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

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.. Publication shall be in the Colorado Register,
which shall be distributed pursuant to section 24-4-103(11)(h), C.R.S. and the Commission shall mail a copy of the notice to the petitioner, if any. 5 Public notice may contain requirements
with respect to special procedures, including pParty 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 original
notice is not substantially altered to the prejudice of any interested person. If an amendment is substantial and prejudicial, the hearing date shall be continued to an appropriate
date as determined by the state engineer, 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. E. Party Status 1 Status as a
pParty will be available to iInterested pPersons 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 may be obtained in the manner prescribed in this section. Parties to rulemaking hearings shall have the rights specified in this
section. 2 If pParty Sstatus is to be allowed, then any person or agency who is interested may become a party to rulemaking proceedings by filing an application for pParty sStatus.
Applications for pParty sStatus shall be filed as stated in the notice of proposed rulemaking. Thereafter, applications to be made a pParty shall only be granted if other pParties
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.Applications for party status shall set forth the name of the person, persons or agency seeking party status. The application
shall also indicate the interest of the person(s) in the proposed rules and a description of the general nature of the evidence to be presented in the course of the proceedings. 4
For a hearing where pParty sStatus is available, it shall be freely granted by the Commission. Upon Good Cause shown, Party Status may be granted prior to or at the prehearing conference
or other appropriate time prior to the hearing. Party status may be granted at the prehearing conference or other appropriate time prior to the hearing. 5 The staff of the Commission
shall automatically be a pParty to rulemaking proceedings before the Commission when pParty sStatus is allowed to other persons. 56 For the purpose of service of any documents upon
a Party other than the staff of the Office of the State Engineer, 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 State Engineer 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. F. Prehearing Procedures for Rulemaking Conference 1. 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 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. 23. . At any prehearing conference each applicant for pParty status shall
present to the Commission and to every other pperson or pParty 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 pParties
(where applicable) or iInterested pPersons. The pParties or iInterested pPersons 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 pParties or iInterested
pPersons. A prehearing order shall be prepared by the Commission 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. G. 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 pPerson or pParty intends to make with respect to the proposed rulemaking. These
shall include motions regarding procedures, the scope and nature of the proceedings, or any other matter that requires a determination by the Commission prior to final agency action
based on the record, or any matter that may reasonably be disposed of prior to receiving testimony or other evidence. H. The Commission or Hearing Officer shall issue subpoenas without
discrimination between public and private persons 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 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 section§§ 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. I. 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. Other forms of discovery provided for by the Colorado Rules of Civil Procedure may
be allowed by the Commission or Hearing Officer. Discovery may be requested by any Interested Person or 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
shall be completed no later than five (5) days prior to the hearing date, except as otherwise ordered by the State Engineer IJ. 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 appointed Hearing Officer) shall, in addition to the authority specified elsewhere, shall 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 may allow pParties 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 may permit pParties
to submit motions not previously submitted under prehearing conference procedures for gGood cCause shown. 7 After receiving evidence presented during the hearing the Commission may
allow or require iInterested pPersons or pParties to present oral or written summations of the facts and law as it deems necessary. 8 At any time the Commission or its appointed Hearing
Officer may question any Interested Person, 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 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 presiding 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,
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. KJ. Final Agency Action and Post-Hearing Procedures for Rulemaking
1. Within one hundred eighty 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. 2. After the conclusion of the last public hearing, the Commission shall prepare an initial ruling as to any rules
proposed for adoption. 3. 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 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. Statement of Basis and Purpose 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 his 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 State Engineer 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 State Engineer in accordance with the provisions of Rule 7(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. 1. The Commission shall consider all submissions entered into the record in adopting any rule or regulation. The rules
or regulations promulgated shall be based on the record and the record shall consist of proposed rules, evidence, exhibits, other matters presented or considered, matters officially
noticed, ruling on exceptions, and any written briefs filed. 2. The Commission may incorporate by reference in their rules, without publishing the incorporated material in rules as
finally published, standards or guidelines of any nationally recognized agency, association or organization. 3. The Commission shall maintain certified copies of the complete text
of material incorporated. These copies shall be available for public inspection during regular business hours. Certified copies of the material incorporated shall be provided upon
request and upon payment of statutory copying fees. 4. References to any incorporated material shall identify the incorporated material by appropriate agency, organization, or association
by date, title and/or citation. The reference shall also state that the rule does not include later amendments to or editions of the incorporated material. 5. The Commission shall
include in any rule incorporating material by reference the fact that the Commission 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 promulgated by the Commission shall first be submitted to the attorney general for his/her
opinion as to their constitutionality and legality. Any rule issued without being so submitted shall be void. 8. Each rule adopted by the Commission, together with the attorney general’s
opinion rendered in connection therewith, shall be filed within ten (10) days after adoption with the secretary of state for publication in the Colorado Register. Rules revised to
conform to 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 9. 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. 10. All rules adopted by the Commission, including temporary or emergency
rules, shall be submitted to the Legislative Drafting Office in the form and manner prescribed by the Committee on Legal Services. Any rule issued that is not submitted to the Legislative
Drafting Office within twenty (20) days after the date of the attorney general’s opinion rendered thereon shall be void. The Commission shall revise their rules to conform to any action
taken by the general assembly. 11. The Commission shall maintain a copy of its currently effective rules, the current status of each published proposal for rules, all minutes of its
actions upon proposed rules, and any attorney general’s opinion rendered on adopted or proposed rules. This information shall be available for inspection by any person during regular
office hours. 12. The Commission shall make available to the public and shall deliver to anyone requesting it a copy of any rule of the agency then in effect or of any notice of proposed
rulemaking proceeding in which action has is pending. Upon request, copies of this information shall be certified. The Commission shall charge the statutory fees for supplying any
such copy. 13. The Commission shall maintain a docket listing the name, address, and telephone number of every person or party who has participated in a rulemaking proceeding by written
or oral statement at any hearing concerning the rule(s). 14. 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 that immediate adoption of the rule is imperatively necessary
for the preservation of public health, safety, or welfare, and compliance with the requirements of these rules would be contrary to the public interest. 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 three months from the adoption thereof unless made permanent by compliance with this section. Rule 5 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 adjudicatory and non-rulemaking hearings under
these rules. The Commission may also appoint one or more persons to act as hHearing oOfficer and to make an initial decision on any matter. 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 Division of Water Resources. § 24-4-105(3) and (6), C.R.S. B. Upon a timely, good faith filing by a pParty of a sufficient affidavit
of personal bias of the hHearing oOfficer, the hHearing oOfficer 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 hHearing oOfficer may be assigned by the
cCommission to continue the hearing, and they shall do so in such manner that no substantial prejudice to any pParty results. § 24-4-105(3), C.R.S. C. If the parties are dissatisfied
with the person or persons appointed by the cCommission to conduct the hearing or act as hHearing oOfficer, they may request the cCommission 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 6 Adjudicatory ProceduresHearings
A. 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 meeting of experts within the scope of disclosure, including applicable
deadlines as determined by theCommission or Hearing Officer. 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 § 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