DWR_3348306

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 5/17/2002
• Subject: MEETING MATERIALS

AG Report2002-5-17.docATTORNEY GENERAL’S REPORT

Cases involving the Colorado Ground Water Commission
May 17, 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 Eagle Peak’s change applications because
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
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
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 3
week trial has been scheduled for October, 2003. Motions are due to be filed by June 7, 2002 and the Commission will argue that the applications should not be heard by the Judge without
input from the Commission and, at most, this matter should be remanded to the Commission for further proceedings.

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. This 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.

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. The Hearing Officer’s initial decision was not appealed,
and the permit has been issued to the Applicant. The case has been closed.

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 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 was re-published and the hearing set for February 26 and 27 was vacated to allow for the re-publication and objection period. A
2-day hearing has been re-set to be held in Holyoke on July 24-25, 2002. A prehearing conference is set for June 5, 2002 for the purpose of clarifying the issues and procedures for
the hearing.

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 March 4, 2002. On February 28, 2002, the Applicants and District entered into a stipulation, and as a result, the District withdrew its objection. The
Hearing Officer referred the Application back to the Staff for issuance of the requested permit to allow for the change in use. This 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 was set for March 26 and 27, 2002. A prehearing conference was held
on March 12, 2002 to clarify the issues and procedures for the hearing. On March 12th, the Staff filed a Motion for Partial Summary Judgment on the issues of the Commission’s jurisdiction
over an application for determination of water right, whether section 37-90-107(7) is constitutional and whether exportation is relevant to whether an application for determination
of water right should be granted. On March 21st, the District filed its response to the Motion and also filed a Motion for Partial Summary Judgment on the lack of jurisdiction of the
Commission regarding the commercial use of ground water for water flooding. Both Motions are currently pending before the Hearing Officer. On March 15, the hearing date was vacated
to allow the Applicants and District additional time to discuss settlement.

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 was set for March 14, 2002. On February 6, 2002, Magnum
Feedyard filed a Motion for Summary Judgment. The Hearing Officer denied Magnum’s Motion. As a result of settlement discussions, Magnum and the Staff entered into a stipulation to
reinstate Magnum’s conditional well permit, subject to certain conditions. Magnum agreed to limit the maximum annual volume of appropriation. Further, Magnum agreed to submit an amended
SBU, obtain a pump test for the well, install a totalizing flow meter and keep annual diversion records. The Hearing Officer granted the Joint Motion to enter the stipulation and the
hearing date was vacated. The case has been closed.

shirley morris Case No. 02-GW-01 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 640 acre property.

Status: A hearing before the Hearing Officer shall be scheduled.

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
Subject: Objection by the Management District to two applications for changes of water
right to combine the allocations of two determinations of water right and to change the place of use and type of use in each determination.

Status: A hearing before the Hearing Officer shall be scheduled.

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:
Matt Poznanovic
Subject: Objection by the Management District to two applications for determination of
water rights to allow appropriation of designated ground water from the Dawson and Denver aquifers underlying 40 acres.

Status: A hearing before the Hearing Officer shall be scheduled.

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 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,
de novo, whether the applications should be granted. The Court issued an Order on March 26, which it modified on April 17. The Revised Order, a copy of which is attached, reaffirmed
the applicability of the anti-speculation doctrine in the Denver Basin aquifers of the Designated Basins, but concluded that the applications were not speculative. We have filed a Motion
to ask the Court to further clarify its ruling, since the Court mandated the issuance of a “conditional” determination of water right, which is not provided for by the statute.

P:NR\H2O\GWC\5-02 AG Report.doc

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AgendaMay02.doc
NOTICE OF GENERAL MEETING OF THE
COLORADO GROUND WATER COMMISSION

10:00 a.m. Friday May 17, 2002

1313 Sherman St. Rm. 318
Denver, CO 80203

A G E N D A

Determine Quorum.

Review and Approval of Agenda Items.

Approval of Minutes for Meeting of February 22, 2002.

Report of the Executive Director by Hal Simpson.

Kansas v. Nebraska and Colorado litigation – Republican River Compact by Hal Simpson.

Discussion on the Geology of the Denver Basin Aquifers by George Van Slyke.

Discussion and Commission Resolution on Whether the Anti-Speculation Doctrine Applies within the Denver Basin Aquifers of the Designated Basins by Bill Fronczak.

Discussion on Whether to Require Historic Use Analysis and/or Administration for Rotational Acres by Suzanne Sellers.

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

a. Location of August 16, 2002 Commission Meeting.

Commission in Executive Session (12:00-1:00) Concerning the Following 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 Groundwater Commission
and Thomas H. Bradbury Et Al., Case No. 2001CV1652 (Arapahoe District Court, June 27, 2001).

Kansas v. Nebraska v. Colorado, No. 126 (Oct. Term, 2000).

Adjournment.

Final Permit Activity Feb 02- April 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 continues with those remaining conditional permits which were previously set aside due to their complexity or lack of cooperation from well owners.
Activity continues with conditional permits within Yuma County where 22 permits have been clarified and are ready for publication. Unfortunately response continues to be slow on requests
for information, and 21 permits in Yuma County still remain unclarified. In Kit Carson County, 45 permits have been clarified and are ready for publication and work has begun to clarify
a second group of approximately 50 permits.

Work also continues on Upper Crow Creek. Second requests for information have been made through either phone calls or by mail to encourage well owners to submit the requested necessary
information to clarify the permits. As in the Northern High Plains, the response to these requests has been slow. Out of the 104 permits in the basin, only 31 have been clarified.

And finally, preparatory work continues on the Southern High Plains. Because of the experience of slow responses from well owners in the Northern High Plains, a plan has been devised
in an attempt to make well owners in the Southern High Plains, aware of the importance of the information they provide in the final permit process. Once the files of a group of permits
have been reviewed and it has been determined what information must be requested to clarify the permit, the well owners will be contacted by phone. The phone call is to alert them
that a request for information will soon be arriving in the mail and to answer any initial questions the well owner may have. Three attempts will be made to contact well owners to
obtain the necessary information. The phone call is considered the first contact, the subsequent mailing is the second contact, and if necessary, a certified letter, again requesting
the information would be the third contact. A test case for this procedure has been set up outside the management district. The permit files of approximately 140 wells have been reviewed,
the letters requesting the necessary information have been drafted and the first phone call contact process will begin as soon as the list of current phone numbers has been completed.

As indicated in previous reports, there is the problem of lack of current ownership information within many of the permit files, which delays the clarifying process. In order to facilitate
correspondence 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-1st '02.doc
MINUTES

FIRST QUARTERLY MEETING
COLORADO GROUND WATER COMMISSION

FEBRUARY 22, 2002

Ground Water Commission in Executive Session concerning Eagle Peak Farms v. Ground Water Commission, Case No. 99CV0097 (Adams County District Court). Commissioner Loose moved to go
into Executive Session at 8:15 a.m.; the motion was seconded by Commissioner Coryell and passed unanimously. Mr. Kowaleski, from the Attorney General’s Office, stated that the Executive
session did not need to be recorded on tape. Mr. Kowaleski provided a briefing on the status of the litigation regarding Eagle Peak Farms v. Ground Water Commission.

Following the Executive Session, Commissioner Castle moved to go into General session, seconded by Commissioner Smith, and moved unanimously. For the record Mr. Kowaleski indicated
that the Commission discussed the status of the litigation involving Eagle Peak Farms and the position of the Commission.

The First Quarterly Meeting of the Colorado Ground Water Commission took place on February 22, 2002, at the Northeastern Junior College, Sterling, Colorado. Chairman Earnest Mikita
called the meeting to order at 9:00 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, and Hal Simpson. Commissioner Larry Clever, and Ex-Officio members Kent Holsinger and Ted Kowalski were absent.

Review and Approval of Agenda Items - Mr. Simpson added ‘Comments from the Commission on Federal Legislation’ to New Business to discuss whether the Commission wants to take a position
on Federal legislation.

Approval of Minutes for Meeting of November 16, 2001 - Chairman Mikita asked if there were any corrections or additions to the Minutes of the November 16, 2001 meeting. Mr. Mike Shimmin,
attorney, from the audience, stated that the description of Brad Peterson’s title, should be ‘Farm Manager for Lost Creek Land and Cattle Company. Mr. Hal Simpson, also added that
‘Mexico’ should be changed to ‘New Mexico’, in his report. Commissioner Castle moved to accept the Minutes with the corrections. The motion was seconded by Commissioner Coryell and
carried unanimously.

Public Comments and Commission Resolution on Whether the Anti-Speculation Doctrine Applies within the Denver Basin Aquifers of the Designated Basins – Chairman Mikita called the Public
Comments session to order and a timeframe was determined for each party to testify. Commissioner Castle disclosed that her law firm represents a client who may be affected by the anti-speculation
doctrine to Denver basin determinations.

Testimony was heard by the following parties: Bill Fronczak, representing the staff, stated that staff takes the position that the Commission should not apply the anti-speculation doctrine
to the withdrawal of Denver Basin ground water within the Designated Basins. Mr. Fronczak stated that the staff would issue an order determining the amount of water that could be withdrawn
from the Denver Basin aquifer(s), and then a well permit would be issued pursuant to the water right and the statute regarding the 100-year aquifer life.

Mr. Andy Jones, attorney, of Lind, Lawrence and Ottenhoff, representing Lost Creek Ground Water and Upper Black Squirrel Creek Ground Water Management Districts, reported on why the
Commission should not encourage speculation. He stated that the districts he represents feel that in-basin uses should be favored and that all the resources in the district, including
Denver Basin water, should be used by permanent residents to improve local economies. The districts feel that if they have beneficial use for the water, they should be allowed to use
it.

Mr. Don McClary, attorney, representing Kiowa Bijou Ground Water Management District, stated that statute does apply to the anti-speculation doctrine and that the Ground Water Commission
is bound by a ruling by the judge. He also stated that the Ground Water Commission should use great care before they attempt to adopt any other position than that which conforms to
what the judge has already ruled on (i.e., the Bradbury case).

Mr. Mike Shimmin, on behalf of the Northern High Plains Ground Water Management Districts, stated that the decision that the Commission is considering has to be made in the context of
designated ground water law, and that the Commission only has jurisdiction to designated ground water, not non-tributary ground water.

Dave Taussig, attorney, from the audience, stated that this is an important policy decision and the legislature should make the decision.

Commissioner Castle clarified the position that the Commission took in the Bradbury case. She stated that the Commission did not take a position on whether the anti-speculation doctrine
applied to the determination of Denver Basin ground water within the Designated Basins. That decision was made by the Hearing Officer and was not appealed by the Bradbury applicant.
She also stated that the policy that evolved out of the Vidler Tunnel case was to prevent people from hoarding water. She stated that the Commission and the staff will do whatever
the court ordered in the Bradbury case, but it is under the Commission’s authority to advise the courts on what the appropriate policy should be under Designated Basin ground water.

Chairman Mikita stated that these comments will be taken under consideration and be continued at the Ground Water Commission meeting in May.

For the record, Mr. Don McClary stated that this may be a possible contempt issue and requested that, under the Open Records Act, the official record and tape of this meeting be kept
and available for inspection.

Report of the Executive Director by Hal Simpson – Mr. Simpson reported that the Ogallala Symposium was interesting and thanked Bill Fronczak for his work on the committee that organized
the symposium. With regard to the Arkansas River litigation, Mr. Simpson reported that mediation efforts were not successful and a 6 to 8 week trial will be held in June through August.
The main part of the trial will be to evaluate Colorado’s compact compliance from 1997 to the present, as well as into the future. The trial will be a battle of experts in modeling,
and experts in evapotranspiration requirements, to allow the Special Master to determine if the rules are adequate or will need to be adjusted.

Mr. Simpson reported that the Northern High Plains Ground Water Levels Report, prepared by George Van Slyke and his staff, is available and copies were distributed to the Commissioners.
He stated that the Well Tester Certification Program and testing will be held in April to obtain certification as a well tester by the state.

With regard to snowpack, Mr. Simpson reported that statewide we are at 54% of average and it will be the third consecutive year that snowpack has been well below average. Unless we
get substantial spring rains, we will go into summer with the potential for a third year of drought.

Mr. Simpson reported that a case from Water Division 2 (Empire Lodge Homeowners Association v. Moyer), on an appeal to the Colorado Supreme Court, regarding the authority of the State
Engineer to approve substitute water supply plans involving out of priority depletions, was recently decided. The Supreme Court found that the State Engineer could not approve certain
types of substitute supply plans, and this was the basis for approving plans, particularly in the South Platte River basins that operate on a year-to-year basis. The three main water
augmentation groups are GASP, Lower South Platte, and Central, with approximately 4,000 irrigation, municipal, or commercial wells. Mr. Simpson stated that they are seeking legislation
to clarify that the State Engineer has limited approval to approve substitute supply plans in three areas: the plans pending in water court, those where the operation is no longer than
five years, and emergency cases for a period of not more than 90 days. The State Engineer’s Office is moving to amend the 1974 South Platte Rules and attempt to minimize the objections
to rules and file them by early April.

Status of the Kansas v. Nebraska and Colorado litigation - Republican River Compact by Hal Simpson – Mr. Simpson reported that mediation began in November and will continue through the
end of March. The Special Master moved the trial date back to July 2003 so they could focus on mediation. There is potential that a settlement could still be reached. The expert
reports are due this fall. All states have been waiting on the USGS model, which is still not completed.

Presentation on the Status of the Southern High Plains Aquifers Investigation by Wayland Anderson and Lara Harshfield of McLaughlin Engineers -- Mr. Anderson recognized Commissioner
Max Smith, Chuck Roberts, and the CWCB, for their involvement in the study. He reviewed the 2002 Phase 2 Study Scope of Work. Ms. Harshfield reported on the hydrologic model and the
various aquifer units. Mr. Anderson also reported on the monthly precipitation from March through October for the years 1999 to 2001, comparison of irrigated acreage, recoverable ground
water by aquifer unit, the life expectancy of ground water resources in the basin, and the conclusions. Among the twelve recommendations presented in the report, Mr. Anderson stated
that flow meters or appropriate measuring devices be used on high capacity wells to account for the amount of water being pumped, well spacing criteria be established, and that a funding
mechanism be established to support District activities.

Report on Water Quality Study in the High Plains Aquifers by Bill Fronczak -- Mr. Fronczak provided a brief overview of the results of the water quality sampling efforts in the High
Plains aquifer for the year 2000. Two hundred eighty-three samples were collected from domestic or livestock wells. Twenty-seven samples exceeded drinking water limits for nitrate
levels, 73% had nitrate present at 0.1 to 5.0 mg/L. The study results indicate movement of contamination as the samples that were low in drinking water standards in the 1997-98 study
were higher in 2000, and those that were higher in 1997-98 were lower in 2000.

Mr. Fronczak reported that for future sampling efforts, the 2002 water quality study will be scheduled in the Northern and Southern high plains, however, funding will determine the number
of samples that will be taken as well as what will be analyzed. It was agreed with the Department of Agriculture that 350 to 380 nitrate/nitrite samples will be tested. Mr. Fronczak
reported that results are usually received in three to four months. Commissioner Castle stated that she would like to see the results of the sampling be released quicker, particularly
to the people who are drinking that water.

Discussion took place regarding staggering testing between the front range basins area and the high plains. Mr. Simpson stated that there was a bill introduced last week that will require