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<br />. <br /> <br />e <br /> <br />e <br /> <br />e <br /> <br />HILL & ROBBINS. P. C. <br /> <br />DAVID W. ROBBINS <br />ROBERT F. HILL <br />DENNIS M. MONTGOMERY <br />KAREN A. TOMB <br />RONALD L WILCOX <br />JOHN H. EVANS <br />MARK J. WAGNER <br />JENNIFER H. HUNT <br /> <br />ATTORNEYS AT LAW <br />100 BLAKE STgEET BUILDING <br />1441 EIGHTElCNTH STREET <br />DENVER. COLO:RADO 80202-1256 <br /> <br />TELECOPIER <br />303296.2388 <br /> <br />TELEPHONE <br />303296-8100 <br /> <br />E.MAIL <br />HillRobb@aol.com <br /> <br />fO)rc;'0~n\\mc'n~ <br />In.HS'0 U:;U 'V /2,:9 <br /> <br />July 14, 1999 <br /> <br />JUL 1 6 1999 <br /> <br />Alexandra Davis, Esq. <br />Assistant Attorney General <br />1525 Shennan Street, 5th floor <br />Denver, Colorado 80203-1700 <br /> <br />OFFICE ;")r "j'HE <br />AITORN"Y GENERAL <br />NATtiRAL RESOURCES &. <br />ENVIRONMENT SECTION <br /> <br />Re: A vlIilability of Cross-examination <br />in ISF Hearings Before CWCB <br /> <br />Dear Alex: <br /> <br />As requested at our meeting last week, I am writing you to provide my comments and <br />concerns about the current proposal to prohibit cross-examination during hearings before the <br />Colorado Water Conservation Board ("CWCB") concerning instream flow applications. <br /> <br />Since the inception of the authorizing legislation allowing the CWCB to appropriate <br />minimum stream flows, persons and entities concemed about a particular minimum stream flow <br />filing had two forums in which to voice their objections: in a public hearing before the actual <br />appropriator-the CWCB; and, if dissatisfied with the outcome of that process, before the Water <br />Judge in a trial, de novo, on the merits of the CWCB's Application. <br /> <br />This has now changed with the advent of Senate Bil164, enacted during the 1996 <br />legislative session. Under Senate Bill 64, determinations made by the CWCB regarding the <br />existence of the natural environment, water availability for an mstream flow water right, and <br />whether the natural environment can exist without material injury to water rights, are no longer <br />subject to de novo judicial review; but merely the deferential "arbitrary and capricious" standard <br />under the Colorado Administrative Procedure Act. Obviously, this change has raised concerns <br />that the CWCB has now effectively become the sole arbiter of its own appropriations, and the <br />Water Court process will not provide a meaningful evaluation of the merits of the instream flow <br />appropriation. <br /> <br />Against this background, the current proposal to preclude cross-examination in hearings <br />before the CWCB serves only to heighten those concems. If cross-examination is not allowed <br />during the CWCB hearing it will not be allowed at all, as the Water Court's review will be <br />confined to the CWCB's administrative record. Where scientific or technical evidence is <br />presented to support or oppose an instream flow appropriation it is crucial that cross-examination <br />be allowed to test the probity, credibility, and reliability of the evidence. <br />