DWR_3364075

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 2/16/2018
• Subject: MEETING MATERIALS

with § 24-4-103(11)(g), C.R.S. 7 4. With due regard for the number and complexity of the proposed rules, the Commission shall establish the date for the public rulemaking proceedings.
The date set for the proceedings shall not be less than twenty (20) days after publication of notice as provided in this section and as required by § 24-4-103(3)(a), C.R.S. 5. Public
notice may contain requirements with respect to special procedures, including Party Status, prehearing conferences and requirements for written testimony, which the Commission deems
appropriate to any particular rulemaking hearing. 6. An amended notice may be issued by the Commission at any time prior to the hearing without necessitating a continuance of the hearing
date, provided the amendment is non-substantive. If an amendment is substantial and prejudicial, the hearing date shall be continued to an appropriate date as determined by the Commission,
and notice thereof shall be made in the same manner as the original notice. 7. The Commission may continue a hearing to another date by issuing written notice to that effect at any
time prior to the close of the record, or by announcement at the date, time and place of the original hearing. F. Party Status 1. Status as a Party will be available to Interested
Persons and Agencies in rulemaking proceedings before the Commission, unless the Commission specifies otherwise in its notice of proposed rulemaking. Where an opportunity to obtain
Party Status is provided, it shall be obtained in the manner prescribed in this section. Parties to rulemaking hearings shall have the rights specified in this section. 2. If Party
Status is to be allowed, then any Person or Agency who is interested may become a Party to rulemaking proceedings by filing an application for Party Status. Applications for Party
Status shall be filed as stated in the notice of proposed rulemaking. Thereafter, applications to be made a Party shall only be granted if other Parties will not be prejudiced thereby.
3. Applications for Party Status shall set forth the name, U.S. mail address, telephone number and e-mail address of the Person, Persons or Agency seeking Party Status. The application
shall also indicate the interest of the Person(s) or Agency in the proposed rules and a description of the general nature of the evidence to be presented by the proposed Party in the
course of the proceedings. 4. For a hearing where Party Status is available, it shall be freely granted by the Commission. Party Status may be granted prior to or at the prehearing
conference or other appropriate time prior to the hearing. 5. The staff of the Commission shall automatically be a Party to rulemaking proceedings before the Commission. 6. For the
purpose of service of any documents upon a Party other than the staff of the Commission, delivery by U.S. mail or by e-mail to the addresses provided in a Party’s application for Party
Status shall constitute service as of the date mailed or e-mailed. A Party shall promptly serve upon the Commission and all other Parties notice of any change in the Party’s U.S. mail
address or e-mail address for the purpose of service. G. Prehearing Procedures for Rulemaking 1. These prehearing procedures provide a process by which the issues related to a proposed
rule are raised and discussed, and presented to the Commission or its designated Hearing Officer for decision in an efficient manner if they cannot be resolved prior to the prehearing
conference. It is the strong desire of the Commission that the 8 Parties try to resolve as many issues as possible by negotiation prior to the prehearing conference. Any Person or
Agency may attend the prehearing conference but only Parties may participate. 2. The Commission may specify in the notice of proposed rulemaking that a prehearing conference will be
held. Any such conference shall be held not less than five days in advance of the hearing, unless the Commission specifies otherwise. 3. At any prehearing conference each Party shall
present to the Commission or designated Hearing Officer and to every other Person, Agency or Party in attendance a prehearing statement that shall contain the following: a. a specific
statement of the factual and legal claims it asserts; b. copies of all exhibits it will introduce at the hearing; c. a list of witnesses it will call and a brief summary of their
testimony; d. specific language proposed for the rule, where appropriate, and a proposed statement of the basis and purpose for the rule; and, e. all written testimony it will offer
into evidence at the hearing. 4. The object of the prehearing rulemaking conference may include the formulation of stipulations or orders respecting the issues to be raised, and witnesses
and exhibits to be presented by the Parties (where applicable) or Interested Persons. The Parties or Interested Persons shall make known at the prehearing rulemaking conference any
objections to the procedures or evidence that may be raised at the hearing. Stipulations may be made at the prehearing conference to reflect any matters which have been agreed to or
admitted by the Parties or Interested Persons. A prehearing order shall be prepared by the Commission, its Hearing Officer or, at its direction, by any Person, Agency, or Party, based
upon the prehearing conference, which shall reflect any rulings made with respect to procedures to be followed at the hearing, or any other matters. The prehearing order shall not bar
any further evidentiary objections at the hearing. 5. Concerning motions, the Commission or Hearing Officer may require as part of the prehearing rulemaking conference or otherwise,
advance submittal of all motions or requests for rulings that such Person or Party intends to make with respect to the proposed rulemaking. These shall include motions regarding procedures,
the scope and nature of the proceedings, or any other matter that requires a determination by the Commission prior to final Agency action based on the record, or any matter that may
reasonably be disposed of prior to receiving testimony or other evidence. H. The Commission or Hearing Officer shall issue subpoenas without discrimination between public and private
Persons, Agencies, or Parties. A subpoena shall be served by the Person, Agency, or Party requesting its issuance in the same manner as a subpoena issued by a district court. Upon
failure of any witness to comply with such subpoena, the Commission or Hearing Officer may petition any district court, setting forth service of the subpoena and stating that due notice
was given to the witness of the time and place of attendance. The district court, after hearing evidence in support of or contrary to the petition, may enter an order as in other civil
actions compelling the witness to attend and testify or produce books, records, or other evidence under penalty of punishment for contempt in case of contumacious failure to comply
with the order of court. A witness shall be entitled to the fees and mileage provided for a witness in §§ 13-33-102 and 13-33-103, C.R.S., to be paid by the Person, Agency, or Party
requesting issuance of the subpoena. Section 24-4-103(14), C.R.S. I. The Commission or Hearing Officer may, on their or his or her own accord or upon the motion of any Party for good
cause shown, take depositions or have depositions taken, and fix the time and place for them to 9 be held. J. The conduct of rulemaking hearings shall be as follows: 1. The Commission
shall hold a public hearing before promulgating any rule or regulation. At such hearing, the staff of the Commission, other Parties, Agencies, and Interested Persons shall be afforded
the opportunity to submit written data, views, or arguments, and to present the same orally unless the Commission deems it unnecessary. 2. All witnesses shall be subject to cross-examination
by or on behalf of Persons or Agencies who have obtained Party Status to the proceedings by the Commission and staff for the Commission. 3. The Chairman for the Commission (or its
designated Hearing Officer) shall, in addition to the authority specified elsewhere, have authority to: administer oaths and affirmations; sign and issue subpoenas; regulate the course
of the hearing, set the time and place for continued hearings, and fix the time for the filing of appropriate documents; take depositions or have depositions taken; issue appropriate
orders; issue appropriate orders which shall control the subsequent course of the proceedings and take any other action authorized by statute or Agency rule consistent with the APA.
4. The Commission or Hearing Officer may allow Parties to submit evidence not previously submitted under prehearing conference procedures for good cause, such as where necessary for
purposes of rebuttal testimony. 5. The Commission or Hearing Officer may permit Parties to submit motions not previously submitted under prehearing conference procedures for good cause
but not later than five (5) days prior to the hearing. 6. After receiving evidence presented during the hearing the Commission or Hearing Officer may allow or require Parties to present
oral or written summations of the facts and law as it deems necessary. 7. At any time the Commission or Hearing Officer may question any Party or witness participating in the hearing.
8. All hearings shall be conducted in the following order unless otherwise directed by the Commission or Hearing Officer. a. Call to order and introductory remarks; b. Presentation
of any Stipulations or agreements between the Parties; c. Opening statements by the petitioning Party; d. Opening statements by all other Parties; e. Presentation of case-in-chief
by the petitioning Party; f. Presentations by all other Parties wishing to offer evidence, with the order of presentation to be determined by the Commission or presiding Hearing Officer;
g. Rebuttal by the petitioning Party; h. Closing statement by petitioning Party; i. Closing statements by all other Parties; 10 j. At the conclusion of any witness’s testimony
all other Parties may then cross-examine each witness. The order of the cross examination shall be determined by the Person conducting the hearing; k. All briefs and memoranda of law
that Parties file shall be served on the Commission or Hearing Officer and all Parties no later than five (5) days prior to the hearing unless otherwise specified. K. Final Agency
Action and Post-Hearing Procedures for Rulemaking 1. After the conclusion of the last public hearing, the Commission shall prepare an initial ruling as to any rules proposed for adoption.
2. The Commission shall consider all submissions entered into the record in adopting any rule. The rules promulgated shall be based on the record. The record shall consist of proposed
rules, evidence, exhibits, other matters presented or considered, matters officially noticed, ruling on exceptions, any findings of fact and conclusions of law proposed by any Party,
and any written briefs filed. 3. Within one hundred eighty (180) days after the last public hearing on a proposed rule, the Commission shall adopt a rule pursuant to these rulemaking
procedures or terminate the proceeding by publication of a notice to that effect in the Colorado Register. 4. Any Party to the rulemaking may file written exceptions to the initial
ruling within twenty one (21) days of the Commission’s service of the initial ruling on all Parties. The Commission shall rule on any such exceptions prior to adopting any rule or
terminating the proceeding. 5. Material Incorporated by Reference a. As provided in § 24-4-103(12.5)(a), C.R.S., the Commission may incorporate by reference all or any part of a code,
standard, guideline or rule that has been adopted by an Agency of the United States, the state of Colorado, or another state or adopted or published by a nationally recognized organization
or association. b. The Commission shall maintain a copy of the statute, code, standard, guideline, or rule readily available for public inspection at the Division of Water Resources
during regular business hours, as well as a posting of the same on their website. The Commission shall provide certified copies of the material incorporated at cost upon request or
shall provide the requestor with information on how to obtain a certified copy of the material incorporated by reference through the source Agency, association or organization. Section
24-4-103(12.5)(b), C.R.S. Electronic versions may be substituted upon request. c. References to any incorporated material shall identify the incorporated material by appropriate Agency,
organization, or association by the date, title and/or citations. The reference shall also state that the rule does not include later amendments to or editions of the incorporated
material. d. The Commission shall include in any rule incorporating material by reference the fact that the state engineer will provide information regarding how the incorporated material
may be obtained or examined. 6. After consideration of the relevant information presented, the Commission shall include as part of the adopted rules, a written and concise general
statement of their basis and purpose. The 11 written statement of the basis and purpose of a rule that involves scientific or technological issues shall include a detailed, analytical
evaluation of the scientific or technological rationale justifying the rule. 7. All rules adopted by the Commission shall first be submitted to the attorney general for an opinion as
to their constitutionality and legality. Any rule issued without being so submitted shall be void. Section 24-4-103(8)(b), C.R.S. 8. All rules adopted by the Commission, including
temporary or emergency rules, shall be submitted to the Office of Legislative Legal Services in the form and manner prescribed by the Committee on Legal Services. Any rule issued that
is not submitted to the Office of Legislative Legal Services for review within twenty (20) days after the date of the attorney general’s opinion rendered thereon shall be void. The
Commission shall revise promulgated rules to conform to any action taken by the general assembly. Section 24-4-103(8)(d), C.R.S. 9. Each rule adopted by the Commission, together with
the attorney general’s opinion rendered in connection therewith, shall be filed within twenty (20) days after adoption with the secretary of state for publication in the Colorado Register.
Rules revised to conform with action taken by the general assembly shall be filed with the secretary of state for publication in the register and in the code of Colorado Regulations.
Section 24-4-103(11)(d)(II), C.R.S. 10. Any rule as finally adopted by the Commission shall become effective twenty (20) days after final publication as required by law or on such
later date as is stated in the rule. Once a rule becomes effective the rulemaking process shall be deemed to have become final Agency action for purposes of judicial review. Section
24-4-103(5), C.R.S. 11. Any Person or Agency adversely affected or aggrieved by the final Agency action may commence an action for judicial review under § 24-4-106(4), C.R.S., within
thirty-five (35) days after the final Agency action becomes effective. 12. The Commission shall maintain an official rulemaking record for each proposed rule for which a notice of proposed
rulemaking has been published in the Colorado Register. Such rulemaking record shall be maintained by the Commission until all administrative and judicial review procedures have been
completed. The rulemaking record shall be available for public inspection and shall contain those items identified in § 24-4-103(8.1)(b), C.R.S. L. Temporary or Emergency Rules Temporary
or emergency rules may be adopted without compliance with the procedures prescribed in this section and with less than twenty (20) days notice (or where circumstances imperatively require,
without notice) where the Commission finds the immediate adoption of the rule is imperatively necessary to comply with a state or federal law or state or federal regulation for the
preservation of public health, safety, or welfare, and compliance with the requirements of these rules would be contrary to the public interest and the Commission makes such a finding
on the record. Such findings and statement of the reasons for the action shall be published with the rule. A temporary or emergency rule shall become effective on adoption or on such
later date as is stated in the rule, shall be published promptly, and shall have effect for not more than one hundred twenty (120) days after its adoption unless made permanent by compliance
with this section and with the APA. Section 24-4-103(6)(a), C.R.S. Rule 7 Reconsideration of a Rulemaking Action Reconsideration of rulemaking action of the Commission may be sought
by petition to the Commission in accordance with the provisions of Rule 6(B) pertaining to petitions for rulemaking. Any such petition shall be evaluated according to the established
rules and policies of the Commission where applicable, and may be granted for good cause. Such a petition is not a prerequisite to the right of judicial review of the rule on which
it is based and does not affect the time period for seeking judicial review of the rule. The decision to grant or deny such a petition is not itself final action subject to judicial
review. 12 Rule 8 Hearing Officers A. Pursuant to § 37-90-113(2), C.R.S., the Commission may designate an Agent or Hearing Officer who is technically qualified to conduct or assist
in such hearings to make an Initial Decision. The Commission may also designate an agent or Hearing Officer to conduct fact finding and present recommendations concerning designated
ground water basin determinations or rulemakings as required under §§ 37-90-106 & 37-90-111(h), C.R.S . Appeals of rulings of the agent or Hearing Officer designated by the Commission
shall be reviewed at any regular or special Commission meeting at the location chosen by the Commission for that meeting. B. No Person engaged in conducting a hearing or rulemaking
shall be responsible to or subject to the supervision or direction of any officer, employee or agent engaged in the performance of investigatory or prosecuting functions for the Commission
or Division of Water Resources. Sections 24-4-105(3) and (6), C.R.S. C. Upon the filing in good faith by a Party of a timely and sufficient affidavit of personal bias of the Hearing
Officer, the Hearing Officer shall forthwith rule upon the allegations in such affidavit as part of the record in the case. A Person designated to conduct a hearing may at any time
withdraw if they deem themselves disqualified or for any other good reason in which case another Person or Hearing Officer may be assigned by the Commission to continue the hearing,
and they shall do so in such manner that no substantial prejudice to any Party results therefrom. Section 24-4-105(3), C.R.S. D. After complying with Rule 8.C, if the Parties are
dissatisfied with the Person or Persons appointed by the Commission to conduct the hearing or act as Hearing Officer, they may request the Commission to appoint another Person or Persons.
Requests shall be accompanied by a detailed statement of the reasons justifying the request and shall include the identity of other Parties that support the request. The Commission
shall have discretion in whether to grant or deny any request under this Rule 8.D. Rule 9 Adjudicatory Procedures A. Scope and Applicability 1. In order to assure that all Parties
to any formal Adjudicatory Proceeding are accorded due process of law, the provisions of § 24-4-105(1), C.R.S. shall apply. 2. In general, the Colorado Rules of Civil Procedure shall
apply to all adjudicatory hearings. In complex litigation matters, the Commission or Hearing Officer may utilize Water Court Rule 11 of the Uniform Local Rules for All State Water
Divisions. B. Prehearing Procedures 1. Prehearing procedures may be modified as required or approved by the Commission or Hearing Officer. 2. Disclosure and discovery a. Any deadlines
for the Parties’ initial disclosures and expert disclosures shall be established by an order of the Commission or Hearing Officer. b. Parties shall first attempt to utilize discovery
through informal methods. When informal attempts fail, further discovery shall be conducted pursuant to the Colorado Rules of Civil Procedure. 13 c. The Commission or Hearing Officer
may allow, upon the motion of any Party for good cause, the taking of depositions or have depositions taken, and fix the time and place for them to be held. d. Discovery may be requested
by any Party including the staff of the Commission. Discovery shall be granted where due process, fairness, and the establishment of an adequate record may be served thereby, and when
the timely completion of the proceedings will not be unduly delayed. Discovery timelines shall be set by the Commission or Hearing Officer in accordance with the Colorado Rules of
Civil Procedure. 3. Subpoenas a. The Commission or Hearing Officer shall issue subpoenas in accordance with § 24-4-105(5), C.R.S., on forms provided to the Commission or Hearing
Officer by the Party requesting the subpoena. b. Subpoenas shall be issued without discrimination between Agencies and Persons by the Commission or Hearing Officer. A subpoena shall
be served in the same manner as a subpoena issued by a district court. Upon failure of any witness to comply with such subpoena, the Commission or Hearing Officer may petition any
district court, setting forth that due notice has been given of the time and place of attendance of the witness and the service of the subpoena; in which event, the district court,
after hearing evidence in support of or contrary to the petition, may enter an order as in other civil actions compelling the witness to attend and testify or produce books, records,
or other evidence, under penalty of punishment for contempt in case of contumacious failure to comply with the order of the court and may award attorney fees under the Colorado rules
of civil procedure. A witness shall be entitled to the fees and mileage provided for a witness in a court of record. Section 24-4-105(5), C.R.S. 4. Motions The Commission or Hearing
Officer may require advance submittal of all motions or requests for rulings that any Party intends to request at any hearing. These shall include but are not limited to all motions
regarding procedures, the scope and nature of the proceedings, motions for summary judgment or determinations of questions of law, motions in limine, or any other matter that requires
a determination prior to final action based on the record. 5. Prehearing Conference a. A prehearing conference may be held if deemed useful by the Commission or Hearing Officer.
Parties may also request a prehearing conference in writing at least twenty (20) days before a scheduled hearing in writing. The scope of issues to be raised at the prehearing conference
shall be determined by the Commission or Hearing Officer. Prehearing conferences shall be held in the office of the Division of Water Resources in Denver, Colorado, unless the Commission
or Hearing Officer determines the conference should be held at some other location. The Commission or Hearing Officer may hold the prehearing conference by telephone (or other conferencing
means) at their discretion for cost-saving purposes or for the convenience of the Parties. b. The prehearing conference shall be for the purpose of facilitating the adjudication of
issues to be determined at the hearing. The purpose of the prehearing conference may include the formulation of stipulations or orders respecting relevant issues to be raised as well
as witnesses and exhibits expected to be presented by the Parties. 14 c. The Parties shall make known at the prehearing conference any objections to the procedures or evidence that
may be raised at the hearing. Stipulations are encouraged and may be made at the prehearing conference to reflect any matters that have been agreed to or admitted by the Parties.
A prehearing order may be prepared by the Commission or Hearing Officer and shall reflect any rulings made with respect to procedures or any other matters to be followed at the hearing.
The Commission or Hearing Officer may also direct a Party to prepare a draft of any order necessary. 6. Prehearing Statement a. Prior to any prehearing conference or hearing the
Commission or Hearing Officer may require all Parties to file a prehearing statement by the date ordered by the Commission or Hearing Officer. Failure to file a prehearing statement
or other such documents by any Party as ordered may result in dismissal of that Party’s claim if the Commission or Hearing Officer determines such failure results in undue prejudice
to the other Parties in the case. If ordered, a signed stipulation between the Parties as to the disputed and undisputed facts may be substituted for the filing of a prehearing statement.
Further, if ordered, use of Water Court Rule 11 procedures for the filing of pre-hearing documentation negates the requirement for the filing of prehearing statements. b. At a minimum,
the prehearing statement shall include the following: i. Specific statements of all factual and legal claims asserted by the Party. ii. A list of facts the Party believes to be undisputed
between the Parties. iii. A list of all exhibits the Party plans to introduce at the hearing. iv. A list of witnesses the Party plans to call and a brief summary of their testimony.
C. Conduct of Hearings 1. Unless otherwise agreed to by all Parties or unless ordered otherwise by the Commission or Hearing Officer due to extenuating circumstances, a hearing shall
be held within one hundred eighty (180) days after the filing of a request for such a hearing pursuant to § 37-90-113(2), C.R.S. 2. Adjudicatory hearings heard by the Commission or
Hearing Officer shall be held within the boundaries of the designated ground water basin and ground water management district, if one exists, in which the water rights or well directly
involved are located, or at such other place as may be designated by the Commission or the Hearing Officer for the convenience of, and as agreed to by, the Parties involved. Sections
37-90-107(4) & 37-90-113, C.R.S. 3. In conducting hearings the Commission or Hearing Officer shall, in addition to the authority specified elsewhere, have authority to: Administer
oaths and affirmations; sign and issue subpoenas; rule upon offers of proof and receive evidence; dispose of motions relating to the discovery and production of relevant documents and
things for inspection, copying, or photographing; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for the filing of briefs and other
documents; direct the Parties to appear and confer to consider the simplification of the issues, admissions of fact or of documents to avoid unnecessary proof, and limitation of the
number of expert witnesses; issue appropriate orders which shall control the subsequent course of the proceedings; dispose of motions to dismiss for lack of Agency jurisdiction over
the subject matter or Parties or for any other ground; dispose of motions to amend or to dismiss without prejudice applications and other pleadings; dispose of motions to intervene,
procedural requests, or similar matters; reprimand or exclude from the hearing any Person for any improper or indecorous conduct in his presence; award attorney fees for abuses of discovery
procedures or as otherwise provided under the Colorado rules of civil 15 procedure; and take any other action authorized by Agency rule consistent with this article or in accordance,
to the extent practicable, with the procedure in the district courts. All Parties to the proceeding shall also have the right to cross-examine witnesses who testify at the proceeding.
In the event more than one Person engages in the conduct of a hearing, such Persons shall designate one of their number to perform such of the above functions as can best be performed
by one Person only, and thereafter such Person only shall perform those functions which are assigned to him by the several Persons conducting such hearing. Section 24-4-105(4), C.R.S.