CO Code § 37-90-115 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 90 - Underground Water|§ 37-90-115. Judicial Review of Actions of the Ground Water Commission or the State Engineer

     Any party, including a ground water management district, adversely affected or aggrieved by any decision or act of the ground water commission, except for the adoption of rules, under the provisions of this article or by a decision or act of the state engineer under section 37-90-110 may take an appeal to the district court in the county wherein the water rights or wells involved are situated.      The notice of such appeal shall be served by the appellant upon the state engineer or the commission and all interested parties within thirty-five days after the notice of such decision or act and, unless such appeal is taken within said time, the action of the state engineer or the commission shall be final and conclusive. For purposes of service only, ”all interested parties“ shall be limited to those parties which appeared at, and were granted party status in, any administrative hearing held by the commission or state engineer concerning the decision or act from which the appeal is taken. If no administrative hearing has been held, notice of such appeal shall be given by publication pursuant to section 37-90-112. (b) (I) The notice of such appeal shall be served by the appellant upon the state engineer or the commission and all interested parties within thirty-five days after the notice of such decision or act and, unless such appeal is taken within said time, the action of the state engineer or the commission shall be final and conclusive. For purposes of service only, ”all interested parties“ shall be limited to those parties which appeared at, and were granted party status in, any administrative hearing held by the commission or state engineer concerning the decision or act from which the appeal is taken. If no administrative hearing has been held, notice of such appeal shall be given by publication pursuant to section 37-90-112.    Notice of such appeal, proof of service, and docketing of the appeal in the district court shall be accomplished in the same manner as any other civil suit originally commenced in the district courts of this state. Costs shall be charged to the appellant as in any other civil suit.    A district court shall review the commission's or state engineer's decision or action de novo, considering only evidence that was taken in the administrative proceeding appealed from and included in the record. The district court shall consider evidence in its determination of the matter if the evidence:   Was wrongly excluded at the administrative proceeding; or    Existed at the time of the administrative proceeding but was discovered after the administrative proceeding and, in the exercise of good faith and reasonable diligence, could not have been made available and offered at the administrative proceeding.       It is the duty of the commission or the state engineer, upon being served with a notice of appeal pursuant to this section, to transmit to the district court to which the appeal is taken the papers, maps, plats, field notes, orders, decisions, and other available data affecting the matter in controversy or certified copies thereof, which certified copies shall be admitted in evidence as of equal validity with the originals.    For the purpose of maximizing continuity in the disposition of designated groundwater cases, on or before January 10 of each year, the supreme court shall designate or redesignate a designated groundwater judge for each designated groundwater basin, who shall be selected from a judicial district within which some part of that designated groundwater basin lies, and any vacancy that occurs during such year shall be filled by designation of the supreme court. The services of each designated groundwater judge shall be in addition to such judge's regular duties as a district judge but shall take priority over such regular duties, and the schedules of the district judges in each such judicial district shall be arranged and adjusted so that the designated groundwater judge shall be free to hear designated groundwater cases. All cases relating to designated groundwater which are filed in each judicial district shall be assigned to the designated groundwater judge, and all proceedings regarding said cases shall be heard by the designated groundwater judge. If it becomes necessary during any year for the proper handling of designated groundwater cases in any judicial district, the supreme court shall designate one or more additional designated groundwater judges from that judicial district or may make temporary assignments of other judges to hear such cases.          Any party adversely affected or aggrieved by a rule adopted by the ground water commission may take an appeal pursuant to section 24-4-106, C.R.S.      History. Source: L. 65: R&RE, p. 1256, § 1. C.R.S. 1963: § 148-18-14. L. 79: Entire section R&RE, p. 1374, § 7, effective June 7. L. 83: Entire section R&RE, p. 1416, § 2, effective June 10. L. 85: (2) amended and (6) added, p. 1176, § 7, effective May 31. L. 94: Entire section amended, p. 1747, § 4, effective July 1. L. 2012: (1)(b)(I) amended,(SB 12-175), ch. 208, p. 883, § 153, effective July 1. L. 2017: (1)(b)(III) amended,(SB 17-036), ch. 140, p. 468, § 2, effective August 9. History. Source: L. 65: R&RE, p. 1256, § 1. C.R.S. 1963: § 148-18-14. L. 79: Entire section R&RE, p. 1374, § 7, effective June 7. L. 83: Entire section R&RE, p. 1416, § 2, effective June 10. L. 85: (2) amended and (6) added, p. 1176, § 7, effective May 31. L. 94: Entire section amended, p. 1747, § 4, effective July 1. L. 2012: (1)(b)(I) amended,(SB 12-175), ch. 208, p. 883, § 153, effective July 1. L. 2017: (1)(b)(III) amended,(SB 17-036), ch. 140, p. 468, § 2, effective August 9.    ANNOTATION   Law reviews. For article, ”Nontributary Groundwater: The Continuing Saga“, see 13 Colo. Law. 68 (1984).   General assembly not prevented from placing water adjudication jurisdiction in commission. Although in Colorado jurisdiction for water adjudication has traditionally been in the courts, there is nothing in the state constitution -- and particularly nothing in § 6 of art. XVI -- to prevent the general assembly from placing such jurisdiction in a different agency, such as the ground water commission in the case of designated ground water, considering that such determinations are appealable to the courts. In re Water Rights in Irrigation Div. No. 1, 181 Colo. 395 , 510 P.2d 323 (1973) (decided under former law).   Where the water involved is designated ground water, jurisdiction over which was given to the ground water commission, and the location of the land and water is in a county, the district court of that county has jurisdiction of the action. Larrick v. District Court, 177 Colo. 237 , 493 P.2d 647 (1972).   Collateral attack on commission decision impermissible. Where ground water users failed to object to or appeal from the formation of a ground water district, their collateral attack on the decision of the commission to include their land within the boundaries of the district was impermissible. In re Water Rights in Irrigation Div. No. 1, 181 Colo. 395 , 510 P.2d 323 (1973) (decided under former law).   Any person dissatisfied with any decision of the commission may take an appeal to the appropriate district court and those proceedings shall be de novo. Should a person take a timely appeal even after the commission's review and approval of a management district's proposed corrective measure, the measure would remain inoperative and without legal effect until the court should approve it; therefore, by this elaborate reviewing scheme, the general assembly intended to allow for the full development of issues and interests and their cautious scrutiny by both the agency and state judiciary before a decision or regulation would become operative upon persons having such a vital interest affected as the use and appropriation of water. Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968 ).   Appeals from actions of the water commission should be taken to the court of the county wherein the water rights or wells are situated. North Kiowa-Bijou Mgt. Dist. v. Ground Water Comm'n, 180 Colo. 314 , 505 P.2d 377 (1973).   Subject matter jurisdiction for appeal of denial of application is invoked by the filing of a timely notice of appeal in the district court. While service of notice of the appeal requires personal service on all interested parties, accomplishing personal service within 30 days is a procedural requirement the violation of which does not mandate, but may justify, dismissal of the appeal. Thus, district court's dismissal of appeal for lack of subject matter jurisdiction is reversed and remanded for a hearing to determine whether the failure to timely serve all interested parties is sufficient cause for dismissal of the appeal. Eagle Peaks Farm v. Ground Wtr. Mgmt. Dist., 7 P.3d 1006 (Colo. App. 1999).   Review of state engineer's actions on well permit applications. The modified doctrine of prior appropriation provided for in the Colorado ground water management act applies to nontributary ground water, and rights to such water in designated ground water basins must be obtained through the procedures established in that act. Rights to nontributary ground water not located in a designated basin may be obtained only through application for a well permit from the state engineer under § 37-90-137 . Review of the state engineer's action on well permit applications may be obtained under § 24-4-106 , as prescribed by this section, for appeals taken before the 1983 revision of this section became applicable. State Dept. of Natural Res. v. Southwestern Colo. Water Conservation Dist., 671 P.2d 1294 (Colo. 1983), cert. denied, 466 U.S. 944, 104 S. Ct. 1929, 80 L. Ed. 2d 474 (1984).   The ”acts“ and ”decisions“ of the commission referenced in this section are non-rulemaking in nature, such as those involving the application of statutes or rules to specific well permit applications, water rights, change of water rights, or other matters focusing on particular water users in specific circumstances. Colo. Ground Water Comm'n v. Eagle Peak Farms, 919 P.2d 212 (Colo. 1996).   The general assembly did not intend to subject the commission to de novo review of any type. Agency rulemaking is quasi-legislative, not quasi-judicial, in character. De novo review of legislative proceedings does not take the traditional form of a new trial on the merits. Instead, it means that any relevant evidence may be introduced to prove illegality or the abuse of legislative discretion. Colo. Ground Water Comm'n v. Eagle Peak Farms, 919 P.2d 212 (Colo. 1996).   Upon application for well, court determines amount of water available for appropriation. In determining whether an application for a well should be granted, the trial court must initially determine the amount of ground water that is available for appropriation under the commission's ”40% depletion in 25 years“ formula. Berens v. Ground Water Comm'n, 200 Colo. 170 , 614 P.2d 352 (1980).   Inherent in determination are acres being irrigated and water applied to acres. Inherent in the determination of the amount of ground water available for appropriation in a particular three-mile circle are two issues relating to the three-mile circle: (1) How many acres are being irrigated in the three-mile circle; and (2) How much ground water is being applied to each acre under irrigation? Only after specific findings have been made on each issue may the trial court reach a conclusion as to the quantity of existing claims senior to applicants. Berens v. Ground Water Comm'n, 200 Colo. 170 , 614 P.2d 352 (1980).   Upon determining amount of available water, court finds quantity of existing senior claims. Upon determining the amount of ground water available for appropriation in the three-mile circle surrounding the point of the applicant's proposed well, the trial court must then make a specific finding as to the quantity of existing claims senior to applicants. Berens v. Ground Water Comm'n, 200 Colo. 170 , 614 P.2d 352 (1980).   Where conditional permits unexpired, court assumes full conditional appropriation used. Where conditional permits have not expired as of the date of trial, the trial court should assume that the full conditional appropriation will be put to beneficial use. Berens v. Ground Water Comm'n, 200 Colo. 170 , 614 P.2d 352 (1980).   Where court finds number of irrigated acres at time permits expired. Once it has been determined that some or all of the conditional permits senior to the applicant for water have expired, the trial court must make an additional finding as to the number of acres under irrigation at the time those permits expired. Berens v. Ground Water Comm'n, 200 Colo. 170 , 614 P.2d 352 (1980).   Plaintiff's constitutional rights should be fully protected by the procedures made available by the act, and the United States district court cannot presume otherwise. Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968 ).   By entertaining an adjudication of water obtained through an underground well, the court in no way clothes itself with exclusive jurisdiction as to injunctions relating to those water priorities. Larrick v. District Court, 177 Colo. 237 , 493 P.2d 647 (1972).   Where an action is brought in a district court of one county to adjudicate priorities in a district, a court acquires and retains exclusive jurisdiction to adjudicate priorities throughout the district, because exclusive jurisdiction to adjudicate priorities is a different matter than exclusive jurisdiction to entertain any future injunctive suit. Larrick v. District Court, 177 Colo. 237 , 493 P.2d 647 (1972).   Judgment upheld designating area as ground water basin. Hayes v. State, 178 Colo. 447 , 498 P.2d 1119 (1972).   Applied in Peterson v. Ground Water Comm'n, 195 Colo. 508 , 579 P.2d 629 (1978); Pioneer Irrigation Dists. v. Danielson, 658 P.2d 842 (Colo. 1983).