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03gw06Gallegos_ProcessingRecommendation..pdf 03gw06ProcessingRecommendation.pdf AG_Report2010-11-19.pdf Agenda2010November.doc Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of August 20, 2010 Report of the Executive Director by State Engineer Dick Wolfe Hearing on a petition by Lost Creek Land & Cattle Company, Equus Farms Inc., and Lost Creek Ground Water Management 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 that portion of the alluvial aquifer of the Lost Creek Designated Ground Water Basin located north of the line between Township 2 North and Township 3 North and west of the line between Range 61 West and Range 62 West, and to require replacement plans for new large capacity wells therein. Staff Report by Keith Vander Horst Educational presentation on administration of the Denver Basin Aquifers 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. 12 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 Deb Daniel 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 Stan Murphy Old Business Petition by the Gallegos’s to de-designate portions of the Upper Crow Creek Basin, Case no. 03-GW-06 New Business Selection of next year’s meeting dates Public Comments Executive Session (if needed) Adjournment NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION November 19, 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 19, 2010 Town of Castle Rock Council Chambers 100 N. Wilcox, 2nd Floor, Castle Rock, CO 80104 A G E N D A Agenda2010November.pdf AGReport2010-11-19.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 19, 2010 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 5, 2010. pETITIONS TO amend boundaries of basin—Kroskob and Uhrick Case No. 09CV61 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Morgan County District Court, Judge C. Vincent Phelps Attorney: Pat Kowaleski 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 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, 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, 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 February meeting. <Petitioners have appealed the Commission’s decision, and the matter will be heard “de novo” by the District Court. Status: The petitioners withdrew their appeal of the Commission’s decision, and the appeal was dismissed. 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: Jen Mele 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 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 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 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 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 water. Cherokee has appealed. Status: The matter heard by the Ground Water Commission at the August 20, 2010 meeting. The Commission affirmed the decision of the Hearing Officer. 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. The District Court has not yet ruled on whether Cherokee may use the waste water as a replacement supply. Meridian moved to intervene but that motion was denied.</ 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. Yokam land holdings, llc Case No. 09-GW-04 Designated Basin: Lost Creek Management District: None Before: Jody Grantham, Hearing Officer Attorney: 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, 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 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 in the case. Status: Applicant has withdrawn the application based on the amended rule declaring the Hay Gulch portion of the basin in which the new appropriations would be located to be over-appropriated. 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. Lost Creek (Main stem) petition for rulemaking Case No. 09-GW-13 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele 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 wells. Status: A fact finding hearing was held on September 13, 2010 in front of the Hearing Officer. The Hearing Officer received reports and information on the proposal. In addition to the petitioners Lost Creek Land & Cattle Company, Equus Farms, Inc., and the Lost Creek Ground Water Management District, requests for formal Party Status were received from Morgan County Quality Water District, PV Water III LLC, Sweetwater LLC, and Yokam Land Holdings, LLC. The last three listed parties did not participate in the Fact Finding hearing before the Hearing Officer. Yokam Land Holdings filed a notice that it would not participate in the oral argument rulemaking hearing before the Commission. On September 14, 2010 the Hearing Officer issued Findings of Fact which were supported by Lost Creek Equus, the District and Staff. The matter will go before the Ground Water Commission at the November 19, 2010 meeting. upper big sandy petition for rulemaking Case No. 09-GW-29 Designated Basin: Upper Big Sandy Management District: Upper Big Sandy Before: Jody Grantham, Hearing Officer Attorney: Jen Mele 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 and require replacement plans for new large capacity wells. Status: The unopposed petition went before the Commission at the August 20, 2010 meeting. The Commission ordered that rule be changed so that the Upper Big Sandy is considered <overappropriated and replacement plans are required for any new large capacity well. Northern colorado water association Case No. 09-GW-14 Proposed Designated Basin: Upper Spring Creek Management District: Before: Jody Grantham, Hearing Officer Attorney: Scott Steinbrecher 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 the petition largely due to the fact that they own the majority of the land within the proposed designated basin. Status: Due to a joint motion by the petitioner and objector Fort Collins the hearing in front of the Hearing Officer in this matter that had been scheduled for January 4-11, 2011 has been vacated and will be re-set. 5 6 AGReport2010-11-19.pdf AGReport2010-11-19-JMdraft.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 19, 2010 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 5, 2010. pETITIONS TO amend boundaries of basin—Kroskob and Uhrick Case No. 09CV61 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Morgan County District Court, Judge C. Vincent Phelps Attorney: Pat Kowaleski 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 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, 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, 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 February meeting. <Petitioners have appealed the Commission’s decision, and the matter will be heard “de novo” by the District Court. Status: The petitioners withdrew their appeal of the Commission’s decision, and the appeal was dismissed. 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: Jen Mele 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 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 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 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 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 water. Cherokee has appealed. Status: The matter heard by the Ground Water Commission at the August 20, 2010 meeting. The Commission affirmed the decision of the Hearing Officer. 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. The District Court has not yet ruled on whether Cherokee may use the waste water as a replacement supply. Meridian moved to intervene but that motion was denied. </ 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. Yokam land holdings, llc Case No. 09-GW-04 Designated Basin: Lost Creek Management District: None Before: Jody Grantham, Hearing Officer Attorney: 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, 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 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 in the case. Status: Applicant has withdrawn the application based on the amended rule declaring the Hay Gulch portion of the basin in which the new appropriations would be located to be over-appropriated. 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. Lost Creek (Main stem) petition for rulemaking Case No. 09-GW-13 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele 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 wells. Status: A fact finding hearing was held on September 13, 2010 in front of the Hearing Officer. The Hearing Officer received reports and information on the proposal. In addition to the petitioners Lost Creek Land & Cattle Company, Equus Farms, Inc., and the Lost Creek Ground Water Management District, requests for formal Party Status were received from Morgan County Quality Water District, PV Water III LLC, Sweetwater LLC, and Yokam Land Holdings, LLC. The last three listed parties did not participate in the Fact Finding hearing before the Hearing Officer. Yokam Land Holdings filed a notice that it would not participate in the oral argument rulemaking hearing before the Commission. On September 14, 2010 the Hearing Officer issued Findings of Fact which were supported by Lost Creek Equus, the District and Staff. The matter will go before the Ground Water Commission at the November 19, 2010 meeting. Moshe Silagi Case Nos. 09-GW-28 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for determination of water right in the Laramie-Fox Hills aquifer. The city of Aurora filed an objection. Status: Applicants stipulated with the one objector in the case and it has been remanded to Staff for issuance of Findings on the application. upper big sandy petition for rulemaking Case No. 09-GW-29 Designated Basin: Upper Big Sandy Management District: Upper Big Sandy Before: Jody Grantham, Hearing Officer Attorney: Jen Mele 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 and require replacement plans for new large capacity wells. Status: The unopposed petition went before the Commission at the August 20, 2010 meeting. The Commission ordered that rule be changed so that the Upper Big Sandy is considered <overappropriated and replacement plans are required for any new large capacity well. Northern colorado water association Case No. 09-GW-14 Proposed Designated Basin: Upper Spring Creek Management District: Before: Jody Grantham, Hearing Officer Attorney: Scott Steinbrecher 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 the petition largely due to the fact that they own the majority of the land within the proposed designated basin. Status: This hearing in front of the Hearing Officer in this matter has been postponed until January 4-11, 2011. 5 6 AGReport2010-11-19-KVHredline.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 19, 2010 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 5, 2010. pETITIONS TO amend boundaries of basin—Kroskob and Uhrick Case No. 09CV61 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Morgan County District Court, Judge C. Vincent Phelps Attorney: Pat Kowaleski 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 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, 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, 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 February meeting. <Petitioners have appealed the Commission’s decision, and the matter will be heard “de novo” by the District Court. Status: The petitioners withdrew their appeal of the Commission’s decision, and the appeal was dismissed. 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: Jen Mele 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 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 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 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 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 water. Cherokee has appealed. Status: The matter heard by the Ground Water Commission at the August 20, 2010 meeting. The Commission affirmed the decision of the Hearing Officer. 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