DWR_3364090

• Board or Commission: Colorado Ground Water Commission
• Document Type - Board and Commission Meetings: Meeting Document
• Document Date: 11/18/2016
• Subject: MEETING MATERIALS

21 days of the Commission’s service of the initial ruling on the Party. The Commission shall rule on any such exceptions prior to adopting any rule or terminating the proceeding.
4. 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. 5. Material Incorporated by Reference a. As allowed under § 24-4-103(12.5), C.R.S., the Commission may incorporate by reference in his rules, without
publishing the incorporated material in rules as finally published, all or any part of a 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 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 or incorporate by reference in 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. 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 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)(2) 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 delegate to one or more members the responsibility to convene and conduct hearings under these rules. The Commission may also appoint one or more persons
to act as Hearing Officer and to make an initial decision on any matter. Within this scope 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, Good Faith filing by a Party 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 he deems himself 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. 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. Rule 9 Adjudicatory Procedures A. Scope and Applicability
1. In order to assure that all Parties to any formal Adjudicatory Proceeding of the Commission are accorded due process of law, the provisions of this section shall apply. § 24-4-105(1),
C.R.S. Also, and in general, the Colorado Rules of Civil Procedure shall apply to all adjudicatory hearings. In complex litigation matters the Commission or Hearing Officer may apply
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 Rule 11. 2. Whenever the Commission conducts a formal, public adjudicatory hearing, the provisions of this rule 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, on 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. 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 in 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 all Parties shall 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. 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 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 pursuant to section 37-90-113, 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 directly involved are situated, 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. §§ 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; regulate the course of the
hearing; set the time and place for continued hearings; fix the time for the filing of appropriate documentation; take depositions or have depositions taken; issue appropriate orders
that shall control the subsequent course of the proceedings; and take any other action authorized by statute or Division of Water Resources rule. § 24-4-105(4), C.R.S. 4. Burden
of Proof a. Except as otherwise provided by statute, the proponent of the order shall have the burden of proof. § 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 rule-making. § 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. 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. ii. 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. iii. 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. iv. The Commission or Hearing Officer
should give effect to any rebuttable presumptions established by statute or other 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 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: 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; i. Closing statements
by all other Parties. 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. 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. 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 those in civil non-jury cases in the district courts. 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. § 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 shown. 9. The Commission or Hearing Officer may permit Parties to submit motions
not previously submitted under prehearing procedures for Good Cause shown. 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 prejudiced, the Commission or Hearing Officer may receive all or
part of the evidence in written form. § 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. § 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. § 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 own choosing and at his own expense, but a Person may appear for himself. An attorney who is a
witness may not act as counsel for the Party calling him as a witness. § 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. 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. § 24-4-105(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. At the discretion of the Commission
or Hearing Officer, any Person who is not a formal Party to the proceedings that desires to present testimony may do so by indicating his or her desire in writing no later than five
(5) days prior to the hearing. A sign-up form will be available prior to and during the hearing. Voluntary testimony not specifically requested per the written form may still be allowed.
The Parties shall be given an opportunity to respond to nonparty evidence in a manner deemed appropriate by the Commission or Hearing Officer to avoid prejudice. 18. Briefs and memoranda
of law filed by the participants shall be served upon the Commission, Hearing Officer and all Parties at least ten (10) days prior to the hearing unless otherwise ordered. 19. 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 Section 37-90-114, C.R.S. A. Requests for all hearings must be timely filed pursuant to these regulations
and applicable statutory requirements. B. Requests for all hearings shall contain the following information: 1. Identification of the person(s) 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. 5. Any person wishing
to request a hearing on or claim injury from an order of the Commission or the State Engineer pursuant to section 37-90-114, C.R.S., shall file a written statement with the Commission
setting forth the grounds for the request for hearing or claim of injury within thirty (30) days of receipt of the order. 6. After receipt of such a request for hearing or claim of
injury, the Commission shall conduct a hearing thereon pursuant to these rules and statutory authority. 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 the requirements of this section and Rule 4.I
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, and the legal authority
under which the hearing will be conducted. 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 twenty (20) days prior to the hearing. The provisions of Rule 4.I shall also apply. 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 section 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 requesting an adjudicatory or other non-rulemaking
hearing shall be granted Party status and need not file an application to be granted this status. B. Any Person 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 subsection. C. Application to be made a Party
shall set forth a brief and plain statement of the reasons for seeking Party status, including the facts that entitle admission and issues believed to be decided. The statement should
contain a description of the general nature of the evidence to be presented in the course of the proceedings. D. The Commission or Hearing Officer shall grant or deny Party status