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Colorado Colorado Water Right Adjudication Process (19-CO-g)

Under Colo. Const. Art. XVI, Section 6 - Diverting Unappropriated Water, Colorado follows the prior appropriation system (first in time, first in right) for the distribution of water use. The prior appropriation system is common in the western United States. CRS 37-92-102. However, unlike many states that strictly employ a permit system to assign priority in water rights, Colorado employs different systems depending on whether the source is surface water and tributary ground or non-tributary groundwater. CRS 37-92-102. The water of every natural stream and any water that is tributary to the natural stream, including groundwater, is subject to a process under C.R.S. 37-92-301, Water Rights Determination and Administration Act of 1969 in which water courts issue a judgment and decree on specific water rights.


The C.R.S. 37-92-301, Water Rights Determination and Administration Act of 1969 created seven water divisions. Each water division is staffed with a division engineer, appointed by the State Engineer; a water judge, appointed by the Colorado Supreme Court; a water referee; appointed by the water judge; and a water clerk, assigned by the district court. C.R.S. 37-92-301, Water Rights Determination and Administration Act of 1969. Water judges have jurisdiction to determine water rights, the use and administration of water, and all other matters within the jurisdiction of the water divisions. CRS 37-92-203, Water Judges-Jurisdiction.

The adjudication process below applies to those seeking a water court decree for an absolute or conditional water right, a finding of reasonable diligence, an exchange, a right to withdraw nontributary water or Denver Basin groundwater that is outside a designated groundwater basin (well permits), or approval of a plan for augmentation or change of water right. CRS 37-92-302(1)(a); Non-Attorney’s Guide to Colorado Water Courts, at p.16.

Hydropower

Colorado considers most hydropower generating facilities a non-consumptive use, since the facility diverts water and returns the water to the river in the same amount, and the facility does not consume water through power generation. Colorado Small Hydropower Handbook, at p.10; Public Service Co. of Colorado v. FERC, 754 F.2d 1555, 1565 (10th Cir. 1985). Therefore, a developer will likely need to get water court approval for a change of water right and/or a plan for augmentation. However, if the project requires the construction of a reservoir to hold water or a canal feeds the hydropower plant or pumped storage facility, Colorado may consider the project a consumptive water use. Colorado Small Hydropower Handbook, at p.10. Thereby, the developer of a pumped storage facility, for example, may gain temporary approval of a plan for augmentation or a change of water right through a Substitute Water Supply Plan (SWSP) issued by the State Engineer. For more information, see:

New Water Right Process for Surface Water and Tributary Ground Water:
19-CO-e

Substitute Water Supply Plan:
19-CO-f


Colorado Water Right Adjudication Process Process

19-CO-g.1 – Show Intent to Divert, Put Water to Beneficial Use, and Demonstrate Intent to Divert in Open and Physical Manner (If Applicable)

In order to initiate the court adjudicated appropriation process in Colorado for a new absolute water right or conditional water right determination, the water user must begin by showing intent to divert water from the source. City & County of Denver v. Northern Colo. Water Conservancy Dist., 130 Colo. 375, 276 (1954). In addition, the water user must put the water to a beneficial use, and demonstrate the intent to divert the water in an open and physical manner sufficient to put other parties on notice of the intent to appropriate water. Colo. River Water Conservation Dist. v. City & County of Denver, 642 P.2d 510 (1982); Central Colo. Water Conservancy Dist. v. City & County of Denver, 189 Colo. 272, 539 (1975); Harvey land & Cattle Co. v. Southeastern Colo. Water Conservancy Dist., 631 P.2d 1111 (1981).

19-CO-g.2 –Applicable Water Right/Approval Application

For all water court decrees the developer must file a verified application setting forth the facts supporting the decree of a water right or approval with the water court clerk. C.R.S. 37-92-302(1)(a).

New Absolute or Conditional Water Right Determination

A developer must file the applicable verified Water Right Application (surface, water storage, underground, or exempt well) for a water right or conditional water right determination, by the water court to the clerk of the water court. C.R.S. 37-92-302(1)(a); See, Colorado Water Court Application Forms. This includes determinations of the amount and priority of that water right and a determination that a conditional water right has become a water right by completion of the appropriation. C.R.S. 37-92-302(1)(a). The application must include at minimum:

  • A legal description of the diversion or proposed diversion;
  • A description of the source of the water;
  • A description of the date of the initiation of the appropriation or proposed appropriation;
  • A description of the amount of water claimed; and
  • A description of the use or proposed use of the water.

C.R.S. 37-92-302(2)(a).

Change of Water Right or Plan for Augmentation

A developer must file the applicable verified application for a change of water right or plan for augmentation approval (simple change in surface point of diversion, change of water right, approval for plan for augmentation), with the water court to the clerk of the water court. C.R.S. 37-92-302(1)(a); See, Colorado Water Court Application Forms. The application must include, at minimum:

  • A complete statement of such change or plan, including a description of all water rights to be established or changed by the plan;
  • A map showing the approximate location of historic use of the rights; and
  • Records or summaries of records of actual diversions of each right the applicant (developer) intends to rely on to the extent such records exist.

C.R.S. 37-92-302(2)(a).

Note: Certain Change in Water Right and Plan for Augmentation application approvals may qualify for interim approval by the State Engineer. CRS 37-92-308(4)(a), (5)(a). The State Engineer has authority to approve temporary operation of a change of water right or plan for augmentation through a Substitute Water Supply Plan (SWSP). CRS 37-92-308(4)(a), (5)(a). The State Engineer may approve a SWSP, if the developer files the application with the water court, where the court has yet to issue a decree or if the depletion associated with the plan or water right is five years or less. CRS 37-92-308(4)(a), (5)(a).

The developer should consult 19-CO-e – New Water Right Process for Surface Water and Tributary Ground Water to determine whether their project qualifies for temporary approval under an SWSP. See, New Water Right Process for Surface Water and Tributary Ground Water:
19-CO-e

For more information on SWSPs, see: Substitute Water Supply Plan:
19-CO-f

19-CO-g.3 – Provide Notice of Application

Within fourteen (14) days after filing the application, the applicant (developer) must give notice of the application by registered or certified mail, return receipt requested, to:

  • In the case of groundwater in non-designated groundwater basins (as described in C.R.S. 37-90-137 (4)), every record owner of the overlying land and every person who has a lien or mortgage on, or deed of trust to the overlying land recorded in the county where the overlying land is located; and
  • The owner of the land upon which any new diversion or storage structure or modification to any existing diversion or storage structure or pool is or will be constructed or upon, which water is or will be stored.

C.R.S. 37-92-302(2)(b).

19-CO-g.4 – Send Application to State Engineer and Division Engineer

The water court clerk must send a copy of the application to the state and division engineer. C.R.S. 37-92-302(1)(b).

19-CO-g.5 – Prepare Resume for Publication

No later than the fifteenth day of each month, the water court clerk must prepare a resume of all the applications in the water court, which applicants have filed in that office during the previous month (for resumes that are not provided by the applicants). The resume must include:

  • The name and address of the applicant (developer);
  • A description of the water right or conditional water right involved; and
  • A description of the ruling sought.

C.R.S. 37-92-302(3)(a).

19-CO-g.6 – Publish Resume in Newspaper and Post on Water Court’s Website

By the end of each month, the water court clerk must publish each resume or portion of each resume in a newspaper or newspapers of general circulation in every affected county (as determined by the water judge). C.R.S. 37-92-302(3)(b). Additionally, the water court clerk must post a copy of the resume on the Water Court’s website. C.R.S. 37-92-302(3)(c)(I)(D). The water court clerk will notify each person who has requested a copy of the resume by submitting his or her name and electronic mail address to the water court clerk that the resume is available on the Water Court’s website. C.R.S. 37-92-302(3)(c)(I)(D).

19-CO-g.7 — Distribute Resume

The water court clerk or water referee must send a copy of the resume by mail or electronic mail to any person who the referee has reason to believe will be affected by the water right judgment and decree. The water court clerk or water referee also must send a copy to the State Engineer and division engineer. C.R.S. 37-92-302(3)(c)(I)(D)-(E).

19-CO-g.8 to 19-CO-g.10 – Does Any Party Oppose the Application?

Any person, including the State Engineer, who wishes to oppose the application, may file a verified statement of opposition with the water court clerk. C.R.S. 37-92-302(1)(b). The statement of opposition must state why the water judge should not grant the application or why the water judge should only grant the application in part or place conditions on the water judgment and decree. C.R.S. 37-92-302(1)(b). The water clerk will send any statements of opposition to the state and division engineer. C.R.S. 37-92-302(1)(b).

Any person filing a statement of opposition must file the statement by the last day of the second month following the month in which the developer files the application. C.R.S. 37-92-302(c).

19-CO-g.11 – Investigate Statements in Water Right Application and Statement of Opposition

Without conducting a formal hearing, the water referee makes necessary investigations to determine whether the statements in the application and the statements of opposition are true. The water referee also makes necessary investigation to understand the subject matter of the applications and the statements of opposition. C.R.S. 37-92-302(4).

19-CO-g.12 – Consult with State and Division Engineer

The water referee consults with the state and division engineers on the Water Right/Approval Application and the Statement of Opposition. C.R.S. 37-92-302(4).

19-CO-g.13 – Consultation Report; Determination of Facts (If in Denver Basin)

The state and/or division engineer consulted by the water referee must file a report in writing on the Water Right or Plan for Augmentation Approval Application and Statement of Opposition within thirty-five (35) days, unless the time is extended by the referee. The state and/or division engineer must file the original report with the water court proceedings and the division engineer must send a copy of the report to the applicant (developer) or the applicant’s (developer) attorney. C.R.S. 37-92-302(4). In the case of applications for determinations of groundwater rights from sources outside of a designated basin and not meeting the exemptions in C.R.S. 37-92-602 to withdraw nontributary groundwater or Denver Basin groundwater, the State Engineer must issue a Determination of Facts within four months of the applicant (developer) filing the application. The Determination of Facts will provide the water court with the Colorado Division of Water Resources' position on the amount of water legally available from each aquifer, any existing appropriations of such water, the nontributary vs. not-nontributary status of the groundwater, and the depths to the aquifer. C.R.S. 37-92-302(4).

19-CO-g.14 – Send Copy of State/Division Engineer's Consultation Report to Parties of Record

The applicant (developer) or the applicant’s (developer) attorney must send a copy of the State/Division Engineer Report to all parties of record. The applicant (developer) must certify they have sent a copy of the report to all parties of record before the ruling on the Water Right and/or Approval of Plan for Augmentation Application may be entered and become effective. C.R.S. 37-92-302(4).

19-CO-g.15 to 19-CO-g.17 - Does the Water Referee Re-Refer the Matter to the Water Judge?

The water referee may re-refer the matter to the water judge without making a ruling within sixty-three (63) days following the last month in which Statements of Opposition may be filed with respect to a particular Water Right Application, unless the water judge extends the time for good cause. C.R.S. 37-92-303(1).

Additionally, the referee must re-refer the matter to the water judge before the referee’s hearing, if the applicant (developer) or any opposing party (certifying that party’s intent to protest an adverse ruling of the referee) files a motion to re-refer. C.R.S. 37-92-303(2).

The water court clerk must send a copy of the Order Re-Referring the Matter to Water Judge to the applicant (developer). The water court clerk must also send a copy of the Order Re-Referring the Matter to the Water Judge to each person who filed a Statement of Opposition and to the state and division engineers by regular or electronic mail. C.R.S. 37-92-303(2).

If the water referee re-refers the Water Right and/or Plan for Augmentation Application to the water judge before consultation, the division engineer must file a written recommendation in the proceedings within thirty-five (35) days of re-referral unless the time is extended by the court. C.R.S. 37-92-303(2).

The division engineer must send copies to the applicant (developer) or the applicant’s (developer) attorney, who will send copies to the other parties. C.R.S. 37-92-303(2).

19-CO-g.18 – Make Ruling on Water Right/Approval Application and File with Water Court Clerk

The water referee must make a ruling on the Water Right and/or Plan for Augmentation Application within sixty-three (63) days after the last day on which statements of opposition may be filed, unless the water judge for good cause extends the time. The water referee’s ruling may disapprove the application in whole or in part in the discretion of the referee even if no Statements of Opposition are filed. The ruling must give:

  • The names of the applicants with respect to each water right or conditional water right involved;
  • The location of the point of diversion or place of storage;
  • The means of diversion;
  • The type of use;
  • The amount and priority; and
  • Other pertinent information.

C.R.S. 37-92-303(1).

19-CO-g.19 – Send Ruling to Interested Parties

The water clerk sends a copy of the ruling to the applicant (developer), each person who filed a Statement of Opposition, the State Engineer, and the division engineer. C.R.S. 37-92-303(1).

19-CO-g.20 to 19-CO-g.21 – Does a Party Protest or Support the Ruling?

Within twenty-one (21) days after the water clerk mails the ruling, any person, including the state engineer, that wants to protest or support a ruling of the referee may file a pleading with the water clerk and mail a copy to all parties. The pleading must identify the matter and state the factual and legal grounds for the protest or support of the ruling. C.R.S. 37-92-304(2).

19-CO-g.22 – Set Hearing Date; Hold Hearing

The water judge for a particular division sets a hearing date for matters in which parties have filed a protest or where the water referee has re-referred the matter to the water judge. Hearings are set as follows:

  • Division 1 – First Tuesday of March and September;
  • Division 2 – Second Tuesday of March and September;
  • Division 3 – Third Tuesday of March and September;
  • Division 4 – Fourth Tuesday of March and September;
  • Division 5 – First Tuesday of April and October;
  • Division 6 – Second Tuesday of April and October; and
  • Division 7 – Third Tuesday of April and October.

C.R.S. 37-92-304(1). The water judge holds a de novo hearing (i.e., starts at the beginning and is not bound by the water referee’s findings) for matters in which a party has filed pleadings or the water referee has re-referred the matter to the water judge. C.R.S. 37-92-304(3).

19-CO-g.23 – Confirm, Reverse, or Remand Ruling

For matters where the water referee has re-referred the matter to the water judge, the water judge’s decision is final and may contain provisions that the water judge believes are appropriate. C.R.S. 37-92-304(5). For matters where a party has filed a protest to the water referee’s ruling, the water judge will confirm, modify, reverse, or reverse and remand the ruling. C.R.S. 37-92-304(5).

19-CO-g-24 – Water Right/Approval Decree

The water judge enters a judgment and decree for the Water Right and/or approval Plan for Augmentation Application in question. The water judge may confine the judgment and decree to one matter or may encompass multiple matters. The judgment and decree must include:

  • The names of the applicants with respect to each water right or conditional water right;
  • The location of the point of diversion or place of storage;
  • The means of diversion;
  • The type of use;
  • The amount and priority; and
  • Other pertinent information.

C.R.S. 37-92-304(7). In decrees dealing with a plan of augmentation, the judgment and decree must include a complete statement of the plan of augmentation. C.R.S. 37-92-304(7).

19-CO-g.25 – File Decree with State and Division Engineer and Provide to Other Parties Requesting a Copy

The water court clerk must file a copy of the judgment and decree with the State Engineer and division engineer. In addition, the water clerk must provide a copy of the judgment and decree to any other person requesting a copy for a fee of seventy-five cents per page. C.R.S. 37-92-304(8).

19-CO-g.26 – Enter Decree Into Records

The state and division engineer must enter the Water Right Decree in their records. The entry must include the priority, location and use of the water right or conditional water right. C.R.S. 37-92-304(8).

19-CO-g.27 – Appeal to Colorado Supreme Court (If Contested)

Except for a part of the judgment and decree, which confirms a ruling of the water referee for which a party did not file a protest, any interested person may file an appeal of the judgment and decree to the Colorado Supreme Court. C.R.S. 37-92-304(6).




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