Current Events: Recent Colorado Supreme Court Decision Concerning the Application for Water Rights of Firestone.
On May 27, 2025, in Concerning the Application for Water Rights of Firestone, the Colorado Supreme Court held, consistent with its prior decisions, that a water court must evaluate an application for conditional groundwater rights and an accompanying augmentation plan on a case-by-case basis to determine whether the proposed water use would injure those with vested, senior water rights. The Court also held that a water court correctly declines to retain jurisdiction when an applicant seeks to delay its burden of demonstrating non-injury until after its conditional groundwater rights had been approved.
In 2019, the Town of Firestone had filed a water court application seeking, among other claims, new conditional groundwater rights to, and augmentation of, five wells or well fields. Firestone did not provide specific well locations or well-specific lagged depletion calculations (URFs) for some of the wells, and instead proposed invoking the water court’s retained jurisdiction to provide this information later. The Court affirmed the water court’s rejection of the claims as too unspecific under the facts of the case to meet the burden of showing non-injury.
For Colorado water court applicants, the Firestone decision re-affirms that applicants for an augmentation plan must demonstrate the ability to replace all out-of-priority depletions in the proper time, place, and amount to prevent injury, and must make such a demonstration in the course of the case and not in the future under retained jurisdiction. Nazarenus Stack & Wombacher had filed an amicus brief encouraging the Court to adopt a case-by-case injury evaluation standard to allow flexibility for appropriators of conditional groundwater rights, and the Court did just that in its opinion. The opinion is available here:
https://www.coloradojudicial.gov/system/files/opinions-2025-05/24SA109.pdf.