CO Code § 37-90-131 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 90 - Underground Water|§ 37-90-131. Management District - Board of Directors - Control Measures - Hearing - Notice - Publication - Order

     Whenever the board of directors determines that controls, regulations, or conservation measures are necessary in order to ensure the proper conservation of groundwater within the district, it shall confer with the ground water commission and groundwater users within the district. No such measures or regulations shall be instituted until after a public hearing. Notice of such hearing shall be published. Such notice shall state the time and place of the hearing and in general terms the corrective measures or regulations proposed. Within sixty-three days after such hearing, the board shall announce the measures or regulations ordered to be taken and shall cause notice of such action to be published. The board has the authority to compel compliance with such measures or regulations by an action brought in the district court of the county in which any failure to comply is found to exist.    Any person adversely affected or aggrieved by the announcement of control or conservation measures or regulations adopted by the district board may appeal such decision to the ground water commission by filing a notice of appeal and the grounds therefor with the commission not later than thirty-five days after the date of last publication. The commission shall hear all such appeals pursuant to section 37-90-113. The commission shall have authority to affirm or reject the measures or regulations adopted by the district or to modify such measures or regulations but only upon consent from the district board. Judicial review of commission actions in such appeals may be taken pursuant to section 37-90-115.    Any person adversely affected or aggrieved by an act of the district board, other than the announcement of control or conservation measures or regulations, has the right to be heard by the board. Such person shall file a written request for a hearing that states the basis of the alleged injury. Unless agreed otherwise by all parties to a hearing or unless otherwise approved by the district due to extenuating circumstances, a hearing shall be held within one hundred eighty-two days after filing the request for such a hearing. Upon thirty-five days' written notice to all adverse parties, the district shall conduct a hearing upon the matter. Hearing procedures shall be as informal as possible, with due regard for the rights of the parties. All parties shall have the right to subpoena witnesses and to be heard either in person or by attorney. The district board may have such hearings conducted before an agent or hearing officer. After such hearing, the district board shall issue a written decision containing its findings and conclusions and shall serve its decision upon all parties by first-class mail. Judicial review of such district decisions may be taken in the manner and governed by the standards set forth for review of commission and state engineer decisions in section 37-90-115.       Subject to review by the ground water commission pursuant to subsection (1) of this section, the board may institute control measures or regulations to prescribe satisfactory and economical measuring methods for the measurement of water levels in and the amount of water withdrawn from wells and to require reports to be made at the end of each pumping season showing the date and water level at the beginning of the pumping season, the date and water level at the end of the pumping season, and any period of more than thirty-five days cessation of pumping during such pumping season.     History. Source: L. 65: R&RE, p. 1262, § 1. C.R.S. 1963: § 148-18-30. L. 71: P. 1316, § 14. L. 79: (1) R&RE, p. 1375, § 9, effective June 7. L. 85: (1)(b) R&RE and (1)(c) added, pp. 1177, 1178, §§ 11, 12, effective May 31. L. 98: Entire section amended, p. 1223, § 14, effective August 5. L. 2012: Entire section amended,(SB 12-175), ch. 208, p. 883, § 155, effective July 1. History. Source: L. 65: R&RE, p. 1262, § 1. C.R.S. 1963: § 148-18-30. L. 71: P. 1316, § 14. L. 79: (1) R&RE, p. 1375, § 9, effective June 7. L. 85: (1)(b) R&RE and (1)(c) added, pp. 1177, 1178, §§ 11, 12, effective May 31. L. 98: Entire section amended, p. 1223, § 14, effective August 5. L. 2012: Entire section amended,(SB 12-175), ch. 208, p. 883, § 155, effective July 1.    ANNOTATION   Law reviews. For comment on the Colorado Administrative Procedure Act and its construction, see 51 Den. L.J. 275 (1974).   The act prescribes review and final approval within the administrative process and it is significant that the commission's authority with respect to the management district's proposed measure is not limited to appellate review but involves the commission's rule-making power, and in effect all management district regulations objected to by interested persons become commission regulations upon approval. Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968 ).   Proposed control, regulations, or conservation measures of the management districts are subject to review and final approval by the ground water commission if objection is made within 30 days after the publication of the corrective measure. Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968 ).   The promulgation and adoption by management districts of proposed regulations and control measures applicable generally to water users within the district may be reviewed by the commission. In re Water Rights in Irrigation Div. No. 1, 181 Colo. 395 , 510 P.2d 323 (1973) (decided under former law).   Following the pronouncement of any control measure, the district is required to send notice of such measures to every known ground water user in the district by registered or certified mail. North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314 , 505 P.2d 377 (1973).   The requirement that every user of ground water in a district be sent registered notice of every decision by the district pertaining to specific individuals would surely be a strained construction of legislative intent, as such notice requirement is obviously intended as a method of notifying water users of general control measures which the district proposes to adopt. North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314 , 505 P.2d 377 (1973).   The consequence of lodging a timely objection to a management district's proposed measure is to defer finality of the administrative process and allow for change and correction within the administrative agency should such be needed. Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968 ).   Provisions for review of ”control measures“ refer to general district regulations and not individual decisions made within the ambit of such control measures. North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314 , 505 P.2d 377 (1973).   In deference to the expertise of administrative agencies and in an attempt to avoid premature review of incomplete regulations and orders, no person is entitled to judicial relief in the federal courts for threatening injury until he has exhausted his prescribed administrative remedies, and with final approval pending, no obligation nor fixing of civil or criminal liability has been imposed on the plaintiff as a consummation of the administrative process; hence, plaintiff's failure to exhaust his administrative remedies goes to the very jurisdiction of the United States district court, since the exhaustion requirement under the present facts is a prerequisite to invoking federal jurisdiction. Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968 ).   Federal court decision that plaintiff challenging management district's water control measure should exhaust administrative remedies through review by ground water commission is not res judicata on the issue of commission's jurisdiction to review management district's application and interpretation of measure. North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314 , 505 P.2d 377 (1973).   Jurisdiction of district court rather than ground water commission controls review of action of management district. North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314 , 505 P.2d 377 (1973).   Specific decisions made by a district in the execution or enforcement of district control measures may be reviewed by the appropriate district court. In re Water Rights in Irrigation Div. No. 1, 181 Colo. 395 , 510 P.2d 323 (1973) (decided under former law).   Where a management district exists, the management district, not the ground water commission, has authority to administer designated ground water priorities within its boundaries. Upper Black Squirrel Creek v. Goss, 993 P.2d 1177 (Colo. 2000).   This section clearly provides a mechanism by which the management district board receives and hears complaints regarding injury. Upper Black Squirrel Creek v. Goss, 993 P.2d 1177 (Colo. 2000).