Andy Sawyer, assistant chief counsel for the State Water Board, said when people talk about a water court, “they often are talking about different things.”


“Some are referring to improving judicial proceedings,” he said. “Some are talking about improving adminis- trative proceedings. Some are talking about having issues decided in court instead of through the administrative process. In addition to resulting in decisions that are more sound, techni- cally, the expert administrative agency model has reduced litigation, which means less work for lawyers. So it’s no surprise that there are lawyers who argue that the expert administrative agency model is inconsistent with due process. But the courts have rejected those arguments.”


Most western states have a state engineer or water rights board to ad- minister water right permits and con- duct statutory adjudications. Colorado has a water court, with seven divisions organized along its major watershed geography. Water referees investigate and make rulings on applications for conditional water rights in available unappropriated water, applications for absolute water rights perfected by actual use, changes of existing water rights and plans for augmentation that provide adequate replacement water to protect senior water rights while also allowing out-of-priority diversion and use by junior rights. “We have a system that basically promotes settlement early and fashion- ing a decree in a consensus-building situation before the referee, but any person who protests the referee’s ruling can put the matter in front of the water court for a de novo trial,” said Colorado Supreme Court Justice Gregory Hobbs. Bart Miller, water program direc-


tor with Western Resource Advocates in Boulder, said the Colorado system “offers fi nality as to all interests in a sub-basin,” but fi nding water for the environment is not always easy. “It’s hard to fi nd a place for instream values,” he said. “The head- waters have fairly good water rights for


July/August 2014


instream values but the farther down you get the more diffi cult it is to ensure environmental fl ows because there are so many other water interests that come ahead in time and geographi- cally … so you have a lot of dewatered streams.”


The Colorado Water Conservation Board can appropriate instream fl ow water rights in priority and acquire interests in senior rights to enhance those fl ows, Hobbs said. Colorado’s system treats tributary groundwater and surface water as an interconnected resource that is subject to prior appropriation adjudication and administration, something California lacks. Tributary groundwater is water that would be available to a senior surface water right were it not for well pumping that would otherwise be available to that right. Under Colorado law, all groundwater is considered to be tributary to a surface stream unless proved otherwise.


“The biggest disconnect I see is that California doesn’t necessarily take into account the effect of tribu- tary groundwater pumping on surface water rights,” Hobbs said. “That has to result in continuing injury to senior rights holders or instream fl ow rights in particular stream systems.”


The differences between Califor-


nia’s water law and Colorado’s mean the latter’s water law system prob- ably would not work, said Stephanie Hastings, an attorney with Brownstein Hyatt Farber Schreck in Santa Barbara. “I think everyone agrees that the water courts system employed in Colorado is very Colorado-specifi c and it would not apply in California,” she said. “I think the primary reason is Colorado has a very linear system – all water is appropriative. In California, we respect both riparian and appropria- tive rights.”


Another “dramatic difference,” she said, is that all water in Colorado – both surface and groundwater supplies – is within the state’s jurisdiction. “In California, we have decided they are two separate water resources, and only surface water supplies are


“I think everyone agrees that the water courts system employed in Colorado is very Colorado-specifi c and it would not


apply in California.” – Stephanie Hastings, Brownstein Hyatt Farber Schreck


Hear more from Brownstein Hyatt Farber Schreck’s Stephanie Hastings


5


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15