DWR_3348289

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 2/16/2007
• Subject: MEETING MATERIALS

AG Report2007-02-16.docATTORNEY GENERAL’S REPORT

Cases involving the Colorado Ground Water Commission
February 16, 2007

The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission.

cherokee metropolitan District Case No. 98 CW 80 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Dennis Maes, Water Judge ; Colorado Supreme
Court Attorney: Jennifer Mele
Subject: Cherokee Metropolitan District filed a Motion in Water Court to interpret the terms of a stipulation that was entered into among the District, the Management District, and the
Commission. The provision of the Stipulation that is at issue here is the following:
“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
emergency and backup purposes. Emergency and backup use shall include the inability to get sufficient supply from the Cherokee owned Sweetwater wells.”
Cherokee asserted 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 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
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,
interpreted 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.

Status: Ass’t Attorney General Alexandra Davis represented the Commission and the Court heard testimony on December 16 and 19, 2005. On March 16, 2006 the Court ruled in favor of the
Management District and the Commission. Cherokee appealed the decision to the Supreme Court. The case was argued on September 13, 2006 and the Supreme Court affirmed the decision
of the Water Court. The contempt hearing that had been set in the Water Court due to allegations by the District that Cherokee continues to pump outside of the designated basin was
vacated due to a conflict with the Court’s schedule and has not been rescheduled.

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
Court Attorney: Pat Kowaleski
Subject: Objections by the District, Cherokee Metropolitan District, and Schubert Ranches to
applications to relocate the wells with Permit Nos. R-16265-FP, R-16271-FP, R-16272-FP, 27560-FP, and 27585-FP

Status: The Applicants appealed the Staff’s evaluation of their application and requested a
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.
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
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
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
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.
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
appealed the Commission’s decision to the El Paso County District Court, and trial was held October 31- November 3 in Colorado Springs.
By Order dated November 17, 2006, Judge Schwartz , in a de novo decision, agreed with the Commission that the well permit applications should be denied because of the Commission’s rule
against “walking to water.” The Applicants have requested the Court to reconsider its decision, and that request is pending. In the meantime the Commission has submitted its Bill of
Costs, asking that costs of approximately $1000 be awarded to the Commission. The decision on that request is also pending.

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:
Upper Black Squirrel Creek Before: El Paso County District Court Attorney: Pat Kowaleski

Subject: Cherokee, Meridian Ranch, Meridian Service, Paint Brush Hills and Woodmen
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.

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
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
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.

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:
Devin Odell
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
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 adverse effect on vested rights in the Upper Black Squirrel Creek Designated Basin. On August 12, 2005, the Hearing Officer signed a Motion to Vacate the hearing that was scheduled
to begin on August 15, 2005. Due to new information about the acreage of the surface ponds, the application needed to be republished to include an accurate account of the number of
ponds and other areas that are subject to the Commission’s jurisdiction. Because Woodmen Hills is working out some issues pertaining to the replacement plan with Staff, Woodmen Hills
has yet to submit the applications. There are no new updates.

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
Attorney: Devin Odell
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,
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
to all three applications, contending that approval will result in an adverse effect on vested rights in the Upper Black Squirrel Creek Designated Basin. Staff later 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 scheduled for July 19,
2005 was vacated. In addition, because the replacement plan cannot be considered before the Staff approves the change of use applications, the Hearing Officer deconsolidated the cases.

A hearing was set for June 23, 2006 on the change cases. However, Paint Brush filed a motion with the Hearing Officer on June 16, 2006 to vacate the prehearing conference due to Paint
Brush’s decision to amend the applications on the changes in use and the replacement plan. Accordingly, the Hearing Officer vacated the prehearing conference and a new one has not
yet been set. There are no new updates.

HARMONY LAND AND CATTLE Case No. 05-GW-08 Designated Basin: Kiowa-Bijou Management District: Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Devin Odell
Subject: Harmony Land and Cattle (“Harmony”) filed an objection to the Commission’s findings relating to Harmony’s application for a determination of water right. The Commission contended
that the annual amount of water available for allocation from the Denver aquifer was 4 acre-feet, while Harmony argued that it was 177 acre-feet. Once, however, Staff received information
on historic consumptive use, they recalculated the allocation for the water right and discovered that encroachment was not an issue as they had originally thought. On September 14,
2006, the Hearing Officer issued an order directing Staff to republish the application. The application was republished and there were no objections. There are no new updates.

pioneer irrigation district Case No. 05-GW-14 Designated Basin: Northern High Plains Attorney: Devin Odell Before: Jody Grantham, Hearing Officer
Subject: The Pioneer Irrigation District, Colorado Board, and certain owners of the Laird Ditch (“Pioneer”) have filed a Petition for Hearing with the Ground Water Commission. The Petition
seeks, among 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 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 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
and all eight ground water management districts in the Basin. Accordingly, Staff filed a Motion for Joinder of Necessary Parties requesting that the Commission’s Hearing Officer require
Pioneer to serve notice to the potentially affected parties. The Hearing Officer denied the Motion for Joinder.

Pioneer filed a Motion for Summary Judgment requesting a determination that: 1) the Commission is bound by the RRCA Ground Water Model; 2) the designated basin includes ground water
that is tributary to the North Fork, and wells that are extracting tributary ground water are causing depletions to surface flows; 3) the Commission must notice a hearing to alter the
boundaries of the designated basin; and, 4) the administration and adjudication of the tributary water falls within the jurisdiction of the water courts. Because the public notice of
hearing was still out for publication and the deadline for objections had not yet passed, Staff filed a motion to defer their motion until all potential parties had an opportunity to
enter the case. The Hearing Officer granted this motion and Staff met with some of the opposers on November 15, 2005 for the purpose of coordinating a response.

The Objectors then filed a Motion to Dismiss based on the fact that these issues have been heard before and, because it raises a crucial threshold issue of law, any decision by the Hearing
Officer will be appealed to the Commission. To avoid duplication of efforts in two hearings, the Opposers filed a Motion to Re-refer the Motion to Dismiss to the Commission for the
limited purpose of obtaining a decision on the Motion. In addition, the Objectors filed a Motion to Conduct Discovery for the purpose of obtaining information necessary to respond to
the Applicant’s Motion for Summary Judgment.

In addition, Pioneer filed a motion for a determination from the Hearing Officer that they should not be required to reimburse the State Engineer for the costs associated with publishing
the hearing notice. On April 10, 2006, the Hearing Officer ruled that Pioneer is responsible for the payment of the publication costs and, on April 26th, 2006, Pioneer filed an appeal
to the Commission.

The Commission heard oral argument on the Motion to Dismiss at its May 19, 2006 meeting and dismissed the petition. Pioneer has appealed that decision to the district court. A hearing
on the publication costs was held at the Commission’s August 18th meeting and the Commission directed Pioneer to pay the publication costs.

This case is now on appeal in District Court in Yuma County.

CHEROKEE METROPOLITAN DISTRICT Case No. 05-GW-15, 16, 17 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer
Attorney: Devin Odell
Subject: These cases involve appeals of denials of nine applications for the withdrawal of groundwater from the Upper Black Squirrel Designated Ground Water Basin. The denials are based
on Staff’s determination that, because the landowner consent statements were not signed, there is insufficient evidence to prove consent of the various landowners to allow for the withdrawal
of the waters underlying each landowners’ parcel. On September 8, 2005, Staff filed a motion to consolidate the three cases and a motion to join the property owners as parties. The
Hearing Officer granted the motion to consolidate but denied the motion for joinder based on the determination that a hearing needs to be held first to ascertain whether sufficient
evidence of deemed consent can be provided by Cherokee.

Cherokee filed a motion for determination of threshold issue of law, contending that the leases granted the lessees the right to Denver Basin ground water. Staff responded that the
underlying decrees limited the water right to alluvial water and that the leases could not grant water rights beyond those specified in the underlying decrees. Staff then filed a motion
for determination of question of law contending that, at the time the leases were conveyed, inchoate rights based on land ownership did not exist within the designated basins. The Hearing
Officer ruled in favor of the District, holding that the leases do grant rights to apply for Denver Basin ground water underlying the relevant parcels. The Hearing Officer then proceeded
to vacate the hearing and close the case. Because the issue of landowner consent had not yet been resolved and there are existing water right holders that have determinations or well
permits for the same Denver aquifer water that Cherokee is claiming, Staff then filed a motion for clarification of these issues for the purpose of bringing them before the Commission
on appeal.

At the hearing on November 17th, 2006, the Commission determined that the leases do meet the regulatory requirements, but that the landowners should be individually notified. The Commission
directed Staff to provide notice of the applications to the landowners. Staff is currently working with the District to prepare the applications for publication.

STEPHEN SCHNURR Case No. 06-GW-22 Designated Basin: Black Squirrel Creek Management District: Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Devin Odell
Subject: Stephen J. Schnurr Living Trust (“Applicant”) submitted applications for determinations of water rights to allow the withdrawal of designated ground water from the Laramie-Fox
Hills, Arapahoe, and Denver aquifers underlying 139 acres, consisting of two noncontiguous tracts. The Upper Black Squirrel Creek Management District objected contending, among other
things, that the applications are speculative. The applicant and the District achieved a settlement agreement and the hearing, scheduled for October 18, 2006, was vacated. The District
withdrew their objection and the applications are currently being processed by Staff.

FALCON HIGHLANDS METRO DISTRICT Case No. 06-GW-24 Designated Basin: Black Squirrel Creek Management District: Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney:
Devin Odell
Subject: Falcon Highlands Metro District submitted three applications to change the place of use of Determinations of Water Rights and the Upper Black Squirrel Creek Ground Water Management
District objected based, among other things, on their concern that the application would involve the export of water from the Upper Black Squirrel Designated Basin. The Applicant and
the District are currently negotiating and, if those discussions fail to result in a resolution, the Applicant will notify the Hearing Officer of the need for a setting conference by
February 12, 2007.

EASTERN ADAMS COUNTY METRO DISTRICT Case No. 06-GW-34 Designated Basin: Kiowa-Bijou Management District: Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Devin Odell
Subject: Eastern Adams County Metropolitan District submitted an application for a water well permit and an application for approval of a replacement plan. The North Kiowa-Bijou Ground
Water Management District objected contending, among other things, that the subject ground water is over appropriated and that the District has not been sufficiently informed regarding
the replacement plan. A hearing has been set for March 30, 2007.

CARGILL CATTLE FEEDER, LLC Case No. 06-GW-36 Designated Basin: Northern High Plains Management District: W-Y Before: Jody Grantham, Hearing Officer Attorney: Devin Odell
Subject: Cargill Cattle Feeder, LLC submitted an application for a change of use. The W-Y Ground Water Management District objected contending, among other things, that the application
in its current form will allow the Applicant to bank the water. A prehearing conference has been set for February 14, 2007.

YUMA ETHANOL, LLC Case No. 06-GW-37 Designated Basin: Northern High Plains Management District: W-Y Before: Jody Grantham, Hearing Officer Attorney: Devin Odell
Subject: Yuma Ethanol, LLC submitted an application for a change of use. The W-Y Ground Water Management District objected contending, among other things, that the application in its
current form will allow the Applicant to bank the water. A prehearing conference has been set for February 14, 2007.

PETITION TO DESIGNATE THE BOX ELDER BASIN Case No. 06-GW-23 Before: Jody Grantham, Hearing Officer Attorney: Devin Odell
Subject: John Moser and the Central Colorado Water Conservancy District (“Petitioners”) submitted a petition to the Ground Water Commission to create a new designated ground water basin
to be known as the “Box Elder Creek Designated Ground Water Basin.”

Pursuant to C.R.S. § 37-90-106, the Commission has the authority to determine designated ground water basins. A determination may occur if: 1) the ground water, in its natural course,
would not be available to and required for the fulfillment of decreed surface rights (“first prong”); or 2) the ground water is not adjacent to a continuously flowing natural stream
and ground water withdrawals have constituted the principal water usage for at least 15 years (“second prong”). C.R.S. 37-90-103(6)(a). Consistent with this definition of designated
ground water is the standard that pumping can not have more than a de minimis affect on any surface stream. Gallegos v. Colo. Ground Water Comm’n, 2006 Colo. Lexis 880, Case No. 05SA253,
p. 19 (2006). Thus, if neither prong is met, the presumption is that the pumping will have more than a de minimis affect on surface water rights and injury will occur. Id. The petitioners
claim that water in the alluvial aquifer of Box Elder Creek meets the definition of designated ground water under both prongs.

There are a number of objectors to the Petition, most of whom have senior surface rights on the South Platte River. Staff has also taken a position against designation for the following
reasons:

Because ground water in the Box Elder Creek alluvial aquifer in its natural course provides water to and supports the flow of Box Elder Creek and the South Platte River, the first prong
is not met, and;
Because the proposed Designated Basin encompasses, and therefore is adjacent to, a continuously flowing natural stream, the second prong is not met.

The Hearing Officer held a 9-day hearing in January, but has not yet issued a finding. The Petition will be before the Commission at the May meeting.

6

8

AG report2007-02-16.pdf

AgendaFeb07.doc

Determine quorum

Review and approval of agenda items

Approval of Minutes for Meeting of November 17, 2006

Report of the Executive Director by Hal Simpson

Proposed processing procedure for two “Petitions to Amend the Boundaries of the Northern Kiowa-Bijou GroundWater Management District” by staff

Discussion concerning the de minimis standard referred to in the Gallegos case, and direction from the Commission on rule making related to this standard by Ken Knox

Staff Report by Keith Vander Horst

Report of the Attorney General by Devin Odell

District Reports:
Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Aaron Nien
W-Y GWMD by Jack Dowell
Arikaree GWMD by Roger Brenner
Plains and East Cheyenne GWMDs by Deb Daniels
Southern High Plains GWMD by Max Smith
North KiowaBijou GWMD by Robert Loose
Upper Black Squirrel GWMD by Tracy Doran
Upper Big Sandy GWMD by Dave Taussig
Lost Creek by GWMD by Thomas Sauter
Republican River Water Conservation District by Stan Murphy

Old Business

New Business

Executive Session: Pioneer Irrigation District, Colorado Board v. Colorado Ground Water Commission, Yuma County District Court, Case No. 06CV31

Adjournment

NOTICE OF GENERAL MEETING OF THE
COLORADO GROUND WATER COMMISSION
February 16, 2007

A G E N D A - page 2

NOTICE OF GENERAL MEETING OF THE
COLORADO GROUND WATER COMMISSION

10:00 a.m., Friday, February 16, 2007

Parker Water & Sanitation District
North Reclamation Facility Administration Building
18100 E. Woodman Drive (NW corner of E-470 and Parker Road)
Parker, CO 80138
Phone: [phone]

A G E N D A

AgendaFeb07.pdfMicrosoft Word - AgendaFeb07.doc
1. Determine quorum 2. Review and approval of agenda items 3. Approval of Minutes for Meeting of November 17, 2006 4. Report of the Executive Director by Hal Simpson
5. Proposed processing procedure for two “Petitions to Amend the Boundaries of the Northern Kiowa-Bijou GroundWater Management District” by staff 6. Discussion concerning the de
minimis standard referred to in the Gallegos case, and direction from the Commission on rule making related to this standard by Ken Knox 7. Staff Report by Keith Vander Horst 8. Report
of the Attorney General by Devin Odell 9. District Reports: a. Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Aaron Nien b. W-Y GWMD by Jack Dowell c. Arikaree GWMD by
Roger Brenner d. Plains and East Cheyenne GWMDs by Deb Daniels e. Southern High Plains GWMD by Max Smith f. North Kiowa-Bijou GWMD by Robert Loose g. Upper Black Squirrel GWMD by Tracy
Doran h. Upper Big Sandy GWMD by Dave Taussig i. Lost Creek by GWMD by Thomas Sauter j. Republican River Water Conservation District by Stan Murphy 10. Old Business 11. New Business
12. Executive Session: Pioneer Irrigation District, Colorado Board v. Colorado Ground Water Commission, Yuma County District Court, Case No. 06CV31 13. Adjournment NOTICE OF GENERAL
MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, February 16, 2007 Parker Water & Sanitation District North Reclamation Facility Administration Building 18100 E.
Woodman Drive (NW corner of E-470 and Parker Road) Parker, CO 80138 Phone: [phone] A G E N D A
BookerDecree04VC2800.pdf

Directions to Parker WS.docParker Water & Sanitation District
North Reclamation Facility Administration Building
18100 E Woodman Dr Parker, CO
[phone]

Directions to Parker.pdf

EnforcemenItemsandActionsGWC.doc

Enforcement Items and Actions

- Dave Keeler and Chris Grimes continued their enforcement work in the Northern High Plains, identifying large capacity wells that were believed to be operated in violation of their
final permits during the 2006 irrigation year. Because these wells have been shut down for the growing season, the irrigators are not in violation at this time, however, certified
letters have been sent to these irrigators to ensure well permit compliance before the wells are reactivated in the spring. This proactive approach should be helpful in preventing
our office from writing duplicate letters in the spring, as well allow the irrigator ample time to correct the violation before planting their fields. These wells will be the first
wells inspected come April. The following is a list of these violators by Ground Water Management District:

W-Y
- Robert Korf - two wells irrigating illegally expanded acres.
- Ruben Richardson – illegally expanded acres.
- Mekelburg Farms – illegally expanded acres.
- RMR Ranches – illegally expanded acres.
- Harry Salvador – illegally expanded acres.
- David Crossland – illegally expanded acres.

Sand Hills
- Walter Bradford – illegally expanded acres.
- Robert Martin – illegally expanded acres.

Arikaree
- Paul Gering – illegally expanded acres.

Plains
- Mark Hornung – illegally expanded acres/violation of rotation of acres contract.

Upper Black Squirrel Creek
- Four small capacity wells within the Sylvan Meadows subdivision were discovered to be in violation of their well permits. These owners have been contacted, and they are now working
towards compliance.

HearingOfficersReport.pdf

KiowaBijouPetition-ProcessMemo.pdf

Minutes-4th '06.doc
MINUTES

FOURTH QUARTERLY MEETING
COLORADO GROUND WATER COMMISSION
NOVEMBER 17, 2006

The Fourth Quarterly Meeting of the Colorado Ground Water Commission took place on November 17, 2006, at 1313 Sherman Street, Room 318, Denver, Colorado. Chairman Max Smith called the
meeting to order at 10:00 a.m. Marta Ahrens called the roll and determined that a quorum was present. Commission members present were Grant Bledsoe, Larry Clever, Dennis Coryell,
Corey Huwa, Frank Jaeger, Robert Loose, Earnest Mikita, Doug Shriver, Max Smith, Hal Simpson, Russell George and Ted Kowalski.

Review and Approval of Agenda Items – The agenda as written was approved.

Approval of Minutes for Meeting of August 18, 2006 - Chairman Smith asked if there were any corrections or additions to the Minutes of the May 17, 2006 meeting. Commissioner Coryell
moved to accept the Minutes; the motion was seconded by Commissioner Jaeger and carried unanimously.

Report of the Executive Director by Hal Simpson – Mr. Simpson reported that the Colorado Supreme Court issued an opinion on the Gallegos Case, in the Upper Crow Creek Designated Ground
Water Basin, and Alexandra Davis will provide a briefing on the opinion during the Attorney General’s report and will give the Commission additional guidance on what to consider in
modifying the boundaries of a designated ground water basin.

Mr. Simpson reported on the rules for new appropriations from confined aquifers in the San Luis Valley. A six-week trial was held in early 2006 and Judge John Kuenhold issued a 191-page
decision a week ago upholding the proposed promulgated rules restricting new ground water withdrawals from the valley’s confined aquifer ruling that the valley has no water to spare.
This ruling is available on the Water Court's website in several large Adobe pdf files at http://www.courts.state.co.us/supct/watercourts/wat-div3/casesofinterest/04CW24/04cw24.htm

Mr. Simpson stated that Scott Richrath, a valuable DWR staff person, recently transferred to the Department of Transportation. Mr. Richrath was particularly valuable with getting the
Conservation Reserve Enhancement Program approved by the Federal government. The Republican River Water Conservation District prepared a resolution recognizing the efforts of Scott.