2020 Colorado Revised Statutes
Title 37 - Water And Irrigation
Article 92. Water Right Determination and Administration
Section 37-92-402. Special procedures for the 1978 tabulation and abandonment list.
(1) (a) No later than July 1, 1978, the division engineer, with the approval of the state engineer, shall prepare a new tabulation of all water rights and conditional water rights in his division. The 1978 tabulation shall reflect any changes in the 1974 tabulation previously authorized by statute which the division engineer and the state engineer determine to be advisable based on the principles set forth in section 37-92-401 (1) to reflect correctly the priority of water rights. The 1978 tabulation shall reflect judgments and decrees determining, changing, or otherwise affecting water rights and conditional water rights, which judgments and decrees have been entered subsequent to those reflected in the 1974 tabulation and prior to January 1, 1978, shall modify any water rights or conditional water rights which the division engineer determines to have been abandoned in part, and shall omit any water rights or conditional water rights which the division engineer determines have been totally abandoned. Except as specified in the preceding sentence, the tabulation pursuant to this section shall make no changes in the listings in the 1974 tabulation other than changes to correct clerical errors. The division engineer shall prepare a separate list tabulating the water rights which he determines to have been abandoned in whole or in part. In making his determination with respect to abandonment, the division engineer shall investigate the circumstances relating to each water right, the water available under which has not been fully applied to a beneficial use, and in such cases shall be guided by the criteria set forth in subsection (11) of this section. In making such 1978 tabulation, the division engineer shall apply the criteria set forth in section 37-92-401 (1).
(b) The abandonment list provided for in this section, when concluded by judgment and decree, shall be conclusive as to water rights determined to have been abandoned. The listing of the water rights in the 1978 tabulation shall not create any presumption against abandonment, and the relative listing of water rights in the 1978 tabulation shall not create any presumption of seniority. The tabulation shall not be construed to modify special provisions of court decrees adjudicating, changing, or otherwise affecting such water rights or to modify contractual arrangements governing the interrelationship of such water rights. For the purpose of identification and description only, the tabulation may include additional information regarding the water rights listed, but this additional information shall neither be conclusive nor be presumptive of the truth or accuracy of the matters contained therein.
No later than July 10, 1978, the division engineer shall publish a notice that the 1978 tabulation has been made and that such tabulation may be inspected or a copy obtained as specified in this subsection (2), and the division engineer shall mail a copy of such tabulation to each person whose name is on the list specified in section 37-92-302 (3)(c) and shall mail a copy of such tabulation by registered mail to the owner or last-known owner or claimant, if known, of every water right or conditional water right which the division engineer has found to have been abandoned in whole or in part or which has been changed adversely and shall publish the 1978 abandonment list. The division engineer shall make such examination as is reasonably appropriate to determine the owner or claimant of such water rights. The aforementioned publication shall be such as is necessary to obtain general circulation once in each county or portion thereof which is in the division by means of one or more newspapers which, if possible, are published in the division. A copy of such 1978 tabulation and abandonment list, together with any revisions, shall be available in the office of each division engineer and the offices of each water commissioner and each county clerk and recorder for inspection at any time during regular office hours, and the division engineer shall furnish or mail a copy to anyone requesting the same upon payment of a fee of five dollars.
Not later than July 1, 1980, any person who wishes to object to the manner in whicha water right or conditional water right is listed in the 1978 tabulation or abandonment list or to the omission of a water right or conditional water right from such tabulation shall file a statement of objection in writing with the division engineer. A fee of ten dollars shall be paid with such filing; except that no fee shall be required for any such filing to correct any clerical error.
On or before July 1, 1984, the division engineer shall make such revisions, if any, ashe deems proper in the 1978 tabulation and abandonment list. In considering the matters raised by statements of objections, the division engineer may consult with interested persons. The division engineer shall consult with the state engineer and shall make any revisions in the 1978 tabulation and abandonment list determined by the state engineer to be necessary or advisable. If the division engineer determines such to be advisable or if requested by the objector in the statement of objection, the division engineer shall hold an informal hearing on the subject matter contained in said statement of objection. The revised 1978 tabulation and abandonment list or, if there are no revisions, the original 1978 tabulation and abandonment list, signed by the division engineer and by the state engineer, shall be filed on or before July 1, 1984, with the water clerk. A copy of such 1978 tabulation and such abandonment list, together with any revisions, shall be available in the office of each division engineer and the offices of each water commissioner and each county clerk and recorder for inspection at any time during regular office hours, and the division engineer shall furnish or mail a copy to anyone requesting the same upon payment of a fee of five dollars. If the 1978 tabulation or the abandonment list is revised, the division engineer, on or before August 31, 1984, shall cause notice of such revisions to be included in the resume described in section 37-92-302 (3) of cases filed in the respective water divisions during the month of July, 1984, specifying that the revisions may be inspected or a copy thereof obtained as specified in this subsection (4). Such publication shall be made as is necessary to obtain general circulation once in each county or portion thereof which is in the division.
The division engineer shall mail a copy of the abandonment list and any revisionsthereto by registered mail to the owner or last-known owner or claimant, if known, of every water right which the division engineer has found to have been abandoned in whole or in part. The division engineer shall make such examination as is reasonably appropriate to determine the owner or claimant of such water rights. He shall also cause publication to be made of the abandonment list and any revisions thereto in each county in which water rights on the list are located. Such publication shall be made for four successive weeks and shall be published, if possible, in a newspaper published in the county where the water right is located. Any person who wishes to protest the inclusion of any water right on the abandonment list and any revisions thereto shall file a written protest in accordance with the procedures of section 37-92-401 (5); except that such protests shall be filed with the water clerk not later than December 31, 1984.
Commencing on the March or April term-day of 1985, as the case may be in therespective divisions, pursuant to section 37-92-304 (1), and continuing for as long as may be necessary, the water judge of each division shall conduct hearings on the abandonment list and any revisions thereto filed by the division engineer and any protests that have been filed with respect thereto. The hearings shall be conducted in accordance with the provisions of section 3792-401 (6).
If no protests have been filed, then not later than July 1, 1985, the water judge shallenter a judgment and decree incorporating and confirming the abandonment list and any revisions thereto of the division engineer without modification.
A copy of the judgment and decree entered pursuant to subsection (6) or (7) of thissection shall be filed with the state engineer and the division engineer and shall be provided by the water clerk to any other person requesting same upon payment of a fee of seventy-five cents per page. Promptly after receiving such judgment and decree, the division engineer and the state engineer shall enter in their records the determinations therein made as to date of priority, date of adjudication, and volume and amount of the water rights and conditional water rights adjudged to have been abandoned and shall regulate the distribution of water accordingly.
Appellate review shall be allowed to the judgment and decree entered pursuant tosubsection (6) or (7) of this section or any part thereof as in other water matters, but no appellate review shall be allowed with respect to that part of such judgment or decree which confirms a portion of the abandonment list and any revisions thereto with respect to which no protest was filed.
Clerical mistakes in the judgment and decree entered pursuant to subsection (6) or(7) of this section 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 to the abandonment list and any revisions thereto 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 four years after the date of the entry of said judgment and decree. The water judge shall order such notice of any such correction proceedings as he determines to be appropriate to advise all persons who may be affected thereby. Any order of the water judge making such corrections shall be subject to appellate review as specified in subsection (9) of this section.
For the purpose of procedures under this section, failure for a period of ten years ormore to apply to a beneficial use the water available under a water right when needed by the person entitled to use same shall create a rebuttable presumption of abandonment of a water right with respect to the amount of such available water which has not been so used; except that such presumption may be waived by the division engineer or the state engineer if special circumstances negate an intent to abandon.
No proceeding previously initiated before the water judge pertaining to the 1974 tabulation referred to in previous statutes shall be maintained; except that the dismissal of any such proceeding shall be without prejudice with respect to any substantive matters alleged therein.
The use and effect of the 1978 tabulation, as distinguished from the abandonmentlist, shall be governed by the provisions of section 37-92-401 (11).
The provisions of this section shall apply only to the 1978 tabulation and abandonment list authorized by this section.
Notwithstanding the amount specified for any fee in this section, the state engineerby rule or as otherwise provided by law may reduce the amount of one or more of the fees 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 one or more of the fees 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 one or more of the fees as provided in section 24-75-402 (4), C.R.S.
Source: L. 69: p. 1214, § 1. C.R.S. 1963: § 148-21-28. L. 73: p. 1528, §§ 3, 4. L. 75: Entire section amended, p. 1399, § 2, effective July 1. L. 79: (1)(b) amended, p. 1380, § 1, effective May 18. L. 81: (4) to (7) amended, p. 1789, § 4, effective July 1. L. 83: (1) to (4) and (6) to (10) amended, (13) and (14) added, and (5) R&RE, pp. 1436, 1438, 1439, §§ 5-7, effective June 16; (8) amended, p. 1429, § 4, effective July 1. L. 98: (15) added, p. 1346, § 78, effective June 1.
Editor's note: Amendments to subsection (8) by Senate Bill 83-90 and House Bill 831255 were harmonized.
Cross references: For publication of legal notices, see part 1 of article 70 of title 24; for water clerk preparing resume of applications for water rights each month, see § 37-92-302 (3).
