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rule, or policy pending before the Colorado Water Quality Control Commission (WQCC) that <br />occurs in compliance of the statutory requirement in 25-8-104(2)(d), C.R.S, This document <br />does not necessarily direct the process the Water Quality Control Division (WQCD) would take <br />in consulting with the SEO and CWCB regarding a WQCD decision not pending before the <br />WQCC. <br />For the purposes of this MOU, the consultation on "material injury to water rights" will be <br />limited to the evaluation of whether the action will result in a diminution of the available <br />water supply that a water rights holder would otherwise enjoy at the time and place and in <br />the amount of demand for beneficial use. The consultation will not address directorindirect <br />impacts to the use of water based on water quality. This limitation is consistent With the <br />intent of the consultation process, as described in section 25-8-104(1) and recognized by the <br />General Assembly that a discharger may choose "consumptive types of treatment <br />techniques," and required compliance with articles 80 - 93 of title 37 of the statutes, which <br />articles guide administration from a water quantity objective, not water quality. The statute <br />also recognizes that the question of whether such material injury to water rights exists and <br />the remedy therefor shall be determined by the water court. <br />From this language, it is clear that in 25-8-104(d), the General Assembly intended that the : <br />State Engineer be consulted only on the question of diminution of the available water supply <br />and not the direct or indirect effects of changes to water quality, which direction is <br />consistent with the State Engineer's administrative responsibilities and expertise. Based on <br />25-8-104(d), the scope of the consultation with the CWCB would be the same. Further, since <br />the Water Quality Control Division is the agency with expertise in water quality matters, <br />neither the State Engineer nor the CWCB should impede the WQCC's decision making on water <br />quality matters by precluding a public and informed hearing on those water quality matters, <br />simply by virtue of making a material injury determination based on the State Engineer's or <br />the CWCB's review of evidence regarding water quality. <br />1. In the event that a person asserts that a decision, rule, or policy by the WQCC has the <br />potential to cause material injury to water rights, the WQCC will initiate consultation <br />with the SEO and CWCB. <br />2. For rulemaking hearings, the WQCC includes language in the Notice of Rulemaking <br />directing any person who believes that the actions proposed in the notice have the <br />potential to cause material injury to his or her water rights to so indicate, along with <br />an explanation of the alleged harm, in the request for party status in that rulemaking <br />hearing. <br />3. In the event that the WQCC believes consultation is necessary, or in the event that <br />any person or entity alleges that a decision, rule, or policy pending before the WQCC <br />has the potential to cause material injury to water rights, the WQCC, WQCD, SEO and <br />CWCB will utilize the following process: <br />a. As soon as possible, the WQCC's Administrator will request consultation from <br />the SEO and CWCB regarding whether the pending decision, rule, or policy will <br />cause material injury to water rights by sending a letter to the State Engineer <br />and the Director of the CWCB which shall include or provide reference to <br />