Colorado § 37-92-503 - Enforcement - injunction.

§ 37-92-503. Enforcement - injunction.

(1) (a) In the event an order of a division engineer or the state engineer issued pursuant to section 37-92-502 is not complied with, the state engineer and the particular division engineer in the name of the people of the state of Colorado, through the attorney general, shall apply to the water judge of the particular division for an injunction enjoining the person to whom such order was directed from continuing to violate same. The term "injunction" includes mandatory relief.

(b) In such proceeding, if the court upholds the order of the state engineer, the person against whom such order was issued shall pay the costs of the proceeding, including the allowance of reasonable attorney fees.

(c) Any proceeding brought by the state engineer or a division engineer to enforce an order to curtail the diversion of surface water or groundwater to comply with an interstate compact shall be accelerated on the court's calendar pursuant to section 37-92-203 (2), shall take priority over other water matters, and shall be determined immediately upon the conclusion of such proceeding.

(2) In the case of an order with respect to the diversion of water or the release of water from reservoirs, the water judge in ruling upon such injunction shall consider, depending on the basis for the order, whether or not the water is being applied to a beneficial use; whether or not the diversion is causing or will cause injury to persons owning, or entitled to use water under, water rights having senior decreed priorities; and whether or not the release of improperly stored water would benefit other water users.

(3) Any person who has an interest in the subject matter of such proceedings may intervene, if such intervention is timely and will not cause undue delay.

(4) In the case of a violation of an injunction issued under the provisions of this section, the water judge shall try and punish the offender for contempt of court.

(5) Such proceedings shall be in addition to, and not in lieu of, any other penalties and remedies, public or private, provided by law.

(6) (a) (I) Any person who diverts groundwater contrary to a valid order of the state engineer or a division engineer issued pursuant to section 37-92-502, in violation of a plan approved pursuant to rules adopted by the state engineer, or otherwise in violation of rules adopted by the state engineer to regulate or measure diversions of groundwater shall forfeit and pay a sum not to exceed five hundred dollars for each day such violation continues.

(II) Any person who diverts surface water contrary to a valid order of the state engineer or a division engineer issued pursuant to section 37-92-502 shall forfeit and pay a sum not to exceed five hundred dollars for each day such violation continues.

(b) Any person who, when required to do so by rules and regulations adopted by the state engineer, fails to submit data as to amounts of water pumped from a well, makes a false or fictitious report of the amounts of water pumped from a well, falsifies any data as to amounts pumped from a well, makes a false or fictitious report of a power coefficient for a well, or falsifies any power coefficient test shall forfeit and pay a sum not to exceed five hundred dollars for each violation.

(c) It is unlawful for any person not authorized by the well owner or the state engineer to willfully interfere with any power meter, totalizing flow meter, or other device used to measure groundwater diversions. Any person who willfully injures or destroys a power meter, totalizing flow meter, or other device used to measure groundwater diversions or who tampers with or falsifies any record made or being made by any such power meter, totalizing flow meter, or other device shall forfeit and pay a sum not to exceed five hundred dollars for each violation.

(d) Any fine collected for violations of the provisions of this subsection (6) shall be transmitted to the state treasurer, who shall credit the same to the general fund.

(e) The state engineer and the particular division engineer in the name of the people of the state of Colorado, through the attorney general, shall apply to the water judge of the particular division to recover the civil penalties specified in paragraphs (a), (b), and (c) of this subsection (6) or for a temporary restraining order, preliminary injunction, or permanent injunction, as appropriate, enjoining further violations of this subsection (6). If the state engineer and the division engineer prevail, the court shall also award the costs of the proceeding including the allowance of reasonable attorney fees.

(7) Any person required by a valid order of the state engineer or division engineer, or by existing rules of the state engineer, to replace depletions caused by diversions of groundwater or surface water and whose failure to replace such depletions results in the violation of an interstate compact shall be liable for all direct, actual, and necessary expenses incurred by the state of Colorado in performing any action, including the purchase of water or payment of damages, necessary for the state of Colorado to remedy the violation of such compact. The state engineer and the particular division engineer in the name of the people of the state of Colorado, through the attorney general, shall apply to the water judge of the particular division to recover such expenses. If the state engineer and the division engineer prevail, the court shall also award the costs of the proceeding including the allowance of reasonable attorney fees.

(8) Repealed.

(9) In the case of an action initiated by the state engineer or another person alleging expanded or unlawful use of a water right decreed for irrigation, the lawful maximum amount of irrigated acreage for a decree entered before January 1, 1937, that establishes an irrigation water right and does not expressly limit the number of acres that the appropriator may irrigate under the water right equals the maximum amount of acreage irrigated in compliance with the express provisions of the decree during the first fifty years after the entry of the original decree, unless a court of competent jurisdiction has entered a final judgment to the contrary. Irrigation of acreage not exceeding the lawful maximum amount and located within a reasonable proximity to the ditch, including extensions and lateral delivery infrastructure, as constructed within the first fifty-year period after entry of the original decree is deemed lawful for continued irrigation under the water right.

Source: L. 69: p. 1218, § 1. C.R.S. 1963: § 148-21-36. L. 71: p. 1337, § 2. L. 96: (1)(c), (6), and (7) added, p. 21, §§ 4, 5, effective March 1. L. 2003: (8) added, p. 1511, § 3, effective May 1. L. 2004: (8) repealed, p. 362, § 4, effective April 7. L. 2010: (6)(a) amended, (SB 10-027), ch. 86, p. 289, § 1, effective April 14. L. 2013: (9) added, (SB 13-074), ch. 107, p. 373, § 2, effective August 7.

ANNOTATION

Subsection (1)(b) held constitutional because it is reasonably related to a legitimate governmental interest, has a rational basis, and does not violate the constitutional equal protection of the laws requirement. People ex rel. Danielson v. Plank, 765 P.2d 570 (Colo. 1988).

Defendants in suit for injunction under this section have standing to assert affirmative defense that curtailment order is invalid as a violation of the terms of the Arkansas river compact. A defendant's affirmative defense does not constitute an independent cause of action; therefore, the rules for whether a plaintiff has standing are inapplicable to defendant under these circumstances (distinguishing standing cases involving criminal defendants). People ex rel. Simpson v. Highland Irr., 893 P.2d 122 (Colo. 1995), aff'd, 917 P.2d 1242 (Colo. 1996).

Where the circumstances clearly show that water from a well that was subject to a valid curtailment order was used to irrigate the well owner's alfalfa crop, subsection (6) imposes liability on the well owner despite the owner's defense that he personally did not turn on the well pump because the well was being used illegally with his authorization. Vaughn v. People ex rel. Simpson, 135 P.3d 721 (Colo. 2006).

This section applies to not only the illegal diversion but also the illegal storage of surface water that is contrary to a valid order of the division engineer issued pursuant to § 37-92-502. The period of violation is the period during which the water was stored illegally, not the period during which the water was diverted into storage. People ex rel. Rein v. Jacobs, 2020 CO 50, 465 P.3d 1.

Neither subsection (1)(a) nor subsection (6)(b) includes a culpable mental state requirement. People ex rel. Rein v. Meagher, 2020 CO 56, 465 P.3d 554.