Chapter 16 - § 16.2 • WATER COURT JURISDICTION

• Jurisdiction: Colorado

§ 16.2 • WATER COURT JURISDICTION

§ 16.2.1—Subject Matter Jurisdiction

Water courts have exclusive jurisdiction of water matters, which include only those matters identified in the 1969 Act "and any other law."⁸ Water matters described by statute include:

• Determinations of water rights and conditional water rights;
• A determination that a conditional water right has been made absolute;
• A determination of reasonable diligence with respect to a conditional water right;
• Changes of water rights;
• Exchanges of water rights;
• Plans for augmentation; and
• Approval of the use of a water right out of state.⁹

Water courts also have jurisdiction to determine the validity of rules and regulations of the state engineer,¹⁰ to approve a plan of water management adopted by the subdistrict of a water conservation district,¹¹ and to determine the abandonment of water rights.¹²

In determining what is and is not a water matter within the exclusive jurisdiction of the water court, it is important to recognize the distinction between the legal right to use water, which is within the exclusive jurisdiction of the water court, and the ownership of a water right, which is not exclusively within the jurisdiction of the water court, but which can be determined either by a district court or by the water court.¹³ Neither disputes regarding the ownership of decreed water rights nor private agreements affecting water rights fall within the exclusive jurisdiction of the water court.¹⁴ However, the Colorado Court of Appeals has concluded that actions in which adverse possession of a water right is asserted or in which it is asserted that the owner of a water right is estopped from enforcing it are within the exclusive jurisdiction of the water court.¹⁵ An action asserting inverse condemnation of water rights has also been held to be within the exclusive jurisdiction of the water court.¹⁶ It is the substance of the relief sought, and not the form of the pleading, that determines whether a particular action is a water matter.¹⁷

It is well recognized that the jurisdiction of the water judge is not strictly limited to water matters, but also extends to matters implied in the Colorado Constitution and the 1969 Act,¹⁸ and to issues ancillary to or that directly affect the outcome of water matters.¹⁹ However, the water court does not have jurisdiction of matters that are only tangentially related to water matters.²⁰

For a thorough discussion of the subject matter jurisdiction of...