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<br />201205_Minutes.pdfMINUTES <br /> MINUTES SECOND QUARTERLY MEETING COLORADO GROUND WATER COMMISSION MAY 18, 2012 The Second Quarterly Meeting of the Colorado Ground Water Commission took place on May 18, 2012, <br /> 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 <br /> that a quorum was present. Commission members present were Grant Bledsoe, Carolyn Burr, Dennis Coryell, Corey Huwa, Earnest Mikita, George Schubert, Max Smith, Virgil Valdez, Mike <br /> King, Mike Sullivan and Suzanne Sellers. Staff members present were Kevin Rein, Keith Vander Horst, Richard Nielsen, Chris Grimes, Jay Bloomfield, Justina Mickelson and David Keeler. <br /> 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 <br /> of Agenda Items, Chairman Coryell questioned the Commissioners to determine if they had a copy of the amended agenda. He then proposed that the agenda be amended to include a new number <br /> 7, being the Recommendation of the Executive Director on the procedure for handling the appeal of the Hearing Officer’s Initial Decision, and related motions and possible cross appeal, <br /> on the petition to de-designate portions of the Upper Crow Creek Basin by the Gallegos Family, Case No. 03-GW-06. Commissioner Valdez moved to approve the agenda as amended. Commissioner <br /> Burr seconded the motion which passed unanimously. Approval of Minutes for Meeting of February 17, 2012, Chairman Coryell asked if there were any corrections or additions to the minutes. <br /> Commissioner Schubert noted that on page 8, in the Upper Black Squirrel District report, third line, that Mr. Doran’s name was misspelled. There being no further edits; Commissioner <br /> Huwa moved to approve the minutes as amended. Commissioner Mikita seconded the motion which carried unanimously. Report of the Executive Director by Mike Sullivan Mr. Sullivan <br /> opened his remarks by informing the Commission that the substitute water supply plan for the super ditch in the Arkansas Valley was approved on May 1, 2012. He noted that the plan <br /> contains 42 terms and conditions. He went on to state that the State Engineer’s Office has already received an open records request for possible appeals of the decision. Mr. Sullivan <br /> also noted that on May 1, 2012, Sub-District 1, in the San Luis Valley was approved. There have already been three objections filed. He is hoping for an expedited review. Ground <br /> Water Commission Meeting Minutes Page 2 May 18, 2012 In the Republican River Basin, Mr. Sullivan noted that preparations for the trial between Kansas and Nebraska regarding damages <br /> for under deliveries by Nebraska are progressing. There are three weeks of trial scheduled for August, in Maine. He noted that Kansas would like for a special master to be appointed <br /> to control river diversions because they do not think that Nebraska has the ability to manage their own water resources. He noted that this trial will affect our ongoing negotiations <br /> with Kansas over the pipeline and accounting for augmentation. On another note, Mr. Sullivan advised the Commission that last month, the Bureau of Reclamation approved requests by <br /> Kansas and Nebraska for a basin wide “water smart” study. Colorado has joined in as an observer and all parties are working on a MOA for data sharing. Mr. Sullivan concluded his comments <br /> regarding the Republican Basin by noting that Bonny reservoir was in a flow through state. Mr. Sullivan informed the Commissioners that the South Platte Well Metering Rules had been <br /> promulgated and there are eight objectors over the procedures. Talks are proceeding. In the last legislative session, there were two items of that affected the Division of Water Resources. <br /> First a bill that allows the Division to consolidate 13 different cash funds for better management was approved then the projects bill for South Platte studies and other important <br /> water projects was approved in the special session. Commissioner Valdez asked Mr. Sullivan for an update on the Rio Grande model. Mr. Sullivan noted that staff spent most of its time <br /> working on the replacement plan and that staff will work on the modeling as time allows considering the objections to the replacement plan. Chairman Coryell called for agenda item <br /> no. 5, Commissioners reports. Commissioner Schubert asked about the procedures for requesting an executive session. Chairman Coryell said that any Commissioner could make the specific <br /> request before the August meeting so that it may be placed on the agenda. Chairman Coryell called for agenda item no. 6, being a presentation on recent Colorado Geological Survey <br /> studies of the Denver Basin Aquifers by Peter Barkmann of the Colorado Geological Survey. Mr. Barkmann provided an overview of statewide projects and office procedures. He noted that <br /> his office is using modern technology, traditional field methods and recent data to update all of the cross sections and maps of the Denver Basin. Mr. Barkmann proceeded to show the <br /> differences for a few select cross sections relative to surface elevation. He noted that the best part of the aquifers is near the range front on the west side. He also stated that <br /> these new sections will help in the management of our resources both for the regulators and the users. Mr. Barkmann concluded his presentation by referencing all of the maps that his <br /> office has available and the uses that could be made of them. There ensued questions of and answers from Mr. Barkmann. Deputy State Engineer Kevin Rein elaborated on one answer by <br /> stating that due to legislation, the Division of Water Resources has three years to study the impact of these revisions before incorporating them in office procedures. He noted that <br /> since most water was already decreed or had determinations of water rights that he did not expect a big impact. Ground Water Commission Meeting Minutes Page 3 May 18, 2012 In response <br /> to a question of Commissioner Mikita, Mr. Barkmann stated that the study area extended to near Limon, where the Laramie Fox-hills aquifer surfaces and that there was no study of the <br /> water levels. Chairman Coryell called for agenda item no. 7, being the recommendation of the Executive Director on the procedure for handling the appeal of the Hearing Officer’s Initial <br /> Decision, and related motions and possible cross appeal, on the petition to de-designate portions of the Upper Crow Creek Basin by the Gallegos Family, Case No. 03-GW-06. Mr. Sullivan, <br /> referencing a written memorandum of Executive Director Dick Wolfe, provided a short review of the case. He proceeded with the recommendation that a special meeting be held, by telephone, <br /> prior to the quarterly meeting in August to discuss that matter. It was suggested that the Hearing Officer and staff coordinate the special meeting. Mr. David Jones, attorney for <br /> the objectors, addressing the location of the hearing, if the motion is dismissed, stated that his clients would prefer the hearing be held in Denver rather than Burlington. Chairman <br /> Coryell called for agenda item no. 8, the staff activity report. Mr. Vander Horst summarized his written staff activity report, elaborating on a few items. Regarding the final permit <br /> project he noted that the Southern High Plains and Kiowa-Bijou each have one group to finalize. As to hearing activity, Mr. Vander Horst advised the Commission that Mr. Dean Goss had <br /> withdrawn his application thereby closing the matter. Regarding enforcement efforts, he informed the Commission that staff was working on resolving an issue in each of Kiowa-Bijou <br /> and Lost Creek Basins. Commissioner Mikita requested clarification of two new large capacity permits issued in the Upper Big Sandy Basin. Mr. Vander Horst said that he will need to <br /> conduct some research prior to providing the answer, which will be sent to Mr. Mikita. Chairman Coryell called for agenda item no. 9, the Attorney General’s report. Ms. Jen Mele <br /> following review of the written report Ms. Mele informed the Commission that she is preparing for the Gallegos and Meridian hearings in August and January respectively. There were <br /> no questions of Ms. Mele. Chairman Coryell called for agenda item no. 10, Management District Reports Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central <br /> Yuma GWMD’s, reported that the wheat in his Districts is 2 to 3 weeks ahead of schedule for this time of year and that if they do not receive some rain soon there will be no crop. <br /> He reported that the Sand Hills District held a hearing on the Compact Compliance Pipeline project export application and approved the export, subject to Colorado and Kansas agreeing <br /> on 100% credit and the District approved 500 acre-feet for testing the pipeline without regard to credit. Mr. Midcap noted that one of his board members for the Sand Hills District <br /> retired after 40 years of service. He concluded his report noting that he had begun his chemigation inspections much earlier than normal. Ground Water Commission Meeting Minutes Page <br /> 4 May 18, 2012 Mr. Jack Dowell, reporting the W-Y GWMD, reported that his district is in the same boat as Nate’s Districts. The wheat is heading out and needs moisture. He too has <br /> begun his chemigation inspections. Mr. Dowell advised the Commission that his District, in conjunction with the Soil Conservation Service, has begun a program in which they contribute <br /> up to $5,000 for the installation of soil moisture probes. The W-Y District does not administer the program but at the end of the year the farmer will report the crop type and moisture <br /> used for the year to the District. In reporting on the ongoing Republican River Russian Olive and Salt Cedar eradication program, Mr. Dowell reported that it will resume in June. <br /> In response to a question from Commissioner Burr regarding the length of time farmers will report the results of the soil moisture probes, Mr. Dowell stated that some farmers are installing <br /> the probes on their own and that all the details are not ironed out yet as discussion first began in February. In response to a question from Commissioner Coryell, Mr. Dowell reported <br /> that he was not aware of any entity or organization that has taken the responsibility to keep invasive species out of the now drained Bonny Reservoir. Mr. Rod Mason, reporting for <br /> the Arikaree GWMD, reported that parts of his District made national news with 18 inches of hail. Most of the irrigated corn is in and because of high prices, there is a lot of dry <br /> land corn being planted. He is beginning his chemigation inspections. Mr. Mason advised the Commission that this is the first year for the District to be a third party administrator <br /> so there is a lot to learn. He said that term limits required four board members to leave and that three have been replaced. Chairman Coryell advised the Commission that the report <br /> for the Plains and East Cheyenne GWMD’s, will given by Ms. Deb Daniel during the Republican River District report. Mr. Max Smith, reporting for the Southern High Plains GWMD reported <br /> that things are green and that thanks to the snow and rain received through the winter only a few wells have been started up so far this year compared to last year when most had been. <br /> Mr. Robert Loose reporting for the North Kiowa Bijou GWMD, reported that the south side of the basin had received good moisture and pasture grass was green while the north side is <br /> brown because of a lack of moisture. The water levels on the south side are up an average of two feet and that in the north is down two feet. He noted that there are 138 wells left <br /> for final permits and thanked staff for their efforts. Mr. Loose informed the Commission that some owners of wells not used for more than twenty years would like to abandon their wells/water <br /> rights and that the board would like to work closer with the state to make that happen. He also stated that the board is working with staff on ways to help the farmers sell some of <br /> their water to the oil companies for fracking. Ground Water Commission Meeting Minutes Page 5 May 18, 2012 Mr. Dave Doran, reporting for the Upper Black Squirrel GWMD, reported <br /> that it has been dry and very windy in the basin. He said that things had been hectic in the district and that he had met with staff to discuss agenda item no. 12. Mr. Doran introduced <br /> two new board members, elected in February, to the Commission. Mr. Doran informed the Commission that several stake holders had contributed to Phase Two of the water quality study <br /> which is in progress and expressed the hope that the County, which started the study would fund it. He then turned the report over to Mr. Tim Hunker the new Chairman. Mr. Hunker touched <br /> on the terminology of municipal and industrial uses which will be discussed in item no. 12. Mr. Andy Jones, reporting for the Lost Creek GWMD, reported that a lot of wells had been <br /> changed from irrigation to municipal purposes and that the District had received notice that twenty wells may be converted this year. He then proceeded to again bring up for discussion <br /> the interaction between district rules, commission rules, enforcement activities and are district rules on the permits? He was curious as to the status of the meeting between staff <br /> and the districts to discuss these items that Commissioner Wolfe mentioned in February. He also addressed legislative changes to allow for district enforcement of its rules. Mr. Jones <br /> again expressed his boards concerns over raising funds so the districts can perform their statutory roles. He suggested a meeting between district attorneys, board members, staff and <br /> any other interested parties. Commissioner Smith agreed with Mr. Jones that these issues keep arising and are never fully discussed. Chairman Coryell addressed the matter mentioning <br /> last year’s attempt to spur legislation for enforcement abilities of the districts. He agreed with Mr. Jones and Mr. Smith on the matter stating that he would have a personal conversation <br /> with Mr. Dick Wolfe to get things moving along. Commissioner Burr suggested looking into having the interim water resources committee look into these items. She asked Mr. Jones if <br /> the legislature was the proper place to go on the funding issue and he asserted that it is. Commissioner Clever moved that the Executive Director contact the interim legislative <br /> water resource committee and inform them that the Commission would like them to look into these three items. Commissioner Valdez seconded the motion which passed unanimously. Commissioner <br /> Huwa suggested going to the committee with a problem and a proposed solution. Mr. Robert Loose, North Kiowa Bijou, suggested that legislation be created to allow for the assessment <br /> of the small capacity wells. Mr. David Tausig reporting for the Upper Big Sandy GWMD, reported that his District had received early snow and rain but that the moisture level was going <br /> downhill. He advised the commission that his district is now meeting only every other month. Mr. Tausig commented that it would be nice if the Denver Basins studies included whether <br /> or not alluvial water was recharging the bedrock aquifers or the other way around. He noted the District’s new export rules allow for the collection of fees and fines if enforcement <br /> of the rules is needed. He hopes any legislation would grandfather them in. His board believes that districts already have the authority to collect fines. Ground Water Commission <br /> Meeting Minutes Page 6 May 18, 2012 Ms. Deb Daniel, reporting for the Republican River Water Conservation District and the Plains and East Cheyenne Report, stated that there is not <br /> a lot to report. The wheat is headed out and some farmers are talking of starting harvest in June, which is unheard of. She stated that Ms. Ferguson will begin the chemigation and <br /> third party inspections. She noted that the Plains District has received only four inches of moisture and the East Cheyenne has received three inches to-date and that this is the rainiest <br /> part of the year for them. As to the Republican River District, Ms. Daniel commented on other district reports. She then thanked the Sand Hills Board for their approval of 500 acre-feet <br /> of export water to test the pipeline. They are nearing completion of the system. The pipeline is complete and crews are raising the collection tank and finishing the outfall. Well <br /> houses are complete and the control building is finished with the equipment to be installed. Ms. Daniel advised the Commission that the RRWCD continues to pursue the purchase of surface <br /> water rights while at the same time encouraging farmers to enter one of the conservation programs, AWEP or CREP. Ms. Daniel concluded her comments by inviting the Commission to the <br /> pipeline dedication on August 16th. Chairman Coryell called for agenda item no. 11, old business. Mr. Mike Shimmin asked for an update on the terms of Commissioners Coryell and <br /> Clever, which expire this month. Commissioner King responded stating that he has not heard anything and that he will look into when he returns to the office. Chairman Coryell called <br /> for agenda item no. 12, new business. A) Regarding the question from the Upper Black Squirrel District on the definition of municipal use, Ms. Jen Mele reported that she and staff <br /> had met with the District and that she will look into and will work with Districts’ council to draft a legal opinion. B) Mr. Keith Vander Horst proposed revisions to Rule 5.5, which <br /> requires a minimum duty of water equal to the maximum duty of water for new appropriations. In his opinion, maintaining an upper limit may prevent a waste of water and keeping a lower <br /> limit prevents the deceptive practice of applying for a lower duty of water then pumping more than the permit was approved for. His suggestion is to allow an applicant to demonstrate <br /> that a lower duty of water is appropriate in the particular situation and if staff agrees, approve the request. Commissioner Smith suggested placing this item on the agenda for discussion <br /> at the August meeting. Chairman Coryell directed staff to place this item on the agenda for August. Ground Water Commission Meeting Minutes Page 7 May 18, 2012 Chairman Coryell <br /> called for agenda item no. 13, public comments. Mr. Robert Thomasson, of Elbert County addressed the Commission, thanking them for their service and expressing his concern and his <br /> neighbors concern over water in Elbert County. They are particularly concerned about the issue of fracking. He thanked the Division of Water Resources for its help, specifically Mr. <br /> Jay Bloomfield. Mr. Dave Tausig updated the Commission on the deadlines for the interim committee. Mr. Mark Whitlatch, City of Strasburg water plant operator, provided a power point <br /> presentation that addressed his concerns over the process for evaluating the final permit for municipal wells. Mr. Whitlatch provided a history if the town, the water district and <br /> its wells and the current operational capacities of the wells. He then went into specifics, the population has increased from 800 to 2447 since 1960’s. In 2011 the town used 178 acre-feet <br /> of water. If the final permit is based on the actual use of the wells within the first three years then the town would be restricted to approximately 60 acre-feet of water. This would <br /> mean that all outdoor use of water would be eliminated and very limited indoor use (hygiene would be limited to once or twice a week). Further, most businesses would need to be closed. <br /> Mr. Whitlatch went on to say that Strasburg is not the only town that would be affected. Bennett, Byers and all other towns would essentially be shut down. He closed by thanking <br /> Mr. Robert Loose, Mr. Keith Vander Horst and Mr. Ivan Franco for their assistance. Chairman Coryell asked staff if what Mr. Whitlatch presented is accurate. Mr. Keith Vander Horst <br /> responded stating that if the final permits are processed on the first three years, as required by statute, then the outlook is dire. However, action on those permits has been put <br /> on hold pending possible legislative changes being proposed by Mr. Matt Pazanovich, council for many water districts. There being no further business the meeting adjourned. Respectfully <br /> submitted, Richard A Nielsen, P.E. Secretary to the Ground Water Commission <br />201206_Minutes-Telemtg.pdfMINUTES <br /> MINUTES SPECIAL TELEPHONE CONFERENCE MEETING COLORADO GROUND WATER COMMISSION June 29, 2012 A special telephone conference of the Colorado Ground Water Commission took place <br /> on June 29, 2012, at 1313 Sherman Street, Room 318. Chairman Coryell called the meeting to order at 10:00 a.m. Mr. Richard Nielsen called the roll and determined that a quorum was <br /> present. Commission members present were Grant Bledsoe, Carolyn Burr, Dennis Coryell, Corey Huwa, Suzanne Sellers, Max Smith, Robert Randall and Dick Wolfe. Staff members present <br /> were, Keith Vander Horst, Richard Nielsen and Chris Grimes. Also present were Jody Grantham, Hearing Officer, Pat Kowaleski, A.G. for the Commission and Jennifer Mele, A.G. for staff. <br /> Members of the public were also present. The purpose of the special meeting was to conduct a hearing on the matter of a motion to dismiss an appeal of the Initial Decision and Order <br /> of the Hearing Officer in case no. 03-GW-06. Chairman Coryell called the meeting to order and set forth the guidelines that would be followed during the hearing. Each party, petitioners, <br /> objectors and staff would present their arguments before the Commission in thirty minutes or less, with objectors being allowed to use part of the thirty minutes for rebuttal. Commissioner <br /> Sellers recused herself from the hearing. Mr. David Jones, Council for objectors addressed the Commission. Mr. Jones provided a short history of the case, noting that on April 24, <br /> 2012, the petitioners (Gallegos) filed an appeal to the March 27, 2012 decision of the Hearing Officer denying their petition. Objector’s motion to dismiss the appeal is based on their <br /> claim that petitioners failed to comply with 10 CCR 402-3 and provide a copy of the transcript or portion thereof, of the testimony before the Hearing Officer that is being contested. <br /> Mr. Jones developed this argument addressing the individual aspects of Rule 10 402-3 and actions taken by petitioners. Objectors do not believe that the Commission can hear the appeal <br /> unless a transcript is provided. Mr. Jones stated that the appeal should be dismissed because the petitioners have failed to provide the necessary transcript as required by Rule 10 <br /> 402-3. Mr. Jones closed his arguments requesting that the petition be dismissed and that the Hearing Officer’s decision be made final. There were no questions of Mr. Jones. Ground <br /> Water Commission Meeting Page 2 June 29, 2012 Ms. Jen Mele, attorney for staff stated that staff did not file a response to the motion or have an intent to argue a position but did <br /> intend to state staff’s position on the record. Staff had filed a supplement to the designation and wants that on the record. Mr. Kowaleski noticed that in the supplement, staff <br /> designated the transcript of the testimony as part of the record. In response to a question by Mr. Kowaleski, Ms. Mele stated that staff wanted to make the transcript part of the record. <br /> Mr. Tim Buchanan, attorney for petitioners, addressed the Commission. In speaking to the issue raised by the objectors, Mr. Buchanan stated that it is now a mote point because staff <br /> has designated the entire transcript as part of the record. He then proceeded to discuss other portions of objectors’ arguments. He stated that petitioners had complied with the rule <br /> regarding filing of the petition. Mr. Buchanan went on to discuss the decision not to provide transcripts or designate a portion of the transcript as it relates to the rule, who needs <br /> to designate transcripts etc. Mr. Buchanan closed his arguments requesting that the motion be dismissed and that the hearing proceed on schedule in August. In response to a question <br /> by Commissioner Burr regarding the lack of transcript designation, Mr. Buchanan stated that at this time he is not relying on any part of the transcript for the appeal. Ms. Jen Mele, <br /> for staff stated that staff had nothing else to add. Mr. Jones, attorney for objectors rebutted Mr. Buchanan’s testimony. He stated that Rule 10 says nothing about parties designating <br /> the record but discusses designating the transcript. He further noted the rules discussion on what the record is and the use of it. He stated that the petitioners can appeal what <br /> they want but they need to provide the transcript in support of their appeal. He asserted that no claim for relief can be granted if the appeal is not supported by the transcript. <br /> Mr. Jones again discussed the cost of providing transcripts. He believes that petitioners should pay their portion and not make objectors pay for them. Chairman Coryell closed the <br /> hearing and opened the floor to discussion or submittal of a motion. Commissioner Burr indicated that the failure on the part of the petitioners to designate parts of the transcript <br /> is troubling. Commissioner Burr moved to deny the motion to dismiss. Commissioner Smith seconded the motion which passed unanimously. Ground Water Commission Meeting Page 3 June <br /> 29, 2012 Discussion then ensued regarding the hearing to be held at the August Commission meeting and the procedures and briefing schedule to be followed. Hearing Officer Grantham <br /> interjected a question about what was being considered the record and transcript of the hearing. Specifically is the record of the hearing only the recording or does it, the official <br /> record, include the private transcription, conducted by a court reporter, during the hearing. Mr. Pat Kowaleski responded that he agreed with Mr. Grantham that normally the recording <br /> is the official record but went on to say that objectors and staff had paid for the third party transcription during the hearing and that staff had made that transcription part of the <br /> record with their supplemental filing therefore the transcription is part of the official record. Mr. Jones asked for consideration by the Commission because his wedding and honeymoon, <br /> which occurs from July 28th through August 15th has been scheduled for over a year. Mr. Kowaleski stated that unless a motion to carry over the hearing were approved that the hearing <br /> had to be held in August. Mr. Jones submitted a verbal request to move the hearing to November. A hearing on the request ensued. Mr. Jones requested the move because of the cost <br /> of traveling to Burlington for his clients and himself and because of his wedding plans over the short time frame. Ms. Mele stated that staff has no objection to the motion. Mr. Buchanan <br /> reminded the Commission that the first time his client’s case came before them was in Alamosa so the issue of travel is not relevant and neither is Mr. Jones personal schedule. Mr. <br /> Buchanan further reminded the Commission that this matter had been going on for nine years and another delay of 3 or 4 months is inappropriate. Mr. Jones responded stating that his <br /> clients could be ready before November by scheduling a special meeting. In response to a question by Commissioner Wolfe, Mr. Buchanan responded that he felt delaying the hearing further <br /> would be prejudicial to his clients. Commissioner Bledsoe moved to deny the objector’s request to delay the hearing. Commissioner Burr seconded the motion which passed unanimously. <br /> Ground Water Commission Meeting Page 4 June 29, 2012 It was discussed to move the hearing out a period of time and have it held at a special meeting. Mr. Grantham stated that <br /> he would be willing to work with the parties and Commissioners to arrive at an acceptable date. Commissioner Burr encouraged appellants and opponents to arrive at an agreeable hearing <br /> time between August and November. Mr. Jones requested that the hearing date be moved to a time between August and November that is convenient for all parties. Following a general <br /> discussion by Commissioners and parties; Commissioner Huwa made a motion to move the hearing date to a time within 3 weeks of the August quarterly meeting. Commissioner Randall seconded <br />