Nazarenus Stack & Wombacher
NSWResources (14).png

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

Water Court Process

Colorado water courts have exclusive jurisdiction over “water matters,” which includes the adjudication of new water rights. Additional information about the scope of the water court’s jurisdiction can be found here

The water court process typically starts with the filing of a water court application. The application could, for example, seek a new water right, a change of water right, or contain some other type of water court claim. All of the water court applications that are filed in a given month are subsequently published in what is known as the water court “resume.” A “resume” is published for each of the 7 water divisions and describes the water court applications that were filed in the previous month. More information about how to find the water court resumes can be found here.

Parties who wish to oppose the relief sought in a water court application have two months, commencing on the first of the month following the month in which the application was filed, to file a statement of opposition with the water court. The water court resume will specify the deadline for filing opposition. Filing a statement of opposition gives parties an opportunity to ensure that the new water court application does not result in injury to other water rights.

Typically, within 35 days of the deadline for filing statements of opposition, the Division Engineer’s Office will file a “Summary of Consultation” that provides input from the Division Engineer on the claims in the application and potential terms and conditions for the court to include in the final decree. If the Division Engineer files a statement of opposition then it will not file a “Summary of Consultation.” Initially, the case will proceed before a “water referee,” whose job it is to try to facilitate a settlement between the applicant and any opposing parties.

If the application receives no opposition then the water referee will ask the applicant to submit a proposed decree that describes the operation of the water right and addresses any issues described in the Summary of Consultation. Once the water referee is convinced that the proposed decree is incompliance with the law, he or she will enter the proposed decree as a “Ruling of the Referee.” Once this Ruling is entered, parties (including the applicant) have 21 days to object to the Ruling. If there is no objection, then the Ruling will be approved by the water judge and entered as a final water court decree, thereby closing the water court case.

If the application receives opposition then the water referee will host an initial status conference during which he or she will set deadlines for the applicant to provide engineering support for the application and a draft proposed decree to the opposers. This will start an iterative process whereby the applicant provides supporting information to opposers, the opposers provide comments and concerns to the applicant, and the applicant amends the decree to address the concerns raised by the opposers. This referee process can last up to 18 months, and the hope is that the parties can reach a settlement and agree to terms and conditions that restrict the claims in the water court application such that they do not result in injury. If a settlement is not reached after 18 months or if a party decides that settlement is unlikely to occur before the water referee, then the case will be “re-referred” to the water judge and scheduled for a trial

Once the case is set for trial, the Colorado Rules of Civil Procedure and the Colorado Rules of Water Court practice dictates a series of deadlines leading up to the trial date. These include deadlines for conducting discovery, disclosing expert witnesses and their opinions, filing certain types of motions, circulating witness and exhibit lists for trial, and filing trial briefs, among others. If the case is not settled before trial then the water judge will hear the evidence presented by the parties and makea determination as to the relief requested in the application. While the legal standards that apply to water court applications vary depending on the type of application, the primary standard is “no-injury.” In other words, the application must not result in injury to existing water rights. In the event that a party appeals the decision of the water judge, that appeal will be presented immediately to the Colorado Supreme Court. Because water issues are so important there is no intermediate court of appeals for water court cases and all appeals go directly to the Colorado Supreme Court.

If you have questions about the water court process or need assistance navigating this process, please reach out to the water attorneys at Nazarenus Stack & Wombacher LLC

William Wombacher