Re: Formal Comments, RICD Rules

• Description: RICD Rules
• State: CO
• Date: 10/25/2001
• Author: Rod Kuharich, Dan McAuliffe, Dan Merriman, Ted Kowalski, Linda Bassi, Sasha Charney
• Title: Re: Formal Comments, RICD Rules
• Water Supply Pro - Doc Type: Board Memo

13. FINDINGS WITHOUT A HEARING
If a public hearing is not requested pursuant to Rule 12, the Board may adopt, adopt with
modifications, or reject the Staffs recommended Findings of Fact and Recommendation at
any regularly scheduled or special meeting of the Board. Within ninety days after the closing
of the period for filing of statements of opposition for the application for the RICD right,
pursuant to section 37- 92- 102(6)(c), C.R.S. (2001), the Board shall report its Findings of Fact
and Recommendation to the water court for review. Said Findings of Fact and
Recommendation shall be based on the record, which shall include all submissions to the
Board by the Applicant, by the Staff, and by any Party.
}► The Staff recommends
The process, logistics and standards of how the Board will evaluate, without a hearing, "all
submissions to the Board by the Applicant, by the Staff, and by any party" is not identified in
this Rule. Without clearly articulated, consistent process, logistics and standards, findings
made by a quasi-judicial body without a public hearing are subject to a host of legal
challenges. (Gunnison County)
b Modify by deleting "may adopt, adopt with modifications, or reject the Staffs recommended
Findings of Fact and Recommendations" and add after "...or special meeting" (delete also
"of the Board" after special meeting) the following wording: "shall make Findings of Fact
and adopt a final Recommendation as to whether the application should be granted, granted
with conditions, or denied." This language is more in keeping with the governing statutory
provision. It also addresses the concern of those parties who believe the Board should make
an 'independent' determination. (NCWCD, CSU)
b Board's decision should not be whether to approve or reject Staff recommendation. The
Board's decision, as required by law, is to recommend to the water court whether the
application should be approved, based on its review of the record. Board in practice may
choose to follow Staffs recommendation, but point of its decision is not to determine
whether Staff is correct. Point of the decision is to determine whether the application satisfies
standards set forth in the Required Findings section. Rewrite as follows: "If neither Party nor
the Board has requested a public hearing, at a regularly scheduled or special meeting of the
Board, the Board shall make findings of fact and recommend whether the application be
approved, approved with conditions or denied. Within ninety (90) days after the closing of
the period for filing statements of opposition pursuant to section 37- 92- 102(6)(c), the Board
shall report Findings of Fact and Recommendation to the water court. The Findings of Fact
and Recommendation shall be an evaluation of the application in light of Section 7 of these
Rules based on the record which shall include all timely submittals to the board by the
Applicant, the Staff, and the public." (NWCCOG -QQ)
14. HEARING PROCEDURES
If a hearing is requested pursuant to Rule 12, the Director shall appoint a Hearing
Coordinator to set the date of the hearings) and establish the procedures by which evidence
will be offered.
}► The Staff recommends no changes to the introduction to Rule 14.
Rule 14 requires substantial attention to withstand challenge (see explanation under Rule 12).
It is not sufficient, for example, to 1) avoid addressing the applicability of 24 -4 -105, C.R.S.;
2) allow the Hearing Coordinator to determine, without guidance in the Rules, the hearing
location; 3) not address the logistics of examination, cross examination, re- direct
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