Colorado § 37-92-304 - Proceedings by the water judge.

§ 37-92-304. Proceedings by the water judge.

(1) On the first Tuesday of March and September in division 1, the second Tuesday of March and September in division 2, the third Tuesday of March and September in division 3, the fourth Tuesday of March and September in division 4, the first Tuesday of April and October in division 5, the second Tuesday of April and October in division 6, and the third Tuesday of April and October in division 7, the water judge for the particular division may set for hearing matters in which protests have been filed or orders of rereferral entered by the referee during the preceding six calendar months. Such matters shall generally be considered by the water judge in chronological order; however, the dates and times of hearings shall be adjusted by the water judge at his discretion for the convenience of persons involved or for other reasonable cause.

(2) Within twenty-one days after the date of mailing thereof, any person, including the state engineer, who wishes to protest or support a ruling of the referee shall file in writing a pleading in quadruplicate with the water clerk and shall mail or deliver a copy to all parties and so certify. Such pleading shall clearly identify the matter and shall state the factual and legal grounds therefor. Upon filing of such a pleading, the party, except for the state engineer who shall pay no filing fee, shall pay a filing fee equal to that for filing an answer to a civil action in district court, as provided in section 13-32-101, C.R.S. No person who is already a party in the matter may be required to file any additional pleading or to pay any additional filing fee to maintain a party status in the case. All fees collected pursuant to this subsection (2) shall be transmitted to the state treasurer and be divided as provided in section 13-32-101, C.R.S.

(3) As to the rulings with respect to which a pleading has been filed and as to matters which have been rereferred to the water judge by the referee, there shall be de novo hearings. The court shall not be bound by findings of the referee. The division engineer shall appear to furnish pertinent information and may be examined by any party, and, if requested by the division engineer, the attorney general shall represent the division engineer. The applicant shall appear either in person or by counsel and shall have the burden of sustaining the application, whether it has been granted or denied by the ruling or has been rereferred by the referee, and in the case of a change of water right or a plan for augmentation the burden of showing absence of any injurious effect. All parties of record shall remain parties in the proceedings before the water judge. Any person may move to intervene in proceedings before the water court upon payment of a fee, equal to that for filing an answer to a civil action in district court, except for the state engineer who shall pay no fee, and upon a showing of mistake, inadvertence, surprise, or excusable neglect or to support a referee's ruling. The water court shall grant the motion to intervene only if intervention is sought no less than thirty-five days before any pretrial conference or due date for trial data certificates and if intervention will not unduly delay or prejudice the adjudication of the rights of the original parties. Service of copies of applications, written pleadings, or any other documents is not necessary for jurisdictional purposes, but the water judge may order service of copies of any documents on any persons and in any manner which he or she deems appropriate.

(3.5) In connection with a water adjudication proceeding to change the place of use of a water right from a mutual agricultural ditch or mutual agricultural ditch system or mutual agricultural reservoir company, the remaining owners of water rights in such ditch or ditch system or reservoir company, in the discretion of the court and where material injury has been demonstrated by the objector, may be awarded payment of their reasonable attorney fees and costs, including reasonable engineering and expert witness fees and the cost of any structures or measures necessary within the ditch or reservoir system to ensure the continuation of such owners' historically available surface water supply, under the remaining water rights which such owners continue to own, without injury or any increase in cost, unless the applicant seeking such change of water right shall have sought such change based on limitations, conditions, and structural changes necessary to prevent material injury to the exercise of such owners' water right. In cases where the objector fails to demonstrate material injury or the applicant has incorporated sufficient limitations, conditions, and structural changes to prevent material injury and such opposition has been maintained frivolously or for purposes of harassment, the applicant, in the discretion of the court, may be awarded payment of his reasonable attorney fees and costs, including reasonable engineering and expert witness fees. The provisions of this subsection (3.5) shall not apply to decrees which have been entered prior to May 17, 1988, or decrees pending before the referee as of May 17, 1988, and which are concluded before the referee without being protested to the water judge.

(3.6) Any decree entered for a water right requiring a well to be constructed on lands owned by other than the applicant shall specify that no person shall construct a well on property owned by another unless the right to construct such a well is obtained by consent of the landowner or the exercise of the power of eminent domain by a person having the power of eminent domain under law.

(4) If an applicant, a person who has filed a statement of opposition, or a protestant requests, the hearing shall be conducted by the water judge in the district court of the county in which is located the point of diversion of the water right or conditional water right involved. In case the hearing involves points of diversion located in more than one county, the hearing shall be conducted by the water judge in the district court of that county in which is located the major part, as determined by the water judge, of the diversions or proposed diversions involved.

(5) A decision of the water judge with respect to a protested ruling of the referee shall either confirm, modify, reverse, or reverse and remand such ruling, and, in the case of the modification of a ruling, the decision may grant a different priority than that granted by the referee and may specify its own terms and conditions with respect to a change of water right or plan for augmentation. A decision of the water judge in regard to a matter which has been rereferred by the referee shall dispose fully of such matter and may contain such provisions as the water judge deems appropriate. The water judge shall confirm and approve by judgment and decree a ruling of the referee with respect to which no protest was filed, but the water judge may reverse, or reverse and remand, any such ruling which he deems to be contrary to law.

(6) Any decision of the water judge as specified in subsection (5) of this section dealing with a change of water right, implementation of a rotational crop management contract, or a plan for augmentation shall include the condition that the approval of such change, contract, or plan shall be subject to reconsideration by the water judge on the question of injury to the vested rights of others for such period after the entry of such decision as is necessary or desirable to preclude or remedy any such injury. Such condition setting forth the period allowed for reconsideration shall be determined by the water judge after making specific findings and conclusions including, when applicable, the historical use to which the water rights involved were put, if any, and the proposed future use of the water rights involved. The water judge shall specify such period in the decision, but the period may be extended upon further decision by the water judge that the nonoccurrence of injury shall not have been conclusively established. Any decision may contain any other provision that the water judge deems proper in determining the rights and interests of the persons involved. All decisions of the water judge, including decisions as to the period of reconsideration and extension thereof, shall become a judgment and decree as specified in this article and be appealable upon entry, notwithstanding conditions subjecting the decisions to reconsideration on the question of injury to the vested rights of others as provided in this subsection (6).

(6.5) Any decision of a water judge concerning a significant water development activity shall include, as a condition of the decree approving the change application, a provision in the decree for retained jurisdiction to ensure payment of any fees imposed pursuant to section 37-92-305 (4.5).

(7) Judgments and decrees shall be entered promptly with respect to matters that have been heard and matters in which no protest has been filed or order of rereferral entered. A judgment and decree may be confined to one matter or may include more than one matter at the discretion of the water judge. The judgment and decree shall give the names of the applicants with respect to each water right or conditional water right involved, the location of the point of diversion or place of storage, the means of diversion, the type of use, the amount and priority, and other pertinent information. In the case of a plan for augmentation, the judgment and decree shall contain a complete statement of the plan. In the case of applications for determination of water rights or conditional water rights, the judgment and decree shall state the date of the filing of the application.

(8) A copy of such judgment and decree shall be filed with the state engineer and the division engineer, and a copy thereof shall be provided by the water clerk to any other person requesting same upon payment of a fee of seventy-five cents per page; except that the state engineer by rule or as otherwise provided by law may reduce the amount of the fee if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of the fee is credited. After the uncommitted reserves of the fund are sufficiently reduced, the state engineer by rule or as otherwise provided by law may increase the amount of the fee as provided in section 24-75-402 (4), C.R.S. Promptly after receiving a judgment and decree, the division engineer and the state engineer shall enter in their records the determinations therein made as to priority, location, and use of the water rights and conditional water rights, and they shall regulate the distribution of water accordingly.

(9) Appellate review shall be allowed to the judgment and decree, or any part thereof, as in other civil actions, but no appellate review shall be allowed with respect to that part of the judgment or decree which confirms a ruling with respect to which no protest was filed.

(10) Clerical mistakes in said judgment and decree may be corrected by the water judge on his own initiative or on the petition of any person, and substantive errors therein may be corrected by the water judge on the petition of any person whose rights have been adversely affected thereby and a showing satisfactory to the water judge that such person, due to mistake, inadvertence, or excusable neglect, failed to file a protest with the water clerk within the time specified in this section. Any petition referred to in the preceding sentence shall be filed with the water clerk within three years after the date of the entry of said judgment and decree. The water judge may order such notice of any such correction proceedings as he determines to be appropriate. Any order of the water judge making such corrections shall be subject to appellate review as in other civil actions.

(11) Repealed.

Source: L. 69: p. 1208, § 1. C.R.S. 1963: § 148-21-20. L. 70: p. 432, § 4. L. 71: pp. 1327, 1328, §§ 3, 4. L. 73: p. 1525, § 1. L. 77: (6) amended, p. 1703, § 3, effective June 19. L. 81: (6) amended, p. 1792, § 1, effective May 28. L. 83: (2), (3), and (8) amended and (11) repealed, pp. 1428, 1430, §§ 3, 6, effective July 1. L. 88: (1) to (3) amended and (3.5) and (3.6) added, p. 1241, § 4, effective May 17. L. 98: (8) amended, p. 1345, § 76, effective June 1. L. 2003: (6.5) added, p. 881, § 3, effective August 6. L. 2006: (6) amended, p. 1000, § 2, effective May 25. L. 2008: (2) amended, p. 2144, § 14, effective June 4. L. 2012: (2) and (3) amended, (SB 12-175), ch. 208, p. 889, § 164, effective July 1.

Cross references: For the legislative declaration contained in the 2008 act amending subsection (2), see section 1 of chapter 417, Session Laws of Colorado 2008.

ANNOTATION

I. General Consideration.

II. Adjudication of Priorities.

III. Protests and Appeals.

IV. Evidence of Material Injury.

V. Clerical Mistakes.

VI. Substantive Errors.

VII. Federal Reserved Water Rights.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Adjudication of Indian and Federal Water Rights in the Federal Courts", see 46 U. Colo. L. Rev. 555 (1974-75). For article, "Recent Developments in Colorado Groundwater Law", see 58 Den. L.J. 801 (1981). For comment, "Water Use Efficiency and Appropriation in Colorado: Salvaging Incentives for Maximum Beneficial Use", see 58 U. Colo. L. Rev. 657 (1988). For article, "Colorado's Law of 'Underground Water': A Look at the South Platte Basin and Beyond", see 59 U. Colo. L. Rev. 579 (1988). 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 § 37-92-304 is similar to repealed §§ 148-9-8 and 148-9-10, C.R.S. 1963, § 147-9-10, CRS 53, CSA, C. 90, § 195, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to § 37-92-304.

The supreme court has determined that "one who holds the legal title" is "the real party in interest in adjudication water rights". Elk-Rifle Water Co. v. Templeton, 173 Colo. 438, 484 P.2d 1211 (1971).

Where a proceeding is conducted pursuant to statutory direction, all users of water affected by said proceeding are, in effect, parties, and have full right to protect their rights had they so desired. Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775 (1962).

One of the objects of this section was to put a stop to a multiplicity of actions and not to allow such changes to be made until all persons who might be affected thereby are notified and given an opportunity to be heard. Lower Latham Ditch Co. v. Bijou Irrigation Co., 41 Colo. 212, 93 P. 483 (1907).

A municipal corporation has no different status from that of an individual or any other party to the proceeding. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

The state is a party in interest. Farmers' High Line Canal & Reservoir Co. v. Wolff, 23 Colo. App. 570, 131 P. 291 (1913).

United States is not an indispensable party to a suit against the secretary of the interior for interfering with water rights in operating a reclamation project. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

All persons who may be affected by the desired change of a water right must be notified of the proceeding, and given an opportunity to be heard before the court is authorized to enter an order allowing such change. New Cache La Poudre Irrigation Co. v. Water Supply & Storage Co., 29 Colo. 469, 68 P. 781 (1902); Fluke v. Ford, 35 Colo. 112, 84 P. 469 (1905); New Cache La Poudre Irrigating Co. v. Arthur Irrigation Co., 37 Colo. 350, 87 P. 799 (1906).

It is the duty of the courts to require that all persons who may be affected by the desired change shall be notified of the proceeding and given an opportunity to be heard. New Cache La Poudre Irrigation Co. v. Water Supply & Storage Co. 29 Colo. 469, 68 P. 781 (1902); Farmers' High Line Canal & Reservoir Co. v. Wolff, 23 Colo. App. 570, 131 P. 291 (1913).

Where plaintiffs did not enter appearances in the diversion proceeding, but as interested parties and owners of water rights, they were duly served with notice of the proceeding. They were parties to that proceeding for change of point of diversion and are bound by the decree. City of Westminster v. Church, 167 Colo. 1, 445 P.2d 52 (1968).

The water court did not abuse its discretion in denying a motion to intervene when the water court properly obtained jurisdiction pursuant to publication of the water resume, the moving party had actual notice of the application, and the division engineer had already filed a report. The party failed to show excusable neglect and granting the motion would create undue delay. S. Ute Indian Tribe v. King Consol. Ditch, 250 P.3d 1226 (Colo. 2011).

There is no provision in this section for extension of the time limit for filing, no reference whatsoever to amended filings, no language allowing waiver of the mandatory filing fee, and nothing from which it can be inferred that late filings may relate back to a previous defective protest. In re Oxley, 182 Colo. 206, 513 P.2d 1062 (1973).

Hearing requirement held satisfied. Hearings on motions for summary judgment, together with the depositions in each of the respective water courts, satisfied the requirement of the 1969 water act that a hearing be held. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

Rights to water for reservoirs may be adjudicated. Bd. of Comm'rs v. Hider, 47 Colo. 443, 107 P. 1068 (1910); Windsor Reservoir & Canal Co. v. Lake Supply Ditch Co., 44 Colo. 214, 98 P. 727 (1908).

Before a decree in favor of any reservoir was entered, it should have been made to appear, inter alia, that thereby an appropriation of a certain quantity of water had been made. Windsor Reservoir & Canal Co., v. Lake Supply Ditch Co., 44 Colo. 214, 98 P. 729 (1908).

Water court which adopts conclusions from report describing historic use should expressly incorporate the report into and make it a physical part of the decree in order to guide the resolution of future questions relating to the decree's effect. Matter of Application for Water Rights, 688 P.2d 1102 (Colo. 1984).

Decree void if no substantial compliance with notice requirements. Where there was not substantial compliance with statutory notice requirement, water rights decree was entered without jurisdiction and was void. Stonewall Estates v. CF & I Steel Corp., 197 Colo. 255, 592 P.2d 1318 (1979).

A proposed or existing water exchange is not subject to the retained jurisdiction provision of subsection (6) unless it is part of a plan for augmentation, because it is an independent claim. City of Florence v. Bd. of Waterworks, 793 P.2d 148 (Colo. 1990).

Applied in Kuiper v. Atchison, T. & S.F. Ry., 195 Colo. 557, 581 P.2d 293 (1978); Weibert v. Rothe Bros., 200 Colo. 310, 618 P.2d 1367 (1980); Harvey Land & Cattle Co. v. Se. Colo. Water Conservancy Dist., 631 P.2d 1111 (Colo. 1981); Broyles v. Fort Lyon Canal Co., 638 P.2d 244 (Colo. 1981); Rocky Mt. Power Co. v. Colo. River Water Conservation Dist., 646 P.2d 383 (Colo. 1982); Bd. of County Commissioners v. Collard, 827 P.2d 546 (Colo. 1992).

II. ADJUDICATION OF PRIORITIES.

Ownership of water right may be deemed ownership of real property for purposes of adverse possession claims. Matter of Water Rights of V-Heart Ranch, 690 P.2d 1271 (Colo. 1984).

Continuous and exclusive scheduled use by claimant of water right claimed by adverse possession may satisfy the burden of proof of ownership of water right even if all the disputed water is at times used by others, and question is whether, under all surrounding circumstances, such practice is consistent or inconsistent with the claim of adverse use. Matter of Water Rights of V-Heart Ranch, 690 P.2d 1271 (Colo. 1984).

An adjudication of priorities will not, without due process of law, deprive a person of his constitutional or vested rights, such as prior rights to the use of water; nor will such rights be affected by the lapse of time so long as they are not actually denied, abridged, or interfered with by the enforcement of the decree entered in such proceedings. Nichols v. McIntosh, 19 Colo. 22, 34 P. 278 (1893).

Adjudication proceedings and appropriation decrees are essentially statutory, and a water decree is a determination of a specific issue presented to the court in the specific manner prescribed by statute. The statement of claim presents the issue, and the decree is limited by the issue it resolves. Orchard City Irrigation Dist. v. Whitten, 146 Colo. 127, 361 P.2d 130 (1961).

An adjudication of priorities is the judicial determination of the claims of different parties to the use of water for irrigation. Combs v. Farmers' High Line Canal & Reservoir Co., 38 Colo. 420, 88 P. 396 (1906).

A decree in a water adjudication is only confirmatory of preexisting rights; the decree does not create or grant any rights; it serves as evidence of rights previously acquired. Cline v. Whitten, 144 Colo. 126, 355 P.2d 306 (1960).

The contention that only adjudicated water right can be protected from interference is without merit, because adjudication only confirms preexisting rights. Cline v. Whitten, 144 Colo. 126, 355 P.2d 306 (1960).

An adjudication of priorities for ditches drawing water for irrigation from the same stream or its tributaries within the same water districts is provided for. Lamson v. Vailes, 27 Colo. 201, 61 P. 231 (1900); Kibbee v. Kostelic, 87 Colo. 215, 287 P. 652 (1930).

In a proceeding involving the adjudication of water rights, where the interests of beneficiaries are not represented or protected by their trustees, the beneficiaries become proper and necessary parties, with the right to appear and present their case. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

In a proceeding to adjudicate the priorities to use of water for irrigating purposes, the determination by the court of the carrying capacity of a ditch was res judicata and could not be attacked in a collateral proceeding after the statutory time for reformation or review in the court of original jurisdiction had expired and the time for appeal had elapsed. A mistake of the court in computing the carrying capacity could be corrected in such proceeding. Water Supply & Storage Co. v. Larimer & Weld Irrigation Co., 24 Colo. 322, 51 P. 496 (1897).

III. PROTESTS AND APPEALS.

The intent is manifest in this article that only the protest to the referee's ruling need be filed in order to obtain appellate review by right. Colo. River Water Conservation Dist. v. Rocky Mt. Power Co., 174 Colo. 309, 486 P.2d 438 (1971).

The state is a "person" entitled to protest a referee's ruling and to participate in a hearing thereunder. In re Wadsworth, 193 Colo. 95, 562 P.2d 1114 (1977).

The general assembly intended that persons, including the state, might file a protest to the ruling of a referee even though they had not filed a statement of opposition to the application. In re Wadsworth, 193 Colo. 95, 562 P.2d 1114 (1977).

Absent a claim of surprise or prejudice, the state was a proper party based on its entry of appearance in one of two consolidated proceedings, even though it has not filed a statement of opposition in either of the two consolidated actions. Masters Inv. Co. v. Irrigationists Ass'n, 702 P.2d 268 (Colo. 1985).

The state engineer has standing to file a protest to a water referee's ruling even though he had not filed a statement in opposition. In re Wadsworth, 193 Colo. 95, 562 P.2d 1114 (1977).

"Interested persons" in subsection (3) of this section can only reasonably be interpreted to refer to the "persons" whose capacity to protest or object is generally described elsewhere in the act. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

Any person who qualifies under other sections, e.g., § 37-92-302 (1)(b) or § 37-92-304 (2) and (4), is not barred from participating in the hearing mandated by his action. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

The expansion by the 1969 act of the class of persons who may object in a water adjudication is not limited to the filing of objections and supporting documents. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

A plaintiff is not a proper protestant under this section. Where in no manner, either in his own claim for new storage rights or as a holder of senior decrees, does he allege, offer to show, or show that he is injuriously affected. In re Water Dist. No. 11, Water Div. No. 2, 178 Colo. 160, 496 P.2d 311 (1972).

When a technically defective motion to intervene is filed, the existing parties may waive their right to object to the intervention by failing to make timely objections. Pub. Serv. Co., v. Blue River Irrigation Co., 753 P.2d 737 (Colo. 1988).

Subsection (3) construed with C.R.C.P. 1(a). Subsection (3)'s mandatory language that hearings shall be held where a protest has been filed and on cases of rereferral by a water referee to a water judge must be construed together with C.R.C.P. 1(a), which provides for liberal construction of the rules of civil procedure. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

Letter not following statutory procedure not proper protest. Letter written by applicant for water rights, whose application was denied, merely stating that he was protesting the ruling of the water referee, was not considered a proper protest where letter did not comply with the statutory procedure for filing a protest. In re Oxley, 182 Colo. 206, 513 P.2d 1062 (1973).

All decisions of water referee are subject to review by water judge. Gardner v. State, 200 Colo. 221, 614 P.2d 357 (1980).

However, timely protest of water referee's ruling is a jurisdictional prerequisite to appellate review. Monaghan Farms v. City & County of Denver, 807 P.2d 9 (Colo. 1991).

For discussion of parties with standing to appeal under previous version of subsection (3), see Bar 70 Enters., Inc. v. Tosco Corp., 703 P.2d 1297 (Colo. 1985).

The volume of the priority awarded a ditch in adjudication proceedings was res adjudicata, and the facts upon which such award was based could not be inquired into in a collateral proceeding. Rogers v. Nevada Canal Co., 60 Colo. 59, 151 P. 923, 1917C Ann. Cas. 669 (1915).

IV. EVIDENCE OF MATERIAL INJURY.

A prima facie case of material injury to senior water rights is established by a preponderance of the evidence that material injury will be caused to senior appropriators generally, rather than to a particular senior user. Fellhauer v. People, 167 P.2d 320, 447 P.2d 986 (1967); Hall v. Kuiper, 181 Colo. 130, 510 P.2d 329 (1973); Danielson v. Jones, 698 P.2d 240 (Colo. 1985).

State engineer's findings on material injury should be accepted as presumptively valid by a water judge adjudicating a water right involving the use of a well when the applicant has not appealed the state engineer's denial of the well permit pursuant to § 37-90-115, and applicant should bear the burden of proving no material injury. Broyles v. Fort Lyon Canal Co., 638 P.2d 244 (Colo. 1981); State of Colo. v. Southwestern Colo. Water Conservation District, 671 P.2d 1294 (Colo. 1983); Danielson v. Jones, 698 P.2d 240 (Colo. 1985).

Where findings of state engineer on original application are not presumptive of material injury to senior water rights from the application as amended, such findings are nevertheless sufficient to raise an inference of adverse effect from increased production on the well, and when trial evidence establishes a prima facie case of material injury, the applicant must rebut by presenting evidence which would reasonably support a finding of no material injury. Danielson v. Jones, 698 P.2d 240 (Colo. 1985).

Subsection (3) requires an applicant to sustain the allegations upon which the claimed rights are based. In re Bunger v. Uncompahgre Valley Water Users Ass'n, 192 Colo. 159, 557 P.2d 389 (1976).

Retention of jurisdiction by court pursuant to subsection (6) valid so court could review determination of whether lack of injury is conclusive within such time. City of Thornton v. Clear Creek Water Users Alliance, 859 P.2d 1348 (Colo. 1993).

The critical issue for the water court to decide in determining whether to reconsider injury under its retained jurisdiction is whether operational experience obtained after entry of the decree indicates that the water rights may not be sufficiently protected to preclude or remedy injury under the decree, not whether replacement releases under the plan have occurred or whether actual injury has already occurred. If the court finds that insufficient operational experience exists to permit it to resolve the question of injury, it should extend the period of retained jurisdiction. Here, the water court erred in failing to invoke its retained jurisdiction when the petitioners alleged sufficient facts to support their claim that injury had occurred or was likely to occur. In re Upper Eagle Reg'l Water Auth., 230 P.3d 1203 (Colo. 2010).

A water court does not have a duty to reconsider injury through retained jurisdiction until after the water court approves an applicant's augmentation plan based upon the no-injury analysis, because the purpose of retained jurisdiction is to reconsider injury once an augmentation plan is operating, not to prove depletions or prove injury for the first time. In re Water Rights of Park County Sportsmen's Ranch, 105 P.3d 595 (Colo. 2005).

Water quality problems associated with the actual operation of an augmentation plan can justify invocation of a court's retained jurisdiction; hence, it was error for the water judge to refuse a senior appropriator's petition to either make a finding of injury or extend the period of retained jurisdiction without holding a hearing. City of Thornton v. City & County of Denver, 44 P.3d 1019 (Colo. 2002).

Historic consumptive use determinations are not susceptible to redetermination under the retained jurisdiction provision, which is intended to address injurious effects that result from placing the change of water right or augmentation plan into operation. Farmers Reservoir & Irrig. Co. v. Consol. Mut. Water Co., 33 P.3d 799 (Colo. 2001).

A ditch-wide analysis of historic consumptive use of one portion of a mutual ditch company's rights does not amount to an improper reconsideration under subsection (6) when a previous change decree erroneously awarded the applicant more than its pro rata share of a different portion of the ditch's rights based on a parcel-by-parcel determination of historic consumptive use. Central Colo. Water Conservancy Dist. v. City of Greeley, 147 P.3d 9 (Colo. 2006).

V. CLERICAL MISTAKES.

Express addition in the decretal portion of amended decree making appropriation one out of a different creek was indeed a substantive matter, not a correction of a mere clerical mistake. Benson v. Burgess, 192 Colo. 556, 561 P.2d 11 (1977).

The owner of a ditch and the water adjudicated thereto was adversely affected by an amended decree making another appropriation one out of a different creek so that his ditch was not entitled to priority over the other ditch's water, and since the resume of the application for the other ditch which was published in the newspaper in August, 1971, gave no inkling of the other owner's position and the first owner did not have knowledge of the position until action by the water official in the summer of 1974 with regard to the priority of his ditch over the other one, the court's finding that failure to protest was due to mistake, inadvertence, or excusable neglect was entirely correct. Benson v. Burgess, 192 Colo. 566, 561 P.2d 11 (1977).

When amendment of referee's ruling mandated. Subsection (10) mandates that the amendment of a water referee's ruling with respect to certain conditional water rights, when, through inadvertence, the ruling omitted three conditional rights which were properly before the referee for his consideration and which the referee had intended to include within the purview of his ruling. Town of De Beque v. Enewold, 199 Colo. 110, 606 P.2d 48 (1980).

When omission of finding of reasonable diligence not clerical error. To characterize as "clerical error", as that term is used in subsection (10), the omission of a finding of reasonable diligence with respect to a conditional water right never mentioned in the application and never considered by the court would be to expand the definition of clerical error beyond the bounds of precedent and of reason. Town of De Beque v. Enewold, 199 Colo. 110, 606 P.2d 48 (1980).

City's failure to include certain creek in statement of claim cannot be remedied as a clerical error because the creek which the city sought to include in the decree was not "tributary drainage lying between" creeks specifically named in the statement of claim and because the water court may decree rights no more extensive than those sought in an applicant's statement of claim. City & County of Denver v. Vail Valley, 751 P.2d 68 (Colo. 1988).

A municipal corporation has no different status from that of an individual or any other party to the proceeding. City & County of Denver v. N. Colo. Water Conservancy Dist., 130 Colo. 375, 276 P.2d 992 (1954).

Subsection (10) not applied retroactively. Meyring Livestock Co. v. Wamsley Cattle Co., 687 P.2d 955 (Colo. 1984).

VI. SUBSTANTIVE ERRORS.

If a resume notice is adequate, the water court has subject matter jurisdiction over the water matter and there can be no collateral attack on the resulting decree based on an alleged substantive error such as a failure to require republication unless a petition is filed within three years of entry of the decree. In re Water Rights of Columbine Assocs., 993 P.2d 483 (Colo. 2000).

Where petition alleged that a landowner was unaware of the published resume of the application and further alleged facts sufficient to demonstrate that it was entitled to identification in a water adjudication application and a mailed copy of the resume from the clerk, the water court abused its discretion in summarily dismissing the petition for reconsideration for failure to show excusable neglect. SL Group, LLC v. Go West Indus., Inc., 42 P.3d 637 (Colo. 2002).

Where the parties clearly intended the final decree's monthly use limits to reflect the applicant's actual monthly use amount rather than the amounts reflected in the applicant's water bill records, which were offset by a month, the water court did not abuse its discretion in correcting the decree. Town of Minturn v. Tucker, 2013 CO 3, 293 P.3d 581.

VII. 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).

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).

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).