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201205_Minutes.pdf AG Report2012-5-18.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission May 18, 2012 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of May 4, 2012. 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: Applications 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 was scheduled for March 19-23, 2012, however was continued after objectors filed a motion to dismiss or in the alternative a motion to stay the trial date to allow for full briefing on the motion. The applicant then moved to withdraw the applications, however the Upper Black Squirrel Creek Management District is contesting a dismissal of the applications absent payment of their costs by the applicant or a dismissal without prejudice. The Hearing Officer has not yet ruled on the withdrawal. 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 Hearing Officer found that petitioners failed to demonstrate that evidence exists that was not before the Commission at the time of designation that the pumping of designated ground water has more than a de minimis impact on surface rights and is causing injury to surface rights. The petitioners have appealed the initial findings of the Hearing Officer to the Commission, but the matter has not yet been set in front of the Commission for oral argument. < 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. NKB Objections Designated Basin: North Kiowa-Bijou Management District: North Kiowa-Bijou Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: In a number of 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 or otherwise settle and the District withdraws its objection. So far all matters have been resolved without the need for a hearing. meridian service metro district Case No. 12-GW-10 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: An application for junior surface and storage rights was filed in water court (10CW95), however objectors argue that the claimed water is actually designated ground water since if not for the diversion, it would recharge the basin. Since only the Commission has the authority to decide when water is designated basin water, the matter is now before the Commission to make this determination. Status: The hearing set for January 21 - 25, 2012 before the Hearing Officer. 3 6 AG Report2012-5-18.pdf Agenda2012May.docxNOTICE OF GENERAL MEETING OF THE NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, May 18, 2012 Town of Castle Rock Council Chambers 100 N. Wilcox, 2nd Floor, Castle Rock, CO 80104 A G E N D A Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of February 17, 2012 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 Colorado Geological Survey 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 BreAnn Ferguson Southern High Plains GWMD by Max Smith North KiowaBijou GWMD by Robert Loose Upper Black Squirrel GWMD by Dave Doran Upper Big Sandy GWMD by Dave Taussig Lost Creek by GWMD by Thomas Sauter Republican River Water Conservation District by Deb Daniel Old Business New Business Question from Upper Black Squirrel Creek GWMD on what is considered municipal use Proposed revisions to Rule 5.5, by Staff Public Comments Executive Session (if needed) Adjournment NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION May 18, 2012 Agenda2012May.pdf AmendedAgenda2012May.docxNOTICE OF GENERAL MEETING OF THE NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, May 18, 2012 Town of Castle Rock Council Chambers 100 N. Wilcox, 2nd Floor, Castle Rock, CO 80104 A M E N D E D A G E N D A Determine quorum Review and approval of agenda items Approval of Minutes for Meeting of February 17, 2012 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 Colorado Geological Survey Recommendation of the Executive Director on procedure for handling the appeal of the Hearing Officer’s Initial 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 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 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 GWMD by Thomas Sauter Republican River Water Conservation District by Deb Daniel Old Business New Business Question from Upper Black Squirrel Creek GWMD on what is considered municipal use Proposed revisions to Rule 5.5, by Staff Public Comments Executive Session (if needed) Adjournment NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION May 18, 2012 AmendedAgenda2012May.pdf EnforcementReport.docx Enforcement Items and Actions KIOWA BIJOU Martin Pope was discovered to be using a stock well to fill a pond for commercial purposes. A field inspection has confirmed that Mr. Pope has ceased this use and is now operating within the conditions of his permit. North Kiowa Bijou GWMD It has been reported that Magnum Feedyards LLC has been pumping more water than currently allowed under their commercial well permit. The district has attempted to collect meter reports, but the owners have been non-responsive. Our office has sent out a certified letter requesting said meter reports. We are awaiting their response LOST CREEK . A complaint was received concerning an unregistered well being used to fill a koi pond. The owner, Melissa Hoffman, has been contacted and the violation was verified. Staff is working with Ms. Hoffman to correct the violation and come up with an alternative. GallegosRecommendationFromWolfe.pdf HearingOfficersReport2012-5-18.pdf Minutes-of_2012 - 02_approved.docxMINUTES MINUTES FIRST QUARTERLY MEETING COLORADO GROUND WATER COMMISSION FEBRUARY 17, 2012 The First Quarterly Meeting of the Colorado Ground Water Commission took place on February 17, 2012, at the Centennial Building, 1313 Sherman St, Room 318, Denver, Colorado. Chairman <Dennis Coryell called the meeting to order at 10:00 a.m. Mr. Richard Nielsen called the roll and determined that a quorum was present. Commission members present were Carolyn Burr, Dennis Coryell, Corey Huwa, George Schubert, Max Smith, Virgil Valdez, Mike King, Dick Wolfe and Jennifer Gimbel. Staff members present were Kevin Rein, Keith Vander Horst, Richard Nielsen, Chris Grimes, Jay Bloomfield, Justina Farris, Ivan Franco, David Keeler and Ralf Topper. Also present were Jody Grantham, Hearing Officer, Pat Kowaleski, A.G. for the Commission and Jennifer Mele, A.G. for staff. <Members of the public were also present. Review and Approval of Agenda Items, item no. 6, the presentation on the Denver Basin Aquifers by the Colorado Geological Survey was removed from the agenda. Commissioner Huwa moved to approve the agenda as amended. Commissioner Valdez seconded the motion which passed unanimously. Approval of Minutes for Meeting of November 18, 2011, Chairman Coryell asked if there were any corrections or additions to the minutes. There being <none, Commissioner Huwa moved to approve the minutes as amended. Commissioner Smith seconded the motion which carried unanimously. Report of the Executive Director by Dick Wolfe Mr. Wolfe opened his remarks by acknowledging the work of staff, both in the Denver office and in the field offices. He reported that Bonny Reservoir has been drained to flow through conditions. Mr. Wolfe noted that Mr. Dave Keeler is working with the Bureau of Reclamation, Parks and Wildlife and other entities to re-vegetate the lake bottom in efforts to keep the dust down. Around the state, Mr. Wolfe reported that the well measurement rules for the South Platte had been filed with the Water Court in December. The end of the month will tell if there are any objections. The Supreme Court affirmed the first sub-district in the Rio Grande Basin. With that hurdle passed the first replacement plan for <about 3,000 wells (almost half of the wells in the Basin) will be filed soon with approval expected by May 1, 2012. At the request of Rick Fendell and Matt Pozanovich, Mr. Wolfe read their report regarding legislation for municipalities and the final permit process into the record. In summary, the report stated that a lobbyist had been hired and that due to the recommendation of Representative Sonnenburg, no bill will be introduced into this year’s legislative session. Further, the interim water committee may develop a bill for next year’s legislative session. Commissioner Wolfe noted that the terms of Commissioners Coryell and Clever expire in May. He went on to say that because the Governor has a strict two term limit for board members neither Commissioner Coryell nor Clever are eligible for re-appointment. He encouraged them and others to locate people that may be interested in representing the citizens of those areas. Commissioner Valdez asked Mr. Wolfe about the status of the ground water model for the Rio Grande Basin. Mr. Wolfe stated that staff had, this past week, just finalized all the needed updates and that the model is operational. < Chairman Coryell called for agenda item no. 5, Commissioner’s reports. Commissioner Coryell raised the question about the small area in the Northern High Plains, the Southern part of the Plains District that is not covered by any metering requirements. Director Wolfe advised the commission that plans are in motion to amend rules to require metering. Commissioner Gimbel informed the Commission that the Governor has declared the year 2012 as “Year of Water”. She also advised the Commission that there are many water orientated organizations that celebrate significant anniversaries this year, such as the Rio Grande reservoir which is celebrating its 100th anniversary and the CWCB is observing its 75th anniversary as is Northern Water Conservancy District. She directed the Commissioners to a website if they want additional information. Ms. Gimbel advised the Commission of new board members for the CWCB and closed her comments by reminding the Commission of the basin roundtable summit meeting in Denver on March 1st. Chairman Coryell called for agenda item no. 7, being a presentation on the Colorado Geological Surveys report on the Lost Creek Basin Aquifer Recharge and Storage study by Ralf Topper. Mr. Topper identified the purpose of the study as to quantify the amount of water currently in storage in the Lost Creek Basin and the available storage capacity to place additional water into storage. They believe that underground storage is an opportunity to meet the needs outlined in the Water for the 21st Century Act. In 2006 the Colorado Legislature passed SB-193 which directed the CWCB to study the feasibility underground storage in the Platte and Arkansas drainages. That study divided Lost Creek into two basins, and Upper and a Lower. The study revealed that the Upper Basins has an available storage capacity of 1.26 million acre feet while the Lower Basin has a capacity of 160 thousand acre-feet. Mr. Topper proceeded to provide a history of the basin including location, size, use of water, land ownership and geologic materials among other things. He then addressed the issue of the methodology used for the study.< <The results of the study were broken down to where the water table was at various depths below ground surface. Mr. Topper stated that this information will need to be combined with the existing water quality before any kind of project is implemented. Mr. Topper answered questions of the Commission. Chairman Coryell called for agenda item no. 8, being a presentation on fracturing by Stuart Ellsworth and Bob Chesson with the Colorado Oil and Gas Commission. Mr. Ellsworth opened the comments describing the Commission and its mission. He then said that the Commission had gone through an extensive rule making procedure in 2008 and that there is no one rule that covers fracturing or any other issue. The commission has 12 distinct varieties of rules dealing with well construction, completion, environment and others. Mr. Ellsworth continued detailing how fracturing is governed by referencing many rules throughout the various sets and their purpose. Next, he proceeded to discuss various aspects of the permit evaluation, from surface concerns to proposed construction methods. <Mr. Ellsworth finished his remarks discussing well construction, using the power point slides to show how well construction isolates the hydrocarbons. With the conclusion of Mr. Ellsworth’s portion of the presentation, Mr. Chesson began the environmental section, the 900 series rules. Produced water which comes out of the well is considered waste and may be dealt with by doing deep injection or evaporation from surface impoundments or sent to be recycled through commercial facilities which are handled by the Department of Health. One other method of dealing with it is to use it for either well construction or the actual stimulation (fracturing). Their data base has water quality analysis from over 6000 water wells (those near drilling sites and those of alleged injury) and over 6500 oil and gas wells as well as the general water quality in areas throughout the state. Mr. <Chesson advised the Commission that the environmental section has sixteen (16) inspectors in the field, conducting 17,000 inspections in 2010. Mr. Ellsworth and Mr. Chesson answered questions of the Commission and general public. Commissioner Schubert asked if it was necessary for County Governments to enact their own rules regarding fracturing or if the States rules were sufficient. Mr. Ellsworth suggested that the state rules were sufficient for the 17,000 Wattenberg Basin wells which have been hydraulically fractured three (3) times. In general comments Mr. Ellsworth stated that the volume of water used for fracturing would be in line with that used for snowmaking and thermal electric generation at 0.08% of all water use. In response to a question from Commissioner Burr regarding reuse of the water Mr. Ellsworth indicated that the water is an expense and that the companies are doing everything they can to reduce costs, including reusing the water and reclaiming the produced water for the purposes. In response to a suggestion by Mr. Taussig to construct a shallow monitoring hole to near each gas well, Mr. Ellsworth stated that solid surface casing must be installed and cemented to a depth below any formations bearing water used for human purposes and that pressures are monitored during the test to determine if a leak exists, before any fracturing fluids are injected. Commissioner King expounded on the issue of monitoring near oil and gas wells. He stated that new rules require water quality sampling be performed pre-drilling and post completion to confirm that there has been no contamination. In response to a question by Commissioner Smith, Mr. Ellsworth described how a well is constructed and grouted. Chairman Coryell called for agenda item no. 10, a 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. Mr. Wood distributed materials in support of his request. This material included maps of his farm, pumping and cropping records. He summarized his farming operations noting that his farming practices have been consistent since 1994. Mr. Wood concluded by asking that the Commission take this information into consideration for his request of an exemption. Mr. Keith Vander Horst provided staff’s position on the request. He stated that staff is enforcing Rule 5.5 which sets forth an absolute ratio of duty of water for irrigated land. In the Southern High Plains that ratio is 3 1/2 acre-feet per irrigated acre while in all other basins it is 2 1/2 acre-feet per acre. Staff interprets this to mean that when a permit is issued the well must be able to produce that amount of water at the prescribed rate. This well cannot produce that volume of water. Therefore under the rule an irrigator only gets the number of acres that is allowed by computing how much water the well can produce and dividing that by 3 1/2 acre-feet per acre. Mr. Vander Horst said that staff has no issue with the information provided by Mr. Wood<. He has apparently been producing enough water to irrigate his crops, the problem is with the rule which requires 3 1/2 acre-feet per acre unless the Commission grants an exception. Staff does not see any concerns with injury if the exception is granted. Mr. Vander Horst said that the rule does not give a rational for issuing an exception so it is subjective decision on the Commissions part. He said that staff has been issuing other new permits with this same duty of water requirement. Therefore it is possible that we will be getting additional exception requests. Staff does not oppose the request but realize that this may be an ongoing issue. In response to a question by Commissioner Coryell, Mr. Vander Horst stated that this rule will not be applied retroactively to existing final permits. The issue only comes up on recently issued permits for new appropriations where we have specifically identified Rule 5.5. Commissioner Smith asked Mr. Vander Horst if it was correct that staff was going to reduce the number of irrigated acres for Mr. Wood from 122 to 85 acres based on Rule 5.5 even though he had been successfully farming the 122 acres. When Mr. Vander Horst responded in the affirmative, Commissioner Smith stated that there must be something wrong with the rule or with the interpretation of the rule. Mr. Vander Horst agreed with Commissioner Smith’s comments stating that office discussion has lent no light as to the basis for the rule. He went on to say that if the rule is not enforced it is meaningless and we should get rid of it. Staff does not oppose granting the exception. Chairman Coryell closed the hearing and opened the floor to discussion at which time Commissioner Burr requested staff to develop a solution to the problem. There being no further discussion; Commissioner Smith moved to grant the exception Commissioner Huwa seconded the motion which passed unanimously. Chairman Coryell called for agenda item no. 10, A 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. Mr. Mike Shimmin, attorney for the applicant, addressed the Commission. He stated that in light of the fact that there were no objectors to the application and that as staff was not objecting they would stand on the written material that had been submitted. Mr. Shimmin went on to provide a brief summary of the applicants and their request. He stated that the purpose of the three (3) rules, for which his client was requesting a variance form, is to protect other high capacity well owners form injury. There is only one (1) other high capacity well within ½ mile of the proposed location and its owner has provided a waiver of claim to injury. There were no questions of Mr. Shimmin. There were no objectors present to address the Commission. Mr. Keith Vander Horst addressing the Commission provided staff’s opinion. He stated that Mr. Shimmin had adequately explained the situation and staff has no objection to the issuance