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Agenda2012Nov.docxNOTICE OF GENERAL MEETING OF THE NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, November 16, 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 Election of interim Chair and Vice-Chair Approval of Minutes for Meeting of August 17, 2012 Report of the Executive Director by State Engineer Dick Wolfe Recognition of Dennis Coryell Commissioners’ Reports Hearing on Objectors Motion to Recover Prevailing Party Costs associated with appeal of the Initial Decision of the Hearing Officer regarding the Gallegos Family petition to de-designate portions of the Upper Crow Creek Basin, 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. 14 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 Tim Hunker Upper Big Sandy GWMD by Dave Taussig Lost Creek GWMD by Thomas Sauter Upper Crow Creek Basin by Scott Tietmeyer Republican River Water Conservation District by Deb Daniel Old Business Update on proposed legislation regarding enforcement authority for Management Districts Update on possible change to Rule 5.5, by Keith Vander Horst New Business Appointment of Commission representative to Republican River Water Conservation District Selection of next year’s meeting dates Public Comments Executive Session (if needed) Adjournment NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION November 16, 2012 Agenda2012Nov.pdfNOTICE OF GENERAL MEETING OF THE 1. Determine quorum 2. Review and approval of agenda items 3. Election of interim Chair and Vice-Chair 4. Approval of Minutes for Meeting of August 17, 2012 5. Report of the Executive Director by State Engineer Dick Wolfe a. Recognition of Dennis Coryell 6. Commissioners’ Reports 7. Hearing on Objectors Motion to Recover Prevailing Party Costs associated with appeal of the Initial Decision of the Hearing Officer regarding the Gallegos Family petition to de-designate portions of the Upper Crow Creek Basin, Case no. 03-GW-06 8. Staff Report by Keith Vander Horst 9. 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. 14 for discussion in Executive Session if the Board has questions about the litigation. 10. District Reports: a. Marks Butte, Frenchman, Sand Hills and Central Yuma GWMDs by Nate Midcap b. W-Y GWMD by Jack Dowell c. Arikaree GWMD by Rod Mason d. Plains and East Cheyenne GWMDs by BreAnn Ferguson e. Southern High Plains GWMD by Max Smith f. North Kiowa-Bijou GWMD by Robert Loose g. Upper Black Squirrel GWMD by Tim Hunker h. Upper Big Sandy GWMD by Dave Taussig i. Lost Creek GWMD by Thomas Sauter j. Upper Crow Creek Basin by Scott Tietmeyer k. Republican River Water Conservation District by Deb Daniel 11. Old Business a. Update on proposed legislation regarding enforcement authority for Management Districts b. Update on possible change to Rule 5.5, by Keith Vander Horst NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, November 16, 2012 Town of Castle Rock Council Chambers 100 N. Wilcox, 2nd Floor, Castle Rock, CO 80104 A G E N D A NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION November 16, 2012 A G E N D A (page 2, cont.) 12. New Business b. Appointment of Commission representative to Republican River Water Conservation District c. Selection of next year’s meeting dates 13. Public Comments 14. Executive Session (if needed) 15. Adjournment Agenda2012NovDraft.docxNOTICE OF GENERAL MEETING OF THE NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION 10:00 a.m., Friday, November 16, 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 Election of interim Chair and Vice-Chair Approval of Minutes for Meeting of August 17, 2012 Report of the Executive Director by State Engineer Dick Wolfe Commissioners’ Reports 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 Tim Hunker Upper Big Sandy GWMD by Dave Taussig Lost Creek GWMD by Thomas Sauter Upper Crow Creek Basin by Scott Tietmeyer Republican River Water Conservation District by Deb Daniel Old Business Update on proposed legislation regarding enforcement authority for Management Districts Update on possible change to Rule 5.5, by Keith Vander Horst New Business Selection of next year’s meeting dates Public Comments Executive Session (if needed) Adjournment NOTICE OF GENERAL MEETING OF THE COLORADO GROUND WATER COMMISSION November 16, 2012 AG-Report2012-11-16.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 16, 2012 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 2, 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 Supreme Court has held that Meridian may intervene to participate in the case and Meridian subsequently moved in District Court to dismiss the case and to vacate the preliminary injunction arguing that the Ground Water Commission, not the Court, has jurisdiction to decide these issues. Upper Black Squirrel filed a motion asking the District Court to award fees. No decision has been entered regarding the motion to dismiss and vacate the preliminary injunction. 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 approved 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 appealed the initial findings of the Hearing Officer to the Commission and the Commission upheld the findings of the Hearing Officer. On October 17, 2012, the petitioners filed a Notice of Appeal and Complaint for De Novo Review with the District Court. < 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. The new modeling has been completed and the applicant has withdrawn the application based on the updated modeling. 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 has been set for January 21 - 25, 2013 before the Hearing Officer. Meridian filed a motion to dismiss and a motion for summary judgment<, which were denied. < JAMES HUMECase No. 12-GW-27 Designated Basin: Southern High PlainsManagement District: Southern High PlainsAttorney: Jen Mele Subject: Mr. Hume is objecting to the issuance of final permits for wells associated with Permit Nos. 15906-F, 16087-F, 17144-F and 20268-F. Status: A hearing has been set for February 12, 2013 LOST CREEK DAIRYCase No. 12-GW-28 Designated Basin: Lost CreekManagement District: Lost CreekAttorney: Jen Mele Subject: Application to appropriate ground water from the Laramie-Fox Hills aquifer. An objection was filed by the Lost Creek Ground Water Management District and the Lost Creek Land and Cattle Company and Equus Farms Inc. intervened in the matter in order to file objections to the application. < Status: A hearing has been set for May 15-17, 2013. DARYL BOWIN Designated Basin: Camp Creek Case No. 12-GW-29 Management District: Before: Jody Grantham, Hearing Officer Attorney: Jen Mele Subject: Application for new appropriation. An Objection has been filed by Kenneth L. Wahl, P.E. Status: A hearing is scheduled for March 5, 2013. 6 6 AG-Report2012-11-16.pdfATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 16, 2012 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 2, 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 Supreme Court has held that Meridian may intervene to participate in the case and Meridian subsequently moved in District Court to dismiss the case and to vacate the preliminary injunction arguing that the Ground Water Commission, not the Court, has jurisdiction to decide these issues. Upper Black Squirrel filed a motion asking the District Court to award fees. No decision has been entered regarding the motion to dismiss and vacate the preliminary injunction. CHEROKEE METROPOLITAN DISTRICT Case No. 08-GW-78 09-GW-15 Designated Basin: Upper Black Squirrel 2 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 3 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 approved 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 4 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 appealed the initial findings of the Hearing Officer to the Commission and the Commission upheld the findings of the Hearing Officer. On October 17, 2012, the petitioners filed a Notice of Appeal and Complaint for De Novo Review with the District Court. 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. The new modeling has been completed and the applicant has withdrawn the application based on the updated modeling. 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 5 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 has been set for January 21 - 25, 2013 before the Hearing Officer. Meridian filed a motion to dismiss and a motion for summary judgment, which were denied. JAMES HUME Case No. 12-GW-27 Designated Basin: Southern High Plains Management District: Southern High Plains Attorney: Jen Mele Subject: Mr. Hume is objecting to the issuance of final permits for wells associated with Permit Nos. 15906-F, 16087-F, 17144-F and 20268-F. Status: A hearing has been set for February 12, 2013 LOST CREEK DAIRY