Major Colorado Water Law Ruling: State Alone Can Enforce Water Waste Statute

On Jan. 26th, the Colorado Supreme Court issued a significant water law decision that clarifies how Colorado property owners can pursue claims against neighbors who waste water and flood their land. In Byers Peak Properties v. Byers Peak Land and Cattle, the court unanimously held that Colorado's water waste statute does not create a private right of action, meaning only the state engineer—not individual landowners—can bring enforcement actions against irrigators who run excess water through their ditches. The ruling clarifies a 150-year-old statute and has major implications for water dispute resolution in Colorado, where competing demands for limited water resources have made water law one of the state's most complex and contentious legal areas.

The Backstory / Colorado Water Court

The dispute arose from a century-old ranch near Byers Peak in Grand County that was divided in 1974 into East and West parcels. Cooperative arrangements between the owners to share water from two ditches ended when new owners arrived. Byers Peak Properties (which owned the East Ranch) alleged that the West Ranch owner diverted excessive water that ran downhill as irrigation runoff, flooding their property. Byers Peak Properties sued under multiple theories: statutory water waste violations, trespass, nuisance, and seeking injunctive relief. The water court sided with the Byers Peak Properties on nearly every claim, issuing an operational injunction that restricted the West Ranch's water diversions and awarding attorney fees.

The Colorado Supreme Court's Reversal

The Colorado Supreme Court systematically dismantled the water court's findings, establishing several important legal principles:

No Private Right to Sue for Water Waste

The court's most significant holding addressed Colorado's water waste statute, which has existed since 1876. C.R.S. § 37-84-108 prohibits irrigators from running more water through their ditches than necessary, preventing waste. But who can enforce this prohibition? The court found that the statute itself provides the answer: only the state can. The companion statute specifies that "suits for penalties shall be brought in the name of the people of the state of Colorado." When the Colorado legislature included this state-enforcement remedy 150 years ago, the court reasoned, it foreclosed the creation of private remedies.

Supporting this conclusion, the court noted that when the legislature wants to allow private lawsuits under other water provisions, it says so explicitly. The absence of such language in the waste statute was telling. The court noted that even the 2015 amendments to § 37-84-108 reinforced that only the state engineer has authority to administer the statute.

Related Statutes Also Don't Apply

The plaintiffs also relied on two other statutes—§§ 37-84-124 and 37-84-125—which address duties when irrigators divert excess water. But the court found these statutes protect water rights, not land from flooding. The plain language, the court explained, concerns preventing "extra water to come upon his land"—meaning the irrigator's own land, not flooding onto neighboring property. These provisions address injury to another's water rights by taking more than one's share, not damage to land from flooding.

No Ancillary Jurisdiction Over Trespass and Nuisance Claims

Having concluded the plaintiffs had no viable statutory water claims, the court then addressed their common law claims for trespass and nuisance. The court made clear: "water courts have exclusive jurisdiction over water matters"—which involve determinations about rights to use water—and can exercise ancillary jurisdiction over related issues that would directly affect the outcome of those water matters. (Ancillary jurisdiction allows a court to hear claims that are closely related to matters already properly before it, even if those claims would normally belong in a different court.)

But, the court held, without any valid water matter before the court, the trespass and nuisance claims were "only tangentially related to a water matter," the court found, which is insufficient for water court jurisdiction. The court noted that while the case included separate ditch alteration claims, those were unrelated to the flooding issues and couldn't support jurisdiction over the runoff-related claims.

What The Byers Peak Properties Case Means

The Byers Peak decision has several practical implications

For landowners dealing with irrigation runoff damage, remedy lies in Colorado district courts through traditional tort claims like trespass and nuisance—not in Colorado water court under Colorado water waste statutes. The supreme court explicitly stated it was expressing "no opinion on the merits" of such common law claims, leaving that door open. For water rights enforcement, the decision reinforces that Colorado's administrative framework—with the state engineer as enforcer—is the exclusive mechanism for addressing statutory waste violations. Private parties concerned about neighbors wasting water must work through state authorities.

The Byers Peak ruling also clarifies water court jurisdiction, emphasizing that ancillary jurisdiction requires more than a tangential relationship to water rights. There must be a genuine water matter at the core of the dispute.

A Historical Perspective

The Colorado Supreme Court's emphasis on the 150-year history of state enforcement reflects the distinctive character of western water law. Colorado's prior appropriation doctrine—allocating water to whoever first put it to beneficial use rather than to riparian landowners, with senior appropriators having priority over junior ones—emerged from mining camps and early agricultural communities facing water scarcity. From the outset, the legislature chose public enforcement for waste provisions, and the Colorado supreme court saw no reason to override that policy choice. This approach makes sense where water is administered by a public agency under "first in time, first in right" principles; allowing multiple private parties to enforce waste provisions could create administrative chaos and inconsistent determinations about what constitutes waste.

Key Takeaways

The Byers Peak Properties decision serves as an important reminder that water law in Colorado operates through a carefully structured administrative and judicial framework—and private parties cannot simply bypass that framework, even when they've suffered real harm.

For anyone involved in water disputes in Colorado, the message is clear: understand which forum has jurisdiction over which claims, and recognize the distinction between protecting water rights (a matter for water courts and the state engineer) and seeking damages for harm caused by water (potentially a matter for district courts under common law).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.