DWR_3364084

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 5/18/2017
• Subject: MEETING MATERIALS

but when they undertake rulemaking on any matter, all related petitions for the issuance, amendment or repeal of rules on such matter, shall be considered and acted upon in the same
proceeding. § 24-4-103(7), C.R.S. C. Petitions for rulemaking shall be filed by electronic mail or pursuant to the paper format filing exception pursuant to Rule 4(I). D. Petitions
for rulemaking shall include the following information: 1. Identification of the person or persons requesting rulemaking and the nature of the requests; 2. The language of the proposed
rule; 3. A statement of the Commission’s authority to promulgate the rule; 4. A concise general statement of the rule’s basis and purpose. If the rule involves technological or scientific
issues, this statement must include a detailed, analytical statement of the scientific or technological rationale justifying the proposed rule. 5. Iidentification of the types of persons
who will bear the costs and/or assume the benefits of the proposed rule. E. Notice. 1. After the Commission determines to proceed with formal rulemaking, official notice of proposed
rulemaking proceedings shall be filed with the secretary of state in sufficient time for publication in the Colorado Register. §§ 24-4-103(3)(a) and (11). 2. At the time of filing a
notice of proposed rule-making with the secretary of state as the secretary may require, the Commission shall submit a draft of the proposed rule or the proposed amendment to an existing
rule and a statement, in plain language, concerning the subject matter and the basis and purpose of the proposed rule or amendment to the office of the executive director in the Department
of Regulatory Agencies. The provisions of 24-4-103(2.5) shall apply. 3. Notice of proposed rulemaking shall be published in the Colorado Register and shall state the time, place, and
nature of public rulemaking proceedings, the authority under which the rule is proposed, and either the terms or the substance of the proposed rule or a description of the subjects
and issues involved. § 24-4-103(3)(a), C.R.S. Publication of the notice in the Colorado Register shall be by electronic publication pursuant to § 24-4-103(11)(g). 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 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. Upon Good Cause, 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 when Party Status is allowed to other persons. 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 designatedpresiding 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 Parties try to resolve as many issues as possible by negotiation prior to the prehearing conference. Any Person may
appear at 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 (5) days in advance of the hearing, unless the Commission, for good cause specifies otherwise. 3. At any prehearing conference
each Party shall present to the Commission or designated presiding Hearing Officer and to every other Person 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. e. All written testimony
it will offer into evidence at the hearing. f. 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, it’s Hearing Officer or, at its direction, by any person 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. H. 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.
I. The Commission or Hearing Officer shall issue subpoenas without discrimination between public and private persons or Parties. A subpoena shall be served by the person 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 sections 13-33-102 and 13-33-103, C.R.S., to be paid by the person or party requesting issuance of the subpoena. § 24-4-103(14), C.R.S. J. The Commission or Hearing Officer
may, on their or his 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 be held.
K. 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 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 who have obtained party status to the proceedings by the Commission and staff
for the Commission. 3. The Chairman for the Commission (or its designatedappointed 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 will make efforts to provide for and solicit the greatest possible public participation in rulemaking
hearings. 5. 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. 6. The Commission or Hearing Officer may permit Parties to submit motions not previously submitted under prehearing conference procedures for Good
Cause. 7. 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. 8. At any time, the Commission or Hearing Officer may question any Party or witness participating in the hearing. 9. 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 the petition for the rulemaking involved (the “proponent”; d. Opening statements by all other Parties; e. Presentation
of case-in-chief by the proponent; 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 proponent; h. Closing statement by proponents; i. Closing statements by all other Parties. j. At the conclusion of any witness’s testimony, or at the
conclusion of the Party’s entire presentation, 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. 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. L. 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 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 allowed under § 24-4-103(12.5), C.R.S., the Commission may incorporate by reference in its rules, without publishing the incorporated material in rules as finally published,
all or any part of a statute, code, standard, guidelines 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. § 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 rules adopted, a written
and concise general statement of their basis and purpose. The 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. § 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. § 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. § 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.
§ 24-4-103(5), C.R.S. 11. Any Person adversely affected or aggrieved by the final agency action may commence an action for judicial review under section 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 rule-making record for each proposed rule for which a notice of
proposed rule-making has been published in the Colorado Register. Such rule-making record shall be maintained by the Commission until all administrative and judicial review procedures
have been completed. The rule-making record shall be available for public inspection and shall contain those items identified in § 24-4-103(8.1)(b), C.R.S. M. 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. § 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. Rule 8 Hearing Officers A. Pursuant to section 37-90-113(2), C.R.S., the Commission may appoint one or more persons to act as a Hearing Officer and to
make an initial decision on any matter. The Commission may also appoint a Hearing Officer to conduct fact finding and present recommendations concerning determinations or rulemaking
as required under sections 37-90-106 & 37-90-111(h), C.R.S respectfully. No person engaged in conducting a hearing or participating in a decision or an Initial Decision 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. § 24-4-105(3) and (6), C.R.S. B. Upon a timely showing of Good Cause by a Party by filing of a 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. § 24-4-105(3), C.R.S. C. After complying with Rule 8.B, 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.C. 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 this Rule 9 shall apply. § 24-4-105(1), C.R.S. 1.2. Also, and iIn general, the Colorado Rules of Civil Procedure shall apply to
all adjudicatory hearings. In complex litigation matters the Commission or Hearing Officer may apply Water Court Rule 11 of the Uniform Local Rules for All State Water Divisions requiring
a meeting of experts within the scope of disclosure, including applicable deadlines as determined by the Commission or Hearing Officer within the framework of Water Courtthis Rule 11.
2. Whenever the Commission conducts a formal, public adjudicatory hearing, the provisions of this Rule 9 shall apply. B. Prehearing Procedures 1. In general, the Colorado Rules of
Civil Procedure shall apply to all adjudicatory hearings before the Commission. 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. Discovery shall be completed as ordered by the Commission or Hearing Officer. c. The Commission or Hearing Officer may, upon the motion of any Party for Good Cause, take
depositions or have depositions taken, and fix the time and place for them to be held. d. Discovery may be requested by any Party as well as by 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. 3. Subpoenas a. The Commission or Hearing Officer shall issue subpoenas in accordance with section
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 public
and private Parties 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.
§ 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 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. 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 or 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 agreed otherwise by all Parties or unless ordered otherwise by the Commission or Hearing Officer