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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.pdf 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.pdf Enforcement Items and Actions Nov Meeting.docx Enforcement Items and Actions UPPER BLACK SQUIRREL CREEK Upper Black Squirrel Creek GWMD Diane Peterson has been verified to be using a small capacity well to service three homes. The GWMD rule allows no more two homes. Mrs. Peterson will be attending the district’s board meeting next month seeking a variance to the rule. The outcome of that meeting/variance request will dictate staff’s action moving forward. KIOWA BIJOU North Kiowa Bijou It is believed that Commanche Farms is irrigating illegally expanded acres. Staff is currently working with the GWMD to look into the potential violation. Gary Slade was found to have constructed a number of stock ponds on his property that have exposed groundwater. Staff has given Mr. Slade until the 1st of December to backfill the ponds. A field inspection will be performed in the beginning of December to verify compliance. Magnum Feedyards has signed and returned the Well Permit Compliance Notice associated with their well permit violations as discussed at the last GWC meeting. They have also requested an extension of time on the deadline established to install flow meters and submit the change of use application. Staff has granted this extension request. Magnum Feedyards will have until the end of December to get everything in order. SOUTHERN HIGH PLAINS Konkel Family LLC has been found to be using illegally commingled stock wells for irrigation purposes. A show cause letter was sent on October 30th and we are awaiting the owner’s response.< Grd Wtr Comm - Hrg Off Report 11-16-12.pdf Minutes2012-8-17.docxMINUTES MINUTES THIRD QUARTERLY MEETING COLORADO GROUND WATER COMMISSION AUGUST 17, 2012 The Third Quarterly Meeting of the Colorado Ground Water Commission took place on August 17, 2012, at the Burlington Community Center, 340 S. 14th St., Burlington, Co 80807. Chairman <Dennis Coryell called the meeting to order at 9:00 a.m. Mr. Richard Nielsen called the roll and determined that a quorum was present. Commission members present were Grant Bledsoe, Carolyn Burr, Larry Clever, Dennis Coryell, Corey Huwa, Earnest Mikita, George Schubert, Max Smith, Virgil Valdez, Mike King and Suzanne Sellers. Staff members present were Kevin Rein, Keith Vander Horst, Richard Nielsen, Chris Grimes, Ivan Franco and David Keeler. Also present were, 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, the agenda was approved as presented. Approval of Minutes for Meeting of May 18, 2012 and the June 29, 2012 telephone meeting, Chairman Coryell asked if there were any corrections or additions to the minutes. <Commissioner Clever noted that he was not identified as being present at the May 18th meeting. There being no further corrections, Commissioner Huwa moved to approve the minutes as amended. Commissioner Burr seconded the motion which carried unanimously. Report of the Executive Director Chairman Coryell explained the absence of Mr. Wolfe being his attendance at court proceedings, for the Republican River, between Kansas and Nebraska. He asked Commissioner King if he had any comments. Commissioner King thanked the community for the dedication the night before, calling the completion of the pipeline a testament to what we can do when we pull together. Mr. King thanked Mr. Coryell for his service on the Commission, saying that it is fitting that he chair his last meeting in his back yard and participate at the dedication ceremony as the chair of the Commission. He also addressed Commissioner Clevers’ term expiration asking him to serve until a replacement is found. Chairman Coryell called for agenda item no. 5, Commissioners reports; Commissioner Smith thanked everyone for the opportunity to go on the tour. He noted that it is one thing to see everything on paper and quite another to see it on the ground. Mr. Smith expressed his regrets at seeing the water enter the river to leave the state. Commissioner Smith concluded his comments applauding all the time, efforts and hard work put into the pipeline. Chairman Coryell called for agenda item no. 6, the Goss case, 993P2d1177 (2000): Its meaning and implementation by the Commission, by Pat Kowaleski. Mr. Kowaleski opened his remarks by reminding the Commission that the Gallegos matter was to be held at this meeting but had been held over which provided an opportunity for this topic to be presented. At Mr. Doran’s request, made during the May meeting, this presentation will address how the Goss case effects the interactions between the Districts and the commission and their divergent authorities. Mr. Kowaleski stated that in the Goss case, the Supreme Court specifically looked at the issue of who has primary enforcement authority with regard to priorities within the District. The Supreme Court decided that for wells located within management districts, the district has the authority for the regulation, control and conservation of resources. However, later on in the case, there are references to the continuing interaction between the Districts and the Commission. He went on to say that there is discussion on the role of the Commission in enforcement and talk of the Commission looking at District rules in the permitting process.< Mr. Kowaleski said that there are three ways to answer the question on how to get some definition on how the Districts and Commission interact: Legislative:most direct and is the final word – it is hard to get legislation through as you want it. Rulemaking:more control of the process, can get people involved that are aware of the issues and can bring forth a workable rule. Policy:does not go through the public hearing process. He went on to say that the Commission has the discretion with regard to how they interact with the Districts, what they define as the issues and how they act on those issues. Mr. Kowaleski concluded his remarks by stating that the Supreme Court decided a specific issue in this case but left room to think on other issues and provides for more interaction. Commissioner King recommended caution for the next legislative session because there will be 33 new legislators and water issues, especially ground water issues, are difficult to get through as proposed. He further said that through rulemaking process the Commission has far greater control to limit scope and get the desired product. Chairman Coryell agreed with Commissioner King that it is a complicated issue and that intended legislation comes out of committee different than intended. Perhaps rulemaking is the best avenue to follow. Commissioner Schubert said that he believes that a great structure has been spelled out by the Supreme Court and that the Commission needs to fill in the details. He thinks that through rulemaking it can be structured to have the District’s and the Commission working hand in hand. Commissioner Mikita agreed with Mr. Schubert citing the lack of experience of the legislators. He went on to say that the milk industry did a survey and determined that 90% of people have no idea where their food comes from. He went on to say that the Commission needed to be leery of going through the legislature and would rather have the Commission do it. <Commissioner Mikita concluded his remarks by stating that the Districts and staff need to work together to secure our water. Commissioner Huwa asked if there was anything that legislation achieved that rulemaking did not. Mr. Kowaleski responded by saying that the legislative process eliminates the chances of law suits questioning if the rule is in agreement with statute. Chairman Coryell called for agenda item no. 7, Update on going to the Legislative Interim Water Resources Review Committee, per the motion passed in the May meeting, concerning issues brought by Andy Jones on behalf of the Lost Creek GWMD, By Kevin Rein Mr. Rein distributed a report which summarized a meeting that was held to discuss the motion of the May meeting directing Executive Director Wolfe to bring three items before the Interim Legislative Committee. Mr. Rein reminded the Commission of that those three items are: The need for legislative action to incorporate district rules into the Commission permitting and enforcement procedures. The need for legislative action to grant greater enforcement authority to the districts. The need for legislative action to increase district funding. Item no. 1 was broken down to small capacity and large capacity permits. Statutory direction for staff to consider district rules for small capacity wells already exists. For large capacity wells, statute calls for staff to consider district comments. Staff recognizes that district rules are based more on material effect, conservation and preservation while statute requires staff to consider material injury and unreasonable impairment. Mr. Rein continued saying that staff believes <that incorporating district rules into their rules is outside the bounds of their authority. He also acknowledged that the districts believe that the note at the bottom of permits noticing the permit holder that the well is located within a district that may have rules governing their use of the permit is ambiguous and leads to confusion. Mr. Rein advised the Commission that the group did not believe there is a legislative solution for this item and that rulemaking is there and has been used in the past. Item no. 2 the group believes that there is a legislative solution for the enforcement authority. Item no. 3 the group believed that the climate is not conducive for new fees and also the matter of Tabor limitations that could affect the new fee and use of. Commissioner Burr suggested that before proceeding with a solution that it should be determined which districts want greater enforcement authority. Mr. Rein agreed saying that the desire for that authority today may be different from that of a few years ago. In response to a question by Mr. Kowaleski, Mr. Rein stated that the proposed change to statute was to allow districts to collect fines. Mr. Andy Jones, representing Lost Creek Ground Water Management District addressed the Commission. He stated that he and Tom Sauter, District Manager, participated in the meeting and felt that good progress had been made. On the first item of district rules and commission rules his concern is that if the district rules are more stringent than the commission rules, which are used on permits, then the district and the commission will find themselves litigating each other over which rule controls. His suggestion, because of the small number of rules involved, is to modify the appropriate commission rule to include a phrase deferring to district rules, much as is currently done with the separation distances for replacement wells. Commissioner Burr verified that if a stricter, district rule applied, staff would use that rule in the evaluation. Mr. Jones suggested that a proposed use which violates a district conservation standard is causing material injury. Commissioner Sellers asked Mr. Jones how he saw enforcement of violations to be carried out. Mr. Jones responded saying that an inter-governmental agreement would be useful. Realistically, he sees the state and the district enforcing their own provisions. As to the second issue of district enforcement/assessment of fines, Lost Creek agrees that legislation is the proper course. The third issue of funding does not have a good solution. If new fees are imposed districts may be limited by Tabor. The most viable route appears to be a fee for small capacity wells and the Commission should support that. The issue is along the Front Range there are a lot of subdivisions whereas out East the small capacity wells are on farms so you are taxing yourselves. Perhaps legislation could be focused on the Front Range districts, a practice that is common in water legislation. Lost Creek is not in a position to take the lead on this issue. Commissioner Burr asked Mr. Jones if the second issue is contingent on the third issue of getting funding. Mr. Jones said yes, they are underfunded but that if the second issue passed, they could collect penalties and fines. Commissioner Smith commented that it does not do any good to have the ability to enforce if one does not have the money to do it. Chairman Coryell agreed saying that if the District goes down that road they are spending money from the start. Mr. Dave Tausig provided the Commission with the views of Upper Big Sandy District on the three issues. On the first issue, his district has seen issues with the determinations of water rights wherein the land owner has land inside and outside the Basin, which could lead to export. They think rulemaking could solve this concern. On the enforcement issue, Mr. Tausig reminded the Commission that the Upper Big Sandy District had just finished amending its rules to include the ability to assess penalties, fines and fees. He hopes that any legislation