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Water Rights Resources

Water law is complex, nuanced, and can be difficult to understand. We delve into common water law concepts and provide tutorials that describe how it use publicly available tools to learn more about water rights. To this end, below are a series of articles that are designed to help parties develop a general understanding of some of the basic principles of water law. The information provided below is for educational purposes only and if you have specific questions about your water rights, please contact the attorneys at Nazarenus Stack & Wombacher for legal advice. Use of this information is explicitly subject the website disclaimer available at this link https://www.nswlaw.com/disclaimer

Retained Jurisdiction

Pursuant to statute, certain types of water court decrees are required to establish a period of time during which the water court can reevaluate is prior conclusion on the question of injury to other water rights.  This period of time is known as ‘retained jurisdiction.’  It applies to water court decrees for augmentation plans and changes of water rights, and is intended to serve as a reality check after a change or plan for augmentation has been decreed to ensure that the anticipated impacts are consistent with what actually occurs after the decree is entered.   The period of retained jurisdiction is established by the water court judge for such time as is “necessary or desirable to preclude or remedy any such injury.”  The period of retained jurisdiction can also be extended by a subsequent decision of the water court. 

A party seeking to invoke reconsideration of injury under retained jurisdiction has the initial burden of establishing that injury has occurred or is likely to occur to their water rights from placing the change of water right or augmentation plan into operation.  This can be done, for example, through verified petitions and affidavits demonstrating actual or anticipated injury that is likely to occur based on operating experience.  Upper Eagle Reg’l Water Auth. v. Wolfe, 230 P.3d 1203, 1206 (Colo. 2010).  Injury must be demonstrated by evidential facts and not potentialities.  WAS v. Centennial, 435 P.3d 469, 475-476 (Colo. 2019).  Upon such a showing, the burden of showing non-injury shifts to the decree holder.  Farmers Reservoir & Irrigation Co. v. Consol. Mut. Water Co., 33 P.3d 799, 812 (Colo. 2001).

Retained jurisdiction is not a mechanism through which the court can consider the question of injury for the first time.  City of Aurora v. Simpson, 105 P.3d 595, 616 (Colo. 2005).  Retained jurisdiction cannot substitute for the fact-specific determination of noninjury that occurs at trial.  Id.  The focus of retained jurisdiction is not upon changed circumstances or unanticipated injury.  Consolidated Mutual, 33 P.3d at 810-811.  Retained jurisdiction does not authorize indefinite continuation of a decree, or create a context for reviewing the adjudicated merits of consumptive use determinations.  Id. at 813.

In the event that a party is successful in invoking the water court’s retained jurisdiction and the water court agrees that the prior terms and conditions are insufficient to protect against injury, then the water court can add additional terms and conditions to the decree to ensure that no party is injured.

If you have questions about retained jurisdiction please reach out to the attorneys at Nazarenus Stack & Wombacher LLC.

William Wombacher