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<br />11-01AGR.docATTORNEY GENERAL’S REPORT <br /> <br />Cases involving the Colorado Ground Water Commission <br />November 16, 2001 <br /> <br />The listing below summarizes all matters in which the Office of the Attorney General currently represents the Colorado Ground Water Commission. <br /> <br /> <br />EAGLE PEAK & PROSPECT VALLEY Case number: 96-GW-13, 99CV97 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: <br /> Pat Kowaleski <br />Subject: Application for ten new well permits and changes for 39 existing wells, with a replacement plan and export out of the District. <br />Status: At the November, 1998 meeting the Commission affirmed the Initial Decision of its Hearing Officer that it was not appropriate to hear the change applications of Eagle Peak because <br /> the Lost Creek District had not approved Eagle Peak’s export application. On January 14, 1999 Eagle Peak appealed this decision to the Adams County District Court and, among other <br /> 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 <br /> 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 <br /> on June 15, 1999. A Status Conference was held on December 13,1999 and a number of procedural matters were handled. The Court was unable to locate the administrative record which had <br /> been sent and the Commission staff is reconstructing the record to send to the Court. The case is on hold pending a determination by the Court on whether the case should be consolidated <br /> with the following item, or should be heard independently. ( See next item.) <br /> <br />EAGLE PEAK FARMS LTD Case Number: 98CV1727, 98CA1518 Designated Basin: Lost Creek Management District: Lost Creek Before: Adams County District Court Attorney: Pat Kowaleski <br />Subject: Denial by the Lost Creek District of Eagle Peak’s application for export <br />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 <br /> 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 <br /> 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 <br /> the Colorado Supreme Court on March 3, 2000 and the petition was denied on August 20, 2000. The case has now been returned to the District Court and there are Motions pending to determine <br /> whether the case should be consolidated with the previous item or whether it should proceed on its own. (The Commission is not a party to this case.) <br /> <br /> <br />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 <br />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 <br /> 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 <br /> for irrigation of the same 240 acre property. <br /> <br />Status: On August 7, the parties participated in a prehearing conference to clarify issues and procedures for the hearing. The hearing set for August 23, 2001 was vacated to allow <br /> Mr. Dunivan’s attorney time to prepare. The hearing has been re-set for November 19, 2001. <br /> <br />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 <br /> Officer Attorney: Matt Poznanovic <br />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 <br /> 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 <br /> acre property. <br />Status: The Hearing Officer ordered the consolidation of the cases, and a hearing was set for September 25, 2001. Subsequently, the Hearing Officer granted the Staff’s Motion to Publish <br /> in Washington County. While notice had previously been published in Logan County, the Staff believed that notice should also be published in Washington County. To allow time for the <br /> additional publication and objection period, the September 25 hearing was vacated. There were no new objections filed as a result of the additional publication. A 2-day hearing has <br /> been set for February 26 and 27, and will be held in Holyoke. <br /> <br />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 <br /> Poznanovic <br />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. <br /> <br /> <br />Status: A hearing is set for January 30, 2002. <br /> <br />DOREN LEE SHAULIS Case No. 01-GW-10 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: <br /> Matt Poznanovic <br />Subject: Objection by the Management District to the application for appropriation of designated ground water from the Laramie-Fox Hills, Arapahoe and Denver aquifers underlying a 40 <br /> acre property. <br />Status: A hearing is set for January 24, 2002. The Applicant has entered into a stipulation with the District, and as a result, the District withdrew its objection. It is expected <br /> that this case will be dismissed by the Hearing Officer. <br /> <br />UNIVERSITY OF COLORADO FOUNDATION Case No. 01-GW-11 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer <br /> Attorney: Matt Poznanovic <br />Subject: Objection by the Management District to the application for appropriation of designated ground water from the Laramie-Fox Hills, Arapahoe, Denver and Dawson aquifers underlying <br /> a 646.029 acre property. <br /> <br />Status: A hearing is set for January 18, 2002. The Applicant’s attorney has informed the attorney for the Staff that the parties intend to resolve this case through a stipulated settlement. <br /> <br />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 <br />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 <br /> 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 <br /> 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 <br /> the Constitution which declares that the water of the state is the property of the public and subject to appropriation. <br /> <br />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 <br /> Commission reviewed the initial decision and approved the applications. The District challenged this decision in Arapahoe County District Court and there has been significant activity <br /> since the last report. 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. <br /> 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 <br /> were set aside and the case was sent to the Adams County District Court. All the Motions will now be considered anew by that Court. <br /> <br />P:NR\H2O\GWC\8-01 AG Report.doc <br /> <br />4 <br /> <br /> <br />4 <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />AgendaNov01.doc <br /> NOTICE OF GENERAL MEETING OF THE <br /> COLORADO GROUND WATER COMMISSION <br /> <br /> 10:00 a.m. Friday November 16, 2001 <br /> <br />1313 Sherman St. Rm. 318 <br />Denver, CO 80203 <br /> <br /> A G E N D A <br />1 <br /> <br />Determine Quorum. <br /> <br />Review and Approval of Agenda Items. <br /> <br />Approval of Minutes for Meeting of August 17, 2001. <br /> <br />Report of the Executive Director by Hal Simpson. <br /> <br />Biennial Election of Chair and Vice-Chair. <br /> <br />Kansas v. Nebraska and Colorado litigation – Republican River Compact by Hal Simpson. <br /> <br />Hearing on a Request for Variance to Eliminate Administration Requirements Associated With a Commingling Authorization as Required by Rule 7.6.7 Within the Lost Creek Designated Ground <br /> Water Basin, by Mike Shimmin and Brad Peterson. <br /> <br />Staff Report by Suzanne Sellers and Megan Sullivan. <br /> <br />Report of the Attorney General by Matthew Poznanovic. <br /> <br />Management District Reports: <br /> a. Frenchman e. WY i. Southern High Plains <br /> b. Sand Hills f. Arikaree j. North KiowaBijou <br /> c. Marks Butte g. Plains k. Upper Black Squirrel <br /> d. Central Yuma h. East Cheyenne l. Upper Big Sandy <br />Lost Creek <br />Old Business <br /> <br />New Business <br /> <br />Next meeting scheduled for February 21 and 22, 2002 in Sterling, CO. <br /> <br />Ground Water Commission in Executive Session (12:00, Room 318) Concerning the Following Two Court Cases: <br /> <br />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 <br /> and Thomas H. Bradbury Et Al., Case No. 2001CV1652 (Arapahoe District Court, June 27, 2001). <br />State of Kansas v. State of Nebraska v. State of Colorado, No. 126 (October Term, 2000). <br /> <br />Adjournment <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />Final Permit Activity Aug01-Oct01.docFinal Permit Activity <br /> <br />For this last quarter, there was final permit activity within the Northern High Plains, Upper Crow Creek and Southern High Plains. <br /> <br />Activity in the Northern High Plains focused on those remaining conditional permits which were previously set aside due to their complexity or lack of cooperation from well owners. <br /> Specifically for the Northern High Plains, final permit activity continued with conditional permits within Yuma County. The owners of all un-clairfied permits within the remaining <br /> five groups have been contacted, though there is still the problem of a slow response from some well owners which delays the clarifying process. However, permits within one group have <br /> been clarified and published and another group of 60 permits has been clarified and is ready for publication as well as the group of permits with expanded acres. <br /> <br />Work on Upper Crow Creek has also begun. The list of wells requiring a final permit has been finalized and conditional permits issued for those wells without a permit but registered <br /> with the CWCB, registered as a map filing, or decreed. The preliminary evaluation of the approximately 130 permits has started and letters to well owners requesting the necessary information <br /> to clarify the permit will be sent out soon. <br /> <br />And finally, preparatory work continues on the Southern High Plains, with the list of all wells requiring a final permit close to being finalized. The approximately 1300 conditional <br /> permits have been sorted and physically grouped together, and the preliminary evaluation of the conditional permits within the first group has started. Letters to well owners within <br /> that first group, requesting the necessary information to clarify the permit will also be sent out soon. <br /> <br />As indicated in previous reports, there is the problem of lack of current ownership information within many of the permit files, which causes delays in the clarifying process. In order <br /> 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, <br /> if they have acquired wells or moved in the last 10 years. <br /> <br /> <br />PacketDistrictNov01.doc <br /> <br /> STATE OF COLORADO <br />GROUND WATER COMMISSION <br />Division of Water Resources <br />Department of Natural Resources <br /> <br />1313 Sherman Street, Room 818 <br />Denver, Colorado 80203 <br />Phone (303) 866-3581 <br />FAX (303) 866-3589 <br /> Bill Owens <br /> Governor <br /> <br /> Greg E. Walcher <br /> Executive Director, DNR <br /> <br /> Hal D. Simpson, P.E. <br /> Executive Director <br />