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201111_Minutes.pdf AG Report2011-11-18.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 18, 2011 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 4, 2011. cherokee Metropolitan district v. Ground Water commission and Colorado springs east airport Case No. 09CV4325 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: El Paso County District Court, Judge Larry E. Schwartz Attorney: Pat Kowaleski Subject: In 2007 the Airport published an application seeking to change Well Permit 6055-FP (the Williams Well No. 2), and Cherokee filed a statement of opposition. After a one day hearing, the Commission’s Hearing Officer granted a change, and assigned 65.9 a.f. of historic consumptive use to the well. Cherokee appealed the decision to the Commission, which affirmed the findings by Order of June 1, 2009. Cherokee subsequently appealed the Commission’s decision to the District Court on June 30, 2009, claiming that the findings with regard to historical consumptive use were not arrived at properly. A two and a half day trial was set to commence on February 1, 2011. Cherokee has subsequently obtained new counsel, and attempts have been made to settle the case. Status: The trial date has been vacated, the matter dismissed and the case closed. cherokee metropolitan district Case No. 08-GW-71 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele 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 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 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 use of some of its wells, subject to further negotiations and amendment of the proposed replacement plan. 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 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 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 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 was granted, and Cherokee filed a motion to dismiss for lack of jurisdiction which was denied. Meridian moved to intervene but that motion was denied. Both denials have been appealed the denial to the Supreme Court. The District Court recently ruled that Cherokee may not use the waste water as a replacement supply, and that issue has also been appealed to the Supreme Court. </The issue of Meridian’s intervention has been stayed pending determination of the waste water as a replacement supply issue. cherokee metropolitan district Case No. 08-GW-78 09-GW-15</w:t></w:r></w Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele 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 08GW71. Status: See above. edna farmer et al. Case No. 09-GW-02 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: 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 this case with 08GW71, the replacement plan application by Cherokee and Meridian Service Metropolitan District, and09GW03, another application for determination of water right (discussed below). This motion was denied by the hearing officer. Status: The hearing officer will set the matter for a hearing. daniel and theresa farmer et al. Case No. 09-GW-03 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: 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 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 above). This motion was denied by the hearing officer. Status: The hearing officer will set the matter for a hearing. meridian service metro district Case No. 09-GW-11 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for a change of water right. Two parties filed objections. 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</ resolution of the motion for declaratory judgment in 98CW80. DEAN GOSS Case No. 10-GW-04 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application to change the type and place of use of four wells. Objections have been filed by the Upper Black Squirrel Creek Ground Water Management District and Wayne and Francis Booker. Status: A hearing has been scheduled for March 19-23, 2012 in front of the Hearing Officer. Gallegos, Reinaldo, et al Case No. 03-GW-06 Designated Basin: Upper Crow Creek Management District: Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Petition to dedesignate portions of the Upper Crow Creek Designated Ground Water Basin. Background: The petitioners originally sent letters to the State Engineer in 2002 and 2003 seeking curtailment of wells within the Basin. The State Engineer declined to curtail wells and the petitioners appealed the issue of the Commission’s jurisdiction over surface water rights first to District Court and eventually to the Supreme Court. The Supreme Court held that the Commission has jurisdiction over surface water rights only to the extent the holder of surface rights seeks to change a boundary of a designated basin, in which case the surface rights owner must show that pumping of the designated ground water has more than a de minimis effect on the surface rights and is causing injury to those rights. The matter was remanded to the Commission. This application was filed with the Commission on August 11, 2010. Status: A hearing has been set for November 28 – December 9, 2011. </ front range resources Case No. 11-GW-03 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for determination of water right to Laramie-Fox Hills and Arapahoe Aquifers within the Denver Basin. Objection filed by Lost Creek Ground Water Management District. Status: A hearing has been scheduled for January 17-19, 2012 in front of the Hearing Officer. WILLIAM GREATHOUSE Case No. 11-GW-06 Designated Basin: Southern High Plains Management District: Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for final permit. Applicant does not agree with Staff’s assessment of the amount of irrigated land associated with the permit. Status: This matter is stayed while applicant applies for supplemental permit for the additional acreage. MICHAEL CASPER Case No. 11-GW-07 Designated Basin: Southern High Plains Management District: Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for appropriation of designated ground water. An objection to the application was filed by Walter Doke. Status: Mr. Doke withdrew his objection and the matter was remanded to Staff to act on the applications. DEAN GOSS Case No. 11-GW-08 Designated Basin: Upper Black Squirrel Creek Management District: Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application to change location of three wells further than a half mile from the original wells, which requires a variance from Rule 7.3.5. Objections to the application were filed by the Upper Black Squirrel Creek Ground Water Management District, Wayne and Frances Booker, and Schubert Ranches. Status: A hearing on the variance request was held before the Commission at the August 19, 2011 meeting, and the variance denied. The application was subsequently withdrawn and the case closed. 4 6 AG Report2011-11-18.pdf Agenda2011Nov.doc Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of August 19, 2011 Report of the Executive Director by State Engineer Dick Wolfe Follow-up presentation by Matt Poznanovic regarding Conditional & Final Permitting of municipal well permits Follow-up presentation by Michael Shimmin on proposed legislation granting GWMDs enforcement authority and ability to impose fines Staff Report by Keith Vander Horst 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 to Agenda Item No. 13 for discussion in Executive Session if the Board has questions about the litigation. District Reports: Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Nate Midcap W-Y GWMD by Jack Dowell Arikaree GWMD by Rod Mason Plains and East Cheyenne GWMDs by BreAnn Ferguson Southern High Plains GWMD by Max Smith North KiowaBijou GWMD by Robert Loose Upper Black Squirrel GWMD by Dave Doran Upper Big Sandy GWMD by Dave Taussig Lost Creek by GWMD by Thomas Sauter Republican River Water Conservation District by Deb Daniel Old Business New Business Selection of next year’s meeting dates and locations Public Comments Executive Session (if needed) Adjournment NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION May 21, 2010 A G E N D A (page 2, cont.) NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, November 18, 2011 Town of Castle Rock Council Chambers 100 N. Wilcox, 2nd Floor, Castle Rock, CO 80104 A G E N D A Agenda2011Nov.pdf Enforcement Items and Actions Nov Meeting.docx Enforcement Items and Actions NORTHERN HIGH PLAINS Central Yuma Jerry Brandt was found to be using an irrigation well for livestock purposes only. A show cause letter was sent out on October 31<st and we are awaiting Mr. Brandt’s response. If Mr. Brandt ceases the illegal use and returns to irrigation as permitted, he will be required to equip the well with a water measurement device.< UPPER BLACK SQUIRREL CREEK Upper Black Squirrel Creek GWMD On September 1, 2011 a cease and desist order was posted on a well operated by Dean Goss. Field inspections performed September 6th – 9th verified that Mr. Goss had ceased the well’s use and severed the line to the sprinkler. At this time the irrigation well is in compliance with the permit. Another field inspection will be performed in the spring to verify continued compliance. Last quarter Staff responded to complaint involving three irrigation wells owned by Mr. George Schubert. A show cause letter was sent to Mr. Schubert which he promptly responded to, and a field inspection was performed to verify well permit compliance. At that time, no violation was discovered, and Mr. Schubert signed a Well Permit Compliance Notice. Staff has since received a second complaint requesting that we inspect “any and all wells on the Schubert property to verify well permit compliance”. We are <currently in the process of seeking additional information regarding this request. We cannot proceed with an investigation until we have specifics on any violations. As required in recent a letter from Staff, Wayne Booker has shut down the irrigation wells suspected to be in violation of their permits. A field inspection will be required in the spring to verify continued compliance. We have received a second complaint involving wells owned by Mr. Booker claiming, “Mr. Booker has been re-drilling wells without capping the replaced well and then unlawfully pumping both wells.” It has been requested that Staff <“field inspect any and all wells on the Booker property to verify well permit compliance.” We are currently in the process of seeking additional information regarding this request. We cannot proceed with an investigation until we have specifics on any violations. KIOWA BIJOU Staff investigated wells owned by L & M Ranch to verify compliance with irrigation well permits and a replacement plan. A report received by our office indicated that a pond on the property had exceeded the size and area allowed under the replacement plan. A field inspection verified this to be the case and we are currently working with the owners to correct the violation. HearingOfficersReport2011-11-18.pdf Minutes Of-2011-08-19.pdf MinutesOf-2011- 08-19.docxMINUTES MINUTES THIRD QUARTERLY MEETING COLORADO GROUND WATER COMMISSION AUGUST 19, 2011 The Third Quarterly Meeting of the Colorado Ground Water Commission took place on August 19, 2011, at Castle Rock Town Hall, 100 N Wilcox, Castle Rock, Colorado. Chairman Dennis Coryell called the meeting to order at 10:00 a.m. Mr. Richard Nielsen called the roll and determined that a quorum was present. Commission members present were Carolyn Burr, Dennis Coryell, Corey Huwa, Earnest Mikita, George Schubert, Max Smith, Virgil Valdez, Alex Davis, Dick Wolfe and Suzanne Sellers. Staff members present were Kevin Rein, Keith Vander Horst, Richard Nielsen, Chris Grimes, Jay Bloomfield, Justina Farris, Ivan Franco, David Keeler, Matt Sares and Ralf Topper. Also present were Jody Grantham, Hearing Officer, Pat Kowaleski, A.G. for the Commission and Jennifer Mele, A.G. for staff. <Members of the public were also present. Review and Approval of Agenda Items, The agenda was approved as presented. Approval of Minutes for Meeting of May 20, 2011, Chairman Coryell asked if there were any corrections or additions to the minutes. <Commissioner Burr noted a typographical error on page 4 and Commissioner Sellers noted the misspelling of a name, also on page 4. There being no further comments, Commissioner Burr moved to approve the minutes as amended. Commissioner Schubert seconded the motion which carried unanimously. Biennial Election of Chair and Vice-Chair Commissioner Clever nominated Commissioner Coryell for chairman. Commissioner Bledsoe seconded the nomination. Commissioner Bledsoe moved to close the nominations and that Commissioner Coryell be elected Chairman by acclamation. Commissioner Clever seconded the motion which passed unanimously. Commissioner Clever nominated Commissioner Huwa as Vice Chairman. Commissioner Bledsoe seconded the nomination. Commissioner Bledsoe moved to close the nominations and that Commissioner Huwa be elected Vice-Chairman by acclamation. Commissioner Clever seconded the motion which passed unanimously. Report of the Executive Director by Dick Wolfe Mr. Wolfe introduced new staff members of the State Engineer’s Office. Mr. Matt Sares replaced Mr. Dave McElhaney as the team lead for the Hydrogeological Section and Mr. Ralf Topper replaced Mr. Michael Schaubs, both having retired in June. He also mentioned that Mr. Chris Kucera, a member of the Republican River enforcement team was experiencing some health concerns. Regarding the Republican River, Mr. Wolfe noted that negotiations with Kansas are ongoing. He also mentioned that the release of the conservation storage in Bonny Reservoir will begin after Labor Day. Commissioner Davis remind those present that the State will no longer maintain the park amenities and that if no volunteers come forward to do so they will be removed. Chairman Coryell called for agenda item no. 6, a presentation by Mr. Matt Poznanovic regarding concerns of municipalities in the matter of the development of their water rights. He informed the Commission that current law requires that the water right be based on the first three years of beneficial use, often going back forty (40) years or more. The use of the water then, before growth, was often less than actually permitted. Mr. Poznanovic stated the cities and towns that he represents are in growth corridors and need all the water that they were permitted for. He told the Commission that talks with interested parties would be ongoing and that he hoped to have proposed legislative changes to present them at the November meeting. These changes would allow all municipalities to claim beneficial use of the permitted water volume up to the date that the final permit is processed. Chairman Coryell called for agenda item no. 7, a presentation by Mr. Mike Shimmin regarding potential statutory changes to allow local management districts enforcement authority over well permits and the ability to impose fines. Mr. Shimmin informed the Commission that he and several interested parties had initiated conversations to amend 37-90-130(4) C.R.S.< to give local management districts more authority in enforcing their regulations and the ability to impose monetary penalties. He plans on presenting proposed language at the November meeting.< Mr. Shimmin answered questions of the Commissioners.< Chairman Coryell called for agenda item no. 8, a Hearing on a request by Dean Goss for a variance to Rule 7.3.5 to allow the points of diversion of well permit nos. 27565-FP, 27566-FP, and 27567-FP to be changed to a location more than ½ mile from the original permitted sites, consisting of an existing well, permit no. 11090-FP. Mr. Pat Kowaleski advised the Commission and the parties that the subject matter of the hearing is restricted to the variance request, all other matters would be dealt with in a later hearing if the variance request was granted. He also advised them as to the presentation timelines and procedures that will be followed during the hearing. Commissioner Schubert recused himself from the hearing. Commissioner Sellers recused herself from the hearing. Mr. Andy Jones, representing Mr. Goss addressed the Commission. He opened his remarks provid<ing a history of Mr. Goss’s current operations and what it he is attempting to accomplish by the variance request. He then described actions that his client took in researching the Wiebe water rights and developing the property. Mr. Jones explained the unusual hardship of his client as being a combination of three factors: an ambiguous order, Commission (staff’s) statement that the well could divert 1050 acre-feet and his client’s reliance on staff’s position in spending money and developing the property. <Mr. Jones then developed each of the three reasons for the unusual hardship claim in some depth. Mr. Jones stated that the order is ambiguous due to the unclear tense of the word “is” in paragraph 2. He also pointed to the lack of any language in the wording of paragraph two of the order that limited the annual withdrawal. He called Ms. Kathy Hare, former president of the Upper Black Squirrel Creek GWMD to testify as to her knowledge on the matter of the Commission’s position on the annual appropriation available to the well. She testified that in response to a complaint received by the District, she contacted staff and was told that the well could divert 1050 acre-feet of water until it was used for the changed uses. Mr. Jones next called Mr. Dean Goss to testify before the Commission. He testified to a conversation he had with staff about the permit, stating that when he came to Denver he was told by staff that the well could divert 1050 acre-feet for continued irrigation use. He also testified to the hardship he would experience if his request was not granted. <Mr. Goss stated that he would not only lose the initial investment and the current crop but his customers as well as it would take one (1) year to develop a new crop elsewhere causing them to go somewhere else for their sod. If the variance is not granted he would be out of business. Mr. Jones said that the testimony offered by Ms. Hare and Mr. Goss was to demonstrate that staff did take a position on the acre-feet. He <next addressed the arguments of the opposer’s. Regarding the opposer’s contention that the order is not ambiguous, Mr. Jones argued that if it were not, staff would not have said the well could produce 1050 acre-feet. As to the opposer’s contention of no financial hardship, he said that it is relative to the extent of the loss, depending on the wealth of the person involved. Mr. Jones cited several court cases to refute the contention that the Commission is not bound by staff’s comments. Mr. Jones then answered questions of the Commissioners. Ms. Lisa Thompson, representing the Upper Black Squirrel Creek GWMD, addressed the Commission. After summarizing the issue before the Commission as she understood it, Ms Thompson said that The Upper Black Squirrel Creek District does not believe that Mr. Goss will suffer unusual hardship because he has alternatives to his plan. She quoted from a report by his expert witness stating that piping water to the property from other sources is a viable option. She provided transcripts of a District Board meeting where Mr. Goss stated that he will pipe the water from the Log Wells to the Wiebe well. Further, Ms. Thompson showed that Mr. Goss had entered into a contract with the Cherokee Metropolitan District, which has a pipeline within approximately ½ mile of the Wiebe property to provide up to 400 acre-feet of water at either his property or the Wiebe property. Ms. Thompson also noted that Mr. Goss was an active witness in the Cherokee V<s Simpson case before the Supreme Court in 2006. In this case the court found that if there is a question as to limits of a permit, the interested person cannot rely on verbal or written statements by Commission staff to accurately interpret the permit limits and should bring the matter to the court for interpretation. Ms. Thompson closed her presentation by asking the Commission to deny the variance request and immediately issue a cease and desist order. Ms. Thompson answered questions of the Commission. Mr. Tim Beaton, representing Mr. Booker addressed the Commission. He stated that his client would provide evidence by direct testimony and asked that Mr. Booker be sworn in, whereupon he proceeded to question his client. Mr. Booker testified that he had been in the sod business since 1972. He disagreed with the claim of unusual hardship because he believed that the investment <would have been recouped with the first crop and Mr. Goss had already had 2 or 3 crops. He also testified that his request for a variance to move his wells 1700 feet in 2004 was denied. Mr. Beaton concluded his presentation by stating that Mr. Goss failed to prove his claim of unusual hardship and that the hardship was on the Basin. In response to a question by the Commission, Mr. Beaton stated that his client supports an immediate <issuance of a cease and desist order. Mr. Mike Shimmin, representing Schubert Ranches addressed the Commission. <He opened his remarks by saying that the Upper Black Squirrel Basin is in the top two of basins experiencing depletions. The water level at Schubert ranches has dropped fifty (50) feet when the original saturated thickness was only from sixty-five (65) to one hundred (100) feet. He next spoke on the claim that the 1992 order is ambiguous. Among other items he pointed out that paragraph nine (9) on page one (1) states that the annual appropriation shall be limited to 87 acre-feet. On the matter of staff’s changing opinion<, Mr. Shimmin stated that the water right is not defined by someone’s opinion but by the documents. The document in this case is the 1992 order. He stated that it is a matter of law that no one can reasonably rely on staff about their water right. Mr. Shimmin continued on to say that Rule 7.3.5 is there to save the owners of wells that would be <affected by another well moving more than one-half mile the trouble and expense of a hearing. He concluded by stating that there is no unusual hardship for Mr. Goss. Ms. Jennifer Mele, representing staff opened her comments to the Commission by stating that staff is in general agreement with the objectors in the case. She went on to point out that Rule 7.3.5 requires demonstration of unusual hardship, not hardship but unusual hardship, something other irrigators would not experience. Ms. Mele next spoke on the claim of ambiguity in the 1992 Findings and Order. She stated that the document is not ambiguous. It states what all the parties agreed to in 1992, specifically that the annual appropriation of the well shall be limited to 87 acre-feet until it is first used for the changed purposes. On the matter of staff’s alleged representation that the well could divert 1050 acre-feet until used for the changed purposes, Ms. Mele stated that typically that is correct for most current change of use approvals and would be mentioned in general conversations. In specific conversations staff would have requested that the question be submitted in written format allowing for a thorough inspection of the file and a written response. She asked the Commission to deny the request because Mr. Goss had failed to show unusual hardship. Ms. Mele provided staff’s summary of estimated pumping by the well since 1991 and stated that under any scenario, the Weibe well has over pumped. Ms. Mele concluded her comments by advising the Commission of the administrative action staff would take on the matter after they reached a decision. She said that i<f the variance is approved, staff would continue to withhold enforcement of the Weibe well limits in anticipation of the log well change being approved. If the request is denied staff will recommend to the Executive Director that a cease and desist order be issued. Mr. Keith Vander Horst testified before the Commission on behalf of staff. In his testimony he explained staff’s interpretation of the various annual appropriation numbers presented in the findings. He noted that the first paragraph under the initial decision and order states that the requested change is approved subject to the following conditions, therefore paragraph no. 2 which was referenced by applicant, is a condition of approval for the permit operation. Mr. Vander Horst next provided a history of the enforcement action on the matter beginning with the letter of complaint from Schubert Ranches in June of 2010 and ending with a meeting with Mr. Goss and other persons in October of 2010. Mr. Vander Horst stated that staff’s response to the complaint was to write Mr. Goss and advise him that the well could only divert 87 acre-feet based on his reading of the Findings and Order itself. <Mr. Vander Horst denied that staff made the statements as asserted by Ms. Hare and Mr. Goss. He then explained that today, when an applicant applies to change the use of a well, the findings and orders allow for the continued use of the well as originally permitted until such time as the approved change is implemented. However, in this case that is not what the findings and orders state. They state that the annual appropriation is 87 acre-feet until the approved change occurs when it is lowered. It is possible that the current practices led to a