Office of Sen.

Mike Johnston
Colorado General Assembly | 200 E. Colfax Avenue | Denver, CO 80203 | 303.866.4864

FACT SHEET MEMORANDUM

SB 12-097 Streamline Change of Surface Water Diversion Point Sen. Hodge Staff Name: Travis Gardner What the Bill Does: Under current law, a water court must adjudicate any change in a diversion point1, which is the location where water is removed from its natural course or location. To change a water right, the applicant must show that the change will not injure other persons entitled to use water, under a vested or decreed conditional water right. If any person files a statement of opposition to the proposed change, the applicant is required to provide a proposed ruling or decree that will prevent any injury to other parties entitled to use water. Additionally, if the judge determines that the change would injure other parties, the judge must give the applicant or any other party opposed to the change an opportunity to propose terms or conditions that would prevent the injury.2 SB 12-097 simplifies the procedure for the adjudication of a simple change in a surface point of water diversion. It applies to points of diversion that have already been physically created or to future changes of the point of diversion. SB 12-097 places the burden on the applicant to prove that the change will not increase the flow rate or amount of water or injure any other party entitled to use the water. If the applicant fails to make a prima facie showing of the elements, the judge must dismiss the application. SB 12-097 also provides a rebuttable presumption, which the court will assume as true unless a party can prove otherwise, that a simple change in a surface point of diversion will not cause an increase in use above the historic use and allows the applicant to divert water at the new point of diversion, in the amount of use previously decreed, so long as the decree does not requantify the water rights. The applicant is not required to show that the water will be diverted within a reasonable period of time; comply with the anti-speculation doctrine3, which prevents the purchase of a water right in anticipation of a sale to a third party not involved in appropriation; or provide a showing of future need. Colorado Context: The length of time required to adjudicate a change in a water right will depend on the caseload of the water court. The time also varies depending on whether the case is before a water referee or water judge. Colorado law requires that a referee receive all statements of opposition within sixty days after the filing of the application.4 A water referee must issue a ruling within one year following the deadline to file statements of opposition, but the deadline may be extended for an additional six months upon a
1 2

C.R.S. 37-92-305. Id. at (3)(a). 3 C.R.S. 37-92-103(3)(a). 4 C.R.S. 37-92-302(1)(c).

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For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.

finding that there is a substantial likelihood the issues can be resolved without trial. 5 The referee may also re-refer the case to the water judge after the expiration of the one-year period, or any party may file a motion to re-refer.6 A matter that requires a trial will take a significantly longer time to resolve, especially if the water court has a heavy caseload.7 National Context: Colorado is the only state that uses judicial permitting for water rights.8 In the majority of states, including Kansas and Arizona, administrative agencies are responsible for granting water permits.9 In other states, including New Mexico and Wyoming, the state engineer is responsible for permitting.10 Bill Provisions: Provides that an application for a simple change in a surface point of diversion may: o Be made regarding a change in a point of diversion that has already been physically accomplished or a requested future change; o Be made with respect to an absolute water right or a conditional water right; o Include one or more water rights that are diverted at the new point of diversion Places the initial burden on applicant to prove that the change in diversion will not: o Result in the diversion of a greater flow rate or amount of water than has been decreed to the water right, without requantifying the water right; o Injure other persons entitled to use water under a vested or a decreed conditional water right If the applicant makes a prima facie showing of the previous requirements, the case proceeds as a simple change in a surface point of diversion, but the applicant has the burden of persuasion to prove his case. If the applicant fails to make a prima facie showing, the referee or water judge shall dismiss the case. Provides standards that apply to a simple change in a surface point of diversion: o A rebuttable presumption that the change will not cause an enlargement in the historical use associated with the water right; o The decree must not requantify the water rights of the diversion being changed. The applicant may divert water at the new point of diversion at rates, in the amounts, and for the purposes and places of use at the previously decreed point Applicant is not required to: o Prove that water diverted at the new point will be diverted and put to use within a reasonable period of time o Prove compliance with anti-speculation doctrine o Show a future need Fiscal Impact: There is currently no fiscal note available for SB 12-097.

Colorado Division of Water Resources, Non-Attorneys Guidebook to Colorado Water Courts, available at http://water.state.co.us/SURFACEWATER/SWRIGHTS/Pages/default.aspx. 6 Id. 7 See Id. 8 National Conference of State Legislatures, State Water Withdrawal Regulations, http://www.ncsl.org/issuesresearch/environment-and-natural-resources/state-water-withdrawal-regulations.aspx. 9 Id. 10 Id.

DRAFT 1/29/2012 5:29 PM

For a complete list of fact sheets, visit www.mikejohnston.org/in-the-legislature.