harris Case No. 03-GW-09 Designated Basin: Northern High Plains Management District: Frenchman Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Appeal by Mr. Harris to the denial of his application to appropriate additional water and increase the acres irrigated by the well with Permit No. 6366-FP. Status: A hearing before the Hearing Officer was set for December 3 and 4, 2003. In response to additional modeling being performed, Staff re-evaluated the application and determined that the application could be given favorable consideration. As a result, on November 14, 2003, Staff filed a Motion to Reverse Staff’s Denial, To Publish Application and to Dismiss Appeal. The Hearing Officer granted the Motion to dismiss and remanded the matter back to Staff for publication. Case Closed. rmbg, llc. Case Nos. 03-GW-10 and 03-GW-11 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objections by the District to applications for determinations of water right to allow appropriations from the Dawson, Arapahoe, and Denver aquifers underlying a 69.72 acre property and objections by the District to applications for determinations of water right to allow appropriations from the Arapahoe, and Denver aquifers underlying a 977.19 acre property. Status: A hearing before the Hearing Officer was set for January 23, 2004. On January 16, 2004, the Applicant filed a Motion to Continue the Hearing, because this case involved similar issues (the anti-speculation doctrine and application of district rules to an application for determination of water rights) as contained in a Motion for Summary Judgment filed in Application of Landress, Case No. 03GW07. The Hearing Officer ordered that the hearing be continued. The hearing will be re-set on March 4, 2004. MEADOW LAKE AIRPORT DEVELOPMENT CORP. Case No. 03-GW-12 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya T. Light Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to applications for determinations of water right to allow appropriations from the Laramie-Fox Hills, Arapahoe and Denver aquifers underlying a 163 acre property. Status: On October 17, 2003 the Hearing Officer’s representative held a scheduling conference to set a hearing in this case. At the scheduling conference, Steve Shuttleworth, representing the applicant, stated that the applicant no longer owned the property that was the subject of the application, and that the application would be withdrawn. The Hearing Officer’s representative asked Mr. Shuttleworth to submit a letter to Staff or Staff’s attorney withdrawing the application. Despite repeated telephone calls and requests from the Attorney General’s office, Mr. Shuttleworth never withdrew the application. On January 2, 2004 Staff filed a Motion to Dismiss this case, and on January 21, 2004 the Hearing Officer dismissed the case. Staff returned the application to the applicant. This case is closed. WU-HSIEN HSIEH, YEN Y. HSIEH, MING H. HSIEH, GORDON H. LEE AND LUCIA H. LEE (JOSHUA TRUSTEES) Case No. 03-GW-13 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Tanya T. Light Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to the applications for determinations of water right to allow appropriations from the Laramie-Fox Hills, Arapahoe and Denver Aquifers underlying a 76.3 acre property. Status: On October 23, 2003 the applicants filed a Motion for Summary Judgment to vacate the hearing set for December 16, 2003 and for an order holding that (1) the applicants have satisfied the Commission criteria and the application is not speculative; (2) the applicants are not required to adhere to District rules during the resolution of the determination of water right application; (3) the District’s request to review additional details regarding Applicant’s plan for the water be denied; and (4) that the matter be remanded to Commission Staff to take administrative steps required to proceed with the issuance of the determination of water rights. On November 6, 2003 the District filed a response in opposition to the Motion on all issues. On November 7, 2003 the Staff filed a Response in Support of the Applicant’s Motion for Summary Judgment asserting that (1) under Landress and Bradbury, the Commission has the authority to establish criteria to determine whether an application is speculative, and since this application meets that criteria, the application is not speculative; and (2) Bradbury clearly holds that the applicants are not bound by District rules in the permitting process because the District’s jurisdiction begins after the Commission has issued a well permit, which comes after approval of a determination of water right. On November 24, 2003 the Hearing Officer issued his Order finding: (1) The applicants have satisfied the Commission’s criteria and the application is not speculative; (2) The Motion for Summary Judgment is granted; (3) As a matter of law, the applicability and effect of District rules is not relevant to the resolution of this determination of water right application; (4) This matter is remanded to Staff to take the administrative steps required to proceed with the issuance of the determination of water rights consistent with this order; and (5) The hearing set for December 16, 2003 is vacated. The District filed exceptions to the November 29, 2003 Order. This matter was to be heard on appeal at the February 2004 Commission meeting, but the District withdrew its Appeal on February 5, 2004 according to a stipulation that it entered into with the Applicants. Consequently, the Initial Decision was made a Final Order of the Commission. This case is closed. appeal of rules adopted by the upper black squirrel creek ground water management district Case No. 03-GW-14 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic 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: A prehearing conference was held on November 5, 2003. The Hearing Officer determined that the Commission has no jurisdiction to hear appeals of rules regarding small capacity wells, and therefore has no jurisdiction to hear the appeal of proposed District Rule 3. The hearing in this matter is set for March 17, 18 and 19, 2004. lafarge west, inc. Case No. 03-GW-15 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic and Tanya T. Light Subject: LaFarge West filed an objection to the approval of its final permit. LaFarge objected to the utilization of 11.3 acre-feet as the measure of beneficial use and requested 31 acre-feet be utilized as the appropriate measure. Status: A hearing was held on February 2, 2004. LaFarge and the Staff participated in the hearing. The Hearing Officer has not issued an initial decision as of the date of this report. ROBERT SOLBERG; HJK FAMILY PARTNERS, LTD, AND CORRAL RANCHES DEVELOPMENT CO. Case No. 03-GW-17 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya T. Light Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to applications for determinations of water right to allow appropriations from the Laramie-Fox Hills, Arapahoe, and Denver aquifers underlying a 185.3 acre property. Status: A hearing is set for June 4, 2004. john and rita field Case No. 03-GW-18 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to the application to change the allowed beneficial uses for Determination of Water Right No. 273-BD. Status: A hearing before the Hearing Officer is set for April 23, 2004. P:NR\H2O\GWC\02-21 AG Report.doc 8 3 AgendaFeb04.doc NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 8:30 a.m., Tuesday, February 24, 2004 Wray Community Hall, 245 W. 4th Street Wray, CO 80758 (970) 332-4431 A G E N D A Determine Quorum. Review and Approval of Agenda Items. Approval of Minutes for Meeting of November 21, 2003. Report of the Executive Director by Hal Simpson. Biennial Election of Chair and Vice-Chair. Hearing on the Appeal of the Hearing Officer’s Initial Decision (Case No. 03-GW-07) in the Matter of an Objection to the Jerry R. Landress Applications for Determination of Water Rights to Allow the Appropriation of Designated Ground Water from the Laramie-Fox Hills, Arapahoe, Denver and Dawson Aquifers by Richard LiPuma, Attorney for the Upper Black Squirrel Creek Ground Water Management District. Hearing on the Appeal of the Hearing Officer’s Initial Decision (Case No. 03-GW-13) in the Matter of an Objection to the Wu-Hsien Hsieh, et. al. Applications for Determination of Water Rights to Allow the Appropriation of Designated Ground Water from the Laramie-Fox Hills, Arapahoe and Denver Aquifers by Richard LiPuma, Attorney for the Upper Black Squirrel Creek Ground Water Management District. Hearing on a Request for a Variance to Designated Basin Rule 7.10.1 Relating to an Application by Steve and Ronda Hayes to Expand the Acres for the Well with Permit No. 11744-FP, by Mike Shimmin, Attorney for Well Owners. Rulemaking Hearing on Allowing Additional Appropriations on Existing Wells Completed in Multiple Aquifers in Designated Basins Where Ground Water is Available for Appropriation by Suzanne Sellers. Staff Report by Suzanne Sellers. Report of the Attorney General by Matthew Poznanovic. Management District Reports: a. Frenchman e. WY i. Southern High Plains b. Sand Hills f. Arikaree j. North KiowaBijou c. Marks Butte g. Plains k. Upper Black Squirrel d. Central Yuma h. East Cheyenne l. Upper Big Sandy Lost Creek Old Business. Discussion on the Issuance of New Appropriations Within the Republican River Basin by Hal Simpson. New Business. Adjournment. AGRulemakingOpiniondoc.docManagement and Control of Designated Ground Water, 2 CCR 410-1 Rulemaking Hearing This rulemaking hearing concerns rules which are being promulgated in order to allow additional appropriations for existing wells completed in multiple aquifers in designated basins, where ground water is available for appropriation. The proposed rule changes are attached to this document, along with the basis and purpose of the rules. These rules were promulgated pursuant to C.R.S. § 37-90-111(1)(h), which grants the Ground Water Commission the authority to adopt rules as necessary to carry out the provisions of the Ground Water Management Act, and the rulemaking provisions of the Administrative Procedure Act, C.R.S. § 24-4-101, et. seq. (the “APA”). The rules were submitted to the Secretary of State on December 19, 2003; were published in the January edition of the Colorado Register; and were submitted to the Department of Regulatory Agencies (“DORA”) in accordance with the APA. On January 23, 2004, DORA personnel reviewed the rules and determined that the proposed changes met DORA requirements. Those persons wishing to obtain party status in order to testify or comment on the rules at the February 24, 2004 hearing were required to submit a Notice of Party Status on or before January 30, 2004. No such notices were received. Comments and/or objections to the proposed rules were also due on January 30, 2004, and no comments or objections were received. AmendedAgendaFeb04.doc NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 8:30 a.m., Tuesday, February 24, 2004 Wray Community Hall, 245 W. 4th Street Wray, CO 80758 (970) 332-4431 AMENDED AGENDA Determine Quorum. Review and Approval of Agenda Items. Approval of Minutes for Meeting of November 21, 2003. Report of the Executive Director by Hal Simpson. Biennial Election of Chair and Vice-Chair. Hearing on a Request for a Variance to Designated Basin Rule 7.10.1 Relating to an Application by Steve and Ronda Hayes to Expand the Acres for the Well with Permit No. 11744-FP, by Mike Shimmin, Attorney for Well Owners. Rulemaking Hearing on Allowing Additional Appropriations on Existing Wells Completed in Multiple Aquifers in Designated Basins Where Ground Water is Available for Appropriation by Suzanne Sellers. Staff Report by Suzanne Sellers. Report of the Attorney General by Matthew Poznanovic. Management District Reports: a. Frenchman e. WY i. Southern High Plains b. Sand Hills f. Arikaree j. North KiowaBijou c. Marks Butte g. Plains k. Upper Black Squirrel d. Central Yuma h. East Cheyenne l. Upper Big Sandy Lost Creek Old Business. Discussion on the Issuance of New Appropriations Within the Republican River Basin by Hal Simpson. New Business. Adjournment. B&PRulechangeFeb04.doc STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE FOR CHANGING COMMISSION RULE 5.2.1 The provisions of Section 37-90-111(1)(h), C.R.S. provides the specific statutory authority for the adoption of the attached regulation. The Commission also adopted, in compliance with Section 24-4-103(4), C.R.S., the following Statement of Basis and Purpose. BASIS AND PURPOSE BACKGROUND Designated Basin Rule 5.2.1, the “1/2-mile rule” provides criteria for consideration in determining whether a permit to appropriate ground water will cause unreasonable impairment to existing large capacity wells. It provides that a new permit may not be granted within a 1/2-mile of an existing large capacity well unless a Waiver of Claim of Injury is obtained. The Commission Staff has historically only applied this rule to proposed and existing wells screened within the same aquifer(s). PURPOSE To amend this rule to add language that indicates that the “1/2-mile Rule” applies to large capacity wells screened within the same aquifer(s). The intent of this rule change is to clarify the current rule language to reflect the current application of this rule by the Commission Staff.