DEPARTMENT OF NATURAL RESOURCES Colorado Parks and Wildlife CHAPTER 16 - PROCEDURAL RULES FOR THE WILDLIFE COMMISSION 2 CCR 406-16 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ ARTICLE 1 - MEETINGS #1601 - Conduct of Meetings See Article 4 of Title 24, CRS, for rule making and other applicable meeting and hearing requirements A. Regular Meetings 1. Public Presentation - In addition to normally scheduled opportunities to testify on matters before the Commission, persons or groups wishing to participate in a regular Commission meeting may request to be placed on the agenda by submitting a written request to the Director at least 30 days before the meeting. The public may participate during the meeting at the discretion of the Chairman or president officer.

B. Adjudicatory Hearings 1. Review of Game Damage Settlements and Claim Denials See § § 33-3-101 to 204, CRS, for additional detail and requirements a. Game Damage Claims Settled by Agreement Between Claimants and the Division

1. 1) Only settlements of game damage claims equaling or exceeding $5,000 in total value must be reviewed by the Commission, and then only where the damage is something other than forage loss to wild ruminants on privately owned or leased private land. All other settlements may be paid by the Division without Commission review.
2. 2) Review will be based on the written materials and documentary evidence provided to the Commission by the Division and, unless the Commission directs otherwise, there will be no oral presentations or further submittals to the Commission on the settlement.
3. 3) Except as may otherwise be directed by the Commission, game damage settlements will be reviewed at the next regular meeting of the Commission following their receipt, provided the settlement, together with its supporting materials and documentation, is received by the Commission at least thirty days prior to the

b. Game Damage Claims Recommended for Denial by the Division

1. 1) Any claimant seeking or otherwise requiring Commission review of a game damage claim recommended for denial by the Division, or a game damage claim where the claimant and the Division have otherwise failed to reach a settlement, shall file a written request for review with the Commission. The requirement for a written request for review applies to all claimants, including claimants that have waived arbitration of a forage loss to wild ruminants on privately owned or leased private land. Such request for review shall be mailed to the Commission within ten (10) days of claimant’s receipt of the Division’s written notice of denial or offer of settlement unacceptable to the claimant.
2. 2) The request for review shall include:
   1. a. the claimant’s name, address and telephone number;
   2. b. a narrative statement of the claim, including the amount at issue and a complete statement of the factual and statutory basis supporting payment of the claim as requested;
   3. c. copies of the ten (10) day notification(s) and proof of loss filed with the Division;
   4. d. copies of the written documentation submitted with, and in support of, the proof of loss;
   5. e. any other documentary evidence supporting the claim or disputing the grounds stated as the basis for the Division’s action in its notice of denial or offer of settlement, including photographs, and;
   6. f. any other written materials supporting the claim or disputing the grounds stated as the basis for the Division’s notice of denial or offer of settlement, including signed statements by third party witnesses.
3. 3) Commission review will be based on the request for review and any written materials or documentary evidence provided to the Commission by the Division in response to the request for review submitted by the claimant, and unless the Commission directs otherwise, there will be no oral presentations or further submittals to the Commission.
4. 4) Except as may otherwise directed by the Commission, such claims will be reviewed at the next regular meeting of the Commission following their receipt, provided the request for review is received by the Commission at least thirty days prior to the

2. License Suspension Appeals See § 33-6-106, CRS for additional detail and requirements a. All license suspensions will be heard initially and decided by the Commission’s hearing examiner. A copy of the hearing examiner’s initial decision shall be sent to the licensee by certified mail, return receipt requested, to the last known address of such person. The hearing examiner’s decision shall advise him or her of the right to appeal that decision to the Commission. Any person seeking or otherwise requiring Commission review of the hearing examiner’s decision shall file a written request for review with the Commission (and provide a copy to the hearing examiner). Such request for review shall be mailed to the Commission within thirty (30) days of receipt of the hearing examiner’s decision. If a timely appeal is not made to the Commission, the hearing examiner’s decision shall become effective as of (1) the date stated therein (in no event sooner than 35 days after the issuance of such decision) or (2) the date of licensee’s receipt of the decision or of attempted delivery to the licensee’s last known address, whichever is later. If a timely appeal is made to the Commission, the hearing examiner shall send notice to the licensee of the date of their scheduled hearing before the Commission and advise that the hearing examiner’s initial decision to suspend is automatically stayed pending Commission review and final action.

b. The request for review shall include:

1. 1) the person’s name, address, telephone number and case file number;
2. 2) a narrative statement of the person’s position, including a complete statement of the factual and statutory basis supporting relief from the decision of the hearing examiner and the relief requested;
3. 3) copies of any written documentation or documentary evidence submitted to the hearing examiner;
4. 4) copy of the hearing examiner’s decision, including the findings of fact and conclusions of law, and;
5. 5) a copy of the transcript of the hearing on the suspension of license privileges conducted by the hearing examiner. The person requesting review shall be responsible for the production of the transcript.

c. Commission review will be based on the request for review and any additional written materials and documentary evidence provided to the Commission by the hearing examiner in response to the request for review, and unless the Commission directs otherwise, there will be no oral presentations or further submittals to the Commission.

d. Except as may otherwise be directed by the Commission, license suspensions will be reviewed at the next regular meeting of the Commission following their receipt, provided the request for review is received by the Commission at least thirty days prior to the meeting. The decision of the Commission shall become effective the date of the licensee’s receipt of the decision or the date of attempted delivery to the licensee’s last known address.

e. Written notice of the final decision of the commission shall be sent to the licensee by certified mail, return receipt requested, to the last known address of such person. The notice shall advise the licensee that he or she may appeal the Commission’s suspension decision to the state district court as provided in § 24-4-106, C.R.S., by bringing an action for judicial review within 30 days after such action becomes effective. If such judicial action is initiated, the licensee may contemporaneously apply in writing to the Commission (and provide a copy to the hearing examiner) for a stay of the license privileges suspension pending review and final action by the district court. If requested, the Commission shall automatically grant such stay.

3. Review of Petitions for Declaratory Orders See § § 24-4-105(11), CRS for additional detail and requirements a. Any person may petition the Commission for a declaratory order to terminate a controversy or to remove uncertainty as to the applicability to the petitioner of any statutory provision or any rule or order of the Commission.

b. The petition must be in writing and shall include:

1. 1) the petitioner's name, address and telephone number, 2) the statutory provision, rule or order at issue;
2. 3) a narrative statement of all facts necessary to show the nature of the controversy or uncertainty and the manner in which the statutory provision, rule or order applies or potentially applies to the petitioner;

c. The Commission will determine, in its discretion and without notice to the petitioner, whether to rule upon the petition.

d. Commission review, if any, will be based on the petition and any additional written materials and documentary evidence provided to the Commission by the Division in response to the petition, and unless the Commission directs otherwise, there will be no oral presentations or further submittals to the Commission.

e. Except as may otherwise be directed by the Commission, petitions for declaratory orders will be reviewed at the next regular meeting of the Commission following their receipt, provided the petition is received by the Commission at least thirty days prior to the f. The petitioner will be notified of the Commission's action on the petition and the reasons for such action.

4. All Other Adjudicatory Hearings See § § 24-4-105 and 33-1-111, CRS for additional detail and requirements a. Unless the Commission directs otherwise, all other adjudicatory matters within the jurisdiction of the Commission will be heard initially and decided by an administrative law judge within the Division of Administrative Hearings.

b. Any person requesting an adjudicatory hearing on a matter within the jurisdiction of the Commission shall file a written request for a hearing with the Commission.

c. The request for an adjudicatory hearing shall include:

1. 1) the person's name, address and telephone number;
2. 2) a narrative statement of the person's position, including a complete statement of the factual basis and legal justification for any relief requested;
3. 3) copies of any written documentation or documentary evidence supporting the person's position;

d. Except as may otherwise be directed by the Commission, requests for adjudicatory hearings will be reviewed at the next regular meeting of the Commission following their receipt, provided the request is received by the Commission at least thirty days prior to the meeting. There will be no oral presentations to the Commission.

e. The person will be notified of the assignment of the matter to the Division of Administrative Hearings or whether the Commission will hear the matter itself.

f. All further proceedings will be conducted in accordance with § § 24-4-105, CRS ARTICLE II - IMPLEMENTATION OF HB 1158 #1602 - PURPOSE AND SCOPE These rules govern administrative proceedings pursuant to the Commission's obligations under House Bill 1158 as described by Section 37-60-122.2 CRS and Section 5 of Chapter 266, Session Laws of Colorado 1987. This Act, dated July 13, 1987, directs the Wildlife Commission (Commission) and the Water Conservation Board (Board) or the Governor to determine an official State position on a wildlife mitigation plan submitted by an applicant proposing to construct, operate or maintain a water project requiring federal approval. It also establishes State grants to assist in paying for wildlife mitigation and/or enhancement measures. These rules are written to be compatible with the Board's “Rules and Regulations for the Implementation of Colorado's Fish and Wildlife Mitigation and Enhancement Grant Program.”

These rules apply to all actions required by and taken pursuant to Section 37-60-122.2 CRS, (1984 and 1987 Supp.) and Section 5 of Chapter 266, Session Laws of Colorado 1987. These rules apply to all applicants who file an application for, or receive a permit for, a proposed water project on or after July 13, 1987.

These rules do not apply to the Animas-La Plata Project, the Two Forks Dam and Reservoir Project, the Homestake Water Project or to any project which is eligible for a nationwide permit pursuant to Section 404 of the Federal Clean Water Act or to any project, except reservoirs, which requires an individual permit pursuant to Section 404 of the Federal Clean Water Act unless the applicant elects to submit a wildlife mitigation or enhancement plan.

These rules do not apply to actions concerning or carrying out other statutory responsibility of the Commission.

#1603 - DEFINITIONS A. Applicant means any person or entity proposing to construct a water diversion, delivery or storage facility in the state of Colorado requiring an application for a permit, license, or other approval from the United States.

B. Approval means any form of approval which is required from the United States prior to the construction of a project.

C. Board means the Colorado Water Conservation Board.

D. Commission means the Colorado Wildlife Commission.

E. Construction Costs means the best estimate of the physical construction costs of the project as fixed by the Board as of the date of the grant application. Costs are limited to design, engineering and physical construction and will not include the costs of planning, financing, and environmental documentation, mitigation costs, legal expenses, site acquisition or water rights.

F. Construction Fund means the Board's construction fund as established by Section 37-60-121, CRS.

G. Division means the Colorado Division of Wildlife and, when necessary, it may be construed as referring to the Commission.

H. Enhancement means the improvement of the total value of fish and wildlife resources affected by the project beyond that required by mitigation and beyond that which would occur without the project.

I. Enhancement Grant means a sum of money or other remuneration awarded to the applicant by the Board, to pay for the State's contribution to the implementation of an enhancement plan.

J. Enhancement Plan means a document describing the measures to be completed by the applicant which will enhance fish and wildlife resources beyond that which would occur without the project. It includes a cost estimate for the implementation of the plan and a schedule for completion.

K. Fish and Wildlife Resources Account means the account established in the Board's Construction Fund to provide funding for mitigation and enhancement grants.

L. License means any license which is required from the United States prior to the construction of a project.

M. Mitigation means any action or measures taken to address undesirable project impacts on fish and wildlife resources which may be accomplished in several ways, including reducing, minimizing, rectifying, compensating, or avoiding impacts.

N. Mitigation Grant means a sum of money or other remuneration awarded to the applicant by the Board to pay for the State's contribution to the implementation of a mitigation plan.

O. Mitigation Plan means a document describing the measures to be completed by the applicant which will mitigate losses to fish and wildlife resources resulting from the project. It includes a cost estimate for the implementation of the plan and a time schedule for completion.

P. Notice means the date the Division receives documents required of an applicant for a mitigation plan.

Q. Permit means any permit, other than a nationwide 404 permit, which is required from the United States prior to the construction of a project.

R. Project means a water diversion, delivery, or storage facility or facilities, and any combination thereof, together with all associated and appurtenant project works.

S. Water diversion, delivery or storage facility means any structure or structures built for the purpose of diverting or transporting water from a stream, lake or reservoir, on or off channel, to any type of a supply system, or any structure built for the purpose of storing water for subsequent application to beneficial use.

#1604 - PROCEDURES FOR ARRIVING AT AN OFFICIAL STATE POSITION ON MITIGATION A. Requirement of Applicants 1. An applicant proposing to construct a water project requiring an application for a federal permit, license, or other approval as described in #1602 shall advise the Division and the Board, in writing, within five working days of submission of an application for federal permit, license or other approval, and provide each agency with a copy of the application and all materials cited in, referenced in, or submitted with the application.

2. When the applicant has prepared a wildlife mitigation plan which is ready for Commission evaluation, the applicant shall give notice to the Commission by submitting 15 copies of the plan to the Division, five of which are to be submitted to the appropriate Division Regional office and ten to the Denver headquarters office; and 15 copies to the Board. The following information shall be prepared within the time sequence and framework of established federal environmental impact review requirements. The mitigation plan shall include:

a. A description of the project.

b. An estimate of construction costs.

c. An assessment of the fish and wildlife resources impacted by the project, measures to mitigate the losses to fish and wildlife resources, a time schedule, and the costs and benefits of the plan.

1. 1) A wildlife impact assessment identifies, predicts the direction and magnitude of, and evaluates and communicates the significance of a project as it affects wildlife. The assessment is dependent upon baseline data that provides an overview of the wildlife resources and related conditions as they currently exist in the area. It also provides a basis for analyzing and determining the extent and scope of project impacts, or its alternatives, to wildlife. The assessment is an integral part of the environmental impact assessment process and is not intended to be separate from or beyond the scope of that process.
2. 2) Decisions regarding such things as study design, period of study, and responsibility for data collection and costs should be approached on a case by case basis and agreed to through interagency review at the initiation of the environmental assessment process.
3. 3) The wildlife impact assessment and recommendations for mitigating losses will be based upon a systematic evaluation of fish and wildlife resources and habitats using the best available scientific information and professional judgment. The plan will contain an estimated cost and assignment of development, operation and maintenance of the mitigation measures and a monitoring plan.
4. 4) Where possible, impacts to wildlife and habitat will be separated into the following categories: direct and indirect; on-site and off-site; public lands and private lands; and cumulative impacts. In the disclosure of predicted impacts, each category may have separate mitigation measures associated with it, which when assembled make up a mitigation plan.
5. 5) Normally, mitigation should occur concurrently with or prior to project development, be proportional to impacts, and last for the entire period in which impacts to wildlife resources persist as federal, state and local laws and regulations provide.

B. Commission Action 1. Upon receipt of all the information required in #1604.A.2. the Division will respond, within ten working days, to the applicant with a written acknowledgment that the necessary documents have been received. The date of receipt by the Division is the official date of notice to the Division and the 60 calendar day review period will be initiated culminating in a Commission recommendation for a State position.

2. Within 60 calendar days after an applicant gives notice by submitting a mitigation plan to the Division, unless extended in writing by the applicant, the Commission will make its evaluation of the project's impact on fish and wildlife resources and submit its recommendation to the Board.

3. The Commission will make its evaluation regarding the probable impact of the proposed project on fish and wildlife resources and their habitat based on the information submitted pursuant to #1604.A.2. The Commission may consider the following criteria in making their recommendation that the mitigation plan is economically reasonable and reflects a balance between protecting the fish and wildlife resources and the need to develop the state's water resources:

a. The value and significance of the affected wildlife resource.

b. The potential impacts of the project and its alternatives to wildlife.

c. The availability of best existing technology to implement and monitor the success of the mitigation plan.

d. The degree to which the identified impacts are mitigated and the permanence of desired effects of the mitigation measures.

e. The cost of the planned mitigation in comparison to the benefits to the affected wildlife resource.

f. The net benefits of the project and its mitigation plan to the state's wildlife resources.

g. The consistency of wildlife mitigation with other environmental and conservation goals.

h. The legal ramifications of state water law on implementing the proposed mitigation measures.

4. If the Commission and the applicant agree upon a mitigation plan, the Commission shall recommend that the Board adopt the plan at its next meeting as the official state position on the mitigation action required of the applicant.

5. When the Commission and the applicant do not agree upon a mitigation plan, the Commission shall transmit to the Board 15 copies of its report which shall include (1) its evaluation of the project's impact on fish and wildlife, (2) its mitigation recommendations, including an estimate of the costs and benefits of its plan, and (3) its analysis of the applicant's mitigation plan. Documentation will include the significance of the fish and wildlife resources impacted by the project and a comparison of the impacts to the fish and wildlife resources resulting from both plans. #1605 - Procedures for Granting an Enhancement Grant A. Requirements of Applicants Any applicant who can demonstrate that the project will enhance fish and wildlife resource values over and above existing levels may apply, within two years after the adoption of the official State position on mitigation, for an enhancement grant by submitting ten (10) copies of an enhancement plan to the Division's Denver office and five (5) copies to the appropriate regional office. The enhancement plan will include:

1. A time schedule for construction of the project and Implementation of the mitigation measures.

2. Any significant changes in the project and/or the mitigation plan.

3. A time schedule for the implementation of the enhancement measures.

4. A cost estimate of Implementing the enhancement plan.

5. An analysis of the plan's benefits to fish and wildlife.

6. Desired results of the enhancement plan.

7. Impact of the enhancement measures on the surrounding environment.

8. A cost estimate and assignment for the operation and maintenance of the enhancement measures.

9. A plan to monitor the effectiveness of the enhancement measures.

B. Commission Action 1. The Commission will review the applicant's enhancement plan according to the requirements defined In #1605 A If the Commission approves the applicant's plan it will submit a report to the Board approving the enhancement plan, evaluating the plan's contribution to the state's fish and wildlife resources, approving the cost estimate, and committing the Commission to contribute one-half of the costs. Commission concurrence of the enhancement plan is required before the Board can consider an enhancement grant 2. If the Board agrees to fund the enhancement plan, the Commission will enter into a contract among the Commission, the applicant, and the Board, prior to the disbursement of the enhancement grant ARTICLE III - Vacant ARTICLE IV - REFUNDS, REIMBURSEMENT AND RESTORATION OF PREFERENCE POINTS #1670 - Refunds and Restoration of Preference Points [Eff. 07/01/2007] See also § § 33-4-102 (6) for statutory provisions related to refunds A. General Refund Procedures - Except as provided herein, anyone may request and be given a refund for a license prior to the start of the season for which the license was issued. Requests must be postmarked prior to the opening day of the season for which the license was issued.

1. All refunds shall be requested on a form provided by or in the format requested by the Division.

2. All requests for license refunds must be accompanied by the entire license and carcass tag when applicable.

3. Refunds may be requested by mail or in person at any division of wildlife area or regional office or at the Denver headquarters office.

4. Refunds shall only be issued to the person whose name appears on the license.

5. Licenses purchased through non-Division of Wildlife license agents will be refunded at cost less license agent fee.

6. No refunds shall be made on any special licenses listed in 33-4-102(2), C.R.S., or any auction or raffle licenses as provided for in 33-4-116 or 33-4-116.5, C.R.S., or to any person whose license privileges have been suspended by the Wildlife Commission.

7. Except for bighorn sheep, mountain goat, moose, public Ranching for Wildlife antlered and either-sex deer and elk, and buck and either-sex pronghorn, limited licenses that are returned for refund will not be reissued, unless there are existing leftover licenses for the same hunt code at the time the license is returned.

8. Requests for refunds after the opening of the season will be accompanied by sufficient evidence demonstrating that the license has not been used and circumstances precluded the licensee from being able to use the license. In addition, to be eligible for a refund the failure to apply for a refund before the opening day of the season for which the license was issued cannot be due to a lack of diligence on the part of the licensee. The Division of Wildlife’s License Administration Manager will render a decision on the refund request on behalf of the Division and the Wildlife Commission and such decision shall constitute final agency action. Circumstances for which reimbursement will be considered shall be limited to:

1. a. Extreme medical circumstances involving the license holder.
2. b. Death of the license holder or death of a license holder’s immediate family member. However, in no event shall a refund be made where the request for refund is submitted more than thirty (30) days after the opening of the season for which the license was issued or more than thirty (30) days after the date of purchase of the license. In case of conflict the least restrictive time limit shall apply. Proved further that the 30-day time limit will be extended for members of the United States armed forces whose military service requirements precluded their application for a refund within said period or for refunds as described below.

B. Other Refunds 1. Refunds or antlerless licenses may be issued in any unit approved by the Division for the same species in the same year to hunters who harvest a deer, elk or moose in which Chronic Wasting Disease (CWD) is detected through the Division’s CWD monitoring or testing programs. Where there is no open season or insufficient time remains to reasonably exercise the benefits of a license granted in the same year, the Division may issue the licensee an antlerless license for the same species in the following year in the same Game Management Unit where the CWD detected animal was harvested, or if antlerless hunting is not permitted in the applicable GMU, the Division may designate a substitute GMU. If the season closes prior to October 31 in the unit, the license will be valid through October 31. The provisions of this regulation shall apply to any hunter who harvests a moose after January 1, 2006 in which CWD is detected. Licenses issued pursuant to this provision shall not be considered part of the quota otherwise established by the Commission for that GMU.

C. Restoration of Preference Points 1. License preference points used to obtain the license will not be restored except as follows:

1. a. Prior to the opening of the season preference points may be restored to the pre- drawing level in lieu of a refund at the licensee’s request.
2. b. After the opening of the season, the License Administration Manager may restore preference points to the pre-drawing level in lieu of a refund for:
   1. 1. Extreme medical circumstances involving the license holder; or 2. Death of a license holder’s immediate family member. #1671 - Reimbursement for processing costs associated with CWD positive animals [Eff. 07/01/2007]

A. Costs incurred for processing CWD positive animals 1. Hunters may request reimbursement from the Division for the reasonable costs actually incurred when processing any animal that:

1. a. receives a positive test result from a USDA approved contract laboratory using a USDA approved test;
2. b. is untestable as a result of any act or omission of the Division; or c. is untestable for any reason and was required to be submitted for testing by regulation.

2. All requests for reimbursement shall be submitted on the forms provided by the Division and accompanied by receipts supporting the amount of reimbursement requested, except that reimbursement for processing shall be allowed without receipts in the amount of $50. Reimbursement with receipts is limited to no more than $100 per animal for private processing supplies or $200 per animal for commercial processing except for moose. The maximum reimbursement for commercial processing for moose is $250.00. ARTICLE V - MILITARY PREFERENCE #1672 - Award Of Preference Points And Leftover License Priority For Members Of The Military Called On Active Duty In Support Of Operation Iraqi Freedom A. Expired. (Senate Bill 05-183, 28 CR 7)

_____________________________________________________ Editor’s Notes History Chapter 16 recodified as 2 CCR 406-16 on 04/01/2009; for history and versions prior to 04/01/2009, see 2 CCR 406-10.

#1601.A – B.2 eff. 11/01/2012.