Colorado § 25-8-404 - Judicial review.

§ 25-8-404. Judicial review.

(1) Any final rule, order, or determination by the division or the commission, including but not limited to classification of state waters, approval of areawide waste treatment management plans, water quality standards, site approvals, permits, control regulations, enforcement orders, cease-and-desist orders, and clean-up orders, shall be subject to judicial review in accordance with the provisions of this article and article 4 of title 24, C.R.S. All regulations, orders, and determinations of the commission or division shall be adopted, promulgated, or issued in accordance with the provisions of said article 4 of title 24.

(2) Any proceeding for judicial review of any final order or determination of the commission or division shall be filed in the district court for the district in which the pollution source affected is located.

(3) Any proceeding for judicial review of any final rule, order, or determination of the commission or division shall be filed within thirty days after said rule, order, or determination has become final. Rule-making determinations shall become final in accordance with the "State Administrative Procedure Act". Quasi-judicial determinations shall become final upon issuance of such determinations to those parties to the proceedings. The period for filing the action for judicial review shall be stayed while any application for a hearing, rehearing, or reconsideration is pending pursuant to section 25-8-403, and the period during which any such application is pending shall extend the time for filing a proceeding for judicial review an equal length of time.

(4) (a) Except with respect to emergency orders issued pursuant to section 25-8-307, any person to whom a cease-and-desist order, clean-up order, or other order has been issued by the division or commission, or against whom an adverse determination has been made, may petition the district court for a stay of the effectiveness of such order or determination. Such petition shall be filed in the district court in which the pollution source affected is located.

(b) Such petitions may be filed prior to any such order or determination becoming final or during any period in which such order or determination is under judicial review.

(c) Such stay shall be granted by the court if there is probable cause to believe that refusal to grant a stay will cause serious harm to the affected person or any other person, and:

(I) That the alleged violation or activity to which the order or determination pertains will not continue, or if it does continue, any harmful effects on state waters will be alleviated promptly after the cessation of the violation or activity; or

(II) That the refusal to grant a stay would be without sufficient corresponding public benefit.

(5) Any party may move the court to remand the case to the division or the commission in the interests of justice, for the purpose of adducing additional specified and material evidence, and findings thereon; but such party shall show reasonable grounds for the failure to adduce such evidence previously before the division or the commission.

(6) If the court does not stay the effectiveness of an order of the commission or division, the court shall enforce compliance with that order by issuing a temporary restraining order or injunction at the request of the commission or division.

Source: L. 81: Entire article R&RE, p. 1325, § 1, effective July 1.

ANNOTATION

Formal party status is not prerequisite to right of judicial review under § 24-4-106 (4), and by analogy, under subsections (1) and (2) so long as the concerned plaintiff can show that it is adversely affected or aggrieved by any agency action. Town of Frederick v. Colo. Water Quality Control Comm'n, 628 P.2d 129 (Colo. App. 1980).

Where there is no final order, judicial review is not available under this section. Nat'l Wildlife Fed'n v. Cotter Corp., 665 P.2d 598 (Colo. 1983).

The standard for review of the constitutionality of administrative regulations is beyond a reasonable doubt and not clear and convincing evidence. Stone Envir. Eng. Serv. v. State Dept. of Health, 762 P.2d 737 (Colo. App. 1988).

The doctrine of separation of powers prohibits the court from ordering an administrative agency to perform a certain function. Stone Envir. Eng. Serv. v. State Dept. of Health, 762 P.2d 737 (Colo. App. 1988).

Complaint seeking district court review of executive director's order was properly dismissed as falling outside the 30-day window for seeking judicial review under this statute. The deadline for seeking judicial review under this statute, and not the 35-day deadline provided under the State Administrative Procedure Act, applied to the final order regarding appellant's groundwater discharge permit. Peabody Sage Creek Min. v. Pub. Health, 2020 COA 127, 484 P.3d 730.

Applied in Colo. Water Quality Control Comm'n v. Town of Frederick, 641 P.2d 958 (Colo. 1982); Parrish v. Water Quality Control Div., 934 P.2d 913 (Colo. App. 1997).