CO Code § 37-92-203 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 92 - Water Right Determination and Administration|Part 2 - Water Divisions - Courts|§ 37-92-203. Water Judges - Jurisdiction

  There is established in each water division the position of water judge of the district courts of all counties situated entirely or partly within the division. Said district courts collectively acting through the water judge have exclusive jurisdiction of water matters within the division, and no judge other than the one designated as a water judge shall act with respect to water matters in that division. Water matters shall include only those matters which this article and any other law shall specify to be heard by the water judge of the district courts. Water matters include determinations of rights to nontributary groundwater outside of designated groundwater basins. Judgments and decrees entered prior to July 1, 1985, in accordance with the procedures of sections 37-92-302 to 37-92-305 with respect to such groundwater shall be given full effect and enforced according to the terms of such decrees.    On or before January 10 of each year, the supreme court shall designate or redesignate a water judge for each division to hear all pending and new water matters in that division for the year in which the designation is made, and any vacancy that occurs during such year shall be filled by designation of the supreme court. The services of the water judge shall be in addition to his regular duties as a district judge but shall take priority over such regular duties, and the schedules of the judges in the various divisions shall be arranged and adjusted so that the water judge shall be free to hear water matters. If it becomes necessary during any year for the proper handling of water matters in any division, the supreme court shall designate one or more additional water judges of the district courts in that division, and the term ”water judge“, as used in this article, refers to all water judges acting in a division. The water judge for a particular division shall be selected from among the judges of the district courts of the counties situated entirely or partly within the division; except that the chief justice may make temporary assignments of other judges.    The water judge of a division shall normally sit in the county where the water clerk is located, but, at the discretion of the judge for convenience of parties, he may sit in other counties in the state, and he shall conduct hearings in other counties as specified in section 37-92-304 (4). Should the functions of the water judge require separate or additional facilities, the same shall be provided for by the state from funds appropriated to the supreme court.    For the purpose of making investigations required by section 37-92-302 (4) and rulings required by section 37-92-303, the water judge of each division shall appoint such referees as may be necessary for that division. The term ”referee“, as used in this article, refers to all referees acting in a particular division.    Each water referee authorized by this section shall be appointed by the water judge of the water division from a list of not less than three qualified persons to be submitted to the water judge by the executive director of the department of natural resources; but, in any water division, the water judge may elect to perform the functions which by this article would otherwise be vested in the water referee. When and if an extraordinary work load exists in any water division, additional referees may be appointed.    Persons appointed as water referees shall possess such training and experience as to qualify them to render expert opinions and decisions on the complex matters of water rights and administration. The persons may, as the situation requires, be either full-time, part-time, or contractual court employees of the state of Colorado. All expenses in connection with the performance of the functions of water referees, including salaries and other compensation, office space, and clerical and technical assistance shall be paid from funds appropriated to the supreme court. Each water referee shall execute such oath of office as may be prescribed by the supreme court.    The water judge of each division by order shall refer promptly to a referee of that division all applications filed pursuant to section 37-92-302, and the water clerk of that division shall transmit promptly to such referee the order of referral and the duplicate application and thereafter shall transmit promptly to such referee duplicates of any statements of opposition that are filed.     History. Source: L. 69: P. 1204, § 1. C.R.S. 1963: § 148-21-10. L. 70: P. 430, § 1. L. 83: (1) amended, p. 2079, § 1, effective October 11. L. 85: (1) amended, p. 1167, § 6, effective July 1. History. Source: L. 69: P. 1204, § 1. C.R.S. 1963: § 148-21-10. L. 70: P. 430, § 1. L. 83: (1) amended, p. 2079, § 1, effective October 11. L. 85: (1) amended, p. 1167, § 6, effective July 1.    ANNOTATION   Law reviews. For article, ”Adjudication of Indian and Federal Water Rights in the Federal Courts“, see 46 U. Colo. L. Rev. 555 (1974-75). For article, ”Recent Developments in Colorado Groundwater Law“, see 58 Den. L.J. 801 (1981). For article, ”Principles and Law of Colorado's Nontributary Ground Water“, see 62 Den. U. L. Rev. 809 (1985). For comment, ”To Have Our Water and Use It Too: Why Colorado Water Law Needs a Public Interest Standard“, see 87 U. Colo. L. Rev. 1041 (2016).   Annotator's note. Since § 37-92-202 is similar to repealed § 148-9-2, C.R.S. 1963, and § 147-9-2, CRS 53, relevant cases construing those provisions have been included in the annotations to this section. Annotator's note. Since § 37-92-202 is similar to repealed § 148-9-2, C.R.S. 1963, and § 147-9-2, CRS 53, relevant cases construing those provisions have been included in the annotations to this section.   In those cases which arose before the 1983 amendment to this section, the water court had jurisdiction to adjudicate rights to nontributary ground water outside a designated basin. State Dept. of Natural Res. v. Sw. 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); State Eng'r v. Smith Cattle, Inc., 780 P.2d 546 (Colo. 1989).   This act divides the state into seven divisions, each having a district judge designated as ”water judge“, giving exclusive jurisdiction to the water judge of ”water matters“ as defined in the act. Larrick v. District Court, 177 Colo. 237 , 493 P.2d 647 (1972).   Each water judge has exclusive jurisdiction over water matters within his water division. Ft. Lyon Canal Co. v. Catlin Canal Co., 642 P.2d 501 (Colo. 1982).   Formerly, the term ”court“ was defined as the court having jurisdiction of the adjudication of water rights in a particular water district. Whitten v. Coit, 153 Colo. 157 , 385 P.2d 131 (1963).   District courts in the several counties had general jurisdiction to determine disputes involving the use of water which could arise between residents of any community, but one was not required to resort to the particular court authorized to conduct a general adjudication proceeding in the several water districts in order to secure redress in an action involving an alleged infringement of a right to the use of water. Town of Genoa v. Westfall, 141 Colo. 533 , 349 P.2d 370 (1960).   Where water court's decree did not modify or impair an earlier federal district court's water rights decree, the water court had jurisdiction to issue a decree granting a city application for reservoir refill rights. Even though the federal district court retained exclusive continuing jurisdiction concerning the federal decree, the city was seeking a new water right not addressed by the federal court that was junior to all appropriations adjudicated in the federal decree. City of Grand Junction v. Denver, 960 P.2d 675 (Colo. 1998).   It is water matters over which the water courts have exclusive jurisdiction. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   The resolution of what constitutes a water matter, and thus is within the water court's exclusive jurisdiction, turns on the distinction between the legal right to use of water and the ownership of a water right. Humphrey v. Sw. Dev. Co., 734 P.2d 637 (Colo. 1987); Crystal Lakes Water & Sew. v. Backlund, 908 P.2d 534 (Colo. 1995); Allen v. State, 2019 CO 6, 433 P.3d 581.   Claim involving the right to use water, not the ownership of it, and was a water matter. Kobobel v. State Dept. of Natural Res., 215 P.3d 1221 (Colo. App. 2009).   A dispute over ownership of decreed water rights arising from various conveyances of title does not constitute a ”water matter“ within the exclusive jurisdiction of the water court, and therefore other district courts have the power to adjudicate such disputes. Humphrey v. Sw. Dev. Co., 734 P.2d 637 (Colo. 1987); Bijou Irrigation Dist. v. Empire Club, 804 P.2d 175 (Colo. 1991).   Because the substance of the complaint addressed primarily the use of water rights rather than their ownership, the complaint related to a water matter and should have been filed in a water court. However, the appeal was properly transferred from the supreme court to the court of appeals because the appeal was from a district court judgment. City of Sterling v. Sterling Irrig. Co., 42 P.3d 72 (Colo. App. 2002).   Because the substance of the complaint addressed primarily the unadjudicated use of water vis-a-vis another water user, the complaint related to a water matter and so the water court had subject matter jurisdiction. But because the plaintiff did not follow the resume notice requirements, the water court did not have in rem jurisdiction over the matter. The water court therefore properly granted the defendant's motion to dismiss. The fact that the complaint sought a declaratory judgment and injunctive relief against a named party, as opposed to against the world, does not affect that result, and without an adjudicated water right, the plaintiff failed to state a claim upon which the water court could grant relief. Luskin Daughters 1996 Trust v. Young, 2019 CO 74, 448 P.3d 982.   Application for a conditional water right involves a ”water matter“ over which the water court has exclusive jurisdiction. Bubb v. Christensen, 200 Colo. 21 , 610 P.2d 1343 (1980); Chatfield E. Well Co. v. Chatfield E. Prop. Owners Ass'n, 956 P.2d 1260 (Colo. 1998).   The determination of rights to nontributary ground water involves a ”water matter“ over which the water court has exclusive jurisdiction. Sw. Dev. Co. v. Humphrey, 709 P.2d 51 (Colo. App. 1985).   Water matters include an application for change of a water right. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   The limitation on use of a decreed water right is a water matter and is properly resolved in water court. Kobobel v. State Dept. of Natural Res., 215 P.3d 1221 (Colo. App. 2009).   Abandonment of a water right is a water matter within the jurisdiction of the water court. Gardner v. State, 200 Colo. 221 , 614 P.2d 357 (1980).   The state engineer has jurisdiction to resolve a petition to revoke a groundwater permit notwithstanding the fact that the issue is a water matter because § 37-90-137 specifically delegates the issuance of groundwater permits to the state engineer's jurisdiction. V Bar Ranch LLC v. Cotten, 233 P.3d 1200 (Colo. 2010).   Water judges have exclusive jurisdiction of determining the validity of the rules and regulations of the state engineer, for it would be illogical, in fact nearly unthinkable, to set up a system for the determination of ”water matters“ and to provide for the selection of judges skilled in this field of law to preside as water judges, and then turn the determination to a non-water judge of a subject that goes to the very heart of the administration of water. Kuiper v. Well Owners Conservation Ass'n, 176 Colo. 119 , 490 P.2d 268 (1971).   It is not within the jurisdiction of water judges to review rules or regulations promulgated to implement the Water Right Act. Eagle Peak Farms v. Ground Water Comm'n, 870 P.2d 539 (Colo. App. 1993), rev'd on other grounds, 919 P.2d 212 (Colo. 1996).   Jurisdiction to determine effect of prior contract or priorities awarded. It is inconceivable that the general assembly intended to grant the water judge jurisdiction with respect to priorities but to bar him from determining the effect of a prior contract upon the priorities awarded. This jurisdiction is implied in the state constitution and this section. In re Application for Water Rights of Ft. Lyon Canal Co., 184 Colo. 219 , 519 P.2d 954 (1974); Oliver v. District Court, 190 Colo. 524 , 549 P.2d 770 (1976).   The water court is the proper forum to define the scope of previously decreed plans for augmentation. Crystal Lakes Water & Sew. v. Backlund, 908 P.2d 534 (Colo. 1995).   The water court has ancillary jurisdiction to resolve matters that would directly affect the outcome of matters over which it has exclusive jurisdiction. Crystal Lakes Water & Sew. v. Backlund, 908 P.2d 534 (Colo. 1995).   Where a hearing before a court does not involve beneficial application of water nor matters of priorities of appropriation, but with the manner in which water was allowed to run off the land after irrigation, a district court as a court of general jurisdiction has power to prevent negligent or deliberate damage, by whatever means, to property and to enforce court orders designed to prevent irreparable injury. Baumgartner v. Stremel, 178 Colo. 209 , 496 P.2d 705 (1972).   Water court judge could not make an order concerning appropriation and diversion, where the diversion takes place in a different water division than that in which adjudication is sought. Metro. Sub. Water Users Ass'n v. Colo. River Water Conservation Dist., 148 Colo. 173 , 365 P.2d 273 (1961).   Ancillary suit transferrable to water court for determination. Where a covenant in a deed required the grantee to maintain a certain reservoir level; the covenant was the subject of a suit for injunctive relief in the district court; and the covenant would affect the outcome of a suit pending in the water court, the district court suit was ancillary to that in the water court and could be transferred to the water court for determination. Oliver v. District Court, 190 Colo. 524 , 549 P.2d 770 (1976).   Although the water court has jurisdiction to hear ancillary matters, such jurisdiction does not extend to an adjudication of interests in land which are only tangentially related to the water dispute. FWS Land & Cattle Co., v. State Div. of Wildlife 795 P.2d 837 (Colo. 1990).   Water judge may be conferred extraordinary jurisdiction over applications for water rights filed by various applicants in different water divisions. Se. Colo. Water Conservancy Dist. v. Huston, 197 Colo. 365 , 593 P.2d 1347 (1979).   No jurisdiction over nontributary water not designated ground water. Where nontributary water has not been designated ground water, this type of water is included within the term ”water matters“, and a water judge does not have jurisdiction. In re Application for Water Rights of Ft. Lyon Canal Co., 184 Colo. 219 , 519 P.2d 954 (1974); Se. Colo. Water Conservancy Dist. v. Huston, 197 Colo. 365 , 593 P.2d 1347 (1979).   Relief involving taking ground water sought first under ground water provisions. It is appropriate, as a matter of policy, and is consistent with legislative intent, to require that any relief sought which involves the taking of ground water in a designated ground water basin must be sought first through the administrative and judicial channels, as appropriate, prescribed for resolution of questions arising under article 90 of this title. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   Vickroy decision not retrospectively applied. State ex rel. Danielson v. Vickroy (627 P.2d 752 (Colo. 1981)) should not be retrospectively applied to those decrees involving well permits in designated ground water basins issued prior to the Vickroy decision. Ground Water Comm'n v. Shanks, 658 P.2d 847 (Colo. 1983).   Applications for appropriating designated ground water committed to commission's jurisdiction. Applications for the appropriation of designated ground water to beneficial use are committed to the jurisdiction of the ground water commission. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   Even where water not within definition of ”designated ground water“. An application for an initial appropriation of ground water, even if not within the definition of ”designated ground water“, in a designated ground water basin must be addressed to the ground water commission. State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   Same presumption of correctness attaches to judgment of water court as to that of a court of general jurisdiction. Michel v. Front Range Land & Livestock Co., 638 P.2d 74 (Colo. 1981).   Authority of water referee is derivative from, and not greater than, water judge. Gardner v. State, 200 Colo. 221 , 614 P.2d 357 (1980).   Applications under § 37-92-302 referred to water referee. The water judge must refer all applications and statements of opposition filed under § 37-92-302 to a water referee. Gardner v. State, 200 Colo. 221 , 614 P.2d 357 (1980).   Statements opposing water right application may be based on abandonment theory. The statutory delegation in § 37-92-301 (2) of authority to water referees to make determinations of abandonment is merely a recognition that statements of opposition to an application may be based on the theory of abandonment as an affirmative defense to the application. Gardner v. State, 200 Colo. 221 , 614 P.2d 357 (1980).   Water right definitionally does not include a right to use ”designated ground water“, as defined in § 37-90-103 (6) . State ex rel. Danielson v. Vickroy, 627 P.2d 752 (Colo. 1981).   Easement to diversion point not required before conditional water right decreed absolute. No useful purpose would be served by requiring that a conditional water right cannot be decreed to be absolute until an easement to the point of diversion has been obtained by condemnation. Bubb v. Christensen, 200 Colo. 21 , 610 P.2d 1343 (1980).   Trespass onto property upon which diversion point located no defense to application. Under the circumstances of the case, trespass by a person with a conditional water right onto property upon which the point of diversion for the water right was located was not a defense to an application to make a conditional water right absolute. Bubb v. Christensen, 200 Colo. 21 , 610 P.2d 1343 (1980).   Landowners bound by conditional water decree where no protest filed, nor correction sought. Where the landowners of the property upon which the point of diversion for a conditional water right was located had notice of an application for the water right by reason of the publication of the summary in the resume, but they did not file a statement of opposition to the application, did not file a protest to the ruling of the referee, and did not seek correction of any substantive errors in the judgment and decree of the water court within three years after it was entered, and they took no action until the water had been applied to beneficial use and an application had been filed to make the conditional decree absolute, the time for challenging the conditional decree has expired and the landowners were bound by the decree. Bubb v. Christensen, 200 Colo. 21 , 610 P.2d 1343 (1980); United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982).   Water court properly dismissed constitutional claim for lack of subject matter jurisdiction. Jurisdiction vests in the water court only if the Colorado ground water commission first concludes that the water at issue is designated groundwater. Jim Hutton Educ. Found. v. Rein, 2018 CO 38M, 418 P.3d 1156 .   Applied in State Dept. of Natural Res. v. Sw. 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).