CO Code § 37-92-401 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 92 - Water Right Determination and Administration|Part 4 - Publication of Water Rights Priorities|§ 37-92-401. Tabulations of Priorities and Decennial Abandonment Lists

     The division engineer of each division with the approval of the state engineer shall maintain a tabulation in order of seniority of all decreed water rights and conditional water rights in his or her division. The tabulations must describe each water right and conditional water right by some appropriate means and must set forth the priority and amount thereof as established by court decrees. In making the tabulations, the division engineer may use such system of numbering and listing water rights and conditional water rights in order of seniority as is suited to the administrative needs of the particular division or portion thereof. He or she shall also prepare decennially, no later than July 1, 1990, and each tenth anniversary thereafter, a separate abandonment list comprising all absolute water rights that he or she has determined to have been abandoned in whole or in part and that previously have not been adjudged to have been abandoned.  (a.5) In preparing the tabulations required by this section, the division engineer shall include judgments and decrees determining, changing, or otherwise affecting water rights and conditional water rights, which judgments and decrees have been entered more than six months before the date of review. The division engineer must also include in the tabulations, as appropriate, any changes in earlier abandonment lists that the water judge or the supreme court have ordered.     In determining the priority of a water right in relation to other water rights deriving their supply from the same common source, the following procedures and definitions apply:   A common source means and includes all of those waters in a water division, either surface or underground, that if left in their natural state would join together to form a single natural watercourse before exiting the water division.    As among water rights decreed in the same water district in the same adjudication suit, the historic date of initiation of appropriation determines the relative priorities, beginning with the earliest right.    As among water rights decreed in the same water district in different adjudication suits, all water rights decreed in an adjudication suit are senior to all water rights decreed in any subsequent adjudication suit.    As among water rights decreed in the various original adjudication suits in the various water districts of the same water division, the decreed date of initiation of appropriation determines the relative priorities in numbered sequence, beginning with the earliest right.    As among water rights decreed in the various supplemental adjudication suits in the various water districts of the same water division, the actual priority date of any decree in any district does not extend back further than the day following the entry of the final decree in the preceding adjudication suit in the district.    If, in the preparation of the tabulations provided for in this section, the application of the preceding principles would cause in any particular case a substantial change in the priority of a particular water right to the extent the right was lawfully enjoyed for a period of not less than eighteen years, then the division engineer shall designate the priority for that water right in accordance with historic practice. In no event does this subsection (1)(b)(VI) entitle a water right to a priority senior to its actual date of initial appropriation or to freedom from regulation and administration in the priority system.       In making his or her determinations with respect to abandonment, the division engineer shall investigate the circumstances relating to each water right for which the available water has not been fully applied to a beneficial use and shall be guided by the criteria set out in section 37-92-402 (11). The decennial abandonment list, when concluded by judgment and decree as provided in this section, is conclusive as to absolute water rights or portions thereof determined to have been abandoned.         The state engineer and the respective division engineer shall make a copy of the tabulation available for inspection in their offices at any time during regular office hours, as well as on the state engineer's website, and shall provide a copy of the tabulation for a fee as set forth in section 24-72-205 (5).    No later than July 31, 1990, and every tenth anniversary thereafter, the division engineer shall mail a copy of the respective decennial abandonment list by certified mail, return receipt requested, to the owner or last-known owner or claimant, if known, of every absolute water right that the division engineer has found to have been abandoned in whole or in part. The division engineer shall make an appropriate examination to determine the owner or claimant of such absolute water rights. The division engineer shall also publish the respective portion of the decennial abandonment list in each county in which the points of diversion of any absolute water rights on the list are located. The publication shall be continued for four successive weeks and shall be published, if possible, in a newspaper published in the county where the decreed point of diversion of the water right is located. The publication and mailing requirements of this subsection (2)(b) apply only to absolute water rights or portions of absolute water rights that previously have not been adjudged to have been abandoned.       Any person wishing to object to the manner in which a water right or conditional water right is listed in the tabulation or to the omission of a water right or conditional water right from the tabulation, and not later than July 1, 1991, and every tenth anniversary thereafter, any person wishing to object to the inclusion of any absolute water right or portion thereof in the decennial abandonment list must file a statement of objection in writing with the division engineer.      Not later than December 31, 1991, and every tenth anniversary thereafter, the division engineer shall make any revisions he or she deems proper to the decennial abandonment list. In considering the matters raised by statements of objection, the division engineer may consult with any interested person. The division engineer shall consult with the state engineer and shall make any revisions in the decennial abandonment list determined by the state engineer to be necessary or advisable.    Repealed.    The division engineer shall file the decennial abandonment list, together with any revisions, signed by the division engineer and the state engineer or his or her duly authorized deputy, with the water clerk as promptly as possible, but not later than December 31, 1991, and every tenth anniversary thereafter. Each respective division engineer, water clerk, and the state engineer shall make a copy of the decennial abandonment list, together with any revisions, available for inspection in their offices at any time during regular office hours, as well as on the state engineer's website, and the division engineer shall furnish or mail a copy to anyone requesting a copy upon payment of a fee in an amount set in accordance with section 24-72-205 (1)(b) and (5).    If the decennial abandonment list is revised, the water clerk, in cooperation with the division engineer, not later than January 31, 1992, and every tenth anniversary thereafter, shall provide notice of the revision in the resume described in section 37-92-302 (3) of cases filed in the respective water divisions during the month of December stating that the revision may be inspected or a copy thereof obtained as specified in subsection (4)(c) of this section. In addition, the water clerk shall publish the notice as is necessary to obtain general circulation once in each county or the portion of the county that is in the division.         Any person who wishes to protest the inclusion of any water right in a decennial abandonment list after its revision by the division engineer shall file a written protest with the water clerk and with the division engineer. All such protests to the decennial abandonment list shall be filed not later than June 30, 1992, or the respective tenth anniversary thereafter. Such protest shall set forth in detail the factual and legal basis therefor. Service of a copy of the protest or any other documents is not necessary for jurisdictional purposes, but the water judge may order service of a copy of the protest or any other document on any person and in any manner which he or she may deem appropriate. The fee for filing such protest with the water clerk shall be forty-five dollars.    Fees collected pursuant to paragraph (a) of this subsection (5) shall be transmitted to the state treasurer and divided as follows:   Twenty dollars shall be deposited in the general fund;    Fifteen dollars shall be deposited in the judicial stabilization cash fund created in section 13-32-101 (6), C.R.S.; and    Ten dollars shall be deposited in the justice center cash fund created in section 13-32-101 (7)(a), C.R.S.          Commencing on the September or October term-day of 1992, as provided in section 37-92-304 (1), and every tenth anniversary thereafter, and continuing for as long as may be necessary, the water judge of each division shall conduct hearings on the decennial abandonment list filed by the division engineer and any protests that have been filed with respect thereto. The hearings shall be conducted in accordance with the Colorado rules of civil procedure, the Colorado rules of evidence, and any applicable local rules of court; except that no pleadings other than the protest shall be required. The protestant shall appear either in person or by counsel in support of the protest. The division engineer shall appear in support of the decennial abandonment list, and, if requested by the division engineer, the attorney general shall represent the division engineer. The water judges of the various divisions shall arrange their hearings, if necessary in their discretion, to accommodate counsel and other persons who may be involved in hearings in more than one division. Any person who may be affected by the subject matter of a protest or by any ruling thereon shall be permitted to participate in the hearings, either in person or by counsel, upon timely entry of appearance. Such entry of appearance shall identify the portion of the decennial abandonment list with respect to which the appearance is being made. The water judge may continue the hearings as required to insure that all parties may be heard and their interests adequately protected, and, in this connection, the water judge shall permit such additional protests and order such service of notice and such additional publication of the decennial abandonment list or portions thereof as will serve the ends of justice, it being the intent of the general assembly that the water judge shall have wide discretion in the conduct of such hearings so that the owners of water rights will be protected. After the hearings are concluded, the water judge shall enter a judgment and decree which shall either incorporate the abandonment list of the division engineer as filed or incorporate such list with such modifications and conditions as the water judge may determine proper after the hearings.    If no protests have been filed, then promptly after July 1, 1992, and every tenth anniversary thereafter, the water judge shall enter a judgment and decree incorporating and confirming the decennial abandonment list of the division engineer without modification.    A copy of the judgment and decree entered under subsection (6) or (7) of this section shall be filed with the state engineer and the division engineer and shall be provided by the water clerk to any other person requesting same upon payment of a fee of seventy-five cents per page. Promptly after receiving such judgment and decree, the division engineer and the state engineer shall enter in their records the determinations therein made as to the absolute water rights or portions thereof adjudged to have been abandoned and shall regulate the distribution of water accordingly.    Appellate review shall be allowed to the judgment and decree entered under subsection (6) or (7) of this section or any part thereof as in other water matters, but no appellate review shall be allowed with respect to that part of such judgment or decree which confirms a portion of the decennial abandonment list with respect to which no protest was filed.    Clerical mistakes in the judgment and decree entered under subsection (6) or (7) of this section may be corrected by the water judge on his own initiative or on the petition of any person, and substantive errors therein may be corrected by the water judge on the petition of any person whose rights have been adversely affected thereby and a showing satisfactory to the water judge that such person, due to mistake, inadvertence, or excusable neglect, failed to file a protest to the decennial abandonment list with the water clerk within the time specified in this section. Any such petition under this subsection (10) shall be filed with the water clerk within four years after the date of the entry of such judgment and decree. The water judge shall order such notice of any such correction proceedings as he determines to be appropriate to advise all persons who may be affected thereby. Any order of the water judge making such corrections shall be subject to appellate review as specified in subsection (9) of this section.    The tabulations provided for in this part 4, and any revisions thereto, may be used by the division engineers, the state engineer, and their staffs for administrative purposes. The listing of the water rights in a tabulation shall not create any presumption against abandonment, and the relative listing of water rights in a tabulation shall not create any presumption of seniority. A tabulation shall not be construed to modify special provisions of court decrees adjudicating, changing, or otherwise affecting such water rights or to modify contractual arrangements governing the interrelationship of such water rights. For the purpose of identification and description only, the tabulation may include additional information regarding the water rights listed, but this additional information shall be neither conclusive nor presumptive of the truth or accuracy of the matters contained therein. Nothing in this section or in section 37-92-402, other than those specific provisions relating to the abandonment lists of the division engineers, shall ever be construed to have enhanced or diminished any cause of action or defense which might otherwise exist concerning the administration of water rights in any water division.    Notwithstanding the amount specified for any fee in this section, the state engineer by rule or as otherwise provided by law may reduce the amount of one or more of the fees if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of one or more of the fees is credited. After the uncommitted reserves of the fund are sufficiently reduced, the state engineer by rule or as otherwise provided by law may increase the amount of one or more of the fees as provided in section 24-75-402 (4), C.R.S.     History. Source: L. 69: P. 1212, § 1. C.R.S. 1963: § 148-21-27. L. 71: P. 1335, § 1. L. 73: P. 1527, §§ 1, 2. L. 75: (5) amended, p. 1399, § 1, effective July 1. L. 79: (1)(b)(VI) amended, p. 1379, § 1, effective June 19. L. 83: (1)(a), (2), (3), (4)(a), (4)(c), and (4)(d) amended, (1)(a.5), (1)(c), (6) to (11) added, (5) R&RE, and (4)(b) repealed, pp. 1431, 1432, 1434, 1440, §§ 1, 2, 3, 4, 8, effective June 16. L. 93: (1)(a), (1)(a.5), (2)(a), (3), and (4) amended, p. 397, § 1, effective April 19. L. 98: (12) added, p. 1346, § 77, effective June 1. L. 2003: (5) amended, p. 574, § 7, effective March 18. L. 2007: (5) amended, p. 1539, § 32, effective May 31. L. 2008: (5) amended, p. 2145, § 15, effective June 4. L. 2014: (1)(a), (1)(a.5), (2)(a), (3), and (4)(c) amended,(SB 14-026), ch. 4, p. 81, § 2, effective August 6. L. 2017: (1)(b), (1)(c), (2), and (4) amended,(SB 17-026), ch. 47, p. 148, § 17, effective August 9. History. Source: L. 69: P. 1212, § 1. C.R.S. 1963: § 148-21-27. L. 71: P. 1335, § 1. L. 73: P. 1527, §§ 1, 2. L. 75: (5) amended, p. 1399, § 1, effective July 1. L. 79: (1)(b)(VI) amended, p. 1379, § 1, effective June 19. L. 83: (1)(a), (2), (3), (4)(a), (4)(c), and (4)(d) amended, (1)(a.5), (1)(c), (6) to (11) added, (5) R&RE, and (4)(b) repealed, pp. 1431, 1432, 1434, 1440, §§ 1, 2, 3, 4, 8, effective June 16. L. 93: (1)(a), (1)(a.5), (2)(a), (3), and (4) amended, p. 397, § 1, effective April 19. L. 98: (12) added, p. 1346, § 77, effective June 1. L. 2003: (5) amended, p. 574, § 7, effective March 18. L. 2007: (5) amended, p. 1539, § 32, effective May 31. L. 2008: (5) amended, p. 2145, § 15, effective June 4. L. 2014: (1)(a), (1)(a.5), (2)(a), (3), and (4)(c) amended,(SB 14-026), ch. 4, p. 81, § 2, effective August 6. L. 2017: (1)(b), (1)(c), (2), and (4) amended,(SB 17-026), ch. 47, p. 148, § 17, effective August 9.    Cross references:    For water clerk preparing resume of applications for water rights each month, see § 37-92-302 (3).    For the legislative declaration contained in the 2008 act amending subsection (5), see section 1 of chapter 417, Session Laws of Colorado 2008.     ANNOTATION   Law reviews. For article, ”Use of Colorado Water Rights in Secured Transactions“, see 18 Colo. Law. 2307 (1989).   The deadline to prepare an abandonment list under subsection (1)(a) is directional and is not a jurisdictional mandate. The water court does not lose jurisdiction to adjudicate water rights because of a procedural mistake that does not harm the owner of the rights. Protest of McKenna v. Witte, 2015 CO 23, 346 P.3d 35.   Water rights derive their supply from the same common source even though they concern sections of a ditch separated by a driveway because the water in the ditch routinely overflowed the driveway and rejoined the ditch downstream. Water Rights of Huffaker, 2019 CO 28, 439 P.3d 1224.   Stream administration. Streams independently appropriated remain independent under the doctrine of prior appropriation unless the water of those streams becomes subject to equitable apportionment by compact, in which case the streams must be administered as mandated by the compact or statutory provisions for priority administration of water rights. Alamosa-La Jara Water Users Prot. Ass'n v. Gould, 674 P.2d 914 (Colo. 1983).   Diversions made pursuant to water right considered historical use where not ordered discontinued. Where the water commissioner was aware of the landowners' diversions of water and had never ordered them to be discontinued or limited, the diversions made pursuant to a water right, though not in priority, could be considered as establishing an historical use for the purpose of the change of water right. Se. Colo. Water Conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981).   Effect of failure to comply with § 37-92-301 (4) . The water court is not estopped from cancelling an 1889 conditional decree because that decree was included in a 1974 tabulation of water rights priorities prepared by the division engineer, if owners of the decree fail to comply with § 37-92-301(4) . In re Simineo v. Kelling, 199 Colo. 225 , 607 P.2d 1289 (1980).   State engineer's authority to apply compact tributary rule. A compact requiring administration of the Rio Grande mainstem and Conejos river according to delivery schedules that did not include the contributions of three creeks as significant to the delivery obligation did away with the state engineer's authority to apply the tributary rule of the compact to the three creeks. Alamosa-La Jara Water Users Prot. Ass'n v. Gould, 674 P.2d 914 (Colo. 1983).   Removal of water rights from the abandonment list alone is insufficient to rebut a presumption of an intent to abandon that is based upon substantial evidence; rather, the list is simply evidence that the water court may consider and does not constitute a definitive decree or judgment on the water rights in question. Haystack Ranch, LLC v. Fazzio, 997 P.2d 548 (Colo. 2000).   Applied in Kuiper v. Atchison, T&SF Ry., 195 Colo. 557 , 581 P.2d 293 (1978); Consol. Home Supply v. Town of Berthoud, 896 P.2d 260 (Colo. 1995).