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<br />AG Report2010-5-21.docxATTORNEY GENERAL’S REPORT <br /> <br />ATTORNEY GENERAL’S REPORT <br />Cases involving the Colorado Ground Water Commission <br />May 21, 2010 <br />The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of May 7, 2010. <br />pETITIONS TO amend boundaries of basin—Kroskob and Uhrick <br />Case No. 09CV61 <br />Designated Basin: Kiowa-Bijou <br />Management District: North Kiowa-Bijou <br />Before: Morgan County District Court, Judge C. Vincent Phelps <br />Attorney: Pat Kowaleski <br />Subject: This matter involves two petitions to expand the boundaries of the Kiowa-Bijou Designated Ground Water Basin to include two square-mile parcels on the northeastern edge of <br /> the basin, one contiguous with the existing basin and the other not contiguous. Staff published the petitions pursuant to direction from the Commission and received two objections, <br /> one from the North Kiowa-Bijou Ground Water Management District and one joint objection from the Bijou Irrigation Co. and Bijou Irrigation District. Following a hearing on August 4-7, <br /> 2008, the hearing officer issued an order denying the petitions, ruling that the petitioners did not meet their burden of proof. The Commission affirmed this initial decision at the <br /> February meeting. <Petitioners have appealed the Commission’s decision, and the matter will be heard “de novo” by the District Court. <br />Status: A Motion to Dismiss two of the three claims of the complaint has been filed. There is no trial date yet. <br />appeal of rules adopted by the upper black squirrel creek ground water management district <br />Case No. 09CA131 <br />Designated Basin: Upper Black Squirrel <br />Management District: Upper Black Squirrel <br />Before: Colorado Court of Appeals <br />Attorney: Pat Kowaleski <br />Subject: Cherokee, Meridian Ranch, Meridian Service, Paint Brush Hills and Woodmen <br />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. The Upper Black Squirrel <br /> Creek District issued rules limiting withdrawals from large capacity wells, and, pursuant to statute, the Commission was required to approve the rules. On October 29, 2004, Cherokee <br /> et al 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 had not yet completed <br /> its review, and the matter was therefore not ripe for an appeal to District Court. The District Court put the matter on hold until the Hearing Officer and the Commission acted on the <br /> remand to the Hearing Officer. <br />On December 12, 2008, the El Paso County District Court upheld the Commission’s approval of the Management District Rules. On January 20, 2009, the District Court’s decision was appealed <br /> to the Court of Appeals by the parties who had objected to the rules. The Appellants sought to have the matter heard by the Supreme Court, prior to review by the Court of Appeals, <br /> but their request was denied by the Supreme Court. <br />Status: The case has now been fully briefed at the Court of Appeals, and unless oral argument is scheduled by the Court, the matter is ready for decision. <br />Moser v. Ground Water Commission <br />Case No. 07CV487 <br />Designated Basin: Proposed Box Elder Creek <br />Management District: <br />Before: Hon. James Hartmann, Weld County District Court <br />Attorney: Pat Kowaleski <br />Subject: The Commission denied the request of John Moser, et al, to create the Box Elder Creek Designated Basin, and Moser appealed the Commission’s decision to District Court. Pursuant <br /> to statute, the matter will be tried de novo by the Court. <br />Status: A 15 day trial was set for April 26-May 14, 2010, however with just one remaining petitioner who wished to designate only a portion of the original land described in the petition, <br /> the objectors filed a motion to dismiss which was granted. <br />CHEROKEE METROPOLITAN DISTRICT <br />Case No. 05-GW-15, 16, 17 <br />Designated Basin: Upper Black Squirrel <br />Management District: Upper Black Squirrel <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: These cases involve nine applications for the withdrawal of groundwater from the Upper Black Squirrel Designated Ground Water Basin on land leased by the applicant. <In its <br />November 2006 meeting, the Commission directed Staff to proceed with evaluation and publication of the applications and notify the legal land owners of the applications. The proceedings <br /> were stayed pending the outcome of a district court action to determine the legal effect and validity of the applicant’s leases. After the district court held that the Ground Water <br /> Commission has jurisdiction over this matter, the case went before the Hearing Officer for a hearing. The Hearing Officer determined that the leases did not convey rights to Denver <br /> Basin water, although also held that Cherokee does have the right to Denver Basin water in situations in which Cherokee has express consent from the landowner to withdraw Denver Basin <br /> water. Cherokee has appealed. <br />Status: The matter was set in front of the Ground Water Commission for oral argument on May 21, 2010, however because of an issue related to the availability of the transcript of the <br /> fact finding hearing, it has been delayed until the August 20, 2010 meeting. <br />cherokee metropolitan district <br />Case No. 08-GW-71 <br />Designated Basin: Upper Black Squirrel Creek <br />Management District: Upper Black Squirrel Creek <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: An application for approval of a replacement plan to make new appropriations from the alluvial aquifer within the basin. Objections were submitted by the District, along with <br /> four other water users in the basin. A hearing was held for two weeks in Denver beginning on June 8, 2009 during which the applicants completed their initial presentation and the objectors <br /> began their presentations. An additional week of hearing scheduled for August 3 through 7, 2009 was vacated following a ruling from the Division 2 Water Court regarding Cherokee’s <br /> use of some of its wells, subject to further negotiations and amendment of the proposed replacement plan. <br />Status: This case was consolidated with change cases 08GW78 and 09GW15, and the trial was set to continue in January 2010. In November of 2009, the Upper Black Squirrel Creek Ground <br /> Water Management District filed in District Court, in Case No. 98CW80 for a declaratory judgment asking the court to determine whether Cherokee is required to use its waste water as <br /> recharge for the basin or if that waste water can be claimed as replacement credit under a replacement plan. The District also filed for a preliminary injunction to prevent Cherokee <br /> from claiming waste water returns in the Basin as augmentation credit in the replacement plan in 08GW71 until the motion for declaratory judgment is resolved. The preliminary injunction <br /> was granted, and Cherokee filed a motion to dismiss for lack of jurisdiction which was denied. Cherokee has appealed the determination by the water court that it has jurisdiction to <br /> hear the issues raised by UBS to the Supreme Court. The matter is not yet fully briefed before the Supreme Court. <br />cherokee metropolitan district <br />Case No. 08-GW-78 09-GW-15</w:t></w:r></w <br />Designated Basin: Upper Black Squirrel Creek <br />Management District: Upper Black Squirrel Creek <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: Applications to change the type and place of use of wells. Objections were submitted by the District and other water users in the basin. Both cases were consolidated with <br /> 08GW71. <br />Status: See above. <br />edna farmer et al. <br />Case No. 09-GW-02 <br />Designated Basin: Upper Black Squirrel Creek <br />Management District: Upper Black Squirrel Creek <br />Before: Jody Grantham, Hearing Officer <br />Attorney: <br />Subject: This case involves the determination of water right in the Laramie-Fox Hills aquifer. An objection was filed by Cherokee Metropolitan District. The applicant moved to consolidate <br /> this case with 08GW71, the replacement plan application by Cherokee and Meridian Service Metropolitan District, and09GW03, another application for determination of water right (discussed <br /> below). This motion was denied by the hearing officer. <br />Status: The hearing officer will set the matter for a hearing. <br />daniel and theresa farmer et al. <br />Case No. 09-GW-03 <br />Designated Basin: Upper Black Squirrel Creek <br />Management District: Upper Black Squirrel Creek <br />Before: Jody Grantham, Hearing Officer <br />Attorney: <br />Subject: This case involves the determination of water right in the Laramie-Fox Hills aquifer. An objection was filed by Cherokee Metropolitan District. The applicant moved to consolidate <br /> this case with 08GW71, the replacement plan application by Cherokee and Meridian Service Metropolitan District, and 09GW02, another application for determination of water right (discussed <br /> above). This motion was denied by the hearing officer. <br />Status: The hearing officer will set the matter for a hearing. <br />Yokam land holdings, llc <br />Case No. 09-GW-04 <br />Designated Basin: Lost Creek <br />Management District: None <br />Before: Jody Grantham, Hearing Officer <br />Attorney: <br />Subject: An application for six new appropriations in the alluvial aquifer for irrigation and export for municipal purposes. An objection was filed by Morgan County Quality Water District, <br /> which has moved (with Staff’s consent) to stay the application pending the Commission’s consideration of its petition to amend Rule 5.2.5.2 so as to declare the Hay Gulch subdivision <br /> overappropriated. The applicant opposes the motion. The hea<ring officer granted a motion (consented to by all parties) by Lost Creek Land & Cattle Company, allowing it to intervene <br /> in the case. <br />Status: The matter has been stayed, upon consent by the Applicant, until resolution of the petition seeking to have the Commission enact a rule declaring the Hay Gulch portion of the <br /> basin (in which the new appropriations would be located) to be over-appropriated. <br />PV WAter II <br />Case Nos. 09-GW-5 through 10 <br />Designated Basin: Lost Creek <br />Management District: Lost Creek <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: Application for change of type and place of use of wells. Two objections were filed. Applicants stipulated with the objectors and moved for a remand to Staff. <br />Status: The matter was remanded back to Staff and Staff has approved the applications. <br />meridian service metro district <br />Case No. 09-GW-11 <br />Designated Basin: Upper Black Squirrel <br />Management District: Upper Black Squirrel <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: Application for a change of water right. Two parties filed objections. <br />Status: The hearing set for February 25 and 26, 2010 has been stayed because the water rights to be changed were for use in the replacement plan in 08GW71. The matter is stayed pending</ <br /> resolution of the motions for declaratory judgment and preliminary injunction in 98CW80. <br />Hay gulch petition for rulemaking <br />Case No. 09-GW-12 <br />Designated Basin: Lost Creek <br />Management District: Lost Creek <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: Petition for a rulemaking to amend Rule 5.2.5.2 to make the Hay Gulch subbasin of the Lost Creek Designated Basin overappropriated and to require replacement plans for new <br /> large capacity wells. <br />Status: A fact finding hearing was held before the Hearing Officer March 15-19, 22-23, 2010. <The petition will go before the Ground Water Commission on May 21, 2010. <br />Lost Creek (Main stem) petition for rulemaking <br />Case No. 09-GW-13 <br />Designated Basin: Lost Creek <br />Management District: Lost Creek <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: Petition for rulemaking to amend Rule 5.2.5.2 to make the main stem of the Lost Creek Designated Basin overappropriated and to require replacement plans for new large capacity <br /> wells. <br />Status: A fact finding hearing has been set for September 13-22, 2010 in front of the Hearing Officer and the matter will go before the Ground Water Commission on November 19, 2010. <br />PV WAter II <br />Case Nos. 09-GW-16 through 27 <br />Designated Basin: Lost Creek <br />Management District: Lost Creek <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: Application for change of type of use of wells. Two objections were filed. Applicants have stipulated with one of the objectors but two objectors remain. <br />Status: Applicant has entered into stipulations with the objectors. The matter was remanded back to Staff and Staff has approved the applications. <br />Moshe Silagi <br />Case Nos. 09-GW-28 <br />Designated Basin: Lost Creek <br />Management District: Lost Creek <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: Application for determination of water right in the Laramie-Fox Hills aquifer. The city of Aurora filed an objection. <br />Status: The matter is set for hearing before the Hearing Officer on August 5, 2010. < <br />upper big sandy petition for rulemaking <br />Case No. 09-GW-29 <br />Designated Basin: Upper Big Sandy <br />Management District: Upper Big Sandy <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: Petition for rulemaking to amend Rules 5.2.7.1 and 5.2.7.2 to define the extent of the alluvial aquifer and determine the alluvial aquifer within the basin is overappropriated <br /> and require replacement plans for new large capacity wells. <br />Status: A hearing has been set for June 23 and 24 in front of the Hearing Officer, and will go before the Commission at the August 20, 2010 meeting. <br />Northern colorado water association <br />Case No. 09-GW-14 <br />Proposed Designated Basin: Upper Spring Creek <br />Management District: <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Scott Steinbrecher <br />Subject: Petition to form new designated basin filed by the owners of several wells located just west of I-25 and south of the Colorado-Wyoming border. Fort Collins has objected to <br /> the petition largely due to the fact that they own the majority of the land within the proposed designated basin. <br />  <br />Status: This hearing in front of the Hearing Officer in this matter has been postponed until January 4-11, 2011. <br />Cridlebaugh, Jody <br />Case No. 10-GW-1 <br />Designated Basin: Kiowa-Bijou <br />Management District: North Kiowa-Bijou <br />Before: Jody Grantham, Hearing Officer <br />Attorney: Jen Mele <br />Subject: Application for change in use of water rights in the Upper Arapahoe aquifer. The North Kiowa-Bijou Ground Water Management District has filed an objection. <br />  <br />Status: A hearing will be set by the Hearing Officer. <br />6 <br />6 <br />Agenda2010May.doc <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />Determine quorum <br /> <br />Review and approval of agenda items <br /> <br />Recognition of Doug Shriver <br /> <br />Approval of Minutes for Meeting of February 19, 2010 <br /> <br />Report of the Executive Director by State Engineer Dick Wolfe <br /> <br />Hearing of an appeal by Cherokee Metropolitan District to the Hearing Officer’s Findings of Fact, Conclusions of Law and Initial Decision regarding applications for Determinations of <br /> Water Rights to ground water from the Laramie-Fox Hills, Arapahoe, and Denver Aquifers. Case nos. 05-GW-15, 16, & 17. <br /> <br />Hearing of a petition by Morgan County Quality Water District to amend Rule 5.2.5.2 of the Rules and Regulations for the Management and Control of Designated Ground Water to make overappropriated <br /> that portion of the Lost Creek Designated Ground Water Basin known as the Hay Gulch Subbasin and to require replacement plans for new large capacity wells therein. Case no. 09-GW-12. <br /> <br />Staff Report by Keith Vander Horst <br /> <br />Report of the Attorney General by Jen Mele. This is a background briefing on legal issues in the written report.  The Board may refer any item contained or discussed under this topic <br /> to Agenda Item No. 14 for discussion in Executive Session if the Board has questions about the litigation. <br /> <br />District Reports: <br />Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Nate Midcap <br />W-Y GWMD by Jack Dowell <br />Arikaree GWMD by Rod Mason <br />Plains and East Cheyenne GWMDs by Deb Daniel <br />Southern High Plains GWMD by Max Smith <br />North KiowaBijou GWMD by Robert Loose <br />Upper Black Squirrel GWMD by Dave Doran <br />Upper Big Sandy GWMD by Dave Taussig <br />Lost Creek by GWMD by Thomas Sauter <br />Republican River Water Conservation District by Stan Murphy <br /> <br />Old Business <br /> <br />New Business <br /> <br />Public Comments <br /> <br />Executive Session (if needed) <br /> <br /> Adjournment <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />NOTICE OF GENERAL MEETING OF THE <br />COLORADO GROUND WATER COMMISSION <br />May 21, 2010 <br /> <br />A G E N D A (page 2, cont.) <br /> <br /> <br /> <br /> <br /> <br />NOTICE OF GENERAL MEETING OF THE <br />COLORADO GROUND WATER COMMISSION <br /> <br />10:00 a.m., Friday, May 21, 2010 <br /> <br />Town of Castle Rock Council Chambers <br />100 N. Wilcox, 2nd Floor, Castle Rock, CO 80104 <br /> <br />A G E N D A <br /> <br /> <br /> <br /> <br /> <br /> <br />Agenda2010May_Amended.doc <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />Determine quorum <br /> <br />Review and approval of agenda items <br /> <br />Recognition of Doug Shriver <br /> <br />Approval of Minutes for Meeting of February 19, 2010 <br /> <br />Report of the Executive Director by State Engineer Dick Wolfe <br /> <br />Hearing of a petition by Morgan County Quality Water District to amend Rule 5.2.5.2 of the Rules and Regulations for the Management and Control of Designated Ground Water to make overappropriated <br /> that portion of the Lost Creek Designated Ground Water Basin known as the Hay Gulch Subbasin and to require replacement plans for new large capacity wells therein. Case no. 09-GW-12. <br /> <br />Staff Report by Keith Vander Horst <br /> <br />Report of the Attorney General by Jen Mele. This is a background briefing on legal issues in the written report.  The Board may refer any item contained or discussed under this topic <br /> to Agenda Item No. 13 for discussion in Executive Session if the Board has questions about the litigation. <br /> <br />District Reports: <br />Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Nate Midcap <br />W-Y GWMD by Jack Dowell <br />Arikaree GWMD by Rod Mason <br />Plains and East Cheyenne GWMDs by Deb Daniel <br />Southern High Plains GWMD by Max Smith <br />North KiowaBijou GWMD by Robert Loose <br />Upper Black Squirrel GWMD by Dave Doran <br />Upper Big Sandy GWMD by Dave Taussig <br />Lost Creek by GWMD by Thomas Sauter <br />Republican River Water Conservation District by Stan Murphy <br /> <br />Old Business <br /> <br />New Business <br /> <br />Public Comments <br /> <br />Executive Session (if needed) <br /> <br /> Adjournment <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />NOTICE OF GENERAL MEETING OF THE <br />COLORADO GROUND WATER COMMISSION <br />May 21, 2010 <br /> <br />A G E N D A (page 2, cont.) <br /> <br /> <br /> <br /> <br /> <br />NOTICE OF GENERAL MEETING OF THE <br />COLORADO GROUND WATER COMMISSION <br /> <br />10:00 a.m., Friday, May 21, 2010 <br /> <br />Town of Castle Rock Council Chambers <br />100 N. Wilcox, 2nd Floor, Castle Rock, CO 80104 <br /> <br />A G E N D A - Amended <br /> <br /> <br /> <br /> <br /> <br /> <br />EnforcementItemsandActionsFeb-May.docx <br />Enforcement Items and Actions <br />Enforcement actions performed by staff this quarter are summarized below: <br /> <br />NORTHERN HIGH PLAINS <br />Plains GWMD: <br />While working on the Republican River metering program an illegal/unpermitted irrigation well was discovered to be in use on lands owned by Ralph Conrad. Staff has sent a show cause <br /> letter to Mr. Conrad and we are awaiting his response.< <br />Sand Hills GWMD: <br />Virginia and Barry Brown have agreed to reduce their illegally expanded acres to the amount on the final permit. In addition, the well will be equipped with a measurement device as <br /> required by the Republican River Measurement Rules. Staff will verify compliance at the end of May/beginning of June. <br />Arikaree GWMD: <br />It was reported that Billy Poenish has been using an illegal irrigation well. After further investigation it has been determined the well in question is unpermitted but is allowed under <br /> a surface water decree and it is being used with the confines of the decree. The enforcement issue is closed at this time. <br />KIOWA BIJOU <br />A large capacity well owned by Larry McCartney was identified to be in violation of the replacement plan associated with the well, specifically the allowable surface area of a pond identified <br /> in the replacement plan. Staff met with the owner and using a GPS unit the surface area of the pond using was found to be in excess of the allowable area. We are currently working <br /> with the owner to resolve the issue. <br />It was reported that Russell Hinkle has been using a well that was required to be plugged and abandoned as condition of the replacement permit. Mr. Hinkle has been sent a show cause <br /> letter and staff is awaiting his response. <br />North Kiowa Bijou GWMD: <br />Staff has scheduled a tentative field inspection to resolve the issue surrounding the contested illegal use of the five large capacity wells owned by Freund Investments. The inspection <br /> will take place the week of the May GWC meeting and a representative from the GWMD and Freund Investments will be present to help us come to a resolution. <br />Grd Wtr Comm - Hrg Off Report 5-21-10.rtf HEARING OFFICER'S REPORT <br /> Colorado Ground Water Commission <br /> May 21, 2010 Meeting <br /> The listing below summarizes all adjudicatory matters pending before the Colorado Ground Water <br /> Commission as May 21, 2010. <br /> Box Elder Creek Designated GW Basin, Case number: 06-GW-23 <br /> Designated Basin: Date of request: 03-Mar-06 <br /> Management District: <br /> Date of Hearing: 18-May-07 Place of hearing: Rm 318 <br /> Subject: Creation of the Box Elder Creek Designated Ground Water Basin. <br /> Status: Hearing is scheduled on January 16, 2007 and continue though January 17, 22, 23, 24, <br /> 25, 26, 29 and 30, 2007. The Hearing will be held in Room 318. <br /> Staff's position statement due October 31, 2006. All dispositive motions to be <br /> considered by the Hearing Officer prior to the hearing must be filed no later than <br /> November 15, 2006. Response briefs are due no later than November 30, 2006. Reply <br /> briefs must be filed no later than December 6, 2006. All discovery is to be completed by <br /> December 20, 2006. Prehearing Statements are to be filed with the Hearing Officer no <br /> later than December 29, 2006. All exhibits, including a final listing of all exhibits to be <br /> introduced at the hearing, are to be exchanged between the parties no later than January <br /> 5, 2007. A final list of witnesses that will be called during the hearing is to be filed with <br /> the Hearing Officer and served upon all parties no later than January 5, 2007. Pretrial <br /> briefs may be filed no later than five (5) days prior to the hearing. <br /> On October 30, 2006, East Cherry Creek Valley filed a Motion to Reconsider the Hearing <br /> Officer's Setting Order and Requested a Stay in the Proceedings until completion of the <br /> W.A.S. trial in water court based on numerous legal arguments. This motion is currently <br /> pending reply and response briefs. Update: All dispositive motions ruled upon. 9 day <br /> hearing complete. Decision of the Hearing Officer mailed on February 20, 2007. An <br /> appeal was filed on March 7, 2007. Oral Arguments held before the Ground Water <br /> Commission on May 18, 2007. Before District Court on Appeal. Certification of <br /> transcript was mailed on October 5, 2007. Hearing before District Court set for some <br /> time in 2010. <br /> 1 <br />