The process used to cancel an appropriation is sometimes referred to as an adjudication. It begins with the Department conducting a field investigation or reviewing information received from the public or other government entities and information in the Department’s files. Based on the information gathered during the review or investigation, the Department may make a preliminary determination that the water right has not been used in the last five years and that there is no apparent reason why the water right should not be canceled. The owner of the appropriation is given notice of the Department’s preliminary determination and an opportunity to contest it. The Department will provide the landowner with a contest form that must be filled out and filed with the Department within 30 days of issuance. The form lists the reasons considered sufficient cause for nonuse. The owner can check off any reasons that apply to his or her situation and then write down all the facts and other information that will help the Department understand the reasons why the water was not used.
The Department will review the contest form and may change its preliminary determination based on the information provided in the form. If the preliminary determination is changed, the cancellation process is ended. If the Department does not consider the information provided in the form adequate to show sufficient cause for nonuse, it will schedule a hearing to give the appropriation owners a chance to prove that there were sufficient reasons why they did not use the water.
The hearing is considered a contested case hearing and is conducted by a hearing officer in much the same manner as a court trial. The owners may wish to hire an attorney to represent them at the hearing but it is not required. The hearing will be recorded by a court reporter and all witnesses will be required to take an oath. Evidence will be received and all witnesses are subject to cross examination. Based on the evidence given at the hearing, the hearing officer will make a recommendation to the director of the Department about whether or not the appropriation or part of it should be canceled. The director will issue an order canceling all or part of the appropriation or an order dismissing the cancellation procedure. If the director cancels the appropriation, the owner may have the director’s decision reviewed by the Court of Appeals by filing an appeal within 30 days of the director’s decision.
If the owner of the appropriation receives the notice of the Department’s preliminary determination that his or her water right is subject to cancellation and does not return the contest form, the Department will cancel the water right without holding a hearing.