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not provide an opportunity for "rebuttal," unlike opportunities provided to Cotter before <br />testimony closed. See AR:01026:6 -8, 01034:14 -15. <br />Even if a party fails to preserve a claim, an appellate court can choose to consider the <br />issue. Beauprez, 42 P.3d at 649. The participation by Mr. Berry, who stated that "we've gone to <br />great lengths to make our case today " during deliberations is a classic example of unlawful <br />entwining of prosecutorial and adjudicative functions. When prosecutorial functions are <br />entwined with the adjudication of charges against a regulated party, a fair and impartial hearing <br />is not provided. Spedding v. Motor Vehicle Dealer Bd., 931 P.2d 480, 485 (Colo. Ct. App. <br />1996). Mr. Berry's participation in the initial decision to send the Notice of a Reason to Believe <br />a Violation Exists letter, AR:00371, and subsequent participation in the deliberations violated <br />Cotter's due process rights. <br />VI. THE CIVIL PENALTIES ORDERED BY THE BOARD ARE IN EXCESS OF <br />STATUTORY JURISDICTION AND AUTHORITY, AND UNSUPPORTED BY <br />SUBSTANTIAL EVIDENCE. <br />Colo. Rev. Stat. § 34 -32- 124(7) is clear and unambiguous that the Board may impose <br />civil penalties only for permit violations: "Any person who violates any provision of any permit <br />issued under this article shall be subject to a civil penalty ...." Notwithstanding this express <br />statutory language, the Order makes no finding that Cotter violated permit number M -1977 -300. <br />AR:00845 -53. Likewise, the Board made no such finding in its deliberations during the July 12, <br />2010 Hearing. See AR:01034 -49. Since the Board failed to make the necessary statutory finding <br />13 The administrative record contains numerous documents indicating Mr. Berry's role in <br />the development of the Division's "case" against Cotter. See, e.g., AR:00346 (Mr. Berry as <br />copyee of May 19, 2010 Adequacy Reviews of EPP); AR:00352 (Mr. Berry as the recipient of <br />comments on the EPP from Denver Water); AR:00364 (Mr. Berry as recipient of comments on <br />the EPP from Arvada Water); AR:00371 (Mr. Berry as copyee of May 21, 2010 Notice of a <br />Reason to Believe a Violation Exists). <br />32 <br />