DWR_3364090

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 11/18/2016
• Subject: MEETING MATERIALS

15GW10_InitialDecision.pdf
Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer Einspahr, Case No. 15GW10 Page 1 of 12 Before the Ground Water Commission, Colorado 1313 Sherman St.,
Rm. 821, Denver, CO, 80203  HEARING OFFICER OR COMMISSION USE ONLY IN THE MATTER OF AN OBJECTION TO AN APPLICATION FOR REDUCTION IN PERMITTED ACRES AND AUTHORIZED ANNUAL
APPROPRIATION FOR PERMIT NO. 13530/16927 Applicant: Gayln Einspahr In the Northern High Plains Designated Ground Water Basin In Yuma County Case No. 15GW10 FINDINGS OF FACT,
CONCLUSIONS OF LAW AND INITIAL DECISION OF THE HEARING OFFICER On March 15, 2016, a hearing was held in the above captioned matter. Appearing on behalf of the Gayln Einspahr (Applicant),
was Russel Sprague, Esq. Appearing on behalf of Staff for the Colorado Ground Water Commission (Staff) was Jennifer Mele, Senior Assistant Attorney General. The hearing was conducted
pursuant to the Rules of Procedure for all Hearings before the Colorado Ground Water Commission, 2 CCR 402-3, the relevant requirements under the Ground Water Management Act, sections
37-90-101, et seq., C.R.S., (2015) and the Administrative Procedures Act, 24-4-101 et seq., C.R.S. (2015). Jurisdiction was accepted under the Administrative Procedures Act and section
37-90-111(g), C.R.S. (2015). The Applicant filed an application for a replacement permit for the well associated with Permit No. 12025-FP, which was received by Staff on February 20,
2015. Upon evaluation of the application, Staff determined that the lands actually being irrigated described as being in both Section 6 and Section 1 did not match the description
of irrigated acreage on the final Permit No. 12025-FP, which is actually all within Section 6. Staff required the Applicant to submit a change in description of irrigated acreage pursuant
to Rule 7.4.1 for Permit No. 12025-FP. Furthermore, because of the overlap in the description of irrigated acres with well Permit Nos. 13530-FP/16927-FP, Staff required a reduction
of 61 acres and 152.5 AF between the two wells within Section 6 and Section 1. The Applicant resubmitted the application for a replacement well permit for Permit No. 12025FP on March
6, 2015, without complying with Staff’s requirements. The Applicant instead changed the legal description of the Parcel On Which Well Will Be Located section of the application to
match the permitted description of acres irrigated as exist on Permit No. 12025FP. Staff rejected the resubmitted application and on March 30, 2015, the Applicant again submitted the
application for a replacement well permit, as well as an application for a change of Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer Einspahr, Case
No. 15GW10 Page 2 of 12 description of irrigated acres for Permit No. 12025-FP and applications for a reduction in acres and appropriation for Permit Nos. 12025-FP and 13530-FP/16927-FP
as requested by Staff. Staff granted the application for a change in description of irrigated acres and the application for a reduction in acreage and appropriation for Permit No.
12025-FP. Staff also reduced the acreage and appropriation as for Permit No. 16927-FP. The Applicant appeals the issuance of the reduction of acres and appropriation for Permit No.
16927-FP. Exhibits The following exhibits were offered and admitted into evidence: Applicant Exhibit Nos. 1 through 4, 6, 10, 11, 13, amended 14, 15 through 18, 21, 23, 25, 26, and
28 Staff Exhibit Nos. 1, 3 through 5, 11, 12, 14 through 29, and 31 – 35 Witnesses The Applicant called Gayln Einspahr and Ken Knox. Staff called Rick Nielsen. Findings of Fact
Permit No. 12025-FP 1. On June 6, 1967, Conditional Permit No. 12025-F was issued to Financial Investment Co. for 400 acre feet of water to irrigate 160 acres, described as the S
1/2 of the NW 1/4 and the N 1/2 of the SW 1/4 of Section 6, Township 4 North, Range 44 West, 6th P.M. (Staff Exhibit 14). 2. On January 31, 1985, Ceres Land Company filed a Statement
of Beneficial Use (SBU) claiming the well was first used on June 15, 1968, for the use of 400 acre feet of water for the irrigation of 160 acres described as the S 1/2 of the NW 1/4
and the N 1/2 of the SW 1/4 of Section 6, Township 4 North, Range 44 West, 6th P.M. The SBU claims that the well was first used on June 15, 1968, for the use of 400 acre-feet of water
at 1000 GPM for the irrigation of 160 acres described as the S1/2 of the NW1/4 and the N1/2 of the SW1/4 of Section 6, Township 4 North, Range 44 West, 6th P.M. The diagram on page
two of the SBU indicates the acreage irrigated as set forth in the legal description of the conditional permit and SBU. (Staff Exhibit 15). 3. Final Permit No. 12025-FP was issued
on June 21, 1990 for the irrigation of 160 acres described as the S 1/2 of the NW 1/4 and the N 1/2 of the SW 1/4 of Section 6, Township 4 North, Range 44 West, 6th P.M. (Staff Exhibit
5). Permit No. 13530-FP 4. On January 13, 1969, Permit No. 13530-F was issued to Jack Stahl for 400 acre-feet of water to irrigate 160 acres described as the W ½ of section 6, the
NE ¼ of the SW ¼ and Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer Einspahr, Case No. 15GW10 Page 3 of 12 portions of the SE ¼ of the SW ¼, the
NW ¼ of the SW ¼, the SW ¼ of the NW ¼, the SE ¼ of the NW ¼, the SW ¼ of the NE ¼, the NW ¼ of the SE ¼ and the SW ¼ of the SE ¼ of Section 6, Township 4 North, Range 44 West, 6th
P.M. Page 2 of the application depicts a circle with the pivot point located in the NE ¼ of the SW ¼ of Section 6. (Staff Exhibit 20). 5. On January 31, 1985, Ceres Land Company
filed a SBU claiming that the well was first used on June 15, 1970, in the amount of 400 acre-feet of water at 1200 GPM for the irrigation of 160 acres described as part of the E1/2
of the SW1/4, the S1/2 of the NE1/4, the SE1/4 and the SE1/4 of the NW1/4 of Section 6, Township 4 North, Range 44 West, 6th P.M. No diagram of irrigated acreage is provided on the
statement. (Staff Exhibit 21). 6. Testimony from Mr. Rick Nielsen on behalf of Staff indicates that during this time frame, if a SBU was filed with a description of irrigated lands
other than as permitted, the statement was considered a request to change the description of irrigated acres. Staff published this change in description of irrigated acres pursuant
to section 37-90-108(4) and on July 16, 1985, issued orders approving the request. (Staff Exhibit 22). 7. Final Permit No. 13530-FP was issued on June 21, 1990, for 400 acre-feet
of water for the irrigation of 160 acres described as parts of the SE1/4, the E1/2 of the SW1/4, the S1/2 of the NE1/4 and the SE1/4 of the NW1/4 of Section 6, Township 4 North, Range
44 West, 6th P.M. (Staff Exhibit 11). Staff testified they view this to be a 160-acre circle per the depiction on the application and being a portion of the existing acre circle as
shown in the aerial photography (Staff Exhibit 29). Permit No. 16927-FP 8. Permit No. 16927-F was issued to Ceres Land Company on February 23, 1973, as an increase of 105 acre-feet
for the irrigation of 42 acres (a duty of water of 2.5 acre-feet per irrigated acre) described as part of the E1/2 of the SW1/4, the W1/2 of the SE1/4, 20 acres in the NE1/4 and 20
acres in the NW1/4, all in Section 6, on well Permit No. 13530-F. (Staff Exhibit 25). The diagram on page 2 of the application depicts a circle with the pivot point located in the
NW1/4 of the SE1/4 of said Section 6. 9. The SBU submitted by Ceres Land Company on March 30, 1973, claims first use of the permit on March 1, 1973, for the irrigation of 42 acres in
the E1/2 of the SW1/4 and the W1/2 of the SE1/4 of Section 6. The diagram on page 2 of the SBU shows a circle with the pivot point located approximately in the center of the NW1/4
of the SE1/4 of Section 6 (Staff Exhibit 26). 10. Final Permit No. 16927-FP was issued on June 21, 1990, for the use of 105 acre-feet to irrigate 42 acres described as part of a circle
covering parts of the SE1/4, the E1/2 of the SW1/4, the S1/2 of the NE1/4 and the SE1/4 of the NW1/4 of Section 6, Township4 North, Range 44 West, 6th P.M. (Staff Exhibit 12). Staff
testified this is viewed as an enlargement of the 160 acre circle under Permit No. 13530-FP as represented by the existing 173-acre circle in Staff Exhibit 29. 11. On February 10, 1992,
the Yuma County Assessor notified the Office of the State Engineer that Gayln Einspahr was the owner of Section 6, Township 4 North, Range 44 West, 6th P.M. (Staff Exhibit 16). On
February 14, 1992, Staff sent the Applicant a letter requesting a change in ownership form be filed for, among others, Permit Nos. 12025-F, 13530-F and 16927 Findings of Fact, Conclusions
of Law and Initial Decision of the Hearing Officer Einspahr, Case No. 15GW10 Page 4 of 12 F, and notifying him that the final permit publication costs had not been paid. (Staff Exhibit
17). On March 5, 1992, Mr. Einspahr submitted Change in Ownership forms for Permit Nos. 12025FP, 13530-FP and 16927-FP. (Staff Exhibits 18, 23 and 27). On March 6, 1992, Staff received
payment for the final permit. (Staff Exhibits 19, 24 and 28). Mr. Nielsen testified that at the time final publication costs were paid by Mr. Einspahr, Staff sent him a copy of the
final permit, and Staff did not receive an objection to the description of irrigated acres contained within any of the final permits. 12. Staff testified that as originally permitted,
Well Permit Nos. 12025-FP, 13530-FP and 16927-FP were legally authorized to irrigate 362 acres with 905 acre-feet of water: 160 acres and 400 acre-feet under Permit No. 12025-FP, 160
acres and 400 acre-feet under Permit No. 13530-FP and 42 acres and 105 acre-feet under Permit No. 16927-FP. These wells are not authorized to commingle water on the irrigated lands.
Of the 362 acres authorized to be irrigated there are 70 acres located in the SE1/4 of the NW1/4 and the NE1/4 of the SW1/4 that are duplicated (see Staff’s Exhibit 29, the area both
in the square and inside the outer circle). 13. On January 31, 2013, Staff received an application for a permit to replace the well with Permit No 12025-FP. On March 13, 2013, a replacement
well permit was issued. No reduction in acreage was part of the terms and conditions in the issuance of this permit. It does however require irrigation in section 6 as originally
permitted. 14. Staff received an application for a replacement permit for the well associated with Permit No. 12025-FP on February 20, 2015. The application indicated the lands actually
being irrigated described as being in both Section 6 and Section 1 (Section 5.A of Staff Exhibit 4), did not match the description of irrigated acreage on the final permit 12025-FP,
which is all within Section 6 (Staff Exhibit 5). The permitted description of acres irrigated by the well associated with Permit No. 12025-FP overlapped with the permitted description
of acres irrigated with the well associated with Permit Nos. 13530-FP/16927-FP (See Staff Exhibit 29). As a result, Staff required the Applicant to submit a change in description of
irrigated acreage pursuant to Rule 7.4.1 for Permit No. 12025-FP. Furthermore, because of the overlap in the description of irrigated acres, Staff required a reduction of 61 acres
and 152.5 AF between the two wells (Staff Exhibit 32). 15. The letter from Staff informing the Applicant of these requirements noted that because the total number of acres that can
legally be irrigated by both wells totaled 301 acres (160 acres permitted to 12025-FP + 202 acres permitted to 13530-FP/16927-FP – 61 acres = 301 acres), the Applicant must “reduce
the number of acres individually permitted to 12025-FP and/or 13530-FP/16927-FP to a total of 301 acres”. (Staff Exhibit 32). 16. The Applicant resubmitted the application for a
replacement well permit for Permit No. 12025-FP on March 6, 2015, without complying with Staff’s requirements but changing the legal description of the Parcel on Which Well Will Be
Located to match the permitted description of acres irrigated on Permit No. 12025-FP. (Staff Exhibit 4). Staff responded with correspondence, dated March 9, 2015, again rejecting
the application for the replacement well and reiterating the suggestion that applications for a change of description of irrigated acres for Permit No. 12025-FP, and for a reduction
in acres and appropriation for 12025-FP and 13530FP/16927-FP, be submitted as a way to bring the use of the well into compliance with the permits. (Staff Exhibit 34). Staff noted
that a loss of three irrigated acres would occur since the Applicant is currently irrigating 304 acres (131 acre circle + 173 acre circle = 304 acres, see Findings of Fact, Conclusions
of Law and Initial Decision of the Hearing Officer Einspahr, Case No. 15GW10 Page 5 of 12 Staff Exhibit 32). Staff did invite other suggestions that the Applicant might have on how
to bring the well into compliance. (Staff Exhibit 34). 17. On March 30, 2015, the Applicant resubmitted the application for a replacement well permit, as well as an application for
a change of description of irrigated acres for Permit No. 12025-FP and applications for a reduction in acres and appropriation for Permit Nos. 12025-FP and 13530-FP/16927-FP along with
a letter from the Applicant’s attorney (Staff Exhibits 4, 31, 33 and 35). The March 30, 2015, letter from Applicant’s attorney notes that he is submitting the applications pursuant
to Staff’s recommendation (Staff Exhibit 31). The applications for reductions request a reduction of 29 acres and 72.5 AF for Permit No. 12025-FP and 32 acres and 80 AF for Permit
Nos. 13530-FP/16927-FP. 18. Staff issued a permit for a replacement well, and issued findings and a permit for the reduction of acres and appropriation for Permit Nos. 12025-FP and
16927-FP. For the well associated with Permit Nos. 13530-FP/16927-FP the reduction was applied to Permit No. 16927-FP based on its junior priority in relation to the two permits.
The Applicant was presently irrigating approximately 10 acres out of the 42 acres allowed to be irrigated under that permit. 19. Staff determined that the Applicant has historically
irrigated 304 acres between his two wells, a 131-acre circle with the well associated with Permit No. 12025-FP and a 173-acre circle with the well associated with Permit Nos. 13530-FP/16927-FP.
The well with Permit No. 12025FP and the well with Permit Nos. 13530-FP and 16927-FP were permitted to irrigate an overlapping area of land consisting of 70 acres. However, due to
an error in the original information provided to the Applicant, Staff only required a reduction of 61 acres between the wells and the permits as issued included this reduction. 20.
Staff testified that a reduction of 61 acres of irrigated land was required for the change in description of irrigated acreage in order to prevent a potential expansion of use and injury
to other water rights in the future. According to Staff, an expansion of use and injury was a risk because if a 61 acre reduction was not taken to reflect the actual legal permitted
use, the Applicant could potentially expand the number of acres he is allowed to irrigate in the future as a result of a subsequent change of use. 21. Staff testified that it required
an application to correct the description of irrigated acres for the well associated with Permit No. 12025-FP to make the permit consistent with what is actually occurring on the ground.
To conduct a proper analysis to make that change in irrigated acreage, Staff believes an analysis of what the Applicant can legally irrigate under that well is required. To properly
evaluate what the Applicant can legally irrigate under that well associated with Permit No. 12025-FP, Staff submits it must look at the well with which it has an overlapping legal description
of land to be irrigated and the existing need, given the Applicant’s other rights, which all contribute to define the subject rights and protect against future expansion of use. 22.
The Applicant argues that Staff’s review should be limited to the application for a replacement well for Permit No. 12025-FPP and any change in acres for that permit only. It is further
argued that once a change in description of acreage for Permit No. 12025 was deemed necessary by Rule 7.4.1 of the Rules and Regulations for the Management and Control of Designated
Ground Water, 2 CCR 410-1, Staff was limited to a review of whether the Applicant had a right to irrigate the acres he was seeking to irrigate under that permit and whether that Findings
of Fact, Conclusions of Law and Initial Decision of the Hearing Officer Einspahr, Case No. 15GW10 Page 6 of 12 irrigation would cause material injury to other appropriators. The
Applicant suggests that since the reduction of 29 acres in permitted acreage for 12025-FP occurred upon issuance of the replacement permit, no reduction can occur in the other permits.
(See Applicant’s Closing Brief, page 4). The Applicant further points to Staff’s testimony that had a third party owned the rights to Permits Nos. 13530/16927, a reduction would not
have been required for these permits. 23. These arguments ignore the fact that the full 61 acre reduction would have been required to be taken by Well Permit No. 12025-FP, as opposed
to 29 acres to Permit No. 12025-FP and 31 acres to Permit No. 16927-FP. The Applicant currently irrigates and has historically irrigated 304 acres. A reduction in his permitted acreage
by 61 acres between the two permits results in a loss of 3 irrigable acres from the Applicant’s current irrigation practices. The Applicant had a choice to make his illegal irrigation
practice legal; take all of the deduction from Permit 12025-FP or split the deduction between the two wells. 24. In order for the Applicant to obtain a replacement permit for the well
associated with Permit No. 12025-FP, Staff required a change in description of irrigated acres for that permit. In order to get a change in description of irrigated acres for that
permit, Staff required a reduction of a total of 61 acres and 152.5 AF. Staff did not require that the reductions be split between the two wells. Rather, Staff indicated that they
thought that the only way to allow the Applicant to continue to irrigate as he historically had was to split the reduction as they suggested, but welcomed other suggestions from the
Applicant. (Staff’s Exhibit 34). Staff’s letters of February 24 and March 9, 2015, do not require that the Applicant split the reductions, in fact they make it clear that the Applicant
can take the reduction with one or both wells. Staff’s letters do tell the Applicant what likely needs to be done to continue to irrigate in the fashion he desires, and the Applicant
opted to proceed in that fashion (while reserving its right to appeal the ultimate outcome in relation to Permit No. 16927). 25. Concerning the Applicant’s argument that actual irrigation
under Permit No. 12025 was always as it exists today and was the result of a clerical error the Hearing Officer finds: a. Based on testimony provided by the Applicant, since 1982-1983,
the well with Permit No. 12025-FP has been used to irrigate lands in both sections 1 and 6 of Township 4 North, Range 44 West, of the 6th P.M. The Applicant also testified that when
he began working on the property in 1982-1983, the existing well appeared to be the original well as drilled in 1968. He further indicated the only way to irrigate the land associated
with the well would be to irrigate in both sections 1 and 6 due to power supply issues. The Applicant further testified that due to the lay of the land (roads and perceived section
lines) a mistake could have been made when trying to locate section lines in the area. No eyewitness testimony as to actual irrigation practices prior to 1982 was provided. b. No
evidence in the form of aerial photographs from the 1960s or 70s can be located or was presented at trial. c. The 1968 Map and Statement for Water Well Filing, (Einspahr Exhibit No.
17), indicates an “area to be irrigated” by Permit No. 12025 as being different than that described in the permit application, with the irrigated acreage being approximately half in
Section 6 and half in the section immediately west of Section 6, which is Section 1, Township 4 North, Range 45 West of the 6th P.M., Yuma County, Colorado (“Section Findings of Fact,
Conclusions of Law and Initial Decision of the Hearing Officer Einspahr, Case No. 15GW10 Page 7 of 12 1”): The 1968 Map also includes a handwritten note, which is indicated in the
upperright of the above image, that states “See USGS map. Likely located in Sec. 1, T4N, R45W”. d. Applicant submitted evidence of a map (Einspahr Exhibit No. 14 as amended). Investigation
by the Hearing Officer has found the original of the map in the Denver Office confirming its development by the Division of Water Resources. No exact date of preparation can be located.
The map depicts the irrigated acreage as being in both sections 1 and 6. The map is what is known as a “Sepia” map. An original “Mylar” type base map has not been located. e. Recognizing
the evidence presented in “a” through “d” above however, the preponderance of the evidence in total, the final permits, the conditional permits and the SBUs, which are actual statements
from the owner of the well at the time stating how those wells are being used, reflect that between these two wells only 301 acres can be irrigated and in relation to Well Permit No.
12025-FP the irrigation was only occurring in section 6. When the final permits were at issue with the Applicant, no objection was made as to the legal descriptions of acres to be
irrigated by the wells. The Applicant did not contest location of acreage in 1992 when he was sent a copy of the final permit. Historic illegal use since 1982 does not make the use
legal in 2015. f. The application before the Commission for the conditional permit, as well as the conditional permit itself, the SBU and the final permit, only described the irrigated
acreage in Section 6. The irrigated acreage that the Applicant now claims was intended to be irrigated by the subject well was never before the Commission, was never legally noticed
to other water users as being claimed, and was never considered by the Commission as the land to be irrigated by the well associated with Permit No. 12025-FP. g. The irrigation that
has been occurring since 1982 under Well Permit No. 12025FP was illegal use under the terms and conditions of the permit. h. No clear or apparent evidence of a clerical error or a
scrivener’s error was presented and while the testimony of the Applicant indicates an error may have been made, it is pure speculation as to what might have occurred. On its face,
no clerical error can be found in the facts of the record. i. The statutory requirements for issuance of permits within designated basins clearly require reliance on the conditional
permit and the Statement of Beneficial Use in issuing the final permit under sections 37-90-107 & 108, C.R.S. (2015). Staff cannot simply ignore these documents in the event an owner
says they are not true. The statute is clear that the Commission cannot issue a final permit for an amount of water beyond that allowed in the conditional permit. (Section 37-90-108(3)(b)
C.R.S, (2015)). 26. The Applicant’s expert, Ken Knox, testified that it was improper for Staff to consider Permit Nos. 13530-FP/16927-FP in its analysis of Permit No. 12025-FP. His
argument is: In the evaluation of an application to change the irrigated acreage for Well Permit No. 12025-FP, it is correct and appropriate to limit the review of irrigated acreage
to the structure before the Commission only, without extension to neighboring wells or irrigated Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer Einspahr,
Case No. 15GW10 Page 8 of 12 acreage. Support for this limitation is found within Rule 7.4.1 itself, which in its entirety reads “An application to change the description of acres
may be approved if a right to irrigate the claimed number of acres is established pursuant to Sections 37-90-107 and 108, C.R.S., and the requested change will not result in any material
injury to the vested rights of other appropriators.” (emphasis added)“ The singularity of the words “application” and “a” do not provide allowance for Commission staff to extend their
analysis and review beyond the application under instant review. 27. If the Hearing Officer is to assume Mr. Knox’s interpretation is correct for the purposes of this case, then upon
receipt of the application for the replacement well for 12025-FP Staff would have no other choice upon discovery of the overlap between the relevant permits herein than to take the
full reduction in acreage from Permit No. 12025-FP. Staff, assuming that the Applicant would prefer to continue irrigating as he has been since 1982, made a reasonable suggestion to
the Applicant that instead of changing the Applicant’s historic practice completely, changes in irrigated acreage and resultant reductions could be taken in both areas of irrigation
and thereby reduce the impact to the irrigator to the greatest extent possible. 28. The Applicant argues that potential for injury is insufficient to establish material injury to other
appropriators in this instance. The Hearing Officer disagrees. Whenever a change in water right occurs, the potential for injury to the vested water rights of others must always be
considered. Failure to do so would lead to an absurd result where all changes of water rights could occur without consideration of the potential for injury to others. In this instance,
the total amount of land that could legally be irrigated under the final permits at issue prior to the change in irrigated acreage was 362 acres with 905 acre-feet of water: 160 acres
and 400 acre-feet under Permit No. 12025-FP, 160 acres and 400 acre-feet under Permit No. 13530-FP and 42 acres and 105 acre-feet under Permit No. 16927-FP. To allow the change to
occur without a reduction in acreage under 16927-FP could result in a potential increased draft on the underground reservoir in the amount of 80 AF per year above what was legally permitted
under all permits combined. With the aquifer in a mining situation and water levels decreasing, any increase in the potential draft on the underground reservoir must be considered and
addressed. Conclusions of Law 29. The legal authority and jurisdiction for the hearing is found in section 37-90-11(1)(g), C.R.S. (2015). 30. In as much as the Findings of Fact
can be considered Conclusions of Law they are fully incorporated as fully set forth herein. 31. The objection was accepted as being filed in a timely manner. 32. Proper notice of
the hearing was provided in accordance with sections 24-4-105 and 3790-111(1)(g), C.R.S (2015) and the Ground Water Commission’s Procedural Regulations, 2 CCR 402-3 on September 22,
2015. 33. The hearing was conducted in accordance with the State Administrative Procedures Act, sections 24-4-101, et seq., C.R.S. (2015) and the Ground Water Commission’s Procedural
Regulations, 2 CCR 402-3. Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer Einspahr, Case No. 15GW10 Page 9 of 12 34. Section 37-90-111(1)(c), C.R.S.
(2015) states that the Commission is empowered to “…[i]ssue permits for the construction of replacement wells. Any permits issued shall set forth the conditions under which a well may
be modified by a change of the well itself or the pumping equipment therefor, by the drilling of a replacement well, or otherwise, in order to make it possible for the owner of a well
to obtain the water to which such owner may be entitled by virtue of his original appropriation. 35. Section 37-90-111(1)(g) (2015) requires that “[u]pon application therefor by any
permit holder, to authorize a change in acreage served, volume of appropriation, place, time, or type of use of and by any water right, or of any well location, either conditional or
final, granted under the authority of the commission but only upon such terms and conditions as will not cause material injury to the vested rights of other appropriators. No such change