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<br />AG Report2003-08-15.docATTORNEY GENERAL’S REPORT <br /> <br />Cases involving the Colorado Ground Water Commission <br />August 15, 2003 <br /> <br />The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission. <br /> <br /> <br />EAGLE PEAK & PROSPECT VALLEY Case number: 96-GW-13, 99CV97 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: <br /> Pat Kowaleski <br />Subject: Application for ten new well permits and changes for 39 existing wells, with a replacement plan and export out of the District. <br />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 <br /> 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 <br /> had been approved by the District. On January 14, 1999 Eagle Peak appealed this decision to the Adams County District Court and, among other things, has requested that the District <br /> Court rule on the substance of the change applications, even though the Commission has not reviewed the substance of the applications. The Complaint also seeks unspecified damages <br /> against the State for impairment of Eagle Peak’s water rights. This Office filed an Answer to the complaint on February 12, 1999 and the record was certified on June 15, 1999. Motions <br /> were filed in June, 2002 and the Commission argued that the applications should not be heard by the Judge without input from the Commission and, at most, this matter should be remanded <br /> to the Commission for further proceedings. Eagle Peak has subsequently sold its water rights to Sweetwater Development, which is proposing to use the rights without a change in well <br /> location. The parties have been meeting, but there has been no resolution of the matter. The Motions which were filed in 2002 have been reactivated and should be decided by the Court <br /> soon. <br /> <br />EAGLE PEAK FARMS LTD Case Number: 98CV1727 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: Pat Kowaleski <br />Subject: Denial by the Lost Creek District of Eagle Peak’s application for export <br />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 <br /> 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 <br /> 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 <br /> 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 <br /> 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. <br /> <br />town of bennett Case No. 02-GW-02 Designated Basin: Kiowa Bijou Management District: North Kiowa Bijou Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic <br />Subject: Objection by the Management District to two applications for changes of determination <br />of water right to combine the allocations of two determinations of water right and to change the place of use and type of use in each determination. <br /> <br />Status: In response to a request by the District, the Hearing Officer issued an order that the <br />District Court’s Revised Order in the Bradbury case is relevant to this action, and the change sought in this action is merely a continuation of the determination that such water exists <br /> as stated in Judge Phelps order. A hearing before the Hearing Officer was held on November 7, 2002. After the hearing, the Hearing Officer issued the Initial Decision to approve the <br /> applications for changes of determination of water right. The District appealed the Initial Decision of the Hearing Officer and this matter was heard by the Commission at the May 2003 <br /> Commission meeting. On July 25, 2003, the Commission issued its Order to affirm the Initial Decision. <br /> <br />KENNETH POTTORFF Case No. 02-GW-14 Designated Basin: Northern High Plains Management District: Plains Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic <br />Subject: Objection by the District to the issuance of amended final permits and the <br />temporary change of use applications for 2 wells from irrigation to highway construction and irrigation. The amended final permits concern a claimed 320 additional approved acres put <br /> to use by both wells prior to August 5, 1977. The temporary change of use was approved by the Commission on May 2, 2002 and expired on December 31, 2002. <br /> <br />Status: At the prehearing conference, it was noted that Mr. Pottorff has filed for bankruptcy and <br />an automatic stay was granted by the Bankruptcy Court. The Hearing Officer made an inquiry with the Bankruptcy Court regarding the effect of the automatic stay on these proceedings. <br /> As a result, the Bankruptcy Court set a preliminary hearing on relief from stay for November 6, 2002. Consequently, the Judge granted the relief from stay, which allowed this matter <br /> to be set for hearing before the Hearing Officer. The Hearing Officer vacated the hearing set for May 14 and 15, 2003 because the property involved in this matter was at auction on <br /> April 22, 2003. On May 27, 2003, Mr. Pottorff provided the hearing officer with a status report indicating that portions of the subject land had been sold to William Hornung who will <br /> pursue the applications. A prehearing conference has been set for September 30, 2003. <br /> <br />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 <br />Subject: Peoria Crossing filed an application for determination of water right to allow <br />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 <br /> 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 <br /> Crossing’s property. <br /> <br />Status: A hearing for this matter was held on October, 22, 2002. Peoria Crossing, LaFarge <br />West and the Staff participated in the hearing. At the conclusion of the hearing, the Hearing Officer requested the parties to brief several issues. After reviewing the briefs, on <br /> 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 <br /> 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 <br /> 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 <br /> 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 <br /> 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, <br /> 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. <br /> <br />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: <br /> Matt Poznanovic <br />Subject: Objections by the District, Cherokee Metropolitan District, and Schubert Ranches <br />to applications to relocate the wells with Permit Nos. R-16265-FP, R-16271-FP, R-16272-FP, 27560-FP, and 27585-FP <br /> <br />Status: The Applicants appealed the Staff’s evaluation of their application and requested a <br />hearing before the Commission to obtain a variance from the Commission Rules. Consequently, the setting of a hearing before the Hearing Officer was postponed until after the variance <br /> request hearing. The Commission denied the variance request at its February 21, 2003 meeting. The Hearing Officer has scheduled a hearing in this matter for September 9 and 10, 2003. <br /> <br /> <br />GREGORY A. SMITH Case No. 03-GW-02 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic <br />Subject: Objection by the District to applications for determinations of water right to <br />allow appropriations from the Laramie-Fox Hills, Arapahoe, and Denver aquifers underlying a 35 acre property. <br /> <br />Status: On May 21, 2003, the Applicant and District entered into a Stipulation, and as a <br />result, the District withdrew its objection. Consequently, the Determinations have been granted. This case is closed. <br /> <br />TOWN OF LIMON Case No. 03-GW-03 Designated Basin: Big Sandy Management District: Big Sandy Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic <br />Subject: Objections were filed by Jerry T and Judith M. Golding and Mary Judith <br />Dickens to the Town’s application to construct a well and appropriate water from the alluvium of Big Sandy Creek for municipal purposes located within the service area of the Town. <br /> <br />Status: Mr. and Mrs. Golding and Ms. Dickens withdrew their objections to the application. <br />Consequently, the Hearing Officer issued an order to vacate hearing and dismiss case. The Hearing Officer further ordered that the application was remanded back to Staff for processing. <br /> This case is closed. <br /> <br />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: <br /> Matt Poznanovic <br />Subject: Objection by the Upper Black Squirrel Ground Water Management District to <br />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 <br /> Right Nos. 129-BD and 133-BD. <br /> <br />Status: A hearing before the Hearing Officer was set for September 24 and 25, 2003. On <br />July 16, 2003, the Hearing Officer issued an order to vacate and re-set the hearing upon motion by the applicant. <br /> <br />alpha & omega, llc. Case No. 03-GW-05 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic <br />Subject: Objection by the District to Alpha & Omega’s application for a replacement plan to allow withdrawals from the Arapahoe aquifer underlying a 40 acre overlying land area, in <br /> accordance with Determination of Water Right No. 224-BD. <br /> <br />Status: On August 4, 2003, the Applicant and District entered into a Stipulation, and upon <br />entry of the stipulation, the District will withdraw its objection. The Staff raised concerns regarding certain terms and conditions contained in the stipulation. Consequently, the <br /> Hearing Officer ordered Staff to provide comments regarding its concerns. On July 22, 2003, Staff submitted its comments to the Hearing Officer and the parties for their review. <br /> <br />Reinaldo gallegos, et al. Case No. 03-GW-06 Designated Basin: Upper Crow Management District: Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic <br />Subject: The Gallegos family has filed a Petition for appeal of the State Engineer Action <br />Cauing Injury. In the Petition, the Gallegos family requests a hearing to determine whether administration and curtailment is required of the wells and junior surface water rights along <br /> Crow Creek to satisfy the Gallegos Family’s senior surface water right. <br /> <br />Status: A hearing before the Hearing Officer was set for June 11, 2003. On May 29th, the <br />Gallegos family filed a Motion for Summary Judgment requesting the Hearing Officer order that the Commission has jurisdiction over administration of designated ground water and that <br /> the Commission must administer wells which withdraw designated ground water according to priority. On June 5th, Staff filed its Response opposing the Motion, asserting that administration <br /> of designated ground water is according to modified prior appropriation and that the Gallegos family is barred by res judicata from requesting the Commission curtail designated ground <br /> water wells for the benefit of the Gallegos’ surface water rights. On June 10th, the Hearing Officer issued an order to deny the Motion for Summary Judgment finding that designated <br /> ground water is administered according to modified prior appropriation and that the Gallegos family is barred by res judicata. The parties agreed that the Hearing Officer could issue <br /> an Initial Decision based on his findings of fact and law in the June 10th order. The Gallegos family has appealed the Initial Decision. The Commission shall hear the appeal at its <br /> August 15th meeting. <br /> <br />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: <br /> Matt Poznanovic <br />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, <br /> Dawson, Arapahoe, and Denver aquifers underlying a 119.34 acre property. <br /> <br />Status: A hearing before the Hearing Officer has been set for August 20, 2003. <br /> <br /> <br />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: <br /> Matt Poznanovic <br />Subject: Objection by the Upper Black Squirrel Ground Water Management District to <br />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 <br /> Water Right No. 307-BD. <br /> <br />Status: A hearing before the Hearing Officer shall be scheduled. <br /> <br />rmbg, llc. Case No. 03-GW-10 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Matt <br /> Poznanovic <br />Subject: Objections by the District to applications for determinations of water right to <br />allow appropriations from the Dawson, Arapahoe, and Denver aquifers underlying a 69.72 acre property. <br /> <br />Status: A hearing before the Hearing Officer shall be scheduled. <br /> <br />rmbg, llc. Case No. 03-GW-11 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Matt <br /> Poznanovic <br />Subject: Objections by the District to applications for determinations of water right to <br />allow appropriations from the Arapahoe, and Denver aquifers underlying a 977.19 acre property. <br /> <br />Status: A hearing before the Hearing Officer shall be scheduled. <br /> <br />Thomas H. Bradbury et al Case No. 02 SA 216 Designated Basin: Kiowa-Bijou Management District: North Kiowa Bijou Before: Colorado Supreme Court Attorney: Pat Kowaleski <br />Subject: The Bradburys filed 14 applications for Determinations of Water Rights, pursuant 37-90-107(7)(c). The District filed objections claiming that the statute is unconstitutional <br /> in that it “attempts to separate the administration of groundwater contained in the Dawson, Denver, Arapahoe, or Laramie-Fox Hill Aquifers and that they be treated differently from <br /> all other groundwaters covered in the Act…” The District contends that a system which uses ownership of land to determine interests in water is violative of Article 16, Section 5 of <br /> the Constitution which declares that the water of the state is the property of the public and subject to appropriation. <br /> <br />Status: After a hearing, the Hearing Officer issued his initial decision, determining that the applications were not speculative and should be granted. At its May, 2001 meeting, the <br /> Commission reviewed the initial decision and approved the applications. The District challenged this decision before the Designated Ground Water Judge in Adams County. A hearing was <br /> held by the Court on March 8, 2002 to determine, de novo, whether the applications should be granted. After issuing several amended orders, the Court ultimately determined that the <br /> anti-speculation doctrine applies to consideration of applications in the Denver Basin aquifers of the Designated Basins, but concluded that the doctrine should be considered at the <br /> time that well permit applications were sought rather than when the determinations were sought. The Commission has appealed the finding of the Court that a determination of water right <br /> is not a water right. The District has cross-appealed, raising all issues which it presented to the District Court. The Bradburys have not appealed any aspect of the Court’s decision. <br /> The case was argued before the Supreme Court on June 9, 2003 and should be decided soon. <br /> <br />P:NR\H2O\GWC\02-21 AG Report.doc <br /> <br />5 <br /> <br /> <br />7 <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />AgendaAug03.doc <br /> NOTICE OF GENERAL MEETING OF THE <br /> COLORADO GROUND WATER COMMISSION <br /> <br />8:30 a.m., Friday, August 15, 2003 <br /> <br />Comfort Inn <br />911 N. Main Street <br />Gunnison, CO 81230 <br />Phone: (970) 642-1000 <br /> <br />A G E N D A <br />Determine Quorum <br /> <br />Review and Approval of Agenda Items <br /> <br />Approval of Minutes for Meeting of May 16, 2003 <br /> <br />Report of the Executive Director by Hal Simpson <br /> <br />Discussion and Presentation on the Republican River Compact Settlement by Ken Knox. <br /> <br />Discussion on a Possible Moratorium on the Issuance of all new well permits within the Northern High Plains Designated Basin by Bill Fronczak. <br /> <br />Discussion and Decision on the Processing of Changes of Water Rights in Designated Basins Where Ground Water is Available for Appropriation by Bill Fronczak. <br /> <br />Motion for Reconsideration of May 16, 2003 Commission Decision Concerning the Petition for Reinstatement of a Well Permit Regarding Expanded Acres of Well Permit No. 11744-FP, Owned <br /> by Steve and Ronda Hayes by Mike Shimmin, Attorney for Well Owners. <br /> <br />Appeal of the Decision of the Hearing Officer in the Matter of the Petition for Appeal of Action of the State Engineer and the Colorado Ground Water Commission Causing Injury to Senior <br /> Water Rights of Gallegos ETAL Located in the Upper Crow Creek Designated Ground Water Basin, Weld County (Case No. 03-GW-06) by Tim Buchanan. <br /> <br />Staff Report by Suzanne Sellers and Megan Sullivan. <br /> <br />Report of the Attorney General by Matthew Poznanovic. <br /> <br />Management District Reports: <br /> a. Frenchman e. WY i. Southern High Plains <br /> b. Sand Hills f. Arikaree j. North KiowaBijou <br /> c. Marks Butte g. Plains k. Upper Black Squirrel <br /> d. Central Yuma h. East Cheyenne l. Upper Big Sandy <br />Lost Creek <br />Old Business <br /> <br />New Business <br /> <br />Commission in Executive Session (12:00-1:00) Concerning the Following: <br /> <br />Eagle Peak Farms Ltd. v. Colorado Ground Water Commission (Case No. 99CV0097) and Eagle Peak Farms Ltd. v. Lost Creek GWMD (Case No. 98CV1727) both in Adams County District Court. Settlement <br /> Discussions. <br /> <br />Adjournment <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />Final Permit Activity May 03 - Aug 03.docFinal Permit Activity <br /> <br />For this last quarter, final permit activity continued within the Southern High Plains, Upper Crow Creek and Northern High Plains, and with a select group of permits within Upper Big <br /> Sandy, Upper Black Squirrel Creek and Lost Creek basins. <br /> <br />For this past quarter, final permit activity remained focused on the Southern High Plains. In this basin in the last quarter, 34 letters have been sent to well owners as a first request <br /> for additional information to clarify the well permit. In addition, ten certified letters have been sent to those well owners who failed to respond to the initial written request. <br /> In response to past requests for information, 31 statements of beneficial use have been received. Of those, twelve have been accepted, six returned for additional information and <br /> the rest are being processed. <br /> <br />Upper Crow Creek. <br /> <br />In the Northern High Plains, though essentially complete, a few permit files still remain. Of those, ten amended final permits have been issued. <br /> <br />And finally, the clarification process continues for a group of well permits located in the Upper Big Sandy, Upper Black Squirrel Creek and Lost Creek basins. These permits were issued <br /> prior to November 1973, where the appropriation is not based on over-lying land ownership. The permit files are in review and requests for additional information have been sent to <br /> the well owners. As experienced in other basins, response to these requests has been slow. <br /> <br />As indicated before, there is the problem of lack of current ownership information within many of the permit files, which delays the clarifying process. In order to facilitate correspondence <br /> with well owners, the staff asks District Managers to encourage land owners to complete and submit change of ownership/address forms to the Commission Staff, if they have acquired wells <br /> or moved in the last 10 years. <br /> <br /> <br />GallegosGWCAug03.doc <br /> <br /> STATE OF COLORADO <br />GROUND WATER COMMISSION <br />Division of Water Resources <br />Department of Natural Resources <br /> <br />1313 Sherman Street, Room 818 <br />Denver, Colorado 80203 <br />Phone (303) 866-3581 <br />FAX (303) 866-3589 <br /> Bill Owens <br /> Governor <br /> <br /> Greg E. Walcher <br /> Executive Director, DNR <br /> <br /> Hal D. Simpson, P.E. <br /> Executive Director <br />