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<br />;- <br /> <br />. <br /> <br />DISCUSSION: Section 36-20-104 (7), C.R.S, 1973, defines, for the <br />purposes of the "Weather Modification Act of 1972", "publish" as <br />in part meaning "a minimum of at least two consecutive weekly <br />legal notices in at least one newspaper of general circulation in <br />the county or counties, or portions, thereof, included within the <br />proposed operation." The rule however defines "publish" for the <br />purpose of issuance of permits as in part meaning "a minimum of <br />at least two consecutive weekly legal notices in at least one <br />newspaper of general circulation printed and published in each <br />county..." within the affected area (emphasis added). The rule <br />has narrowed the statutory definition, thus precluding the use of <br />a newspaper which is not printed and published in the affected <br />area even though it is of general circulation in the affected <br />area. <br /> <br />Section 36-20-112 (1), C.R.S. 1973, empowering the executive <br />di rector to issue permi ts, provi des in part "The di rector, in <br />accordance with his regulations, shall issue a weather <br />modification permit to each applicant who..." (emphasis added). <br />The statute enumerates six conditions which must be met, one of <br />which is "publishes a notice of intent to modify weather.. .". If. <br />an applicant, proceeding according to the statute, publishes per <br />the definition in the statute he would not necessarily get a <br />permit unless he further followed the agency rule by publishing <br />in a newspaper of general circulation which is printed and <br />published in the affected county. The language in this <br />subsection, "in accordance with his regulations", does not <br />empower the executive director to make substantive changes in the <br />six conditions but merely to adopt rules to effectuate in a <br />ministerial way that which has been determined by the General <br />Assembly to be the sole prerequisites to the issuance of permit. <br /> <br />2. 2 CCR 401-1 (II) (D) (9) <br /> <br />QUESTION PRESENTED: Can the department require that notice be <br />given to the county commissioners as a prerequisite to the <br />issuance of a weather modification permit? <br /> <br />CONCLUSION: The department cannot require such notice because <br />the prerequisites to obtaining a permit are clearly enumerated in <br />the statute. <br /> <br />DISCUSSION: As is stated above, section 36-20-112 (1), C.R.S. <br />-1973, sets forth six conditions which must be met before a <br />.weather modification permit can be issued. It is mandatory <br />rather than directory that a permit be issued once those <br />conditions are met ("The director, in accordance with is <br />regulations, shall issue a weather modification permit to each <br />applicant who~ (emphasis added)). This precludes the <br />executive director from adopting rules which provide for <br />additional conditions such as this rule does. <br /> <br />This rule requires that notice be given to the commissioners <br />of the counties to be affected by the project. The rule is <br />outside the scope of the executive director's authority as it is <br />substantive in nature and the General Assembly has already <br />determined what conditions must be met before a permit shall be <br /> <br />-2- <br />