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020502R_Div 8 ActRpt.doc Designated Groundwater Basins Well Application/Permit Activity From 11/1/2001 to 1/31/2002 Plains Kiowa B. SHP U Blk. Sq. Lst. Ck. Cmp. Ck. U Big Sdy. Crow Ck. Total Total Applications Received 81 88 15 54 32 1 5 4 280 Total Unacceptable Apps. 16 17 5 14 14 0 2 0 68 Total Resubmitted Apps. 5 8 3 12 3 0 3 0 34 Total All Permits issued 61 82 12 49 31 3 6 2 246 Total New Exempt Permits Issued 38 77 9 27 28 2 4 2 187 Total New Non-Exempt Permits 2 1 1 19 0 0 2 0 25 Replacement Permits, Exempt 17 3 2 3 2 1 0 0 28 Replacement Permits, Non-Exempt 4 1 0 0 1 0 0 0 6 Late Reg. Accepted in Permit Count 14 0 2 0 1 0 0 0 17 Geothermal Applications 1 0 0 0 0 0 1 0 2 Geothermal Permits Issued 1 0 0 0 0 0 2 0 3 Monitoring Hole Notice 5 2 0 0 2 0 2 0 11 Extensions Approved 0 0 1 1 1 0 0 0 3 Statement of Beneficial Use Recd. 18 0 0 1 0 0 0 24 43 Statements Accepted 65 0 0 0 0 0 0 11 76 Notice of Well Completion Recd. 0 1 0 4 0 0 0 0 5 Logs Received 39 62 1 38 8 3 9 1 161 Pump Installation Report Recd. 27 46 0 39 12 0 4 1 129 Change Ownership 30 33 10 27 3 0 1 12 116 Total Wells Plugged and Sealed 10 4 0 2 2 0 1 1 20 Application Withdrawn 5 2 0 0 0 0 0 0 7 Cancelled Permits 6 11 1 6 5 1 0 4 34 Well Permit Expired 5 2 0 8 1 0 0 3 19 Correction of Well Location 0 0 0 0 0 0 0 1 1 Emergency Replacement Apps. 8 2 2 0 0 1 0 0 13 General Record Change/Update 350 116 16 81 43 5 11 64 686 Exempt Apps. Recd. Approx 59 86 11 47 30 1 4 2 240 Non Exempt Apps. Approx. 22 2 4 7 2 0 1 2 40 Unaccept.Exempt Apps. Approx. 8 14 3 12 6 0 1 0 44 Unaccept.Non-Exempt App. 8 3 2 2 8 0 1 0 24 Resub. Exempt Apps. Approx. 1 7 2 7 1 0 2 0 20 Resub. Non-Exempt Apps. Approx. 4 1 1 5 2 0 1 0 14 Exempt Apps. Withdrawn Approx. 3 2 0 0 0 0 0 0 5 Non-Exempt App. Withdrawn 2 0 0 0 0 0 0 0 2 Exempt Cancelled Permits Approx. 2 11 1 6 5 1 0 2 28 Non-Exempt Cancld. Permits 4 0 0 0 0 0 0 2 6 Total: 921 684 104 471 243 19 63 138 2,643 RAB 01/25/2001 February 04, 2002 2:20:29 PM AG Report2002-2-22.docATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission February 22, 2002 The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission. EAGLE PEAK & PROSPECT VALLEY Case number: 96-GW-13, 99CV97 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: Pat Kowaleski Subject: Application for ten new well permits and changes for 39 existing wells, with a replacement plan and export out of the District. Status: At the November, 1998 meeting the Commission affirmed the Initial Decision of its Hearing Officer that it was not appropriate to hear the change applications of Eagle Peak because the Lost Creek District had not approved Eagle Peak’s export application. On January 14, 1999 Eagle Peak appealed this decision to the Adams County District Court and, among other things, has requested that the District 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 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 Status Conference was held on December 13,1999 and a number of procedural matters were handled. The Court has set an additional Status Conference for February 20. This case will be discussed at an executive session on February 22, 2002. EAGLE PEAK FARMS LTD Case Number: 98CV1727 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: Pat Kowaleski Subject: Denial by the Lost Creek District of Eagle Peak’s application for export 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 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 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 the Colorado Supreme Court on March 3, 2000 and the petition was denied on August 20, 2000. The case has been returned to the District Court and a Status Conference has been scheduled for February 20, 2002. (The Commission is not a party to this case.) DENNIS DUNIVAN Case Nos. 01-GW-03 Designated Basin: Southern High Plains Management District: Southern High Plains Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objections by I. Nick Shaffer, Ira and Dorene Shaffer, and Elvin and Lana Shaffer to Mr. Dunivan’s application to construct a new well to appropriate designated ground water from the Dockum Group Aquifer for the irrigation of a 240 acre property. In addition, Mr. Dunivan is requesting to reduce the annual appropriation under Permit No. 11422-F to 120 acre-feet for irrigation of the same 240 acre property. Status: A 2-day hearing was held on November 19, and December 7, 2001. On January 14, 2002, the Hearing Officer issued his initial decision granting the application. The Hearing Officer determined that Case No. 97-GW-06 established the precedent that the one half mile rule evaluation is to be measured from the wells’ permitted locations, rather than actual field locations. The Hearing Officer also determined that the Commission’s Rules and Regulations have precedence in matters of permitting that supercede similar permitting rules developed by a Management District. 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 Officer Attorney: Matt Poznanovic 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 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 acre property. Status: The Hearing Officer ordered the consolidation of the cases, and a hearing was set for September 25, 2001. Subsequently, the Hearing Officer granted the Staff’s Motion to Publish in Washington County. The September hearing date was vacated to allow time for the additional publication and objection period. No new objections were filed as a result of the additional publication. A 2-day hearing was set for February 26 and 27, 2002. On January 15, 2002, at the Applicant’s request, the Hearing 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. Consequently, the application in Case No. 01-GW-07 will be re-published and the hearing set for February 26 and 27 is vacated to allow time for the re-publication and objection period. Fred o. gibbs and joann pearson Case No. 01-GW-09 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the District to Mr. Gibb’s and Ms. Pearson’s application to change the use of the well with Permit No. 1253-R from irrigation to residential and livestock uses. Status: A hearing was set for January 30, 2002. On December 12, 2001, a prehearing conference was held for the purpose of clarifying the issues and procedures for the hearing. In order to allow additional time for the parties to discuss settlement, the hearing has been re-set for March 4, 2002. DOREN LEE SHAULIS Case No. 01-GW-10 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the Management District to the application for appropriation of designated ground water from the Laramie-Fox Hills, Arapahoe and Denver aquifers underlying a 40 acre property. Status: A hearing was set for January 24, 2002. The Applicant has entered into a stipulation with the District, and as a result, the District withdrew its objection. The case has been closed. UNIVERSITY OF COLORADO FOUNDATION Case No. 01-GW-11 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Objection by the Management District to the application for appropriation of designated ground water from the Laramie-Fox Hills, Arapahoe, Denver and Dawson aquifers underlying a 646.029 acre property. Status: A hearing was set for January 18, 2002. On January 8, 2002, the Applicant and The District entered into a stipulation, and, as a result, the District’s objection was withdrawn. The case has been closed. 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 Subject: Objection by the Management District to the application for determination of water right to allow appropriation from the Laramie-Fox Hills aquifer underlying a 3207.73 acre property. Status: A hearing is set for March 26 and 27, 2002. A prehearing conference is set for March 12, 2002 for the purpose of clarifying the issues and procedures for the hearing. Magnum Feedyard Case No. 01-GW-13 Designated Basin: Kiowa Bijou Management District: North Kiowa Bijou Before: Jody Grantham, Hearing Officer Attorney: Matt Poznanovic Subject: Magnum Feedyard has filed a Petition for Review to appeal the expiration of well permit no. 16615-F. No evidence of well construction, use of ground water from the well, or other correspondence from the applicant was received by the Staff and, in accordance with Section 148-18-7(3), C.R.S., the permit expired on November 16, 1973. In its Petition, Magnum Feedyard claims that expiration of the permit must occur under the provisions of Section 37-90-108(6), C.R.S. Staff disagrees with Magnum Feedyard’s position. Status: A hearing has been set for March 14, 2002. On February 6, 2002, Magnum Feedyard filed a Motion for Summary Judgment. Thomas H. Bradbury et al Case No. 2001CV1652 Designated Basin: Kiowa-Bijou Management District: North Kiowa Bijou Before: Adams County District Court Attorney: Pat Kowaleski 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 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 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 the Constitution which declares that the water of the state is the property of the public and subject to appropriation. 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 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 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 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 County District Court. The Adams County Judge has made rulings similar to those filed by the Arapahoe County Judge. A half day hearing has been scheduled by the Court for March 8 to determine, de novo, whether the applications should be granted. The Commission will consider Resolutions with regard to the speculation issue at its February 22, 2002 meeting. P:NR\H2O\GWC\2-02 AG Report.doc 1 3 AgendaFeb02.doc NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION Friday, February 22, 2002 8:15 a.m. – Executive Session 9:00 a.m. – Public Meeting Hayes Student Center (Room 230) Northeast Junior College Sterling, CO A G E N D A Executive Session (8:15 am) Ground Water Commission in Executive Session Concerning the Eagle Peak Farms v. Ground Water Commission, Case No. 99CV0097 (Adams County District Court). Public Meeting (9:00 am) Determine Quorum. Review and Approval of Agenda Items. Approval of Minutes for Meeting of November 16, 2001. Public Comments and Commission Resolution on Whether the Anti-Speculation Doctrine Applies within the Denver Basin Aquifers of the Designated Basins. Report of the Executive Director by Hal Simpson. Kansas v. Nebraska and Colorado litigation – Republican River Compact by Hal Simpson. Presentation on the Status of the Southern High Plains Aquifers Investigation by Wayland Anderson of McLaughlin Engineers. Report on Water Quality Study in the High Plains Aquifers by Bill Fronczak. Staff Report by Suzanne Sellers and Megan Sullivan. Report of the Attorney General by Matthew Poznanovic. Management District Reports: a. Frenchman e. WY i. Southern High Plains b. Sand Hills f. Arikaree j. North KiowaBijou c. Marks Butte g. Plains k. Upper Black Squirrel d. Central Yuma h. East Cheyenne l. Upper Big Sandy Lost Creek Old Business New Business Discussion of Items of Concern from Water Users in Attendance at the Ogallala Symposium. Selection of Meeting Dates for the Remainder of 2002. Adjournment. Final Permit Activity Nov 01- Jan 02.docFinal Permit Activity For this last quarter, there was final permit activity within the Northern High Plains, Upper Crow Creek and Southern High Plains. Activity in the Northern High Plains focused on those remaining conditional permits which were previously set aside due to their complexity or lack of cooperation from well owners. Activity continued with conditional permits within Yuma County where 71 permits have been published. Three objections have been received, with two of the three objections now resolved, and there is hope for the third objection to be resolved without hearing as well. There now remains 55 permits in Yuma County. Unfortunately response has been slow on requests for information, and only 20 of the 55 have been clarified. In Kit Carson County, there are 287 permits that need to be processed and work has begun to clarify the first group of 47 permits. In addition, work continues on the clean up of the few remaining permits in Lincoln and Phillips Counties. Work also continues on Upper Crow Creek. Letters to well owners requesting the necessary information to clarify the permit have been sent. As in the Northern High Plains, the response to these requests is slow. Out of the 105 permits in the basin, only 29 have been clarified. And finally, preparatory work continues on the Southern High Plains. The land ownership report from the Baca County Assessor has been received, and a similar list from Prowers County has been requested and should be sent soon. Once the Baca County list has been clarified and Prowers Counties list received, clarification of the first group of permits can proceed. As indicated in previous reports, there is the problem of lack of current ownership information within many of the permit files, which causes delays in the clarifying process. In order 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, if they have acquired wells or moved in the last 10 years. Minutes-4th '01.doc MINUTES FOURTH QUARTERLY MEETING COLORADO GROUND WATER COMMISSION NOVEMBER 16, 2001 The Fourth Quarterly Meeting of the Colorado Ground Water Commission took place on November 16, 2001, at 1313 Sherman Street, Room 318, Denver, Colorado. Chairman Earnest Mikita 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 Eugene Bauerle, Anne Castle, Dennis Coryell, Richard Huwa, Robert Loose, Max Smith, Hal Simpson, Kent Holsinger, and Ted Kowalski. Commission Member Larry Clever was absent. Review and Approval of Agenda Items - There were no additions or corrections to the agenda. Approval of Minutes - Chairman Mikita asked if there were any corrections or additions to the Minutes of the August 17, 2001, meeting. Commissioner Smith moved to approve the Minutes. The motion was seconded by Commissioner Bauerle and carried unanimously. Executive Director's Report - Mr. Hal Simpson congratulated Commissioner Castle on being appointed as Chairwoman of the management committee at the law firm of Holland and Hart. Mr. Simpson reported that he sent a letter to Mr. John Porter of the Dolores Water Conservancy District thanking him for the tour of Dolores River Project and luncheon in August. Mr. Simpson summarized current federal legislation concerning the High Plains; HR-3121 was introduced by members of Congress from Oklahoma and New Mexico which deals with proposed legislation concerning the High Plains aquifer and provides that the Department of Agriculture recognize certain improvements by owners of farms that reduce the withdrawal of water from the Ogallala aquifer. At the next meeting, Mr. Simpson would like to receive comments from the Commission Members on whether Colorado would support this legislation. With respect to the Kansas v. Colorado litigation on the Arkansas River Compact, Mr. Simpson reported that the Attorney Generals of Colorado and Kansas have requested that the Special Master stay the litigation through the end of December, allowing the states to enter into a mediation effort for a global settlement which would include compensation to Kansas and how to resolve future disputes. Biennial Election of Chair and Vice-Chair - Commissioner Coryell nominated Chair-man Earnest Mikita to again serve as Chairman, which was moved by Commissioner Smith, seconded by Commissioner Loose, and approved unanimously. Commissioner Loose nominated Commissioner Max Smith as Vice Chair, which was moved by Commissioner Castle, seconded by Commissioner Coryell, and approved unanimously. Status of the Kansas v. Nebraska and Colorado litigation - Republican River Compact by Hal Simpson - Mr. Simpson reported that the issues related to litigation strategy will be discussed in Executive Session. Mr. Ken Knox, Assistant State Engineer, reported on the Kansas v. Nebraska and Colorado litigation. With regard to document production, Mr. Knox reported that staff completed and identified documents and the states have selected a single contractor to image the documents. Receipt of the documents is anticipated the first part of December for distribution to contractors. Mr. Knox reported on the surface water, the ground water, the land use conservation practices, and the GIS components. He stated that the staff is conducting a comprehensive review of streamflow and diversion records, technical and engineering work based on historic use and accurate pumping information. Hearing on a Request for Variance to Eliminate Administration Requirements Associated With a Commingling Authorization as Required by Rule 7.6.7 Within the Lost Creek Designated Ground Water Basin, by Mike Shimmin and Brad Peterson – Chairman Mikita called the hearing to order, which is recorded on separate record. Mr. Pat Kowaleski, Assistant Attorney General, served as Conflicts Counsel representing the Commission, and noted for the record that he discussed this in advance with Mr. Mike Shimmin. For the record, Mr. Kowaleski noted that all Commission members were present except Commissioner Clever. The following persons addressed the Commission: Mr. Mike Shimmin, attorney with Vranesh and Raisch, LLP, representing Lost Creek Land and Cattle; Brad Peterson, Farm Manager for the Lost Creek Land and Cattle Company. Mr. Shimmin summarized that the hardship to Lost Creek Land and Cattle is all monetary with no corresponding benefit to the aquifer or other water users because this is not a fully appropriated area and there is no injury to anyone. Mr. Bill Fronczak, of the staff, reported that the staff recommends that the Commission deny this variance request, and recommended that the Commission make a determination that a hearing is not needed in an underlying challenge to this order. Ms. Cheryl Wailes, representing the Lost Creek Ground Water Management District, reported that the District agrees with the staff and that the wells should be metered. After deliberation by Commission members, Commissioner Castle moved that the Commission deny the requested variance from the order of April 7, 2000. This motion was seconded by Commissioner Loose, and approved unanimously. Staff Report by Suzanne Sellers and Megan Sullivan - Ms. Suzanne Sellers presented the Staff Activity Report for the last quarter. Ms. Megan Sullivan reported on final permitting. Both of these reports were included in the Commissioner’s packets. Report of the Attorney General by Matthew Poznanovic - Mr. Matt Poznanovic presented the report of the Attorney General. He stated that there will be a hearing on the Dunavan matter on Monday, November 19, 2001. Management District Reports - Chairman Mikita called for the Management District reports. Mr. Aron Nein reported from the Frenchman, Sandhills, Marks Butte and Central Yuma Districts. Mr. Nein reported that Ben Saunders was able to attend the last district board meeting and then returned to the Holyoke hospital for minor surgery. With regard to the Board meeting, the major topic was discussion on rotational acres. Mr. Nein reported on the number of under-appropriated wells in each of the districts and stated that the Board may adopt an under-appropriated policy. There were no reports from either the W-Y Ground Water Management District, the Arikaree Ground Water Management District, the Plains and East Cheyenne Management Districts, the Southern High Plains Ground Water Management District, the North Kiowa-Bijou Ground Water Management District, the Upper Black Squirrel Creek Ground Water Management District, the Upper Big Sandy Ground Water Management District, or from the Lost Creek Ground Water Management District. Old Business – None New Business – Commissioner Castle reported that the Executive Session discussion concerned an issue arising in the pending Bradbury application; namely, whether the anti-speculation doctrine applies to appropriations from Denver Basin aquifers. She stated that it would be helpful to have the Commission put the issue of appropriation from the Denver Basin aquifers of the Designated Basins on the agenda for a future meeting. She added that input from the districts and members of the public should be obtained, since this issue will be decided in the Bradbury litigation. Commissioner Castle recommended that written input on the briefs be submitted for the February Commission meeting. Then, at the May meeting, the Commission will follow-up on the applicability of the anti-speculation doctrine within the Denver Basin aquifers of the Designated Basins, and decide whether the Commission wants our attorney to take a position in the Bradbury litigation. Next meeting - Scheduled for February 21-22, 2002, in conjunction with the Ogallala Symposium, at Northeastern Junior College in Sterling, Colorado. Ground Water Commission in Executive Session (12:00 noon) concerning the following two court cases: North Kiowa-Bijou Groundwater Management District v. Groundwater Commission of the State of Colorado: Hal D. Simpson, State Engineer/Executive Director of the Ground Water Commission and Thomas H. Bradbury et. al., Case No. 2001CV1652 (Arapahoe District Court, June 27, 2001). State of Kansas v. State of Nebraska v. State of Colorado, No. 126 (October Term, 2000). Prior to going into Executive Session, Ms. Carol Angel, of the Federal and Interstate Litigation Section and the Water Unit of the Attorney General’s Office, provided a brief background of the case and the trial schedule of the upcoming litigation. Mr. Kowaleski provided a briefing on the North Kiowa-Bijou Case. Commissioner Castle moved to go into Executive Session; the motion was seconded by Commissioner Huwa and passed unanimously. (For the record, Mr. Kowaleski stated that the Executive session did not need to be recorded on tape.) The meeting adjourned at 2:05 p.m. Respectfully submitted, Marta Ahrens Secretary to the Ground Water Commission Ground Water Commission Meeting Page 4 November 16, 2001 OgallalaSympGWCFeb2002.doc STATE OF COLORADO GROUND WATER COMMISSION Division of Water Resources Department of Natural Resources 1313 Sherman Street, Room 818 Denver, Colorado 80203 Phone (303) 866-3581 FAX (303) 866-3589 Bill Owens Governor Greg E. Walcher Executive Director, DNR Hal D. Simpson, P.E. Executive Director