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

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. E. Staff of
the Commission shall automatically be a Party in all adjudicatory or other administrative proceedings. The attorney general shall represent staff. F. Nothing in this subsection shall
prevent the Commission or Hearing Officer from admitting any Person as a Party to any proceedings for limited purposes. Rule 13 Final Agency Action for Adjudicatory and Other Non-Rulemaking
Hearings 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. § 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. § 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 and the provisions of Rule 4.I shall apply. 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. § 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 from 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 a review upon motion by any member of the Commission within thirty (30) days after
service of the initial decision of the Hearing Officer. §§ 24-4-105(14)(a)(II), (14)(a)(III), C.R.S. E. Within twenty 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 a designation of the parts of transcript of the proceedings that shall be prepared and advance
the cost therefore. Within ten 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. The transcript or the parts thereof which may be designated by the Parties shall be prepared by the reporter or, in the case of an electronic
recording device, the agency conducting the hearing, 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 brief filed. § 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. § 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. § 24-4-105(16)(a), C.R.S. 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.
§ 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. § 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 10 days after
receipt by the 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 10 days of the Hearing Officer’s initial decision and the Hearing Officer must file a written decision
concerning such reconsideration within 10 days 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.
NewAdjHearingRedlineDraft.pdfMicrosoft Word - AdoptedRules2006-00274.rtf
DRAFT 2016 DEPARTMENT OF NATURAL RESOURCES Colorado Ground Water Commission 2 CCR 402-3 RULES OF PROCEDURE FOR ALL HEARINGS BEFORE THE COLORADO GROUND WATER COMMISSION Rule 1
Authority This regulation is adopted pursuant to the authority in section 37-90-111(1)(h), C.R.S. and is intended to be consistent with the requirements of the State Administrative
Procedure Act, section 24-4-101 et seq. (the “APA”), C.R.S. and the Colorado Ground Water Management Act, sections 37-90-101 et seq. (the “Act”), C.R.S. Rule 2 Scope and Purpose A.
These regulations shall govern the procedure to be followed by parties in rule making and adjudicatory hearings held by the Colorado Ground Water Commission, hereinafter referred to
as the “Commission.” B. These rules of procedure are intended to establish procedures to assure that all hearings held by the Commission are conducted in a fair and impartial manner,
to assure that all parties to proceedings under the Colorado Ground Water Management Act are accorded due process of law, and to provide the Commission with all relevant facts and information
pertinent to decision making. These rules shall be construed to carry out these purposes. C. These regulations do not apply to interpretive rulings, guidelines or general statements
of policy, which are not meant to be binding. D. Except when necessary to comply with applicable statutes, the Commission may waive the requirements of these regulations whenever
it is determined that strict adherence to the rules will not promote fairness or impartiality. In any such instance, appropriate justification shall be provided to all interested persons
and parties. E. These rules of procedure are promulgated pursuant to sections 37-90-113, and 24-4-103, C.R.S. F. In the event of a conflict between these regulations and the APA or
other statutes, the statutes shall prevail. Rule 3 Applicability A. These rules apply to rulemaking, Adjudicatory Proceedings, declaratory orders, reconsideration of rulemaking decisions,
and reconsideration of Adjudicatory Proceedings before the Commission. B. Except when necessary to comply with applicable statutes, the Commission may waive the requirements of these
rules whenever it is determined that strict adherence to the rules will not promote fairness and impartiality. In any such instance, appropriate justification shall be provided to
all Interested Persons and Parties. C. In the event of a conflict between these rules and the APA or the Management Act, the statutes shall prevail. The provisions of the APA generally
apply to all hearings held by the Commission. Specifically, the provisions of § 24-4-103, C.R.S., shall apply to all rulemaking hearings, the provisions of § 24-4-104, C.R.S., shall
apply to all decisions regarding the grant, renewal, denial, revocation, suspension, annulment, limitation or modification of Licenses (permits), and the provisions of § 24-4-105, C.R.S.,
shall apply to all Adjudicatory Proceedings and petitions for declaratory orders unless such provisions are inconsistent with the specific provisions of the Management Act, in which
case the those statutory provisions shall control. The provisions of the State Administrative Procedure Act, (also known as the A.P.A.) section 244-101, et seq. C.R.S., generally
apply to all hearings held by the Commission. Specifically, the provisions of section 24-4-103, C.R.S. shall apply to all rulemaking hearings, and the provisions of section 24-4-105,
C.R.S., shall apply to all adjudicatory hearings unless such provisions are inconsistent with specific provisions of the Ground Water Management Act, in which case the Ground Water
Management Act shall control. Rule 4 Definitions A. “The Management Act” - The Ground Water Management Act of 1965, § 37-90-101 et seq., C.R.S., as may be amended. B. “Adjudication”
- the procedure used by the Division of Water Resources for the formulation, amendment, or repeal of an order; including orders regarding licensing and permitting under § 24-4-104,
C.R.S. § 24-4-102(2), C.R.S. C. “Adjudicatory Proceeding”: - Adjudicatory Proceedings include notice, prehearing procedures and hearings which are required or allowed by law in order
to determine past and future rights and obligations of persons or agencies, including persons or agencies aggrieved by an administrative action of the State Engineer other than rulemaking.
Adjudicatory Proceedings are governed by the procedures in Rules 8 and 9 of these rules. D. “The APA” – The State Administrative Procedures Act, § 24-4-101 et seq., C.R.S., as may
be amended. E. “Agency” – any board, bureau, commission, department, institution, division, section, or officer of the state, except those in the legislative branch or the judicial
branch. F. “Commission” – The Colorado Ground Water Commission as defined under § 37-90-104, C.R.S. as may be amended. G. “Executive Director of the Commission” – The State Engineer
as defined in § 37-90-105(6), C.R.S., as may be amended. H. “Ex parte Communication” – An oral or written communication regarding a proceeding where the communication is between the
State Engineer or Hearing Officer and a Party to the proceeding that: takes place after the adoption of a petition to notice a rulemaking or after an appeal for an adjudicatory hearing
has been Filed; is not on the public record; is not authorized by other specific provision of law or order of the State Engineer; and, with respect to which reasonable prior notice
to all Parties is not given. Communications solely inquiring as to the process of the proceeding that are not seeking any procedural or substantive relief, nor pertaining to any substantive
issues, are not included in Ex parte Communication. I. File or Filed: Received in the office of the State Engineer and date-stamped by staff as received on that day or, when filed
by electronic mail for rulemakings or Adjudications as provided herein: a. Electronic Mail - Service by electronic mail shall be complete when the Office of the State Engineer receives
an electronic mail containing an attached, signed version of the document to be filed. When any Person, Interested Person or Party files by electronic mail, it shall be considered
an agreement to be served by electronic mail. The filer is responsible for furnishing one or more electronic notification addresses at which the electronic filer agrees to accept service
and shall immediately provide the State Engineer’s office and all Parties with any change to the electronic filer’s notification address. Special filing arrangements may be made on
a case-by-case basis as needed. b. All filings for rulemakings and Adjudications under these Procedural Rules shall be made by electronic mail. c. Exception to Electronic Filing
– Any person may request approval by the State Engineer to file documents in paper copy format if they are unable for any reason to comply with the electronic filing requirements.
Pro se Parties may file documents via US mail if electronic filing is not available. J. “Good Cause” – a rational explanation justifying why a requirement in these procedural rules
was not met or need not be complied with in the particular circumstance. K. “Initial Decision” – a decision made by the State Engineer’s designated Hearing Officer which will become
the final action of the Division of Water Resources unless appealed to the State Engineer. § 24-4-102(6), C.R.S. L. “Interested Person” - any Person who may be aggrieved by the Division
of Water Resources action. § 24-4-102(6.2), C.R.S. M. “License” – the whole or any part of any Commission or Division of Water Resources permit, certificate, registration, charter,
membership, or statutory exemption. § 24-4-102(7), C.R.S. N. “Party” – any person or agency named or admitted as a Party, or properly seeking and entitled as of right to be admitted
as a Party in a proceeding before the State Engineer, subject to the provisions of these rules. O. “Person” – an individual, limited liability company, partnership, corporation, association,
county, or a public or private organization other than an agency. P. “Rulemaking Proceedings” – Rulemaking Proceedings are the notice and hearing activities required by law for the
State Engineer to adopt rules, as authorized by the Act or other specific authority, that are of general applicability and future effect implementing, interpreting, or declaring law
or policy, which are intended to be binding. They include adoption of whole generic rules, or deletion of, or revisions or modifications to, existing rules of the State Engineer.
Rulemaking Proceedings are governed by the procedures in Rules 6 and 7 of these rules. Q. “State Engineer” – the person appointed by the governor pursuant to section 13 of article
XII of the state constitution having the general duties set forth in section 37-80-101, et seq., C.R.S., as well as duties under the Determination Act, the Management Act, and other
provisions of Title 35 and 37 of the Colorado Revised Statutes. The address of the State Engineer is: Colorado Division of Water Resources 1313 Sherman St., Room 821 Denver, CO 80203
R. “Stipulation” – an agreement or concession as to facts or the law made by the Parties in a proceeding before the State Engineer. Rule 5 Alternative Means of Dispute Resolution
For the purposes of this rule, the term – A. “Alternative means of dispute resolution” means any procedure that is used to resolve issues in controversy, including, but not limited
to, conciliation, facilitation, mediation, fact finding, mini trials, arbitration, and use of ombudsman, or any combination thereof; B. "Dispute resolution proceeding" means any process
in which an alternative means of dispute resolution is used to resolve an issue in controversy in which a neutral is appointed and specified Parties participate; C. "In confidence"
means, with respect to information, that the information is provided— 1. with the expressed intent of the source that it not be disclosed; or 2. under circumstances that would create
the reasonable expectation on behalf of the source that the information will not be disclosed; D. “Issue in controversy" means an issue which is material to a decision concerning an
administrative program of the Division of Water Resources and with which there is disagreement: 1. between an Agency and Persons who would be substantially affected by the decision;
or 2. between persons who would be substantially affected by the decision; E. "Neutral" means an individual who, with respect to an issue in controversy, functions specifically to
aid the Parties in resolving the controversy; F. "Roster" means a list of persons qualified to provide services as neutrals. G. General authority 1. The Commission or Hearing Officer
may approve the use of a dispute resolution proceeding for the resolution of an issue in controversy that relates to an administrative program, if the Parties agree to such proceeding.
2. The Commission or Hearing Officer shall consider not using a dispute resolution proceeding if:-- a. a definitive or authoritative resolution of the matter is required for precedential
value, and such a proceeding is not likely to be accepted generally as an authoritative precedent; b. the matter involves or may bear upon significant questions of state government
policy that require additional procedures before a final resolution may be made, and such a proceeding would not likely serve to develop a recommended policy for the Commission; c.
maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a proceeding would not likely reach consistent results
among individual decisions; d. the matter significantly affects persons or organizations who are not Parties to the proceeding; e. a full public record of the proceeding is important,
and a dispute resolution proceeding cannot provide such a record; or f. the Commission must maintain continuing jurisdiction over the matter with authority to alter the disposition
of the matter in the light of changed circumstances, and a dispute resolution proceeding would interfere with the Commission’s fulfilling that requirement. 3. Alternative means of dispute
resolution authorized under this subchapter are voluntary procedures which supplement rather than limit other available dispute resolution techniques. H. Neutrals 1. A Neutral may be
a permanent or temporary officer or employee of the State of Colorado or any other individual who is acceptable to the Parties to a dispute resolution proceeding. The neutral shall
have no official, financial, or personal conflict of interest with respect to the issues in controversy, unless such interest is fully disclosed in writing to all Parties and all Parties
agree that the neutral may serve. 2. A neutral who serves as a conciliator, facilitator, or mediator serves at the will of the Parties. I. Confidentiality - Except as provided herein,
a neutral in a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication or
any communication provided in confidence to the neutral, unless-- 1. all Parties to the dispute resolution proceeding and the neutral consent in writing, and, if the dispute resolution
communication was provided by a non-Party participant, that participant also consents in writing; 2. the dispute resolution communication has already been made public; 3. the dispute
resolution communication is required by statute to be made public, but a neutral should make such communication public only if no other person is reasonably available to disclose the
communication; or 4. a court determines that such testimony or disclosure is necessary to-- a. prevent a manifest injustice; b. help establish a violation of law; or c. prevent harm
to the public health or safety, of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of Parties
in future cases that their communications will remain confidential. 5. A Party to a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process
be required to disclose any dispute resolution communication, unless-- a. the communication was prepared by the Party seeking disclosure; b. all Parties to the dispute resolution proceeding
consent in writing; c. the dispute resolution communication has already been made public; d. the dispute resolution communication is required by statute to be made public; e. a court
determines that such testimony or disclosure is necessary to-- i. prevent a manifest injustice; ii. help establish a violation of law; or iii. prevent harm to the public health and
safety, of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of Parties in future cases that
their communications will remain confidential; f. the dispute resolution communication is relevant to determining the existence or meaning of an agreement or award that resulted from
the dispute resolution proceeding or to the enforcement of such an agreement or award; or g. except for dispute resolution communications generated by the neutral, the dispute resolution
communication was provided to or was available to all Parties to the dispute resolution proceeding. 6. Any dispute resolution communication that is disclosed in violation of these rules
shall not be admissible in any proceeding relating to the issues in controversy with respect to which the communication was made. 7. The Parties may agree to alternative confidential
procedures for disclosures by a neutral. Upon such agreement the Parties shall inform the neutral before the commencement of the dispute resolution proceeding of any modifications
that will govern the confidentiality of the dispute resolution proceeding. 8. If a demand for disclosure by way of discovery request or other legal process is made upon a neutral regarding
a dispute resolution communication, the neutral shall make reasonable efforts to notify the Parties and any affected non-Party participants of the demand. Any Party or affected non-Party
participant who receives such notice and within 15 calendar days does not offer to defend a refusal of the neutral to disclose the requested information shall have waived any objection
to such disclosure. 9. Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented
in the course of a dispute resolution proceeding. 10. A decision by the Commission to use or not to use a dispute resolution proceeding under this subchapter shall be committed to the
discretion of the Commission o r its’ appointed Hearing Officer and shall not be subject to judicial review. Rule 6 Hearing Procedures for Rule Making A. All rulemaking proceedings
shall be conducted by tThe Commission or such person(s) as they may designatedshall conduct all rulemaking proceedings. Whenever the Commission contemplates rulemaking, public announcement
may be made at such time and in such manner as they determine. The Commission shall shall establish a representative group of participants with an interest in the subject of the rule-making
to submit views or otherwise participate informally in conferences on the proposals under consideration or to participate in public rule-making proceedings on the proposed rules. It
is within the discretion of the State Engineer to determine the extent to which such informal proceedings should occur. § 24-4-103(2), C.R.S., and opportunity may be afforded interested
persons to submit views or otherwise participate informally in conferences with the Commission, or their staff on the proposals under consideration. It is within the discretion of
the Commission to determine if and when such informal proceedings should occur. B. Any interested pPerson shall have the right to petition the Commission in writing for the issuance,
amendment, or repeal of a rule. Such petition shall be open to public inspection. Action on such petition shall be within the discretion of the Commission, 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(G) CHECK THIS REFERENCE CD. 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. 45 A fiscal analysis of the proposed
rule, which shall include an identification of the types of persons who will bear the costs and/or assume the benefits of the proposed rule. D. Notice. 1 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 or 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.In accordance with the requirements of section 24-4-103(2.5), C.R.S., at the time of filing a notice with the secretary of state,
the Commission shall submit any proposed rule to the Department of Regulatory Agencies. 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