Dec 04

Water Court Reform

Water Court Reform

Doug Clements, Spronk Water Engineers

AWRA Colorado October Luncheon

On October 28, 2008, Doug Clements, of Spronk Water Engineers, was the featured speaker at the AWRA Colorado Section Luncheon meeting. Doug was one of 21 members of the Water Court Committee established by Chief Justice Mullarkey by Order dated December 4, 2007. The charge of the Water Court Committee was to review the Water Court process and identify possible ways through rule and/or statutory change to achieve efficiencies in water court cases while still protecting the quality of outcomes, and ensuring the highest level of competence in water court case participants. Justice Hobbs chaired the Committee, and established five subcommittees as follows: 1) Referee, 2) Expert Witness, 3) Small Water Users, 4) Education, and 5) Case Management. The result of the process was the Water Court Committee’s report, Timely, Fair and Effective Water Courts,[insert link to report] submitted to Justice Mullarkey on August 1, 2008. The recommendations of the Water Court Committee with regards to rule changes (Redlined Colorado Supreme Court Water Court Rules Proposals) [insert link] is currently in a public comment period (Notice of Public Hearing and Request for Comments) [insert link] , which ends November 26, 2008. A hearing will be conducted on December 3, 2008 at 3:00 pm. Public participation is highly encouraged.

Doug’s presentation touched on certain aspects the subcommittee work. The work performed by the Case Management Subcommittee led to some interesting statistical results. Since 2001, an average of 1350 cases are filed in Water Court per year. Approximately 83% are resolved by the referee, and 17% are resolved by the Judge. 70% of the cases are unopposed. 32% of the cases are pro-se. Less than 1% of all cases go to trial. In 2006, eleven trials were litigated statewide; in 2009, nine cases were litigated; and in 2008 (partial year) ten cases were litigated.

The Expert Witness Subcommittee was responding to criticisms of the water court process, including those summarized in a PhD dissertation by Mariam Masid at CSU. The dissertation included polling of Judges, referees, magistrates, and hearing officers across the western United States, the results of which indicated that expert testimony is sometimes perceived to be biased, difficult to understand, and that cross examination is poorly done and not helpful to the Court. The Expert Witness Subcommittee proposed certain rule changes to improve water court efficiencies, and recommended an expert declaration form which is to be signed and attached to expert reports.

There are extensive changes proposed to Rule 6 in order to reduce the time that cases spend languishing on the referee’s docket. Generally, the proposed changes include that all cases are referred to the referee, except those the water judge retains, a description of the authorities and duties of the referee, and various case management timelines.

The concept behind the recommended changes to Rule 11 is to limit gamesmanship, limit the issues, and encourage communication between parties. The result is a proposed new presumptive case management order that front loads the case schedule with early deadlines for disclosure of draft decrees, comments, and deposition of experts.

A new kind of continuing education is recommended to address criticisms of competency of the water bar and experts and to provide education opportunities for Judges, referees, and division engineers. The program would be more detailed than a typical CLE and topics would include technical information, water law and trial practice. An oversight committee would review the content and faculty of the program.

Please email if you’d like any of the handouts from Doug’s presentation.

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