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representatives through Colorado Open Record Act requests made on March 21, 2008, <br /> August 14, 2008, and June 14, 2009. <br /> The State Engineer acknowledges that notwithstanding all of the facts in the preceding <br /> paragraph, this rulemaking presented a challenging schedule for all parties. The State <br /> Engineer also acknowledges, however, that the ambitious schedule was set by the <br /> General Assembly for the purpose of solving a problem without imposing unnecessary <br /> regulation. The State Engineer believes that the parties to the rulemaking have responded <br /> such that the outcome of the rulemaking would not have been significantly different <br /> given more time. <br /> Second, the process provided was sufficient to protect the individual property interests at <br /> stake. Although the State Engineer agrees that tributary water rights are significant <br /> property interests, the State Engineer believes these proceedings as conduced present <br /> minimal risk of a significant deprivation of these rights. The State Engineer applied a <br /> conservative "clear and convincing" standard in deciding whether to delineate an area or <br /> formation within the State as nontributary. Conservative assumptions were made in the <br /> models used to delineate nontributary areas. In addition, the CBM wells that result in the <br /> majority of the produced water at issue in these proceedings operate for only a limited <br /> period of time. Accordingly, to the extent that there may be errors in these assumptions, <br /> the State Engineer is convinced any such errors would be outweighed by the other <br /> conservative assumptions and attributes of the models. <br /> The limited purpose of these proceedings also weighs against the likelihood of a <br /> significant deprivation of a property right. Consistent with C.R.S. § 37-90-137(7)(c), the <br /> State Engineer is adopting these Rules to assist with his administration of ground water <br /> withdrawn to facilitate or permit mining of minerals. Consistent with the intent of House <br /> Bill 09-1303, such administration includes the State Engineer using nontributary <br /> determinations made pursuant to these rules for purposes of issuing water well permits <br /> pursuant to C.R.S. § 37-90-137(7), and to obviate the need for administration of wells <br /> subject to permitting consideration as allowed by C.R.S. §§ 37-90-137(7) and 37-92- <br /> 305(11). The State Engineer shall not use these rules for permitting of wells pursuant to <br /> C.R.S. § 37-90-137(4). <br /> Indeed, to this point, there have been no specific allegations of deprivation, only general <br /> allegations that the proceedings present a risk of deprivation. Other factors provide <br /> additional protection against such deprivation. Because the rules result in many CBM <br /> wells being found to be tributary, operators of such wells will be required to obtain <br /> approval of substitute water supply plans and eventually augmentation plans. Such plans <br /> provide protection against deprivation of water rights. Should any such deprivations be <br /> revealed, the deprivations may be adequately addressed through these plans,proposed <br /> modifications to the rules or other appropriate agency or water court proceedings. See, <br /> e.g. Sundheim v. Board of County Commissioners of Douglas County, 904 P.2d 1337, <br /> 1.346 (Colo. App. 1995) (no due process violation where state affords reasonable <br /> remedies to rectify errors). <br /> Produced Nontributary Ground Water Rules 2 CCR 402-17, Statement of Basis and Purpose <br /> -8- <br />