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<br />AG Report2002-8-16.doc ATTORNEY GENERAL’S REPORT
<br />
<br />Cases involving the Colorado Ground Water Commission
<br />August 16, 2002
<br />
<br />The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission.
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<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. A 3
<br /> week trial has been scheduled for October, 2003. Motions were due to be filed by June 7, 2002 and the Commission argued that the applications should not be heard by the Judge without
<br /> input from the Commission and, at most, this matter should be remanded to the Commission for further proceedings. Eagle Peak has sold its water rights to Sweetwater Development, which
<br /> is proposing to use the rights without a change in well location. The Court proceedings are temporarily on hold. This matter will be discussed in executive session on Aug. 26, 2002.
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<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 />LARRY RIDE Case Nos. 01-GW-06 and 01-GW-07 Designated Basin: Northern High Plains Management District: Frenchman Ground Water Management District Before: Jody Grantham, Hearing
<br /> Officer Attorney: Matt Poznanovic
<br />Subject: Objections by Bernard and Edith Loos, Ray and Lila Wilson, Darrell Whittington, Dale Whittington and Dola Schaal in Case Nos. 01-GW-06 and 01-GW-07, and an objection by Chuck
<br /> and Janet Schmidt in Case No. 01-GW-07 to Mr. Ride’s applications to appropriate designated ground water from the Ogalalla aquifer for the irrigation of a 258 acre property and a 157
<br /> acre property.
<br />Status: The Hearing Officer ordered the consolidation of the cases, and a 2-day hearing was set for February 26 and 27, 2002. On January 15, 2002, at the Applicant’s request, the Hearing
<br /> Officer ordered the dismissal of Case No. 01-GW-06 and the modification of the annual amount of acre-feet withdrawn and land on which the ground water will be used in Case No. 01-GW-07.
<br /> Consequently, the application in Case No. 01-GW-07 was re-published and the hearing set for February 26 and 27 was vacated. A hearing was held in Holyoke on July 24, 2002. The Hearing
<br /> Officer issued an initial decision granting the application, but reduced the maximum annual amount of ground water to be appropriated from 464 acre-feet to 448 acre-feet, and the land
<br /> to be irrigated from 186 acres to 179.6 acres, to address potential impacts to the Objector’s 4 small capacity wells. The Staff has filed a Motion to Reconsider, because the Staff’s
<br /> position is small capacity wells should not be considered by the Hearing Officer when imposing terms and conditions.
<br />
<br />gene l. and shirley m. linnebur Case No. 01-GW-12 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 the application for determination of
<br />water right to allow appropriation from the Laramie-Fox Hills aquifer underlying a 3207.73 acre property.
<br />
<br />Status: A hearing was set for March 26 and 27, 2002. On March 15, the hearing date was
<br />vacated to allow the Applicants and District additional time to discuss settlement. On June 24, the Applicants and District entered into a Stipulation, and as a result, the District
<br /> withdrew its objection. On July 8, 2002, pursuant to the stipulation, the Hearing Officer dismissed the case. The application was referred back to the Staff for issuance of the permit.
<br /> This case has been closed.
<br />
<br />shirley morris Case No. 02-GW-01 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 the application for determination of
<br />water right to allow appropriation from the Laramie-Fox Hills aquifer underlying a 640 acre property.
<br />
<br />Status: On June 20, 2002, the Applicant and District entered into a Stipulation, and as a
<br />result, the District withdrew its objection. On July 22, the Hearing Officer referred the application back to the Staff for issuance of the permit, and dismissed the case. This case
<br /> has been closed.
<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 water
<br />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: A hearing before the Hearing Officer shall be scheduled.
<br />
<br />Ambrocio KOH, zaida koh, katrina koh and jon koh Case No. 02-GW-03 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham,
<br /> Hearing Officer Attorney: Matt Poznanovic
<br />Subject: Objection by the Management District to two applications for determination of
<br />water rights to allow appropriation of designated ground water from the Laramie-Fox Hills and Arapahoe aquifers underlying 8.9 acres.
<br />
<br />Status: On July 18, 2002, the Applicant and District entered into a Stipulation, and as a
<br />result, the District withdrew its objection. The Applicant’s request to vacate is currently pending before the Hearing Officer.
<br />
<br />sam thomas, dick schell and paula warren Case No. 02-GW-04 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing
<br /> Officer Attorney: Matt Poznanovic
<br />Subject: Objection by the Management District to two applications for determination of
<br />water rights to allow appropriation of designated ground water from the Laramie-Fox Hills and Arapahoe aquifers underlying 9.38 acres.
<br />
<br />Status: On July 18, 2002, the Applicant and District entered into a Stipulation. As a
<br />result, the District withdrew its objection. The Applicant’s request to vacate is currently pending before the Hearing Officer.
<br />
<br />woodmen hills metropolitan district and falcon properties & investment llp Case No. 02-GW-05 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel
<br /> Creek Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic
<br />Subject: Objection by the Management District to four applications for change of water rights to combine allocations for existing determinations of water rights and to change the place
<br /> of use and type of use. The determinations are allocations of ground water from the Laramie-Fox Hills, Arapahoe, Denver, and Dawson aquifers.
<br />
<br />Status: A hearing is set for September 9, 2002.
<br />
<br />GTL Development & B.I.G. Partners Case No. 02-GW-06 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer
<br /> Attorney: Matt Poznanovic
<br />Subject: Objection by the Management District to three applications for change of water rights to change the place of use and type of use for existing determinations. The determinations
<br /> are allocations of ground water from the Laramie-Fox Hills, Arapahoe, and Denver aquifers.
<br />
<br />Status: A hearing before the Hearing Officer shall be scheduled.
<br />
<br />TODD WISDOM & WISDOM FEED LOTS Consolidated Case Nos. 02-GW-07 & 02-GW-15 Designated Basin: Northern High Plains Management District: Frenchman Ground Water Management District Before:
<br /> Jody Grantham, Hearing Officer Attorney: Matt Poznanovic
<br />Subject: Objections by Vince Hoefler, Raymond Brekel, Dale Whittington, and John and
<br />Mary Wiebers in Case Nos. 02GW07 and 02GW15, and objection by Robert and Marie Bricknell in Case Nos. 02GW07. In Case No. 02GW07, Todd Wisdom has filed an application to appropriate
<br /> designated ground water from the Ogallala aquifer for a feedlot operation with up to 20,000 head of cattle. In Case No. 02GW15, Wisdom Feed Lot has filed an application to increase
<br /> the appropriation of an existing well in the Ogallala aquifer for irrigation of an additional 130 acres.
<br />
<br />Status: The Hearing Officer ordered the consolidation of the cases, and a 2-day hearing
<br />was set for September 10 and 11, 2002 in Holyoke.
<br />
<br />ALPHA AND OMEGA, LLC Case No. 02-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 District to an application for replacement plan to allow
<br />withdrawal of designated ground water from the Arapahoe aquifer underlying a 40 acre property.
<br />
<br />Status: A 2-day hearing has been set for September 30 and October 1, 2002.
<br />
<br />lonny l. elliott Case No. 02-GW-09 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 District to an application for determination of water right to
<br />allow appropriation from the Arapahoe aquifers underlying a 175.89 acre property.
<br />
<br />Status: A hearing is set for November 4, 2002.
<br />
<br />reinaldo gallegos Case No. 02-GW-13 Designated Basin: Upper Crow Creek Attorney: Matt Poznanovic Before: Jody Grantham, Hearing Officer
<br />Subject: Objections by Tennick Land & Cattle, Green Valley Ranch, Inc., and Nussbaum
<br />Ranch to an application for appropriation of designated ground water from the White River aquifer for irrigation of 185 acres.
<br />
<br />Status: A hearing before the Hearing Officer shall be scheduled.
<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 will expire on December 31, 2002.
<br />
<br />Status: A hearing before the Hearing Officer shall be scheduled.
<br />
<br />falcon school district Case No. 02-GW-16 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 Management District to two applications for determination of
<br />water rights to allow appropriation of designated ground water from the Dawson and Denver aquifers underlying 40 acres.
<br />
<br />Status: The Applicant and the District have entered into a stipulation. As a result, the District withdrew its objection. Since no other parties objected, the Hearing Officer ordered
<br /> that this case is dismissed. The Hearing Officer also ordered that the applications be referred back to the Staff for issuance of the requested Determinations of Water Rights.
<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 in Arapahoe County District Court. The parties filed several Motions and
<br /> the Arapahoe District Court ruled that the statute was constitutional and that the speculation doctrine applied to the applications. It was subsequently determined that the pleadings
<br /> should have been filed with the Designated Ground Water Judge in Adams County, and therefore all of the Arapahoe Court’s proceedings were set aside and the case was sent to the Adams
<br /> County District Court. The Adams County Judge made rulings similar to those filed by the Arapahoe County Judge, and a half day hearing was held by the Court on March 8 to determine,
<br /> de novo, whether the applications should be granted. After issuing several amended orders, the Court ultimately determined that the anti-speculation doctrine applies to consideration
<br /> of applications in the Denver Basin aquifers of the Designated Basins, but concluded that the doctrine should be considered at the time that well permit applications were sought. The
<br /> Commission is supporting this conclusion but has appealed the finding of the Court that a determination of water right is not a water right. The District has cross-appealed, raising
<br /> all issues which it presented to the District Court. The Bradburys have not appealed any aspect of the Court’s decision. The record which the Supreme Court will review is being prepared,
<br /> and the Commission’s brief will probably be due in November. The Supreme Court could rule on this matter in the spring of next year.
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<br />P:NR\H2O\GWC\8-02 AG Report.doc
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<br />AgendaAug02b.doc
<br /> NOTICE OF GENERAL MEETING OF THE
<br /> COLORADO GROUND WATER COMMISSION
<br />
<br />8:30 a.m., Friday, August 16, 2002
<br />
<br />Sheraton Steamboat Resort and Conference Center
<br />Twilight Conference Room
<br />Steamboat Springs, CO 80477
<br />Phone: (970) 879-2220
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<br />A G E N D A
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<br />Determine Quorum
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<br />Review and Approval of Agenda Items
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<br />Approval of Minutes for Meeting of May 17, 2002
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<br />Report of the Executive Director by Hal Simpson
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<br />Kansas v. Nebraska and Colorado litigation – Republican River Compact by Hal Simpson
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<br />Report on the Decision of the Commission Concerning the Bradbury Case by Pat Kowaleski
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<br />Discussion and Decision on the Test to Determine Whether the Withdrawal of Ground Water from the Denver Basin Aquifers of the Designated Basins is Speculative by Matt Poznanovic
<br />
<br />Legal Analysis on Whether the Commission and its Staff Should Incorporate Local GWMD Rules in its Orders for New Water Rights and Change of Water Rights by Pat Kowaleski
<br />
<br />Discussion on Whether to Require Historic Use Analysis and/or Administration for Rotational Acres by Suzanne Sellers
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<br />Staff Report by Suzanne Sellers and Megan Sullivan
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<br />Report of the Attorney General by Matthew Poznanovic
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<br />Management District Reports:
<br /> a. Frenchman e. W Y i. Southern High Plains
<br /> b. Sand Hills f. Arikaree j. North Kiowa Bijou
<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
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<br />New Business
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<br />Adjournment
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<br />Final Permit Activity May 02- Aug 02.doc Final Permit Activity
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<br />For this last quarter, there was final permit activity within the Northern High Plains, Upper Crow Creek and Southern High Plains.
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<br />Work continues in the Northern High Plains with those remaining conditional permits, which were previously set aside due to their complexity or lack of cooperation from well owners.
<br /> Though activity has slowed due to an increase of work in the Southern High Plains, 104 final permits were signed, with 57 of those in Yuma County and the other 47 permits located in
<br /> Kit Carson County. Currently, there are approximately 60 permits in Yuma County, which need to be finalized and 240 permits in Kit Carson County. With the resolution of case no. 01-GW-15,
<br /> where the Hearing Officer decided in favor of the Commission, there are no pending hearings or objections regarding final permits.
<br />
<br />[CROW CREEK]
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<br />And finally, as we indicated at the last Commission meeting, we have started requesting statements of use in the Southern High Plains. The owners of 105 permits were contacted by telephone
<br /> to confirm ownership and address. A letter requesting the statement of use was then sent to each well owner. The letters provided all information that is on file for the use of the
<br /> wells to aid the well owners in completing the statements of use. To-date, we have received a response from 19 permit owners or 18% of those contacted.
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<br />As indicated in previous reports, there is the continuing problem of lack of current ownership information within many of the permit files, which delays the clarifying process. In order
<br /> to facilitate correspondence 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,
<br /> if they have acquired wells or moved in the last 10 years.
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<br />gwcdistrictenf.doc
<br />Ken Salazar
<br />Attorney General
<br />
<br />Christine M. Arguello
<br />Chief Deputy Attorney General
<br />
<br />Alan J. Gilbert
<br />Solicitor General STATE OF COLORADO
<br />DEPARTMENT OF LAW
<br />Office of the Attorney General State Services Building
<br />1525 Sherman Street - 5th Floor
<br />Denver, Colorado 80203
<br />Phone (303) 866-4500
<br />FAX (303) 866-5691
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