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AG Report2013-11-15.pdfATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 15, 2013 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 8, 2013. 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 and District Court 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. This case was consolidated with change cases 08GW78 and 09GW15, and the trial was set to continue in January 2010 Status: 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. Meridian moved to intervene but that motion was denied, the issue appealed to the Supreme Court and the decision reversed and the grant of preliminary injunction vacated to allow Meridian to participate. On June 17, 2013 the Court found that neither Cherokee nor Meridian is prohibited from claiming wastewater return credits for its replacement plan. The District is seeking to clarify the Court’s order. CHEROKEE METROPOLITAN DISTRICT Case No. 08-GW-78 09-GW-15 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Before: Jody Grantham, Hearing Officer 2 Creek 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 3 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. GALLEGOS, REINALDO, ET AL Case No. 03-GW-06 Designated Basin: Upper Crow Creek Management District: Before: District Court Attorney: Pat Kowaleski Subject: Petition to de-designate 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: The case was previously set for a 10 day trial, to be held in February, 2014, for de novo review of the Commission’s decision to deny the Gallegos request to alter the boundaries of the Upper Crow Creek Designated Basin. Since the previous report, the Court has issued an order requiring the Commission to confirm the record that was before the Commission when it designated the Basin in 1986. 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. 4 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 & Pat Kowaleski 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 was held January 22 - 24, 2013 before the Hearing Officer. The Hearing Officer issued the Initial Decision of the Hearing Officer on April 25, holding that the applicant must determine what portion of the water claimed in the water court application historically contributed to the water supply of the designated basin and subtract that out from the surface water claim. An appeal of the Initial Decision was submitted to the Commission and the Commission upheld the Initial Decision. Meridian has appealed the Commission’s decision to the district court. JAMES HUME Case No. 12-GW-27 Designated Basin: Southern High Plains Management District: Southern High Plains Attorney: Jen Mele 5 Subject: Mr. Hume is objecting to the amount of water in the final permits for wells associated with Permit Nos. 15906-F, 16087-F, 17144-F and 20268-F. Mr. Hume claims he is entitled to water diverted at alternate points for the four wells. Since Mr. Hume never formally requested and obtained the ability to use alternate points of diversion for the wells, Staff’s position is that the permitted amounts cannot take into account historical diversions at other locations. Status: A hearing was set for September 5, 2013 however the objector withdrew his objection and the matter has been remanded to Staff for processing. Kendall, Kenneth and Iris Case No. 13-GW-2 Designated Basin: Kiowa-Bijou Management District: North Kiowa-Bijou Attorney: Jen Mele Subject: The Kendalls filed an objection to the cancelation of their conditional permit by Staff. Prehearing statements have been filed by the Kendalls and Staff, and there are no other parties to this case. Parties have until May 31, 2013 to submit any additional evidence. After such time the Hearing Office will likely consider the matter and issue an initial decision. Status: The Kendalls submited a signed statement from the owner of the subject well at the time of use in question that the well was in fact being used. The Hearing Officer found that the Kendalls showed good cause as to why they failed to submit information to Staff to support the claimed uses as set for the on the Statement of Beneficial Use and the cancellation order was rescinded and the matter remanded to Staff. Hardwick, Mary Ellen Case No. 13-GW-4 Designated Basin: Northern High Plains Management District: Central Yuma Attorney: Jen Mele Subject: Ms. Hardwick filed for Change of Water Right to relocate a well approximately 1,361 feet of the permitted location. The application was denied under Rule 7.3.4 which prohibits a change in location of a well in excess of 300 feet from the original permitted site unless there is water available for appropriation, because no water was available at that site. Ms. Hardwick also submitted a request for a variance to Rules 7.3.1, 7.3.2 and 7.3.4. Status: The matter was brought to the Commission at the May 2013 meeting and the variance was denied. Ms. Hardwick subsequently withdrew the application to change the location of the well. AG Report2013-11-15_JM.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 15, 2013 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 1, 2013. 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 and District Court 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. This case was consolidated with change cases 08GW78 and 09GW15, and the trial was set to continue in January 2010 Status: 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. On June 17, 2013 the Court found that neither Cherokee nor Meridian is prohibited from claiming wastewater return credits for its replacement plan. Those orders were held to be final appealable orders on October 31, 2103. The matter will either be appealed or will return to the Ground Water Commission for further action on the replacement plan. 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. Gallegos, Reinaldo, et al Case No. 03-GW-06 Designated Basin: Upper Crow Creek Management District: Before: District Court Attorney: Pat Kowaleski Subject: Petition to de-designate 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: The case is set for trial February 24, 2014. for de novo review of the Commission’s decision to deny the Gallegos request to alter the boundaries of the Upper Crow Creek Designated Basin. The Court has held that under de novo review the applicant will be able to present a new case to the Judge, without relation to the testimony that may have been presented to the Commission. < 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 & Pat Kowaleski 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 was held January 22 - 24, 2013 before the Hearing Officer. <The Hearing Officer issued the Initial Decision of the Hearing Officer on April 25, holding that the applicant must determine what portion of the water claimed in the water court application historically contributed to the water supply of the designated basin and subtract that out from the surface water claim. An appeal of the Initial Decision was submitted to the Commission and the Commission upheld the Initial Decision. Meridian has appealed the Commission’s decision to the district court. JAMES HUMECase No. 12-GW-27 Designated Basin: Southern High PlainsManagement District: Southern High PlainsAttorney: Jen Mele Subject: Mr. Hume is objecting to the amount of water in the final permits for wells associated with Permit Nos. 15906-F, 16087-F, 17144-F and 20268-F. Mr. Hume claims he is entitled to water diverted at alternate points for the four wells. Since Mr. Hume never formally requested and obtained the ability to use alternate points of diversion for the wells, Staff’s position is that the permitted amounts cannot take into account historical diversions at other locations. Status: A hearing was set for September 5, 2013 however the objector withdrew his objection and the matter has been remanded to Staff for processing. Kendall, Kenneth and IrisCase No. 13-GW-2 Designated Basin: Kiowa-BijouManagement District: North Kiowa-BijouAttorney: Jen Mele Subject: The Kendalls filed an objection to the cancelation of their conditional permit by Staff. Prehearing statements have been filed by the Kendalls and Staff, and there are no other parties to this case. Parties have until May 31, 2013 to submit any additional evidence. After such time the Hearing Office will likely consider the matter and issue an initial decision. Status: The Kendalls submitted a signed statement from the owner of the subject well at the time of use in question that the well was in fact being used. The Hearing Officer found that the Kendalls showed good cause as to why they failed to submit information to Staff to support the claimed uses as set for the on the Statement of Beneficial Use and the cancellation order was rescinded and the matter remanded to Staff. < Hardwick, Mary Ellen Case No. 13-GW-4 Designated Basin: Northern High PlainsManagement District: Central YumaAttorney: Jen Mele Subject: Ms. Hardwick filed for Change of Water Right to relocate a well approximately 1,361 feet of the permitted location. The application was denied under Rule 7.3.4 which prohibits a change in location of a well in excess of 300 feet from the original permitted site unless there is water available for appropriation, because no water was available at that site. Ms. Hardwick also submitted a request for a variance to Rules 7.3.1, 7.3.2 and 7.3.4. Status: The matter was brought to the Commission at the May 2013 meeting and the variance was denied. Ms. Hardwick subsequently withdrew the application to change the location of the well. Front Range ResourcesCase No. 13-GW-5 Designated Basin: Lost CreekManagement District: Lost CreekAttorney: Jen Mele Subject: Front Range Resources filed for a change in place of use. Objections were filed by Equus Farms Inc. and Lost Creek Land and Cattle Company. Status: The matter is set for a status conference on December 17, 2013 before the hearing officer. 6 6 AG Report2013-11-15_PK.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 15, 2013 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 8, 2013. 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 and District Court 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. This case was consolidated with change cases 08GW78 and 09GW15, and the trial was set to continue in January 2010 Status: 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. Meridian moved to intervene but that motion was denied, the issue appealed to the Supreme Court and the decision reversed and the grant of preliminary injunction vacated to allow Meridian to participate. On June 17, 2013 the Court found that neither Cherokee nor Meridian is prohibited from claiming wastewater return credits for its replacement plan. The District is seeking to clarify the Court’s order. < < 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. Gallegos, Reinaldo, et al Case No. 03-GW-06 Designated Basin: Upper Crow Creek Management District: Before: District Court Attorney: Pat Kowaleski Subject: Petition to de-designate 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