2 Colo. Code Regs. § 402-5-7

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

Rule 2 CCR 402-5-7 - Other Rulemaking Procedures

A. Applicability. Whenever the State Engineer adopts any rule, except those to be promulgated under § 37-92-501 or § 37-80-104, C.R.S., as addressed in Rule 6 above, the provisions of this rule shall apply.

B. Proposals for Rulemaking

1. All rulemaking proceedings shall be conducted by the State Engineer or designated Hearing Officer. Whenever the State Engineer contemplates rulemaking, public announcement may be made at such time and in such manner as he determines. The State Engineer shall establish a representative group of participants with an interest in the subject of the rule-making to submit views or otherwise participate informally in conferences on the proposals under consideration or to participate in public rule-making proceedings on the proposed rules. It is within the discretion of the State Engineer to determine the extent to which such informal proceedings should occur. § 24-4-103(2), C.R.S.

2. Any 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 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. § 24-4-103(7), C.R.S.

3. Petitions for rulemaking shall be filed by electronic mail or pursuant to the paper format filing exception pursuant to Rule 4(G).

4. Petitions for rulemaking shall include the following information:

a. Identification of the person or persons requesting rulemaking and the nature of the requests;

b. The language of the proposed rule;

c. A statement of the State Engineer's authority to promulgate the rule;

d. A concise general statement of the rule's basis and purpose. If the rule involves technological or scientific issues, this statement must include a detailed, analytical statement of the scientific or technological rationale justifying the proposed rule;

e. A fiscal analysis of the proposed rule, which shall include an identification of the types of persons who will bear the costs and/or assume the benefits of the proposed rule.

C. Notice

1. Official notice of proposed rulemaking proceedings shall be filed with the secretary of state in sufficient time for publication in the Colorado Register. §§ 24-4-103(3)(a) and (11).

2. At the time of filing a notice of proposed rule-making with the secretary of state as the secretary may require, the Division of Water Resources shall submit a draft of the proposed rule or the proposed amendment to an existing rule and a statement, in plain language, concerning the subject matter or purpose of the proposed rule or amendment to the office of the executive director in the Department of Regulatory Agencies. The provisions of 24-4-103 (2.5) shall apply.

3. Notice of proposed rulemaking shall be published in the Colorado Register and shall state the time, place, and nature of 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. § 24-4-103(3)(a), C.R.S. Publication of the notice in the Colorado Register shall be by electronic publication pursuant to § 24-4-103(11)(g).

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 twenty (20) days after publication of notice as provided in this section and as required by § 24-4-103(3)(a), C.R.S.

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 Party or 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.

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 pursuant to Rule 7(C). Where an opportunity to obtain Party Status is provided, it may be obtained in the manner prescribed in this section. Parties to rulemaking hearings shall have the rights specified in this section. Party Status is not required for Persons to appear at the public hearing to submit written data, views, or arguments and to present the same orally unless the State Engineer deems it unnecessary.

2. If Party Status is to be allowed, then any person or Agency who is interested may become a Party to rulemaking proceedings by filing an application for Party Status. Applications for Party Status shall be filed 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, U.S. mail address, telephone number and e-mail address of the Person, Persons or Agency seeking Party Status. The application shall also indicate the interest of the Person(s) or Agency in the proposed rules and a description of the general nature of the evidence to be presented by the proposed Party in the course of the proceedings.

4. For a hearing where Party Status is available, it shall be freely granted by the State Engineer. Upon Good Cause shown, Party Status may be granted prior to or 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 to other Persons.

6. For the purpose of service of any documents upon a Party other than the staff of the Office of the State Engineer, delivery by U.S. mail or by e-mail to the addresses provided in a Party's application for Party Status shall constitute service as of the date mailed or emailed. A Party shall promptly serve upon the State Engineer and all other Parties notice of any change in the Party's U.S. mail address or e-mail address for the purpose of service.

E. Prehearing Procedures for Rulemaking

1. These prehearing procedures provide a process by which the issues related to a proposed rule are raised and discussed, and presented to the State Engineer for decision in an efficient manner if they cannot be resolved prior to the prehearing conference. It is the strong desire of the State Engineer that the Parties try to resolve as many issues as possible by negotiation prior to the prehearing conference. Any Person may appear at the prehearing conference but only Parties may participate.

2. The State Engineer may specify in the notice of proposed rulemaking that a prehearing conference will be held. Any such conference shall be held not less than five (5) days in advance of the hearing unless the State Engineer, for Good Cause, specifies otherwise.

3. At any prehearing conference each Party or shall present to the State Engineer or Hearing Officer and to every other person or Party in attendance a prehearing statement that 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. Specific language proposed for the rule, where appropriate, and a proposed statement of the basis and purpose for the rule; and

e. All written testimony it will offer into evidence at the hearing.

4. The purpose of the prehearing conference may include the formulation of Stipulations or orders respecting the issues to be raised, as well as witnesses and exhibits to be presented by the Parties. The Parties shall make known at the prehearing rulemaking conference of 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 have been agreed to or admitted by the Parties or Interested Persons. A prehearing order shall be prepared by the State Engineer/Hearing Officer or, at his direction, by any Party, based upon the prehearing conference, which shall reflect any rulings made with respect to procedures to be followed at the hearing, or any other matters.

5. Motions

The State Engineer or Hearing Officer may require as part of the prehearing conference or otherwise advance submittal of all motions or requests for rulings that such Person(s) 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 Division of Water Resources action based on the record, or any matter that may reasonably be disposed of prior to receiving testimony or other evidence.

6. Discovery

The State Engineer 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. 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 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 shall be completed no later than five (5) days prior to the hearing date, except as otherwise ordered by the State Engineer.

7. Subpoenas

Subpoenas shall be issued without discrimination between public and private Persons or Parties by the State Engineer or Hearing Officer. 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 or Hearing Officer 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 §§ 13-33-102 and 13-33-103, C.R.S. to be paid by the Person or Party requesting the issuance of the subpoena. § 24-4-103(14), C.R.S.

F. Conduct of Rulemaking Hearings

1. The State Engineer shall hold a public hearing before promulgating any rule. At such hearing, the State Engineer, any Parties and 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. All witnesses called to testify by a Party shall be subject to cross-examination by other Parties.

3. The State Engineer shall, in addition to 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 filing appropriate documents; take depositions or have depositions taken; issue appropriate orders; and, take any other action authorized by statute or Division of Water Resources rule.

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 rebuttal testimony.

6. The State Engineer may allow Parties 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 Persons or Parties to present oral or written summations of the facts and the law, either at the hearing or subsequent thereto.

8. At any time the State Engineer may question any Interested Person, Party or witness participating in the hearing.

9. All hearings shall be conducted in the following order unless otherwise directed by the State Engineer or Hearing Officer.

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.

G. Final Agency Action and Post-Hearing Procedures for Rulemaking

1. Within one hundred eighty days after the last public hearing on a proposed rule, the State Engineer shall adopt a rule pursuant to these rulemaking procedures or terminate the proceeding by publication of a notice to that effect in the Colorado Register.

2. After the conclusion of the last public hearing, the State Engineer shall prepare an initial ruling as to any rules proposed for adoption.

3. Any Party to the rulemaking may file written exceptions to the initial ruling within 21 days of the State Engineer's service of the initial ruling on the Party. The State Engineer shall rule on any such exceptions prior to adopting any rule or terminating the proceeding.

4. The State Engineer shall consider all submissions entered into the record in adopting any rule. The rules promulgated shall be based on the record. The record shall consist of proposed rules, evidence, exhibits, other matters presented or considered, matters officially noticed, ruling on exceptions, any findings of fact and conclusions of law proposed by any party, and any written briefs filed.

5. Material Incorporated by Reference

a. As allowed under § 24-4-103 (12.5), C.R.S., the State Engineer may incorporate by reference in his rules, without publishing the incorporated material in rules as finally published, all or any part of a code, standard, guidelines or rule that has been adopted by an agency of the United States, the state of Colorado, or another state or adopted or published by a nationally recognized organization or association.

b. The State Engineer shall maintain a copy of the code, standard, guideline, or rule readily available for public inspection at the Division of Water Resources during regular business hours, as well as a posting of the same on their website. The State Engineer shall provide certified copies of the material incorporated at cost upon request or shall provide the requestor with information on how to obtain a certified copy of the material incorporated by reference through the source agency, association or organization. § 24-4-103 (12.5)(b), C.R.S. Electronic versions may be substituted upon request.

c. References to any incorporated material shall identify the incorporated material by appropriate agency, organization, or association by the date, title and/or citations. 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 incorporating material by reference the fact that the state engineer will provide information regarding how the incorporated material may be obtained or examined.

6. Statement of Basis and Purpose

After consideration of the relevant information presented, the State Engineer shall include as part of the rules or incorporate by reference in the rules adopted, a written and concise general statement of their basis and purpose. The written statement of the basis and purpose of a rule that involves scientific or technological issues shall include a detailed, analytical evaluation of the scientific or technological rationale justifying the rule.

7. All rules adopted by the State Engineer shall first be submitted to the attorney general for his opinion as to their constitutionality and legality. Any rule issued without being so submitted shall be void. § 24-4-103(8)(b), C.R.S.

8. All rules adopted by the State Engineer, including temporary or emergency rules, shall be submitted to the Office of Legislative Legal Services in the form and manner prescribed by the Committee on Legal Services. Any rule issued that is not submitted to the Office of Legislative Legal Services for review within twenty (20) days after the date of the attorney general's opinion rendered thereon shall be void. The State Engineer shall revise promulgated rules to conform to any action taken by the general assembly. § 24-4-103(8)(d), C.R.S.

9.. Each rule adopted by the State Engineer, together with the attorney general's opinion rendered in connection therewith, shall be filed within twenty (20) 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. § 24-4-103(11)(d)(II), C.R.S.

10. Any rule as finally adopted by the State Engineer shall become effective twenty (20) days after final publication as required by law 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 purposes of judicial review. § 24-4-103(5), C.R.S.

11. Any Person adversely affected or aggrieved by the final agency action may commence an action for judicial review under section 24-4-106(4), C.R.S. within thirty-five (35) days after the final agency action becomes effective.

12. The State Engineer shall maintain an official rule-making record for each proposed rule for which a notice of proposed rule-making has been published in the Colorado Register. Such rule-making record shall be maintained by the State Engineer until all administrative and judicial review procedures have been completed. The rule-making record shall be available for public inspection and shall contain those items identified in § 24-4-103 (8.1)(b), C.R.S.

H. Temporary or Emergency Rules.

Temporary or emergency rules may be adopted without compliance with the procedures prescribed in this section and with less than twenty (20) days notice (or where circumstances imperatively require, without notice) where the State Engineer finds the immediate adoption of the rule is imperatively necessary to comply with a state or federal law or federal regulation for the preservation of public health, safety, or welfare, and compliance with the requirements of these rules would be contrary to the public interest and the State Engineer makes such a finding on the record. Such findings and 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 one hundred twenty (120) days after its adoption unless made permanent by compliance with this section and with the APA. § 24-4-103(6)(a), C.R.S.

2 CCR 402-5-7

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