2 Colo. Code Regs. § 402-5-6

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

Rule 2 CCR 402-5-6 - Rulemaking Procedures under Compact and Water Rule Powers

A. Applicability

Under § 37-92-501(1), C.R.S., the State Engineer may adopt rules to assist in the performance of his or her duties to administer, distribute, and regulate the waters of the state ("water rule power"). Under § 37-80-104, C.R.S., the State Engineer shall make and enforce such rules with respect to deliveries of water as will enable the state of Colorado to meet its interstate compact commitments ("compact rule power"). The water rule power and the compact rule power are governed by the procedures of the Determination Act and not by the APA. See Simpson v. Cotton Creek Circles, LLC (In re Rules Governing New Withdrawals of Ground Water), 181 P.3d 252, 264 (Colo. 2008); In re Rules & Regulations Governing Water Rights, 196 Colo. 197, 202 (Colo. 1978). Whenever the State Engineer adopts any rule under the water rule power or the compact rule power, the provisions of this rule shall apply. All other rulemaking shall be subject to the rulemaking procedures under Rule 7 below. To the extent any provision of this rule conflicts with any current or future provision of the Determination Act, Management Act or an interstate compact, the procedures of the Determination Act, the Management Act or interstate compact shall apply.

B. Proposals for Rulemaking

1. Any rulemaking proceedings shall be conducted by the State Engineer or 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 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 and who may participate.

2. The State Engineer may establish a representative group of participants with an interest in the subject of the rulemaking to submit views or otherwise participate informally in any conferences on the proposals under consideration or to participate in the public hearing(s) under this rule. In establishing any representative group, the State Engineer shall make reasonable attempts to solicit input from representatives of each of the various stakeholder interests that may be affected positively or negatively by the proposed rules.

3. Prior to the notice required by this rule, the State Engineer shall publicize and hold at least one public meeting in each water division subject to any proposed rules and may publicize and conduct such hearing at such time and in such manner as he determines. The State Engineer shall make the proposed rules available prior to the hearing at such time and in such manner as he determines to be appropriate. At the hearing, Persons will have the opportunity to submit written data, views, or arguments and to present the same orally unless the State Engineer deems it unnecessary.

C. Notice

Notice shall be made as required by § 37-92-501(2)(g), C.R.S. and any other applicable provisions of the Determination Act or Management Act, as may be amended from time to time.

D. Protests

Any person desiring to protest a proposed rule may do so in the manner as provided in § 37-92-304, C.R.S. for the protest of a ruling of a referee, and the water judge shall hear and dispose of the same as promptly as possible. See § 37-92-501(3)(a), C.R.S. Any such protest must be filed by the end of the month following the month in which such proposed rules are published. See id.

E. Appellate Review of Water Judge Decisions

Under section 37-92-304(9), C.R.S., appellate review shall be allowed to any judgment and decree of the water judge. Under § 13-4-102, C.R.S., water cases involving Adjudications are appealed to the Colorado Supreme Court.

2 CCR 402-5-6

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