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
Universal Citation: ID Admin Code 37.01.01.730
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)
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