Most Colorado water users understand that water rights are valuable property rights—but many do not realize how quickly those rights can be affected if you fail to act when someone else files a water court application. The Water Rights Determination and Administration Act of 1969 created seven water divisions and Water Courts that correspond to the seven river basins in Colorado. Every month, each Water Court publishes a Water Court Resume listing new water right applications that have been filed. While water right applications are also published in local newspapers, the resume is a more efficient means to review all the water right applications filed in a particular water division. Resumes are available on each Water Court’s website.

What Happens When an Application Is Filed

Under Colorado’s prior-appropriation system, every water right has a specific priority date, point of diversion, place of use, and type of use. When a person or entity wants to change any of those elements, or claim a new water right, they must apply to the Water Court for a decree.

Once the application is filed, it is publicly listed in the monthly Water Court Resume. Anyone who might be affected—ditch companies, well owners, municipalities, or even homeowners—has to the end of the following month from the date of publication to file a Statement of Opposition. Opposing an application does not mean you are “suing” the applicant; it simply preserves your right to participate in the case and ensure the applicant’s proposal does not harm your existing water right. If you do not oppose the application in time, you may lose the right to object later, even if the new decree reduces your decreed water supply.

Why Opposition Is Not Hostility

“Opposition” in water court is often misunderstood. It is not an accusation of bad faith or wrongdoing. In fact, most opposers and applicants share the same goal—making sure water is used efficiently and lawfully. Filing an opposition simply ensures that the Water Court has a complete record of potential impacts and that the Division Engineer’s technical review is supplemented by information from real water users who know the system.

In many cases, opposition leads to a stipulation—a negotiated agreement between the applicant and opposers that defines protective terms and conditions. Once signed, those stipulations are incorporated into the final decree, safeguarding the water user. Without opposition, you might never have that opportunity.

What Can Go Wrong If You Do Not Act

Failing to oppose an application can have lasting consequences. For example:

• Expanded Depletions: A neighbor’s new well or changed diversion may reduce flows at your headgate during critical irrigation periods.
• Increased Call Frequency: If the applicant’s right is decreed without proper limits, it might create additional administrative calls, curtailing your diversions more often.
• Loss of Return Flows: If a change application does not properly replace return flows, downstream users can suffer shortages that are nearly impossible to correct after the fact.

Once a decree enters, it is generally final and binding. The only remedy—appeal—is expensive and rarely successful. Opposing early is the most practical and cost-effective way to protect your interests.

How the Process Works:

1. Review the Water Court Resume: Published monthly by the Water Court for each water division.
2. File a Statement of Opposition: The Statement of Opposition is due at the end of the calendar month following the month the resume is published. Any person is authorized to file a statement of opposition to put an applicant on “strict proof” but only water right owners can allege injury.
3. Engage in Case Management: The Water Court will set deadlines for disclosures, engineering reports, and settlement discussions.
4. Seek Resolution: Most cases settle through stipulation once technical concerns are addressed.

Takeaway

Colorado’s water rights system depends on active participation by its users. A Water Court’s notice process is not a formality—it is a safeguard. If you ignore the monthly resume or assume someone else will object, you could inadvertently allow a decree that impairs your water right.

If you have questions about the Water Court process, please reach out to:

• Sarah A. Klahn, sklahn@somachlaw.com
• Ryan J. Mitchell, rmitchell@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.