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AdministrationMay04.doc May 21, 2004 MEMORANDUM TO: Suzanne M. Sellers, P.E., Team Leader, Designated Basins Branch FROM: Chris Grimes, Water Commissioner, Designated Basins Branch SUBJECT: Expanded Acres Administration: -There are around 100 expanded acre permit files in our admin database - 40% of the database. -60% of these records have significant breaks in the meter readings - we may have readings for 1994-1998 but we are missing 1998-2001. -For roughly 20% of the records in our Admin database we have never received any meter reports. -Last year around 7% of the water users with expanded acres requiring administration over pumped their wells. -We have problems with water users failing to enter into administrative contracts. -When meters breakdown the administrative agents are unable to get any accurate reading. Last year there were around 10 faulty meters. -There are a significant number that utilize power coefficients, which expire every four years. Some have expired, while others are close to it. I would guess there are probably another 50-100 expanded acre operations that require administration, and are not in our database. S:\DesBasPrograms\GWC Meetings\May 2004\AdministrationMay04.doc AG Report2004-05-21.docATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission May 21, 2004 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 the Court concluded that the Commission no longer has jurisdiction of the matter and the Court would hear the dispute. At the August Commission meeting, the Commission directed the Staff to negotiate a settlement with the applicant if the parties were not able to reach a three way settlement, with the District, by September 30, 2003. No such settlement was reached, and the Staff sent its proposed stipulation to the Commission and to the District for comments. Minor modifications to the stipulation were made as a result of comments received from the District, and the stipulation was signed. The Court approved the Stipulation, but it was challenged by the District, which asserted that the Commission could not agree to a Stipulation until after there had been a hearing on the applications. The Court disagreed and the Order of the Court is now final. The case against the Commission is now concluded, and Stipulations have been entered into with the District and most of the other parties. The case is very close to being finished. 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. Motions affecting how this matter will proceed are pending before the District Court. 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. Reinaldo gallegos, et al. Case No. 03CV1335 Designated Basin: Upper Crow Management District: Before: 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. Gallegos has also filed a Motion to join this case with the case against the State Engineer. 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. The Court also denied the Motion to join this case with the case against the State Engineer. Status: The Plaintiffs have amended their complaint to include junior well permit holders. They have served most of those parties, who have retained attorneys and filed responses to the complaint. The next activity in the case is likely to be the filing of motions to ask the Court to determine the legal consequences of the Commission having established the designated basin. PEORIA CROSSING, LLC. Case No. 02-GW-18 Designated Basin: Kiowa-Bijou Management District: North Kiowa Bijou Before: Jody Grantham, Hearing Officer Attorney: Tanya Light Subject: Peoria Crossing filed an application for determination of water right to allow appropriation of designated ground water from the Laramie-Fox Hills aquifer underlying its 241.36 acre property. Peoria Crossing filed an appeal challenging the Staff’s calculation of a cylinder of appropriation for an existing well owned by LaFarge West, Inc., and the resulting decrease in the amount of allocation determined for the aquifer underlying Peoria Crossing’s property. Status: A hearing was held on October, 22, 2002. Peoria Crossing, LaFarge West and the Staff participated in the hearing. On December 2, 2002, the Hearing Officer issued his initial decision and found: (1) a cylinder of appropriation is not a water right, but rather a measure of the beneficial use that is the actual water right for a pre-213 well; (2) although LaFarge’s well was permitted and completed prior to implementation of the 1965 Act, the 1965 Act and modified prior appropriation doctrine apply to the determination of the final extent of LaFarge’s water right; (3) Staff’s calculation of the cylinder of appropriation for LaFarge’s well is incorrect; and (4) LaFarge does not yet have a final permit, and in order to proceed with the proper determination of the amount of water available to the Applicant, Staff must proceed with final permitting and notice of LaFarge’s water right in a separate proceeding. The Hearing Officer ordered that this matter is held in abeyance until Staff completes final permitting for LaFarge’s well, and ordered Staff to initiate final permitting within a reasonable time frame. Staff published the notice of intent to issue final permit on July 31, and August 7, 2003. LaFarge West filed a Motion to Vacate Order, which was subsequently withdrawn. On September 11, 2003, the Hearing Officer issued an order stating that the Initial Decision of the Hearing Officer is the Final Decision of the Commission. Lafarge and Staff are in the process of settling the Lafarge case. Once the settlement is complete, the Peoria Crossing case may proceed. WAYNE E. and frances g. booker Case No. 02-GW-20 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Susan Schneider and Tanya Light 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. The Applicant, District, Shubert Ranches and Staff participated in the hearing. 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. On November 17, 2003, the Applicants filed Exceptions to the Hearing Officer’s Initial Decision. This matter will be heard on appeal by the Commission at the May 2004 meeting. WOODMAN HILLS METROPOLITAN DISTRICT Case No. 03-GW-04 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Tanya Light Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to Woodman Hill’s application for a replacement plan to allow withdrawals from the Dawson aquifer underlying a 1648.25 acre overlying land area, in accordance with Determination of Water Right Nos. 129-BD and 133-BD. Status: On November 14, 2003 the District and the Applicant entered into a stipulation whereby the District withdrew its objection. The Hearing Officer vacated a hearing that had been set for November 19 and 20, 2003, and ordered Staff to proceed with the administrative steps necessary to process the application. Staff has processed the application accordingly. This case has been re-set for a hearing before the Hearing Officer on June 21 and 22, 2004. jerry r. landress Case No. 03-GW-07 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya Light Subject: Objection by the Upper Black Squirrel Ground Water Management District to applications for determinations of water right to allow appropriations from the Laramie-Fox Hills, Dawson, Arapahoe, and Denver aquifers underlying a 119.34 acre property. Status: A hearing before the Hearing Officer was set for August 20, 2003. On August 12, 2003, the Staff filed a Motion for Summary Judgment to vacate the hearing and for an order holding that (a) The Applications are not speculative; (2) District Rules do not apply to the Applications. The District filed a response in opposition to the Motion on both issues. On September 29th, the Hearing Officer issued his Order finding: (1) The Applicant has satisfied the Commission’s criteria and the applications are not speculative; (2) As a matter of law, the applicability and effect of District rules is not relevant to the resolution of this determination of water right; and (3) The Motion for Summary Judgment is granted. The District filed exceptions to the September 29, 2003 Order. This matter was to be heard on appeal at the February 2004 Commission meeting, but the District withdrew its Appeal on February 5, 2004 according to a stipulation that it entered into with the Applicant. Consequently, the Initial Decision was made a Final Order of the Commission. This case is closed. falcon school district 49 Case No. 03-GW-08 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya Light Subject: Objection by the Upper Black Squirrel Ground Water Management District to Falcon School District’s application for a replacement plan to allow withdrawals from the Dawson aquifer underlying a 40 acre overlying land area, in accordance with Determination of Water Right No. 307-BD. Status: A hearing before the Hearing Officer was set for November 14, 2003. On November 13, 2003, the Applicant and District entered into a Stipulation, and as a result, the District withdrew its objection. Consequently, the Hearing Officer vacated the hearing and ordered Staff to take necessary steps to finalize approval of the plan. This case is closed. jay harris Case No. 03-GW-09 Designated Basin: Northern High Plains Management District: Frenchman Before: Jody Grantham, Hearing Officer Attorney: Tanya Light Subject: Appeal by Mr. Harris to the denial of his application to appropriate additional water and increase the acres irrigated by the well with Permit No. 6366-FP. Status: A hearing before the Hearing Officer was set for December 3 and 4, 2003. In response to additional modeling being performed, Staff re-evaluated the application and determined that the application could be given favorable consideration. As a result, on November 14, 2003, Staff filed a Motion to Reverse Staff’s Denial, To Publish Application and to Dismiss Appeal. The Hearing Officer granted the Motion to dismiss and remanded the matter back to Staff for publication. Case Closed. rmbg, llc. Case Nos. 03-GW-10 and 03-GW-11 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya Light Subject: Objections by the District to applications for determinations of water right to allow appropriations from the Dawson, Arapahoe, and Denver aquifers underlying a 69.72 acre property and objections by the District to applications for determinations of water right to allow appropriations from the Arapahoe, and Denver aquifers underlying a 977.19 acre property. Status: A hearing before the Hearing Officer was set for January 23, 2004. On January 16, 2004, the Applicant filed a Motion to Continue the Hearing, because this case involved similar issues (the anti-speculation doctrine and application of district rules to an application for determination of water rights) as contained in a Motion for Summary Judgment filed in Application of Landress, Case No. 03GW07. The Hearing Officer ordered that the hearing be continued. On April 15, 2004 the District withdrew its objection. On April 23, 2004 the Hearing Officer dismissed the matter and vacated the hearing. This case is closed. MEADOW LAKE AIRPORT DEVELOPMENT CORP. Case No. 03-GW-12 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya T. Light Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to applications for determinations of water right to allow appropriations from the Laramie-Fox Hills, Arapahoe and Denver aquifers underlying a 163 acre property. Status: On October 17, 2003 the Hearing Officer’s representative held a scheduling conference to set a hearing in this case. At the scheduling conference, Steve Shuttleworth, representing the applicant, stated that the applicant no longer owned the property that was the subject of the application, and that the application would be withdrawn. The Hearing Officer’s representative asked Mr. Shuttleworth to submit a letter to Staff or Staff’s attorney withdrawing the application. Despite repeated telephone calls and requests from the Attorney General’s office, Mr. Shuttleworth never withdrew the application. On January 2, 2004 Staff filed a Motion to Dismiss this case, and on January 21, 2004 the Hearing Officer dismissed the case. Staff returned the application to the applicant. This case is closed. WU-HSIEN HSIEH, YEN Y. HSIEH, MING H. HSIEH, GORDON H. LEE AND LUCIA H. LEE (JOSHUA TRUSTEES) Case No. 03-GW-13 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Tanya T. Light Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to the applications for determinations of water right to allow appropriations from the Laramie-Fox Hills, Arapahoe and Denver Aquifers underlying a 76.3 acre property. Status: On October 23, 2003 the applicants filed a Motion for Summary Judgment to vacate the hearing set for December 16, 2003 and for an order holding that (1) the applicants have satisfied the Commission criteria and the application is not speculative; (2) the applicants are not required to adhere to District rules during the resolution of the determination of water right application; (3) the District’s request to review additional details regarding Applicant’s plan for the water be denied; and (4) that the matter be remanded to Commission Staff to take administrative steps required to proceed with the issuance of the determination of water rights. On November 6, 2003 the District filed a response in opposition to the Motion on all issues. On November 7, 2003 the Staff filed a Response in Support of the Applicant’s Motion for Summary Judgment asserting that (1) under Landress and Bradbury, the Commission has the authority to establish criteria to determine whether an application is speculative, and since this application meets that criteria, the application is not speculative; and (2) Bradbury clearly holds that the applicants are not bound by District rules in the permitting process because the District’s jurisdiction begins after the Commission has issued a well permit, which comes after approval of a determination of water right. On November 24, 2003 the Hearing Officer issued his Order finding: (1) The applicants have satisfied the Commission’s criteria and the application is not speculative; (2) The Motion for Summary Judgment is granted; (3) As a matter of law, the applicability and effect of District rules is not relevant to the resolution of this determination of water right application; (4) This matter is remanded to Staff to take the administrative steps required to proceed with the issuance of the determination of water rights consistent with this order; and (5) The hearing set for December 16, 2003 is vacated. The District filed exceptions to the November 29, 2003 Order. This matter was to be heard on appeal at the February 2004 Commission meeting, but the District withdrew its Appeal on February 5, 2004 according to a stipulation that it entered into with the Applicants. Consequently, the Initial Decision was made a Final Order of the Commission. This case is closed. appeal of rules adopted by the upper black squirrel creek ground water management district Case No. 03-GW-14 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya Light 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: A prehearing conference was held on November 5, 2003. The Hearing Officer determined that the Commission has no jurisdiction to hear appeals of rules regarding small capacity wells, and therefore has no jurisdiction to hear the appeal of proposed District Rule 3. The parties agreed that the remaining issues could be decided on the briefs, and therefore the hearing set for March, 2004 was vacated. In April 2004 the Hearing Officer issued Findings of Fact, Conclusions of Law and Initial Decision of the Hearing Officer, whereby he ruled that, as a matter of law, the District exceeded its statutory and decisional law authority, and therefore Rules 17, 18 and 19 were null and void. As of the date of this report, the District has not filed exceptions to the Initial Decision. However, the deadline for filing exceptions has not passed. lafarge west, inc. Case No. 03-GW-15 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Tanya T. Light Subject: LaFarge West filed an objection to the approval of its final permit. LaFarge objected to the utilization of 11.3 acre-feet as the measure of beneficial use and requested 31 acre-feet be utilized as the appropriate measure. Status: A hearing was held on February 2, 2004. LaFarge and the Staff participated in the hearing. Subsequent to the hearing, Staff and Lafarge agreed to settle the case by permitting the well for 14.1 acre-feet as the measure of beneficial use. The settlement agreement has not been signed as of the date of this report. ROBERT SOLBERG; HJK FAMILY PARTNERS, LTD, AND CORRAL RANCHES DEVELOPMENT CO. Case No. 03-GW-17 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya T. Light Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to applications for determinations of water right to allow appropriations from the Laramie-Fox Hills, Arapahoe, and Denver aquifers underlying a 185.3 acre property. Status: A hearing had been set for June 4, 2004. On April 15, 2004 the District withdrew its objection. On April 24, 2004 the Hearing Officer dismissed the matter and vacated the hearing. This case is closed. john and rita field Case No. 03-GW-18 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Tanya Light Subject: Objection by the Upper Black Squirrel Creek Ground Water Management District to the application to change the allowed beneficial uses for Determination of Water Right No. 273-BD. Status: A hearing before the Hearing Officer had been set for April 23, 2004. On March 26, 2004 the District withdrew its objection. On April 2, 2004 the Hearing Officer dismissed the case and remanded to the Staff for administrative action. P:NR\H2O\GWC\05-21 AG Report.doc 8 2 AgendaMay04.doc NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m. Friday May 21, 2004 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 24, 2004. Report of the Executive Director by Hal Simpson. Presentation on Subsurface Drip Irrigation (SDI) and Potential Benefits by Jim Phene of Netafim USA. Hearing on the Appeal of the Hearing Officer’s Initial Decision (Case No. 02-GW-20) in the Matter of Objections to the Applications to Relocate Wells with Well Permit Nos. 16265-R, 16271-R, 16272-R, 27560-F and 27585-F, located in the Upper Black Squirrel Creek Ground Water Management District in El Paso County, by Richard Mehren and Timothy Beaton, Attorneys for Wayne and Francis Booker. Discussion on Proposed Language for Future Rulemaking Regarding New Appropriations and Expansion of Acres in the Republican River Basin within the Northern High Plains by Suzanne Sellers. Staff Report by Suzanne Sellers. Report of the Attorney General by Tanya Light. 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 20, 2004 Commission Meeting. Adjournment. BookerBriefOpposingAppealFinal.docBEFORE THE GROUND WATER COMMISSION, STATE OF COLORADO Case No. 02-GW-20 __________________________________________________________________________ STAFF’S BRIEF OPPOSING THE BOOKERS’ APPEAL OF THE INITIAL DECISION AND ORDER OF THE HEARING OFFICER __________________________________________________________________________ IN THE MATTER OF EXCEPTIONS TO THE FINDING OF FACT, CONCLUSIONS OF LAW AND INITIAL DECISION OF THE HEARING OFFICER CONCERNING OBJECTIONS TO THE APPLICATIONS TO RELOCATE WELLS WITH WELL PERMIT NOS. 16265-R, 16271-R, 16272-R, 27560-F AND 27585-F, LOCATED IN THE UPPER BLACK SQUIRREL CREEK DESIGNATED GROUND WATER BASIN AND GROUND WATER MANAGEMENT DISTRICT IN EL PASO COUNTY. WAYNE AND FRANCES BOOKER, APPLICANTS __________________________________________________________________________ The Staff of the Ground Water Commission (“Staff”), by and through the undersigned Assistant Attorneys General, hereby submit this Brief Opposing the Exceptions to the Order of the Hearing Officer entered on September 17, 2003, filed by Wayne and Frances Booker (the “Applicants” or the “Bookers”) on November 17, 2003, and state as follows: FACTS The Bookers are the original owners of water rights decreed to Well Numbers 3 (27585-FP), 6 (27560-FP), 7 (R-16271-FP), 8 (R-16265-FP) and 9 (R-16272-FP) (collectively, the “Booker Wells” or the “wells”). The wells are located in Sections 17 and 20, Township 14 South, Range 62 West of the 6th PM, in the Upper Black Squirrel Creek Designated Basin and Ground Water Management District (the “District”). The wells are limited to irrigation use. Permit numbers 16265-R-FP, 16272-R-FP, 27560-FP and 27585-FP had replacement permits issued in 1985, but only one test hole was drilled under replacement Permit No.27585-FP-R No information on the saturated thickness was presented on the drilling log for this test hole. The replacement well was never completed and the test hole was plugged and abandoned. On February 14, 2002 the Bookers filed applications to relocate each well between distances of 1649 feet to 2256 feet from the permitted well locations. Because the proposed changes in location for each well were not within the 300-foot Ground Water Commission (“Commission”) limit nor within the 50-foot limit set forth in District Rule 4, the Staff evaluated these applications as changes of water rights, rather than replacement well applications, in accordance with Commission Rules. On July 12, 2002, the Staff published the proposed change in water rights. The District, Cherokee Metropolitan District, and Schubert Ranches objected to the applications. On September 9, 2003 the Hearing Officer conducted a hearing concerning the applications pursuant to C.R.S. § 24-4-105 and 2 CCR 402-3. Staff requested that the application for the well with permit number 16265-R be denied because Staff determined that no water was physically available at the original location, which precluded withdrawals at the new location. Staff also requested that the Hearing Officer grant the remaining four applications, but limit the future allowed annual withdrawals for each well to account for the greater saturated thicknesses at the proposed locations. On September 17, 2003 the Hearing Officer denied all of the applications, in part because: [u]nder the facts of this case all the applications are denied because the move requested constitutes “walking to water” and the limitations of Commission Rule 7.3.2 apply. The result