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Agenda2009November.doc Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of August 21, 2009 Report of the Executive Director by State Engineer Dick Wolfe Petition by the Upper Big Sandy Ground Water Management District to initiate rulemaking to amend Rule 5.2.7.1 to re-define the extent of the alluvial aquifer in the Upper Big Sandy Basin, and to amend 5.2.7.2 so as to determine that the alluvial aquifer in the Upper Big Sandy Basin is overappropriated Petition by the Upper Big Sandy Ground Water Management District to correct clerical errors in the Commission’s Final Order and Decree forming the Upper Big Sandy Ground Water Management District 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. 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 Tracy 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 Follow up on proposed resolution by the Colorado Ground Water Commission recognizing the creation of a task force dedicated to securing the long-term sustainability of the Ogallala Aquifer in the Republican River Basin 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 November 20, 2009 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 20, 2009 Town of Castle Rock Council Chambers 100 N. Wilcox, 2nd Floor, Castle Rock, CO 80104 A G E N D A Agenda2009November.pdf Agenda2009November-WithError.doc Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of August 21, 2009 Report of the Executive Director by State Engineer Dick Wolfe Petition by the Upper Big Sandy Ground Water Management District to initiate rulemaking to amend Rule 5.2.7.1 to re-define the extent of the alluvial aquifer in the Upper Big Sandy Basin, and to amend 5.2.7.2 so as to determine that the alluvial aquifer in the Upper Big Sandy Basin is overappropriated Petition by the Upper Big Sandy Ground Water Management District to correct clerical errors in the Commission’s Final Order and Decree forming the Upper Big Sandy Ground Water Management District 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. 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 Tracy 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 Follow up on proposed resolution by the Colorado Ground Water Commission recognizing the creation of a task force dedicated to securing the long-term sustainability of the Ogallala Aquifer in the Republican River Basin New Business Public Comments Executive Session (if needed) Adjournment NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION August 21, 2006 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 20, 2009 Town of Castle Rock Council Chambers 100 N. Wilcox, 2nd Floor, Castle Rock, CO 80104 A G E N D A AGReport2009-11-20.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 20, 2009 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 13, 2009. 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: Disclosures and discovery have begun. There in no trial date yet. appeal of rules adopted by the upper black squirrel creek ground water management district Case No. 09CA131 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Colorado Court of Appeals 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. The Upper Black Squirrel Creek District issued rules limiting withdrawals from large capacity wells, and, pursuant to statute, the Commission was required to approve the rules. On October 29, 2004, Cherokee et al filed an appeal with the District Court in El Paso County. The Commission filed a Motion to Dismiss the District Court action on the grounds that the Commission had not yet completed its review, and the matter was therefore not ripe for an appeal to District Court. The District Court put the matter on hold until the Hearing Officer and the Commission acted on the remand to the Hearing Officer. On December 12, 2008, the El Paso County District Court upheld the Commission’s approval of the Management District Rules. On January 20, 2009, the District Court’s decision was appealed to the Court of Appeals by the parties who had objected to the rules. The Appellants sought to have the matter heard by the Supreme Court, prior to review by the Court of Appeals, but their request was denied by the Supreme Court. Status: The case has now been fully briefed at the Court of Appeals, and unless oral argument is scheduled by the Court, the matter is ready for decision. Moser v. Ground Water Commission Case No. 07CV487 Designated Basin: Proposed Box Elder Creek Management District: Before: Hon. James Hartmann, Weld County District Court Attorney: Pat Kowaleski Subject: The Commission denied the request of John Moser, et al, to create the Box Elder Creek Designated Basin, and Moser appealed the Commission’s decision to District Court. Pursuant to statute, the matter will be tried de novo by the Court. The Court ordered the setting of the trial to be stayed so as to allow the parties to brief the disputed legal issues, including the preclusive effect of the court’s final decree (to be issued this spring) in Central Colorado Water Conservancy District’s Well Augmentation Subdistrict case, which included findings by the court regarding the Box Elder Creek drainage. On July 31, Moser filed a 45 page Motion For Determination of Questions of Law. Status: The Court has ruled on the Motion, and the matter will now continue to trial. Trial has been set for April 26-May 14, 2010 (15 days). 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: 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. Following publication, the Commission received some 400 objections. However, the hearing officer ruled that only those objections—totaling about 80—that had been filed by the deadline and with the statutory $10 fee would be considered in the proceeding. The hearing officer issued an order setting a hearing in the matter. Prior to the hearing, the proceedings in this matter were stayed pending the outcome of a district court action to determine the legal effect and validity of the applicant’s leases. Status: A two-day hearing was held the first week in March. The Hearing Officer denied the application, finding that Cherokee did not meet its burden to show that it had the consent of the overlying land owners. Cherokee has appealed to the Commission and a hearing will be set for a future meeting. Dale and bonnie arnold Case Nos. 08-GW-07 & -08 Case Nos. 08-GW-76 & 77 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: This matter involves final permits for two wells. In the first set of two cases, Staff published information regarding the permits based on information in its files. The District objected, and the matter was set for a hearing. However, after negotiations between the District and the Applicants, it appeared to the Hearing Officer that the District withdrew its objection and he remanded the matter to Staff for issuance of final permits. The District moved to reinstate its objection, and the Hearing Officer denied the motion. The Commission affirmed this decision at the February 20, 2009 meeting. Following remand to Staff by the Hearing Officer, with the instruction to conduct an investigation of the water rights as necessary, the Staff concluded that the published information regarding the water rights was incorrect and that final permits should not be issued allowing pumping under them. The Staff republished with this information, and the Applicants and the District objected. Following the Commission affirmance of the initial decision in the related cases, the hearing officer, on the applicants’ motion, dismissed this proceeding Status: Staff will issue final permits for the wells shortly. 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 This matter involves 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 to 7 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 has been consolidated with 08GW78, a change case for one of the Cherokee wells, and a recently filed case, 09GW____, a change case for four other wells, all of which are to be used in the replacement plan. Nine additional days of hearing have been set for January 11, 13, 14 and 19 through 21, 25 through 28, 2010. cherokee metropolitan district Case No. 08-GW-78 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele This matter involves an application to change the type and place of use of a well. Objections were submitted by the District and other water users in the basin. Status: This matter has been consolidated with 08GW71 and 09GW____, and set for hearing January 11, 13, 14 and 19 through 21, 25 through 28, 2010. 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: 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: 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: This case involves 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: The matter has been stayed, upon consent by the Applicant, until resolution of the petition seeking to have the Commission enact a rule declaring the Hay Gulch portion of the basin (in which the new appropriations are located) to be over-appropriated. PV WAter II Case Nos. 09-GW-5 through 10 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele This is an application for change of type and place of use of wells. Two objections were filed. Applicants have stipulated with the objectors and has moved for a remand to Staff. Status: The hearing officer must rule on the motion for remand. 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 This is an application for a determination of water right. Two parties have filed objections. Status: The hearing set for October 20, 2009 was vacated and is now set for February 25 and 26, 2010. Hay gulch petition for rulemaking Case No. 09-GW-12 Designated Basin: Lost Creek Management District: Lost Creek Before: Jody Grantham, Hearing Officer Attorney: Jen Mele This is an application for a rulemaking to amend rule 5.2.5.2 to make the main stem of Lost over-appropriated and to require replacement plans for new large capacity wells. Status: This matter is set for hearing March 15-19, 22-24 and 30-31, 2010. 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 This is an application for a rulemaking to amend rule 5.2.5.2 to make the Hay Gulch basin over- appropriated and to require replacement plans for new large capacity wells. Status: Applications for party status are due October 30. The hearing officer will set a hearing. 6 6 AGReport2009-11-20.pdf CastleRockMap.pdf EnforcementItemsandActionsAug-Nov.docx Enforcement Items and Actions Enforcement actions performed by staff this quarter are summarized below: NORTHERN HIGH PLAINS Arikarre GWMD Following an enforcement action taken against Chester Wieser for irrigating illegally expanded acres, Mr. Wieser applied to expand his irrigated acres. His application for expanded acres has been approved. He is now required to have a third party read the meter installed on the well irrigating the expanded acres and submit the pumping reports to our office. We will perform a field inspection next spring to verify that Mr. Wieser has met the conditions of approval laid out in his Expanded Acres Authorization. < KIOWA-BIJOU Roy and Joyce Leake have responded to Staff’s show cause letter regarding their use of a small capacity well, permitted for domestic purposes, in a commercial business (poultry operation). The Leakes are currently hauling water for their operation and not using the small capacity well for unpermitted uses. Staff inspected the operation to verify their claims and violation was identified. At this time the enforcement action is closed. North Kiowa Bijou A show cause letter was sent to Freund Investments LLC after the North Kiowa Bijou GWMD district reported the company has been using large capacity wells without a permit. The wells in question were permitted at one time, but were canceled last year. Staff is awaiting their response. HOReport2009-11-20.pdf MinutesAugust2009.docxMINUTES MINUTES THIRD QUARTERLY MEETING COLORADO GROUND WATER COMMISSION AUGUST 21, 2009 The Third Quarterly Meeting of the Colorado Ground Water Commission took place on August 21, 2009, at Castle Rock Town Hall, 100 N Wilcox, Castle Rock, Colorado. Chairman Max Smith called the meeting to order at 10:00 a.m. Mr. Rick 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, Doug Shriver, Max Smith, Alex Davis, Dick Wolfe and Ted Kowalski for Jennifer Gimble. Staff members present were Kevin Rein, Keith Vander Horst, Rick Nielsen, Chris Grimes, David Keeler, Jim Martin, and Jay Bloomfield. Also present were Jody Grantham, Hearing Officer, Pat Kowaleski, A.G. for the Commission and Devin Odell, A.G. for staff. Review and Approval of Agenda Items – the agenda was approved as proposed. Approval of Minutes for Meeting of May 15, 2009 Chairman Smith asked if there were any corrections or additions to the minutes. There being none<, Commissioner Burr moved to approve the minutes as amended. Commissioner Shriver seconded the motion which carried unanimously. Biennial Election of Chair and Vice-Chair Commissioner Clever nominated Commissioner Coryell for chairman. Commissioner Shriver seconded the nomination. Commissioner Shriver moved to close the nominations and that Commissioner Coryell be elected by acclamation. Commissioner Clever seconded the motion which passed unanimously. Commissioner Clever nominated Commissioner Huwa as Vice Chairman. Commissioner Coryell seconded the nomination. Commissioner Shriver moved to close the nominations and that Commissioner Huwa be elected by acclamation. Commissioner Clever seconded the motion which passed unanimously. Report of the Executive Director by Dick Wolfe Mr. Wolfe advised the Commission that commissioners Bledsoe, Huwa and Mikita had been reappointed to the Commission. Mr. Wolfe began his statewide updates by noting that the water supply was good throughout the state, especially in the North East portion, the South Platte River and Republican River Basin. The reservoirs statewide are full, setting the State up well for next year. The annual Republican River Compact administration meeting was held in Lincoln Nebraska on August 12. Part of that meeting was a continuation of the April 28th special meeting concerning the approval of the Compact Compliance Pipeline. Again, the pipeline/augmentation plan did not receive approval <due to concerns of Kansas and Nebraska. Because the plan submitted is considered to be the best plan the committee can come up with we will be invoking binding arbitration today. It is hoped that continuing discussions with Kansas and Nebraska will resolve the issues before the arbiter makes his decision, probably no later than February. On the matter of staffing the Republican River well administration and compact compliance team, Mr. Wolfe advised the Commission that examinations had been finished and interviews were being set for the third of four positions on the team, this one for water commissioner. Mr. Wolfe informed the Commission that Bonny Reservoir continues to be monitored to strike a balance between compact compliance and recreational use. He also stated that almost 6,000 acre-feet have been released from the reservoir since last August. Mr. Wolfe concluded his comments on the Republican River Basin by advising the Commission that there are ongoing meetings in the basin to answer questions and keep the people informed on the status of the pipeline project. In Water Division 2, the Arkansas River Basin, Mr. Wolfe reported reaching a final agreement with Kansas on the last remaining issue, being the adequacy of the Compact Compliance Well Use Rules. After twenty four (24) years in litigation there is a final decree in place. There is hope that remaining issues can be worked out through Compact Administration process. Regarding the Irrigation Improvement Rules, the final advisory will be on September 21st. There are ongoing meetings with Kansas to address their concerns. It is hoped that the Rules can be submitted to the Water Court in September or October with the effective date of January 1, 2011. In Water Division 3, The Rio Grande Basin, there have been monthly meetings of the advisory group to provide input on drafting the Well Use Rules. Great progress has been made and it is hoped that a draft set will be completed by the end of the year. The plan of water management for sub-district one is set for trial before the Water Court in late September or early October. Mr. Wolfe finished his report by addressing budget and personnel issues. Mr. Wolfe said that the Governor’s plan to address the budget shortfall has had an impact on the Division of Water Resources. The Division gave up six (6) positions because of budget cuts. Unless alternative revenue can be found, these staff reductions will become permanent. In the interim the Division is able to maintain the status quo by using the savings from the 35 positions held vacant due to the hiring freeze. Because of the shortfalls and underfunding the Division will need to keep 20 of the 35 positions vacant for the remainder of this year and next year. Mr. Shimmin asked Mr. Wolfe to address the possibility of Bonny Reservoir being closed due to budget shortfalls. Mr. Wolfe deferred the answer to Commissioner Davis. Commissioner Davis advised that three of the positions at the park will be let go and the fourth will be reduced to a half-time position. However due to contracts with the Federal Government and liability issues associated with a State Park, hours of operation for public access will be severely reduced. Chairman Coryell called for agenda item no. 6, being the presentation of the Colorado Geological Survey’s final report of the Upper Black Squirrel Creek Basin Aquifer Recharge and Storage Evaluation by Ralf Topper. Mr. Topper opened his remarks by stating that the specific purpose of the study was to identify locations for possible storage and recharge of the alluvial aquifer. He stated that all streams within the Basin are ephemeral, flowing from North to South only after a storm event. The study found that there are 167 square miles of alluvium present ranging from a few feet to 215 feet in depth. Depending on location water levels are declining rapidly, remaining steady or even rising. Calculations, conducted in ten year increments from 1964 to 2004, have shown that over the past forty (40) year period the 1230 alluvial wells in the Basin have withdrawn 60,000 acre-feet of water. The saturated portion of the aquifer extends from a few feet to 110 feet. Applying the storage coefficient results in 475,000 acre-feet of water in storage. The unsaturated portion, that part of the aquifer that the study is interested because it provides storage capacity, varies from a few feet to 174 feet. Applying the storage coefficient equates to 605,000 acre-feet, however that is ideal. If storage were started at 50 feet below ground surface there is storage capacity for 218,000 acre-feet, at 75 feet below ground surface 88,000 acre-feet and at 100 feet below ground surface 26,000 acre-feet of storage capacity. The most important criteria to look at to implement a project is land use, land ownership (public vs. private) and available infrastructure (water supply distribution lines). The Black Squirrel Creek Basin has large tracts of public land and available infrastructure. Mr. Topper concluded by saying that the alluvial aquifers are the best candidates for storage. They have greatest storage capacity and they are amendable to numerous implementation technologies. He went on to say that Designated Basins represent the best opportunities for storage because of their legal structure. Referring to the Statewide Water Study Initiative, he stated that according to the study the Front Range of Colorado will need an additional 500,000 acre-feet of water in the next twenty (20) years. That water brought to the Eastern slope by pipeline will need additional storage and suggested that the alluvial aquifers in Designated Basins could store that water. Mr. Topper believes the Ground Water Commission has the regulatory authority and the management structure through the Management Districts to make a project like this happen. He encouraged the Commission to pursue such a project. Chairman Coryell called for agenda item no. 7, being a proposed resolution by the Colorado Ground Water Commission recognizing the creation of a task force dedicated to securing the long-term sustainability of the Ogallala Aquifer in the Republican River Basin. Commissioner Davis provided the background for the idea of a task force, its make-up and function. She stated that the Commission would adopt the resolution creating the task force to lend it structure and form and to allow for Commission staff to provide support to the task force. The members of the panel should be residents of the area, users of the resource, Management Districts and the Conservation District. The panel would be charged with any number of tasks, starting with sustainability. <She said that the resolution before the Commission at this time is a draft for discussion only and to take home to discuss with the people. Mr. Troy Snyder, representing the Republican River Watershed Association, a group of eight conservation districts in Eastern Colorado, addressed the Commission. He said that the idea of the task force came from the watershed and that he was having trouble forming it. He identified various supporters. The purpose of the task force in his mind is to bring all of