Can and Will: the New Water Rights Battleground
| Publication year | 1991 |
| Pages | 727 |
1991, April, Pg. 727. Can and Will: The New Water Rights Battleground
In September 1984, the Colorado Supreme Court issued its decision in Southeastern Colorado Water Conservancy Dist. v. City of Florence.(fn1) While not necessarily apparent at the time, Florences in retrospect was the beginning of a new battleground for parties adjudicating, or opposing adjudication of, new conditional water rights for controversial (and usually large) water development projects. This article discusses CRS § 37-92-305(9)(b), on which the decision in Florences was based, and its implications for practitioners.
Florences involved an application for a conditional water right for 100 cfs of Arkansas River water for municipal use by the City of Florence. The application was opposed by the Southeastern Colorado Water Conservancy District ("Southeastern") on the grounds that (1) Florence was claiming far more water than it could ever use, and (2) since the Arkansas River is heavily over-appropriated, the water right would rarely, if ever, be in priority.
Traditionally, under Colorado law, adjudication of conditional water rights has been relatively simple. Applicants have been required to prove only that they had initiated an appropriation by forming the intent to appropriate and demonstrating that intent with an open physical act.(fn2) While the appropriation could not be made for speculative purposes, the availability of unappropriated water for the new conditional water right was not an issue.(fn3)
Under these standards, Southeastern's objections to the Florence application were probably irrelevant. However, Southeastern also relied on a relatively new Colorado statute enacted in 1979 and codified at CRS § 37-92-305(9)(b), which provides as follows:
No claim for a conditional water right may be recognized or a decree therefor granted except to the extent that it is established that the waters can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time.
The Colorado Supreme Court noted that the new statute had been enacted since the controlling case of Colorado River Water Conservation Dist. v. Vidler Tunnel Water Co.(fn4) had been decided. The Supreme Court held that Florence must submit "proof that water will be diverted and that the project will be completed with diligence before issuance of a decree for a conditional right."(fn5) The case was remanded to the Water Court for additional evidence and findings on these issues.
More recently, in FWS Land and Cattle Co. v. Division of Wildlife,(fn6) the Supreme Court extended the interpretation of § 305(9)(b) that was adopted in Florence. In FWS, an application for a conditional water right to enlarge an existing reservoir was opposed on the ground that the applicant did not own and could not obtain the right to use the lands under the reservoir to store water under the new water right.
Following the Florence precedent, the Supreme Court held that the applicant's right of access to the reservoir site was an appropriate issue to consider in an application for a conditional water right. The court affirmed the Water Court's denial of the...
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