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DWR_3555995
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DWR_3555995
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Last modified
4/11/2024 2:44:07 PM
Creation date
1/7/2020 3:01:33 PM
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Template:
Rulemaking
Rule Name
Produced Nontributary Ground Water Rules (2CCR-402-17)
Document Type - Rulemaking
Final Actions
Subject
STATEMENT OF BASIS, PURPOSE, AND SPECIFIC STATUTORY AUTHORITY FOR PRODUCED NONTRIBUTARY GROUND WATER RULES
Date Effective
3/17/2010
Tags
DWR Re-OCR
Description:
Signifies Re-OCR Process Performed on or after 10/6/2019
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Act. With respect to the effect upon Water Court proceedings of the State Engineer's <br /> determinations made pursuant to the rules, the State Engineer believes that such effect is <br /> a matter for determination by the Water Court. The State Engineer does not presume the <br /> authority to dictate through these rules their effect upon a water court proceeding. <br /> Extension of Notice Period for Adiudicatory Proceedings. Certain parties requested that <br /> the State Engineer extend from 30 to 60 days the time period for allowed for persons to <br /> respond to a petition for a determination of nontributary ground water. The State <br /> Engineer declines this request. In other comparable circumstances, including, for <br /> example, submission of comments on the State Engineer's review of an application for a <br /> substitute water supply plan pursuant to C.R.S. §§ 37-92-308(4) and-308(5), and <br /> submission of comments on a ground water well permit application pursuant to C.R.S. § <br /> 37-90-137(2)(b)(II)(E), the General Assembly has specifically provided for a 30 day <br /> comment period. Accordingly, the State Engineer believes that 30 days is a reasonable <br /> time period for responding to a petition for a determination of nontributary ground water. <br /> Dedication of State Engineer Staff. Certain parties requested that the State Engineer <br /> include in the rules a provision stating that the State Engineer would be required to <br /> dedicate staff to evaluation of any submittal of a petition seeking a nontributary <br /> determination through an adjudicatory or rulemaking proceeding prior to committing <br /> staff to curtailing any wells that are the subject to such a petition. The State Engineer <br /> does not believe it appropriate to include such a provision in these rules. Decisions about <br /> appropriate allocation of staff shall be made on a case-by-case basis, based upon the <br /> circumstances presented. <br /> Evidentiary Standard for Adoption of Basin-Specific Rules. As part of this rulemaking <br /> proceeding, the State Engineer considered whether to adopt alternate rules that identify <br /> areas and formations within specific basins of the State as nontributary for purposes of <br /> the State Engineer's administration of wells pursuant to C.R.S. § 37-90-137(7). The <br /> parties disagreed with respect to the evidentiary standard the State Engineer should apply <br /> in considering whether to indentify an area within the State as nontributary. In a recent <br /> case indirectly addressing this issue, the Supreme Court indicated that the standard of <br /> review is "clear and convincing." Colorado Ground Water Comm'n v. North Kiowa- <br /> Bijou Groundwater Management Dist., 77 P.3d 62, 70 (Colo. 2003). Several parties have <br /> argued that the Court's statements in North-Kiowa are dicta, and that the correct standard <br /> is "clear and satisfactory," as applied in Safranekv. Town ofLimon, 123 Colo. 330, 334, <br /> 228 P.2d 975, 977 (Colo. 1951). <br /> The State Engineer has applied a"clear and convincing" evidentiary standard. To <br /> whatever extent applicable, the North Kiowa-Bijou decision does indicate that the "clear <br /> and convincing" evidentiary standard is the correct standard for determining whether <br /> water is nontributary. Applying a"clear and convincing" standard thus creates the most <br /> regulatory certainty in the event of challenges to State Engineer nontributary <br /> determinations. In addition, applying a"clear and convincing" standard minimizes the <br /> risk of any deprivation of property rights. <br /> Produced Nontributary Ground Water Rules 2 CCR 402-17, Statement of Basis and Purpose <br /> -10- <br />
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