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AG Report2015-11-20.docxATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 20, 2015 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 6, 2015. cherokee metropolitan district Case No. 08-GW-71 13SA330</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: 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 under a 1999 Stipulation 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. UBS filed an appeal on December 18, 2013. The Supreme Court has issued a decision in which they said they upheld the decision of the District Court that under the 1999 Stipulation, but included in the decision ambiguous language as to whether or not Cherokee can use effluent as a source of replacement water in a replacement plan. Staff has not heard from Cherokee as to how they plan to proceed with the application still pending before the Hearing Officer. 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. 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 issues in Case No. 98CW80 as described above for Cherokee Metro District’s replacement plan. Gallegos, Reinaldo, et al Case No. 03-GW-06 03CV1335</w:t></w:r></w 15SA118</w:t></w:r></w Designated Basin: Upper Crow Creek Management District: Before: Supreme 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: A 7 ½ day trial was held in February 2014 and on March 9, 2015 the district court issued its decision denying the Gallegos Family’s petition to de-designation a portion of the basin. On April 27, 2015 the Gallegos Family filed an appeal of that order to the Supreme Court. The Gallegos’ Opening Brief will likely be filed this month, and the Commission will then have 35 days to file an Answer Brief. meridian service metro district Case No. 12-GW-10 14SA302</w:t></w:r></w: Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Attorney: Pat Kowaleski & Susan Schneider 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. The Commission upheld the Initial Decision. Meridian appealed the Commission’s decision to the district court and trial was held July 29 – 31, 2014. <The district court held in favor of the Management District and the Commission, finding that a portion of the water claimed by Meridian is designated ground water over which the Commission has jurisdiction. Meridian has appealed the matter to the Supreme Court and oral argument was held on September 30, 2015. A decision will likely be issued in a couple of months. FRONT RANGE RESOURCESCase No. 13-GW-7 15CV30493</w:t></w:r></w:p><w:p w:rsidR="00567999" w:rsidRDefault="00567999" w:rsidP="00567999"><w:pPr><w:rPr><w:b/><w:sz w:val="24"/ Designated Basin: Lost CreekManagement District: Lost CreekAttorney: Jen Mele & Pat Kowaleski Subject: Front Range Resources filed for a replacement plan. Objections were filed by Equus Farms Inc., Lost Creek Land and Cattle Company and the Lost Creek Ground Water Management District. Status: The matter was dismissed by the Commission and appealed to the district court where it is now set for trial June 6-16, 2016. The objectors, including Staff, filed a motion to exclude use of water rights that are tributary to the South Platte as a replacement source since they are not decreed for use in this replacement plan. Oral argument on the issue is set for November 12, 2015. MERIDIAN SERVICE METRO. DIST.Case No. 14-GW-2 Designated Basin: Upper Black SquirrelManagement District: Upper Black SquirrelAttorney: Jen Mele Subject: Applicants filed an application for six new wells, which are French drains that were discussed in Case No. 12-GW-10. Objections were filed by Staff, Farmers and Upper Black Squirrel Ground Water Management Dist. Status: The matter was dismissed by the Hearing Officer after the applicant presented its case at the hearing that began on January 14, 2015 because the applicant did not have a replacement plan for its new appropriations. See below Case No. 15GW14.< ARNUSCH INVESTMENTS, LLCCase No. 14-GW-7 Designated Basin: Lost CreekManagement District: Lost CreekAttorney: Jen Mele Subject: Applicants filed an application for a change of water rights for 16 wells. Objections were filed by Staff regarding just two of the wells, and by Equus Farms, Front Range Resources, Lost Creek Land & Cattle Co. LLC, PV LLC and the Lost Creek Ground Water Management District. Status: This matter was set for hearing October 27, 2015, however all parties to this case stipulated to issuance of Findings and Orders for 15 wells and one application was withdrawn by the applicant, and the hearing was vacated. BURNETT, JAYCase No. 14-GW-9 Designated Basin: Upper Crow CreekManagement District: Attorney: Jen Mele Subject: Applicants filed an application for 22 well permits from the Upper Laramie aquifer. An objection was filed by the Gallegos Family Properties. Status: This matter was set for a hearing in November, 2015 however the applicant has withdrawn the application. WC RESOURCESCase No. 15-GW-1 Designated Basin: Lost CreekManagement District: Lost CreekAttorney: Jen Mele Subject: Applicants filed an application for a change in place of use and type of use for two wells. Objections were filed by the Lost Creek Land and Cattle Co., Equus Farms, Inc., AG Water Alliance, Staff and the Lost Creek Ground Water Management District. Status: This matter has been set for a five day hearing starting December 14, 2015. BURNETT LAND & LIVESTOCK Case No. 15-GW-3 Designated Basin: Upper Crow CreekManagement District: Attorney: Jen Mele Subject: Applicants filed an application for appropriations from the White River aquifer. An objection was filed by the Gallegos Family Properties. Status: A hearing was set for January, 2016 however the applicant has withdrawn the application. < AXTON (Rocky Mountain Roosters) Case No. 15-GW-5 </w:Case No. 15-GW-6 Designated Basin: Kiowa BijouManagement District: North Kiowa Bijou Attorney: Jen Mele Subject: Applicants filed an application for determination of water rights and a replacement plan. Objections were filed by the North Kiowa Bijou Ground Water Management District, Earnest Mikita, Robert Alexander, Joe Eurich, Vincent & Jacqueline Eurich, Harold Eurich, Alvin Eurich, Darrel & Carol Dutro, Bob Pemberton and E. Scott Mikita. Status: A status conference is set for January 20, 2016. DETERDING, Brent and Brad Case No. 15-GW-7 Designated Basin: Northern High PlainsManagement District: Central YumaAttorney: Jen Mele Subject: Applicants filed an application for a change in description of irrigated acres. Objections were filed by Marion and Hazel Chapman and Greg Stults. Status: Applicant filed a motion for summary judgment on the basis that no objector planned on participating at trial and no injury would result from the application. The Hearing Officer granted the motion on October 2, 2015 and remanded the matter to Staff. GARNER, Robert L., et al. Case No. 15-GW-8 Designated Basin: Upper Black Squirrel CreekManagement District: Upper Black Squirrel CreekAttorney: Jen Mele Subject: Application for a change in type of use and place of use for two wells. Objections were filed by the Upper Black Squirrel Creek Ground Water Management District, JT Jonson Properties, Farmer Objectors and Wayne Booker. Status: A three day hearing has been set for September 12, 2016. PRESTON RANCH MINISTRIES Case No. 15-GW-9 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Jen Mele Subject: Application for determination of water right for Denver Basin water with the Laramie Fox-Hills aquifer. Objections were filed by the Lost Creek Land and Cattle Company and Equus Farms, Inc. Status: Objectors stipulated to issuance of a determination and the case was remanded to Staff on October 21, 2015. < EINSPAHR, Gayln Case No. 15-GW-10 Designated Basin: Northern High Plains Management District: Attorney: Jen Mele Subject: Staff required the applicant to file an application for reduction in number of irrigated acres and associated annual appropriation in order to obtain a replacement well for the subject well. Applicant does not believe a reduction is required and claims an apparent overlap of irrigated acres with another well is a clerical error on the permit for the other well. Status: This matter is scheduled for a hearing on March 15, 2016. GUTTERSON RANCHES, LLC Case No. 15-GW-11 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Jen Mele Subject: Application for determination of water right for Denver Basin water with the Laramie Fox-Hills aquifer. Objections were filed by the Lost Creek Land and Cattle Company and Equus Farms, Inc. Status: Objectors stipulated to issuance of a determination and the case was remanded to Staff on October 21, 2015. PROSPECT VALLEY DAIRY, LLC Case No. 15-GW-12 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Jen Mele Subject: Application for replacement plan. An Objection was filed by the Lost Creek Groundwater Management Company. Status: A status conference is set for November 13, 2015. CERVI ENTERPRISES, INC., et al Case No. 15-GW-13 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Jen Mele Subject: Application for determination of water right for Denver Basin water with the Laramie Fox-Hills aquifer. Objections were filed by the Lost Creek Land and Cattle Company and Equus Farms, Inc. Status: Objectors stipulated to issuance of a determination and the case was remanded to Staff on October 21, 2015. MERIDIAN METRO DISTRICT Case No. 15-GW-14 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Attorney: Jen Mele Subject: Application for replacement plan to replace depletions of underdrains that were the subject of 14GW02. Objections were filed by Pain Brush Hills Metro District, Upper Black Squirrel Creek Ground Water Management District, Woodmen Hills Metro District, the Wayne E. Booker Revocable Living Trust and the Frances G. Booker Revocable Living Trust, Dan Farmer, Joe Farmer, Jr., Jerry Farmer, Teresa Farmer, Edna Farmer and the Farmer Pipeline Company, LLC, and Staff of the Ground Water Commission. Status: Applicant submitted a Motion for Order Disqualifying Hearing Officer to the Hearing Officer on September 14, 2015. That motion was initially not filed in any particular case since this case had not yet received a case number. On October 28, 2015, the applicant re-filed the Motion for Order Disqualifying Hearing Officer under this case. The Farmer family filed a response to the motion as well as a request for award of attorney fees. The Hearing Officer indicated in his September 30, 2015 Acknowledgement of Receipt of Objections and Request for Party Status that there will be no settings in the case until he has ruled on the Motion for Order Disqualifying Hearing Officer. CHEROKEE METRO DIST v. GROUND Case No. 15CW3028</w:t></w:r><w:r><w:rPr><w:b/>WATER COMMISSION and UPPER BLACK 15GW15SQUIRREL CREEK GROUND WATER MANAGEMENT DIST Designated Basin: Upper Black Squirrel CreekManagement District: Upper Black Squirrel CreekAttorney: Jen Mele Subject: Cherokee Metropolitan District originally filed a Complaint for Declaratory Judgment in district court seeking a determination as to the legal uses of Cherokee Well Nos. 1-8, specifically a finding that those wells can legally be used both inside and outside the designated basin and that irrigation use is not limited to the acreage that was specified in the statement of claim filed with the original application. Defendants filed a Motion to Dismiss, arguing that the Ground Water Commission has jurisdiction over this determination since the subject rights are designated ground water. The motion was granted and Cherokee has submitted the Complaint for Declaratory Judgment to the Hearing Officer. Status: The plaintiff sent the complaint to the Hearing Officer on October 23, 2015, however the parties are discussing whether it is appropriate for the Commission to be a named defendant. The defendants have not yet accepted service and the matter has not yet been published. An acceptance of service will trigger the deadline for filing an Answer and the publication will trigger the deadline for filing objections. 8 6 AG Report2015-11-20.pdfATTORNEY GENERAL’S REPORT ATTORNEY GENERAL’S REPORT Cases involving the Colorado Ground Water Commission November 20, 2015 The listing below summarizes matters in which the Office of the Attorney General represents the Colorado Ground Water Commission as of November 6, 2015. CHEROKEE METROPOLITAN DISTRICT Case No. 08-GW-71 13SA330 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. 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 under a 1999 Stipulation 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. UBS filed an appeal on December 18, 2013. The Supreme Court has issued a decision in which they said they upheld the decision of the District Court that under the 1999 Stipulation, but included in the decision ambiguous language as to whether or not Cherokee can use effluent as a source of replacement water in a replacement plan. Staff has not heard from Cherokee as to how they plan to proceed with the application still pending before the Hearing Officer. CHEROKEE METROPOLITAN DISTRICT Case No. 08-GW-78 09-GW-15 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Before: Jody Grantham, Hearing Officer 2 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. 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 issues in Case No. 98CW80 as described above for Cherokee Metro District’s replacement plan. GALLEGOS, REINALDO, ET AL Case No. 03-GW-06 03CV1335 15SA118 Designated Basin: Upper Crow Creek Management District: Before: Supreme 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: A 7 ½ day trial was held in February 2014 and on March 9, 2015 the district court issued its decision denying the Gallegos Family’s petition to de-designation a portion of the basin. On April 27, 2015 the Gallegos Family filed an appeal of that order to the Supreme 3 Court. The Gallegos’ Opening Brief will likely be filed this month, and the Commission will then have 35 days to file an Answer Brief. MERIDIAN SERVICE METRO DISTRICT Case No. 12-GW-10 14SA302 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Attorney: Pat Kowaleski & Susan Schneider 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. The Commission upheld the Initial Decision. Meridian appealed the Commission’s decision to the district court and trial was held July 29 – 31, 2014. The district court held in favor of the Management District and the Commission, finding that a portion of the water claimed by Meridian is designated ground water over which the Commission has jurisdiction. Meridian has appealed the matter to the Supreme Court and oral argument was held on September 30, 2015. A decision will likely be issued in a couple of months. FRONT RANGE RESOURCES Case No. 13-GW-7 15CV30493 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Jen Mele & Pat Kowaleski Subject: Front Range Resources filed for a replacement plan. Objections were filed by Equus Farms Inc., Lost Creek Land and Cattle Company and the Lost Creek Ground Water Management District. Status: The matter was dismissed by the Commission and appealed to the district court where it is now set for trial June 6-16, 2016. The objectors, including Staff, filed a motion to exclude use of water rights that are tributary to the South Platte as a replacement source since they are not decreed for use in this replacement plan. Oral argument on the issue is set for November 12, 2015. 4 MERIDIAN SERVICE METRO. DIST. Case No. 14-GW-2 Designated Basin: Upper Black Squirrel Management District: Upper Black Squirrel Attorney: Jen Mele Subject: Applicants filed an application for six new wells, which are French drains that were discussed in Case No. 12-GW-10. Objections were filed by Staff, Farmers and Upper Black Squirrel Ground Water Management Dist. Status: The matter was dismissed by the Hearing Officer after the applicant presented its case at the hearing that began on January 14, 2015 because the applicant did not have a replacement plan for its new appropriations. See below Case No. 15GW14. ARNUSCH INVESTMENTS, LLC Case No. 14-GW-7 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Jen Mele Subject: Applicants filed an application for a change of water rights for 16 wells. Objections were filed by Staff regarding just two of the wells, and by Equus Farms, Front Range Resources, Lost Creek Land & Cattle Co. LLC, PV LLC and the Lost Creek Ground Water Management District. Status: This matter was set for hearing October 27, 2015, however all parties to this case stipulated to issuance of Findings and Orders for 15 wells and one application was withdrawn by the applicant, and the hearing was vacated. BURNETT, JAY Case No. 14-GW-9 Designated Basin: Upper Crow Creek Management District: Attorney: Jen Mele Subject: Applicants filed an application for 22 well permits from the Upper Laramie aquifer. An objection was filed by the Gallegos Family Properties. Status: This matter was set for a hearing in November, 2015 however the applicant has withdrawn the application. 5 WC RESOURCES Case No. 15-GW-1 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Jen Mele Subject: Applicants filed an application for a change in place of use and type of use for two wells. Objections were filed by the Lost Creek Land and Cattle Co., Equus Farms, Inc., AG Water Alliance, Staff and the Lost Creek Ground Water Management District. Status: This matter has been set for a five day hearing starting December 14, 2015. BURNETT LAND & LIVESTOCK Case No. 15-GW-3 Designated Basin: Upper Crow Creek Management District: Attorney: Jen Mele Subject: Applicants filed an application for appropriations from the White River aquifer. An objection was filed by the Gallegos Family Properties. Status: A hearing was set for January, 2016 however the applicant has withdrawn the application. AXTON (Rocky Mountain Roosters) Case No. 15-GW-5 Case No. 15-GW-6 Designated Basin: Kiowa Bijou Management District: North Kiowa Bijou Attorney: Jen Mele Subject: Applicants filed an application for determination of water rights and a replacement plan. Objections were filed by the North Kiowa Bijou Ground Water Management District, Earnest Mikita, Robert Alexander, Joe Eurich, Vincent & Jacqueline Eurich, Harold Eurich, Alvin Eurich, Darrel & Carol Dutro, Bob Pemberton and E. Scott Mikita. Status: A status conference is set for January 20, 2016. DETERDING, Brent and Brad Case No. 15-GW-7 Designated Basin: Northern High Plains Management District: Central Yuma Attorney: Jen Mele Subject: Applicants filed an application for a change in description of irrigated acres. Objections were filed by Marion and Hazel Chapman and Greg Stults. 6 Status: Applicant filed a motion for summary judgment on the basis that no objector planned on participating at trial and no injury would result from the application. The Hearing Officer granted the motion on October 2, 2015 and remanded the matter to Staff. GARNER, Robert L., et al. Case No. 15-GW-8 Designated Basin: Upper Black Squirrel Creek Management District: Upper Black Squirrel Creek Attorney: Jen Mele Subject: Application for a change in type of use and place of use for two wells. Objections were filed by the Upper Black Squirrel Creek Ground Water Management District, JT Jonson Properties, Farmer Objectors and Wayne Booker. Status: A three day hearing has been set for September 12, 2016. PRESTON RANCH MINISTRIES Case No. 15-GW-9 Designated Basin: Lost Creek Management District: Lost Creek Attorney: Jen Mele Subject: Application for determination of water right for Denver Basin water with the Laramie Fox-Hills aquifer. Objections were filed by the Lost Creek Land and Cattle Company and Equus Farms, Inc. Status: Objectors stipulated to issuance of