Colorado Supreme Court Water Court Committee Survey Results

1. Colorado Supreme Court Water Court Committee Survey Results Presented by: Joanie Straub Golden Toad Solutions Sponsored by: Colorado Water Conservation Board May 19, 2008

2. Table of Contents • Methodology …………….…………………….…3 • Limitations…………………………………….….4 • Objectives………………………………………...5 • Executive Summary ……………………………..6 • Recommendations ..……………………………..16 • Findings & Analysis: General Public Survey…....21 • Findings & Analysis: Professional Survey………40

3. Methodology • An online survey using Zoomerang launched on April 30, 2008 and closed on May 9, 2008 • The survey link was included in an email that was sent from the database of the following organizations: Colorado Water Conservation Board, Trout Unlimited, Colorado Water Congress, Division of Water Resources, Colorado Bar Association, Ditch and Reservoir Company Alliance, CDM, American Council of Engineering Companies and Water Court Referees • The professional survey participation rate was 9% (3700 invites with 328 completes) and the general public survey participation rate was 4% (3700 invites with 132 completes) • Note: 3700 represents the entire group of email addresses that received the survey link, this includes both the general public and the water professionals. It is unknown the split between the two groups.

4. Limitations • It should be remembered that survey results are based on a sample, which is subject to “sampling error.” • Sampling errors arise because surveys are conducted with a sample of the population instead of with all of the population. • Sampling error is based on two factors: (1) the size of the sample and (2) the actual percentage answer of a given question. • This survey has a 95% level of confidence with a plus or minus variation of 3 points. • These terms simply mean that if the survey were conducted 100 times, the data would be within a certain number of percentage points above or below the percentage reported in 95 of the 100 surveys.1 • In other words, Company X surveys customers and finds that 50% of the respondents say its customer service is "very good." The confidence level is cited as 95% plus or minus 3%. This information means that if the survey were conducted 100 times, the percentage who say service is "very good" will range between 47% and 53% most (95%) of the time.2 1 Hunter, Pamela. Margin of Errors and Confidence Levels Made Simple. 2 Ibid.

5. Objectives General Public Survey • Identify the level of efficiency of the Colorado water court system • Gather ideas from the general public for ways to better use Colorado water court resources • Identify the burden of the water courts on the general public and gather ideas to reduce the burden Professional Survey • Assess overall satisfaction with the Colorado water court system • Identify ways to make the Colorado water court system work more effectively • Identify ways to make the Colorado water court system more certain relative to the process • Should more burdens be imposed on all participants, ensure decisions are expedited to the extent practical (i.e. what additional duties and requirements should be imposed?)

6. Executive Summary

7. Significant Findings Several similarities/themes are evident in both the professional and general public surveys • Set standards and deadlines for opposers • 47% of respondents from the professional survey strongly recommend establishing deadlines for comments from opposers • "Can there be a greater economic cost to be an objector? The main costs are borne by the applicant. If there were higher costs to be an objector, then it would help deter parties who simply object and find issues later." • Respondents to the general public survey also express the need for standards/deadlines from opposers • “Objectors should be on [a] timeline to respond. Objectors should share costs after six months. Objectors should pay costs if they pull out within 30 of trial. Objectors should not be allowed to just be obstructionists.” • Training and Education • Over 50% of the professional survey respondents strongly recommend or recommend with reservation additional training for water referees, division engineers and water Judges • “…Having the proper training and resources is critical and having the time necessary to prepare and facilitate settlements are all important components that need improvement.” • “The Judges need to have some back ground in water matters Training will improve some of their rulings.” • Respondents from the general public survey express similar thoughts on the need for additional training • “Water referees lacked training and in one case did not pursue a filing because the referee was a friend of the lawyer I had dismissed and replaced.”

8. Significant Findings • Timely action by the court • In the general public survey,respondents in all roles and in all water divisions list timely action by court on cases as their number one or two area for improvement by the Colorado water court • In the professional survey, over half the respondents indicate they found the timely action from the water Judge, referee and division engineer very significance aspects of the water rights adjudication process

9. Executive Summary – General Public Survey • 55% of respondents have participated or observed a preceding within the Colorado water court system within the last year • Division 1 (South Platte) have the largest number of survey respondents with 45% • 60% of survey respondents are water rights owners or farmers/ranchers • The leading purpose respondents have for working with the Colorado water court system is: • To protect an existing water right (objector/opposer) (43%) • Change an existing water right (37%) • Adjudicate a new water right (36%) • Observer (29%)

10. Executive Summary – General Public Survey • 42% of respondents find the water court process very or somewhat efficient • Water rights owner/other respondents find the Colorado water court process more efficient than the other groups • 39% of respondents find the water court very or somewhat inefficient • The top three best features of the Colorado water court process are: • Knowledgeable water Judges (56%) • Knowledgeable water referees (52%) • Fairness of outcomes (52%)

11. Executive Summary – General Public Survey • The top three elements most in need of improvement by the Colorado water court are: • Timely action by court on cases (62%) • Cost of process (57%), • Responsiveness and professionalism of other parties (45%) • Respondents in all roles and in all water divisions list timely action by court on cases as their number one or two area for improvement by the Colorado water court • Top solutions to solve Colorado water court issues are: • Create a standard set of rules and regulations for how the Colorado water court works • Create an administrative process administered by the Division of Water Resources (State Engineer‘s Office) and use the courts when the administrative process fails • Communicate the set of rules and regulations to the public • Objectors need to have firm deadlines to object and penalties when these deadlines are not met

12. Executive Summary – Professional Survey • 47% of respondents have actively participated in more than more than 50 court proceedings • 67% of respondents have recently participated in a water court proceeding • Respondents have the most experience in Division 1 (56%), Division 2 (27%) and Division 5 (31%) • 31% of respondents are attorney’s in private practice • 69% of respondents indicate they are very satisfied (27%) or somewhat satisfied (42%) with their experience(s) with the Colorado water court system • Respondents’ top three opinions that are very important to the water rights adjudication process are: • Fairness of process (88%) • A decree that can be administered (85%) • A decree that does not cause injury (74%)

13. Executive Summary – Professional Survey • Respondents’ top three opinions that are very useful aspects of the water rights adjudication process • Resume notice (60%) • Expert reports (55%) • Application process (54%) and statement of opposition (54%) • Respondents’ top three opinions that are very effective of the water rights adjudication process • Automatic referral to referee (35% • Summary of consultation process (25%) • Protesting rulings of the referee (23%) and substitute water supply plan administrative approvals (23%) • Respondents’ top three opinions that are very significant on the effectiveness of the water rights adjudication process • Role of water Judge (76%) • Timely action by the water Judge (73%) • Role of Division Engineer (59%)

14. Executive Summary – Professional Survey • Respondents’ top two items that are strongly recommended to achieve greater efficiency in the water rights adjudication process • Establish deadlines for comments from opposers (47%) • More active case management at referee level (31%) • Respondents’ top item that is strongly recommended to streamline the water rights adjudication process • Simplified adjudication process for smaller, less complex cases (45%) • 24% of respondents strongly recommend and 39% recommend with reservation informal involvement of state and division engineers

15. Executive Summary – Professional Survey • Division 5 was the only division consistently singled out as having issues with the way it conducts business • “Water Division 5 is extraordinarily untimely.” • “In Div 1 and 2 working with the referees has been positive. In Div 5 it has been a disaster.” • “Process in Division 5 is very slow, the Judge does not make [decisions] in an appropriate amount of time.” • Transition from paper to electronic processes • “Resources for the courts should include additional time for referees, and clerks, and also for Kiosks that allow electronic submittal of all applications, opposition, and motions for those without other means. Court resources should also include programming that masks or otherwise does not permit submittal errors. The goal should be to have a complete application, and reduction of filing amendments.” • “SEO should re-allocate resources to make more data easily available on net.”

16. Recommendations

17. Recommendations – General Public Survey Overall, less than half of the general public respondents identify the Colorado water court system as very (8%) or somewhat (34%) efficient – ways to make it more efficient: • Create an administrative board to handle cases, if cases are unable to be settled with an administrative board, then they should go to court • “As Colorado water rights have become more complicated…virtually every water rights action needs to go through the courts, rather than through an administrative process, everyone potentially needs an attorney and their own team of experts.” • Create a standard set of rules and regulations for how the Colorado water court works and educate the public about them • “There is no quality of outcomes, there is no standard, no procedure that is consistent in the water court process.” • “Public awareness and public outreach.” • Increase communication of upcoming cases and cases in progress • “When I went to the court no one seemed to know the answers to my questions. I also never got [a] notice from the court when water rights were going to be issued. Just a letter in the mail when it was done.”

18. Recommendations – General Public Survey The top two burdens placed on the general public by the Colorado water court are the large amount of time it takes for cases to be resolved and the costs due to the long time frame • Limit who may oppose an injury • “All applications will have everyone oppose the application whether they actually have injury or not so they can negotiate concessions which would otherwise improve their existing rights rather than protect their rights.” • Set standards and deadlines for opposers • “Objectors should be on [a] timeline to respond. Objectors should share costs after six months. Objectors should pay costs if they pull out within 30 of trial. Objectors should not be allowed to just be obstructionists.” • Hire full time referees to go visit sites, inspect applications to speed up the process and save money • Hire “full time water referees that [inspect] water applications so they are done in a timely fashion with less burden on DWR.” • Train and educate Judges and referees to understand water law and process • “It is absolutely imperative that there are Judges and referees that have an understanding of water law and processes so as to be able to rule based on fact and not for the purpose of clearing his calendar.” • “Water referees lacked training and in one case did not pursue a filing because the referee was a friend of the lawyer I had dismissed and replaced.”

19. Recommendations – Professional Survey • Move the process along. Currently it is too too slow and too costly • "Some applicants have no desire to move the application along, and there are no updates for years. The court should take a more active role in moving applications along.“ • "The inability to move a case forward is maddening. This is the most inefficient, time consuming process imaginable." • Improve the summary of consultation process • “As a general rule, the SOC process is not especially useful to applicants when, as is common, the SOC is only the Division Engineer's first bite at the apple.” • “The summary of consultation is not as effective as it could be b/c it is not the same document in all divisions.” • “The Summary of Consultation process at times seems like a "cut-and-paste" exercise at the Division Engineers Office. Sometimes not all comments are germane to the application at hand. The response to the Summary of Consultations also at times appears to lack specificity and does not become particularly useful in the Water Court proceeding process.” • Hold attorneys accountable for their actions and their involvement should be limited • "We should focus on eliminating attorney involvement and undue process at all levels. This could be done by allowing engineers to attempt to resolve engineering issues and lawyers should be involved only in: reviewing decree language, arbitration meetings and court proceedings (if absolutely necessary).”

20. Recommendations – Professional Survey • Increase the role of referee • “If the referee had a more active role, I believe that cases that are able to be settled could be done in a more timely manor and at a cheaper cost to the applicant.” • “I believe that the court should take more recognition of the referee's report and ruling…..It seems like the referee's rulings are the least biased and best description of the facts and should carry very heavy weight with the judge.” • Re-evaluate the Substitute Water Supply Plan (SWSP) • “The SWSP process is overloaded and cumbersome. Again there should be some standard concepts in place, based on existing law.” • “The SWSP process has in my experience shown to be simply a rubber stamp process for the most part. • Develop standardization of some processes, applications and/or engineering issues • “Some standardization of certain engineering issues could be helpful.” • “More structured process, with deadlines or timing schedules, would make the process more efficient, in most cases” • “Have the applicant meet minimum standards for applications, draft rulings and/or draft decrees before submitting them or sending them out to opposers. There should be a series of templates developed for the more common types of applications, rulings and decrees that the applicant should be required to follow. These templates will standardize the documents and ensure that all the relevant information is present and understandable. This will place greater responsibility on the applicant to have a well developed case before they get into the process, and will greatly streamline the review and comment process by opposers.”

21. Findings & AnalysisGeneral PublicSurvey

22. Findings & Analysis – General Public Survey • 55% of respondents had participated or observed a preceding within the Colorado water court system within the last year Other = more than two years

23. Findings & Analysis – General Public Survey • 60% of respondents are water rights owners or farmers/ranchers

24. Findings & Analysis – General Public Survey • The purpose respondents have worked with the Colorado water court system is spread rather evenly • Protect an existing water right (objector/opposer) (43%) • Change an existing water right (37%) • Adjudicate a new water right (36%) • Observer (29%)

25. Findings & Analysis – General Public Survey • Getting to know respondents – types of respondents and their purpose in working with the Colorado water court • 47% of water rights owner/farmer or rancher respondents worked with the Colorado water court to protect an existing water right from possible injury caused by another person’s water right application • 70% of water rights owner/local, state or federal government agency respondents worked with the Colorado water court to change an existing water right from one use to another • 42% of water rights owner/other respondents worked with the Colorado water court to adjudicate a new water right • 100% of environmentalists respondents worked with the Colorado water court to protect an existing water right from possible injury caused by another person’s water right application Caution: Sample is extremely small, use information as directional only

26. Findings & Analysis – General Public Survey • Efficiency of the Colorado water court system is closely split • 42% of respondents find the water court process very or somewhat efficient • 39% of respondents find the water court process very or somewhat inefficient

27. Findings & Analysis – General Public Survey • Water rights owner/other respondents find the Colorado water court process more efficient than the other groups Caution: Sample is extremely small, use information as directional only

28. Findings & Analysis – General Public Survey • Efficiency of the Colorado water court system by water division • Respondents in Division 6 and Division 1 indicate the Colorado water court system is more inefficient than efficient • Respondents in Division 4 indicate the Colorado water court system is neither efficient nor inefficient • Division 2, Division 3 and Division 5 indicate the Colorado water court system is more efficient than inefficient

29. Findings & Analysis – General Public Survey • Overall, the top three best features of the Colorado water court process are: • Knowledgeable water Judges (56%) • Knowledgeable water referees (52%) • Fairness of outcomes (52%)

30. Findings & Analysis – General Public Survey • Best features and water divisions • Respondents in all divisions list knowledgeable water Judges as their best feature except Division 4 • Division 4 tied with timely and effective notice of cases that may affect my water rights and knowledgeable water referees • Respondents of three divisions did not list knowledgeable water referees in their top two best features: Division 1, Division 6 and Division 7 • Respondents in only Division 1 and Division 3 list fairness of outcomes in their top two best features

31. The top three elements most in need of improvement by the Colorado water court are: • Timely action by court on cases (62%) • Cost of process (57%) • Responsiveness and professionalism of other parties (45%) Findings & Analysis – General Public Survey

32. Findings & Analysis – General Public Survey • Need of improvement and water divisions • Respondents in all divisions list timely action by court on cases in their top two areas of improvement • Respondents in all but two divisions list the cost of process in their top two areas of improvement, except for Division 5 and Division 6 • Only respondents in Division 5 list responsiveness and professionalism by other parties and their attorneys/consultants in their top two areas of improvement • Open, transparent and understandable procedural requirements are listed in the top two areas of improvement for respondents in Division 4, Division 5 and Division 6 • Respondents in Division 4 list timely and effective notice of cases that may affect my water rights in its top two areas of improvement (note: four categories tied for number one for Division 4)

33. Findings & Analysis – General Public Survey • Need of improvement and role when working with the Colorado water court • Respondents in all roles list timely action by court on cases as their number one area of improvement • Cost of process is listed as the number two area of improvement for water right owner/farmer or rancher respondents • Responsiveness and professionalism by other parties and their attorneys/consultants is of concern for respondents in all roles, but it was not in the top two areas of improvement • Open, transparent and understandable procedural requirements is the number two area of improvement for water rights owner/other and recreational users respondents

34. Findings & Analysis – General Public Survey • Division 1 (South Platte) has the largest number of survey respondents with 45%

35. Findings & Analysis – General Public Survey Listed by water division, the top purpose for working with the Colorado water court system • Division 1 – Change an existing water right from one use to another • Division 2 – Protect an existing water right from possible injury caused by another person’s water right application • Division 3 – Protect an existing water right from possible injury caused by another person’s water right application • Division 4 – Protect an existing water right from possible injury caused by another person’s water right application and adjudicate a new water right • Division 5 – Protect an existing water right from possible injury caused by another person’s water right application and adjudicate a new water right • Division 6 – Adjudicate a new water right • Division 7 – Protect an existing water right from possible injury caused by another person’s water right application and adjudicate a new water right

36. Findings & Analysis – General Public Survey 8. Share any ideas you have to improve the Colorado water court system. Key themes • Create a standard set of rules and regulations for how the Colorado water court works • Create an administrative process administered by the Division of Engineers Office and use the courts for when the administrative process fails • Communicate the set of rules and regulations to the public • CWCB should publicize inflow stream rights and actual filings • The engineering report should become part of the decree • Enhance the resume notice system to let farmers know when property rights are affected • Provide objectors with a timeline in which to respond, they should share the costs after six months and they should pay costs if they pull out within 30 days of the trial • Hire full-time referees to conduct site visits more frequently • Train and educate Judges and referees to understand water law and process

37. Findings & Analysis – General Public Survey 8. Share any ideas you have to improve the Colorado water court system (Key themes continued) • Have USGS conduct a comprehensive study to assess Colorado’s water resources • Reduce the amount of time for public comment • Reduce the amount of time between different water court proceedings • Have the State Engineers Office serve as a non-biased resource for all parties to review studies and ensure information is based on good science • Improve time required for Substitute Water Supply Plan cases • Share water when a River Call is in place • Reduce the costs of court transcriber documents • Reduce the costs of application fees, especially when applications need to continually be updated • Change the terminology from “objector” to “party” to change the tone and make it less adversarial

38. Findings & Analysis – General Public Survey Demographic Information • Over half the respondents were between the ages of 45 – 64 • Approximately 47% of respondents had a bachelors degree

39. Demographic information – Cities in which participants are from Division 1 Akron, Arvada, Atwood, Ault, Bailey, Boulder, Burlington, Calhan, Centennial, Commerce City, Denver, Eaton, Fort Collins, Fort Lupton, Fort Morgan, Franktown, Greeley, Iliff, Johnstown, Kersey, Lakewood , LaSalle, Limon, Loveland, Phippsburg, Platteville, Proctor, Red Feather Lakes, Rural Larimer County, Sedalia, Sedgwick, Sterling, Washington Court Flagler, Weldona, Wellington, Yuma Division 2 Canon City, Colorado Springs, Cotopaxi, El Paso, Fairplay, Fremont County, Las Animas, Lower Black Squirrel Creek, Mcclave, Merino, Penrose, Pueblo, Rocky Ford, Westcliffe, Wiley Division 3 Alamosa, Antonito, Blanca, Crestone, Del Norte, Howard, Monte Vista, Nathrop, Silver Cliff Division 4 Crested Butte, Collbran, Delta County, Gunnison, Hotchkiss, Paonia Division 5 Eagle County, Glenwood, Granby, Grand Junction, Loma, Kremmling, Rifle, Silverthorne Division 6 Cowdrey, Hayden, Steamboat Springs, Topanas, Yampa Division 7 Durango, Montezuma County Findings & Analysis – General Public Survey

40. Findings & AnalysisProfessional Survey

41. Findings & Analysis – Professional Survey • 47% of respondents actively participate in more than more than 50 court proceedings • Attorneys in private practice account for the largest segment with 41% (63 out of 153) of those participating in more than 50 court proceedings • Employees from the Division of Water Resources are the second largest group at 17 % (27 out of 153) • 50% of respondents from Division 1 and 41% from Division 5 account for the largest segment of those who are participating in more than 50 court proceedings

42. 67% of respondents recently participated in a water court proceeding • Of those 67%, attorneys in private practice account for the largest percentage at 38% Findings & Analysis – Professional Survey *Other = 81% were currently participating in a water court proceeding

43. Findings & Analysis – Professional Survey • Respondents have the most experience with the Colorado water courts in Divisions 1 (56%), Division 2 (27%) and Division 5 (31%) • Attorneys in private practice make up the largest group of respondents in all seven divisions *n = 527

44. Findings & Analysis – Professional Survey • 31% of respondents are attorneys in private practice • With the exception of Judges, each role covered the seven divisions in the state *Majority of other respondents are hydrologists, CWCB members (past and present) and geologists

45. Findings & Analysis – Professional Survey • Overall, 69% of respondents are very (27%) or somewhat (42%) satisfied with their experience with the Colorado water court system • 37% of attorney’s in private practice are very satisfied and 27% somewhat satisfied • Respondents with experience in Division 4 were the only group that did not have anyone mark very dissatisfied with their court experience

46. Findings & Analysis – Professional Survey Level of satisfaction and roles within the Colorado water court system • 37% of attorneys in private practice are very satisfied and 27% somewhat satisfied with their water court experience • Of the 4% of respondents that marked they are very dissatisfied with their water court experience, private practice attorney’s accounted for 50% and 50% of the respondents had experience in Division 5 • Respondents with experience in Division 4 were the only group that did not have anyone mark very dissatisfied with their water court experience

47. Findings & Analysis – Professional Survey • Respondents’ top three opinions that are very important to the water rights adjudication process are: • Fairness of process (88%) • A decree that can be administered (85%) • A decree that does not cause injury (74%)

48. Findings & Analysis – Professional Survey • Respondents’ top three opinions that are very useful aspects of the water rights adjudication process • Resume notice (60%) • Expert reports (55%) • Application process (54%) and statement of opposition (54%)

49. Findings & Analysis – Professional Survey Open ended comments in response to the usefulness of the water rights adjudication process • 74% of respondents describe the Discovery process very or somewhat useful; however, others commented that the Discovery process is abused and needs to be streamlined because of the expense and time required to complete it • "There are several of the steps in the process that seem duplicative and unnecessary for the most efficient use of the time." • 87% of respondents describe the Application process as being very or somewhat useful • When applications are submitted they need to be of a high quality so the process is not slowed down • "The court does not enforce it's own rules regarding the information required for application submittal, such as structure location information and maps of water rights.”

50. Findings & Analysis – Professional Survey • Respondents’ top three opinions of what is very effective of the water rights adjudication process include: • Automatic referral to referee (35%) • Summary of consultation process (25%) • Protesting rulings of the referee (23%) and substitute water supply plan administrative approvals (23%)