People in Colorado’s urban areas don’t have much reason to think about the complexity of water rights law in the state. They can generally turn on their taps without worrying about them running dry. Similarly, businesses from out of state who come into Colorado don’t realize water rights issues are much more complicated than the physical considerations. And navigating that complexity is where water law attorneys come in.
“Sometimes we’ll get out-of-state businesses coming to the state [that] are run by people from the Midwest, [who] innocently believe the only question about getting a water supply is a physical one,” said Jim Witwer, of counsel at Davis Graham & Stubbs who has received recognition by Best Lawyers for his water law practice. “What we end up having to do is break the hard news to people that there’s a whole complicated legal overlay to obtain the rights to use water in Colorado that’s more than just, ‘water runs downhill.’” Laughing, he later added that a lot of business for him over his legal career has been created by clients who planned poorly.
Firm partner Zach Miller, also named a Best Lawyer for water law this year, added that Colorado law’s overarching allowance for water use rights holders to change the use as long as they don’t injure anyone else sounds deceptively simple.
“It’s a very complicated process of going to water court and showing that you’re not going to exceed what your historic consumptive use is,” he said.
The recently released Best Lawyers list covers 2019, but looking at cases only in the past year or two doesn’t give an accurate snapshot of water law attorneys’ work that puts them on the list because water law case typically take years to resolve.
Often cases deal in municipal change, in which a municipality acquires water rights decided for a specific usage. Any water rights holder must get approval from the water court system to change the use, whether the type, time or place.
Miller represented the Northern Colorado Water Conservancy District in City of Thornton v. Bijou Irrigation Company, which resulted in a 19-week trial and 1996 appellate decision from the Colorado Supreme Court. He said the case was an example of a city attempting to meet its future water needs by acquiring agricultural water rights, then changing the usage.
The case established standards for large agricultural transfers to municipal use. Miller added the case also demonstrated how talking water out of agricultural use affects the farming community.
Witwer said similar to other civil cases, most water cases settle before trial. But when they don’t settle, multi-week trials are common, he said.
Colorado water law is distinctive because adjudication is a judicial process, in which court cases are heard by a trial judge in the water division of a district court.
Additionally, the state water court system allows any party who could potentially be affected by a party’s application for water use change to participate in a case.
Brownstein Hyatt Farber Schreck shareholder Steve Sims has received recognition by Best Lawyers for his water law practice, but he said the credit for that goes to clients. He said he has about 140 cases around Colorado in which he’s appearing.
“The reason that people like what we’re doing is because our clients have good projects,” he said.
Sims represented the City of Aurora in Burlington Ditch Reservoir and Land Company v. Metro Wastewater Reclamation District, for which the Colorado Supreme Court held oral arguments at the University of Denver Sturm College of Law. Sims said hundreds of people attended. In a 2011 decision, the court restricted how much water the East Cherry Creek Valley Water and Sanitation District could deliver from the South Platte River drainage to Denver’s southeastern suburbs.
“Most of the cases that come down the pike, you will have 20 or 30 parties that are involved,” Sims said. “And when you’re the applicant, they’re all pointed at you.” The Burlington Ditch Reservoir case had several dozen named appellees.
He said because water cases on appeal go directly to the Colorado Supreme Court, not every case that goes up to the high court is precedent setting. When he worked in the Colorado Attorney General’s Office in the water division, he said those in charge of budgeting would ask why he needed a large budget for water law cases because he seemed to be taking on fewer.
Sims said the cases get more difficult over time because early ones can set a template for case law, and subsequent ones hash out the more difficult, case-specific details.
“The easy cases have all been done,” he said. “Now the cases that we’re getting are more and more difficult, so there may be fewer cases, but they’re harder.”
— Julia Cardi