White Jankowski Lawyers

Contesting a decision by the State Engineer’s action on a well permit outside a designated ground water basin

December 7, 2016

If your application for a well permit outside a designated ground water basin has been denied by the State Engineer, or approved upon conditions you don’t like, you may have questions regarding what to do next. This blog post outlines the process for contesting such a decision, the appeal process, and the standard of review on appeal. This blog post does not constitute legal advice, but rather provides a basic overview of the process. If you have questions about a particular factual scenario, please do not hesitate to give our office a call.

  1. Requesting a Hearing.

As the first step to contesting a denial or conditional approval of a well permit, an applicant must request a hearing regarding the State Engineer’s denial of a well permit (or granting on unacceptable conditions). This is because under Colorado law, a party must exhaust administrative remedies before seeking judicial review of a government agency’s actions. The State Engineer has provided administrative processes in its procedural rules. The applicant must request a hearing within 60 days of the time when the State Engineer “gives notice” of its agency action (regarding the permit). The State Engineer “gives notice” by personal service or by mailing the same to the address of the applicant.

  1. Information to Include in the Request.

Information that must be provided in a request for a hearing includes: (1) the identity of the person requesting the hearing and the subject matter of the hearing; (2) the legal, statutory, and regulatory authority for the request; (3) the basis upon which the applicant believes that the State Engineer erred; and (4) an estimate of the time required for the hearing. While the general requirement is that parties request hearings by email, pro-se parties may request a hearing by regular mail.

  1. Setting the Hearing.

Once the State Engineer receives the request for a hearing the office shall provide the parties notice of a “setting” conference within a reasonable time frame, at which the date of the hearing will be chosen. Notice of the hearing date will be provided to all parties at least 30 days before the hearing. The notice may contain special procedures that the State Engineer deems appropriate.

  1. The Decision-Making Process.

The State Engineer may designate a person or persons as the “Hearing Officer,” to conduct hearings on his behalf, and to make “Initial Decisions” on the matters heard.  2 CCR 402-5, Rule 9(A). The State Engineer will establish deadlines for disclosures. Discovery is to be requested informally first. The party seeking to reverse or modify the State Engineer’s initial action has the burden of proof, which is by a “preponderance of the evidence.” The decision of the State Engineer must be based on the record, which will include all pleadings, applications, evidence, exhibits, and other papers presented or considered, and written briefs.

  1. Conduct of the Hearing.

Hearings will be conducted in the following manner, unless ordered otherwise by the State Engineer:

(a) Call to order and introductory remarks;
(b) Presentation of 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 the burden of proof rests;
(f) Presentations by all other Parties wishing to offer evidence; . . .
(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’ testimony, or at the conclusion of the Party’s entire presentation, all other Parties may then cross-examine each witness; . . .
(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.

  1. Appealing the Initial Decision.

Once the Initial Decision has been rendered and served on the applicant and other parties to the hearing, any party at this point may seek judicial review of the State Engineer’s decision. In order to appeal the State Engineer’s final agency action, the appealing party must commence an action in water court within 35 days after the agency action becomes effective. The complaint shall state the facts upon which the plaintiff claims that he or she has been adversely affected or aggrieved. The plaintiff must designate relevant parts of the record.

The applicant must seek review in water court rather than district court, under the Colorado Supreme Court’s holding in V Bar Ranch LLC v. Division Engineer for Water Division No. 3. In this case, the Colorado Supreme Court held that judicial review of a State Engineer’s Initial Decision must be in water court because such petitions constitute “water matters” which fall within the exclusive jurisdiction of water courts. The standard of review on appeal to the water court is the Administrative Procedures Act. Under this standard of review, the water court will not set aside the State Engineer’s decision unless it is “arbitrary and capricious,” “an abuse of discretion,” or is “based on findings of fact that are clearly erroneous.”

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