Kan. Admin. Regs. § 5-14-3a - Hearing procedure

Current through Register Vol. 40, No. 39, September 30, 2021

The procedures specified in this regulation shall apply to any hearing held by the chief engineer pursuant to K.A.R. 5-14-3. Upon notice to all parties, these procedures may be applied by the chief engineer to any other hearings held under the Kansas water appropriation act.

(a) Unless otherwise required by statute, the following persons and entities shall be allowed to be parties to a formal hearing before the chief engineer:
(1) The division of water resources, Kansas department of agriculture (DWR);
(2) the person or persons to whom the order is, or will be, directed;
(3) the applicant to change the place of use, the point of diversion, the use made of water, or any combination of these, under K.S.A. 82a-708b and amendments thereto, or the applicant to appropriate water for beneficial use under K.S.A. 82a-711, and amendments thereto;
(4) the owners of the proposed place of use and the owners of the place of use authorized under the application, water right, or permit to appropriate water; and
(5) any other person who has filed a timely petition for intervention in accordance with K.A.R. 5-14-3(e).
(b) The hearing shall be presided over by the chief engineer or the chief engineer's designee. Authority may be delegated by the chief engineer to the presiding officer to issue the order or to make written recommendations to the chief engineer after the hearing.
(c) Unless otherwise required by statute, the presiding officer shall issue a written notice of hearing to all parties and to any person who requests notice of a hearing.
(1) Notice of hearing shall be served on the parties as required by statute, but not later than 15 days before the hearing.
(2) The notice of hearing shall be served by mail, facsimile, electronic mail, or hand-delivery and shall be evidenced by a certificate of service. If due diligence fails to locate a person allowed to be a party, then notice by publication shall be made in the manner indicated in K.A.R. 5-14-3a (d) (2).
(3) The notice of hearing shall include the following:
(A) A case or other identification number and a descriptive title, which shall appear on all correspondence relating to the docket. If more than one matter has been consolidated for hearing, all numbers and descriptive titles shall appear on all correspondence;
(B) the names and mailing addresses of all parties;
(C) a statement of the time, place and nature of the hearing. If more than one matter has been consolidated for hearing, statement of the nature of the hearing shall include all matters to be heard;
(D) a statement that the presiding officer may complete the hearing without the participation of any party who fails to attend or participate in a prehearing conference, hearing, or other stage in the proceeding; and
(E) if nonparties are provided an opportunity to submit comments, the time and place where oral comments will be accepted and the deadline and mailing address for the submission of written comments.
(4) For abandonment hearings under K.S.A. 82a-718, and amendments thereto, the notice of hearing shall include a copy of the verified report of the chief engineer or the chief engineer's representative.
(d) Unless otherwise required by statute, if members of the public will be given an opportunity to submit oral and written comments, notice of the hearing shall be caused by the chief engineer to be distributed in the place or places where the action or proposed action will be effective.
(1) Notice of hearing shall be given as required by statute, but no later than 15 days before the hearing.
(2) The notice of hearing may be published in a newspaper of general circulation where the action or proposed action will be effective as required by statute, but shall be published at least 15 days before the hearing. The notice of hearing shall not be required to be in the form of a legal notice. The notice may be also be given by any other means reasonably calculated to reach the residents of the area.
(e) Only the parties named in the notice of hearing or otherwise designated by the chief engineer may participate in the hearing.
(1) Any party may participate in person or, if the party is a corporation or other artificial person, by an authorized representative.
(2) Any party may be represented, at the party's own expense, by legal counsel or, if permitted by law, some other representative.
(3) The presiding officer may refuse to allow representation that would constitute the unauthorized practice of law.
(4) The presiding officer may give nonparties the opportunity to present oral or written statements to be included in the record of the proceedings.
(5) The presiding officer may consider only oral statements that are given under oath or affirmation and signed written statements.
(6) The presiding officer shall allow all parties a reasonable opportunity to challenge or rebut all oral and written statements received.
(f) The presiding officer may allow any party to participate in prehearing conferences, the hearing, or any other stage of the proceedings by telephone or videoconference.
(1) Unless otherwise authorized by the presiding officer, the party wishing to participate by telephone shall notify the presiding officer at least 48 hours in advance of the prehearing conference. The party wishing to participate by telephone may be granted a continuance if the presiding office is not able to grant the request.
(2) The presiding officer may require the party wishing to participate by telephone to initiate the call.
(3) The presiding officer may refuse to allow any party to participate by telephone if the party has not notified the presiding officer in advance and made arrangements for that participation or if any party objects.
(g) The presiding officer may hold one or more pre-hearing conferences as necessary to address preliminary matters or to facilitate the hearing.
(1) Notice of all prehearing conferences shall be given by the presiding officer to all parties and to all persons who have requested that notice. Notice may also be given to other interested persons at least 15 days before the pre-hearing conference.
(2) The notice of prehearing conference shall include the following:
(A) The names and mailing addresses of all parties;
(B) a statement of the time, place, and nature of the prehearing conference; and
(C) a statement that the presiding officer may complete the hearing without the participation of any party who fails to attend or participate in a prehearing conference, hearing, or other stage in the proceeding.
(3) The presiding officer shall issue a prehearing order after each prehearing conference.
(h) Discovery shall be limited to matters that are clearly relevant to the proceeding.
(i) Each party shall have the opportunity to file pleadings, objections, and motions. At the presiding officer's discretion, any party may be given an opportunity to file briefs, proposed findings of fact and conclusions of law, and proposed orders.
(1) Each party shall serve a copy of any written filings on each of the other parties.
(A) Service may be made by mail, facsimile, electronic mail, or hand-delivery.
(B) Service shall be presumed if the person making service signs a written certificate of service.
(C) Service by mail shall be complete upon mailing.
(2) The presiding officer shall notify all parties of the deadlines for written filings and may extend the deadlines upon request of any party.
(A) Unless otherwise stated in the notice or order of the presiding officer, all deadlines to file documents within a specific number of days shall end at the close of business on the third working day after the deadline set in the notice or order mailed out by the presiding officer.
(B) In computing any deadline, the day of service shall not be included. Working days shall not include Saturdays, Sundays, state holidays, and federal holidays.
(3) The presiding officer shall not be required to consider any written filing that has not been filed on or before the deadline or that is not served on all parties.
(4) Service upon an attorney of record shall be deemed to be service upon the party represented by the attorney.
(j) After the presiding officer has issued a notice of hearing and before an order is issued, no party or its attorneys shall discuss the merits of the proceedings with the presiding officer or with any other person named in the prehearing order as assisting the presiding officer in the hearing, unless all parties have the opportunity to participate.
(1) If the presiding officer receives an ex parte communication, the presiding officer shall notify all parties that an ex parte communication has been received and place the notice in the record of the pending matter. The notice shall contain the following:
(A) A copy of any written ex parte communication received and any written response to the communication; and
(B) a memorandum stating the substance of any oral ex parte communication received, any oral response made, and the identity of each person from whom the oral ex parte communication was received.
(2) Any party may submit written rebuttal to an ex parte communication within 15 days after service of notice of the communication. If any party submits a written rebuttal to an ex parte communication, that party shall simultaneously serve a copy on all other parties and the presiding officer. All timely filed written rebuttals shall be placed in the record of the pending matter.
(3) A presiding officer who has received an ex parte communication shall withdraw from the pending matter if the presiding officer determines that the communication has rendered the presiding officer no longer qualified to hear the pending matter because of bias, prejudice, or interest.
(4) Any party may petition for the disqualification of a presiding officer upon discovering facts establishing grounds for disqualification because of bias, prejudice, or interest.
(5) Each presiding officer whose disqualification is requested shall determine whether to grant the petition, stating facts and reasons for the determination. The facts and reasons for the presiding officer's decision and shall be entered into the record.
(k) The presiding officer may consolidate any proceedings if there are common issues to be resolved or a common factual basis for the proceedings. The presiding officer may consolidate proceedings on the presiding officer's own motion or upon the request of the parties to all proceedings.
(l) The presiding officer may continue the hearing or any other proceeding on that person's own motion or at the request of a party.
(1) A party shall notify all other parties before requesting a continuance.
(2) The presiding officer shall not be required to continue the hearing if all other parties have not been consulted or if any party objects.
(3) Each party who requires a continuance because of an emergency shall notify the presiding officer and any other party as soon as the party reasonably determines that an emergency exists.
(m) Each party shall have a reasonable opportunity to be heard. Each party shall be given the opportunity to present evidence and argument, conduct cross-examination, and submit rebuttal evidence, except as may be restricted by a prehearing order or limited grant of intervention.
(1) Unless otherwise limited by this regulation or the presiding officer, each party and each intervener shall be given an opportunity to make opening statements and closing arguments.
(2) Unless the parties have been required to exchange exhibits before the hearing, each party shall bring a copy of each document offered as evidence for each party and at least two copies for the presiding officer. If possible, the original document, or a certified copy of the document, shall be offered into evidence at the hearing.
(3) All hearings shall be open to the public.
(4) All testimony of parties and witnesses shall bemade under oath or affirmation.
(5) The direct examination of each witness shall be followed by cross-examination of the witness. Cross-examination shall be limited in scope to the testimony upon direct examination. Redirect examination shall be limited in scope to the testimony upon cross-examination. Re-cross-examination shall be limited in scope to the testimony upon redirect.
(6) No more than one attorney for each party shall examine or cross-examine a witness. The presiding officer may require that only one attorney be allowed to cross-examine a witness on behalf of all parties united in interest.
(7) All testimony shall be taken on the record unless the presiding officer grants a request to go off the record.
(8) At the time determined by the presiding officer, the presiding officer shall announce that the record of exhibits and testimony shall be closed and, if applicable, that the matter has been taken under advisement.
(9) The record shall not be reopened except upon order of the presiding officer or the chief engineer.
(n)
(1) In any hearing concerning an application filed under K.S.A. 82a-708b or K.S.A. 82a-711 and amendments thereto, the applicant shall bear the burden of proving, by a preponderance of the evidence, that the application should be approved.
(2) If the DWR does not offer opinion testimony concerning whether and how the application complies or does not comply with the applicable regulations, its participation in the hearing shall be limited as follows:
(A) The DWR shall make a proffer of the records of the agency pertaining to the pending matter and may offer the testimony of fact witnesses to lay foundation for the proffer. These witnesses may be cross-examined, but cross-examination shall be limited to the scope of the direct questioning.
(B) If any member of the DWR's staff is called as a witness for or is cross-examined by another party, the DWR shall be allowed to conduct cross-examination of the witnesses offered by that party.
(3) The applicant shall be heard after the DWR's proffer, unless the presiding officer determines that another order of presentation will facilitate the conduct of the hearing.
(4) If the DWR offers opinion testimony concerning whether and how the application complies or does not comply with the applicable regulations, the DWR shall be heard after the applicant and the DWR may participate in the hearing to the same extent as the applicant, unless the presiding officer determines that a different order of presentation will facilitate the conduct of the hearing.
(5) The presiding officer shall determine the order in which other parties and interveners may be heard.
(o) In hearings concerning the assessment of a civil penalty, the modification of a water right, the suspension of a water right, or the suspension of the use of water under a water right, the following requirements shall be met:
(1) The DWR shall bear the burden of proving, by a preponderance of the evidence, that a violation under K.S.A. 82a-737 and amendments thereto or K.S.A. 82a-770 and amendments thereto, or both, has occurred.
(2) The DWR shall be heard first at the hearing, unless the presiding officer determines that a different order of presentation will facilitate the conduct of the hearing. The presiding officer shall determine the order in which other parties and interveners may be heard.
(p) In an abandonment hearing pursuant to K.S.A. 82a-718 and amendments thereto, the DWR shall first present the verified report specified in K.S.A. 82a-718, and amendments thereto.
(1) The verified report shall be a report of the DWR's investigation into the water use history and shall contain the following:
(A) Documentation that shows the use or nonuse of water authorized by the water right as established by the contents of the DWR water right file and as reported to the DWR, pursuant to K.S.A. 82a-732 and amendments thereto;
(B) the analysis of the documentation used in the verified report by the preparer of the verified report;
(C) a conclusion citing the specific successive years of nonuse to meet the criteria for abandonment found in K.S.A. 82a-718 and amendments thereto; and
(D) the years for which due and sufficient cause for nonuse pursuant to K.A.R. 5-7-1 was reported to the chief engineer pursuant to K.S.A. 82a-732, and amendments thereto, and verified by the DWR.
(2)
(A) If the verified report specified by K.S.A. 82a-718(a), and amendments thereto, establishes that there has been no lawful, beneficial use of water for the period of time specified in K.S.A. 82a-718(a) and amendments thereto and that due and sufficient cause for the nonuse of water has not been reported to the DWR pursuant to K.S.A. 82a-732 and amendments thereto during this period, this shall be considered to be prima facie evidence that the water right has been abandoned.
(B) Upon a determination by the presiding officer that prima facie evidence of abandonment exists, the water right owner shall bear the burden of rebutting the prima facie evidence by a preponderance of the evidence establishing that there had been lawful, beneficial use of water during the time period in question or that due and sufficient cause existed for the nonuse of water during the period of time in question, or both, to avoid the application of K.S.A. 82a-718(a) and amendments thereto.
(3) The DWR may participate in the hearing to the same extent as the owner or owners of the water right.
(4) The DWR shall be heard first at the hearing, unless the presiding officer determines that another order of presentation will facilitate the conduct of the hearing.
(5) The presiding officer shall determine the order in which other parties and interveners may be heard.
(q) During the hearing, all of the following shall apply:
(1) The presiding officer shall not be bound by the technical rules of evidence.
(2) The presiding officer shall give the parties a reasonable opportunity to be heard and to present evidence.
(3) The presiding officer shall give effect to the privileges listed in K.S.A. 60-426 through 436, and amendment thereto, and any other privileges recognized by law.
(4) Evidence shall not be required to be excluded solely if the evidence is hearsay.
(5) All parties may note, in the record, their exceptions to any ruling or other action of the presiding officer.
(6) If the presiding officer sustains an objection to evidence or testimony, the party may make a proffer of the excluded evidence. The presiding officer may add other statements to clearly show the character of the evidence, the form in which the evidence was offered, and the objection and the ruling made. Upon request, the excluded testimony or evidence shall be marked and preserved for the record upon appeal.
(7) Without notice to the parties and without receiving a request from any party, the presiding officer may take administrative notice of the following:
(A) The Kansas water appropriation act and other Kansas statutes;
(B) regulations promulgated by the chief engineer;
(C) orders issued by or on behalf of the chief engineer; and
(D) specific facts and propositions of general knowledge that are so universally known or known within the profession that they cannot reasonably be the subject of dispute or that are capable of immediate and accurate determination by using easily accessible sources of indisputable accuracy.
(8) Upon reasonable notice to the parties and the opportunity to contest and offer rebuttal evidence, the presiding officer may also take administrative notice of any of the following:
(A) Scientific or technical matters within the DWR's specialized knowledge;
(B) the record of other proceedings before the DWR; and
(C) codes and standards that have been adopted by an agency of the United States, the state of Kansas, or any other state or by a nationally recognized organization or association.
(r) The hearing and all prehearing conferences shall be electronically recorded at the expense of the Kansas department of agriculture (KDA).
(1) Copies of electronic recordings may be obtained from the DWR. Written transcripts of the recording shall be available by request, and the requestor shall pay the cost of transcription.
(2) The DWR shall hire and pay for a court reporter if deemed necessary by the presiding officer for the presiding officer's use or for the preservation of testimony for later use in a court proceeding. Written transcripts shall be obtained directly from the court reporter at the requestor's expense.
(s) If the chief engineer has not delegated authority to the presiding officer to issue an order, the presiding officer shall issue written recommendations to the chief engineer after the record of the hearing is closed.
(1) The recommendations shall be signed by the presiding officer and shall contain a statement of the recommended decision and the facts and conclusions of law upon which the recommended decision is based.
(2) The presiding officer shall serve the original, signed recommendations on the chief engineer and a copy of the recommendations on each party and on its counsel of record, if any, in the manner specified in this regulation.
(3) The recommendations shall state that the parties have at least 15 days after service in which to provide written comments to the chief engineer and shall contain a certificate of service. After the record of the hearing is closed, no party may submit additional evidence unless specifically permitted to do so by the presiding officer in advance of the submission. In order to receive permission to submit additional evidence, the party shall file a written request with the presiding officer, in advance, with a copy to each other party. Each other party shall be given a reasonable chance to respond to the request to submit additional information. If additional evidence is allowed, each other party shall be allowed a reasonable opportunity to rebut the additional evidence submitted.
(4) All comments submitted within the specified time frame shall be considered by the chief engineer before issuing an order.
(5) The order shall state that it is subject to review by the secretary of agriculture pursuant to K.S.A. 82a-1901, and amendments thereto.
(t) An order shall be issued by the chief engineer or, if so authorized, the presiding officer after the record of the hearing is closed.
(1) The order shall be signed by the chief engineer or the presiding officer and shall contain a statement of the relevant law and the facts upon which the decision is based.
(2) The order shall be served on each party or its counsel of record in the manner specified in these regulations and shall contain a certificate of service.
(3) If the presiding officer made recommendations to the chief engineer, the order shall state which recommendations, if any, have been accepted by the chief engineer.

Notes

Kan. Admin. Regs. § 5-14-3a
Authorized by K.S.A. 82a-706a; implementing K.S.A. 2008 Supp. 82a-708b, 82a-711, 82a-718, 82a-737, 82a-770, 82a-1038, and 82a-1901; effective March 20, 2009.

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