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

4. Burden of Proof a. Except as otherwise provided by statute, the proponent of the order shall have the burden of proof. Section 24-4-105(7), C.R.S. “Order” means the whole or
any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) by the Commission in any matter other than rulemaking. Section 24-4-102(10), C.R.S.
The Commission or Hearing Officer shall determine the proponent or proponents of orders as appropriate on a case-by-case basis based on the relief requested by the Parties. In making
this determination and in holding the proponents of orders to their burdens of proof, the Commission or Hearing Officer shall consider the following general principles: i. Applicants
for well permits, changes of water rights, replacement plans and/or artificial recharge plans shall have the initial burden of proof. ii. When a Party is requesting that the Commission
or Hearing Officer review to either reverse or modify an initial Commission action, the Party seeking reversal or modification of the initial Commission action is the proponent of the
order as to the requested relief. iii. When a Party is requesting any determination by the Commission or Hearing Officer not previously made by the Commission, the Party seeking the
determination is the proponent of the order as to the requested determination. iv. If a proponent of an order presents initial evidence sufficient on its face to satisfy the burden
of proof based on the preponderance of the evidence, the burden of proof may be shifted to the opposing Party or Parties to present sufficient evidence to the contrary, but the ultimate
burden of proof rests with the proponent of the order to prove its claims based on the preponderance of all of the evidence. v. The Commission or Hearing Officer shall give effect
to any rebuttable presumptions established by statute or other applicable law. 5. All hearings shall be conducted in the following order unless otherwise directed by the Commission
or Hearing Officer or as provided for under the Alternative Means for Dispute Resolution requirements set forth in Rule 5: a. Call to order and introductory remarks; b. Presentation
of any Stipulations or agreements between the Parties; c. Opening statements by the Party or Parties upon whom the burden of proof rests; d. Opening statements by all other Parties;
e. Presentation of case-in-chief by the Party upon whom burden of proof rests: 16 f. Presentations by all other Parties wishing to offer evidence, with the order of presentation
to be determined by the Commission or Hearing Officer; g. Rebuttal by the Party upon whom the burden of proof rests; h. Closing statement by Party upon whom the burden of proof rests.
Closing statements may be provided by written brief if the Commission or Hearing Officer determines it is warranted; i. Closing statements by all other Parties. Closing statements
may be provided by written brief if the Commission or Hearing Officer determines it is warranted; 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. The Commission or Hearing Officer may examine any witness at any time.
6. No ex parte Communications with or by the Commission or Hearing Officer may occur during the pendency of any Adjudicatory Proceeding within the scope of the Ground Water Management
Act. The Commission or Hearing Officer may, through formal communication with all Parties, request that certain information be provided to him or that certain tasks be performed.
7. Evidence a. The rules of evidence and requirements of proof before the Commission shall conform, to the extent practicable, with the Colorado Rules of Evidence and the Colorado
Rules of Civil Procedure. However, when necessary to do so, in order to ascertain facts affecting the substantial rights of the Parties to the proceedings, the Commission or Hearing
Officer may receive and consider evidence not admissible under such rules if such evidence possesses probative value commonly accepted by reasonable and prudent Persons in the conduct
of their affairs. Objections to evidentiary offers may be made and shall be noted in the record. The Commission or Hearing Officer shall give effect to the rules of privilege recognized
by law. Incompetent and unduly repetitious evidence may be excluded. Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available,
but upon request, the Party shall be given an opportunity to compare the copy with the original. Section 24-4-105(7), C.R.S. b. Parties may make objections and all witnesses shall
be subject to cross-examination. The Commission or Hearing Officer may question any witness that testifies at the hearing and all witnesses shall also be subject to cross-examination
by the Commission or Hearing Officer. 8. The Commission or Hearing Officer may allow Parties to submit evidence not previously submitted or disclosed under prehearing procedures for
good cause. 9. The Commission or Hearing Officer may permit Parties to submit motions not previously submitted under prehearing procedures for good cause. 10. The Commission or Hearing
Officer, after the receipt of the evidence, may allow or require Parties to present oral or written summations of the facts and the law, either at the hearing or subsequent thereto.
11. Every Party shall have the right to present their case or defense by oral and documentary evidence. They shall also have the right to submit rebuttal evidence and conduct cross-examination
as may be required for a full and true disclosure of the facts. Subject to these rights, where a hearing will be expedited and the interests of the Parties will not be substantially
17 prejudiced, the Commission or Hearing Officer may receive all or part of the evidence in written form. Section 24-4-105(7), C.R.S. 12. The Commission or Hearing Officer may utilize
their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented. Section 24-4-105(7), C.R.S. 13. The Commission or Hearing Officer may
take notice of general, technical, or scientific facts within their knowledge if the relevant fact noticed is specified in the record or brought to the attention of the Parties before
a final decision (or Initial Decision of the Hearing Officer) and all Parties are afforded an opportunity to controvert the fact so noticed. Section 24-4-105(8), C.R.S. 14. Any Party,
or the agent, servant, or employee of any Party, permitted or compelled to testify or submit data or evidence, shall be entitled to the benefit of legal counsel of his or her own choosing
and at his or her own expense, but a Person may appear on their own behalf. An attorney who is a witness may not act as counsel for the Party calling him as a witness. Section 24-4-105(9)(a),
C.R.S. 15. The Commission or Hearing Officer shall cause the proceedings to be recorded by a reporter or by an electronic recording device. When requested, the Commission or Hearing
Officer shall cause the proceedings, or any portion thereof, to be transcribed, the cost thereof to be paid by the Party requesting the transcription. Any Party, upon payment of a
reasonable charge therefor, shall be entitled to procure a copy of the transcript of the record, or any part thereof. If the Commission or Hearing Officer acquires a copy of the transcription,
said copy shall be made available to any Party at a reasonable time for inspection and study. If a Party obtains a copy of a transcript paid for by another Party, the receiving Party
is required to contribute to the cost for preparation of the transcript. Sections 24-4-105(9)(a) & (13), C.R.S. 16. Prompt notice shall be given of the refusal to accept for filing
or the denial in whole or in part of any written applications or other request made in connection with any adjudicatory hearing, with a statement of the grounds for such refusal or
denial. 17. In any case where the Hearing Officer has conducted the hearing, the Hearing Officer shall prepare and file an Initial Decision that shall be served upon each Party, except
where all Parties with the consent of the Commission have expressly waived their right to have an Initial Decision rendered by the Hearing Officer. 18. These procedures may be modified
by the Commission or Hearing Officer if deemed necessary to affect the speedy resolution of the matter without prejudice to the participating Parties before them. Rule 10 Requests
for Administrative Hearings before the Commission under § 37-90-114, C.R.S. A. Any Person claiming to be injured within the boundaries of a designated ground water basin by an act
of the State Engineer or the Commission under the provisions of the Management Act, or the failure of the state engineer or Commission to take any action under the provisions of the
Management Act except as provided for small capacity wells in § 37-90-105, C.R.S., shall file a written petition with the Commission stating the basis of the alleged injury within 30
days of notice of such action. Section 37-90-114, C.R.S. Only upon request by a petitioner and upon 35 days’ written notice to any adverse Party, the Commission shall conduct a hearing
upon the petition pursuant to these rules and in the manner provided in § 37-90-113, C.R.S. B. Filing of a written petitions and requests for all hearings must be timely filed pursuant
to these regulations and applicable statutory requirements. C. Written petitions and requests for all hearings shall contain the following information: 18 1. Identification of the
Person(s) or Agency requesting the hearing and the subject matter of the request. 2. The legal, statutory, and regulatory authority forming the basis and authority for the request.
3. The basis upon which the applicant believes the Commission or the State Engineer has committed error with respect to the subject matter of the request. 4. An estimate of the time
that will be required for the hearing. Rule 11 Notice Concerning Adjudicatory and Other Non-Rulemaking Hearings A. The Commission or Hearing Officer shall provide written notice
of all adjudicatory and other nonrulemaking hearings in accordance with § 24-4-105 and § 37-90-112, C.R.S. B. The Commission or Hearing Officer shall provide all Parties, including
petitioner(s), if applicable, timely notice of the time, place, nature of the hearing, the legal authority and jurisdiction under which the hearing is to be held, and the matters of
fact and law asserted. C. Unless otherwise provided by law, notice shall be served personally or by mailing by first-class mail to the last address furnished the Commission or Hearing
Officer by the Person to be notified, at least 30 days prior to the hearing. D. Due regard shall be given for the convenience and necessity of the Parties and their representatives
in fixing the time and place for all hearings, including the requirements set forth under § 37-90-113, C.R.S. E. A notice may contain requirements with respect to any special procedures,
including requirements for written testimony as deemed appropriate concerning any particular adjudicatory matter. F. An amended notice may be issued any time prior to the hearing without
necessitating a continuance of the hearing date, provided the original notice is not substantially altered to the prejudice of any Party. If an amendment is substantial and prejudicial,
the hearing date shall be continued to an appropriate date as determined by the Commission or Hearing Officer. G. The Commission or Hearing Officer 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. Rule 12 Party
Status for Adjudicatory and Other Non-Rulemaking Hearings A. Any Person or Agency requesting an adjudicatory or other non-rulemaking hearing shall be granted Party Status and need
not file another application to be granted this status. B. Any Person or Agency who may be affected or aggrieved by the Commission’s or State Engineer’s action shall be admitted as
a Party to the proceeding upon filing a timely written request in accordance with the requirements of this section and in accordance with § 24-4-105, C.R.S., setting forth a brief and
plain statement of the facts which entitle him or her to be admitted and the matters which he or she claims should be decided. C. The Commission or Hearing Officer shall grant or
deny Party Status at the prehearing conference or other appropriate time prior to the hearing in a manner that does not prejudice other Parties already participating in the proceedings.
D. Staff of the Commission shall automatically be a Party in all adjudicatory or other administrative proceedings. The attorney general shall represent staff. 19 E. Nothing in this
subsection shall prevent the Commission or Hearing Officer from admitting any Person or Agency as a Party to any proceedings for limited purposes upon a showing of good cause. Rule
13 Final Agency Action for Adjudicatory and Other Non-Rulemaking Hearings Before the Commission A. The Commission or Hearing Officer shall proceed with reasonable dispatch to conclude
any matter presented to it with due regard for the convenience of the Parties or their representatives, giving precedence to rehearing proceedings after remand by court order. Section
24-4-105(10), C.R.S. B. Hearings before the Commission and Initial Decisions by a Hearing Officer shall be based on the record. The record shall include: All pleadings, applications,
evidence, exhibits and other papers presented or considered, matters officially noticed, ruling upon exceptions, any findings of fact and conclusions of law proposed by any Party, and
any written briefs filed. Section 24-4-105(14)(a), C.R.S. C. In any case where the Commission has conducted the hearing, it shall prepare, file and serve upon each Party its decision.
In any case where the Hearing Officer has conducted the hearing, the Hearing Officer shall prepare and file an Initial Decision that shall be served upon each Party, except where all
Parties with the consent of the Commission have expressly waived their right to have an Initial Decision rendered by the Hearing Officer. Each decision and Initial Decision shall include
a statement of findings and conclusions upon all the material issues of fact, law or discretion presented by the record and the appropriate order, sanction, relief, or denial thereof.
Section 24-4-105(14)(a), C.R.S. D. In the absence of an appeal to the Commission, the Initial Decision of a Hearing Officer shall become the final decision of the Commission. In such
case, the evidence taken by the Hearing Officer need not be transcribed. Any appeal to the Commission of the Initial Decision of the Hearing Officer shall be taken by a party by filing
exceptions within thirty (30) days after service of the Initial Decision of the Hearing Officer upon the Parties, unless extended by the Commission, or unless review has been initiated
upon motion by any member of the Commission within thirty (30) days after service of the Initial Decision of the Hearing Officer. Sections 24-4-105(14)(a)(II) and 24-4-105(14)(b)(III)I),
C.R.S. E. Within twenty (20) days following an Initial Decision of the Hearing Officer, any Party seeking to reverse or modify the Initial Decision of the Hearing Officer shall file
with the Commission a designation of the relevant parts of the record and of the parts of transcript of the proceedings that shall be prepared and advance the cost therefore. Within
ten (10) days thereafter, any other Party or the Commission may also file a designation of additional parts of the transcript of the proceedings that are to be included and advance
the cost therefore. A copy of this designation shall be served upon all Parties. The transcript or the parts thereof which may be designated by the Parties shall be prepared by a
reporter or, in the case of an electronic recording device and shall thereafter be filed with the Commission. No transcription is required if the Commission’s review is limited to
a pure question of law. The Commission may permit oral argument. The grounds of the decision shall be within the scope of the issues presented on the record. The record shall include
all matters constituting the record upon which the decision of the Hearing Officer was based, the rulings upon the proposed findings and conclusions, the Initial Decision of the Hearing
Officer, and any other exceptions and briefs filed. Section 24-4-105(15)(a), C.R.S. F. Unless the Hearing Officer’s findings of evidentiary fact are contrary to the weight of the
evidence, those findings, as distinguished from ultimate conclusions of fact, shall not be set aside by the Commission on review of the Hearing Officer’s Initial Decision. The Commission
may remand the case to the Hearing Officer for any further proceedings as they may direct, affirm, set aside, or modify, including any sanction or relief entered therein, in conformity
with the facts and the law. Section 24-4-105(15)(b), C.R.S. G. Each decision and Initial Decision shall be served on each Party by first class or in person, or via electronic means
(upon agreement between the Parties) and shall be effective as to such Party on the date mailed or such later date as is stated in the decision. Section 24-4-105(16)(a), C.R.S. 20
H. Upon application by a Party, and prior to the expiration of the time allowed for commencing an action for judicial review, the Commission may change the effective date of a decision
or Initial Decision. Section 24-4-105(16)(b), C.R.S. I. A Party seeking judicial review of Commission action may apply to the Commission to postpone the implementation date of the
Agency action. The Commission, upon a finding that irreparable injury would otherwise result, shall postpone the effective date of the action pending judicial review. Postponement
of the implementation date of an action does not stay the time for seeking judicial review and does not constitute Commission agreement to grant a hearing, rehearing or reconsideration.
Section 24-4-106(5), C.R.S. Rule 14 Reconsideration A. During the time permitted for seeking judicial review of any final order rendered by the Commission or Hearing Officer in
any adjudicatory or other administrative hearing, any Party affected or aggrieved by such order or determination may apply to the Commission or Hearing Officer for a rehearing with
respect to, or reconsideration of, such order or determination. The determination by the Commission or Hearing Officer whether to grant or deny the application for a rehearing, or
reconsideration shall be made within ten (10) days after receipt by the Commission or Hearing Officer of such application. Determinations by the Commission as a body whether to grant
or deny the application for a rehearing, or reconsideration shall be made at the next regularly scheduled Commission meeting. B. If the application for a rehearing or reconsideration
is granted, the order or determination to which such application pertains shall not be considered final for purposes of judicial review and the Commission or Hearing Officer may affirm,
reverse, or modify, in whole or in part, the pertinent order or determination. Thereafter, such order or determination shall be final and not subject to reconsideration under this
section. C. If the application before the Commission (an Initial Decision of the Hearing Officer is not included herein) for a rehearing or reconsideration is denied, the applicable
order or determination shall be considered final Agency action as of the date the denial is originally signed or indicated in the relevant decision under application for reconsideration.
An application under this section extends the time period for seeking judicial review of the original order or determination only for the number of days that it is pending, since such
an application merely stays the time period for seeking judicial review. D. Applications for reconsideration by the Hearing Officer shall stay the time for running an appeal to the
Commission only by the number of days that it is pending. Applications for re-hearing or reconsideration filed with the Hearing Officer must be filed within ten (10) days of the Hearing
Officer’s Initial Decision and the Hearing Officer must file a written decision concerning such reconsideration within ten (10) days of receipt of its filing. E. The decision to grant
or deny a rehearing or reconsideration pursuant to this section is not subject to judicial review.
PacketMemo2018Feb.docx
Ground Water Commission
1313 Sherman Street, Room 821
Denver, CO 80203
February 6, 2018
MEMORANDUM
TO: Ground Water Commission Members
FROM: Keith Vander Horst, Chief of Water Supply - Basins
SUBJECT: February 16, 2018 Ground Water Commission Meeting
The upcoming Ground Water Commission meeting scheduled for 10:00 a.m. on Friday, February 16, 2018, will be at 1313 Sherman Street, Room 318, Denver, CO 80203. Please find attached
the following.
Meeting agenda
Draft minutes of the last Commission meeting, Agenda Item No. 3
Staff’s revised proposed amendments to Rule 7.4, and a revised proposed Statement of Basis, Specific Statutory Authority, and Purpose for the Amendment of Rule 7.4, both dated January
30, 2018, for the continuation of the hearing on the proposal to amend Rule 7.4, Agenda Item 6.
A link to the ftp site containing these documents, and documents previously made available for this hearing (including requests for party status, the parties’ pre-hearing statements,
and comments received from persons not party to the hearing) is given below.
https://dnrftp.state.co.us/https://dnrftp.state.co.us/#/DWR/Hearings/Rulemaking%207.4%2017GW04/
The request by JDM Farmland LLC for an exception to Rule 5.5, and a memorandum from Staff giving the background and reason for the request, Agenda Item no. 7.
Staff Activity Report, Agenda Item No. 9
Attorney General’s Report, Agenda Item No. 10
Hearing Officer's Report
An order of the Commission regarding the “Petition For Determination of Jurisdiction Over Surface Water Within the Upper Black Squirrel Creek Designated Ground Water Basin”, from Meridian
Service Metropolitan District, was anticipated to be provided to the Commission herein for its consideration. However, the final version of that proposed order was still being worked
on by the parties at the time of this memorandum. If the parties have agreed to a final version prior to the meeting it will be provided.
Please contact myself or Rick Nielsen if there are any questions about the Commission meeting.
cc:Commission Staff
Designated Ground Water Management Districts

PacketMemo2018Feb.pdf
Ground Water Commission 1313 Sherman Street, Room 821 Denver, CO 80203 February 6, 2018 MEMORANDUM TO: Ground Water Commission Members FROM: Keith Vander Horst, Chief of
Water Supply - Basins SUBJECT: February 16, 2018 Ground Water Commission Meeting The upcoming Ground Water Commission meeting scheduled for 10:00 a.m. on Friday, February 16, 2018,
will be at 1313 Sherman Street, Room 318, Denver, CO 80203. Please find attached the following.  Meeting agenda  Draft minutes of the last Commission meeting, Agenda Item No. 3
 Staff’s revised proposed amendments to Rule 7.4, and a revised proposed Statement of Basis, Specific Statutory Authority, and Purpose for the Amendment of Rule 7.4, both dated January
30, 2018, for the continuation of the hearing on the proposal to amend Rule 7.4, Agenda Item 6.  A link to the ftp site containing these documents, and documents previously made available
for this hearing (including requests for party status, the parties’ pre-hearing statements, and comments received from persons not party to the hearing) is given below. o https://dnrftp.state.co.us/
#/DWR/Hearings/Rulemaking%207.4%2017GW04/  The request by JDM Farmland LLC for an exception to Rule 5.5, and a memorandum from Staff giving the background and reason for the request,
Agenda Item no. 7.  Staff Activity Report, Agenda Item No. 9  Attorney General’s Report, Agenda Item No. 10  Hearing Officer's Report  An order of the Commission regarding
the “Petition For Determination of Jurisdiction Over Surface Water Within the Upper Black Squirrel Creek Designated Ground Water Basin”, from Meridian Service Metropolitan District,
was anticipated to be provided to the Commission herein for its consideration. However, the final version of that proposed order was still being worked on by the parties at the time
of this memorandum. If the parties have agreed to a final version prior to the meeting it will be provided. Please contact myself or Rick Nielsen if there are any questions about
the Commission meeting. cc: Commission Staff Designated Ground Water Management Districts
ProposedBasisStatutoryAuthorityPurpose_Rule7.4_2018-1-30.pdf_
PROPOSED STATEMENT OF BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE FOR THE AMENDMENT OF RULE 7.4 OF THE RULES AND REGULATIONS FOR THE MANAGEMENT AND CONTROL OF DESIGNATED GROUND
WATER 2 C.C.R. 410-1 January 30, 2018 I. STATEMENT OF BASIS AND PURPOSE This matter concerns the Rules and Regulations for the Management and Control of Designated Ground Water
(“Designated Basin Rules” or “Rules”) of the Colorado Ground Water Commission (“Commission”). Designated Basin Rule 7.4 gives the Commission’s standards of evaluation and approval
for changing the description of irrigated acres served by a permitted well. Rule 7.4 currently allows the Commission to approve a change of description of irrigated acres served by
a permitted well without consideration of historical acres irrigated, and the associated historical withdrawals from and depletions to a designated groundwater aquifer. The purpose
of the amendment to Rule 7.4 is to prevent an increase in the number of acres to be irrigated when changing the description of acres to be served by a permitted well, and thereby increasing
the withdrawals and depletions of designated groundwater beyond the withdrawals from and depletions to the aquifer that would occur if the number of acres were limited to those historically
irrigated. The number of applications submitted for changes of description of irrigated acres served by a permitted well have increased in recent years. Approximately two dozen such
applications were submitted in 2016. Most of these applications involve wells that had irrigated less than the permitted number of acres for many years, often for decades. A typical
example is where a well that is permitted for 160 acres (a quarter section) has been irrigating only a circle (130 acres), and not the corners of the quarter section (30 acres). The
application will seek to change the description of irrigated acres from the 30 acres that have not been irrigated to a different 30 acres. So, where in the past only 130 acres were
historically irrigated, now 160 acres would be irrigated. These types of applications currently are being approved under Rule 7.4, effectively allowing for an increase in the number
of acres irrigated by a well, and an increase in withdrawals from and depletions to the aquifer, compared to the number of acres that were historically irrigated. Pursuant to Statute,
37-90-111(1), C.R.S., the policy of the State is to conserve its designated groundwater resources and protect vested rights. To that end, section 3790-111(1)(g) C.R.S., and Rule 7.1.1
of the Designated Basin Rules, allow the Commission to authorize a change in description of irrigated acres to be served by a permitted well, but only upon such terms and conditions
as will not cause material injury to the vested rights of other appropriators. Proposed Statement of Basis, Statutory Authority, and Purpose Page 2 of 4 Amendment of Designated Basin
Rule 7.4 January 30, 2018 The current practice under current Rule 7.4 has the potential to cause material injury to the vested rights of other appropriators. Nearly all the aquifers
for which this rule would apply (this rule does not apply to changes in water rights in Denver Basin Bedrock aquifers subject to Rule 5.3 or other rights in aquifers based on overlying