(1) On the first Tuesday of
March and September in division 1, the second Tuesday of March and September in
division 2, the third Tuesday of March and September in division 3, the fourth
Tuesday of March and September in division 4, the first Tuesday of April and
October in division 5, the second Tuesday of April and October in division 6, and the
third Tuesday of April and October in division 7, the water judge for the particular
division may set for hearing matters in which protests have been filed or orders of
rereferral entered by the referee during the preceding six calendar months. Such
matters shall generally be considered by the water judge in chronological order;
however, the dates and times of hearings shall be adjusted by the water judge at his
discretion for the convenience of persons involved or for other reasonable cause.
(2) Within twenty-one days after the date of mailing thereof, any person,
including the state engineer, who wishes to protest or support a ruling of the
referee shall file in writing a pleading in quadruplicate with the water clerk and
shall mail or deliver a copy to all parties and so certify. Such pleading shall clearly
identify the matter and shall state the factual and legal grounds therefor. Upon
filing of such a pleading, the party, except for the state engineer who shall pay no
filing fee, shall pay a filing fee equal to that for filing an answer to a civil action in
district court, as provided in section 13-32-101, C.R.S. No person who is already a
party in the matter may be required to file any additional pleading or to pay any
additional filing fee to maintain a party status in the case. All fees collected
pursuant to this subsection (2) shall be transmitted to the state treasurer and be
divided as provided in section 13-32-101, C.R.S.
(3) As to the rulings with respect to which a pleading has been filed and as to
matters which have been rereferred to the water judge by the referee, there shall
be de novo hearings. The court shall not be bound by findings of the referee. The
division engineer shall appear to furnish pertinent information and may be
examined by any party, and, if requested by the division engineer, the attorney
general shall represent the division engineer. The applicant shall appear either in
person or by counsel and shall have the burden of sustaining the application,
whether it has been granted or denied by the ruling or has been rereferred by the
referee, and in the case of a change of water right or a plan for augmentation the
burden of showing absence of any injurious effect. All parties of record shall remain
parties in the proceedings before the water judge. Any person may move to
intervene in proceedings before the water court upon payment of a fee, equal to
that for filing an answer to a civil action in district court, except for the state
engineer who shall pay no fee, and upon a showing of mistake, inadvertence,
surprise, or excusable neglect or to support a referee's ruling. The water court shall
grant the motion to intervene only if intervention is sought no less than thirty-five
days before any pretrial conference or due date for trial data certificates and if
intervention will not unduly delay or prejudice the adjudication of the rights of the
original parties. Service of copies of applications, written pleadings, or any other
documents is not necessary for jurisdictional purposes, but the water judge may
order service of copies of any documents on any persons and in any manner which
he or she deems appropriate.
(3.5) In connection with a water adjudication proceeding to change the place
of use of a water right from a mutual agricultural ditch or mutual agricultural ditch
system or mutual agricultural reservoir company, the remaining owners of water
rights in such ditch or ditch system or reservoir company, in the discretion of the
court and where material injury has been demonstrated by the objector, may be
awarded payment of their reasonable attorney fees and costs, including reasonable
engineering and expert witness fees and the cost of any structures or measures
necessary within the ditch or reservoir system to ensure the continuation of such
owners' historically available surface water supply, under the remaining water
rights which such owners continue to own, without injury or any increase in cost,
unless the applicant seeking such change of water right shall have sought such
change based on limitations, conditions, and structural changes necessary to
prevent material injury to the exercise of such owners' water right. In cases where
the objector fails to demonstrate material injury or the applicant has incorporated
sufficient limitations, conditions, and structural changes to prevent material injury
and such opposition has been maintained frivolously or for purposes of harassment,
the applicant, in the discretion of the court, may be awarded payment of his
reasonable attorney fees and costs, including reasonable engineering and expert
witness fees. The provisions of this subsection (3.5) shall not apply to decrees
which have been entered prior to May 17, 1988, or decrees pending before the
referee as of May 17, 1988, and which are concluded before the referee without
being protested to the water judge.
(3.6) Any decree entered for a water right requiring a well to be constructed
on lands owned by other than the applicant shall specify that no person shall
construct a well on property owned by another unless the right to construct such a
well is obtained by consent of the landowner or the exercise of the power of
eminent domain by a person having the power of eminent domain under law.
(4) If an applicant, a person who has filed a statement of opposition, or a
protestant requests, the hearing shall be conducted by the water judge in the
district court of the county in which is located the point of diversion of the water
right or conditional water right involved. In case the hearing involves points of
diversion located in more than one county, the hearing shall be conducted by the
water judge in the district court of that county in which is located the major part, as
determined by the water judge, of the diversions or proposed diversions involved.
(5) A decision of the water judge with respect to a protested ruling of the
referee shall either confirm, modify, reverse, or reverse and remand such ruling,
and, in the case of the modification of a ruling, the decision may grant a different
priority than that granted by the referee and may specify its own terms and
conditions with respect to a change of water right or plan for augmentation. A
decision of the water judge in regard to a matter which has been rereferred by the
referee shall dispose fully of such matter and may contain such provisions as the
water judge deems appropriate. The water judge shall confirm and approve by
judgment and decree a ruling of the referee with respect to which no protest was
filed, but the water judge may reverse, or reverse and remand, any such ruling
which he deems to be contrary to law.
(6) Any decision of the water judge as specified in subsection (5) of this
section dealing with a change of water right, implementation of a rotational crop
management contract, or a plan for augmentation shall include the condition that
the approval of such change, contract, or plan shall be subject to reconsideration
by the water judge on the question of injury to the vested rights of others for such
period after the entry of such decision as is necessary or desirable to preclude or
remedy any such injury. Such condition setting forth the period allowed for
reconsideration shall be determined by the water judge after making specific
findings and conclusions including, when applicable, the historical use to which the
water rights involved were put, if any, and the proposed future use of the water
rights involved. The water judge shall specify such period in the decision, but the
period may be extended upon further decision by the water judge that the
nonoccurrence of injury shall not have been conclusively established. Any decision
may contain any other provision that the water judge deems proper in determining
the rights and interests of the persons involved. All decisions of the water judge,
including decisions as to the period of reconsideration and extension thereof, shall
become a judgment and decree as specified in this article and be appealable upon
entry, notwithstanding conditions subjecting the decisions to reconsideration on the
question of injury to the vested rights of others as provided in this subsection (6).
(6.5) Any decision of a water judge concerning a significant water
development activity shall include, as a condition of the decree approving the
change application, a provision in the decree for retained jurisdiction to ensure
payment of any fees imposed pursuant to section 37-92-305 (4.5).
(7) Judgments and decrees shall be entered promptly with respect to
matters that have been heard and matters in which no protest has been filed or
order of rereferral entered. A judgment and decree may be confined to one matter
or may include more than one matter at the discretion of the water judge. The
judgment and decree shall give the names of the applicants with respect to each
water right or conditional water right involved, the location of the point of diversion
or place of storage, the means of diversion, the type of use, the amount and priority,
and other pertinent information. In the case of a plan for augmentation, the
judgment and decree shall contain a complete statement of the plan. In the case of
applications for determination of water rights or conditional water rights, the
judgment and decree shall state the date of the filing of the application.
(8) A copy of such judgment and decree shall be filed with the state
engineer and the division engineer, and a copy thereof shall be provided by the
water clerk to any other person requesting same upon payment of a fee of seventy-five cents per page; except that the state engineer by rule or as otherwise provided
by law may reduce the amount of the fee 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 the fee 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 the fee as provided in section 24-75-402 (4), C.R.S.
Promptly after receiving a judgment and decree, the division engineer and the state
engineer shall enter in their records the determinations therein made as to priority,
location, and use of the water rights and conditional water rights, and they shall
regulate the distribution of water accordingly.
(9) Appellate review shall be allowed to the judgment and decree, or any
part thereof, as in other civil actions, but no appellate review shall be allowed with
respect to that part of the judgment or decree which confirms a ruling with respect
to which no protest was filed.
(10) Clerical mistakes in said judgment and decree 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 with the water clerk within the time specified in this
section. Any petition referred to in the preceding sentence shall be filed with the
water clerk within three years after the date of the entry of said judgment and
decree. The water judge may order such notice of any such correction proceedings
as he determines to be appropriate. Any order of the water judge making such
corrections shall be subject to appellate review as in other civil actions.
(11) Repealed.