says the waters of the “natural stream” are subject to appropriation. This in- cludes groundwater that could reach a surface stream within 100 years or the pumping of which would impact the surface stream within a hundred years. Colorado is different from almost all other western states in the way courts are involved.


The other states use a permit


system. To handle the volume of water cases and help deal with the com- plexities of water rights in Colorado, a specialized jurisdiction over water matters is vested by statute in the seven water courts. Colorado’s Chief Justice annually appoints the seven water judges from among the district judges in the geographical water divi- sion. These judges may also continue to have a criminal and civil law docket in addition.


Colorado is different from almost all other western states in this regard. The other states use a permit system. To handle the volume of water cases and help deal with the complexities of water rights in Colorado, the Water Court was created. It is a division of the state District Court, yet separate. Though the water court decrees water rights and sets priority dates based on the year in which the applica- tion was fi led and the date the appro- priation was originally initiated, it does not actually create a water right. The application of the water to a benefi cial use creates the water right. There are no jury trials in water courts and any appeal goes directly to the Colorado Supreme Court on a fast track basis. In the Colorado system, the Su- preme Court appoints a district court judge from within each water divi- sion to act as the water judge. There is also a clerk of the water court and a water referee serving the judge. Water referees investigate applications for water rights and have authority to rule on these applications under the judge’s supervision. “The good and the bad of the Colorado system is it is quite fi nal,” said Miller with Western Resource Advocates. “Once you’ve got a water


July/August 2014


court proceeding that’s fi nished, you’ve got a clear property interest that’s very diffi cult to dislodge.” “It’s a system that from the per- spective of a conservationist [is] fairly infl exible. It’s hard to make changes to the system because you have these property rights developed and enforced and that’s fi ne, it’s just that if you are late to the game … there’s not much water left and it’s hard to start the race with everyone else having fi nished three to four laps.”


The Colorado system is largely the result of a crisis that occurred in the 1950s as new, high-capacity pumping wells sprung up to irrigate agriculture. The resulting depletion of subterra- nean streams forced offi cials to take steps to control water use. “Colorado does not have the


Public Trust Doctrine like California’s doctrine, and because of that, in some ways it’s more cut and dried,” said Brandt with Dividing the Waters. “They also have great laws on the ground- water-surface water connection. That’s


11


In a landmark 1983 decision regarding Mono Lake, above, the California Supreme Court ruled that longstanding water rights could be reconsidered and, if necessary, curtailed to protect the public trust.


Learn more about the Dividing the Waters Program


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