Introduction

Colorado’s judicial system of water rights is among the most complex and carefully regulated in the United States. Rooted in the doctrine of prior appropriation—“first in time, first in right”—the State’s water law framework determines who can use water, when, where, and for what purpose. Because water is a limited and vital resource, every use or change in use must be formally approved through the Colorado Water Court system.

Measurement is a critical component of the water court process, with water court decrees requiring the installation of water measurement infrastructure as determined by the State and Division Engineers’ offices. Colorado’s Constitution and statutes form the basis for this measurement requirement. Advances in technology are improving water measurement capabilities, and Colorado is currently promulgating regulatory rules to provide greater structure and detail for all water diversions. Over time, these new rules will undoubtedly influence and expand the measurement requirements included in water court decrees.

Understanding the court process and measurement requirements is essential for farmers, municipalities, developers, and individuals who depend on water for domestic, agricultural, industrial, or recreational use. Navigating the Colorado Water Court process can seem daunting, but gaining familiarity with its key steps helps ensure that water users protect their rights and comply with state law.

Water Court Application

The Colorado Water Court process begins when an individual or entity submits a formal application to the court. Each month, all applications filed within that period are compiled and made public in what is called the water court “resume.” Every one of Colorado’s seven water divisions issues its own resume, which is a published document summarizing the applications submitted during the preceding month.

The major types of applications that can be filed in the Colorado Water Court are briefly described below:

• Application for a New Water Right: A new water right application seeks a decree that formally recognizes a diversion and beneficial use of water. These may include but are not limited to:
  • Surface Water Rights – for direct diversions from rivers or streams.
  • Storage Water Rights – for impounding water in reservoirs for later use.
  • Underground Water Rights – for withdrawing groundwater from aquifers.
• Application for a Change of Water Right: If a water right holder wishes to use their water for purposes not authorized in the original decree, they must submit a change of water right application to the Colorado Water Court and receive formal approval for the proposed modification. This process can be used to alter the point of diversion, type of use, place of use, or other aspects of the original decree. Under Colorado law, the water court may only approve such a change if it determines that the modification “will not injuriously affect the owner of or persons entitled to use water under a vested water right or a decreed conditional water right.” C.R.S. § 37-92-305(3)(a).
• Application for Finding of Diligence or to Make Absolute: A conditional water right is a placeholder for a future water right—it reserves a priority date while the user works, with reasonable diligence, to complete the project and put the water to beneficial use. Holders of conditional water rights must apply to the Colorado Water Court every six years to demonstrate continued progress toward putting the water to beneficial use. This diligence application shows the applicant’s ongoing efforts, such as infrastructure construction, permitting, financial investment, or other actions demonstrating intent to complete the appropriation. Failure to file by the statutory deadline results in automatic cancellation of the conditional right. If the applicant has successfully diverted and used the water for its decreed purpose, they may request that all or part of the conditional right be made absolute. Once an absolute water right is confirmed, the owner has the right to divert and beneficially use that water in accordance with the terms of the water court decree and the prior appropriation system.
• Application for Approval of Plan for Augmentation: A plan for augmentation allows a water user to divert water out of priority by demonstrating a wet water supply to replace the depletion to the stream system with water from another source. This replacement, often from a senior right or stored water, keeps the river flow from being reduced and prevents injury to other users. Plans for augmentation can include an appropriative exchange which permits one source of water to be substituted for another. Exchanges are frequently used to move water upstream through administrative means rather than physical transfer. Exchanges may be decreed by the water court with an assigned priority date or conducted administratively by the State Engineer’s Office without a decree or formal priority. Augmentation plans provide Colorado water users with flexibility as different water needs and uses arise in basins where all the water is spoken for.

Statements of Opposition

Individuals or entities that wish to contest a water court application have two months—beginning on the first day of the month following the filing month—to submit a statement of opposition. The specific opposition filing deadline is listed in each water court’s monthly resume. Submitting a statement of opposition allows interested parties to protect their existing water rights by ensuring that the proposed application does not cause harm. The importance of filing timely opposition was discussed in a policy alert by Ryan Mitchell: Why Opposing an Application in Colorado Water Court Matters.

Division Engineer’s Summary of Consultation

Within 35 days after the opposition filing deadline, the Division Engineer’s Office provides a Summary of Consultation. This document offers the Division Engineer’s analysis of the claims presented in the application and may include recommended terms and conditions for the court’s final decree, and it reflects discussion with the Court’s Water Referee. However, if the Division Engineer submits a statement of opposition, it will not provide a Summary of Consultation.

Water Referee’s Role

The case first proceeds before a water referee, whose primary role is to move the parties along in sharing information in order to facilitate negotiation and possible settlement between the applicant and any opposing parties. The water referee also reviews the applications for accuracy so that judicial review for a decree is streamlined.

When no opposition is filed, the water referee typically requests that the applicant prepare a proposed decree describing the operation of the water right and addressing any issues identified in the Summary of Consultation. If the water referee determines that the proposal complies with statutory and regulatory requirements, it is entered in the court’s record as a Ruling of the Referee. After that ruling is issued, all parties, including the applicant, have 21 days to file objections. If no objections are received, the water judge will confirm the ruling, and it becomes the final water court decree, effectively concluding the case.

If opposition is filed, the water referee will schedule an initial status conference to establish deadlines for the applicant to provide engineering documentation and a draft decree to the opposing parties. From there, an iterative negotiation litigation process begins: (1) the applicant submits technical and legal information; (2) opponents provide feedback and identify concerns; and (3) the applicant revises the proposed decree accordingly. This stage can continue for up to 18 months, under the water court’s rules. While parties often reach a settlement that resolves disputes and prevents injury to existing rights during this period, the case can also be referred back to the judge in this period. Should the parties fail to reach an agreement within that period, or if settlement prospects appear unlikely, the case is referred to the water judge for trial proceedings, including disclosures, discovery, depositions, and other litigation fact finding.

Water Judge’s Docket

Once referred, each water court case follows the Colorado Rules of Civil Procedure and the Colorado Rules of Water Court Practice, which set deadlines for discovery, expert disclosures, motions, and trial submissions. If the matter remains contested, the water judge conducts a trial, hears testimony, reviews evidence, and issues a decision on the requested relief. Across all types of water court applications, a guiding principle is the “no-injury rule”—that no application should be approved if it would injure existing water rights.

Appeal to Colorado Supreme Court

If any party wishes to appeal the water judge’s ruling, the appeal proceeds directly to the Colorado Supreme Court, as water court cases bypass the intermediate appellate level due to the critical importance of water rights in the state.

Takeaway

The Colorado Water Court system may seem intricate, but understanding its procedures is key to protecting and managing water rights effectively. From filing a new application to participating in a diligence review or responding to an opponent’s claim, every step involves detailed technical and legal requirements designed to preserve fairness and protect senior rights.

Currently, the State and Division Engineers at Colorado’s Division of Water Resources (DWR) are promulgating new water measurement rules in each of Colorado’s seven water divisions. One requirement in a water decree is the provision of infrastructure as the State Engineer may require. DWR aims to establish clearer standards and more detailed requirements for water measurement infrastructure to better administer Colorado’s over-appropriated water supplies. Thus far, these rules have advanced to the water court process in Water Divisions 4 and 6. The measurement rules for Water Division 7 became effective on June 1, 2025, and the public comment period is open for Water Division 5. Funding is available to help water users comply with the new infrastructure requirements.

For water right holders, grasping this process empowers them to make informed decisions, avoid costly missteps, and achieve their desired water use goals. Knowledge of the Colorado Water Court system brings transparency and accessibility to a process that, while nuanced and technical, lies at the heart of Colorado’s water governance.

If you have questions about the Colorado Water Court process or would like to discuss your goals for your water rights or the new regulatory rules and funding for water measurement, please reach out to:

• Ramsey L. Kropf, rkropf@somachlaw.com
• Lindsey A. Ratcliff, lratcliff@somachlaw.com

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice. In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.