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These rules were developed in order to make hydrogeologic determinations for the <br /> purposes of the State Engineer's ground water administration, not for purposes of making <br /> political or jurisdictional determinations or decisions. Therefore, although the rules <br /> delineating nontributary and tributary areas extend into the Southern Ute Indian <br /> Reservation, the rules shall not be construed to establish the jurisdiction of either the <br /> State of Colorado or the Southern Ute Indian Tribe over nontributary groundwater within <br /> the boundaries of the Reservation as recognized in Pub. L. No. 98-290, § 3, 98 Stat. 201 <br /> (1984). <br /> Discussion of Specific Concerns Raised in the Rulemaking Proceedings <br /> During the course of the rulemaking proceedings, issues and concerns with certain <br /> aspects of this proceeding were raised by parties in various motions and prehearing or <br /> responsive statements, and by nonparties through comments submitted to the State <br /> Engineer. The State Engineer's responses to the relevant issues and concerns are as <br /> follows. <br /> Adoption of Basin-Specific Rules. Certain parties questioned whether the State Engineer <br /> has authority to adopt through these rulemaking proceedings rules that designate certain <br /> areas of the state to be nontributary. These parties acknowledged that the House Bill 09- <br /> 1303 granted the State Engineer authority to adopt rules to assist the State Engineer in <br /> making nontributary determinations for his permitting and administrative decisions <br /> related to wells that withdraw ground water to facilitate or permit the mining of minerals. <br /> However, these parties argued that this authority extended only to establishing <br /> adjudicatory procedures for making such nontributary determinations, and not to <br /> establishing rules that make such determinations. <br /> The State Engineer has considered these arguments but disagrees. The General <br /> Assembly has previously granted the State Engineer authority to identify areas of the <br /> State as nontributary through his rulemaking authority. See C.R.S. § 37-90-137(9). The <br /> legislative history for House Bill 09-1303 demonstrates that the General Assembly <br /> granted the State Engineer similar authority in House Bill 09-1303. The legislative <br /> history for House Bill 09-1303 clearly establishes the General Assembly intended that, in <br /> order to comply with the administration deadlines set forth in House Bill 09-1303, the <br /> State Engineer rely upon the authority granted pursuant to House Bill 09-1303 to adopt <br /> rules delineating areas of the State as tributary or nontributary for the purposes of his <br /> administration of C.R.S. § 37-90-137(7). Testimony by various persons before House <br /> and Senate Committees indicated that the intent of the Bill was to provide a means by <br /> which the State Engineer could identify nontributary wells, thus enabling the State <br /> Engineer to more effectively and properly permit and administer oil and gas wells by the <br /> deadlines established under House Bill 09-1303. Therefore, the State Engineer finds that <br /> he has authority to adopt through these rulemaking proceedings rules that determine <br /> ground water in certain areas of the State to be nontributary. <br /> Produced Nontributary Ground Water Rules 2 CCR 402-17, Statement of Basis and Purpose <br /> -5- <br />