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<br />AG Report2005-08-19.docATTORNEY GENERAL’S REPORT <br /> <br />Cases involving the Colorado Ground Water Commission <br />August 19, 2005 <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 />Reinaldo gallegos, et al. Case No. 03CV1335 Designated Basin: Upper Crow Management District: Before: Hon. Roger A. Klein, Weld County District Court Attorney: Pat Kowaleski <br />Subject: The Gallegos family requested a hearing to determine whether administration and curtailment is required of the wells and junior surface water rights along Crow Creek to satisfy <br /> the Gallegos Family’s senior surface water right. At its August, 2003 meeting the Commission affirmed its Hearing Officer and concluded that the Commission has no jurisdiction over <br /> surface rights, and is not required to administer the basin based on the priority system. <br /> <br />On September 26, 2003 the Gallegos family appealed the Commission’s decision to District Court, and also brought an additional action against the State Engineer in his capacity as the <br /> administrator of surface rights. Assistant Attorney General Alexandra Davis is handling the latter litigation. <br /> <br />In the Commission litigation, we filed a Motion with the Court, asking that the Court notify and join all well permit holders who might be adversely affected if the Court were to call <br /> out permit holders, based on the Gallegos’ decreed surface right. <br /> <br />In a decision which we received on February 11, 2004, the Court agreed with us that junior well permit holders might be adversely affected, and therefore required them to be joined in <br /> the litigation. <br /> <br />Status: The Plaintiffs amended their complaint to include junior well permit holders. They served those parties, who have retained attorneys and filed responses to the complaint. The <br /> case against the State Engineer is being held in abeyance, pending a decision in the case against the Commission. A five-day trial is scheduled to begin on April 17, 2006. The Plaintiffs <br /> filed a Motion asking the Court to rule, as a matter of law, that their surface rights are entitled to protection from pumping in the designated basins. That Motion has been denied, <br /> but the Court, on its own Motion, has remanded the matter to the Commission for certain findings. This matter will be discussed in executive session on August 19, 2005. <br /> <br /> <br /> <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: Ginny Brannon <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 was held on October, 22, 2002. Peoria Crossing, LaFarge West and the Staff <br />participated in the hearing. On December 2, 2002, the Hearing Officer issued his initial decision and found: (1) a cylinder of appropriation is not a water right, but rather a measure <br /> of the beneficial use that is the actual water right for a pre-213 well; (2) although LaFarge’s well was permitted and completed prior to implementation of the 1965 Act, the 1965 Act <br /> and modified prior appropriation doctrine apply to the determination of the final extent of LaFarge’s water right; (3) Staff’s calculation of the cylinder of appropriation for LaFarge’s <br /> well is incorrect; and (4) LaFarge does not yet have a final permit, and in order to proceed with the proper determination of the amount of water available to the Applicant, Staff must <br /> proceed with final permitting and notice of LaFarge’s water right in a separate proceeding. The Hearing Officer ordered that this matter is held in abeyance until Staff completes final <br /> permitting for LaFarge’s well, and ordered Staff to initiate final permitting within a reasonable time frame. Staff published the notice of intent to issue final permit on July 31, <br /> and August 7, 2003. LaFarge West filed a Motion to Vacate Order, which was subsequently withdrawn. On September 11, 2003, the Hearing Officer issued an order stating that the Initial <br /> Decision of the Hearing Officer is the Final Decision of the Commission. <br /> <br />Lafarge and Staff have now settled the Lafarge case and, on January 11, 2005, the Hearing Officer directed Staff to proceed with publication of the Lafarge well permit. This will now <br /> allow for the re-examination of the amount of ground water underlying Peoria Crossing’s property. No new developments. <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />cherokee metropolitan District Case No. 98 CW 80 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Dennis Maes, Water Judge Attorney: <br /> Pat Kowaleski <br />Subject: Cherokee Metropolitan District has filed a Motion in Water Court to interpret the terms of a stipulation that was entered into among the District, the Management District, and <br /> the Commission. The provision of the Stipulation that is at issue here is the following: <br />“Cherokee shall use Cherokee Wells no. 1-8 only for supplying in-basin beneficial uses that discharge any unconsumed water back into the Upper Black Squirrel Designated Basin and for <br /> emergency and backup purposes. Emergency and backup use shall include the inability to get sufficient supply from the Cherokee owned Sweetwater wells.” <br />Cherokee asserts that the State has not properly interpreted the terms of the Stipulation and it has filed a Motion with the Water Court to force compliance with its interpretation of <br /> the Stipulation. Cherokee is saying that they are not able to get sufficient supply from their Sweetwater wells and they can therefore use the 8 wells. They say that this is an emergency <br /> use as defined by the Stipulation. The State Engineer, after conferring with all parties to the Stipulation, including the attorney from this office who represented the Commission, <br /> is interpreting the language to allow the 8 wells to only be used temporarily, in an emergency involving the Sweetwater or other wells, rather than as a permanent source of supply. <br /> <br /> <br />Status: A hearing will be held on November 4, 2005 to present testimony on the parties’ interpretation of the Stipulation. <br /> <br /> <br />WAYNE E. and frances g. booker Case No. 04-CV-2800 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Hon. David Gilbert, El Paso County District <br /> Court Attorney: Pat Kowaleski <br />Subject: Objections by the District, Cherokee Metropolitan District, and Schubert Ranches to <br />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 Commission Rules. The setting of a hearing before the Hearing Officer was postponed until after the variance request hearing. <br /> The Commission denied the variance request at its February 21, 2003 meeting. A hearing in this matter was held on September 9, 2003. On September 17, 2003, the Hearing Officer issued <br /> his Initial Decision and found as follows: (1) The applications are for changes of water right pursuant to section 37-90-111(1)(g), C.R.S. and Commission Rule 7; (2) According to Commission <br /> Rule 7.3.2, there is no water available to move to the new well locations requested by the Applicant; (3) The Applicants’ request to be excluded from the requirement of including years <br /> of non-use in their historic use analysis “for good cause” pursuant to Commission Rule 7.10.1 is denied; and (4) Because there is no water available to move, the applications are denied. <br /> The Applicants filed Exceptions to the Hearing Officer’s Initial Decision, and by order dated June 15, 2004, the Commission upheld the Initial Decision. On July 15, 2004 the Applicants <br /> appealed the Commission’s decision to the El Paso County District Court, and a 5-day trial has been scheduled to begin on November 28, 2005. No new developments. <br /> <br /> <br />appeal of rules adopted by the upper black squirrel creek ground water management district Case No. 03-GW-14 Designated Basin: Upper Black Squirrel Creek Management District: Upper <br /> Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon <br />Subject: Cherokee, Meridian Ranch, Meridian Service, Paint Brush Hills and Woodmen <br />Hills Metropolitan Districts filed an appeal to the adoption of Rule Nos. 3, 17, 18, and 19 by the Upper Black Squirrel Creek Ground Water Management District. <br /> <br />Status: A prehearing conference was held on November 5, 2003. The Hearing Officer <br />determined that the Commission had no jurisdiction to hear appeals of rules regarding small capacity wells, and therefore had no jurisdiction to hear the appeal of proposed District <br /> Rule 3. The parties agreed that the remaining issues could be decided on the briefs, and therefore the hearing set for March, 2004 was vacated. <br /> <br />In April 2004 the Hearing Officer issued Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer, whereby he ruled that, as a matter of law, the District exceeded <br /> its statutory and decisional law authority, and therefore Rules 17, 18 and 19 were null and void. On May 6, 2004 the District timely filed a request to reverse or modify the Initial <br /> Decision. On that same date the District also timely filed a Designation of the Record. Briefs were due to the Commission on August 6, 2004. <br /> <br />This case was argued before the Commission at the August 20, 2004 Commission meeting. On September 30, 2004 the Commission reversed the Hearing Officer’s ruling that the District had <br /> exceeded its statutory and decisional law authority in enacting Rules 17, 18 and 19, and remanded to the Hearing Officer for further proceedings. The Commission directed the Hearing <br /> Officer to determine whether the rules, as adopted by the District, are: 1) reasonable; 2) constitute a taking without just compensation in violation of the United States and Colorado <br /> Constitutions; and, 3) violate the Equal Protection Clause of the United States and Colorado Constitutions. Oral arguments were conducted before the Hearing Officer on December 16, <br /> 2004. <br /> <br />On February 4, 2005, the Hearing Officer issued an Order in which he determined that the Rules do not violate the takings or equal protection provisions of the United States or Colorado <br /> Constitutions and are reasonable as they apply to non-Denver Basin wells within the District. The Hearing Officer further determined, however, that the Rules are not applicable to <br /> wells in the Denver Basin because they are contrary to the mandate of the legislature that require withdrawal amounts based on an aquifer life of 100 years. <br /> <br />The Staff agreed with the Hearing Officer’s determination that the Rules do not violate the taking or equal protection provisions of the United States or Colorado Constitutions as well <br /> as his finding that the Rules are reasonable as they apply to alluvial (non-Denver Basin aquifer) wells within the District. The Staff, however, did not concur with the Hearing Officer’s <br /> determination that the Rules are inapplicable to wells that withdraw Denver Basin aquifer water within the District. The District appealed and this case was heard before the Ground <br /> Water Commission on May 20. <br /> <br />The Commission concurred with Staff and the Hearing Officer that the Rules do not violate the taking or equal protection provisions of the United States or Colorado Constitutions as <br /> well as the finding that the Rules are reasonable as they apply to alluvial (non-Denver Basin aquifer) wells within the District. The Commission also found, as Staff contended, that <br /> the Rules are applicable to wells that withdraw Denver Basin aquifer water within the District. <br /> <br /> <br />appeal of rules adopted by the upper black squirrel creek ground water management district Case No. [Unassigned] Designated Basin: Upper Black Squirrel Creek Management District: <br /> Upper Black Squirrel Creek Before: El Paso County District Court Attorney: Pat Kowaleski <br />Subject: Cherokee, Meridian Ranch, Meridian Service, Paint Brush Hills and Woodmen <br />Hills Metropolitan Districts filed an appeal to the adoption of Rule Nos. 3, 17, 18, and 19 by the Upper Black Squirrel Creek Ground Water Management District. <br /> <br />Status: This is the same matter referred to in the previous item. After the Commission issued its Remand Order, the Applicants, on October 29, 2004, filed an appeal with the District <br /> Court in El Paso County. The Commission filed a Motion to Dismiss the District Court action on the grounds that the Commission has not yet completed its review, and the matter is therefore <br /> not ripe for an appeal to District Court. The District Court has put the matter on hold until the Hearing Officer and the Commission act on the remand to the Hearing Officer. <br /> <br /> <br />Hunker, et al. v. Upper Black SquirRel and Ground Water Commission Case No. 04-CV-4205 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: El <br /> Paso County District Court Attorney: Pat Kowaleski <br />Subject: Timothy Hunker and several Metropolitan Districts that are regulated by the Upper Black Squirrel Creek Ground Water Management District, (the “District”) have filed an action <br /> in El Paso County District Court asserting that the five Divisions within the District need to be reapportioned. The background is that in 1968 a petition was filed with the Ground <br /> Water Commission to establish the District. Pursuant to the statute, § 37-90-121(1)(b) C.R.S., the Divisions within the district were to be “as nearly equal in size as may be practicable, <br /> and considering the population thereof,…” <br />Pursuant to statute the Commission set a public hearing to consider creation of the District, and, after that hearing, the District was formed. The Plaintiffs assert that the Divisions <br /> within the District are no longer “nearly equal.” They assert, as an example, that of the 11,104 taxpaying electors in the District, one division has 3631 electors while another has <br /> only 473. The Plaintiffs assert that this is a “violation of the principal of ‘one man-one vote.’” <br />The lawsuit says that the Commission, while not having authority to oversee the redistricting, is a necessary party to the litigation because the Commission approved the original divisions <br /> within the District. The specific assertion involving the Commission is contained at Par. 6 of the Complaint: <br />“6. The Colorado Ground Water Commission (‘the Commission’) oversees the designated groundwater basins in the State of Colorado and is the administrative body to which certain matters <br /> concerning the designated basins are appealed to. The Commission authorized the designation of the Basin, the formation of the Black Squirrel, and approved the division of the Black <br /> Squirrel into the five (5) election divisions and therefore, is a necessary party to this action; however, this Court, and not the Commission, has jurisdiction to oversee the redistricting <br /> of the Black Squirrel.” <br />Status: The other parties have agreed that the Commission is not a proper party in this proceeding, and the Commission has been dismissed from the litigation. <br /> <br /> <br />lafarge west, inc. Case No. 03-GW-15 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon <br />Subject: LaFarge West filed an objection to the approval of its final permit. LaFarge objected to the utilization of 11.3 acre-feet as the measure of beneficial use and requested 31 <br /> acre-feet be utilized as the appropriate measure. <br /> <br />Status: A hearing was held on February 2, 2004. LaFarge and the Staff participated in the hearing. On December 23, 2004, the Staff for the Ground Water Commission and Lafarge West <br /> entered into a stipulation in which they agreed that the well would be permitted for 14.1 acre-feet as the measure of beneficial use. On January 11, 2005, the Hearing Officer ordered <br /> Staff to proceed with publication of Well Permit No. 9502-F as agreed by the parties. The final permit has been issued and this case is now closed. <br /> <br /> <br /> <br />APPEALS OF ADOPTION OF RULE 20 BY THE UPPER BLACK SQUIRREL CREEK GROUND WATER MANAGEMENT DISTRICT Case No. 04-GW-02 Designated Basin: Upper Black Squirrel Management District: Upper <br /> Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon <br />Subject: On June 1, 2004, the Upper Black Squirrel Creek Groundwater Management District adopted a Rule (“Rule 20”). Rule 20 concerns the procedural and substantive methods by which <br /> the District proposes to enforce priorities amongst well owners within the District. In July 2004, the Cherokee Metropolitan District and Wayne and Frances G. Booker filed appeals. <br /> The primary issue is whether Rule 20’s technical and study analysis provisions sufficiently adhere to the tenets of a modified prior appropriation doctrine. The Hearing Officer issued <br /> an Order on February 4, 2005, in which he found that the standard of review is de novo. <br /> <br />Status: On February 23, 2005, the Hearing Officer issued a Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Office in which he determined that Rule 20 adequately <br /> addresses the statutory requirements it must consider when making determinations of unreasonable injury and follows the tenets of the modified prior appropriation system. Accordingly, <br /> Rule 20 is reasonable within the context of the statutory requirements. On May 2, 2005, the Ground Water Commission issued a Decision determining that, because no appeal was filed <br /> within the time allowed by statute, the Hearing Officer’s Decision is the Decision of the Ground Water Commission and constitutes final agency action. <br /> <br /> <br /> <br />James bilello Case No. 05-GW-07 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon <br />Subject: James Bilello applied for a Determination of Water Rights to appropriate ground water from the Denver, Upper & Lower Arapahoe, and Laramie-Fox Hills Aquifers underlying an 80-acre <br /> tract of land. The City of Aurora, Paul Sack and John Sack submitted objections. A prehearing conference was held before the Hearing Officer on June 22. <br /> <br />The case is scheduled to go to hearing September 16, 2005. If, however, Aurora reaches a stipulation and there are no other objectors by the deadline for submission of Amended Prehearing <br /> Statements (August 8), both of which are likely, the hearing will be vacated. <br /> <br /> <br />Ellicott springs resources, LLC Case No. 05-GW-01 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: <br /> Ginny Brannon <br />Subject: The Commission issued a final permit to Ellicott Springs Resources that allows an annual withdrawal of 850 acre-feet of water for the irrigation of 280 acres. The Upper Black <br /> Squirrel Creek Ground Water Management District objected on January 4, 2005 based on the contentions that the well has been abandoned by non-use and the approval will result in an adverse <br /> effect on vested rights in the Upper Black Squirrel Creek Designated Basin. <br /> <br />A hearing is scheduled before the Hearing Officer on November 16, 2005. <br /> <br /> <br />paint brush hills metro district Case No. 05-GW-02, 03, 04 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer <br /> Attorney: Ginny Brannon <br />Subject: In these consolidated cases, Paint Brush Hills: 1) applied for a replacement plan to allow the withdrawal of designated ground water from the Dawson aquifer (05GW02); and, <br /> 2) submitted two applications for changes of water rights to change permitted beneficial uses (05GW03, 05GW04). The Upper Black Squirrel Creek Ground Water Management District objected <br /> to all three applications contending that approval will result in an adverse effect on vested rights in the Upper Black Squirrel Creek Designated Basin. <br /> <br />Staff determined that they need to republish an application for a determination of water right that the Replacement Plan in this case will ultimately serve. Accordingly, the hearing <br /> scheduled for July 19, 2005 was vacated. <br /> <br />WOODMAN HILLS METRO DISTRICT Case No. 03-GW-20 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: <br /> Ginny Brannon <br />Subject: Woodmen Hills Metro District submitted three applications to appropriate ground water from the alluvial aquifer of the Black Squirrel Creek or its tributaries, through the <br /> use of three surface ponds and for approval of a replacement plan. The Upper Black Squirrel Creek Ground Water Management District objected contending that approval will result in an <br /> adverse effect on vested rights in the Upper Black Squirrel Creek Designated Basin. <br /> <br />In the Management District’s Amended Pre-Hearing Statement, they introduced new information about the acreage of the surface ponds. If the Hearing Officer finds that the surface ponds <br /> are larger than what Woodmen Hills represented in the application, Staff will recommend republication. The hearing is scheduled before the Hearing Officer on August 15-17, 2005. <br /> <br />pioneer irrigation district Case No. 05-GW-14 Designated Basin: Northern High Plains Attorney: Ginny Brannon Before: Jody Grantham, Hearing Officer <br />The Pioneer Irrigation District, Colorado Board, and certain owners of the Laird Ditch have filed a Petition for Hearing with the Ground Water Commission. The Petition seeks, among <br /> other things, a hearing to ascertain the accuracy of the current boundaries and descriptions associated with the Northern High Plains Designated Ground Water Basin (“Basin”) for the <br /> purpose of excluding water that is allegedly tributary. In addition to de-designating the ground water, the petition seeks to require wells in the Northern High Plains Designated Ground <br /> Water Basin to curtail pumping or, in some cases, cease pumping all together. Consequently, this Petition potentially injures the owners of over 4,300 wells located in the Basin, all <br /> eight ground water management districts in the Basin, and the Republican River Water Conservation District. Accordingly, Staff filed a Motion for Joinder of Necessary Parties requesting <br /> that the Commission’s Hearing Officer require Pioneer to serve notice to the potentially affected parties. <br /> <br /> <br />Joe Huber Case No. 05-GW-09 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon <br /> <br />This application concerns a determination of water right to allow the allocation of designated ground water from the Laramie-Fox Hills, Arapahoe, and Denver aquifers underlying an 80-acre <br /> property. The objection is based on ownership of the water right. A Pre-Hearing conference is set before the Hearing Officer on September 28, 2005. <br /> <br />town of wiggins Case No. 05-GW-10,11,12,13 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon <br />This application concerns changes in the location of wells and use of those wells to include municipal use. The objections are based primarily on the change in consumptive use and the <br /> resulting alleged injury to vested rights. This case is scheduled for a Pre-Hearing conference on October 7, 2005. <br /> <br />6 <br /> <br /> <br />9 <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />AgendaAug05.doc <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />Determine quorum <br /> <br />Review and approval of agenda items <br /> <br />Approval of Minutes for Meeting of May 20, 2005 <br /> <br />Report of the Executive Director by Hal Simpson <br /> <br />Biennial Election of Chair and Vice-Chair <br /> <br />Hearing on a request for a variance to Designated Basin Rule 7.10.2 relating to applications by Ruben Richardson to expand the acres for the wells with Permit Nos. 2250-FP and 10239-FP, <br /> by Alan Curtis, attorney for Well Owner <br /> <br />Staff Report by Suzanne Sellers <br /> <br />Report of the Attorney General by Ginny Brannon <br /> <br />District Reports: <br />Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Aaron Nien <br />W-Y GWMD by Jack Dowell <br />Arikaree GWMD by Roger Brenner <br />Plains and East Cheyenne GWMDs by Shawn Shulte <br />Southern High Plains GWMD by Max Smith <br />North KiowaBijou GWMD by Robert Loose <br />Upper Black Squirrel GWMD by Tracy Doran <br />Upper Big Sandy GWMD by Dave Taussig <br />Lost Creek by GWMD by Sheryl Wailes <br />Republican River Water Conservation District by Stan Murphy <br /> <br />Old Business <br /> <br />New Business <br /> <br />Determine interest in a workshop for Commissions and Boards for the Colorado Ground Water Commission <br /> <br />Adjournment <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />NOTICE OF GENERAL MEETING OF THE <br />COLORADO GROUND WATER COMMISSION <br />May 20, 2005 <br /> <br />Revised A G E N D A (cont.) <br /> <br /> <br /> <br />NOTICE OF GENERAL MEETING OF THE <br />COLORADO GROUND WATER COMMISSION <br /> <br />8:30 a.m., Friday, August 19, 2005 <br /> <br />Carson Auditorium, Student Union Building <br />Adams State College <br />208 Edgemont Blvd. <br />Alamosa, CO 81102 <br />Phone: (719) 587-7961 <br /> <br />A G E N D A <br /> <br /> <br /> <br /> <br /> <br />PacketDistrictAug05.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 /> Russell George <br /> Executive Director, DNR <br /> <br /> Hal D. Simpson, P.E. <br /> Executive Director <br />