DWR_3348309

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 5/19/2006
• Subject: MEETING MATERIALS

AG Report2006-5-19.docATTORNEY GENERAL’S REPORT

Cases involving the Colorado Ground Water Commission
May 19, 2006

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

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
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
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
surface rights, and is not required to administer the basin based on the priority system.

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
administrator of surface rights. Assistant Attorney General Alexandra Davis is handling the latter litigation.

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
out permit holders, based on the Gallegos’ decreed surface right.

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
the litigation.

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
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
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,
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. Upon motion
by Gallegos’ the water court held his ruling to be a final order. Gallegos’ appealed the case to the Colorado Supreme Court and we cross-appealed. Gallegos’ Opening brief was received
by the AGO on January 27. Our Opening-Answer Brief was filed on March 28. Gallegos’ Answer-Reply is due Monday May 8, 2006.

cherokee metropolitan District Case No. 98 CW 80 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Dennis Maes, Water Judge Attorney:
Pat Kowaleski
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
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 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
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,
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.

Status: A hearing was to be held on November 4, 2005 to present testimony on the parties’ interpretation of the Stipulation, but the hearing was vacated and reset to December 16. Ass’t
Attorney General Alexandra Davis represented the Commission. The Court heard testimony on December 16 and 19, 2005 and on March 16, 2006 the Court ruled in favor of the Management
District and the Commission. The Metropolitan District has appealed the decision to the Supreme Court.

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 a 5-day trial has been set, to begin on December 28, 2006.

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:
Ginny Brannon
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. So far, Woodmen Hills has failed to submit the applications. Accordingly, on May 2, 2006, Staff notified Counsel
for Woodmen Hills that they must submit their new well permit applications by June 1, 2006. Woodmen Hills responded that they are working on designing a sump system that will replenish
the alluvial groundwater. If they show due diligence with this effort, Staff will likely extend the June 1, 2006 deadline by a couple of months.

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:
Ginny Brannon
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
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
effect on vested rights in the Upper Black Squirrel Creek Designated Basin.

A hearing was held before the Hearing Officer on November 17, 2005. The Hearing Officer found that the statutory provisions for abandonment of water rights under the Water Rights Determination
and Administration Act do not apply to designated basins, which are governed by the Ground Water Management Act. The Hearing Officer remanded the matter back to Staff to determine
the final recommendations regarding the maximum allowable extent of the water right. On January 24, 2006, Staff submitted a Statement of Compliance outlining all procedures followed
and submitting a final recommendation. On February 23, 2006, the Hearing Officer issued an order accepting Staff’s Statement of Compliance and directing Staff to issue the permit.
This case is now closed.

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: Ginny Brannon
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.

Because the replacement plan cannot be considered before the Staff approves the change of use applications, the Hearing Officer deconsolidated the cases. A hearing has been set for June
23, 2006 on the change cases.

HARMONY LAND AND CATTLE Case No. 05-GW-08 Designated Basin: Kiowa-Bijou Management District: Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon
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 is no longer an issue. Staff will soon issue a final permit.

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
Subject: This application concerns changes in the location of wells and use of those wells to include municipal use. The objection was based primarily on the change in consumptive use
and the resulting alleged injury to vested rights. This case was scheduled for a Prehearing conference on October 7, 2005, but was postponed to begin on February 21, 2006 due to pending
settlement negotiations. Stipulations have now been reached and this case will soon be closed.

pioneer irrigation district Case No. 05-GW-14 Designated Basin: Northern High Plains Attorney: Ginny Brannon Before: Jody Grantham, Hearing Officer
Subject: 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 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 Opposer’s 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.

Discovery is now underway and the Commission will hear oral argument on the Motion to Dismiss at its May 19, 2006 meeting.

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: Ginny Brannon
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 has 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.

WOODMAN HILLS METRO DISTRICT Case No. 05-GW-19, 20, 21 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney:
Ginny Brannon
Subject: These cases involve six applications to change the place of use to include three additional places of use areas. The Upper Black Squirrel Creek Ground Water Management District
filed an objection, which primarily concerns accounting for historical appropriations and return flow obligations. Woodmen Hills and the District reached a stipulation and the hearing,
scheduled for March 1, 2006, was vacated. These cases are now closed.

MERIDIAN SERVICE METROPOLITAN DISTRICT Case No. 05-GW-22, 23 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer
Attorney: Ginny Brannon
Subject: Meridian submitted four applications for changes of use. The Upper Black Squirrel Creek Ground Water Management District objected contending that, among other things, Meridian
has not provided detailed accounting that includes all past historical appropriations. Meridian and the District entered into a stipulation and the hearing, scheduled for April 7, 2006,
was vacated. This case is now closed.

PETER AND PAMELA MILLER Case No. 05-GW-24 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Ginny
Brannon
Subject: The Millers submitted an application for approval of a replacement plan. The Upper Black Squirrel Creek Ground Water Management District objected, contending that the replacement
plan, without any conditions or limitations, will result in an adverse effect on vested rights in the Upper Black Squirrel Designated Basin. The Millers and the District reached a stipulation
and the hearing, scheduled for May 5, 2006, was vacated. This case is now closed.

FRED HUBBS AND HELZER FARMS Case Nos. 06-GW-01, 02, 03 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon
Subject: These cases involve applications to change the use of wells from irrigation to include a myriad of other uses. These cases were consolidated for hearing purposes. The Lost
Creek Ground Water Management District objected contending, among other things, that approval of the applications, without any conditions or limitations, will result in an adverse effect
on vested rights in the Lost Creek Designated Basin.

Before the scheduled hearing, it came to Staff’s attention that the Applicants failed to pay their filing fee by the deadline mandated by statute. Staff filed a motion to dismiss the
case, which the Hearing Officer granted. Accordingly, the hearing, scheduled for April 17th, 2006, was vacated. This case is now closed.

MERIDIAN SESRVICE METROPOLITAN DISTRICT Case No. 06-GW-04 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer
Attorney: Ginny Brannon
Subject: Meridian submitted two applications involving a change of beneficial use, a change in the place of use, and a change in the annual amount of water to be withdrawn. The Upper
Black Squirrel Creek Ground Water Management District objected contending that, among other things, Meridian has not provided detailed accounting that includes all past historical appropriations.
A hearing is scheduled for June 26-27.

ELLICOT SPRING RESOURCES Case No. 06-GW-06 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Ginny
Brannon
Subject: Ellicott Springs Resources submitted two applications to change the allowed beneficial uses of two determinations. The Upper Black Squirrel Creek Ground Water Management District
objected contending that, among other things, the Laramie-Fox Hills aquifer may be tributary to the alluvial aquifer in the location of the determinations. A hearing is scheduled for
August 7, 2006.

TRIPLE BAR RANCH Case No. 06-GW-07 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon
Subject: Triple Bar Ranch applied for a determination of water right to allow the allocation of designated ground water from the Laramie-Fox Hills aquifer underlying a 2,853 acre property.
The Upper Black Squirrel Creek Ground Water Management District objected, contending, among other things, that the application is speculative. A hearing has been set for September 6,
2006.

buick power Case No. 06-GW-08 through 06-GW-21 Designated Basin: Upper Big Sandy Management District: Upper Big Sandy Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon
Subject: These cases involve 14 applications to construct a well to appropriate ground water from the alluvium of Big Sandy Creek or its tributaries to be used for industrial and commercial
purposes to supply water for a power plant project. Staff received seven objections from the Upper Big Sandy Ground Water Management District, the Town of Limon, and others. The objections
are largely based on the contention that approval of the applications will result in the impairment of existing rights. Because there was an error in the publication of these applications
regarding the intended place of use, Staff will file a motion to republish. A hearing setting conference is scheduled for May 10th.

6

8

AgendaMay06.doc

Determine quorum

Review and approval of agenda items

Approval of Minutes for Meeting of February 17, 2006

Report of the Executive Director by Hal Simpson

Hearing on the Motion to Dismiss (Case No. 05-GW-14) in the matter of the Senior Water Rights of the Pioneer Irrigation District, Colorado Board and Laird Ditch located in the Northern
High Plains Designated Ground Water Basins by Mike Shimmin ETAL, attorneys for 7 Ground Water Management Districts ETAL

Continued discussion on future rulemaking on proposed changes to the Colorado Ground Water Commission Rules of Procedure for all Adjudicatory Hearings by Joseph Grantham

Presentation on processing procedure for the Petition to Create the Box Elder Creek Designated Ground Water Basin by Keith Vander Horst.

Staff Report by Keith Vander Horst.

Report of the Attorney General by Ginny Brannon

District Reports:
Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Aaron Nein
W-Y GWMD by Jack Dowell
Arikaree GWMD by Roger Brenner
Plains and East Cheyenne GWMDs by _________
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

a. Selection of August Meeting location

Adjournment

NOTICE OF GENERAL MEETING OF THE
COLORADO GROUND WATER COMMISSION
May 19, 2006

Revised A G E N D A (cont.)

NOTICE OF GENERAL MEETING OF THE
COLORADO GROUND WATER COMMISSION

10:00 a.m., Friday, May 19, 2006

1313 Sherman St. Rm. 318
Denver, CO 80203

A G E N D A

AgendaMay2006.PDF
AGReportMay2006.PDF
Designation Process.doc STATE OF COLORADO
GROUND WATER COMMISSION
Division of Water Resources
Department of Natural Resources

1313 Sherman Street, Room 818
Denver, Colorado 80203
Phone [phone]
FAX [phone]
Bill Owens
Governor

Russell George
Executive Director, DNR

Hal D. Simpson, P.E.
Executive Director
May 19, 2006

TO: Colorado Ground Water Commission

FROM: Staff

RE: Designation Process, Proposed Box Elder Creek Designated Basin

Staff received a petition to create the Box Elder Creek Designated Ground Water Basin on March 6, 2006, along with a report in support of the petition, dated February 2006, prepared
by Leonard Rice Engineers Inc., entitled "Evaluation of the Box Elder Creek Alluvial Aquifer for Designation as a Ground Water Basin”.

General
The Commission may, pursuant to C.R.S. 37-90-106, determine designated ground water basins containing designated ground water. A determination may occur based on one or both of two
possible prongs under which designated ground water is defined in C.R.S. 37-90-103(6).

1st Prong - ”Ground water which in its natural course would not be available to and required for the fulfillment of decreed surface rights”.

2nd Prong - “Ground water in areas not adjacent to a continuously flowing natural stream wherein ground water withdrawals have constituted the principal water usage for at least fifteen
years preceding the date of the first hearing on the proposed designation of the basin”.

The petition seeks designation under both prongs.

Anticipated Processing Procedure

Staff performs a preliminary review of the petition and accompanying report to determine whether it contains the information required by C.R.S. 37-90-106(1)(b) & (2), including:
Name of aquifers within the proposed designated basin
Boundaries of each aquifer being considered
The estimated quantity of water stored in each aquifer
The estimated annual rate of recharge of each aquifer
The estimated use of groundwater in the area
A legal description of the proposed boundary of the basin