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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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Due Process. Certain parties argued that these rulemaking proceedings did not provide <br /> the parties with due process. The State Engineer disagrees with this assertion. <br /> The essence of due process is basic fairness in procedure. Jafay v. Bd. of County <br /> Comm'rs ofBoulder County, 848 P.2d 892, 899 (Colo. 1993). The procedural <br /> protections that the Colorado and federal due process clauses require are not fixed, but <br /> are contingent upon the demands of the particular situation. Id. (citing People v. Kibel, <br /> 701 P.2d 37, 43 (Colo.1985)). Whether particular procedures satisfy due process <br /> standards depends upon the circumstances of the particular case. Jafay, 848 P.2d at 899; <br /> see also Anderson v. Colorado State Dept of Personnel, 756 P.2d 969, 976-77 (Colo. <br /> 1988). <br /> Here, the Colorado General Assembly in House Bill 09-1303 specifically identified the <br /> process that should be provided with respect to the circumstances presented by this <br /> rulemaking proceeding. Specifically, the General Assembly directed the State Engineer <br /> to comply with the requirements of the Colorado Administrative Procedure Act. In <br /> addition, the General Assembly directed the State Engineer to provide parties the <br /> opportunity to cross-examine witnesses. <br /> The State Engineer complied with the requirements imposed by the Colorado General <br /> Assembly. All parties were provided notice and opportunity to be heard, as provided for <br /> in statute. The State Engineer provided formal notice of the rulemaking proceedings <br /> consistent with the Colorado Administrative Procedure Act. All parties were provided <br /> the opportunity to present evidence and cross-examine witnesses. The State Engineer <br /> complied with the timelines set forth in the Colorado Administrative Procedure Act. <br /> The State Engineer recognizes that the procedures provided by this rulemaking <br /> proceeding differ than those that might have been provided in a formal judicial setting. <br /> However, the State Engineer does not find there was a need or requirement to impose <br /> formal judicial-type procedures upon these rulemaking proceedings in order to ensure <br /> fairness to the parties. Courts have rejected this argument, noting that the demands and <br /> objectives of a governmental agency proceeding differ from that of a judicial proceeding. <br /> See, e.g. Mathews v. Eldridge, 424 U.S. 319, 348 (1975) (noting that the judicial model <br /> is neither a required, nor necessarily the most effective method of decision making in all <br /> circumstances). Rather than strictly imposing judicial requirements upon agency <br /> proceedings, Courts have required agencies provide process that is reasonable when <br /> weighed against the individual interest at stake, the governmental interest in retaining <br /> challenged procedures, and the degree to which proposed alternative procedures will <br /> lessen risk of erroneous deprivation of individual property. Matthews v. Eldridge, 424 <br /> U.S. at 334-35; see also Watso v. Colorado Dept. of Social Services, 841 P.2d 299, 307- <br /> 08 (Colo. 1992). The State Engineer believes the process provided complied with this <br /> requirement. <br /> First, the process provided was reasonable. As noted, the State Engineer provided all <br /> process required by the General Assembly in House Bill 09-1303. In addition, although <br /> not specifically required by House Bill 09-1303 or the Colorado Administrative <br /> Produced Nontributary Ground Water Rules 2 CCR 402-17, Statement of Basis and Purpose <br /> -6- <br />
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