DWR_3364087

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 11/3/2017
• Subject: MEETING MATERIALS

AG Report2017-11-3.docxATTORNEY GENERAL’S REPORT

ATTORNEY GENERAL’S REPORT
Cases involving the Colorado Ground Water Commission
November 3, 2017
The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of October 19, 2017.
cherokee metropolitan district
Case No. 08-GW-71
13SA330</w:t></w:r></w
Designated Basin: Upper Black Squirrel Creek
Management District: Upper Black Squirrel Creek
Before: Jody Grantham, Hearing Officer
Attorney: Michael Toll
Subject: An application for approval of a replacement plan to make new appropriations from the alluvial aquifer within the basin. Objections were submitted by the District, along with
four other water users in the basin. A hearing was held for two weeks in Denver beginning on June 8, 2009 during which the Applicants completed their initial presentation and the objectors
began their presentations. An additional week of hearing scheduled for August 3 through 7, 2009 was vacated following a ruling from the Division 2 Water Court regarding Cherokee’s
use of some of its wells, subject to further negotiations and amendment of the proposed replacement plan. This case was consolidated with change cases 08GW78 and 09GW15, and the trial
was set to continue in January 2010.
Status: In November of 2009, the Upper Black Squirrel Creek Ground Water Management District filed in district court, in Case No. 98CW80, for a declaratory judgment asking the court
to determine whether under a 1999 Stipulation Cherokee is required to use its waste water as recharge for the basin or if that waste water can be claimed as replacement credit under
a replacement plan. On June 17, 2013 the Court found that neither Cherokee nor Meridian is prohibited from claiming wastewater return credits for its replacement plan. UBS filed an
appeal on December 18, 2013. The Supreme Court upheld the decision of the District Court under the 1999 Stipulation, but included in the decision ambiguous language as to whether Cherokee
can use effluent as a source of replacement water in a replacement plan. Staff has not heard from Cherokee as to how they plan to proceed with the application still pending before
the Hearing Officer.
cherokee metropolitan district
Case No. 08-GW-78 09-GW-15</w:t></w:r></w
Designated Basin: Upper Black Squirrel Creek
Management District: Upper Black Squirrel Creek
Before: Jody Grantham, Hearing Officer
Attorney: Michael Toll
Subject: Applications to change the type and place of use of wells. Objections were submitted by the District and other water users in the basin. Both cases were consolidated with
08GW71.
Status: See above.
meridian service metro district
Case No. 09-GW-11
Designated Basin: Upper Black Squirrel
Management District: Upper Black Squirrel
Before: Jody Grantham, Hearing Officer
Attorney: Michael Toll
Subject: Application for a change of water right. Two parties filed objections.
Status: The hearing set for February 25 and 26, 2010 has been stayed because the water rights to be changed were for use in the replacement plan in 08GW71. The matter is stayed pending</
resolution of the issues in Case No. 98CW80 as described above for Cherokee Metro District’s replacement plan.
Gallegos, Reinaldo, et al
Case No. 03-GW-06
03CV1335</w:t></w:r></w
15SA118</w:t></w:r></w
Designated Basin: Upper Crow Creek
Management District:
Before: Supreme Court
Attorney: Pat Kowaleski
Subject: Petition to de-designate portions of the Upper Crow Creek Designated Ground Water Basin.
Background: The petitioners originally sent letters to the State Engineer in 2002 and 2003 seeking curtailment of wells within the Basin. The State Engineer declined to curtail wells
and the petitioners appealed the issue of the Commission’s jurisdiction over surface water rights first to District Court and eventually to the Supreme Court. The Supreme Court held
that the Commission has jurisdiction over surface water rights only to the extent the holder of surface rights seeks to change a boundary of a designated basin, in which case the surface
rights owner must show, using information that was not before the Commission at the time of designation, that pumping of the designated ground water has more than a de minimis effect
on the surface rights and is causing injury to those rights. The matter was remanded to the Commission, and this petition to de-designation a portion of the designated basin was filed
with the Commission on August 11, 2010.
Family filed an appeal of that order to the On June 19, 2017, the Supreme Court upheld the Commission’s decision that Gallegos had failed to prove that its water rights had been injured
and that it was entitled to have the boundaries of the Upper Crow Creek Designated Basin should be changed. On July 3, 2017, Gallegos filed a Petition for Rehearing with the Supreme
Court, which was denied. The decision of the Supreme Court has become final, and this case can be closed.
<
FRONT RANGE RESOURCESCase No. 13-GW-7
15CV30493</w:t></w:r></w:p><w:p w14:paraId="75B9903C" w14:textId="30A8A844" w:rsidR="00567999" w:rsidRDefault="00567999" w:rsidP="005
Designated Basin: Lost Creek 16SA243</w:Management District: Lost CreekAttorney: Michael Toll & Pat Kowaleski
Subject: Front Range Resources filed for a replacement plan. Objections were filed by Equus Farms Inc., Lost Creek Land and Cattle Company, the Lost Creek Ground Water Management District
and Staff.
Status: The matter was dismissed by the Commission and appealed to the District Court where it was set for trial June 6-16, 2016. Defendants, including the Commission, filed a motion
dismiss the application on the grounds that it is speculative because there are no binding contracts with actual end users for the water. On May 26, 2016 the Court ruled that Front
Range Resources was seeking to appropriate and change water rights and that the anti-speculation doctrine does apply to the application. The Court further found that Front Range Resources’
existing contracts were not binding and do not constitute obligations to provide water, and that the proposed replacement plan did not detail how or if water would be used on land owned
by Front Range Resources. <Front Range Resources filed a notice of appeal with the Supreme Court on September 2, 2016, on the issue of speculation and whether the District Court erred
in determining the Designated Ground Water Rules require that water rights be legally available for use in replacement plans in order to be included in replacement plan application.
On September 19, 2016 Lost Creek Land and Cattle, Equus Farms and the Lost Creek Ground Water Management District filed a notice of cross appeal. Briefing has concluded and the case
is waiting to be assigned a date for oral argument. The Ground Water Commission is not participating in this appeal. <
WOODMEN HILLS METRO DIST. Case No. 03-GW-20
Designated Basin: Upper Black Squirrel
Management District: Upper Black Squirrel
Attorney: Philip Lopez
Subject: Application for a replacement plan for depletions resulting from the pumping of 16 wells. Objections were filed by the Upper Black Squirrel Creek Ground Water Management District,
Wayne E. Booker Revocable Living Trust and the Frances G. Booker Revocable Living Trust, Dan Farmer, Joe Farmer, Jr., Jerry Farmer, Teresa Farmer, Edna Farmer and the Farmer Family
Pipeline Company and Staff. This application is technically a republication required by the hearing officer in 2005 to include additional structures to the replacement plan filed in
2003 and therefore the original case number was used.
Status: The applicant filed a motion to postpone the hearing that was set for October 31, 2016 in order to include additional structures causing depletions and the concept of using
recharge facilities in its replacement plan. A <five day hearing is set for December 4, 2017. <Applicant filed their 26(a)(2) expert disclosures on May 17, 2017, and supplemental
disclosures on June 19, 2017. Staff filed 26(a)(2) expert disclosures on August 14, 2017. No other opposers filed 26(a)(2) expert disclosures. Parties filed pre-hearing statements
on October 18, 2017. Parties appear to be on track for hearing.<
STRASBURG SANITATION & WATER DISTRICT Case No. 16-GW-1
Designated Basin: Kiowa Bijou
Management District: North Kiowa Bijou
Attorney: Michael Toll
Subject: Objection by the applicant to the requirement that the well be subject to final permitting requirements and to the reduction of the annual appropriation upon issuance of the
final permit for the well with permit no. 2642-F. < <
Status: This matter in conjunction with the Kiowa Water & Wastewater Authority, case no. 16GW2, is set for a four day hearing scheduled to begin on May 22 – 25, 2017. The hearings
are set back-to-back so that the hearing in 16GW2 will begin when the hearing in this case ends. < <The applicant filed a motion for summary judgment on August 23, 2016, seeking a determination
from the Commission that the original permit issued for the subject well in 1960 is the final permit and therefore the requirements of § 37-90-107, i.e. issuance of a final permit based
on actual beneficial use of the well, do not apply. Staff argued in its response that all wells, including the subject well, are subject to diversion limits based on actual beneficial
use. The Hearing Officer denied the applicant’s motion. <Staff and Strasburg reached a settlement, agreeing that the maximum amount of water Strasburg put to beneficial use was 15.4
acre feet, but reserving Strasburg’s right to appeal the denial of its Motion for Summary Judgment. Strasburg filed its Notice of Appeal on May 30, 2017. Oral argument before the
Ground Water Commission will be held at the November 3, 2017 meeting.
KIOWA WATER & WASTEWATER AUTHORITY Case No. 16-GW-2
Designated Basin: Kiowa Bijou
Management District: North Kiowa Bijou
Attorney: Michael Toll
Subject: Objection by the applicant to the requirement that the well be subject to final permitting requirements and to the reduction of the annual appropriation upon issuance of the
final permit for the well with permit no. 2794-F. <
Status: This matter in conjunction with the Strasburg Sanitation & Water District, case no. 16GW1, is set for a four day hearing scheduled to begin on May 22-25, 2017. The hearings
are set back-to-back so that the hearing in this case will begin after the hearing in 16GW1 ends. The applicant filed a motion for summary judgment on August 23, 2016, seeking a determination
from the Commission that the original permit issued for the subject well in 1960 is the final permit and therefor the requirements of § 37-90-107, i.e. issuance of a final permit based
on actual beneficial use of the well, do not apply. Staff argued in its response that all wells, including the subject well, are subject to diversion limits based on actual beneficial
use. The Hearing Officer denied the applicant’s motion and because the applicant indicated it intended to offer evidence at trial as to intended future use of the well, on February
3, 2017 Staff filed a motion for summary judgment arguing that evidence considered by the Commission must be limited to evidence of the extent of actual beneficial use of the water
and that evidence of future projected water demand is not relevant for the purpose of issuance of the final permit. The Hearing Officer denied Staff’s Motion, holding that the great
and growing cities doctrine applies to Kiowa’s final permit, and that the hearing should proceed to hear evidence of Kiowa’s future projected water use.< A hearing before the Hearing
Officer was held on May 22, 2017. On June 9, 2017, the Hearing Officer entered an Initial Decision holding that the maximum amount obtainable through the final permitting process for
Kiowa’s well is 132.5 acre-feet per year. <Kiowa filed its Notice of Appeal on July 6, 2017. Oral argument before the Ground Water Commission will be held at the November 3, 2017
meeting.
Meridian Service Metropolitan District Case No. 16-GW-05
Designated Basin: Upper Black Squirrel
Management District: Upper Black Squirrel
Attorney: Michael Toll
Subject: Petition for determination of jurisdiction pertaining to surface water in Pond B and Pond C. < <
Status: This matter was filed on December 16, 2016 and no deadlines have been set. Upper Black Squirrel Creek GWMD and Booker Trusts are the only parties that have expressed interest
in being parties, and Booker Trusts only to monitor the case. The Staff met informally with Upper Black Squirrel Creek GWMD and Meridian on May 15 to attempt to resolve all issues.
<The Staff’s understanding is that that all parties appear to agree that the subject water is designated ground water, and are working on drafting a stipulated proposed order of the
Ground Water Commission.
HUTTON EDUCATIONAL FOUNDATION V. REIN, ET AL. Case No. 15CW3018
Designated Basin: Northern High Plains
Management District:
Attorney: Chad Wallace, Pat Kowaleski
Subject: Lawsuit filed by the Hutton Educational Foundation in an effort to make the State Engineer administer designated ground water rights and surface rights together for the purpose
of compact compliance under the Republican River Compact. Complaint also alleges that SB-52, which revised 37-90-106 to limit how designated basin boundaries may be modified, and the
Colorado Groundwater Management Act of 1965, are unconstitutional. The Ground Water Commission filed a Motion to Intervene and an Answer to the Hutton Complaint on December 16, 2015
and such Motion was granted on January 18, 2016.
Status: The Commission filed a motion to dismiss the second and third claims in which Hutton asserted that the Management Act and SB-52, amending the Act, were unconstitutional. The
water court agreed and dismissed the second claim and part of the third claim. The water court held that it does not have jurisdiction over designated ground water and that the Commission
must first determine whether designated ground water is implicated, and therefore the issue was not ripe. Hutton sought certification of the dismissal for appeal to the Colorado Supreme
Court. The trial court certified its order of dismissal for appeal and stayed the remaining claims until the appeal is resolved. Hutton has identified the issues for appeal to include
the trial court’s dismissal and the underlying question of whether SB 10-52, amending the Management Act, is unconstitutional. Some of the defendants, joined by the Commission, filed
a motion with the Supreme Court to limit the issues on appeal to the dismissal, and to exclude any arguments on the constitutionality of Management Act statutes. The Supreme Court
granted the motion to limit the appeal to the water court’s dismissal. Briefing on the appeal is now completed. <The Supreme Court oral argument is set for November 14, 2017.
LOST CREEK DAIRY, LLCCase Nos. 17GW02 and 03
Designated Basin: Lost Creek
Management District: Lost Creek
Attorney: Philip Lopez
Subject: Applications by Lost Creek Dairy for change of use of wells to add irrigation use. Objection filed by Lost Creek Ground Water Management District.
Status: Parties have reached settlement and the Hearing Officer has approved the stipulations. The Hearing Officer has remanded the cases back to staff and the case has been closed.<
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AG Report2017-11-3.pdfATTORNEY GENERAL’S REPORT
ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 3, 2017 The listing below summarizes matters in which the Office of the Attorney General represents
the Colorado Ground Water Commission as of October 19, 2017. CHEROKEE METROPOLITAN DISTRICT Case No. 08-GW-71 13SA330 Designated Basin: Upper Black Squirrel Creek
Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Michael Toll Subject: An application for approval of a replacement plan to make
new appropriations from the alluvial aquifer within the basin. Objections were submitted by the District, along with four other water users in the basin. A hearing was held for two
weeks in Denver beginning on June 8, 2009 during which the Applicants completed their initial presentation and the objectors began their presentations. An additional week of hearing
scheduled for August 3 through 7, 2009 was vacated following a ruling from the Division 2 Water Court regarding Cherokee’s use of some of its wells, subject to further negotiations
and amendment of the proposed replacement plan. This case was consolidated with change cases 08GW78 and 09GW15, and the trial was set to continue in January 2010. Status: In November
of 2009, the Upper Black Squirrel Creek Ground Water Management District filed in district court, in Case No. 98CW80, for a declaratory judgment asking the court to determine whether
under a 1999 Stipulation Cherokee is required to use its waste water as recharge for the basin or if that waste water can be claimed as replacement credit under a replacement plan.
On June 17, 2013 the Court found that neither Cherokee nor Meridian is prohibited from claiming wastewater return credits for its replacement plan. UBS filed an appeal on December
18, 2013. The Supreme Court upheld the decision of the District Court under the 1999 Stipulation, but included in the decision ambiguous language as to whether Cherokee can use effluent
as a source of replacement water in a replacement plan. Staff has not heard from Cherokee as to how they plan to proceed with the application still pending before the Hearing Officer.
CHEROKEE METROPOLITAN DISTRICT Case No. 08-GW-78 09-GW-15 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody
Grantham, Hearing Officer Attorney: Michael Toll 2 Subject: Applications to change the type and place of use of wells. Objections were submitted by the District and other water
users in the basin. Both cases were consolidated with 08GW71. Status: See above. MERIDIAN SERVICE METRO DISTRICT Case No. 09-GW-11 Designated Basin: Upper Black Squirrel Management
District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Michael Toll Subject: Application for a change of water right. Two parties filed objections. Status:
The hearing set for February 25 and 26, 2010 has been stayed because the water rights to be changed were for use in the replacement plan in 08GW71. The matter is stayed pending resolution
of the issues in Case No. 98CW80 as described above for Cherokee Metro District’s replacement plan. GALLEGOS, REINALDO, ET AL Case No. 03-GW-06 03CV1335
15SA118 Designated Basin: Upper Crow Creek Management District: Before: Supreme Court Attorney: Pat Kowaleski Subject: Petition to de-designate portions of the Upper Crow
Creek Designated Ground Water Basin. Background: The petitioners originally sent letters to the State Engineer in 2002 and 2003 seeking curtailment of wells within the Basin. The
State Engineer declined to curtail wells and the petitioners appealed the issue of the Commission’s jurisdiction over surface water rights first to District Court and eventually to
the Supreme Court. The Supreme Court held that the Commission has jurisdiction over surface water rights only to the extent the holder of surface rights seeks to change a boundary
of a designated basin, in which case the surface rights owner must show, using information that was not before the Commission at the time of designation, that pumping of the designated
ground water has more than a de minimis effect on the surface rights and is causing injury to those rights. The matter was remanded to the Commission, and this petition to de-designation
a portion of the designated basin was filed with the Commission on August 11, 2010. Family filed an appeal of that order to the On June 19, 2017, the Supreme Court upheld the Commission’s
decision that Gallegos had failed to prove that its water rights had been injured and that it was entitled to have the boundaries of the Upper Crow Creek Designated Basin should be
changed. On July 3, 2017, Gallegos filed a Petition for Rehearing with the Supreme Court, which was denied. The decision of the Supreme Court has become final, and this case can be
closed. 3 FRONT RANGE RESOURCES Case No. 13-GW-7
15CV30493 Designated Basin: Lost Creek 16SA243 Management District: Lost Creek Attorney: Michael Toll & Pat Kowaleski Subject: Front Range Resources filed for a replacement
plan. Objections were filed by Equus Farms Inc., Lost Creek Land and Cattle Company, the Lost Creek Ground Water Management District and Staff. Status: The matter was dismissed
by the Commission and appealed to the District Court where it was set for trial June 6-16, 2016. Defendants, including the Commission, filed a motion dismiss the application on the
grounds that it is speculative because there are no binding contracts with actual end users for the water. On May 26, 2016 the Court ruled that Front Range Resources was seeking to
appropriate and change water rights and that the anti-speculation doctrine does apply to the application. The Court further found that Front Range Resources’ existing contracts were
not binding and do not constitute obligations to provide water, and that the proposed replacement plan did not detail how or if water would be used on land owned by Front Range Resources.
Front Range Resources filed a notice of appeal with the Supreme Court on September 2, 2016, on the issue of speculation and whether the District Court erred in determining the Designated
Ground Water Rules require that water rights be legally available for use in replacement plans in order to be included in replacement plan application. On September 19, 2016 Lost Creek
Land and Cattle, Equus Farms and the Lost Creek Ground Water Management District filed a notice of cross appeal. Briefing has concluded and the case is waiting to be assigned a date
for oral argument. The Ground Water Commission is not participating in this appeal. WOODMEN HILLS METRO DIST. Case No. 03-GW-20 Designated Basin: Upper Black Squirrel Management
District: Upper Black Squirrel Attorney: Philip Lopez Subject: Application for a replacement plan for depletions resulting from the pumping of 16 wells. Objections were filed by
the Upper Black Squirrel Creek Ground Water Management District, Wayne E. Booker Revocable Living Trust and the Frances G. Booker Revocable Living Trust, Dan Farmer, Joe Farmer, Jr.,
Jerry Farmer, Teresa Farmer, Edna Farmer and the Farmer Family Pipeline Company and Staff. This application is technically a republication required by the hearing officer in 2005 to
include additional structures to the replacement plan filed in 2003 and therefore the original case number was used. 4 Status: The applicant filed a motion to postpone the hearing
that was set for October 31, 2016 in order to include additional structures causing depletions and the concept of using recharge facilities in its replacement plan. A five day hearing
is set for December 4, 2017. Applicant filed their 26(a)(2) expert disclosures on May 17, 2017, and supplemental disclosures on June 19, 2017. Staff filed 26(a)(2) expert disclosures
on August 14, 2017. No other opposers filed 26(a)(2) expert disclosures. Parties filed pre-hearing statements on October 18, 2017. Parties appear to be on track for hearing. STRASBURG
SANITATION & WATER DISTRICT Case No. 16-GW-1 Designated Basin: Kiowa Bijou Management District: North Kiowa Bijou Attorney: Michael Toll Subject: Objection by the applicant
to the requirement that the well be subject to final permitting requirements and to the reduction of the annual appropriation upon issuance of the final permit for the well with permit
no. 2642-F. Status: This matter in conjunction with the Kiowa Water & Wastewater Authority, case no. 16GW2, is set for a four day hearing scheduled to begin on May 22 – 25,
2017. The hearings are set back-to-back so that the hearing in 16GW2 will begin when the hearing in this case ends. The applicant filed a motion for summary judgment on August 23,
2016, seeking a determination from the Commission that the original permit issued for the subject well in 1960 is the final permit and therefore the requirements of § 37-90-107, i.e.
issuance of a final permit based on actual beneficial use of the well, do not apply. Staff argued in its response that all wells, including the subject well, are subject to diversion
limits based on actual beneficial use. The Hearing Officer denied the applicant’s motion. Staff and Strasburg reached a settlement, agreeing that the maximum amount of water Strasburg
put to beneficial use was 15.4 acre feet, but reserving Strasburg’s right to appeal the denial of its Motion for Summary Judgment. Strasburg filed its Notice of Appeal on May 30, 2017.
Oral argument before the Ground Water Commission will be held at the November 3, 2017 meeting. KIOWA WATER & WASTEWATER AUTHORITY Case No. 16-GW-2 Designated Basin: Kiowa Bijou
Management District: North Kiowa Bijou Attorney: Michael Toll Subject: Objection by the applicant to the requirement that the well be subject to final permitting requirements and
to the reduction of the annual appropriation upon issuance of the final permit for the well with permit no. 2794-F. Status: This matter in conjunction with the Strasburg Sanitation
& Water District, case no. 16GW1, is set for a four day hearing scheduled to begin on May 22-25, 2017. The hearings are set back-to-back so that the hearing in this case will begin
after the hearing in 5 16GW1 ends. The applicant filed a motion for summary judgment on August 23, 2016, seeking a determination from the Commission that the original permit issued
for the subject well in 1960 is the final permit and therefor the requirements of § 37-90-107, i.e. issuance of a final permit based on actual beneficial use of the well, do not apply.
Staff argued in its response that all wells, including the subject well, are subject to diversion limits based on actual beneficial use. The Hearing Officer denied the applicant’s
motion and because the applicant indicated it intended to offer evidence at trial as to intended future use of the well, on February 3, 2017 Staff filed a motion for summary judgment
arguing that evidence considered by the Commission must be limited to evidence of the extent of actual beneficial use of the water and that evidence of future projected water demand
is not relevant for the purpose of issuance of the final permit. The Hearing Officer denied Staff’s Motion, holding that the great and growing cities doctrine applies to Kiowa’s final
permit, and that the hearing should proceed to hear evidence of Kiowa’s future projected water use. A hearing before the Hearing Officer was held on May 22, 2017. On June 9, 2017,
the Hearing Officer entered an Initial Decision holding that the maximum amount obtainable through the final permitting process for Kiowa’s well is 132.5 acre-feet per year. Kiowa
filed its Notice of Appeal on July 6, 2017. Oral argument before the Ground Water Commission will be held at the November 3, 2017 meeting. Meridian Service Metropolitan District
Case No. 16-GW-05 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Attorney: Michael Toll Subject: Petition for determination of jurisdiction
pertaining to surface water in Pond B and Pond C. Status: This matter was filed on December 16, 2016 and no deadlines have been set. Upper Black Squirrel Creek GWMD and Booker
Trusts are the only parties that have expressed interest in being parties, and Booker Trusts only to monitor the case. The Staff met informally with Upper Black Squirrel Creek GWMD
and Meridian on May 15 to attempt to resolve all issues. The Staff’s understanding is that that all parties appear to agree that the subject water is designated ground water, and are
working on drafting a stipulated proposed order of the Ground Water Commission. HUTTON EDUCATIONAL FOUNDATION V. REIN, ET AL. Case No. 15CW3018 Designated Basin: Northern High