Colorado § 37-92-302 - Applications for water rights or changes of such rights - plans for augmentation.

§ 37-92-302. Applications for water rights or changes of such rights - plans for augmentation.

(1) (a) Any person who desires a determination of a water right or a conditional water right and the amount and priority thereof, including a determination that a conditional water right has become a water right by reason of the completion of the appropriation, a determination with respect to a change of a water right, approval of a plan for augmentation, finding of reasonable diligence, approval of a proposed or existing exchange of water under section 37-80-120 or 37-83-104, or approval to use water outside the state pursuant to section 37-81-101 shall file with the water clerk a verified application setting forth facts supporting the ruling sought, a copy of which shall be sent by the water clerk to the state engineer and the division engineer. The term "determination of a water right or conditional water right" includes any plan or change in plan under the provisions of section 37-45-118 (1)(b)(II) that is or has been incorporated into a decree.

(b) Any person, including the state engineer, who wishes to oppose the application may file with the water clerk a verified statement of opposition setting forth facts as to why the application should not be granted or why it should be granted only in part or on certain conditions. The statement of opposition may be filed on behalf of all owners of water rights who, by affixing their signatures to the statement of opposition, in person or by attorney, consent to being included in the statement and who may be detrimentally affected by granting of the application. The water clerk shall send a copy of the statement of opposition to the state engineer and the division engineer.

(c) Such statement of opposition must be filed by the last day of the second month following the month in which the application is filed.

(d) (I) The fee for filing an application, complaint, petition, or any other pleading initiating a water matter shall be the same as that for filing a civil complaint in district court, as provided in section 13-32-101, C.R.S.; except that, for any application seeking a determination of a change of water right or approval of a plan for augmentation, the filing fee shall be twice as much. For filing a statement of opposition, the fee shall be the same as that for filing an answer to a civil action in district court. A tax of one dollar must be included with every application, pursuant to section 2-5-119, C.R.S. No fee or tax shall be assessed to the state of Colorado or any agency of its executive department under this subsection (1) or subsection (3) of this section, but no other person or entity shall be exempt from such fee or tax.

(II) All fees collected under this paragraph (d) shall be transmitted to the state treasurer and be divided as provided in section 13-32-101, C.R.S.

(e) (Deleted by amendment, L. 2008, p. 2144, § 13, effective June 4, 2008.)

(2) (a) The water judges of the various divisions shall jointly prepare and supply to the water clerks standard forms which shall be used for such applications and statements of opposition. These forms shall designate the information to be supplied and may be modified from time to time. Supplemental material may be submitted with any form. In the case of applications for a determination of a water right or a conditional water right, the forms shall require, among other things, a legal description of the diversion or proposed diversion, a description of the source of the water, the date of the initiation of the appropriation or proposed appropriation, the amount of water claimed, and the use or proposed use of the water. In the case of applications for approval of a change of water right or plan for augmentation, the forms shall require a complete statement of such change or plan, including a description of all water rights to be established or changed by the plan, a map showing the approximate location of historic use of the rights, and records or summaries of records of actual diversions of each right the applicant intends to rely on to the extent such records exist. In the case of applications that will require construction of a well, other than applications for determinations of rights to groundwater from wells described in section 37-90-137 (4), no application shall be heard on its merits by the referee or water judge until a written consultation report, as required by subsection (4) of this section, has been submitted and considered. The consultation report shall be submitted within four months after the filing of the application and shall include findings as to whether the construction and use of any well proposed in the application will injuriously affect the owner of, or persons entitled to use, water under a vested water right or decreed conditional water right. In the case of applications for determinations of rights to groundwater from wells described in section 37-90-137 (4), the application shall be supplemented by evidence that the state engineer has issued or failed to issue, within four months of the filing of the application in water court, a determination as to the facts of such application. Such state engineer's determination shall be made by the state engineer upon receipt from the water clerk of a copy of the application, and no separate filing or docketing with the state engineer shall be required.

(b) The application shall be supplemented by evidence that the applicant has, within fourteen days after filing the application, given notice of the application by registered or certified mail, return receipt requested, to:

(I) In the case of applications for determinations of rights to groundwater from wells described in section 37-90-137 (4), every record owner of the overlying land and to every person who has a lien or mortgage on, or deed of trust to, the overlying land recorded in the county in which the overlying land is located, and, for purposes of such notice, the term "person" shall have the same meaning as is set forth in section 37-90-137 (4)(b.5); and

(II) The owner of the land upon which any new diversion or storage structure or modification to any existing diversion or storage structure or existing storage pool is or will be constructed or upon which water is or will be stored. In determining the owner of potentially affected land for purposes of such notice, the applicant may rely upon the real estate records of the county assessor for the county or counties in which the land is located.

(c) The provisions of paragraph (b) of this subsection (2) do not apply to political subdivisions of the state of Colorado, special districts, municipalities, or quasi-municipal districts that have obtained consent to withdraw groundwater pursuant to section 37-90-137 (8) or by deed, assignment, or other written evidence of consent where the application concerns only such groundwater and, at the time of application, the overlying land is within the water service area of such entity.

(3) (a) Not later than the fifteenth day of each month, the water clerk shall prepare a resume of all applications in the water division which have been filed in his office during the preceding month. The resume shall give the name and address of the applicant, a description of the water right or conditional water right involved, and a description of the ruling sought. The resume may be provided by the applicant at the time of filing the application or at the time of any republication pursuant to paragraph (b) of this subsection (3), or, if no resume is provided, the water clerk shall prepare the resume for publication. The water clerk shall promptly submit to each applicant a bill for costs incurred by the water court in publishing the resume of the application. No ruling or decree shall be entered prior to payment of the charges.

(b) Not later than the end of such month, the water clerk shall cause such publication to be made of each resume or portion thereof in a newspaper or newspapers as is necessary to obtain general circulation once in every county affected, as determined by the water judge. If, at the request of or as the result of amendments made by an applicant, the resume of an application is republished, the applicant shall pay the cost of such republication. A newspaper in which the resume is published or republished shall directly bill the applicant rather than the water clerk for the costs of publication.

(c) (I) (A) to (C) Repealed.

(D) On and after January 1, 2006, not later than the end of each month, the water clerk shall post a copy of the resume on the water court's website. Not later than the end of such month, the referee or the water clerk shall send a copy of such resume by mail or electronic mail to any person who the referee has reason to believe would be affected. The water clerk shall notify each person who has requested a copy of the resume by submitting his or her name and electronic mail address to the water clerk of the availability of the resume on such website. The water clerk shall maintain an electronic mailing list of such names and addresses, and a person desiring to have his or her name and address retained on the list shall resubmit the information by January 5. A person who has not so resubmitted the information shall not be retained on the list, but such person may submit his or her name and electronic mail address at any time thereafter for inclusion on the list subject to the requirements of this section. In order to obtain an electronic mail notification of the availability of the resume for a particular month, a person's name and address shall be received not later than the fifth day of the month of publication of the resume. A copy of the resume shall be furnished without charge to the state engineer and the appropriate division engineer.

(E) The water clerk shall provide a paper copy of the resume to a person upon payment of the fee required in section 13-32-104 (1)(a), C.R.S.

(II) Repealed.

(d) All publications provided for in paragraph (b) of this subsection (3) may be augmented, in the discretion of the water judge, by notices broadcast over any or all standard radio, FM radio, TV stations, and cable television. Such broadcast notices shall make reference to locations or publications wherein details of the subject matter of the notices are located.

(3.5) In addition to the resume notice required to be given by subsection (3) of this section, any notice of an application for a change of irrigation water rights that constitutes a significant water development activity shall include evidence that the applicant has given notice of the contents of such application by mail within ten days after filing to the:

(a) Board of county commissioners of the county from which the water is being removed;

(b) Board of the school district that encompasses the land from which the water is being removed;

(c) Offices of every water conservancy and water conservation district from which the water is to be removed;

(d) Secretary of every ditch company whose water is involved in the significant water development activity; and

(e) Governing body of every city, city and county, and town that encompasses land from which the water is being removed.

(4) The referee, without conducting a formal hearing, shall make such investigations as are necessary to determine whether or not the statements in the application and statements of opposition are true and to become fully advised with respect to the subject matter of the applications and statements of opposition. The referee shall consult with the appropriate division engineer or the state engineer or both. The engineer consulted shall file a report in writing within thirty-five days, unless such time is extended by the referee, which original report shall be filed in the proceedings, and a copy shall be sent by the division engineer to the applicant or the applicant's attorney, who shall then send copies to all parties of record if they have not otherwise been served and so certify before any ruling shall be entered or become effective. A water judge who is acting as a referee in the water judge's division shall have the same authority as provided for the referee in this subsection (4). If the application is rereferred to the water judge by the referee prior to consultation, the division engineer shall file a written recommendation in the proceedings within thirty-five days of rereferral, unless such time is extended by the court, and shall send a copy thereof to the applicant or the applicant's attorney, who shall send copies to the other parties, if they have not otherwise been served, before any decree shall be entered or become effective. The water judge may request such written report from the state engineer if the water judge desires.

(5) Persons alone or in concert may initiate and implement plans for augmentation including water exchange projects. Water conservancy districts, irrigation districts, mutual or public ditch and reservoir companies, municipalities, or other entities which are governed by a board of directors or similar body may initiate and implement plans for augmentation for the benefit of all water users within their boundaries.

(6) The general assembly hereby recognizes the authority of the Colorado supreme court to adopt rules for filing and service of documents and other case management procedures in water court proceedings. Any such rules that are adopted shall supplement the procedures set forth in this section.

Source: L. 69: p. 1207, § 1. C.R.S. 1963: § 148-21-18. L. 70: p. 431, § 3. L. 71: pp. 1321, 1323, 1326, 1330, §§ 1, 1, 1, 1. L. 73: pp. 1522, 1523, §§ 3, 2. L. 77: (1)(d) and (3)(b) amended, p. 1702, § 2, effective June 19. L. 79: (1)(b) amended, p. 1378, § 1, effective May 31. L. 81: (1)(a) amended, p. 1786, § 1, effective April 24; (3)(c) amended and (4) R&RE, p. 1788, §§ 1, 2, effective July 1. L. 83: (1)(a) amended, p. 1412, § 4, effective June 3; (1)(b), (1)(d), (2), (3)(a), (3)(c), and (4) amended, p. 1425, § 1, effective July 1. L. 85: (2) amended, p. 1167, § 7, effective July 1. L. 88: (1)(a) and (4) amended, p. 1239, § 2, effective May 17. L. 90: (1)(a) amended, p. 1626, § 2, effective April 13. L. 92: (2) amended, p. 2311, § 2, effective March 20. L. 93: (2) amended, p. 86, § 2, effective March 30. L. 96: (2)(a) amended, p. 326, § 2, effective April 16. L. 98: (3)(c) amended, p. 1345, § 75, effective June 1. L. 2001: (3)(c)(I) amended, p. 306, § 2, effective August 8. L. 2003: (3.5) added, p. 881, § 2, effective August 6. L. 2004: (3)(c)(I) amended, p. 268, § 1, effective August 4. L. 2005: (3)(c)(I)(A) amended and (3)(c)(I)(C), (3)(c)(I)(D), and (3)(c)(I)(E) added, p. 121, § 2, effective April 5; (2)(b), (2)(c), and (3)(b) amended, p. 120, § 1, effective January 1, 2006. L. 2007: (1)(e) added, p. 1269, § 7, effective May 25; (1)(d) amended, p. 1538, § 31, effective May 31. L. 2008: (1)(d) and (1)(e) amended, p. 2144, § 13, effective June 4. L. 2009: (1)(a), (1)(b), and (4) amended and (6) added, (HB 09-1185), ch. 85, p. 310, § 1, effective July 1. L. 2012: IP(2)(b) and (4) amended, (SB 12-175), ch. 208, p. 888, § 162, effective July 1.

Editor's note: Subsection (3)(c)(I)(C) provided for the repeal of subsections (3)(c)(I)(A), (3)(c)(I)(B), (3)(c)(I)(C), and (3)(c)(II), effective January 1, 2006. (See L. 2005, p. 121.)

Cross references: For the legislative declaration contained in the 2001 act amending subsection (3)(c)(I), see section 1 of chapter 114, Session Laws of Colorado 2001. For the legislative declaration contained in the 2008 act amending subsections (1)(d) and (1)(e), see section 1 of chapter 417, Session Laws of Colorado 2008.

ANNOTATION

I. General Consideration.

III. Federal Reserved Water Rights.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Optimizing Water Use: The Return Flow Issue", see 44 U. Colo. L. Rev. 301 (1973). For article, "Adjudication of Indian and Federal Water Rights in the Federal Courts", see 46 U. Colo. L. Rev. 555 (1974-75). For comment on determining the priority of federal reserved rights relative to the water rights of state appropriators, see 48 U. Colo. L. Rev. 547 (1977). For comment, "Bubb v. Christensen: The Rights of the Private Landowner Yield to the Rights of the Water Appropriator Under the Colorado Doctrine", see 58 Den. L.J. 825 (1981). For article, "The Emerging Relationship Between Environmental Regulations and Colorado Water Law", see 53 U. Colo. L. Rev. 597 (1982). For note, "Reinterpreting the Physical Act Requirement for Conditional Water Rights", see 53 U. Colo. L. Rev. 765 (1982). For article, "Water Rights — How to Avoid Getting in Over Your Head", see 11 Colo. Law. 2143 (1982). For case note, "Nontributary, Nondesignated Ground Water: The Huston Decision", see 56 U. Colo. L. Rev. 135 (1984). For article, "Developments in Conditional Water Rights Law", see 14 Colo. Law. 353 (1985). For article, "Principles and Law of Colorado's Nontributary Ground Water", see 62 Den. U. L. Rev. 809 (1985). For article, "The Continuing Groundwater Saga — Part I: Senate Bill 5", see 15 Colo. Law. 422 (1986). For article, "The Continuing Groundwater Saga — Part III: The Statewide Nontributary Groundwater Rules", see 15 Colo. Law. 813 (1986). For article, "The Physical Solution in Western Water Law", see 57 U. Colo. L. Rev. 445 (1986). For article, "The Legal Evolution of Colorado's Instream Flow Program", see 17 Colo. Law. 861 (1988). For article, "Ethical Considerations in Water Right Adjudications", see 17 Colo. Law. 2381 (1988). For article, "Heightened Notice Requirements for Water Rights Applications", see 32 Colo. Law. 93 (June 2003). For article, "Statutory and Rule Changes to Water Court Practice", see 38 Colo. Law. 53 (June 2009). For comment, "To Have Our Water and Use It Too: Why Colorado Water Law Needs a Public Interest Standard", see 87 U. Colo. L. Rev. 1041 (2016).

Annotator's note. Since § 37-92-302 is similar to repealed CSA, C. 90, § 195, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

The conditional versus the absolute status of a water right cannot provide a ground for distinguishing between rights that arise from the same intent and overt acts initiating an appropriation. An absolute water right is not a right separate and distinct from the conditional right from which it originates, rather, a conditional right matures into an absolute right. Purgatoire River Water Conservancy v. Witte, 859 P.2d 825 (Colo. 1993).

Water rights vest upon appropriation, not adjudication. Adjudication of water rights does not vest those rights, but rather establishes a priority date that can be enforced against other users. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).

Water rights are generally unenforceable within the priority administration system without an adjudication under the Water Right Determination and Administration Act of 1969. City of Lafayette v. New Anderson Ditch Co., 962 P.2d 955 (Colo. 1998).

A decree does not confer but rather confirms a pre-existing water right. City of Lafayette v. New Anderson Ditch Co., 962 P.2d 955 (Colo. 1998).

Owners of unadjudicated, exempt "602" wells have vested water rights and may assert injury to their water rights in water court once they have filed for adjudication of those rights. However, the priority of such a right is not enforceable until an application for adjudication has been filed. Once the exempt well owner files, he or she has a statutorily guaranteed expectation of the original priority date of the well regardless of the date of application. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).

Actual entry of a decree is not a condition precedent to an appearance by an exempt well owner in an augmentation proceeding. Once the exempt well owner has filed for adjudication, any uncertainty in the award of a priority date is statutorily resolved. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).

Findings by the state engineer were held not to be a condition precedent to a water court ruling in the context of an augmentation proceeding where objectors were not permitted to assert injury to their exempt wells. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).

State engineer must take into account injury to all existing wells, whether exempt or nonexempt, in reviewing permit applications for nonexempt wells. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).

Out-of-priority diverters pursuant to an unadjudicated substitute supply plan do not have standing to assert the futile call or enlargement doctrines against a downstream decreed senior appropriator. Empire Lodge Homeowners' Ass'n v. Moyer, 39 P.3d 1139 (Colo. 2001).

Applied in Benson v. Burgess, 192 Colo. 556, 561 P.2d 11 (1977); Ground Water Comm'n v. Shanks, 658 P.2d 847 (Colo. 1983); Lionelle v. Se. Colo. Water Conservancy Dist., 676 P.2d 1162 (Colo. 1984); Great W. Sugar v. Jackson Lake Reservoir, 681 P.2d 484 (Colo. 1984).

II. APPLICATIONS.

A. Procedural Requirements.

B. Action by Water Referee.

C. Determination of Water Right.

D. Determination of Conditional Water Right.

E. Determination of Change of Water Right.

F. Approval of Plan for Augmentation.

G. Determination of Abandonment.

A. Procedural Requirements.

The Water Right Determination and Administration Act creates two levels of adversary involvement in a water adjudication involving a proposed plan for augmentation or a change of water right: (1) Permission to file a statement of opposition; and (2) standing to assert injury. The first is available to "any person" and allows such person to participate to the extent of holding the applicant to a standard of "strict proof". The second, however, requires the objector to show that he or she has a legally protected interest in a vested water right or conditional decree. Application of Turkey Canon Ranch Ltd., 937 P.2d 739 (Colo. 1997).

A homeowners association has standing to hold the applicant to a standard of strict proof because the association itself is a "person", its members have standing, the interests the association seeks to protect are germane to the association's purpose, and the litigation does not require the participation of the individual homeowners. Buffalo Park Dev. Co. v. Mtn. Mut. Reservoir Co., 195 P.3d 674 (Colo. 2008).

C.R.C.P. 15 applies to proceedings under Water Right Determination and Administration Act of 1969. United States v. Bell, 724 P.2d 631 (Colo. 1986).

Traditional service of process not required. Proceedings commenced under subsection (1)(a) are not subject to the service of process requirements of C.R.C.P. 4, but rather are handled through the unique resume-notice provisions of subsection (3). Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980); Closed Basin Landowners Ass'n v. Rio Grande, 734 P.2d 627 (Colo. 1987).

Personal service, rather than resume notice under this section, is appropriate if declaratory judgment is sought against a named party. Glover v. Saratoga Falls LLC, 2021 CO 77, 498 P.3d 1106.

Resume notice was not required for a dispute between specific water users, as opposed to an application affecting all water rights on a stream system. Glover v. Saratoga Falls LLC, 2021 CO 77, 498 P.3d 1106.

Claim under C.R.C.P. 19 not applicable. Shareholders of mutual ditch company in which division of wildlife owned water rights, having been given an opportunity to object and either actual or publication notice of the division's request for a change of storage rights and augmentation plan, were not indispensable parties to the water court action. S.E. Colo. Water Cons. v. Ft. Lyon Canal Co., 720 P.2d 133 (Colo. 1986).

Joinder under C.R.C.P. 20 and 21 is applicable when a non-party principle becomes liable for attorney fees due to its agent's frivolous claim. In re Water Rights of Park County Sportsmen's Ranch, 105 P.3d 595 (Colo. 2005) (distinguishing S.E. Colo. Water Cons. v. Ft. Lyons Canal Co., 720 P.2d 133 (Colo. 1986)).

Publication and notice provisions applicable to decree modifications. The publication and notice provisions of this section are applicable to a request for modification of a decree involving a change of water right. Town of Breckenridge v. City & County of Denver, 620 P.2d 1048 (Colo. 1980).

Subsection (3)(a) does not expand types of applications that may be filed. The provisions of paragraph (a) of subsection (3), which direct the water clerk to include in the resume all applications filed under paragraph (a) of subsection (1), does not expand the types of applications that may be filed under the resume-notice procedures. Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Under the plain meaning of this section, an application to determine whether previously decreed water rights included rights for year-round stockwatering and domestic use incidental to agricultural purposes is a "determination of a water right". Therefore, publication of resume notice was the proper means for the court to obtain jurisdiction, and the water court did not abuse its discretion in disallowing an untimely-filed statement of opposition and denying a motion to intervene, particularly when the moving party had actual notice of the application and the division engineer had already filed a report. Personal service was not required despite the moving party's argument that the application was for a declaratory judgment. S. Ute Indian Tribe v. King Consol. Ditch, 250 P.3d 1226 (Colo. 2011).

Lack of verification of an application is a technical defect in an application, and the statutory requirement of verification should not be strictly construed. The water court did not abuse its discretion in holding that a verification filed after the application was filed related back to the date of the original filing. S. Ute Indian Tribe v. King Consol. Ditch, 250 P.3d 1226 (Colo. 2011).

Where application erroneously failed to list adjoining landowner as the owner of the land upon which the water subject to the application was used, the water court abused its discretion in summarily dismissing a petition for reconsideration for failure to show excusable neglect. SL Group, LLC v. Go W. Indus., Inc., 42 P.3d 637 (Colo. 2002).

Trial court's findings involving factual issues binding. Where application for finding of reasonable diligence concerning conditional water decree involves factual issues, it is fundamental that a trial court's findings are binding upon the appellate court and will not be overturned if the evidence is sufficient to sustain them. Orchard Mesa Irrigation Dist. v. City & County of Denver, 182 Colo. 59, 511 P.2d 25 (1973).

Effect of abandonment on an applicant's ability to establish a new right does not differ depending on whether the abandoned right was conditional or absolute. An abandonment of a conditional right effectively augments the stream by making water available for appropriation in the same manner as abandonment of an absolute water right. Purgatoire River Water Conservancy v. Witte, 859 P.2d 825 (Colo. 1993).

Any person who has filed opposition to an application for adjudication of water rights has standing to challenge on appeal the adequacy of the published notice. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

Resume not in substantial compliance with subsection (3)(a). Where resume did not mention the nontributary character of the water right, it did not substantially comply with the provision of subsection (3)(a). Stonewall Estates v. CF & I Steel Corp., 197 Colo. 255, 592 P.2d 1318 (1979).

Whether resume was sufficient notice is applied in Pueblo W. Metro. Dist. v. Se. Colo. Water Conservancy Dist., 689 P.2d 594 (Colo. 1984).

The resume notice procedures are calculated to alert all water users on the stream system whose rights may be affected by the application and to participate in the proceeding and to oppose the application. It is designed to put interested parties to the extent reasonably possible on "inquiry notice" of the nature, scope, and impact of the proposed diversion. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

Inquiry notice requires sufficient facts to attract the attention of interested persons and prompt a reasonable person to inquire further. Once the applicant satisfies the initial burden of providing information that would alert a reasonable person to investigate claims further, the potential objector bears the burden of conducting a reasonably diligent inquiry and is charged with all notice that such an inquiry would produce. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

A resume notice that misidentifies the location of a headgate is not insufficient when the notice correctly identified both the ditch on which the headgate was located and the location of place of use; the plaintiff was the only user on the ditch; and the notice otherwise contained sufficient information to alert an interested party as to the nature, scope, and impact of the change of water right. Sheek v. Brooks, 2019 CO 32M, 440 P.3d 1145.

Details such as identity of end user and place of use need not be included. In re Water Rights of Columbine Assocs., 993 P.2d 483 (Colo. 2000).

A description of the ruling sought and the conditional water right involved, as required under subsection (3)(a), are sufficient to put interested parties on inquiry notice of the nature, scope, and impact of the proposed diversion. In re Water Rights of Columbine Assocs., 993 P.2d 483 (Colo. 2000).

The potential objector must be viewed as a "reasonably prudent party" and cannot establish the lack of adequate notice if, on the basis of the published resume, the objector should have anticipated that the disputed rights might be at issue. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

Inquiry notice evaluation requires consideration of the facts surrounding each individual application and resume. Here, Thornton's reference in its applications and resumes to use of its proposed exchanges and diversions "by storage" was sufficient to trigger an inquiry by objectors into the extent of the storage rights claimed by Thornton. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

A claim or issue adjudicated without proper notice can be collaterally attacked. A prior decree is not res judicata in regard to the issue of whether water beneath a subdivision is nontributary if there is a lack of resume notice. Chatfield E. Well Co. v. Chatfield E. Prop. Owners Ass'n, 956 P.2d 1260 (Colo. 1998).

Water court erred by dismissing ditch owner's litigation seeking declaration of appropriative rights on grounds of collateral estoppel because the issue raised in the current litigation was neither actually determined in prior litigation between the parties nor necessarily implied in the final judgment issued in prior litigation between the parties. Reynolds v. Cotten, 2012 CO 27, 274 P.3d 540.

Formerly, the statement of claim to be filed was somewhat similar to a pleading in other actions. It required the setting forth of the respective claims of the parties, and no evidence would be received upon behalf of any claimant until such statement had been filed. New Mercer Ditch Co. v. Armstrong, 21 Colo. 357, 40 P. 989 (1895); Ft. Collins Milling & Elevator Co. v. Larimer & Weld Irrigation Co., 61 Colo. 45, 156 P. 140 (1916); H. H. Ditch Co. v. Big Stick Ditch Co., 62 Colo. 313, 162 P. 149 (1916).

Objectors had standing to challenge application. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976); FWS Land & Cattle Co. v. State Div. of Wildlife, 795 P.2d 837 (Colo. 1990).

Under this section, only owners of a decreed water right have standing to obtain a change in such water right. Bd. of County Comm'rs v. Upper Gunnison River Water Conservancy Dist., 838 P.2d 840 (Colo. 1992).

Applicant did not have standing to request a change in the water right although the owner of such right had agreed by contract not to oppose applicant's request. Bd. of County Comm'rs v. Upper Gunnison River Water Conservancy Dist., 838 P.2d 840 (Colo. 1992).

Any person who seeks a determination of a conditional water right must file a verified application in accordance with this section showing a substantial probability that the water can and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time. City of Lafayette v. New Anderson Ditch Co., 962 P.2d 955 (Colo. 1998).

Inquiry into injury is immaterial and unnecessary where issue involves interpretation of the scope and administration of an existing decree. Although injury to other adjudicated water rights is a central principle in the state's prior appropriation system, that does not mean that injury is relevant to every water rights proceeding. When a water court application asks only that the water court construe the scope of an existing decree, any reduction in the water supply available to junior appropriators resulting from the administration of water rights consistent with that decree is a consequence of the prior appropriation doctrine and does not establish an independently cognizable injury to junior appropriators. United States v. City of Golden, 2024 CO 43M, 551 P.3d 634.

B. Action by Water Referee.

Applications under section referred to water referee. The water judge must refer all applications and statements of opposition filed under this section to a water referee. Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Authority of water referee is derivative from, and not greater than, authority of water judge. Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Jurisdiction of court. Matters of jurisdiction and sufficiency of process are questions of law for the court based upon uncontested or properly determined jurisdictional facts. Closed Basin Landowners Ass'n v. Rio Grande, 734 P.2d 627 (Colo. 1987).

It is axiomatic that a court must have jurisdiction over the parties and the subject matter of the case if its judgment is to be valid. Closed Basin Landowners Ass'n v. Rio Grande, 734 P.2d 627 (Colo. 1987).

To invoke the jurisdiction of a water court, a person seeking a determination of a water right must file an application with the water clerk setting forth facts supporting the ruling sought and a legal description of the diversion or proposed diversion, a description of the source of the water, the date of the initiation of the appropriation or proposed appropriation, the amount of water claimed, and the use or proposed use of the water. Closed Basin Landowners Ass'n v. Rio Grande, 734 P.2d 627 (Colo. 1987).

Sufficiency of an application turns on the facts of each case and must be determined on an ad hoc basis in light of the circumstances and facts before the water court. Harvey Land & Cattle Co. v. Se. Colo. Water Conservancy Dist., 631 P.2d 1111 (Colo. 1981); Rocky Mt. Power Co. v. Colo. River Water Conservation Dist., 646 P.2d 383 (Colo. 1982).

Water judge determines applications expressly authorized to be filed. Under this article, the types of applications the water judge may determine under the resume-notice procedure of subsection (3) are those applications expressly authorized to be filed under subsection (1)(a). Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Proper venue for proceedings to change transmountain water rights is in the basin of use, not the basin of origin, therefore water court had jurisdiction to approve Thornton's application for a change in use of transmountain water. Once an application is filed, the responsibility for publishing notice shifts to the water court. City of Thornton v. Bijou Irrigation Co., 926 P.2d 1 (Colo. 1996).

C. Determination of Water Right.

In order to initiate an appropriation, there must be an intent and purpose by the appropriator actually to take the water and to put it to beneficial use. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

To initiate an appropriation, two elements — an intent and an act — must coexist. Colo. River Water Conservation Dist. v. City & County of Denver, 642 P.2d 510 (Colo. 1982).

An appropriation is the intent to take accompanied by some open, physical demonstration of the intent, and for some valuable use. Cent. Colo. Water Conservancy Dist. v. City & County of Denver, 189 Colo. 272, 539 P.2d 1270 (1975).

An applicant for a conditional water right must establish that he has taken the first step toward the appropriation of water; that is, he must show an intent to appropriate and some open, physical demonstration of that intent. Harvey Land & Cattle Co. v. Se. Colo. Water Conservancy Dist., 631 P.2d 1111 (Colo. 1981).

An appropriation must be made in connection with some land area. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

Intent to appropriate ordinarily precedes an open, physical manifestation of this intent. Harvey Land & Cattle Co. v. Se. Colo. Water Conservancy Dist., 631 P.2d 1111 (Colo. 1981).

Surveys and filing of plats alone constitute no evidence of intent to appropriate water from a natural stream. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

Mere filing of the preliminary maps prepared by the bureau of reclamation does not suffice, without more, to complete the first step to constitute appropriation. Cent. Colo. Water Conservancy Dist. v. City & County of Denver, 189 Colo. 272, 539 P.2d 1270 (1975).

Reports and studies made by the bureau of reclamation, where there is no privity between the bureau and the person seeking to base an appropriation on the bureau work, do not constitute a basis for such person's claim to a water right unless there has been an assignment or other conveyance of the bureau's rights to him. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

Filing of map and statement does not establish appropriation. The filing of the map and statement of claim did not of itself establish an appropriation for water rights. Michel v. Front Range Land & Livestock Co., 200 Colo. 104, 612 P.2d 1128 (1980).

Map and statement filed with the state engineer are not incorporated by reference into the statement of claim and therefore could not satisfy the requirement that the applicant name the sources of water sought to be appropriated. City & County of Denver v. Vail Valley, 751 P.2d 68 (Colo. 1988) (statement of claim at issue was filed under the Adjudication Act of 1943 which was repealed in 1969).

Where water court's decree did not modify or impair an earlier federal district court's water rights decree, the water court had jurisdiction to issue a decree granting a city application for reservoir refill rights. Even though the federal district court retained exclusive continuing jurisdiction concerning the federal decree, the city was seeking a new water right not addressed by the federal court that was junior to all appropriations adjudicated in the federal decree. City of Grand Junction v. Denver, 960 P.2d 675 (Colo. 1998).

Priority measured from "first step" in appropriation. Although an appropriation is not complete until actual diversion and use, the right may relate back to a valid "first step", and the priority measured from that time. Cent. Colo. Water Conservancy Dist. v. City & County of Denver, 189 Colo. 272, 539 P.2d 1270 (1975); In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

A valid "first step" is established when an intent to take water is formed, together with an open, overt action on the land giving notice of the intent to apply the water to a beneficial use. Cent. Colo. Water Conservancy Dist. v. City & County of Denver, 189 Colo. 272, 539 P.2d 1270 (1975); In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

Certainly the first step demanded is nothing short of an open and notorious physical demonstration, conclusively indicating a fixed purpose to diligently pursue and, within a reasonable time, ultimately acquire a right to the use of water, and as its primary function is to give notice to those subsequently desiring to initiate similar rights, it must necessarily be of such character that they may fairly be said to be thereby charged with at least such notice as would reasonably be calculated to put them on inquiry of the prospective extent of the proposed use and consequent demand upon the water supply involved. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

The "first step" consists of two prongs: The formation of an intent to appropriate a definite quantity of water for a beneficial use, and an overt manifestation of that intent through physical acts sufficient to constitute notice to third parties. Rocky Mt. Power Co. v. Colo. River Water Conservation Dist., 646 P.2d 383 (Colo. 1982).

The first prong of the first step, intent to take, was unquestionably satisfied by the filing of maps, which constituted prima facie evidence of an intent to take water. Cent. Colo. Water Conservancy Dist. v. City & County of Denver, 189 Colo. 272, 539 P.2d 1270 (1975).

The filing of an application for adjudication of a water right may itself be evidence of an intent to appropriate. Harvey Land & Cattle Co. v. Se. Colo. Water Conservancy Dist., 631 P.2d 1111 (Colo. 1981).

Appellant may not claim, as a basis for his first step, work completed while an employee of the bureau of reclamation. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

Whether a first step has been taken must turn on the facts of each case. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

Sufficiency of the overt acts necessary for "first step" discussed in City & County of Denver v. Colo. River Water Conservation Dist., 696 P.2d 730 (Colo. 1985).

Water is available for appropriation if the taking thereof does not cause injury. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976).

No one is entitled to have a priority adjudged for more water than he has actually appropriated, nor for more than he actually needs; priority of right is limited by each of these considerations. Nichols v. McIntosh, 19 Colo. 22, 34 P. 278 (1893).

It seems clear that the source of supply shall be determined, in fact, such a determination is an indispensable prerequisite to the determination of priorities, for the term "priority" connotes two appropriations from the same source of supply, and if a decree were not res judicata as to the source of supply of a ditch, neither could it be res judicata as to the priority of that ditch as related to other ditches drawing upon the same source of supply. In re Nix, 96 Colo. 540, 45 P.2d 176 (1935).

There are two classes of appropriations for irrigation, one for ditches diverting water to be used directly from the stream, and one for the storage of water to be used subsequently. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 27 P.2d 992 (1954).

The same irrigating ditch may have two or more priorities belonging to the same party, or to different parties. Thomas v. Guiraud, 6 Colo. 530 (1883); Rominger v. Squires, 9 Colo. 327, 12 P. 213 (1886); Fuller v. Swan River Placer Mining Co., 12 Colo. 12, 19 P. 836 (1888); Farmers' High Line Canal & Reservoir Co. v. Southworth, 13 Colo. 111, 21 P. 1028, 4 L.R.A. 767 (1889); Nichols v. McIntosh, 19 Colo. 22, 34 P. 278 (1893); Park v. Park, 45 Colo. 347, 101 P. 403 (1909).

An appropriation of water for irrigation purposes may be changed to a use for storage, but such change cannot be made to the detriment of other appropriators whose rights are subsequent to the appropriation for irrigation, but prior to the appropriation for storage. Further, when the water in the stream is needed by the subsequent appropriators, the diversion of the prior appropriator for storage purposes would be limited to what he was entitled to divert for irrigation purposes, both as to amount and time of diversion. The state general assembly has given statutory recognition of this rule by providing for such a change if no injury will result or if conditions can be imposed to prevent injury. Ackerman v. City of Walsenburg, 171 Colo. 304, 467 P.2d 267 (1970).

Notice requirement. The appropriator must provide interested persons with notice of such a character that they may fairly be said to be thereby charged with at least such notice as would reasonably be calculated to put them on inquiry of the prospective extent of the proposed use and consequent demand upon the water supply involved. Closed Basin Landowners Ass'n v. Rio Grande, 734 P.2d 627 (Colo. 1987); State Eng'r v. Smith Cattle, Inc., 780 P.2d 546 (Colo. 1989); In re Water Rights of Columbine Assocs., 993 P.2d 483 (Colo. 2000).

A would-be appropriator need not determine the exact amount of water to be diverted at a precisely located point of diversion before that appropriator can form the necessary intent to appropriate or provide sufficient notice to others. Closed Basin Landowners Ass'n v. Rio Grande, 734 P.2d 627 (Colo. 1987).

The determination must always be made on an ad hoc basis, taking into account whether the particular facts of each case satisfy the purposes underlying the requirements of the first step test. Closed Basin Landowners Ass'n v. Rio Grande, 734 P.2d 627 (Colo. 1987).

Change of diversion point is water matter. Application for a change in point of diversion is a water matter. Ft. Lyon Canal Co. v. Catlin Canal Co., 642 P.2d 501 (Colo. 1982).

A change in a water right includes a change in the point of diversion. Orr v. Arapahoe Water & Sanitation Dist., 753 P.2d 1217 (Colo. 1988).

Prior to the water court granting an application for a change in the point of diversion, the applicant must demonstrate that the proposed change will not injuriously affect the vested rights of other water users. Orr v. Arapahoe Water & Sanitation Dist., 753 P.2d 1217 (Colo. 1988).

An appropriation consists of an actual diversion of water from a natural stream, followed within a reasonable time thereafter by an application thereof to some beneficial use. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

Water can be actually diverted only by taking it from the stream, and the amount so diverted is necessarily limited to the capacity of the ditch or tunnel through which diversion is made. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

Right to change point of diversion is limited in quantity by historical use. Se. Colo. Water Conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981); Orr v. Arapahoe Water & Sanitation Dist., 753 P.2d 1217 (Colo. 1988).

Automatic cessation of diversions by junior appropriator not contemplated. Sections 37-92-501 and 37-92-502 do not contemplate automatic cessation of diversions by junior appropriator in response to a river call. Se. Colo. Water Conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981).

Division engineer evaluates each junior appropriator's diversion to determine material injury caused. The statutory plan in §§ 37-92-501 and 37-92-502 contemplates that the division engineer will evaluate each junior appropriator's diversion to determine whether it is causing material injury to water rights having senior priorities before ordering the discontinuance of the diversion by the junior appropriator. Se. Colo. Water Conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981).

Diversions made pursuant to water right considered historical use where not ordered discontinued. Where the water commissioner was aware of the landowners' diversions of water and had never ordered them to be discontinued or limited, the diversions made pursuant to a water right, though not in priority, could be considered as establishing an historical use for the purpose of the change of water right. Se. Colo. Water Conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981).

An argument to the effect that water withdrawn must be replaced 100 % fell where senior users could show no injury by the diversion of water, even though the river involved was over-appropriated. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976).

For the doctrine of relation back to apply, there must have been on the part of claimant both an intention to appropriate the particular water and also an open physical demonstration of that intention to put the water to some valuable use. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

Filing application to protect priority date while well application pending. In securing a determination of water rights in tributary ground water, although subsection (2) provides that the water court shall not enter a decision on an application for determination of a water right requiring the construction of a well until the claimant supplements the application with a permit to construct a well, issued by the state engineer under § 37-90-137, or evidence of its denial or of failure of the state engineer to grant or deny the permit within six months, this section does not require the applicant to obtain the well permit prior to filing an application in water court. The claimant may file in the water court to protect his priority date while an application to construct a well is pending before the state engineer. State Dept. of Natural Res. v. Sw. Colo. Water Conservation Dist., 671 P.2d 1294 (Colo. 1983).

An appropriator has a reasonable time in which to effect his originally intended use as well as to complete his originally intended means of diversion. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

Nontributary ground water rights excluded. The water right determination proceedings authorized by subsection (1)(a) do not extend to rights in nontributary ground water. State Dept. of Natural Res. v. Sw. Colo. Water Conservation Dist., 671 P.2d 1294 (Colo. 1983) (decided prior to 1983 amendment).

A motion to enjoin diversions pursuant to operation of a temporary substitute water supply plan is outside of the scope of an application for determination of a water right; therefore, the water court was correct in denying the motion. Groundwater Appropriators of the S. Platte River Basin, Inc. v. City of Boulder, 73 P.3d 22 (Colo. 2003).

An inverse condemnation action based on the state engineer's well curtailment order is a water matter because a court must first determine whether the well owner had a right to use the wells without interference from the state, and the determination of the right to use water is, quintessentially, a water matter. Kobobel v. State, 249 P.3d 1127 (Colo. 2011).

D. Determination of Conditional Water Right.

Application for a conditional water right involves a "water matter" over which the water court has exclusive jurisdiction. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).

A conditional water decree requires an intent to appropriate and an overt, physical act constituting the first step toward diversion and application to a beneficial use. Mun. Subdistrict v. Rifle Ski. Corp., 726 P.2d 635 (Colo. 1986).

To prove due diligence to utilize water granted by conditional water decree, there must be shown an intention to use the water, coupled with concrete action amounting to diligent efforts to finalize the intended appropriation. Orchard Mesa Irrigation Dist. v. City & County of Denver, 182 Colo. 59, 511 P.2d 25 (1973).

Showing necessary to substantiate need for claimed water. A claimant of a conditional water right must substantiate a need for the claimed water by showing, at the least, a contractual or an agency relationship with those who are to put the water to a beneficial use. Rocky Mt. Power Co. v. Colo. River Water Conservation Dist., 646 P.2d 383 (Colo. 1982).

Limited relevance of evidentiary matters. In an application for a conditional water right, evidentiary matters have relevance only as they relate to whether the applicant has taken a first step toward appropriation of water. Harvey Land & Cattle Co. v. Se. Colo. Water Conservancy Dist., 631 P.2d 1111 (Colo. 1981).

Speculative future beneficial use insufficient basis for conditional decree. Conditional decrees will not be granted to those who cannot show more than a speculative or conjectural future beneficial use. Rocky Mt. Power Co. v. Colo. River Water Conservation Dist., 646 P.2d 383 (Colo. 1982).

Hope to use water coupled with inaction insufficient. Support of a claim of due diligence to utilize water granted by conditional water decree by the applicant must be proved by a preponderance of the evidence, and a record which shows only a hope someday to use the water, but with admitted prior years of inaction, will not support the claim. Orchard Mesa Irrigation Dist. v. City & County of Denver, 182 Colo. 59, 511 P.2d 25 (1973).

Landowners bound by conditional water decree where no protest filed, nor correction sought. Where the landowners of property upon which the point of diversion for a conditional water right was located had notice of an application for the water right by reason of the publication of the summary in the resume, but they did not file a statement of opposition to the application, did not file a protest to the ruling of the referee, and did not seek correction of any substantive errors in the judgment and decree of the water court within three years after it was entered, and they took no action until the water had been applied to beneficial use and an application had been filed to make the conditional decree absolute, the time for challenging the conditional decree has expired and the landowners were bound by the decree. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).

Award of right for already existing wells. A decree for a conditional water right may be awarded for wells already in existence, even though the priority date attached to the conditional water right cannot be set earlier than the date on which the applicant formed the actual intent to appropriate. Harvey Land & Cattle Co. v. Se. Colo. Water Conservancy Dist., 631 P.2d 1111 (Colo. 1981).

Unexpired permit to drill well for tributary ground water is a prerequisite to a hearing on the merits of an application for a conditional water right under the Water Right Determination and Administration Act of 1969. Kenneth M. Good Irrevocable Trust v. Bell, 759 P.2d 48 (Colo. 1988).

Easement to diversion point not required before conditional water right decreed absolute. No useful purpose would be served by requiring that a conditional water right cannot be decreed to be absolute until an easement to the point of diversion has been obtained by condemnation. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).

Trespass onto property upon which diversion point located no defense to application. Under the circumstances of the case, trespass by a person with a conditional water right onto property upon which the point of diversion for the water right was located was not a defense to an application to make a conditional water right absolute. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).

An application for conditional appropriative rights of exchange should be treated as an application for a conditional water right, rather than as a proposed augmentation plan. Centennial Water & Sanitation Dist. v. City & County of Broomfield, 256 P.3d 677 (Colo. 2011).

E. Determination of Change of Water Right.

Water right is a legal right to use water; often, it is characterized as a property right. Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Change of water rights requires judicial approval. Changes of water rights cannot be effected in any manner other than through judicial approval, following statutorily authorized procedures. Ft. Lyon Canal Co. v. Catlin Canal Co., 642 P.2d 501 (Colo. 1982).

Diverting water from a natural stream at a point other than one decreed to an existing water right constitutes an out-of-priority diversion, justifying an order to cease further diversion in the absence of a change of water rights for the protection of existing adjudicated rights and to prevent enlargement of the water right. Trail's End Ranch, L.L.C. v. Colo. Div. of Water Res., 91 P.3d 1058 (Colo. 2004).

The owner of a water right may apply to the water court for a determination with respect to a change of the water right. Orr v. Arapahoe Water & Sanitation Dist., 753 P.2d 1217 (Colo. 1988).

Appropriate court for determining change of use of water right. Where the proposed change of use of a water right does not in any respect affect water in the division of diversion, the appropriate court for the determination of the requested change is the water court in the division of use. State Dept. of Natural Res. v. Ogburn, 194 Colo. 60, 570 P.2d 4 (1977).

Application for alternate places for storage for a previously decreed conditional right to store a certain amount of water constitutes a change of water right. City of Thornton v. Clear Creek Water Users Alliance, 859 P.2d 1348 (Colo. 1993).

F. Approval of Plan for Augmentation.

Action by state engineer not condition precedent to approval of plan of augmentation. This section does not require action by the state engineer upon application for well permit as a condition precedent to consideration and approval of a plan for augmentation. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976).

The purpose and intent of this section is to permit the court first to approve or disapprove a plan for augmentation, and if it approves of the plan, let the issuance of well permits follow. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976).

The state engineer was not required to fix an appropriation date of each well for which a permit is issued where one of the fundamentals of the plan for augmentation was that there would be equal priorities between well owners. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976).

An acceptable plan for augmentation does not require the addition of new water into the water system, such as the introduction of transmountain diverted water into the system. Kelly Ranch v. Se. Colo. Water Conservancy Dist., 191 Colo. 65, 550 P.2d 297 (1976).

The fact that rivers involved are over-appropriated, rather than being an argument against the plans for augmentation, is the very reason for the valid exercise of ingenuity of persons seeking to maximize the use of water, whether they are present or future owners of land and wells, developers, or as characterized by the water court here, promoters, speculators, or nonusers. Kelly Ranch v. Se. Colo. Water Conservancy Dist., 191 Colo. 65, 550 P.2d 297 (1976).

The burden is upon the proponent of a proposed plan for augmentation to prove the amount of return flow from in-house use of water withdrawn from wells on the property. Kelly Ranch v. Se. Colo. Water Conservancy Dist., 191 Colo. 65, 550 P.2d 297 (1976).

All wells involved in a plan for augmentation must be treated as if they were nonexempt. Kelly Ranch v. Se. Colo. Water Conservancy Dist., 191 Colo. 65, 550 P.2d 297 (1976).

Under a plan for augmentation, wells, which might be exempt otherwise, must be treated as nonexempt. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976).

Under the act, an exempt well, standing alone, was and is free from regulation by either a water court or the state engineer. When, however, one studies this section, relating to a plan for augmentation, the conclusion is inescapable that all wells involved in a plan for augmentation must be treated as if they were nonexempt. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976).

Of necessity, the issuance of well permits, the adjudication of a plan for augmentation involving wells, and the enforcement of that plan and regulations involving wells must relate to wells which are subject to administration. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976).

Plan of augmentation held valid. Cache La Poudre Water Users Ass'n v. Glacier View Meadows, 191 Colo. 53, 550 P.2d 288 (1976).

Res judicata bars consideration of a claim where the subject matter of historical usage under the certain water rights had been litigated and the claimant could have raised its claim at that time. Concerning Application for Water Rights, 938 P. 2d 515 (Colo. 1997).

G. Determination of Abandonment.

Publication and notice provisions not applicable to abandonment determination. Paragraph (a) of subsection (1) excludes applications for determination of abandonment from the resume-notice provisions of subsection (3). Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Determination of abandonment not permitted under subsection (3). This article does not permit the water judge to make a determination of abandonment under subsection (1)(a), when the application has been filed in accordance only with the resume-notice procedures outlined in subsection (3). Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Exclusion of abandonment determination from subsection (3) procedures purposeful decision. The exclusion of applications for the determination of abandonment from the resume-notice procedure of subsection (3) was a purposeful legislative decision. Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Exclusion of abandonment determination reasonable to require applicant to utilize notice procedures likely to apprise owners. Where an applicant for a determination of abandonment takes under the same source as the putative abandoned interest, or where the applicant's position in relation to unknown owners or their successors in interest is such that the applicant's water right will be enhanced by the decree, it is reasonable to require that the applicant utilize notice procedures more likely to apprise the water right owners or their successors in interest of the pending action than the resume-notice provisions of subsection (3). Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Applicant may apply for abandonment determination under pertinent provisions of C.R.C.P. 4 and 19. When an application for a determination of abandonment is filed, the water judge may require the applicant to make reasonable efforts to determine the identity and location of the owner or the successor in interest, and, if those efforts are successful, to proceed under the pertinent provisions of C.R.C.P. 4 and 19. But if the efforts to determine the identity and location of the owner or the successor in interest are unsuccessful, then the applicant may still proceed under the service by publication provision of C.R.C.P. 4(h). Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Statements opposing water right application may be based on abandonment theory. The statutory delegation in § 37-92-301 (2) of authority to water referees to make determinations of abandonment is merely a recognition that statements of opposition to an application may be based on the theory of abandonment as an affirmative defense to the application. Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

Decree of abandonment terminates the water right and divests the owner of any interest in it, thereby rendering the water once again subject to appropriation by the public under § 5 of art. XVI, Colo. Const. Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

A subsequent owner's removal of water rights from the abandonment list and inclusion of water right in warranty deeds does not rebut the presumption of the previous owner's intent to abandon, which arose when the water rights were not used and the ditches for the water rights were unusable for at least 22 years. Haystack Ranch, LLC v. Fazzio, 997 P.2d 548 (Colo. 2000).

III. FEDERAL RESERVED WATER RIGHTS.

Federal reserved water rights. The United States possesses reserved rights for its federal reservations in Colorado in waters unappropriated upon the date of reservation of the federal lands from the public domain, and in the amount necessary to achieve the primary purposes of the reservations. United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982); Park Ctr. Water Dist. v. United States, 781 P.2d 546 (Colo. 1989).

Reserved rights determined by Colorado law. Colorado law governing the determination of water rights is properly applied as the rule of decision by which the courts will determine the contours of the reserved rights asserted by the United States. United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982); Park Ctr. Water Dist. v. United States, 781 P.2d 90 (Colo. 1989).

The United States had consented under 43 U.S.C. § 666 to adjudication of its reserved rights in supplemental adjudication proceedings under former § 148-9-7, C.R.S. 1963, and in monthly proceedings under former § 148-21-18, C.R.S. 1963 (which was similar to this section), both of which were general adjudications within the meaning of the federal statute. United States v. District Court, 401 U.S. 520 (1971); United States v. District Court for Water Div., 401 U.S. 527 (1971).

For extent of federal reserved water rights on different categories of public lands, see United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982).

United States' claim to mainstem Colorado River water in 1983 does not relate back to its original application in 1971. U.S. v. Bell, 724 P.2d 631 (Colo. 1986).