2 CCR 402-5
DEPARTMENT OF NATURAL RESOURCES Division of Water Resources PROCEDURAL REGULATIONS 2 CCR 402-5 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ 1.1.1. Authority These regulations are adopted pursuant to the authority conferred upon the state engineer to make rules and are promulgated in compliance with the requirements of the State Administrative Procedure Act, sections 24-4-101 et seq. C.R.S. (1982 & 1983 Supp.) (the “APA”). 1.1.2. Scope and Purpose A. These regulations shall govern all procedures and hearings before the state engineer except when he is acting pursuant to authority delegated to him by the Ground Water Commission or the State Board of Examiners of Water Well and Pump Installation Contractors. They are intended to assure that all such procedures and hearings will be fair and impartial and shall be construed so as to further these purposes.
B. These regulations do not apply to interpretive rulings or guidelines or general statements of policy, which are not meant to be binding.
C. Except when necessary to comply with applicable statutes, the requirements of these regulations may be waived 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.
D. In the event of a conflict between these regulations. and the APA or other statutes, the statutes shall prevail.
1.1.3. Rulemaking procedures A. Applicability Whenever the state engineer adopts any rule or regulation, except those required to be promulgated under section 37-92-501, C.R.S. (1973) the provisions of this section shall be applicable.
B. Proposals for Rulemaking 1) All rulemaking proceedings shall be conducted by the state engineer or such person(s) as he may designate. Whenever the state engineer contemplates rulemaking, public announcement may be made at such time and in such manner as he determines, and opportunity may be afforded interested persons to submit views or otherwise participate informally in conferences with the state engineer or his staff on the proposals under consideration. It is within the discretion of the state engineer to determine if and when such informal proceedings should occur. 2)(a) Any interested person shall have the right to petition the state engineer in writing for the issuance, amendment, or repeal of a rule. Such petition shall be open to public Code of Colorado Regulations 1 inspection. Action on such petition shall be within the discretion of the state engineer, but when he undertakes 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.
(b) Petitions for rulemaking shall include the following information:
C. Notice 1) In accordance with the requirements of section 24-4-103.5, C.R.S. (1982), not less than 20 days before publication of notice of proposed rulemaking pursuant to this section, the state engineer shall submit any proposed rule which will affect small businesses to the Office of Regulatory Reform.
2) Official notice of proposed rulemaking proceedings shall be filed with the secretary of state in sufficient time for publication in the Colorado Register.
3) Notice of proposed rulemaking shall be published in the Colorado Register and shall state the time, place, and nature of the 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.
4) With due regard for the number and complexity of the proposed rules, the state engineer shall establish the date for the public rulemaking proceedings. The date set for the proceedings shall not be less than 20 days after publication of notice as provided in this section. Publication shall be in the Colorado Register, which shall be distributed pursuant to section 24-4-103(11)(h), C.R.S. (1982), and the agency shall mail a copy of the notice to the petitioner, if any.
5) Public notice may contain requirements with respect to special procedures, including party status, prehearing conferences and requirements for written testimony, which the state engineer deems appropriate to any particular rulemaking hearing.
6) An amended notice may be issued by the state engineer 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. Code of Colorado Regulations 2 7) The state engineer 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.
D. Party Status 1) Status as a party will be available to interested persons in rulemaking proceedings before the state engineer, unless the state engineer specifies otherwise in his notice of proposed rulemaking issued pursuant to section 1.1.3.(C) of these regulations. Where an opportunity to obtain party status is provided, it may be obtained in the manner prescribed in this section 1.1.3.(D). Parties to rulemaking hearings shall have those rights specified in section 1.1.3(J)(2).
2) If party status is to be allowed, then any person or agency who is interested may become a party to rulemaking proceeding by filing an application for party status. Applications for party status shall be filed not less than 5 days prior to the hearing or such earlier time 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 of the person, persons or agency seeking party status. 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 hearing where party status is available, it shall be granted by the state engineer. Party status may be granted at the prehearing conference or other appropriate time prior to the hearing.
5) The staff of the Office of the State Engineer shall automatically be a party to rulemaking proceedings before the state engineer when party status is allowed for other persons.
E. Prehearing Conference 1) The state engineer may specify in the notice or proposed rulemaking that a prehearing conference will be held. Any such conference shall be held not less than 5 days in advance of the hearing, unless the state engineer, for good cause specifies otherwise.
2) At any prehearing conference each applicant for party status, or when party status is not permitted, every interested person who intends to call witnesses at the hearing and offer exhibits into the record of the hearing, shall present to the state engineer and to every other person or party in attendance a prehearing statement which 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) the language proposed for the rule, where appropriate, and a proposed statement of the basis and purpose therefor;
e) all written testimony it will offer into evidence at the hearing.
3) The object of the prehearing 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 should make known at the prehearing 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 Code of Colorado Regulations 3 have been agreed to or admitted by the parties or interested persons. A prehearing order shall be prepared by the state engineer or, at his direction, by any person or party, based upon the prehearing conference, which shall reflect any rulings made by the state engineer with respect to procedures to be followed at the hearing, or any other matters.
F. Motions The state engineer may require that, as part of the prehearing conference or otherwise, parties or when party status is not allowed, interested persons, submit in advance of the hearing 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 state engineer prior to final agency action based on the record, or any matter that may reasonably be disposed of by the state engineer prior to receiving testimony or other evidence.
G. Discovery The state engineer may, on his own motion or upon the motion of any interested person or party for good cause shown, take depositions or have depositions taken, and fix the time and place therefor. Other forms of discovery provided for by the Colorado Rules of Civil Procedure may be allowed by the state engineer. Discovery may be requested by any interested person or party as well as by the staff of the Division of Water Resources. 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.
H. Subpoenas Subpoenas shall be issued without discrimination between public and private persons or parties by the state engineer. 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 state engineer 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 the 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. (1973 & 1983 Supp.) to be paid by the person or party requesting issuance of the subpoena.
I. Hearing Officers Pursuant to section 37-80-102(2), C.R.S. (1973), the state engineer may delegate to one or more persons the responsibility to convene and conduct hearings under these rules. The state engineer may also appoint one or more persons to act as hearing officer and to make an initial decision and initial decision on any matter.
J. Conduct of Hearings 1) The state engineer shall hold a public hearing before promulgating any rule or regulation. At such hearing, the staff of the Division of Water Resources and interested persons shall be afforded the opportunity to submit written data, views, or arguments, and to present the same orally unless the state engineer deems it unnecessary.
2) Where participation as a party is allowed by the state engineer, parties may make objections, and all witnesses shall be subject to cross-examination by or on behalf of persons who have obtained Code of Colorado Regulations 4 party status to the proceedings. In all hearings witnesses shall be subject to cross-examination by or on behalf of the state engineer, and the state engineer may allow either his staff or legal counsel for the staff, to conduct cross-examination.
3) The state engineer in conducting any rulemaking hearing shall, in addition to the authority specified elsewhere, have authority on his own motion or upon the motion of any interested person or party for good cause shown 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 which shall control the subsequent course of the proceedings and take any other action authorized by statute or agency rule consistent with the APA. In the event more than one person engages in the conduct of a hearing, such persons shall designate one of their number to perform the functions of this subsection as can best be performed by one person only, and thereafter such person only shall perform those functions which are assigned by the several persons conducting such hearing.
4) The state engineer will make efforts to provide for and solicit the greatest possible public participation in rulemaking hearings.
5) The state engineer may allow parties to submit evidence not previously submitted under prehearing conference procedures for good cause, such as where necessary for purposes of rebuttal.
6) The state engineer may permit parties or interested persons to submit motions not previously submitted under prehearing conference procedures for good cause shown.
7) The state engineer, after the receipt of the evidence, may allow or require interested persons or parties to present oral or written summations of the facts and the law, either at the hearing or subsequent thereto.
K. Final Agency Action and Posthearing Procedures 1) In adopting any rule or regulation the state engineer shall consider all submissions. The rules or regulations promulgated shall be based on the record, which shall consist of proposed rules, evidence, exhibits, other matters presented or considered, matters officially noticed, rulings on exceptions, and any written briefs filed.
2)(a) Subject to the provisions of this subsection, the state engineer may incorporate by reference in his rules, without publishing the incorporated material in full published rules, standards or guidelines of any nationally recognized agency, association or organization.
b) The state engineer shall maintain certified copies of the complete text of the material incorporated, which 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.
c) The reference to any incorporated material shall identify the incorporated material by appropriate agency, organization, or association and by date, title or citation. The reference shall also state that the rule does not include later amendments to or editions of the incorporated material.
d) The state engineer shall include in any rule which incorporates material by reference the fact that the state engineer, at the address of the Division of Water Resources, will provide information regarding how the incorporated material may be obtained or examined. Code of Colorado Regulations 5 3) After consideration of the relevant matter presented, the state engineer shall include as part of the rules or incorporate by reference in the rules adopted, a written concise general statement of their basis and purpose. The written statement of the basis and purpose of a rule which involves scientific or technological issues shall include a detailed, analytical evaluation of the scientific or technological rationale justifying the rule.
4) When the rule or regulation promulgated by the state engineer will have a fiscal impact on the state or any of its political subdivisions, the state engineer shall include a fiscal statement thereof with the rule or amendment submitted to the Legislative Drafting Office. No rule that has a fiscal impact shall be deemed to be submitted unless it is accompanied by such a fiscal statement. The statement shall include an identification of the types of persons or groups who will bear the costs of the rule and the types of persons or groups who will benefit, directly or indirectly, from the rule.
5) No rule shall be issued by the state engineer unless it is first submitted to the attorney general for his opinion as to its constitutionality and legality. Any rule issued without being so submitted shall be void.
6) Each rule adopted by the state engineer, together with the attorney general's opinion rendered in connection therewith, shall be filed within 10 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.
7) A rule shall become effective 20 days after publication in the Colorado Register of the rule as finally adopted, 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 judicial review purposes.
8) All rules adopted by the state engineer, 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 without being so submitted to the Legislative Drafting Office within 20 days after the date of the attorney general's opinion rendered thereon shall be void. The state engineer shall revise his rules to conform with the action taken by the general assembly.
9) The state engineer shall maintain a copy of his currently effective rules and the current status of each published proposal for rules and minutes of all his actions upon proposed rules, as well as any attorney general's opinion rendered on any adopted or proposed rule, which shall be available for inspection by any person during regular office hours.
10) The state engineer 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 not been completed. Upon request, such copy shall be certified. The state engineer shall charge the statutory fees for supplying any such copy. Except for temporary or emergency rules, such copy shall be in the same format as the rule appears in the Code of Colorado Regulations or the Colorado Register.
11) The state engineer 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 statement, or by oral comment at a hearing.
L. Emergency Rules A temporary or emergency rule may be adopted without compliance with the procedures prescribed in this section and with less than 20 days' notice (or where circumstances imperatively require, without notice) where the state engineer finds that immediate adoption of the rule is imperatively necessary for Code of Colorado Regulations 6 the preservation of public health, safety, or welfare and compliance with the requirements of this section would be contrary to the public interest. Such findings and a 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 3 months from the adoption thereof, unless made permanent by compliance with this section. 1.1.4. Adjudicatory Procedures A. Applicability 1) In order to assure that all parties to any formal adjudicatory proceeding of the state engineer are accorded due process of law, the provisions of this section shall be applicable.
2) The state engineer shall provide the opportunity for a formal public adjudicatory hearing in the following cases:
i) to review state engineer action pursuant to section 37-92-602(3)(e) C.R.S. (1973), on an application for a permit to construct a well pursuant to section 37-92-602, C.R.S. (1973 & 1983 Supp.);
ii) pursuant to section 37-90-137(2), C.R.S. (1973), to determine whether the circumstances of a particular case warrant the issuance of a permit to construct a well at a distance of six hundred (600) feet or less from an existing well;
iii) pursuant to section 37-90-137(3)(c), C.R.S. (1983 Supp.) to determine after hearing whether a well permit should remain in force and effect;
iv) to review state engineer action pursuant to section 37-90.5-106, C.R.S. (1983 Supp.), on an application for a permit to construct a geothermal resource exploration, production or reinjection well;
v) to review state engineer action pursuant to section 37-87-124(3), C.R.S. (1984 Supp.), ordering the removal of any facilities constructed, enlarged or remodeled in violation of section 37-87-124, C.R.S. (1984 Supp.), (S.B. 28, 1984 Colo. Sess. L. at _________________________).
vi) to review state engineer action pursuant to section 37-87-105, C.R.S. (1983 Supp.) approving or disapproving plans for specifications for construction of a reservoir, or the alteration, modification, repair or enlargement of a reservoir or dam which will affect the safety of the structure;
vii) to review state engineer action pursuant to section 37-87-122, C.R.S. (1973), upon an application for construction of an erosion control dam; and viii) to review state engineer action pursuant to sections 35-49-106 and 107, C.R.S. (1973), in approving or disapproving plans and specifications for construction of a live-stock water tank.
B. Requests for Adjudicatory Hearings 1) All requests for adjudicatory hearings must be timely filed pursuant to these regulations and applicable statutory requirements.
2) All requests for adjudicatory hearings shall contain the following information: Code of Colorado Regulations 7 a) identification of the person(s) requesting the hearing and the subject matter of the request;
b) the legal, statutory, and regulatory authority that forms the basis and authority for the request;
c) the basis upon which the applicant believes the state engineer has committed error with respect to the subject matter of the request; and d) an estimate of the time that will be required for the hearing.
C. Notice of Adjudicatory Hearings 1) All formal adjudicatory hearings of the state engineer shall be preceded by written notice thereof in accordance with the requirements of this section.
2) Any person requesting party status in a hearing, including the petitioner(s), shall be given timely notice of the time, place, nature of the hearing, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted.
3) Unless otherwise provided by law, such notice shall be served personally or by mailing by first-class mail to the last address furnished the state engineer by the person to be notified, at least 20 days prior to the hearing.
4) In fixing the time and place for a hearing due regard shall be had for the convenience and necessity of the parties and their representatives.
5) The notice may contain requirements with respect to any special procedures, including requirements for written testimony, which the state engineer deems appropriate as to any particular adjudicatory proceeding.
6) An amended notice may be issued by the state engineer 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 party. If an amendment is substantial and prejudicial, the hearing date shall be continued to an appropriate date as determined by the state engineer.
7) The state engineer 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.
D. Party Status 1) The notice issued pursuant to section 1.1.4.(C)(2) of these regulations shall prescribe a date by which application for party status shall be filed, which will not be less than five (5) days prior to the hearing. Thereafter application to be made a party shall not be granted except upon motion and for good cause shown. In acting upon such a motion the state engineer may impose such conditions upon the movant as are necessary to prevent prejudice to other parties. Any person who requests an adjudicatory hearing shall be granted party status and need not apply therefor.
2) A person who may be affected or aggrieved by the agency action shall be admitted as a party to the proceeding upon filing a timely written request therefor, in accordance with the requirements of this subsection.
3) Application to be made a party shall set forth a brief and plain statement of the reasons for seeking party status, the facts which entitle such person to be admitted, and the matters which such person claims should be decided. In addition it should contain a description of the general nature of the evidence to be presented in the course of the proceedings. Code of Colorado Regulations 8 4) Granting or denial of party status shall be done by the state engineer. Party status may be granted at the prehearing conference or other appropriate time prior to the hearing.
5) Specific members of the staff of the Office of the State Engineer designated by the state engineer shall automatically be a party in adjudicatory proceedings.
6) Nothing in this subsection shall prevent the state engineer from admitting any person as a party to any proceedings for limited purposes.
E. Prehearing Conference 1) The state engineer may specify in the notice of hearing that a prehearing conference will be held. If not, the hearing officer or his counterpart may order, or any person who has applied to become a party may request, in writing, a prehearing conference to be held not less than 5 days in advance of the hearing unless otherwise determined by the state engineer. Notice of any such request shall be served upon all other persons who have applied to become parties. The state engineer or hearing officer may preside at any prehearing conference.
2) At any prehearing conference each party or applicant for party status shall present to the agency and every other party or applicant for party status a prehearing statement, which 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 including a sufficient number of copies for all parties or persons requesting party status, and for the state engineer;
c) a list of witnesses it will call and in the case of lay witnesses a brief summary of the facts to which they will testify, and in the case of an expert witness, the subject matter on which he is expected to testify, and a summary of the facts and opinions to which he is expected to testify;
d) proposed findings of fact and conclusions of law if required by the notice of hearing; and e) all written testimony it will offer into evidence at the hearing.
3) The object of the prehearing conference may include the formulation of stipulations respecting the issues to be raised, and the identification of witnesses and exhibits to be presented by the parties. The parties should make known at the prehearing conference all known 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. A prehearing order shall be prepared by the state engineer, or at his direction by any party, based upon the prehearing conference, which shall reflect any ruling made by the state engineer with respect to procedures to be followed at the hearing or any other matter.
F. Motions The state engineer may require that as part of the prehearing conference or otherwise, parties shall submit in advance of the hearing all motions or requests for rulings that a party intends to make with respect to the proceedings. These shall include motions regarding procedures, the scope and nature of the proceedings, or any other matter that requires a determination by the state engineer prior to final agency action based on the record, or any matter that may reasonably be disposed of by the state engineer prior to the receipt of testimony or other evidence.
G. Discovery Code of Colorado Regulations 9 1) The staff of the Office of the State Engineer or any other party to an adjudicatory hearing or their legal counsel may take depositions and fix the time and place therefor. Such persons may also engage in the other forms of discovery provided by the Colorado Rules of Civil Procedure, to the extent that time is available for such discovery prior to the hearing.
2) The state engineer may dispose of motions relating to discovery.
3) Discovery shall terminate no later than five (5) days prior to the hearing date, except as otherwise ordered by the state engineer in any notice of hearing issued in accordance with section 1.1.4(C).
H. Subpoenas Subpoenas shall be issued without discrimination between public and private parties by the state engineer. A subpoena shall be served by the 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 state engineer may petition any district court, setting forth the service of the subpoena and stating that due notice has been 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 the court. A witness shall be entitled to the fees and mileage provided for a witness in a court of record and such fees and mileage shall be paid by the party requesting issuance of the subpoena.
I. Hearing Officers 1) The state engineer may designate a person or persons pursuant to section 37-80-102(2), C.R.S. (1973), to convene and conduct hearings under these rules on his behalf. Pursuant to section 37- 80-109(2), C.R.S. (1973), the state engineer may designate a hearing officer to convene and conduct hearings under these rules and to make an initial decision on the matter heard. When appropriate, the hearing officer may be an employee of the Division of Water Resources, except that 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 agency.
2) Upon the filing in good faith by a party of a timely and sufficient affidavit of personal bias of a decisionmaker, the state engineer or hearing officer shall forthwith rule upon the allegations in such affidavit as part of the record in the case. A person designated to conduct a hearing may at any time withdraw if he deems himself disqualified or for any other good reason in which case another person or hearing officer may be assigned by the state engineer to continue the hearing, and he shall do so in such manner that no substantial prejudice to any party results therefrom.
3) If the parties are dissatisfied with the person or persons appointed by the state engineer to conduct the hearing or act as hearing officer, they may request the state engineer to appoint another person or person or request that the matter be referred to the Division of Hearing Officers of the Department of Administration for appointment of a hearing officer. Any such request shall be accompanied by a detailed statement of the reasons justifying granting the request including the identity of other parties which support the request and, when referral to the Division of Hearing Officers is requested, the estimated length of the hearing and whether the parties are willing to pay the costs of the hearing.
4) If all parties, except members of the staff of the Office of the State Engineer, consent to the referral of a matter to the Division of Hearing Officers and the unallocated funds appropriated to the state engineer for the payment for such hearings are sufficient to pay the costs of the hearing, then the state engineer shall refer the matter to the Division of Hearing Officers. When the state engineer lacks the funds to pay the cost of a hearing, he need not refer the matter to the Division of Code of Colorado Regulations 10 Hearing Officers unless all parties, except the staff of the Office of the State Engineer, consent in writing to pay all the costs of the hearing. The costs to be paid shall include the expense of the Division of Hearing Officers, travel and per diem for the hearing officer and the cost of recording the hearing.
5) When a matter is referred to the Division of Hearing Officers then the costs of the hearing shall first be paid from the unallocated funds appropriated to the state engineer for that purpose. Any remaining costs shall be shared equally by the remaining parties. Said parties may agree, in writing, to another method of allocating such costs between themselves. In no event shall the state engineer be obligated to pay more than the amount of unallocated and unexpended funds appropriated to him for this purpose.
6) Any person who seeks to be admitted as a party in a proceeding after its referral to the Division of Hearing Officers where the parties are responsible for paying all or part of the costs of the hearing, may agree, if admitted, to the payment of its equal share of the costs of said hearing. If that party refuses to pay its equal share of the costs then, unless otherwise agreed by all parties other than members of the staff of the Office of the State Engineer, the matter shall be referred back to the State Engineer's Office for hearing.
7) All costs of the Division of Hearing Officers to be paid by the parties other than the staff of the Office of the State Engineer, shall be paid to the Division of Hearing Officers in the manner prescribed by it.
J. Conduct of Hearings 1) The state engineer shall have authority to administer oaths and affirmations; sign and issue subpoenas; rule upon offers of proof and receive evidence; dispose of motions relating to the discovery and production of relevant documents and things for inspection, copying, or photographing; regulate the course of the hearing, set the time and place for continued hearings; and fix the time for the filing of briefs and other documents; direct the parties to appear and confer to consider simplification of the issues, admissions of fact or of documents to avoid unnecessary proof, and limitation of the number of expert witnesses; issue appropriate orders which shall control the subsequent course of the proceedings; dispose of motions to dismiss for lack of agency jurisdiction over the subject matter or parties or for any ground; dispose of motions to amend or to dismiss without prejudice applications and other pleadings; dispose of requests for party status, procedural requests, or similar matters; reprimand or exclude from the hearing any person for any improper or indecorous conduct in his presence; and take any other action authorized by agency rule consistent with the APA or in accordance, to the extent practicable, with the procedure in the district courts. In the event more than one person engages in the conduct of a hearing, such persons shall designate one of their members to perform such of the above functions as can best be performed by one person only, and thereafter such person only shall perform those functions which are assigned to him by the several persons conducting such hearing.
2) All parties to the proceeding shall have the right to cross-examine witnesses who testify at the proceeding to the extent necessary for a full and true disclosure of the facts, and to make objections at the proceedings.
3) Except as otherwise provided by statute, in adjudicatory hearings before the state engineer the proponent of the order shall have the burden of proof.
4)(a) In hearings before the state engineer with respect to any alleged violation of a license, if the proceedings are commenced on the motion of the state engineer, then the proponent of the order shall be the staff of the Division of Water Resources. If the proceedings are commenced by the filing with the state engineer of a written complaint signed and sworn by the complainant, the proponent of the order shall be the complainant; Code of Colorado Regulations 11 (b) In hearings on the granting or denial of applications for permits to construct a well pursuant to section 37-92-602, C.R.S. (1973 & 1983 Supp.), proponent of the order shall be the applicant for the permit.
(c) In hearings pursuant to section 37-90-137(2), C.R.S. (1973), to determine whether the circumstances of a particular case warrant the issuance of a permit to construct a well at a distance of six hundred (600) feet or less from an existing well, the proponent of the order shall be the person making application for the permit to construct a well.
(d) In hearings pursuant to section 37-90-137(3)(c), C.R.S. (1983 Supp.) to determine whether a well permit shall remain in force and effect, the proponent of the order shall be the applicant for the well permit or his successor in interest (e) In hearings to review state engineer approval or disapproval of plans and specifications for reservoirs or erosion control dams pursuant to section 37-87-105 or 122, C.R.S. (1973 & 1983 Supp.), the proponent of the order shall be the person seeking state engineer approval of plans and specifications;
(f) In hearings to review state engineer action on applications to construct a geothermal resource exploration, production or reinjection well pursuant to section 37-90.5-106, C.R.S. (1983 Supp.), the proponent of the order shall be the applicant for the permit; and (g) In hearings to review state engineer action pursuant to sections 35-49-106 and 107, C.R.S. (1973), on plans and specifications for the construction of livestock water tanks, the proponent of the order shall be the person seeking approval of the plans and specifications.
5) Every party to the proceeding shall have the right to present its case or defense by oral and documentary evidence and to submit rebuttal evidence and to conduct such 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 thereby, a person conducting a hearing may receive all or part of the evidence in written form.
6) The rules of evidence and requirements of proof shall conform, to the extent practicable, with those in civil nonjury 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 person so conducting the hearing 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 state engineer shall give effect to the rules of privilege recognized by law. He may exclude incompetent and unduly repetitious evidence. 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.
7) The state engineer may utilize his experience, technical competence, and specialized knowledge in the evaluation of the evidence presented to it.
8) The state engineer may take notice of general, technical, or scientific facts within his knowledge, but only if the fact so noticed is specified in the record or is brought to the attention of the parties before final decision and every party is afforded an opportunity to controvert the fact so noticed.
9) Any party, or the agent, servant, or employee of any party, permitted or compelled to testify or to 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 Code of Colorado Regulations 12 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 therefor, to procure a copy of the transcript of his or her testimony if it is recorded. Any party, upon payment of the statutory copying fees therefor, shall be entitled to procure a copy of the transcript of the record or any part thereof. If a transcription of the record has not previously been prepared, then upon payment of reasonable preparation charges it shall be furnished to the party requesting it.
10) 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 agency proceeding or action, with a statement of the grounds therefor.
11) The state engineer shall cause the proceedings to be recorded by a reporter or by an electronic recording device. When required, the state engineer shall cause the proceedings, or any portion thereof, to be transcribed, the cost thereof to be paid by the Division of Water Resources when it orders the transcription. If the division acquires a copy of the transcription, its copy of the transcription shall be made available to any party at reasonable times for inspection and study.
12) The person conducting the hearing may allow the parties to submit evidence not previously submitted under prehearing conference procedures, but only for good cause shown such as where necessary for purposes of rebuttal.
13) All hearings shall be conducted in the following order unless otherwise directed by the state engineer or unless as otherwise provided in rule 1.1.4(J)(4):
a) call to order, introductory remarks, and action on applications for party status;
b) presentation of any stipulations or agreements of the parties, prehearing statements, proposed findings of fact, proposed conclusions of law, the prehearing order, and any other matter which was addressed at the prehearing conference;
c) opening statement by the party upon whom the burden of proof rests;
d) opening statements by all other parties;
e) presentation of case-in-chief by party upon whom burden of proof rests;
f) presentation by all other parties wishing to offer evidence, in the order to be determined by the presiding officer at the hearing;
g) rebuttal by the party upon whom the burden of proof exists;
h) closing statement by party upon whom the burden of proof rests;
i) closing statements of all other parties.
j) At the conclusion of any witness's testimony, or at the conclusion of the party's entire presentation, as may be determined by the state engineer, all other parties may then cross-examine such witness or witnesses. The order of cross examination shall be determined by the person conducting the hearing. The state engineer may examine any witness.
k) At the discretion of the state engineer, any person, not a party to the proceedings who wishes to present testimony may do so by indicating his or her desire in writing. 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 Code of Colorado Regulations 13 opportunity to respond to nonparty evidence in a manner deemed appropriate by the state engineer to avoid prejudice.
l) All briefs and memoranda of law which parties file shall be served on the state engineer and all parties and persons who have applied for party status five (5) days prior to the hearing, unless otherwise specified.
13) No ex parte communications with or by the state engineer may occur during the pendency of an adjudicatory proceeding, but the state engineer by letter, copy to all parties, may request that certain information be provided to him or that certain tasks shall be performed.
14) The state engineer, 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.
K. Final Agency Action 1) The state engineer shall proceed with reasonable dispatch to conclude any matter presented to him with due regard for the convenience of the parties or their representatives, giving precedence to rehearing proceedings after remand by court order.
2) The decision by the state engineer or initial decision 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, rulings upon exceptions, any findings of fact and conclusions of law proposed by any party, and any written brief filed.
3) In any case in which the state engineer has conducted the hearing, he shall prepare, file, and serve upon each party its decision. In any case in which a hearing officer has conducted the hearing, the hearing officer shall prepare and file an initial decision which the state engineer shall serve upon each party, except where all parties, with consent of the state engineer, have expressly waived their right to have an initial decision rendered by such 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. In the absence of an appeal to the state engineer by filing exceptions within 30 days after service of the initial decision of the hearing officer upon the parties, unless extended by the state engineer, or a review upon motion of the state engineer within 30 days after service of the initial decision of the hearing officer, every such initial decision of a hearing officer shall thereupon become the decision of the state engineer. In such case the evidence taken by the hearing officer need not be transcribed.
4) Any party who seeks to reverse or modify the initial decision of the hearing officer shall promptly file with the state engineer a designation of the parts of transcript of the proceedings which shall be prepared and advance the cost therefor. A copy of this designation shall be served on all parties. Within ten days thereafter, any other party or the state engineer may also file a designation of additional parts of the transcript of the proceedings which are to be included and advance the cost therefor. The transcript or the parts thereof which may be designated by the parties or the hearing officer 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 state engineer. No transcription is required if the state engineer's review is limited to a pure question of law. The state engineer 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.
Code of Colorado Regulations 14 5) The findings of evidentiary fact, as distinguished from ultimate conclusions of fact, made by the hearing officer shall not be set aside by the state engineer on review of the hearing officer's initial decision unless such findings of evidentiary fact are contrary to the weight of the evidence. The state engineer may remand the case to the hearing officer for such further proceedings as he may direct, or he may affirm, set aside, or modify the order or any sanction or relief entered therein, in conformity with the facts and the law.
6) Each decision and initial decision shall be served on each party by personal service or by mailing by first-class mail to the last address furnished the state engineer by such party and shall be effective as to such party on the date mailed or such later date as is stated in the decision.
7) A party seeking judicial review of agency action may apply to the state engineer to postpone the implementation date of the agency action. The state engineer, upon a finding that irreparable injury would otherwise result, shall postpone the implementation date of the agency action pending judicial review. Postponement of the implementation date of an agency action does not stay the time for seeking judicial review and does not constitute agency agreement to grant a hearing, rehearing or reconsideration as provided for in rule 1.1.6. 1.1.5. Declaratory Orders A. Any person may petition the state engineer for a declaratory order to terminate controversies or to remove uncertainties as to the applicability to the petitioner of any statutory provision or of any rule or order of the state engineer. Such petitions shall not relate to the manner in which a statutory provision or rule is being applied.
B. The state engineer will, after consideration of the materials submitted, determine whether to rule upon the merits of any such petition.
C. In determining whether to rule upon a petition filed pursuant to this rule, the following matters will be considered among others:
1) Whether a ruling on the petition will terminate a controversy or remove uncertainties as to the applicability to petitioner of any rule or order of the state engineer or any statutory provision.
2) Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the state engineer.
3) Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the state engineer or a court but not involving any petitioner.
4) Whether the petition seeks a ruling on a moot or hypothetical question or will result in an advisory ruling or opinion.
5) Whether the petitioner has some other adequate legal remedy, other than an action for declaratory relief pursuant to rule 57, Colo. R. Civ. P., or section 13-51-101 et seq., C.R.S. (1973 & 1983 Supp.), which will terminate the controversy or remove any uncertainty as to the applicability to the petitioner of the statute, rule or order in question.
D. Any petition filed pursuant to this rule shall set forth the following:
1) the name and address of the petitioners;
2) the statute, rule or order to which the petition relates; and Code of Colorado Regulations 15 3) a concise statement of all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner.
E. If the state engineer determines that he will rule on the petition, the following procedures shall apply:
1) The state engineer may dispose of the petition without conducting an evidentiary or other hearing. In such a case:
2) The state engineer may set the petition, upon due notice to petitioner, for a nonevidentiary hearing.
3) The state engineer may request the petitioner to submit additional facts, in writing. In such event, such additional facts will be considered as an amendment to the petition.
4) The state engineer may take administrative notice of facts pursuant to the APA and may utilize his experience, technical competence and specialized knowledge in the disposition of the petition.
5) If the state engineer rules upon the petition without a hearing, he shall promptly notify the petitioner of his decision.
6) The state engineer may, in his discretion, set the petition for hearing, upon due notice to petitioner, for the purpose of obtaining additional facts or information or to determine the truth of any facts set forth in the petition or to hear oral argument on the petition. The notice to the petitioner setting such hearing shall set forth, to the extent known, the factual or other matters into which the state engineer intends to inquire. For the purpose of such a hearing, to the extent necessary, the petitioner shall have the burden of proving all of the facts stated in the petition, all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner and any other facts the petitioner desires the state engineer to consider.
F. The state engineer may consolidate for determination petitions raising similar issues of fact or law.
G. The parties to any proceeding pursuant to this rule shall be the petitioner and, where appropriate, the Division of Water Resources staff.
H. Any declaratory order or other order disposing of a petition pursuant to this rule shall constitute agency action subject to judicial review pursuant to section 24-4-106, C.R.S. (1973 & 1982 Supp.).
1.1.6 Reconsideration
A. Reconsideration of Agency Adjudicatory Action Upon Motion of a Party 1) During the time permitted for seeking judicial review of any final order of the state engineer rendered in any agency adjudicatory proceeding, any party directly affected by such order or determination may apply to the state engineer, as appropriate, for a hearing or rehearing with respect to, or Code of Colorado Regulations 16 reconsideration of, such order or determination. The determination by the state engineer whether to grant or deny the application for a rehearing, or reconsideration shall be made within 10 days after receipt by the state engineer of such application.
2) If the application for a hearing, 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 state engineer 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.
3) If the application for a rehearing, or reconsideration is denied, the order or determination to which such application pertains shall be considered final agency action as of the date specified in section 1.1.4(K)(6). 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.
4) The decision to grant or deny a hearing, rehearing or reconsideration pursuant to this section is not subject to judicial review.
B. Reconsideration of Rulemaking Action Reconsideration of rulemaking action of the state engineer may be sought in accordance with the provisions of section 1.1.3(B)(2) pertaining to petitions for rulemaking. Any such request shall be evaluated according to the established regulations and policies of the state engineer where applicable, and may be granted for good cause. Such a request 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 request is not itself final agency action subject to judicial review.
1.1.7 Definitions
A. The definitions of terms used in these regulations shall be in accordance with the APA, and other applicable regulations of the Division of Water Resources unless the context requires otherwise.
B. Application for a permit to construct a well: Application for a permit to construct a well under section 37-92-602, C.R.S. (1973 & 1983 Supp.), shall include applications to relocate a well.
C. State Engineer: Unless the context otherwise requires, as used herein this term shall refer to the state engineer, any hearing officer or acting on his behalf, or any person acting on his behalf pursuant to section 37-80-102(2), C.R.S. (1973).
1.1.16 Effective Date
These regulations shall become effective on May 31, 1984. They shall apply to any rulemaking or other proceedings, except adjudicatory hearings, as to which public notice is issued after the effective date. With respect to all adjudicatory hearings, these regulations shall apply to any matter on which a hearing is requested or which is initiated by the state engineer after the effective date. _________________________________________________________________________ Editor’s Notes History Code of Colorado Regulations 17