Water Court Rule 6

(a) The water judge shall promptly refer to the water referee all applications. The

referee upon referral by the water judge has the authority and duty in the first instance to

promptly begin investigating and to rule upon applications for determinations of water

rights, determinations of conditional water rights, changes of water rights, approval of

plans for augmentation, findings of reasonable diligence in the development of conditional

water rights, approval of a proposed or existing exchange of water, approval to use water

outside of the state, and other water matters, in accordance with the applicable constitutional, statutory, and case law.

(b) The referee’s authorities and duties include: assisting potential applicants to understand what information is required to be included in an application; in accordance with

C.R.C.P. 90, consulting with the water clerk to ascertain whether applications substantially

contain the information required by Water Court Rule 3 and the standard forms approved

by the water judges and, if not, providing the applicant through the water clerk a list of the

required information that was not included in the application; investigating each application to determine whether or not the statements in the application and statements of

opposition are true and becoming fully advised with respect to the subject matter of the

applications and statements of opposition; conferring with the division engineer and the

parties concerning applications and working with the division engineer and the parties to

obtain additional information that will assist in narrowing the issues and obtaining agreements; and issuing the referee’s ruling and proposed decree in the case. The referee’s

ruling and proposed decree shall set forth appropriate findings and conditions as required

by C.R.S. §§ 37-92-303 & 305, and shall be in an editable format acceptable to the water

judge.

(c) The referee shall work promptly to identify applications that will require water

judge adjudication of the facts and/or rulings of law and re-refer those applications to the

water judge. The referee may re-refer a case to the water judge without first holding a

status conference described in Water Court Rule 6(h). In the event that a matter is

re-referred within three months after filing of an application that will require construction

of a well, other than applications for determinations of rights to groundwater from wells

described in C.R.S. § 37-90-137(4), the water judge may extend the time for the division

engineer to file the type of written consultation report or recommendation required by

C.R.S. § 37-92-302(2)(a) and (4) upon the division engineer having filed a notice showing

good cause for such an extension.

(d) The applicant shall have the burden of sustaining the application and, in the case of

a change of water right, a proposed or existing exchange of water, or a plan for augmentation, the burden of showing the absence of injurious effect. If any expert reports,

disclosures, or opinions are presented to the referee, they shall be filed and include the

signed Declaration of Expert set forth in the applicable water court form.

(e) To promote the just, speedy, and cost efficient disposition of water court cases, the

goals of the referee, as contemplated by C.R.S. § 37-92-303(1), shall include a ruling on

each unopposed application within 63 days after the last day on which statements of

opposition may be filed, and all other applications as promptly as possible. In pursuit of

this goal, the referee shall initiate consultation with the division engineer in every case

promptly after the last day for filing statements of opposition. The division engineer’s

written summary report of the consultation is due within 35 days of the date the referee

initiates consultation in accordance with C.R.S. § 37-92-302(4), except that for applications that require construction of a well, the summary of consultation report is due within

4 months after the filing of the application in accordance with C.R.S. § 37-92-302(2)(a).

Upon request, the referee may extend the time for filing the summary of consultation

report. If the referee determines that the summary of consultation report requires a

response, the applicant shall file a written response within the time specified by the referee

either in the case management plan adopted under section (l) of this rule 6 or by a separate

order under section (n) of this rule 6. The referee shall not enter a ruling on applications for

determination of rights to groundwater from wells described in C.R.S. § 37-90-137(4)

until the state engineer’s office has had the opportunity to issue a determination of facts

concerning the application in accordance with C.R.S. § 37-92-302(2)(a). The referee and

the division engineer may confer and jointly agree to forego consultation in a particular

case because it is not needed; and, if so, the referee shall enter a minute order as provided

in section (o) of this Rule 6.

(f) For good cause, upon agreement of the parties, or sua sponte, the referee may

extend the time for ruling on the application beyond 63 days after the last day on which

statements of opposition may be filed but not to exceed a total of 1 year following the

deadline for filing statements of opposition, except that the referee may extend the time for

entering a ruling to a specified date that is not more than 182 days after the expiration of

the one year period, upon finding that there is a substantial likelihood that the remaining

issues in the case can be resolved, without trial before the water judge, in front of the

referee.

(g) If no statements of opposition to an application have been filed, the applicant’s

attorney shall promptly provide the referee with a proposed ruling and decree for consideration by the referee. The referee will prepare the ruling and decree for pro se applicants,

and in all cases may convene such conferences or hearings as will assist in performance of

the referee’s duties.

(h) For all applications in which statements of opposition are filed, the attorney for the

applicant, or the referee if the applicant is not represented by counsel, shall set a status

conference with the referee and all parties. The status conference shall occur within 63

days after the deadline for filing of statements of opposition, unless the deadline is

extended by the referee for good cause. The status conference may be conducted in person

or by telephone. All parties must attend the status conference unless excused by the referee.

The referee shall advise the division engineer of the status conference and invite or require

the division engineer’s participation. To assist discussion at the status conference, applicants are encouraged to prepare and circulate a proposed ruling and proposed decree to the

referee, the division engineer, and the parties in advance of the conference.

(i) During the status conference, the referee and the parties will discuss the issues

raised by the application and any statements of opposition, what additional information or

investigations will be necessary to assist the parties and the referee to understand and

resolve disputed issues and to assist the referee’s preparation of a proposed ruling and

proposed decree, and determine whether it will be possible to resolve the application and

any objections without re-referring the application to the water judge for adjudication.

(1) If it is unlikely that the application and objections can be resolved without

adjudication by the water judge, then the referee shall promptly re-refer the application to

the water judge in accordance with C.R.S. § 37-92-303.

(2) If the applicant or another party does not believe that the application can be

resolved without water judge adjudication and so notifies the other parties and the referee

at the status conference, then the party shall promptly file a motion to refer the application

to the water judge in accordance with C.R.S. § 37-92-303(2).

(3) The provisions of Water Court Rule 6 (j)-(l) apply to applications that remain

before the referee upon agreement of the parties as a result of the status conference.

(4) As a condition for remaining before the referee instead of referring the application

to the water judge for adjudication, the parties shall waive their statutory right to re-refer

the application to the water judge for the period established in the case management plan.

During such period the application may be referred to the water judge only with the

consent of all parties or the consent of the referee.

(j) The parties shall discuss at the status conference whether expert investigations will

be needed. If expert investigations are needed, the referee and the parties will discuss

whether it would be appropriate for the parties to engage a single expert to make the

necessary investigation and report the results of the investigation to the parties. The use of

a single expert is not mandatory, and any party may choose to utilize its own expert. If all

parties agree that the use of a single expert is desirable, the single expert shall be chosen

by mutual agreement among the parties. If all parties agree that the use of a single expert

is desirable, but the parties cannot agree on who should be selected, the referee may

appoint a single consulting expert. The parties shall divide the costs of a single consulting

expert equally among themselves unless a different cost allocation is agreed upon by the

parties. If the parties agree to use a single expert in proceedings before the referee, then,

absent the consent of all parties, that expert shall not be permitted to testify as an expert for

a party in the same proceeding if the application is re-referred to the water judge or if a

protest is filed by a party to the ruling of the referee.

(k) In consultation with the parties, the referee shall establish a case management plan

for obtaining the necessary information and preparing a proposed ruling and proposed

decree. The case management plan shall set forth a timetable for disposition of the

application.

(l) Regardless of whether any expert is involved in the proceedings before the referee,

the referee shall not be bound by the opinions and report of the expert, may make

investigations without conducting a formal hearing, including site visits, and may enter a

ruling supported by the facts and the law. The case management plan shall contain a listing

of the disputed issues to the extent known, the additional information needed to assist in

resolution of the disputed issues, additional investigations needed to assist in resolving the

disputed issues, an estimate of the time required to complete the tasks, the time for filing

a proposed ruling and proposed decree, the time for opposers to provide comments to the

applicant on the proposed ruling and proposed decree, the time for the applicant to file

status reports, and a schedule for further proceedings. The referee may make such interim

rulings, including scheduling additional status conferences and allowing amendments to

the case management plan, as will facilitate prompt resolution of the application and

issuance of a proposed ruling and proposed decree. The proceedings before the referee

shall be completed and the proposed ruling and proposed decree issued no later than 1 year

following the deadline for filing of statements of opposition, except that the referee may

extend the time as specified in subsection (f) above.

(m) If the parties are able to reach a resolution of the application, and the referee finds

it to be supported by the facts and the law, the referee shall work with the parties to fashion

an appropriate proposed ruling and proposed decree for filing with the water judge for

approval. If such a resolution cannot be reached within the time period allowed by the case

management plan, the referee shall enter a ruling on the application, which may be

protested to the water judge as provided in C.R.S. § 37-92-304(2), or the referee may

re-refer the application to the water judge, or any party may file a motion to re-refer the

application to the water judge in accordance with C.R.S. § 37-92-303.

(n) At any time after the status conference on applications to which statements of

opposition have been filed, or after the filing of applications to which no statements of

oppositions have been filed, if some further information is reasonably necessary for the

disposition of the application, the referee may require the applicant to supply the information in writing, by affidavit or at an informal conference or hearing. The referee may ask

the division engineer for information as part of the referee’s ongoing informal investigation, but shall discontinue making such requests if the state or division engineer has

become a party to the case. In response to such requests, the division engineer may file

supplemental written summary of consultation reports. The division engineer also may file

a written report in response to new information in any proposed ruling or expert report

filed by the applicant within the time specified by the referee. If the referee determines any

written report filed by the division engineer requires a response by the applicant, the

applicant shall file a written response within the time specified by the referee.

(o) The referee shall enter minute orders summarizing all conferences with the parties

or the division or state engineers.

(p) The referee shall have the authority to dismiss for failure to prosecute applications

of parties who fail to comply with the requirements of the Water Court Rules or any case

management plan, and to dismiss statements of opposition of parties who fail to comply

with the requirements of the water court rules or any case management plan. Such

dismissal may be protested to the water judge by any party within 21 days from the date of

the order of dismissal.

(q) Any time period contained in the water court rules, or the applicable rules of civil

procedure, for an action by the referee or a party may be extended by the water judge for

good cause. At any time the water judge determines that an application can be resolved

without adjudication by the water judge, the water judge may refer the application back to

the referee for disposition. To assist in the adjudication of water matters that are before the

water judge, the water judge may direct the referee to perform identified tasks.