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Water Blog

A blog that focuses on legal developments affecting the water community in Colorado and other western states.  We also post news about water rights, water quality, and natural resources.  If you have a suggestion for a post, please contact us.

  

Changes to Colorado Water Court Rule 11

Posted December 15, 2017

The Colorado Supreme Court recently announced a change to Rule 11 (Pre-Trial Procedure, Case Management, Disclosure, and Simplification of Issues) of the Uniform Local Rules for All State Water Court Divisions.  The rule change was adopted by the Court on November 16, 2017 and will be effective for cases filed or re-referred on or after January 1, 2018.

The rule change alters the water court timelines established in Rule 11 regarding expert disclosures, settlement discussions, and pretrial motions.  Generally, the rule change requires the disclosure of expert evidence and filing of Rule 56 motions farther in advance of trial than was previously required.

First, the applicant’s expert disclosure shall now be made at least 280 days (previously 245 days) before trial; the applicant’s supplemental expert disclosure shall be made at least 217 days (previously 182 days) before trial; and an opposer’s expert disclosure shall be made at least 161 days (previously 126 days) before trial.  Rule 11(b)(5)(B)(I-III).  If an expert disclosure is intended to contradict or rebut evidence on the same subject identified by another party under subsection (b)(5)(B)(III) of the Rule, that disclosure shall now be made no later than 119 days (previously 91 days) before trial.  Id. at (b)(5)(B)(IV).

Additionally, parties shall jointly file a statement setting forth the specific disputed issues that will be the subject of expert testimony at trial no later than 84 days (previously 63 days) before trial.  Id. at (b)(6)(B).

Finally, unless otherwise ordered by the court, motions pursuant to C.R.C.P. 56 (Summary Judgment and Rulings on Questions of Law) shall be filed at least 91 days (previously 84 days) before trial.  Id. at (b)(9).

Colorado water lawyers will likely favorably embrace this rule change, as the new deadlines provide four weeks to review expert rebuttal disclosures prior to the deadline to file any Rule 56 motion, rather than the one week that was provided by the old rule.  The other changes similarly provide all parties with additional time to prepare for trial.


Denver Water signs WISE agreement

Posted September 6, 2013

On August 14th, the City and County of Denver, acting by and through its Board of Water Commissioners (Denver Water) approved the Water Infrastructure and Supply Efficiency (WISE) Partnership Agreement with the City of Aurora (Aurora) and the South Metro WISE Authority (Authority).  The Authority is comprised of ten governmental or quasi-governmental water providers.  Authority members are also members of the South Metro Water Supply Authority (SMWSA); participating members include the Town of Castle Rock, Dominion Water & Sanitation District, Stonegate Village Metropolitan District, Cottonwood Water & Sanitation District, Pinery Water and Wastewater District, Centennial Water & Sanitation District, Rangeview Metropolitan District, Parker Water & Sanitation District, Meridian Metropolitan District, and Inverness Water & Sanitation District. 

The WISE Partnership Agreement (Agreement) paves the way for Denver Water to deliver treated water to Denver’s southern suburbs.  Approval confirms the terms of a regional water supply project between Denver Water, Aurora, and the Authority.  The project will promote efficient and cost-effective water supply sharing.  Under the terms of the agreement, Denver Water will provide reusable return flows, which originate on the West Slope; the Authority will receive a permanent supply of water; Aurora will allow the use of its Prairie Waters Project for periodic storage and periodic available water supplies.  A number of sub-agreements and memoranda of understanding formalize the terms of these arrangements.  The WISE Partnership was initiated in 2008 as part of a longer-term plan to combine water supplies in the Greater Denver Area.  Water will be delivered in phases, starting in 2016.


Senate Bill 13-041 takes effect tomorrow

Posted August 6, 2013

Colorado Senate Bill 13-041 (“Concerning the Protection of Stored Water, and, in Connection Therewith, Preserving Supplies for Drought and Long-Term Needs”) takes effect on August 7, 2013.  This bill reverses the holdings of Upper Yampa Water Conservancy District v. Wolfe, 255 P.3d 1108 (Colo. 2011).  The bill explains that in Yampa, the Supreme Court of Colorado “held that the storage of water is not a beneficial use, at least where flood control and fire or drought protection are not the stated uses of the water, and that to perfect a conditional storage right, the water must be released from storage and put to beneficial use.  Further, an applicant must show that is has exhausted its absolute storage rights before its conditional storage rights can be perfected.”

The bill explicitly reverses the court’s holdings.  In short, the bill expands the definition of “beneficial use” to include the impoundment of water for firefighting or storage for any decreed purpose.  Furthermore, the bill explains that an applicant does not have to demonstrate that all existing absolute decreed water rights that are part of an integrated system have been utilized to their full extent in order to establish the need to exercise a conditional water storage right or to make it absolute.  In addition, carrying water over in storage from one year to another is not grounds for a determination of abandonment.  Governor Hickenlooper signed the bill into law on April 8, 2013.


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