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

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. 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. All hearings shall be held with
reasonable dispatch after the filing of a request for such a hearing unless all Parties to the hearing agree otherwise or, unless otherwise ordered by the Commission or Hearing Officer
due to extenuating circumstances. 2. 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. 3. 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. 4. All hearings shall be conducted
in the following order unless otherwise directed by the Commission or Hearing Officer or as provided for under Rule 5: CHECK RULE 5 REFERENCE 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. 5. 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. 6. 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. 7. The Commission or Hearing
Officer may allow Parties to submit evidence not previously submitted or disclosed under prehearing procedures for Good Cause shown. 8. The Commission or Hearing Officer may permit
Parties to submit motions not previously submitted under prehearing procedures for Good Cause shown. 9. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. 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. 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 the hearing officer. B. 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.
C. The Commission or hearing officer may require advance submittal of all motions or requests for rulings that any party intends request at any hearing. These shall include all
motions regarding procedures, the scope and nature of the proceedings, or any other matter that requires a determination by the Commission or hearing officer prior to final agency action
based on the record. D. A prehearing conference may be held if deemed useful by the Commission or the hearing officer assigned to the case. Parties may also request a prehearing conference
at least twenty (20) days before a scheduled hearing in writing. The prehearing conference shall be for the purpose of facilitating the adjudication of issues to be determined at the
hearing. The scope of issues to be raised at the prehearing conference shall be determined by the Chairman of the Commission or the hearing officer. Prehearing conferences shall be
held in the Commission office in Denver unless the Chairman of the Commission or the hearing officer determine the conference should be held at some other location. The Commission
or the hearing officer may hold prehearing conferences by telephone at their discretion for cost saving purposes or the convenience of the parties. E. Prior to any prehearing conference
or hearing all parties shall file a prehearing statement by the date ordered by the Commission or the hearing officer. Failure to file a prehearing statement or other such documents
by any party as ordered may result in dismissal of that party’s claims if the Commission or hearing officer determines such failure results in undue prejudice to the other parties in
the case. The prehearing statement shall include the following: a) Specific statements of all factual and legal claims asserted by the party. b) A list of facts the party believes
to be undisputed between the parties. c) A list of all exhibits the party plans to introduce at the hearing. d) A list of witnesses the party plans to call and a brief summary of
their testimony. F. The object 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 (where applicable). 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 or interested persons.
A prehearing order may be prepared by the Commission or the hearing officer and shall reflect any rulings made by the Commission or hearing officer with respect to procedures or any
other matters to be followed at the hearing. G. Adjudicatory hearings heard by the Commission or Hhearing oOfficer 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. H. All adjudicatory hearings shall be held within one hundred eighty days after the filing of
a request for such a hearing unless all parties to the hearing agree otherwise or, unless otherwise ordered by the Commission or hHearing oOfficer due to extenuating circumstances.
I. The Chairman of the Commission or hearing officer shall determine the order in which the parties shall present their cases, except that unless good cause is shown, the applicant,
petitioner, or whichever party is determined to bear the burden of proof, shall proceed first. J. The Colorado Rules of Evidence shall be adhered to the extent deemed appropriate by
the Commission or hearing officer with respect to the submission of evidence in accordance with the provisions of section 24-4-105(7), C.R.S. K. Parties who have obtained party status
(including staff for the Commission) may make objections and all witnesses shall be subject to cross-examination. Interested parties shall not be allowed to make objections and shall
only be allowed to question witnesses at the discretion of the Commission or hearing officer. 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. L. In conducting adjudicatory hearings the Chairman of 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 documents; take depositions or have depositions taken; issue appropriate orders; 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 agency rule consistent
with the APA. M. The Commission or Hhearing oOfficer may allow parties to submit evidence not previously submitted under prehearing conference procedures for good cause shown. N.
The Commission or hearing officer may permit parties to submit motions not previously submitted under prehearing conference procedures for good cause shown. O. The Commission or hHearing
oOfficer, 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.
P. All parties shall have the right to present their case or defense by oral and documentary evidence. Further, they shall 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. Q. The rules of evidence and requirements of proof 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. R. The Commission or hearing officer
may utilize their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented and in doing so, 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). All parties shall be afforded an opportunity to controvert the fact so noticed. S. 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. Any person permitted or compelled to testify or to submit data or evidence shall be entitled
to the benefit of legal counsel of his or her own choosing and, upon payment of a reasonable charge may procure a copy of the transcript of his or her recorded testimony. T. 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. U. 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 acquires a copy of the transcription on its own accord a copy of the transcription shall be made available to any party at a reasonable time for
inspection and study. V. Adjudicatory hearings before the Commission or hearing officer shall be conducted in the following order unless otherwise directed by the Commission or hearing
officer, or unless as otherwise provided for by rule or statute: 1. Call to order, introductory remarks, and action on applications for party status. 2. Presentation of stipulations,
proposed findings of fact, proposed conclusions of law, and/or any other matter that was addressed at the prehearing conference. 3. Opening statement by the party upon whom the burden
of proof rests, (if the party so desires). 4. Opening statements by all other parties, (if the parties so desire). 5. Presentation of the case-in-chief by the party upon whom burden
of proof rests. 6. Presentation by all other parties wishing to offer evidence, in the order to be determined by the Commission or hearing officer. 7. Rebuttal by the party upon
whom the burden of proof exists. 8. Closing statement by party upon whom the burden of proof rests. 9. Closing statements of all other parties. 10. At the conclusion of any witness’s
testimony, or at the conclusion of the party’s entire presentation, as may be determined by the Commission or hearing officer, all other parties may then cross-examine such witness
or witnesses. The Commission or hearing officer shall determine the order of cross-examination. 11. At the discretion of the Commission or hHearing oOfficer, any pPerson who is not
a formal pParty 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. 12. Briefs and memoranda of law filed by the participants shall
be served upon the Commission, hHearing oOfficer and all parties at least ten (10) days prior to the hearing unless otherwise ordered. W. No ex parte communication with parties or
their legal counsel by the Commission or hearing officer may occur during any pending adjudicatory proceeding. However, the Commission or hearing officer may request that certain information
or tasks be provided or performed by requesting such via letter or pleading sent to all parties involved in the case. X. The Commission or hearing officer, after receipt of the evidence,
may require parties to present oral or written summations of the facts and the law, or proposed findings of fact and conclusions of law, or both, either at the hearing or subsequent
thereto, as deemed appropriate. Y. 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 7 Requests Ffor Administrative Hearings Bbefore Tthe Commission Uunder 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 sState eEngineer when acting as its executive director, 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 8 Notice Concerning Adjudicatory and Other Non-Rulemaking Hearings A. The Commission or hHearing oOfficer shall provide written notice of all adjudicatory and other
nonrulemaking hearings in accordance with the requirements of this section and rule whatever it is re: electronic filing. B. The Commission or hHearing oOfficer 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 hHearing oOfficer by the person to be notified,
at least twenty (20) days prior to the hearing. The provisions of Rule whatever it is re: electronic filing look at them and see what needs to be added here. 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 hHearing oOfficer 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 9 Party Status for Adjudicatory and Other Non-Rulemaking Hearings A. Any pPerson requesting an adjudicatory
or other non-rulemaking hearing shall be granted pParty status and need not file an application to be granted this status. B. Any pPerson who may be affected or aggrieved by the Commission’s
or State Engineer’s action shall be admitted as a pParty to the proceeding upon filing a timely written request in accordance with the requirements of this subsection. C. Application
to be made a pParty shall set forth a brief and plain statement of the reasons for seeking pParty 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 hHearing oOfficer shall grant
or deny pParty status at the prehearing conference or other appropriate time prior to the hearing in a manner that does not prejudice other pParties already participating in the proceedings.
E. Staff of the Commission shall automatically be a pParty in all adjudicatory or other administrative proceedings. The attorney general shall represent staff. F. Nothing in this