2 Colo. Code Regs. § 402-5-10

Current through Register Vol. 47, No. 20, October 25, 2024

Rule 2 CCR 402-5-10 - Adjudicatory Procedures

A. Scope and 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 apply. § 24-4-105(1), C.R.S. Also, and in general, the Colorado Rules of Civil Procedure shall apply to all adjudicatory hearings. In complex litigation matters the State Engineer or Hearing Officer may apply Rule 11 of the Uniform Local Rules for All State Water Divisions requiring meeting of experts within the scope of disclosure, including applicable deadlines as determined by the Hearing Officer.

2. Whenever the State Engineer conducts a formal, public adjudicatory hearing, the provisions of this rule shall apply.

3. The State Engineer shall provide the opportunity for a formal public adjudicatory hearing in the following cases:

a. To consider the revocation, suspension, annulment, limitation, or modification of a previously issued License or permit under § 24-4-104, C.R.S.;

b. To review State Engineer action under § 37-87-124(3), C.R.S., ordering the removal of any facilities constructed, enlarged or remodeled in violation of § 37-87-124, C.R.S.;

c. To review State Engineer action concerning small capacity wells under § 37-90-105(6)(a), C.R.S.;

d. To determine under § 37-90-137(2)(b)(II), C.R.S., 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, unless no hearing is required for the one of the reasons listed in §§ 37-90-137(2)(b)(II)(A) -(E); or

e. In any case for which an administrative hearing is required by existing or subsequent statutory law or by existing or subsequent rules lawfully promulgated by the State Engineer.

4. In his sole discretion, the State Engineer may provide the opportunity for a formal public adjudicatory hearing in the following cases:

a. To review State Engineer action under §§ 35-49-106, 35-49-107, and 35-49-108, C.R.S., in approving or disapproving plans and specifications for construction or the completed construction of a livestock watering tank;

b. For a Division Engineer to address issues regarding loans of agricultural rights to the Colorado Water Conservation Board under § 37-83-105(2)(b)(VI), C.R.S.;

c. To review State Engineer action under § 37-87-105, C.R.S., approving or disapproving plans for specifications for construction of a reservoir, or alteration, modification, repair or enlargement of a reservoir or dam which will affect the safety of the structure;

d. To review State Engineer action under § 37-87-122, C.R.S., upon an application for construction of an erosion control dam;

e. To review State Engineer action under § 37-87-124(3), C.R.S., ordering the removal of any facilities constructed, enlarged or remodeled in violation of § 37-87-124, C.R.S.;

f. To review State Engineer action under § 37-90-110, C.R.S. regarding the administration and enforcement, conservation of groundwater resources, and the protection of vested rights when acting in the State Engineer's own capacity and not as the executive director of the Ground Water Commission;

g. To review the State Engineer's action under § 37-90-137(2)(b)(I), C.R.S., regarding well permit applications;

h. To review the State Engineer's action under § 37-90-137(2)(b)(II), C.R.S. regarding wells not more than 600 feet from an existing well when no hearing was required for the one of the reasons listed in § 37-90-137(2)(b)(II)(A) -(E);

i. To determine whether a well permit should remain in force and effect under § 37- 90-137(3)(c), C.R.S.;

j. To make determinations under § 37-90-137(4), C.R.S., regarding well permits to withdraw nontributary ground water or any groundwater in the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers;

k. To review State Engineer action concerning determinations under § 37-90-137(4), C.R.S., regarding well permits to withdraw nontributary ground water or any groundwater in the Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers;

l. To make determinations under § 37-90-137(7), C.R.S concerning dewatering of geologic formations by withdrawing nontributary groundwater to facilitate or permit mining of minerals;

m. To review State Engineer action under § 37-90-137(7), C.R.S concerning dewatering of geologic formations by withdrawing nontributary groundwater to facilitate or permit mining of minerals;

n. To review State Engineer action under §§ 37-90.5-106 & 37-90.5-107, C.R.S., on an application for a permit to construct a geothermal resource exploration, production or reinjection well;

o. To address issues regarding requests for approvals of substitute water supply plans under § 37-92-308, C.R.S.;

p. To address issues regarding requests for approvals of interruptible water supply agreements under § 37-92-309, C.R.S.

q. To review relevant State Engineer action as required under rules as lawfully promulgated under § 37-92-501, C.R.S.;

r. To review the validity of any orders issued by the State Engineer or a Division Engineer, but in no instance shall a request for such a hearing or the setting or holding of such a hearing be the basis for delaying compliance with or enforcement of such orders; or

s. As necessary or desirable to make any determination required under the State Engineer's statutory duties and responsibilities as they exist now or may exist in the future.

B. Requests for Adjudicatory Hearings

1. All requests for adjudicatory hearings must be timely filed pursuant to these rules and applicable statutory requirements.

2. All adjudicatory hearings before the State Engineer shall be held in the main office of the Colorado Division of Water Resources located in Denver, Colorado, unless the State Engineer, for Good Cause shown, allows for the hearing to be held at a different location. Should a hearing be held at a location other than Denver, Colorado, the Parties may be required to find a suitable location and pay any associated costs.

3. Hearing requests shall be filed with the State Engineer within applicable deadlines by electronic mail or pursuant to the paper format filing exception pursuant to Rule 4(G).

4. All requests for adjudicatory hearings shall contain the following information:

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 or his staff 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

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 either personally or by mailing by first-class mail to the last address furnished to the State Engineer by the person to be notified at least thirty (30) days prior to the hearing. § 24-4-105(2)(a), C.R.S.

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. § 24-4-105(2)(a), C.R.S.

5. Upon receipt of a request for hearing, the State Engineer shall acknowledge such receipt and provide the Parties with a notice of a setting conference within a reasonable time frame. The setting conference will allow for the determination of hearing dates and related prehearing filing requirements as necessary.

6. 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.

7. 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.

8. 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.

9. If any written application or other request made in connection with any adjudicatory hearing is not accepted for filing, or is denied in whole or in part, prompt notice shall be given of the decision, with a statement of the grounds for such refusal or denial. § 24-4-105(10), C.R.S.

D. Party Status

1. Any Person who may be affected or aggrieved by a Division of Water Resource action shall be admitted as a Party to the proceeding upon filing a timely written request pursuant to § 24-4-105(2)(c), C.R.S. Upon motion by any other Person or Agency, the State Engineer or Hearing Officer may admit such Person or Agency as a full or limited Party.

2. Any Person who requests an adjudicatory hearing pursuant to Rule 10(B) shall be granted Party Status and need not apply.

3. A request or motion to be made a Party shall set forth a brief and plain statement of the reasons for seeking Party Status, the facts that entitle or may allow such Person to be admitted, and the matters that such Person claims should be decided. In addition, the request or motion should contain a description of the general nature of the evidence to be presented in the course of the proceedings.

4. Granting or denying a motion for Party Status shall be done by the State Engineer or Hearing Officer. Party Status may be granted at the prehearing conference or other appropriate time prior to the hearing.

5. Staff for the State Engineer shall be automatically a Party and need not apply for Party Status.

6. Nothing in this subsection shall prevent the State Engineer or Hearing Officer from admitting any Person as a Party to any proceedings for limited purposes. § 24-4-105(2)(c), C.R.S.

E. Prehearing Procedures

1. In general, the Colorado Rules of Civil Procedure shall apply to all adjudicatory hearings before the State Engineer. Prehearing procedures may be modified as required or approved by the State Engineer or Hearing Officer.

2. Disclosure and discovery

a. Any deadlines for the Parties' initial disclosures and expert disclosures shall be established by an order of the State Engineer or Hearing Officer.

b. Parties shall first attempt to utilize discovery through informal methods. When informal attempts fail, further discovery shall be conducted pursuant to the Colorado Rules of Civil Procedure. Discovery shall be completed as ordered by the State Engineer or Hearing Officer.

c. The State Engineer or Hearing Officer may, on his own accord or upon the motion of any Party for Good Cause shown, take depositions or have depositions taken, and fix the time and place for them to be held.

d. Discovery may be requested by any Party as well as by the staff of the State Engineer. Discovery shall be granted where due process, fairness, and the establishment of an adequate record may be served thereby, and when the timely completion of the proceedings will not be unduly delayed. Discovery timelines shall be set by the State Engineer or Hearing Officer.

3. Subpoenas

a. The State Engineer or Hearing Officer shall issue subpoenas in accordance with § 24-4-105(5), C.R.S., on forms provided to the State Engineer or Hearing Officer by the Party requesting the subpoena.

b. Subpoenas shall be issued without discrimination between public and private Parties by the State Engineer or Hearing Officer. A subpoena shall be served in the same manner as a subpoena issued by a district court. Upon failure of any witness to comply with such subpoena, the State Engineer may petition any district court, setting forth that due notice has been given of the time and place of attendance of the witness and the service of the subpoena; in which event, the district court, after hearing evidence in support of or contrary to the petition, may enter an order as in other civil actions compelling the witness to attend and testify or produce books, records, or other evidence, under penalty of punishment for contempt in case of contumacious failure to comply with the order of the court and may award attorney fees under the Colorado rules of civil procedure. A witness shall be entitled to the fees and mileage provided for a witness in a court of record. § 24-4-105(5), C.R.S.

4. Motions

The State Engineer or Hearing Officer may require in advance submittal of all motions or requests for rulings that any Party intends to request at any hearing. These shall include but are not limited to all motions regarding procedures, the scope and nature of the proceedings, motions for summary judgment or determinations of questions of law, motions in limine, or any other matter that requires a determination prior to final action based on the record.

5. Prehearing Conference

a. A prehearing conference may be held if deemed useful by the State Engineer or Hearing Officer. Parties may also request a prehearing conference at least twenty (20) days before a scheduled hearing in writing. The scope of issues to be raised at the prehearing conference shall be determined by the State Engineer or Hearing Officer. Prehearing conferences shall be held in the office of the Division of Water Resources in Denver, Colorado, unless the State Engineer or Hearing Officer determines the conference should be held at some other location. The State Engineer or Hearing Officer may hold the prehearing conference by telephone (or other conferencing means) at their discretion for cost-saving purposes or for the convenience of the Parties.

b. The prehearing conference shall be for the purpose of facilitating the Adjudication of issues to be determined at the hearing. The purpose of the prehearing conference may include the formulation of Stipulations or orders respecting relevant issues to be raised as well as witnesses and exhibits expected to be presented by the Parties.

c. The Parties shall make known at the prehearing conference any objections to the procedures or evidence that may be raised at the hearing. Stipulations are encouraged and may be made at the prehearing conference to reflect any matters that have been agreed to or admitted by the Parties. A prehearing order may be prepared by the State Engineer or Hearing Officer and shall reflect any rulings made with respect to procedures or any other matters to be followed at the hearing. The State Engineer or Hearing Officer may also direct a Party to prepare a draft of any order necessary.

6. Prehearing Statement

a. Prior to any prehearing conference or hearing all Parties shall file a prehearing statement by the date ordered by the State Engineer or Hearing Officer. Failure to file a prehearing statement or other such documents by any Party as ordered may result in dismissal or that Party's claim if the State Engineer or Hearing Officer determines such failure results in undue prejudice to the other Parties in the case.

b. At a minimum, the prehearing statement shall include the following:

i. Specific statements of all factual and legal claims asserted by the Party.

ii. A list of facts the party believes to be undisputed between the Parties.

iii. A list of all exhibits the Party plans to introduce at the hearing.

iv. A list of witnesses the Party plans to call and a brief summary of their testimony.

F. Conduct of Hearings

1. All adjudicatory hearings shall be held with reasonable dispatch after the filing of a request for such a hearing unless all Parties to the hearing agree otherwise or, unless otherwise ordered by the State Engineer or Hearing Officer due to extenuating circumstances.

2. In conducting adjudicatory hearings the State Engineer or Hearing Officer shall, in addition to the authority specified elsewhere, have authority to: administer oaths and affirmations; sign and issue subpoenas; regulate the course of the hearing; set the time and place for continued hearings; fix the time for the filing of appropriate documentation; take depositions or have depositions taken; issue appropriate orders that shall control the subsequent course of the proceedings; and take any other action authorized by statute or Division of Water Resources rule. § 24-4-105(4), C.R.S.

3. Burden of Proof

a. Except as otherwise provided by statute, in Adjudicatory Proceedings before the State Engineer, the proponent of the order shall have the burden of proof. § 24-4-105(7), C.R.S. "Order" means the whole or any part of the final disposition (whether affirmative, negative, injunctive, or declaratory in form) by the Division of Water Resources in any matter other than rule-making. § 24-4-102(10), C.R.S. The State Engineer or Hearing Officer shall determine the proponent or proponents of orders as appropriate on a case-by-case basis based on the relief requested by the Parties. In making this determination and in holding the proponents of orders to their burdens of proof, the State Engineer or Hearing Officer shall consider the following general principles:

i. When a Party is requesting that the State Engineer or Hearing Officer review to either reverse or modify an initial Division of Water Resource action, the Party seeking reversal or modification of the initial Division of Water Resource action is the proponent of the order as to the requested relief.

ii. When a Party is requesting any determination by the State Engineer or Hearing Officer not previously made by the Division of Water Resources, the Party seeking the determination is the proponent of the order as to the requested determination.

iii. If a proponent of an order presents initial evidence sufficient on its face to satisfy the burden of proof based on the preponderance of the evidence, the burden of proof may be shifted to the opposing Party or Parties to present sufficient evidence to the contrary, but the ultimate burden of proof rests with the proponent of the order to prove its claims based on the preponderance of all of the evidence.

iv. The State Engineer or Hearing Officer should give effect to any rebuttable presumptions established by statute or other law.

4. All hearings shall be conducted in the following order unless otherwise directed by the State Engineer or Hearing Officer or as provided for under Rule 5:

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 State Engineer 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 State Engineer 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 State Engineer or Hearing Officer and all Parties no later than five (5) days prior to the hearing unless otherwise specified.

5. No Ex parte Communications with or by the State Engineer or Hearing Officer may occur during the pendency of an Adjudicatory Proceeding. The State Engineer or Hearing Officer may, through formal communication with all Parties, request that certain information be provided to him or that certain tasks be performed.

6. Evidence

a. The rules of evidence and requirements of proof before the State Engineer shall conform, to the extent practicable, with those in civil non-jury cases in the district courts. However, when necessary to do so in order to ascertain facts affecting the substantial rights of the Parties to the proceedings, the State Engineer or Hearing Officer may receive and consider evidence not admissible under such rules if such evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. Objections to evidentiary offers may be made and shall be noted in the record. The State Engineer or Hearing Officer shall give effect to the rules of privilege recognized by law. Incompetent and unduly repetitious evidence may be excluded. Documentary evidence may be received in the form of a copy or excerpt if the original is not readily available, but upon request, the Party shall be given an opportunity to compare the copy with the original. § 24-4-105(7), C.R.S.

b. Parties may make objections and all witnesses shall be subject to cross-examination. The State Engineer or Hearing Officer may question any witness that testifies at the hearing and all witnesses shall also be subject to cross-examination by the State Engineer or Hearing Officer.

7. The State Engineer or Hearing Officer may allow Parties to submit evidence not previously submitted or disclosed under prehearing procedures for Good Cause shown.

8. The State Engineer or Hearing Officer may permit Parties to submit motions not previously submitted under prehearing procedures for Good Cause shown.

9. The State Engineer or Hearing Officer, after the receipt of the evidence, may allow or require Parties to present oral or written summations of the facts and the law, either at the hearing or subsequent thereto.

10. Every Party shall have the right to present their case or defense by oral and documentary evidence. They shall also have the right to submit rebuttal evidence and conduct cross-examination as may be required for a full and true disclosure of the facts. Subject to these rights, where a hearing will be expedited and the interests of the Parties will not be substantially prejudiced, the State Engineer or Hearing Officer may receive all or part of the evidence in written form. § 24-4-105(7), C.R.S.

11. The State Engineer or Hearing Officer may utilize their experience, technical competence, and specialized knowledge in the evaluation of the evidence presented. § 24-4-105(7), C.R.S.

12. The State Engineer or Hearing Officer may take notice of general, technical, or scientific facts within their knowledge if the relevant fact noticed is specified in the record or brought to the attention of the Parties before a final decision (or Initial Decision of the hearing officer) and all Parties are afforded an opportunity to controvert the fact so noticed. § 24-4-105(8), C.R.S.

13. Any Party, or the agent, servant, or employee of any Party, permitted or compelled to testify or submit data or evidence, shall be entitled to the benefit of legal counsel of his own choosing and at his own expense, but a Person may appear for himself. An attorney who is a witness may not act as counsel for the Party calling him as a witness. § 24-4-105(9)(a), C.R.S.

14. The State Engineer or Hearing Officer shall cause the proceedings to be recorded by a reporter or by an electronic recording device. When requested, the State Engineer or Hearing Officer shall cause the proceedings, or any portion thereof, to be transcribed, the cost thereof to be paid by the Party requesting the transcription. If the State Engineer or Hearing Officer acquires a copy of the transcription, said copy shall be made available to any Party at a reasonable time for inspection and study. § 24-4-105(13), C.R.S.

G. Final Agency Action

1. The State Engineer or Hearing Officer 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. § 24-4-105(10), C.R.S.

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 briefs Filed. § 24-4-105(14)(a), C.R.S.

3. In any case in which the State Engineer has conducted the hearing, he shall prepare, File and service upon each Party his decision. In any case in which a Hearing Officer has conducted the hearing, the Hearing Officer shall prepare an Initial Decision which he/she shall serve on each Party, except where all Parties, with consent of the State Engineer, have expressly waived their right to have an Initial Decision rendered by the 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. § 24-4-105(14)(a), C.R.S.

4. An appeal of an Initial Decision by a Hearing Officer to the State Engineer may be made pursuant to § 24-4-105(14)(a)(II), C.R.S., by filing an exception within thirty (30) days after service of the Initial Decision upon the Parties, unless extended by the State Engineer or unless review has been initiated upon motion of the State Engineer, every such Initial Decision of the 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. § 24-4-105(14)(a)(II), (14)(a)(III), C.R.S.

5. Any Party who seeks to reverse or modify the Initial Decision of the Hearing Officer shall File with the State Engineer, within twenty (20) days following such decision, a designation of the relevant parts of the record and of the parts of the 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 (10) 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 and shall thereafter be Filed with the Division of Water Resources. 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 briefs Filed. § 24-4-105(15)(a), C.R.S.

6. 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. § 24-4-105(15)(b), C.R.S.

7. Each decision and Initial Decision shall be served on each Party by first class mail or in person, or via electronic means (upon agreement between the Parties) and shall be effective on the date served or such later date as stated in the decision. § 24-4-105(16)(a), C.R.S.

8. A Party seeking judicial review of final agency action may apply to the State Engineer to postpone the implementation date of the 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 these rules. § 24-4-106(5), C.R.S.

2 CCR 402-5-10

38 CR 24, December 25, 2015, effective 1/15/2016