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10cw95_AGStaffProcessingRecommendation.pdf 10cw95_MeridianSubmittal.pdf 10cw95_Objectors_Mot.-to-Stay---Exhibit-A.pdf 10cw95_Objectors_Mot.-to-Stay---Exhibit-B.pdf 10cw95_Objectors_Motion-to-Stay-Proceedings.pdf 10cw95_Objectors_Reply-for-Motion-to-Stay-Proc-12-06-11-.pdf 10cw95_ShroederLetter.pdf 10gw95_EmailCorrespondanceObjectorsAG.pdf ADOPTED UBSGWMD Rules and Regs-signed.pdf AG Report2012-2-17.pdf AG Report2012-2-17Revised.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission February 17, 2012 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of February 3, 2012. 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: Cherokee moved to dismiss its appeal, and the Motion was granted. This matter can be 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, using information that was not before the Commission at the time of designation, 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, and this petition to de-designation a portion of the designated basin was filed with the Commission on August 11, 2010. Status: A hearing was held November 28 – December 9, 2011, and the matter is pending as the parties wait for the Hearing Officer to issue his findings. 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. An objection was filed by the Lost Creek Ground Water Management District, and Equus and the Lost Creek Land and Cattle Co intervened after the period to file an objection had ended. Status: The hearing that was scheduled for January 17-19, 2012 in front of the Hearing Officer has been stayed while the parties obtain modeling to determine whether the aquifer boundary and the nontributary-not nontributary line should be redefined. 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. CDOT West Arapahoe Conservation Dist.Walter E. SchrothMark & Sharon BoydWillard & Merry JonesHanlon Family PartnershipPaul & Michelle Mansfield Ed H. Tuxhorn Tom HenryRandall T. MusgraveJames O. GossAllen & Delores GroszJohn J. KalcevicF.A. Babcock Nancy and Richard HerterJ.N. SargentDaniel A. & Shelly K. Frihauf Case No. 11-GW-14Case No. 11-GW-15Case No. 11-GW-16Case No. 11-GW-17Case No. 11-GW-18Case No. 11-GW-19Case No. 11-GW-21Case No. 11-GW-24 Case No. 12-GW-01Case No. 12-GW-02Case No. 12-GW-03Case No. 12-GW-04Case No. 12-GW-05Case No. 12-GW-06Case No. 12-GW-07 Case No. 12-GW-08Case No. 12-GW-09 Designated Basin: North Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: In all of the above cases, the North Kiowa-Bijou Ground Water Management District is objecting to the issuance of the final permit because of a failure of the pemits/wells to be included in the records of the assessor of Adams County. The District contends that failure of such registration and payment of the annual assessment on said wells is evidence of abandonment. The District is the only objector in each instance. Status: Many applicants against whom the District has filed an objection to the issuance of the final permit simply pay $500 and the District withdraws its objection. So far Mr. Jones has vocalized the strongest resistance to the District’s claims. The Jones matter has been set for a settlement conference on April 10, 2012, with a hearing set on July 11, 2012. The Hanlon matter is set for hearing on August 22, with the expectation that the resolution of the Jones matter will drive the Hanlon case. < 6 6 AG_Memeo_GWMD_Fines.pdf Agenda2012Feb.doc Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of November 18, 2011 Report of the Executive Director by State Engineer Dick Wolfe Commissioners’ Reports Presentation on recent Colorado Geological Survey studies of the Denver Basin Aquifers by Peter Barkmann of the CGS Presentation of the Colorado Geological Survey’s report on the Lost Creek Basin Aquifer Recharge and Storage Study by Ralf Topper Presentation on Hydraulic Fracturing by the Colorado Oil & Gas Conservation Commission Hearing on a request by the Town of Arapahoe for a variance to Rule 7.3.1, 7.3.2, and 7.3.4 to allow for the relocation of a well, permit no. 2844-FP, to a point greater than 300 feet from the originally permitted location without consideration of historical withdrawals and depletions to the aquifer and without comparing the saturated thickness of the two sites Hearing on the request of Robert and Jana Wood for an exception to Rule 5.5 to allow Final Permit no. 69861-F to be issued for a duty of water less than 3-1/2 acre-feet per acre 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 Commission may refer any item contained or discussed under this topic to Agenda Item 17 for discussion in Executive Session if it 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 District authority to implement rules and regulations that allow for the imposition of fines New Business Upper Big Sandy GWMD’s updated rules Meridian Service Metropolitan District’s submittal to the Commission for a determination on the status of the water applied for in case no. 2010-CW-95 (Division 2 Water Court), as to whether it must be allocated and administered by the Commission or the Water Court Recognition of Alexandra Davis Public Comments Executive Session (if needed) Adjournment NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION February 17, 2012 A G E N D A (page 2, cont.) NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, February 17, 2012 1313 Sherman St., Room 318 Denver, CO 80203 A G E N D A Agenda2012Feb.pdf AGMemoMeridian.pdf ArapahoeVarianceRequest.pdf ArapahoeVarianceStaffMemo.pdf EnforcementItemsandActionsNov-Feb1.docx Enforcement Items and Actions Only one new well permit violation was reported (and acted on) this quarter. In addition to well permit enforcement activities, Staff has been working to achieve full compliance with the Republican River Basin Measurement Rules. A number of violations -- the specifics of which will not be reported here -- have been identified, and staff is working diligently with the owners/users in the basin to ensure compliance is achieved. NORTHERN HIGH PLAINS Central Yuma GWMD: It has been verified that Barry Brown is using his irrigation well for unpermitted commercial uses. In addition, we believe in 2011 the well was once again used for illegally expanded acres. In 2010 Mr. Brown signed a Well Permit Compliance Notice with the understanding that if the illegal expanded acres continued our office would follow up with a Cease and Desist Order. Staff is currently working with the AG’s office to issue this order. ExecSummary_LostCreek_Final_Report.pdf HearingOfficersReport2012-2-17.pdf LWS Expert Report-10CW95.pdf Minutesof2011-11-draft.docxMINUTES MINUTES FOURTH QUARTERLY MEETING COLORADO GROUND WATER COMMISSION NOVEMBER 18, 2011 The Third Quarterly Meeting of the Colorado Ground Water Commission took place on November 18, 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 Grant Bledsoe, Carolyn Burr, Dennis Coryell, Corey Huwa, Earnest Mikita, George Schubert, Max Smith, Virgil Valdez, Mike King, 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, John Cyran, 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, Item no. 5, presentation by Matt Poznanovic regarding the Final Permitting of municipal wells was removed and a discussion on “vendetta calls” was added under new business. Commissioner Valdez moved to accept the amended agenda. Commissioner Burr seconded the motion which carried unanimously Approval of Minutes for Meeting of August 19, 2011, Chairman Coryell asked if there were any corrections or additions to the minutes. <Commissioner Wolfe noted Ralf Topper’s name on page 2 was misspelled as was that for Bonny Reservoir. There being no further comments, Commissioner Huwa moved to approve the minutes as amended. Commissioner Bledsoe seconded the motion which carried unanimously. Report of the Executive Director by Dick Wolfe Mr. Wolfe opened his remarks congratulating Commissioners Schubert and Smith on their re-appointments. He also acknowledged the work of Commissioner Davis who was leaving. On the Republican River Mr. Wolfe took the opportunity to thank Mr. Dave Keeler for his creative ideas and efforts to keep the pipeline moving forward. He noted that it was expected that the remaining 5% of storage in Bonny Reservoir would be drained by the end of December. Mr. Wolfe pointed out that negotiations with Kansas are on hold, at the request of Kansas, because of litigation between Nebraska and Kansas. Colorado does have concurrence with Nebraska over the operation of the pipeline. On the Rio Grande River, Mr. Wolfe noted that the model is being refined with the latest data and that completion of the well compliance rules is expected in early 2012. He also pointed out that in September the Supreme Court heard oral arguments on the appeal of the Lower Court’s ruling in the first sub-district. If that ruling is upheld the first sub-district will be in operation in May of 2012. Mr. Wolfe advised the Commission that his staff was working with the CWCB to address the causes of the high ground water levels being experienced along the South Platte River. Commissioner King addressed the topic of “fracking”, a process used to increase production of natural gas and oil. He said that the industry has proposed a ground water monitoring program. The second portion which the industry also supports is the disclosure of the chemicals being injected into the ground. There will be a hearing on December 5, 2011 to promulgate rules on disclosure. Commissioner Mikita questioned Mr. King regarding legislation proposed by Representative Looper. Commissioner King responded stating that Ms. Looper is concerned about protection of the ground water and about the volume of water used in the process. He also said that before extensive legislation is enacted he would like to see rules and regulations, which are more pliable, be given an opportunity to address the concerns of citizens.< Commissioner Coryell requested a presentation on fracking for the next Commission meeting. Commissioner Smith questioned Director Wolfe regarding a new Denver Basin study that he heard about at the Arkansas Roundtable meeting. Mr. Wolfe stated that the USGS study was an update to the 1985 Denver Basin model created in response to SB-5. He went on to say that it will be used in the South Platte Decision Support System model that his office is working on. Chairman Coryell called for a new agenda item, Commissioners Report, where Commissioners could bring an item of interest or concern to the Commission. Chairman Coryell called for agenda item no. 6, an update 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 <poled the Districts to determine support for the legislation. He found that five (5) were in favor and five (5) see no need at this time. In response to a question by Commissioner Coryell, Mr. Shimmin stated that the Districts have the authority to enforce their rules but that the legal process of doing so can be long and expensive. < Chairman Coryell called for agenda item no. 7, the staff activity report. Mr. Vander Horst summarized his written staff activity report. He noted that of the 271 large capacity applications submitted the majority are for a determination of water right. Mr. Vander Horst stated that this large number may be due to inaccurate information in Elbert County that is advising people to file for a determination to protect their water right. Regarding final permit activity, there are approximately 131 final permits remaining to be issued in the Southern High Plains. He noted that five (5) of fourteen (14) cases before the Hearing Officer have been completed. Enforcement matters include an irrigation well being used for livestock watering in the Northern High Plains. In the Upper Black Squirrel Basin, Mr. Goss has received a cease and desist order and Mr. Booker and Mr. Schubert have brought their operations into compliance. In the Kiowa-Bijou Basin there is a pond that exceeds its permitted size. Chairman Coryell called for agenda item no. 8, the Attorney General’s report. Ms. Jen Mele advised the Commission that right now she was focusing her time on the Gallegos case which starts November 28th and is expected to last two (2) weeks. She also stated that there are nine (9) new cases on her desk. Chairman Coryell called for agenda item no. 9, Management District Reports Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, stated that recent snow has slowed the harvest on the final 10% of the corn crop. The inspection of 480 chemigation back flow preventer valves is complete, there was a 5% failure rate. Mr. Midcap stated that his districts do not have a lot of experience with fracking but that their problem is the drillers believe that they can get any water and are paying a pretty penny for irrigation water. He reported the Sandhills District had initiated procedures for the hearing on export of water for the pipeline. <Mr. Midcap closed his report by advising the Commission that his districts were not in favor of the proposed legislation as discussed by Mr. Shimmin. Mr. Jack Dowell, reporting the W-Y GWMD, reported that of 259 chemigation inspections five (5) failed due to the back flow valve. Just a year earlier he had inspected 168 wells, being 50% of those permitted for chemigation as required by the rules. He stated that the corn in his district has yet to be harvested but the sugar beets are all in with good numbers of 25 to 30 tons per acre and 15% sugar. Mr. Dowell advised the Commission that he was told that there was a good kill on the cattails along Hwy 385 near Wray and that the team removing the salt cedar would begin downstream of Bonny in January<. He said that his district was waiting to see what other districts were doing regarding the legislative action as discussed by Mr. Shimmin.< Rod Mason, reporting for the Arikaree GWMD, reported that there were some happy corn farmers who had record harvests of 250 bushels per acre while others that had been hailed out were at dry land levels. He said that 9 of 121 wells failed the chemigation inspection. Mr. Mason advised the Commission that two election items, an increase in the mill levy and getting rid of term limits both failed by a margin of 2 to 1. His district does not have a lot of rules so it is in favor of legislation for enforcement and imposition of fines as discussed by Mr. Shimmin. He closed by stating that the draining of Bonny Reservoir has removed some pressure from his district. Ms. BreAnn Ferguson, reporting for the Plains and East Cheyenne GWMD’s, informed the Commission that the harvest is mostly complete in the Plains District while the East Cheyenne is behind because of some wet weather, also the wheat is looking good. Ms. Ferguson reported that her field inspections have gone well in both districts. She concluded her report stating that the Plains District is in favor of the suggested enforcement legislation while East Cheyenne is taking a wait and see approach. Mr. Max Smith, reporting for the Southern High Plains GWMD reported that the Southern High Plains did not have much of a harvest. There were hardly any dry land crops and though the irrigators that managed their water wisely had a good crop most of the corn was cut for silage. Recent rains have brought the wheat, which was planted to dry ground, up and everyone is hoping the wind will leave them alone. His district will discuss the enforcement legislation next week but the districts biggest problem is the lack of income, the only income is from the well measurement program. Without revenue it is difficult to enforce the existing rules and regulations or re-write them as is on the agenda because an attorney will be needed.< Personally he is in favor of the enforcement legislation.< Mr. Robert Loose reporting for the North Kiowa Bijou GWMD, reported that this was a year to remember. The southern part of the basin was dry and lost most of their grass and wheat but the northern part had good moisture and a good harvest. He reported that the wheat looks good and that the district is in favor of the proposed enforcement legislation. Mr. Dave Doran, reporting for the Upper Black Squirrel GWMD, reported that his district had spent close to $30,000 on the redistricting map. They believe that the map is fair in that each board member represents each use, from agricultural to municipal, within the basin. Mr. Doran advised the Commission that the co-operative study with the county regarding water quality in the alluvial channel continues. His district is in favor of the proposed enforcement legislation. Commissioner Wolfe reported for the Upper Big Sandy GWMD. He informed the Commission that well measurement rules had been revised, based on comments at a hearing, and published. Further, that implementation of the rules will be delayed until funds for their administration and to pay part of the metering costs are received. Mr. John Cordiss, reporting for the Lost Creek GWMD, said that the corn harvest was just getting started. He advised the Commission at the request of the district, Mr. Ralf Topper was checking the end of season water levels. He also advised the Commission that a study of Lost Creek for potential water storage, conducted by Mr. Topper, has been completed and will go to publication soon. Mr. Cordiss concluded his remarks stating that the district supports the legislation as discussed by Mr. Shimmin. Ms. Deb Daniel, reporting for the Republican River Water Conservation District, reported on progress of the pipeline. She stated that the dirt work at the outflow structure is complete and concrete will be poured soon. Ms. Daniel advised that almost one and one-half miles of the 12 miles of pipe have been laid. They hope to be to the collection tank by February.< She is working with the Sandhills District on the export application and informed the Commission that there were no objections to their application<. Ms. Daniel added that they were anxiously awaiting answers regarding the compliance plan from Kansas. Chairman Coryell called for agenda item no. 10, old business. Chairman Coryell opened a discussion among the commissioners regarding the proposed enforcement legislation. He noted that there was no real opposition expressed by the districts, just concern over the costs involved in passing the legislation and enforcing their rules through the enforcement process. He raised the questions of cost of the legislative process, when it would commence and if the Commission would support legislation giving each district its own independent authority. Chairman Coryell asked Mr. Shimmin if he would address the matters of cost and timing. Mr. Shimmin stated that it would be difficult for him to arrive at an estimate of the cost to put the legislation forward because he does not work for the districts most interested in it. He could estimate his time but realizes that most districts have their own legal counsel. Mr. Shimmin did say that the majority of the cost would be for the lobbyists. As to the timing issue he said that if it was to be done this year the sooner the better as bills cannot be submitted past one month after the session begins excluding those approved under late bill status. Commissioner Wolfe spoke to the matter suggesting that rather than rush into poor legislation, they take a year to work through the issue by discussing how the Commission can assist