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Third, it is not clear that any proposed procedural modification would prove useful in <br /> preventing any deprivation. The State Engineer authorized informal discovery that <br /> included model demonstrations and the opportunities for the parties to request and <br /> provide additional technical information. The State Engineer provided parties additional <br /> time to review corrections made to the models. With respect to the Alternate Proposed <br /> Rules proposed by non-CBM operators, the hearing date has been delayed until January <br /> 11, 2010, thus providing the objecting parties additional time to review the technical <br /> information. <br /> Fourth, there is substantial governmental interest in proceeding with the rulemaking <br /> pursuant to the procedures established under House Bill 09-1303. The State Engineer is <br /> statutorily obligated to evaluate the need to administer over 35,000 wells by April 1, <br /> 2010. This rulemaking proceeding was based upon a schedule that was necessary for the <br /> State Engineer to effectively fulfill this statutory obligation. The legislative history for <br /> House Bill 09-1303 indicates that the General Assembly specifically contemplated that <br /> the State Engineer would rely upon this rulemaking to designate nontributary areas prior <br /> to April 1, 2010. Absent the challenged procedures that allow for timely implementation <br /> of the rules, the State Engineer may be forced to curtail thousands of wells with severe <br /> economic consequences, contrary to the General Assembly's intent in granting the State <br /> Engineer rulemaking authority in House Bill 09-1303. <br /> In summary, the State Engineer has complied with the clear direction provided by the <br /> General Assembly. The State Engineer has conducted these proceedings in a fashion that <br /> provides all parties ample opportunity to be heard, and that minimizes the risk of a <br /> deprivation of rights. Therefore, based upon a review of the circumstances relevant to <br /> this rulemaking proceeding, it is the State Engineer's conclusion that these proceedings <br /> provided the parties with due process. <br /> Limiting; Basin-Specific Rules to Existing Wells. Certain parties questioned whether the <br /> State Engineer has authority through these rules to adopt basin-specific rules that apply to <br /> areas where there currently are not existing oil and gas wells. These parties argued that <br /> the State Engineer's authority is limited to adopting rules for administration of existing <br /> wells. However, nothing in the plain language of or legislative history for House Bill 09- <br /> 1303 indicates that the General Assembly intended to so limit the State Engineer's <br /> authority. Indeed, House Bill 09-1303 more broadly grants the State Engineer authority <br /> to promulgate rules to assist with his administration of C.R.S. § 37-90-137. The State <br /> Engineer therefore concludes that he has authority to adopt basin-specific rules that apply <br /> to areas that he reasonably determines to be areas of likely future oil and gas <br /> development. <br /> Standard of Review. Certain parties requested that the State Engineer include within <br /> these rules a statement indicating the effect that aWater Court should grant to State <br /> Engineer determinations made pursuant to the rules. With respect to judicial challenges <br /> to the rules themselves, the State Engineer agrees with the position expressed by all of the <br /> parties that, pursuant to C.R.S. § 37-90-137(7)(e), the proper standard for Water Court <br /> review of the rules themselves is that set forth in the Colorado Administrative Procedures <br /> Produced Nontributary Ground Water Rules 2 CCR 402-17, Statement of Basis and Purpose <br /> -9- <br />