Idaho Administrative Code › Title IDAPA 37 - Water Resources, Department of › Rule 37.01.01 - RULES OF PROCEDURE OF THE IDAHO DEPARTMENT OF WATER RESOURCES › Section 37.01.01.730 - PRELIMINARY ORDERS

Current through August 31, 2023
01.
Definition
. Preliminary orders are orders issued by a person other than
			 the agency head that will become a final order of the agency unless reviewed by
			 the agency head or designee pursuant to Section
			 67-5245, Idaho Code.
			 (3-18-22)
02.
Contents
. Every preliminary order must contain or be accompanied by a
			 document containing the following paragraphs or substantially similar
			 paragraphs: (3-18-22)
a. This is a preliminary
			 order of the agency. It can and will become final without further action of the
			 agency unless a party petitions for reconsideration, files exceptions with the
			 agency head, or requests a hearing pursuant to Section
			 42-1701A(3),
			 Idaho Code. Filing exceptions to the agency head is not required in order to
			 exhaust administrative remedies. (3-18-22)
b. A party may file a petition for
			 reconsideration of this preliminary order with the agency within fourteen (14)
			 days of the service date of this order. The agency will dispose of the petition
			 for reconsideration within twenty-one (21) days of its receipt, or the petition
			 will be considered denied by operation of law. See Section
			 675243(3),
			 Idaho Code. (3-18-22)
c. Any party
			 may in writing file exceptions to any part of the preliminary order and file
			 briefs in support of the party's position on any issue in the proceeding to the
			 agency head (or designee of the agency head) within fourteen (14) days after:
			 (3-18-22)
i. The service date of this
			 preliminary order; (3-18-22)
ii.
			 The service date of the denial of a petition for reconsideration from this
			 preliminary order; or (3-18-22)
iii. The failure within twenty-one (21) days
			 to grant or deny a petition for reconsideration from this preliminary order.
			 (3-18-22)
d. If any party
			 files exceptions to this preliminary order, opposing parties shall have
			 fourteen (14) days to respond to any party's exceptions. Written briefs in
			 support of or taking exceptions to the preliminary order shall be filed with
			 the agency head or designee. The agency head or designee may review the
			 preliminary order on its own motion. (3-18-22)
e. The agency head or designee may schedule
			 oral argument in the matter before issuing a final order. The agency head or
			 designee will issue a final order within fifty-six (56) days of receipt of the
			 written briefs or oral argument, whichever is later, unless extended for good
			 cause. The agency head or designee may hold additional hearings or may remand
			 the matter for further evidentiary hearings if further factual development of
			 the record is necessary before issuing a final order. (3-18-22)
f. Pursuant to Section
			 42-1701A(3),
			 Idaho Code, unless the right to a hearing before the Director or the Board is
			 otherwise provided by statute, any person aggrieved by any action of the
			 Director, including any decision, determination, order or other action,
			 including action upon any application for a permit, license, certificate,
			 approval, registration, or similar form of permission required by law to be
			 issued by the Director, who is aggrieved by the action of the Director, and who
			 has not previously been afforded an opportunity for a hearing on the matter
			 shall be entitled to a hearing before the Director to contest the action. The
			 person shall file with the Director, within fifteen (15) days after receipt of
			 written notice of the action issued by the Director, or receipt of actual
			 notice, a written petition stating the grounds for contesting the action by the
			 Director and requesting a hearing. A preliminary order shall not become final
			 if a request for hearing under Section
			 42-1701A(3),
			 Idaho Code is filed with the Department within the time prescribed for filing a
			 petition for reconsideration. (3-18-22)
g. Pursuant to Sections
			 67-5270 and
			 67-5272, Idaho Code, if this
			 preliminary order becomes final, all administrative remedies shall be deemed
			 exhausted, and any party aggrieved by the final order or orders previously
			 issued in this case may file a petition for judicial review of the final order
			 and all previously issued orders in this case to district court by filing a
			 petition in the district court of the county in which: (3-18-22)
i. A hearing was held; (3-18-22)
ii. The final agency action was taken;
			 (3-18-22)
iii. The party seeking
			 review of the order resides; or (3-18-22)
iv. The real property or personal property
			 that was the subject of the agency action is located.
			 (3-18-22)
h. A petition
			 for judicial review must be filed within twenty-eight (28) days of this
			 preliminary order becoming final. See Section
			 67-5273, Idaho Code. The filing of
			 a petition for judicial review does not stay the effectiveness or enforcement
			 of the order under review. (3-18-22)