2 Colo. Code Regs. § 402-5-11

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

Rule 2 CCR 402-5-11 - Requests for 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.

B. The State Engineer will, after consideration of the materials submitted, determine in his discretion whether to rule upon the merits of any such petition.

C. In determining whether to rule upon a petition Filed pursuant to his 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 C.R.C.P. 57 or § 13-51-101, et seq. C.R.S., 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,

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 applied 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. If the State Engineer does so, any ruling will apply only to the extent of the facts presented in the petition and any amendment to the petition. The State Engineer may request the petitioner to submit additional facts in writing and they will be considered as an amendment to the petition. If the State Engineer rules upon the petition without a hearing, he shall promptly notify the petitioner of his decision.

2. The State Engineer may order the petitioner to File a written brief, memorandum or position statement.

3. The State Engineer may set the petition, upon due notice to the petitioner, for a non-evidentiary hearing.

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. The State Engineer may, at 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 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 as to the applicability to the petitioner of the statute, rule or order in question, and any other facts the petitioner desires the State Engineer to consider.

6. The State Engineer may consolidate for determination petitions raising similar issues of fact or law.

7. The Parties to any proceedings pursuant to this rule shall be the petitioner and, where appropriate, the staff of the State Engineer and any other Person the State Engineer determines is necessary or desirable for the proper or full disposition of the petition.

F. Any declaratory order or other order disposing of a petition pursuant to this rule shall constitute agency action subject to judicial review pursuant to § 24-4-106, C.R.S. § 24-4-105(11), C.R.S.

G. The State Engineer may appoint a Hearing Officer to make an Initial Decision on any request for a declaratory order. Such Initial Decision shall be subject to appeal directly to the State Engineer for final agency action.

2 CCR 402-5-11

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