(1)
(a) (I) The division engineer of each division with the approval of the state engineer
shall maintain a tabulation in order of seniority of all decreed water rights and
conditional water rights in their divisions. The tabulations must describe each water
right and conditional water right by some appropriate means and must set forth the
priority and amount thereof as established by court decrees. In making the
tabulations, the division engineer may use such system of numbering and listing
water rights and conditional water rights in order of seniority as is suited to the
administrative needs of the particular division or portion of the division.
(II) The division engineer shall also prepare decennially a separate
abandonment list comprising all absolute water rights that they have determined to
have been abandoned in whole or in part and that previously have not been
adjudged to have been abandoned. The division engineer shall prepare the list:
(A) For water divisions 1, 2, and 3, as established in section 37-92-201 (1)(a) to
(1)(c), no later than July 1, 2030, and no later than July 1 of every subsequent tenth
anniversary; and
(B) For water divisions 4, 5, 6, and 7, as established in section 37-92-201
(1)(d) to (1)(g), no later than July 1, 2035, and no later than July 1 of every subsequent
tenth anniversary.
(a.5) In preparing the tabulations required by this section, the division
engineer shall include judgments and decrees determining, changing, or otherwise
affecting water rights and conditional water rights, which judgments and decrees
have been entered more than six months before the date of review. The division
engineer must also include in the tabulations, as appropriate, any changes in earlier
abandonment lists that the water judge or the supreme court have ordered.
(b) In determining the priority of a water right in relation to other water rights
deriving their supply from the same common source, the following procedures and
definitions apply:
(I) A common source means and includes all of those waters in a water
division, either surface or underground, that if left in their natural state would join
together to form a single natural watercourse before exiting the water division.
(II) As among water rights decreed in the same water district in the same
adjudication suit, the historic date of initiation of appropriation determines the
relative priorities, beginning with the earliest right.
(III) As among water rights decreed in the same water district in different
adjudication suits, all water rights decreed in an adjudication suit are senior to all
water rights decreed in any subsequent adjudication suit.
(IV) As among water rights decreed in the various original adjudication suits
in the various water districts of the same water division, the decreed date of
initiation of appropriation determines the relative priorities in numbered sequence,
beginning with the earliest right.
(V) As among water rights decreed in the various supplemental adjudication
suits in the various water districts of the same water division, the actual priority
date of any decree in any district does not extend back further than the day
following the entry of the final decree in the preceding adjudication suit in the
district.
(VI) If, in the preparation of the tabulations provided for in this section, the
application of the preceding principles would cause in any particular case a
substantial change in the priority of a particular water right to the extent the right
was lawfully enjoyed for a period of not less than eighteen years, then the division
engineer shall designate the priority for that water right in accordance with historic
practice. In no event does this subsection (1)(b)(VI) entitle a water right to a priority
senior to its actual date of initial appropriation or to freedom from regulation and
administration in the priority system.
(c) In making his or her determinations with respect to abandonment, the
division engineer shall investigate the circumstances relating to each water right
for which the available water has not been fully applied to a beneficial use and shall
be guided by the criteria set out in section 37-92-402 (11). The decennial
abandonment list, when concluded by judgment and decree as provided in this
section, is conclusive as to absolute water rights or portions thereof determined to
have been abandoned.
(2) (a) The state engineer and the respective division engineer shall make a
copy of the tabulation available for inspection in their offices at any time during
regular office hours, as well as on the state engineer's website, and shall provide a
copy of the tabulation for a fee as set forth in section 24-72-205 (5).
(b) No later than July 31, 2030, for water divisions 1, 2, and 3, and July 31,
2035, for water divisions 4, 5, 6, and 7, and no later than July 31 of every
subsequent tenth anniversary, respectively, the division engineer shall mail a copy
of the respective decennial abandonment list by certified mail, return receipt
requested, to the owner or last-known owner or claimant, if known, of every
absolute water right that the division engineer has found to have been abandoned in
whole or in part. The division engineer shall make an appropriate examination to
determine the owner or claimant of such absolute water rights. The division
engineer shall also publish the respective portion of the decennial abandonment list
in each county in which the points of diversion of any absolute water rights on the
list are located. The publication shall be continued for four successive weeks and
shall be published, if possible, in a newspaper published in the county where the
decreed point of diversion of the water right is located. The publication and mailing
requirements of this subsection (2)(b) apply only to absolute water rights or
portions of absolute water rights that previously have not been adjudged to have
been abandoned.
(3) A person wishing to object to the manner in which a water right or
conditional water right is listed in the tabulation or to the omission of a water right
or conditional water right from the tabulation, and no later than July 1, 2031, for
water divisions 1, 2, and 3, and July 1, 2036, for water divisions 4, 5, 6, and 7, and no
later than July 1 of every subsequent tenth anniversary, respectively, a person
wishing to object to the inclusion of any absolute water right or portion of an
absolute water right in the decennial abandonment list shall file a statement of
objection in writing with the division engineer.
(4) (a) No later than December 31, 2031, for water divisions 1, 2, and 3, and
December 31, 2036, for water divisions 4, 5, 6, and 7, and no later than December 31
of every subsequent tenth anniversary, respectively, the division engineer shall
make any revisions they deem proper to the decennial abandonment list. In
considering the matters raised by statements of objection, the division engineer
may consult with any interested person. The division engineer shall consult with the
state engineer and shall make any revisions in the decennial abandonment list
determined by the state engineer to be necessary or advisable.
(b) Repealed.
(c) The division engineer shall file the decennial abandonment list, together
with any revisions, signed by the division engineer and the state engineer or the
state engineer's duly authorized deputy, with the water clerk as promptly as
possible, but no later than December 31, 2031, for water divisions 1, 2, and 3, and
December 31, 2036, for water divisions 4, 5, 6, and 7, and no later than December 31
of every subsequent tenth anniversary, respectively. Each respective division
engineer and water clerk and the state engineer shall make a copy of the decennial
abandonment list, together with any revisions, available for inspection in their
offices at any time during regular office hours, as well as on the state engineer's
website, and the division engineer shall furnish or mail a copy to anyone requesting
a copy upon payment of a fee in an amount set in accordance with section 24-72-205 (1)(b) and (5).
(d) If the decennial abandonment list is revised, the water clerk, in
cooperation with the division engineer, no later than January 31, 2032, for water
divisions 1, 2, and 3, and January 31, 2037, for water divisions 4, 5, 6, and 7, and no
later than January 31 of every subsequent tenth anniversary, respectively, shall
provide notice of the revision in the resume described in section 37-92-302 (3) of
cases filed in the respective water divisions during the month of December, stating
that the revision may be inspected or a copy of the revision obtained as specified in
subsection (4)(c) of this section. In addition, the water clerk shall publish the notice
as is necessary to obtain general circulation once in each county or the portion of
the county that is in the division.
(5) (a) A person that wishes to protest the inclusion of a water right in a
decennial abandonment list after its revision by the division engineer shall file a
written protest with the water clerk and with the division engineer. All protests to
the decennial abandonment list must be filed no later than June 30, 2032, for water
divisions 1, 2, and 3, and June 30, 2037, for water divisions 4, 5, 6, and 7, and no later
than June 30 of every subsequent tenth anniversary, respectively. A protest shall
set forth in detail the factual and legal basis for the protest. Service of a copy of
the protest or any other documents is not necessary for jurisdictional purposes, but
the water judge may order service of a copy of the protest or any other document
on any person and in any manner that the water judge may deem appropriate. The
fee for filing the protest with the water clerk is forty-five dollars.
(b) Fees collected pursuant to subsection (5)(a) of this section shall be
transmitted to the state treasurer and divided as follows:
(I) Twenty dollars shall be deposited in the general fund;
(II) Fifteen dollars shall be deposited in the judicial stabilization cash fund
created in section 13-32-101 (6); and
(III) Ten dollars shall be deposited in the justice center cash fund created in
section 13-32-101 (7)(a).
(6) (a) Commencing on the September term-day of 2032 for water divisions 1,
2, and 3 and the September or October term-day of 2037 for water divisions 4, 5, 6,
and 7, as provided in section 37-92-304 (1), and every subsequent tenth anniversary
of the respective term-day, continuing for as long as may be necessary, the water
judge of each division shall conduct hearings on the decennial abandonment list
filed by the division engineer and any protests that have been filed with respect to
the decennial abandonment list. The hearings shall be conducted in accordance
with the Colorado rules of civil procedure, the Colorado rules of evidence, and any
applicable local rules of court; except that pleadings other than the protest shall
not be required. The protestant shall appear either in person or by counsel in
support of the protest. The division engineer shall appear in support of the
decennial abandonment list, and, if requested by the division engineer, the attorney
general shall represent the division engineer.
(b) The water judges of the various divisions shall arrange their hearings, if
necessary in their discretion, to accommodate counsel and other persons that may
be involved in hearings in more than one division.
(c) Any person that may be affected by the subject matter of a protest or by
a ruling on a protest shall be permitted to participate in the hearings, either in
person or by counsel, upon timely entry of appearance. Such entry of appearance
shall identify the portion of the decennial abandonment list with respect to which
the appearance is being made. The water judge may continue the hearings as
required to ensure that all parties may be heard and their interests adequately
protected, and, in this connection, the water judge shall permit such additional
protests and order such service of notice and such additional publication of the
decennial abandonment list or portions of the list as will serve the ends of justice, it
being the intent of the general assembly that the water judge shall have wide
discretion in the conduct of such hearings so that the owners of water rights will be
protected.
(d) After the hearings are concluded, the water judge shall enter a judgment
and decree that either incorporate the abandonment list of the division engineer as
filed or incorporate such list with such modifications and conditions as the water
judge may determine proper after the hearings.
(7) If no protests have been filed, then promptly after July 1, 2032, for water
divisions 1, 2, and 3, and July 1, 2037, for water divisions 4, 5, 6, and 7, and after July
1 every subsequent tenth anniversary, respectively, the water judge shall enter a
judgment and decree incorporating and confirming the decennial abandonment list
of the division engineer without modification.
(8) A copy of the judgment and decree entered under subsection (6) or (7) of
this section shall be filed with the state engineer and the division engineer and shall
be provided by the water clerk to any other person requesting same upon payment
of a fee of seventy-five cents per page. Promptly after receiving such judgment and
decree, the division engineer and the state engineer shall enter in their records the
determinations therein made as to the absolute water rights or portions thereof
adjudged to have been abandoned and shall regulate the distribution of water
accordingly.
(9) Appellate review shall be allowed to the judgment and decree entered
under subsection (6) or (7) of this section or any part thereof as in other water
matters, but no appellate review shall be allowed with respect to that part of such
judgment or decree which confirms a portion of the decennial abandonment list
with respect to which no protest was filed.
(10) Clerical mistakes in the judgment and decree entered under subsection
(6) or (7) of this section 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 to the
decennial abandonment list with the water clerk within the time specified in this
section. Any such petition under this subsection (10) shall be filed with the water
clerk within four years after the date of the entry of such judgment and decree. The
water judge shall order such notice of any such correction proceedings as he
determines to be appropriate to advise all persons who may be affected thereby.
Any order of the water judge making such corrections shall be subject to appellate
review as specified in subsection (9) of this section.
(11) The tabulations provided for in this part 4, and any revisions thereto, may
be used by the division engineers, the state engineer, and their staffs for
administrative purposes. The listing of the water rights in a tabulation shall not
create any presumption against abandonment, and the relative listing of water
rights in a tabulation shall not create any presumption of seniority. A tabulation
shall not be construed to modify special provisions of court decrees adjudicating,
changing, or otherwise affecting such water rights or to modify contractual
arrangements governing the interrelationship of such water rights. For the purpose
of identification and description only, the tabulation may include additional
information regarding the water rights listed, but this additional information shall
be neither conclusive nor presumptive of the truth or accuracy of the matters
contained therein. Nothing in this section or in section 37-92-402, other than those
specific provisions relating to the abandonment lists of the division engineers, shall
ever be construed to have enhanced or diminished any cause of action or defense
which might otherwise exist concerning the administration of water rights in any
water division.
(12) Notwithstanding the amount specified for any fee in this section, the
state engineer by rule or as otherwise provided by law may reduce the amount of
one or more of the fees 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 one or
more of the fees 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 one or more of the fees as provided in section 24-75-402
(4), C.R.S.