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

provisions 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 Commission 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 Commission other than rulemaking. Adjudicatory Proceedings
are governed by the procedures in Rules 9, 10 and 11 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. The address of the Commission is: Colorado Ground Water Commission c/o Colorado Division
of Water Resources 1313 Sherman St., Room 821 Denver, CO 80203 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 Commission 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 Commission; 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 Colorado Division of Water Resources and date-stamped by staff as received on that day or, when filed by electronic mail for rulemakings or
Adjudications as provided herein: 1. Electronic Mail - Service by electronic mail shall be complete when the Commission or 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 Commission 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. 2.
All filings for rulemakings and Adjudications under these Procedural Rules shall be made by electronic mail. 3. Exception to Electronic Filing – Any person may request approval by
the Executive Director or his designee 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 Commission’s designated Hearing Officer which will become the final action of the
Commission unless appealed to the Commission. § 24-4-102(6), C.R.S. L. “Interested Person” - any Person who may be aggrieved by an action of the Commission. § 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 Commission,
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 Commission 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 Commission. 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 Commission. 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 Commission 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 Rulemaking A. All rulemaking proceedings shall be conducted by the Commission however, the Commission may designate a Hearing Officer to conduct
fact finding hearings and make recommendations to be filed with the Commission for final consideration and adoption. Whenever the Commission contemplates rulemaking, public announcement
may be made at such time and in such manner as they determine. The Commission 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 Commission to determine the extent to which such informal proceedings should occur. § 24-4-103(2), C.R.S. B. Any Person 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(I).
D. Petitions for rulemaking shall include the following information: 1. Identification of the person or persons requesting rulemaking and the nature of the requests; 2. The language
of the proposed rule; 3. A statement of the Commission’s authority to promulgate the rule; 4. A concise general statement of the rule’s basis and purpose. If the rule involves technological
or scientific issues, this statement must include a detailed, analytical statement of the scientific or technological rationale justifying the proposed rule. 5. 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. E. 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.. 3. Notice of proposed rulemaking shall be published in the Colorado Register and shall state the time, place,
and nature of public rulemaking proceedings, the authority under which the rule is proposed, and either the terms or the substance of the proposed rule or a description of the subjects
and issues involved. § 24-4-103(3)(a), C.R.S. Publication of the notice in the Colorado Register shall be by electronic publication pursuant to § 24-4-103(11)(g). 4. With due regard
for the number and complexity of the proposed rules, the Commission shall establish the date for the public rulemaking proceedings. The date set for the proceedings shall not be less
than twenty (20) days after publication of notice as provided in this section and as required by § 24-4-103(3)(a), C.R.S. 5. Public notice may contain requirements with respect to
special procedures, including Party status, prehearing conferences and requirements for written testimony, which the Commission deems appropriate to any particular rulemaking hearing.
6. An amended notice may be issued by the Commission at any time prior to the hearing without necessitating a continuance of the hearing date, provided the 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 Commission,
and notice thereof shall be made in the same manner as the original notice. 7. The Commission may continue a hearing to another date by issuing written notice to that effect at any
time prior to the close of the record, or by announcement at the date, time and place of the original hearing. E. Party Status 1. Status as a Party will be available to Interested
Persons in rulemaking proceedings before the Commission, unless the Commission specifies otherwise in its notice of proposed rulemaking. Where an opportunity to obtain party status
is provided, it may be obtained in the manner prescribed in this section. Parties to rulemaking hearings shall have the rights specified in this section. 2. If Party Status is to be
allowed, then any person or agency who is interested may become a party to rulemaking proceedings by filing an application for Party Status. Applications for Party Status shall be
filed as stated in the notice of proposed rulemaking. Thereafter, applications to be made a Party shall only be granted if other Parties will not be prejudiced thereby. 3. Applications
for Party Status shall set forth the name, U.S. mail address, telephone number and e-mail address of the Person, Persons or Agency seeking Party Status. The application shall also
indicate the interest of the Person(s) or Agency in the proposed rules and a description of the general nature of the evidence to be presented by the proposed Party in the course of
the proceedings. 4. For a hearing where Party Status is available, it shall be freely granted by the Commission. Upon Good Cause shown, Party Status may be granted prior to or at the
prehearing conference or other appropriate time prior to the hearing. 5. The staff of the Commission shall automatically be a Party to rulemaking proceedings before the Commission when
Party Status is allowed to other persons. 6. For the purpose of service of any documents upon a Party other than the staff of the Commission, delivery by U.S. mail or by e-mail to
the addresses provided in a Party’s application for Party Status shall constitute service as of the date mailed or e-mailed. A Party shall promptly serve upon the Commission and all
other Parties notice of any change in the Party’s U.S. mail address or e-mail address for the purpose of service. F. Prehearing Procedures for Rulemaking 1. These prehearing procedures
provide a process by which the issues related to a proposed rule are raised and discussed, and presented to the Commission for decision in an efficient manner if they cannot be resolved
prior to the prehearing conference. It is the strong desire of the Commission that the Parties try to resolve as many issues as possible by negotiation prior to the prehearing conference.
Any Person may appear at the prehearing conference but only Parties may participate. 2. The Commission may specify in the notice of proposed rulemaking that a prehearing conference
will be held. Any such conference shall be held not less than five (5) days in advance of the hearing, unless the Commission, for good cause specifies otherwise. 3. At any prehearing
conference each applicant for Party shall present to the Commission and to every other Person or Party in attendance a prehearing statement that shall contain the following: a. A specific
statement of the factual and legal claims it asserts; b. Copies of all exhibits it will introduce at the hearing; c. A list of witnesses it will call and a brief summary of their
testimony; d. Specific language proposed for the rule, where appropriate, and a proposed statement of the basis and purpose for the rule. e. All written testimony it will offer into
evidence at the hearing. f. The object of the prehearing rulemaking conference may include the formulation of stipulations or orders respecting the issues to be raised, and witnesses
and exhibits to be presented by the Parties (where applicable) or Interested Persons. The Parties or Interested Persons shall make known at the prehearing rulemaking conference any
objections to the procedures or evidence that may be raised at the hearing. Stipulations may be made at the prehearing conference to reflect any matters which have been agreed to or
admitted by the Parties or Interested Persons. A prehearing order shall be prepared by the Commission 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 Person or Party intends to make with respect to the
proposed rulemaking. These shall include motions regarding procedures, the scope and nature of the proceedings, or any other matter that requires a determination by the Commission
prior to final agency action based on the record, or any matter that may reasonably be disposed of prior to receiving testimony or other evidence. 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 sections 13-33-102 and 13-33-103, C.R.S., to be
paid by the person or party requesting issuance of the subpoena. § 24-4-103(14), C.R.S. 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 Commission or Hearing Officer. J. 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, have authority to: administer oaths and affirmations; sign
and issue subpoenas; regulate the course of the hearing, set the time and place for continued hearings, and fix the time for the filing of appropriate documents; take depositions or
have depositions taken; issue appropriate orders; issue appropriate orders which shall control the subsequent course of the proceedings and take any other action authorized by statute
or agency rule consistent with the APA. 4. The Commission will make efforts to provide for and solicit the greatest possible public participation in rulemaking hearings. 5. The Commission
or Hearing Officer may allow Parties to submit evidence not previously submitted under prehearing conference procedures for good cause, such as where necessary for purposes of rebuttal
testimony. 6. The Commission or Hearing Officer may permit Parties to submit motions not previously submitted under prehearing conference procedures for Good Cause shown. 7. After
receiving evidence presented during the hearing the Commission or Hearing Officer may allow or require Interested Persons or Parties to present oral or written summations of the facts
and law as it deems necessary. 8. At any time the Commission or Hearing Officer may question any 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.
K. Final Agency Action and Post-Hearing Procedures for Rulemaking 1. Within one hundred eighty (180) days after the last public hearing on a proposed rule, the Commission shall adopt
a rule pursuant to these rulemaking procedures or terminate the proceeding by publication of a notice to that effect in the Colorado Register. 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