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<br />2011 - 05 - Minutes.docxMINUTES <br /> <br />MINUTES <br />SECOND QUARTERLY MEETING <br />COLORADO GROUND WATER COMMISSION <br />May 20, 2011 <br />The Second Quarterly Meeting of the Colorado Ground Water Commission took place on May 20, 2011, at Castle Rock Town Hall, 100 N Wilcox, Castle Rock, Colorado. Chairman <Dennis Coryell <br /> called the meeting to order at 10:00 a.m. Mr. Rick Nielsen called the roll and determined that a quorum was present. Commission members present were Grant Bledsoe, Carolyn Burr, Larry <br /> Clever, Dennis Coryell, Earnest Mikita, George Schubert, Max Smith, Virgil Valdez, Alex Davis, Suzanne Sellers and Dick Wolfe. Staff members present were Kevin Rein, Keith Vander Horst, <br /> Rick Nielsen, Jay Bloomfield, Ivan Franco, David Keeler and Tracy Kosloff. Also present were Jody Grantham, Hearing Officer, Pat Kowaleski, A.G. for the Commission and Jennifer Mele, <br /> A.G. for staff. Members of the public were also present.< <br />Approval of the Agenda – The agenda was accepted and approved as presented. <br />Approval of Minutes for Meeting of February 18, 2011 Chairman Coryell asked if there were any corrections or additions to the minutes. There being <none: <br />Commissioner Mikita moved to approve the minutes as presented. <br />Commissioner Schubert seconded the motion which carried unanimously. <br />Report of the Executive Director by Dick Wolfe <br />Mr. Wolfe opened his remarks commenting on the precipitation difference between the northern and southern parts of the state, the south having had so little moisture, especially the <br /> South-East corner of the state. He went on to say that the cool weather has delayed the run-off of the above average snowpack which, may lead to flooding. The situation, especially <br /> the dams and spillways, is being closely monitored. <br />He then updated the Commission on the Republican River. Colorado and Kansas are nearing agreement on some technical issues and he hopes that a resolution will be presented to the Republican <br /> River Compact Committee at the August meeting. <Mr. Wolfe informed the Commission that the re-purposing of Bonnie Reservoir should be complete and draining commenced by the fall. There <br /> are a lot of issues to discuss and a lot of work to do. <br />Commissioner Davis spoke on the re-purposing of the reservoir stating that the Division of Wildlife manages less intensely than State Parks. She also mentioned that the 56 acres of <br /> amenities would be removed unless local entities contracted to maintain them. <br />Mr. Wolfe concluded his remarks by mentioning discussions to amend the well measurement rules to include the southern portion of the Northern High Plains, East Cheyenne District and <br /> other areas south of current RRWCD boundaries. These areas were included in the model but excluded from the measurement rules. <br />Commissioner Mikita’s questions on the well retirement program were addressed. <br />Chairman Coryell called for agenda item no. 5, Hearing on a request by the Town of Two Buttes for a variance to Rule 5.2.1 to allow issuance of a new large capacity permit on an existing <br /> well without a Waiver of Claim to Injury from a well within ½ mile. <br />Mr. Spike Ausmus, Mayor of the Town of Two Buttes addressed the Commission. He testified that the Town is under an enforcement action by the CDPHE Water Quality section for violations <br /> regarding the radium levels in the water. He went onto say that the loan from the CWCB for the treatment plant cannot be dispersed until the town’s well permit is cleared up. He said <br /> that the town’s main water supply needs to be re-permitted and asked for the variance. <br />Mr. Binder addressed the Commission next. He stated that his family was against the well because it is on their property, not property owned by the town. Further, he said that the <br /> town failed to fulfill the agreement it had made with his grandmother, when the original waiver and well was constructed, to provide municipal water to her residence. He also said that <br /> current negotiations with the town are going nowhere but if agreement could be reached they would sign the wa<iver. In response to a question he said that they are not claiming injury <br /> to their well. <br />Mr. Ausmus responded stating that the town’s research indicates that the well is on town property and that town’s are exempt from adverse possession laws. <br />Mr. Binder admitted that his well, permit no. 4238-F has not been pumped since 1986 and that his taxes do not include the streets and alleys. <br />Mr. Keenan, an objector, cited some legal cases regarding easements and the use thereof. He said that since the well is on the objectors land, without an easement for a well structure, <br /> the well belongs to the objectors. He concluded by saying that the town has not demonstrated standing to apply for a well permit. <br />In responding to questions of the Commission the objectors asserted that they had no written evidence regarding any agreement with their grandmother or objection regarding well to well <br /> injury, nor any objection to the operation of the well. Objectors stated that what they wanted was for the Town to install a water and sewer line to their house and possibly provide <br /> free service. <br />Ms. Tracy Kosloff representing staff next addressed the Commission. Ms. Kosloff provided a background on the administration of the well. She said that being under an enforcement order <br /> from CDPHE could be considered an unusual hardship as defined in Rule 11. <br />There being no further testimony Commissioner Coryell closed the hearing. <br />Commissioner Smith said that considering the history he would move to approve the request. <br />Commissioner Burr seconded the motion which passed unanimously. <br />Commissioner Clever noted that it is a common practice for users outside of district boundaries to pay for water and sewer line installation and 1 1/2 times the normal rate, as mentioned <br /> by the town. <br />Chairman Coryell called for agenda item no. 6, the staff report. <br />Mr. Keith Vander Horst, representing staff, went over the items in his written report. He noted that the petition to create the Big Springs Designated Basin has been withdrawn. In <br /> response to the enforcement portion of the report, Commissioner Clever questioned the difficulty in getting a cease and desist order moving. Commissioner Bledsoe requested further <br /> information regarding the handling of the Town of Two Buttes original well, permit no. 24875-F. <br />Chairman Coryell called for agenda item no. 7, the report of the Attorney General’s Office. <br />Ms. Jennifer Mele reporting for the Attorney General’s Office referred the Commission to her written report. She noted that the Cherokee matter remains on hold while the parties are <br /> in court. Ms. Mele also noted that the Gallegos case is set for hearing in November. <There were no questions for Ms. Mele. <br />Chairman Coryell called for agenda item no. 8, Management District Reports. <br />Mr. Nate Midcap, reporting for the Marks Butte, Frenchman, Sandhills and Central Yuma GWMD’s, reported that his districts have been relatively quiet. Mr. Midcap stated that 75% of the <br /> pivots have been turned on because of the lack of significant moisture, until the past week or two when 4” had been received. He is pleased about the direction the negotiations with <br /> Kansas are taking and the progress with Bonnie Reservoir. He <noted that he had begun the chemigation inspections for the year. Mr. Midcap ended his report by congratulating Ms. Daniel <br /> for her new job with the Republican River Conservation District.< <br />Mr. Jack Dowell, reporting for the W-Y GWMD advised the Commission that his district had received 3” of rain this past week. All crops are planted and that he was beginning to inspect <br /> the chemigation system. Mr. Dowell advised the Commission that the contractor handling the tree and weed eradication program will start on the Arikaree river when he finishes in Nebraska.< <br />There was no report for the Arikaree GWMD. <br />Ms. Deb Daniel reporting for the Plains and East Cheyenne GWMD’s, reported that they have experienced a cool, windy and dry spring. She said that the sprinklers were turned on before <br /> planting to build up the soil moisture and after because it has been so dry. Ms. Daniel reported that she has started her chemigation inspections and that she and Mr. Dave Keeler have <br /> conducted inspections of irrigation systems to ensure compliance with the permitted limits. She thanked Mr. Wolfe for monitoring the Smokey Hill River in Kansas and warned the Commission <br /> that there was a lot of stuff coming up in the near future. Ms. Daniel stated that people in her districts are looking forward to the passive administration of Bonnie Reservoir and <br /> that she would let the proper authorities know about the administration opportunities there. She closed her comments noting that this will be her last meeting representing the Plains <br /> and East Cheyenne Districts and that starting in August she will be representing the Republican River Conservation District. <br />Max Smith, reporting for the Southern High Plains GWMD stated that his district has seen a cool, dry and windy spring. They will gladly accept any moisture sent their way. <br />There was no report for the North Kiowa Bijou GWMD. <br />Mr. Dave Doran reported for the Upper Black Squirrel GWMD. <He said that the only difference in their spring weather is that have also had a tornado and some hail. Mr. Doran informed <br /> the Commission that phase 1 of the water quality study is complete. He indicated that a problem they have is most of the monitoring wells are in the main channel, they need more in <br /> the periphery. He wondered if the old wells that are being replaced could be used as monitoring wells. On a separate matter Mr. Doran expressed the District’s concern over staff’s <br /> meshing of the state’s well permitting practices and policies with those of the District. <br />Mr. Dave Tousig reporting for the Upper Big Sandy reported a dry winter with 2” of rain and wind in the spring. He thanked Mr. Keith Vander Horst for attending a District meeting to <br /> provide comments on the amended District Rules. These new rules require the installation of totalizing flow meters on all wells. There will be financial assistance offered as an incentive. <br />Mr. Tom Souter reporting for the Lost Creek GWMD said that there are users in the Watkins area that are studying the bedrock formations as a water supply. He also said that difficulty <br /> in assessing the user fee on high capacity wells has led the District to get serious about data collection and ownership changes. <br />Mr. Stan Murphy reporting for the Republican River Water Conservation District advised the Commission that the District is moving ahead with the construction of the pipeline. Mr. Murphy <br /> concluded his final report before the Commission with personal comments. <br />Chairman Coryell called for agenda item no. 10, old business. There was none. <br />Chairman Coryell called for agenda item no. 11, new business. Mr. Schubert brought up the issue raised by Mr. Doran, wondering if there was anything they could do to help the District <br /> and staff work more cooperatively. After discussion of the Commission, Commissioner Wolfe promised to look into the matter and report back to the full Commission by the next meeting.< <br />Chairman Coryell called for agenda item no. 12, public comment. Mr. Donald Booker addressed the Commission to expressing confusion and frustration over staff’s historic actions and <br /> enforcement of the Rules. Mr. Booker stated that when he applied to move his water right his application was denied and staff did not help. Mr. Booker claimed that now staff is helping <br /> a water user that is in violation of his permit to move that water right. < <br />Mr. Tausig and Mr. Shimmin made brief comments on the issue of handling enforcement matters. Commissioner Clever suggested going into executive session to discuss a personnel issue. <br /> Mr. Kowaleski stated that as notice for going into executive session on personnel matters was not on the agenda, the Commission could not enter executive session. <Mr. Clever asked <br /> that somebody look into the matter of staff performance and report to the Commission in August. Commissioner Wolfe stated that he would take the lead and look into the matter. He <br /> also pointed out that other Districts and parties provide positive reports about staff’s actions. <br />There being no further business before the Commission, the meeting adjourned. <br />Respectfully submitted, <br />Richard A Nielsen, P.E. <br />Secretary to the Ground Water Commission <br />Ground Water Commission Meeting MinutesPage 4 <br />May 20, 2011 <br />2011 - 05 - Minutes.pdf <br /> <br />2011AugustReport_Staff&UBSC_Issues.docx <br />August 9, 2011 <br />To:Ground Water Commission <br />From:Kevin Rein, Assistant State Engineer, and <br />Keith Vander Horst, Designated Basins Team Leader <br />RE:Staff’s report on interaction with and issues of conflict between Staff and the Upper Black Squirrel Creek GWMD <br />At the May 20, 2011 Ground Water Commission meeting, members of the Upper Black Squirrel Ground Water Management District spoke to the commissioners of several concerns they had in the <br /> areas of the Commission Staff’s well permitting and enforcement actions in that basin. During that same meeting, some Commission members expressed a perception that the Staff was acting <br /> improperly and asked Commissioner Wolfe, the State Engineer, to investigate the actions of the Staff. In response to that request, the Staff has met with members of the District on <br /> June 27, 2011 to get more detail regarding the District’s concerns. The Staff has reported back to the State Engineer <and offers this same report to the Commissioners. <br />In the May Commission meeting, members of the District mentioned that they believed the Staff had improperly issued well permits. <br />In our June 27 meeting with the District, they brought up the well that was late registered for Mildred Duncan. In this situation, the well owner, Ms. Duncan had a well that the Staff <br /> ultimately determined was constructed under a replacement permit issued in 1995, under a false claim by Ms. Duncan to a permit number for a well that actually belonged to another party <br /> at a different location. After investigating the situation, the Staff allowed Ms. Duncan to late register the original pre-1972 well, something that would have been originally allowed <br /> in 1995 had Ms. Duncan applied for it, and issued a replacement permit for the replacement well, also something that would have been allowed in 1995 had the original well been late <br /> registered. <br />The late registration and replacement permits were issued for domestic uses inside 1 single family dwelling and stock watering, with diversions of 1 acre-foot per year. These uses and <br /> amounts were less than had been allowed under the permit issued in 1995 (which were domestic inside 1 single family dwelling, stock watering, irrigation of 1 acre, and diversions of <br /> 4 acre-feet per year). <br />Although not common, this was also not a unique reaction to this type of problem in the state. We understand that the District wanted to participate in the solution to the problem and <br /> was proposing a different solution. However, it was a small capacity well permitting matter that the State Engineer’s Staff has statutory authority to deal with. <br />The solution the District was proposing was that in order to obtain the late registration and replacement permits Staff first cancel the permit on and require abandonment of, or require <br /> Ms. Duncan to agree to cancel the permit and abandon, a different existing stock well on her property that had been inappropriately permitted and constructed in 2007. In the< May Commission <br /> meeting the District implied that Staff’s action was a surprise to the District. This is not correct. Staff had previously informed the District that it is this office’s standard <br /> practice to honor small capacity permits once the permit is issued and the well constructed, even if they were erroneously issued by this office, and that it would therefore not be <br /> instigating any action regarding the 2007 stock permit. In Staff’s view, the fact that Ms. Duncan ended up with two wells< rather than one well, one permitted for household and stock <br /> use and the other permitted only for stock use, results in little if any potential for increased stock use on her property. <br />During the June 27 meeting, Staff provided to the Commission a copy of its summary of the District’s Rule 3 which is currently being used to ensure Staff is implementing the District’s <br /> Rule 3 when issuing small capacity well permits. This was to allay concerns expressed by the District at the May Commission meeting that the Staff did not adhere to the District’s rules <br /> when issuing small capacity well permits.< <br />In the May Commission meeting, members of the District also expressed concern that the Staff was receiving an inordinate amount of emergency replacement applications for small capacity <br /> well permits on Fridays. This timing makes it difficult for the District to participate in the evaluation of the well permit and that situation was leading to improperly issued well <br /> permits. <br />Note that the Division of Water Resources has a protocol that we implemented statewide approximately 12 years ago that provides for expedited review of emergency replacement well permit <br /> applications in the event that a homeowner is out of water due to a failed well. We will attempt to evaluate the well permit within 24 hours in those situations. Our staffing levels <br /> do not allow us to do a field check to verify that the well has actually failed. <br />In our June 27 meeting with the District, District members cited a situation where a well owner had submitted an application for an emergency replacement of a small capacity well to <br /> the Staff on a Friday. The application requested replacement of a well, previously constructed into a bedrock aquifer, into the alluvial aquifer. Although there is no statutory permit <br /> approval authority belonging to the District, the Staff sent a copy of the application to the District as a courtesy – a courtesy Staff has extended to the Upper Black Squirrel Creek <br /> District for several years. The District believed the evaluator was going to issue the permit into the new aquifer as applied for. However, due to the Staff’s evaluation process and <br /> rigorous peer review process, it is highly unlikely that the permit would have been issued into the wrong aquifer. This was the only occurrence of a potentially improperly permitted <br /> small capacity well that the District mentioned in the meeting.< <br />Note that pursuant to C.R.S. 37-90-105(1) it is the State Engineer that approves permits for small capacity wells in Designated Basins. The District has a rule, and interprets 37-90-105(1) <br /> to say, that the State Engineer may not approve a small capacity well permit until first receiving a written recommendation on the application from the District. Staff disagrees with <br /> the District’s interpretation of the statute, and does not believe the District can pass a rule that imposes the additional step of requiring written District approval before a small <br /> capacity permit can be issued. C.R.S. 37-90-105(7) does allow the District to restrict the issuance of small capacity well permits by way of adopting rules. The District has adopted <br /> rules placing restrictions on issuance of small capacity well permits, and Staff is adhering to those rules in its issuance of such permits. <br />The District believes that in issuing Determinations of Water Rights for Denver Basin bedrock aquifers, the Staff is allowing speculation for nontributary ground water. This was not <br /> mentioned specifically in the May Commission meeting but was in the June 27 meeting. <br />In the June 27 meeting, we discussed case law that addresses speculation and the proper application of applying a speculation test when granting water right versus issuing a well permit. <br /> The Staff believes that the current law does not preclude a landowner from getting a Determination of Water Right for nontributary ground water for uses that appear speculative. But <br /> we are willing to review the matter further<, independently or along with the District’s counsel. <br />In the June 27 meeting, the District members discussed the use of Cherokee Wells 7 and 8 and irrigation on the 6100 well. <br />Both of these are situations that the Staff did not know about until the June 27 meeting. There was no mention of this specifically in the May Commission meeting. We will not go into <br /> detail on these matters now because they may be before the Commission in the future and the Staff is just now learning about these alleged violations. In the June 27 meeting, the Staff <br /> and the District discussed exchanging additional information (<the District’s consultant John Himmelreich said he would send information to Lisa Thompson and to a Staff member or the <br /> Staff’s counsel.) Lisa Thompson has sent a letter expressing concerns about the wells, and Staff will be reviewing those concerns.< <br />In the May Commission meeting, the District brought up the matter of Mr. Goss using the Wiebe well out of compliance with a previous change order. <br />This matter is subject of a variance request in the August Commission meeting and we will not discuss the technical or legal details in this report. However, members of the District <br /> have stated that we have let this go on for four or five years, contrary to the Commission’s order. However, there are some facts that are important to bring before the Commission <br /> to clarify the events related to this situation. <br />The Staff did not know about this situation until a complaint was submitted to Staff on June 21, 2010, approximately 14 months ago. The Staff took timely action in the matter, following <br /> the enforcement process described by the report on well permit administration and enforcement being provided to the Commission from Dick Wolfe. <br />Mr. Goss represented to the Staff that he believed he had the right to operate the Wiebe well according to its original water right until the change had actually been effectuated through <br /> use. While the Staff disagrees with Mr. Goss’s assessment of the right, we also had no reason to believe that Mr. Goss was not being truthful in his assertion of his belief. <br />In situations where the State Engineer’s Office or Commission Staff deals with a water user that is using water improperly or out of compliance with a water right or a well permit, if <br /> a water user has started a crop that is reliant on that water, we will allow the water user to finish the crop as long as the water user is making a good faith effort to come into compliance. <br /> This was seen, for example, on the South Platte River during the months and years immediately following the Empire Lodge decision and the same with Oil and Gas wells after the Vance <br /> decision. <br />While out-of-compliance use of a well can have an impact on the aquifer over the long term, we had no evidence that a water user has been unable to operate their well as a direct result <br /> of our forbearance in immediately issuing a cease and desist order on Mr. Goss’s use in 2010. <br />For the 2011 irrigation year, Mr. Goss has proposed a plan to ensure no material injury through the use of the Wiebe Well by reducing the use of his water rights on another site by an <br /> amount equal to the amount of additional pumping necessary at the Wiebe well. Mr. Goss’s ultimate plan is that this operation would be formalized through his application to change <br /> the water rights for those wells at that other site. While this plan may ultimately fail to get approval, it is a plan that limits combined pumping from the aquifer under the Wiebe <br /> Well and the other rights to the legal use of both the Wiebe well and the other rights, even though it is premised on a change in point of diversion of the other wells. <br />We believe these factors demonstrate that the situation is unique, and that the Staff has acted in a manner consistent with actions around the state. <br />The District and the Staff had additional discussion during the June 27 meeting. We believe that continued meetings between the Staff and the District will be the best way to continue <br /> to resolve problems. <br />KR & KVH <br />Staff Report on UBSC IssuesPage 2 <br />August 9, 2011 <br />2011AugustReport_Staff&UBSC_Issues.pdfMicrosoft Word - 2011AugustReport_Staff&UBSC_Issues.docx <br />August 9, 2011 To: Ground Water Commission From: Kevin Rein, Assistant State Engineer, and Keith Vander Horst, Designated Basins Team Leader RE: Staff’s report on interaction with <br /> and issues of conflict between Staff and the Upper Black Squirrel Creek GWMD At the May 20, 2011 Ground Water Commission meeting, members of the Upper Black Squirrel Ground Water <br /> Management District spoke to the commissioners of several concerns they had in the areas of the Commission Staff’s well permitting and enforcement actions in that basin. During that <br /> same meeting, some Commission members expressed a perception that the Staff was acting improperly and asked Commissioner Wolfe, the State Engineer, to investigate the actions of the <br /> Staff. In response to that request, the Staff has met with members of the District on June 27, 2011 to get more detail regarding the District’s concerns. The Staff has reported back <br /> to the State Engineer and offers this same report to the Commissioners. 1. In the May Commission meeting, members of the District mentioned that they believed the Staff had improperly <br /> issued well permits. In our June 27 meeting with the District, they brought up the well that was late registered for Mildred Duncan. In this situation, the well owner, Ms. Duncan <br /> had a well that the Staff ultimately determined was constructed under a replacement permit issued in 1995, under a false claim by Ms. Duncan to a permit number for a well that actually <br /> belonged to another party at a different location. After investigating the situation, the Staff allowed Ms. Duncan to late register the original pre-1972 well, something that would <br /> have been originally allowed in 1995 had Ms. Duncan applied for it, and issued a replacement permit for the replacement well, also something that would have been allowed in 1995 had <br /> the original well been late registered. The late registration and replacement permits were issued for domestic uses inside 1 single family dwelling and stock watering, with diversions <br /> of 1 acre-foot per year. These uses and amounts were less than had been allowed under the permit issued in 1995 (which were domestic inside 1 single family dwelling, stock watering, <br /> irrigation of 1 acre, and diversions of 4 acre-feet per year). Although not common, this was also not a unique reaction to this type of problem in the state. We understand that the <br /> District wanted to participate in the solution to the problem and was proposing a different solution. However, it was a small capacity well permitting matter that the State Engineer’s <br /> Staff has statutory authority to deal with. The solution the District was proposing was that in order to obtain the late registration and replacement permits Staff first cancel the <br /> permit on and require abandonment of, or require Ms. Duncan to agree to cancel the permit and abandon, a different existing stock well on her property that had been inappropriately <br /> permitted and constructed in 2007. In the May Commission meeting the District implied that Staff’s action was a surprise to the District. This is not correct. Staff had previously <br /> informed the District that it is this office’s standard practice to honor small capacity permits once the permit is issued and Staff Report on UBSC Issues Page 2 August 9, 2011 the <br /> well constructed, even if they were erroneously issued by this office, and that it would therefore not be instigating any action regarding the 2007 stock permit. In Staff’s view, the <br /> fact that Ms. Duncan ended up with two wells rather than one well, one permitted for household and stock use and the other permitted only for stock use, results in little if any potential <br /> for increased stock use on her property. During the June 27 meeting, Staff provided to the Commission a copy of its summary of the District’s Rule 3 which is currently being used to <br /> ensure Staff is implementing the District’s Rule 3 when issuing small capacity well permits. This was to allay concerns expressed by the District at the May Commission meeting that <br /> the Staff did not adhere to the District’s rules when issuing small capacity well permits. 2. In the May Commission meeting, members of the District also expressed concern that the <br /> Staff was receiving an inordinate amount of emergency replacement applications for small capacity well permits on Fridays. This timing makes it difficult for the District to participate <br />