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AG Report2005-11-18.docATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 18, 2005 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. 05SA253 (03CV1335) Designated Basin: Upper Crow Management District: Before: Colorado Supreme 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. 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. 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. Status: The order by the District Court has been appealed to the Colorado Supreme Court. cherokee metropolitan District Case No. 98 CW 80 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Hon. Dennis Maes, Division 2 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: The hearing date has been changed to December 16, 2005. The parties will present testimony on the parties’ interpretation of the Stipulation. WAYNE E. and frances g. booker Case No. 04-CV-2800 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Hon. Larry Schwartz, 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. The original trial dates have been vacated and a new trial date has not been set. appeal of rules adopted by the upper black squirrel creek ground water management district Case No. 2004CV4457 Before: Hon. Larry Schwartz, El Paso County District Court 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 had not yet completed its review, and the matter was therefore not ripe for an appeal to District Court. The Commission issued a final order on August 18, 2005 and the matter is now in the jurisdiction of The District Court. James bilello Case No. 05-GW-07 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon Subject: James Bilello applied for a Determination of Water Rights to appropriate ground water from the Denver, Upper & Lower Arapahoe, and Laramie-Fox Hills Aquifers underlying an 80-acre tract of land. The City of Aurora, Paul Sack and John Sack submitted objections. A prehearing conference was held before the Hearing Officer on June 22. The case was scheduled to go to hearing September 16, 2005. A stipulation, however, was reached between the City of Aurora and Mr. Bilello and signed by the Hearing Officer on September 12, 2005. 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. The parties have exchanged Prehearing Statements, Exhibits, and Witness Lists and a hearing is scheduled before the Hearing Officer on November 17, 2005. 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 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. 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. 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 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. The hearing date will be set by phone conference on November 21, 2005. pioneer irrigation district Case No. 05-GW-14 Designated Basin: Northern High Plains Attorney: Ginny Brannon Before: Jody Grantham, Hearing Officer 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, all eight ground water management districts in the Basin, and the Republican River Water Conservation District. 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. Joe Huber Case No. 05-GW-09 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon This application concerns a determination of water right to allow the allocation of designated ground water from the Laramie-Fox Hills, Arapahoe, and Denver aquifers underlying an 80-acre property. The objection is based on ownership of the water right. A Pre-Hearing conference was set before the Hearing Officer on September 28, 2005 but the objector, Tony Cuchares, withdrew his objection after resolving the ownership dispute with Mr. Huber. 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 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 Pre-Hearing conference on October 7, 2005, but was postponed to begin on February 21, 2006 due to pending settlement negotiations and a stipulation that appears likely. 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 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 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 determine whether sufficient evidence of deemed consent can be provided by the Cherokee. The hearing date will be set by phone conference on November 9, 2005. 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 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 is 4 acre-feet, while Harmony’s position is that it is 177 acre-feet. Staff is currently waiting for information on historic beneficial use and Harmony has been directed to provide a status report by December 9, 2005. This case is likely to settle and is not set for hearing. RUSSELL RUBEN RICHARDSON Case No. 05-GW-18 Designated Basin: High Plains Management District: W-Y Before: Jody Grantham, Hearing Officer Attorney: Ginny Brannon Mr. Richardson filed an application for expanded acres for a permit and one objection, from Mr. Raymond Meis, was received by Staff. Mr. Meis did not state the basis for his objection and informed the Hearing Officer that he is unable to attend the hearing scheduled for December 1, 2005. The Hearing Office has requested written testimony and a notice by November 11, 2005 regarding whether Mr. Meis intends to continue in this matter. 6 7 AgendaNov05.doc Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of August 19, 2005 Report of the Executive Director by Hal Simpson Staff Report by Suzanne Sellers Report of the Attorney General by Ginny Brannon District Reports: Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Aaron Nien W-Y GWMD by Jack Dowell Arikaree GWMD by Roger Brenner Plains and East Cheyenne GWMDs by Shawn Shulte 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 Sheryl Wailes Republican River Water Conservation District by Stan Murphy Old Business New Business Selection of meeting dates for 2006 Adjournment Following Adjournment: Workshop for Colorado Ground Water Commission Members NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION May 20, 2005 Revised A G E N D A (cont.) NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, November 18, 2005 Parker Water & Sanitation District North Reclamation Facility Administration Building 18100 E. Woodman Drive (NW corner of E-470 and Parker Road) Parker, CO 80138 Phone: 303-841-4627 A G E N D A Directions to Parker WS.docParker Water & Sanitation District North Reclamation Facility Administration Building 18100 E Woodman Dr Parker, CO (303) 841-4627 Minutes-3rd '05.doc MINUTES THIRD QUARTERLY MEETING COLORADO GROUND WATER COMMISSION AUGUST 19, 2005 The Third Quarterly Meeting of the Colorado Ground Water Commission took place on August 19, 2005, in the Carson Auditorium, at Adams State College, 208 Edgemont Blvd., Alamosa, Colorado. Chairman Earnest Mikita called the meeting to order at 8:30 a.m. Marta Ahrens called the roll and determined that a quorum was present. Commission members present were Grant Bledsoe, Larry Clever, Dennis Coryell, Ralph Curtis, Corey Huwa, Frank Jaeger, Robert Loose, Max Smith, Russell George, and Hal Simpson. Ex-Officio Member Ted Kowalski was absent. Chairman Mikita welcomed Corey Huwa to the Commission and thanked Commissioner Curtis for organizing the Closed Basin Project tour. Review and Approval of Agenda Items - The Richardson hearing on a request for variance was postponed until 10:00 a.m. Approval of Minutes for Meeting of May 20, 2005 - Chairman Mikita asked if there were any corrections or additions to the Minutes of the May 20, 2005 meeting. Commissioner Coryell moved to accept the Minutes; the motion was seconded by Commissioner Jaeger and carried unanimously. Report of the Executive Director by Hal Simpson – Mr. Simpson thanked Commissioner Curtis for the tour of the Closed Basin Project and for organizing the dinner. He also expressed his appreciation to Senator Entz for holding the dinner at his farm. He stated that the tour was an educational opportunity for the Commission to view ground water issues in other areas of the state. Mr. Simpson stressed the importance of the Closed Basin Project to this part of the state, especially with regard to Rio Grande Compact compliance, and stated that the water provided by this project also assists the San Luis Valley in providing for augmentation of impacts from well pumping. He reported that the San Luis Valley is facing a crisis in the Closed Basin unconfined aquifer as more water is being pumped out than being recharged. Mr. Simpson reported on Senate Bill 222 and its criteria for protection of compact deliveries, protection of senior water rights, and protection of aquifer water levels for either a ground water management subdistrict or rules promulgated by the State Engineer. Rules were promulgated in June 2004 that requires new confined aquifer wells to replace depletions to the stream and to the aquifer. In June 2005, another set of rules were promulgated requiring that all wells greater than 50 gpm install totalizing flow meters. Mr. Simpson reported on the Republican River Conservation Reserve Enhancement Program (CREP). This program would provide incentives and cost-sharing to participants who enter their land into eligible conservation practices such as native vegetation for a period of 15 years. An application was submitted to the Natural Resources Conservation Service and staff are working with the District to prepare a response to a set of questions and resolve them so that the plan can be approved. Biennial Election of Chair and Vice-Chair - An election was held for the positions of Ground Water Commission Chair and Vice-Chair. Commissioner Max Smith was nominated and appointed unanimously as Chairman of the Commission. Commissioner Dennis Coryell was nominated and appointed unanimously as Vice Chairman of the Commission. There were no other nominations for either position. Hearing on a request for a variance to Designated Basin Rule 7.10.2 relating to applications by Ruben Richardson to expand the acres for the wells with Permit Nos. 2250-FP and 10239-FP, by Alan Curtis, attorney for Well Owner – Newly-elected Chairman Smith called the hearing to order. Ms. Susan Schneider, from the Attorney General’s Office, was conflicts counsel. The following persons addressed the Commission: Mr. Tim Buchanan, attorney, representing Ruben Richardson, stated that the request for variance is under the terms and conditions of the rules. This is a change of use case, more acres were irrigated than were originally permitted. The variance is not a change in what has been going on for many years, it is continuing the practice that has been in place since the wells were constructed. He stated that this is a paperwork issue, and there was a misunderstanding. Circumstances indicate that the proper paperwork was not filed since the Richardsons are not aware of every detail concerning water law. He requested that the Commission grant the variance request. The Richardsons will continue using the same volume, they are asking the Commission to include the acres that were actually irrigated. Mr. Ruben Richardson presented the situation that led up to this request for variance due to hardship. His future plans for irrigation are status quo to the previous years. Mr. Jack Dowell, of the W-Y Ground Water Management District, reported that he has not heard of conflicts from other users that Mr. Richardson’s wells are injuring others. They are in support of the variance request. Ms. Suzanne Sellers, staff, reported that the questionnaire completed by Russell Richardson in 1973 does not constitute an application for expanded acres, a statement of beneficial use is required. The applicant has to prove that he is not injuring others. If the Commission approves this variance, it will set a precedent for others who are awaiting the outcome of this case to expand acres. Ms. Ginny Brannon, from the Attorney General’s Office representing staff, stated that staff never approved the expanded acres. She also stated that the rules do not define unusual hardship. Unusual hardship is distinct from other users and sets this applicant apart from other users in the area. Mr. Mike Shimmin, attorney representing the Central Yuma GWMD, provided some history and framework to interpret and apply what has happened since 1965 regarding expanded acres. He stated that neither of the Richardson permits cover expanded acres. He also reported that in the case of the Richardsons, the expanded acres were not approved. The final permits were issued for the exact number of acres as in the original permit, and no appeal was filed. There were three compelling differences between the Hayes case and this case: the Hayes had an approved permit for expanded acres; the Hayes were issued an amended final permit and they filed a timely appeal to the permit; and the Hayes’ consumptive use as part of the variance was approved and was based on one year of lawful use of their well in 1977 while they were operating in complete compliance with the law. Mr. Shimmin fails to see how hardship applies for someone who has been told to stop doing something that is illegal, and he asked the Commission to deny the variance. Mr. Roy Smith, President of the W-Y Ground Water Management District, stated that when these wells were drilled, they were put to beneficial use. He asked the Commission to approve the variance. Discussion ensued between the Commissioners. Commissioner Jaeger stated that this is the case of a farmer who tried to rectify the mistake made by his father, and now he is being penalized for that. The Commission needs to come to a compromise since this has been going on for a long time. Mr. Simpson stated that the Commission needs to use the law to guide their decision. He’s concerned that if this variance is granted, the door will be opened for many others who have illegally irrigated to the detriment of their neighbors who have properly irrigated. He feels that the Richardsons have had the opportunity to deal with this legally and properly. Commissioner Jaeger made a motion to deny the variance. The motion was seconded by Commissioner Coryell. Commissioner Curtis abstained from voting. The motion passed. Staff Report by Suzanne Sellers - Ms. Suzanne Sellers presented the Staff Activity Report for the last quarter, the written report of which was included in the Commissioners’ packets. She reported on the small capacity and large capacity well permit applications, changes of water rights, final permitting activities, and hearings. There were several enforcement action items. Ms. Sellers also stated that a trip to Simla by staff is planned for October 5 through 7 to conduct field inspections. Staff continue to work with the Republican River Water Conservation District. She thanked the staff who went to the Southern High Plains. Report of the Attorney General by Ginny Brannon – Ms. Brannon stated that the report that provides a summary of the matters that the Attorney General’s Office is involved in was included in the packets. She also reported that the Pioneer Irrigation District filed a petition for a hearing with the Ground Water Commission seeking to ascertain the accuracy of the boundaries of the Northern High Plains Ground Water Basin for excluding water that is tributary, curtail pumping of some of the wells, and in some cases cease pumping all together. Management District and Conservation District Reports - Chairman Smith called for the Management District reports. Mr. Aaron Nein reported from the Frenchman, Sandhills, Marks Butte and Central Yuma Ground Water Management Districts. Mr. Nein stated that with regard to the well administration program, they had cooperation from Mother Nature in the spring, and the reports were completed in July. In July, the weather was very hot and dry, and a lot of water was pumped through the irrigation wells. A cease and desist order was issued to a well owner who exceeded his limit. He stated that there is a tremendous amount of natural gas drilling in Yuma County. Mr. Jack Dowell, from the W-Y Ground Water Management District, reported that they had moisture early and not as much water was pumped as in the previous year, but the weather dried up in June and more water was pumped. He also reported on the gas well pumping in Yuma. Arikaree Ground Water Management District. – Roger Brenner reported on similar moisture conditions in his area and gas production in his area. Commissioner Coryell, reporting for the Plains and East Cheyenne Management Districts, stated that Shawn Schulte is in the hospital with a severe case of pneumonia, a cist was found