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'il" . , 1'l""'t::.,.. Od(.d,J -".. ,,-; ...,;" ,~ .T.'.'..".....,".:. ~;,:.';,-,;4.~. fJ_>q;..-;"U.",;.{j."" i" :,"'-:"' NATURAL RESOURCE NOTES . I- e l- It it Y d ,f e ,- I s ,- "Can and Will": The New Water Rights Battleground y by Robert V. Trout rfJ Robert V. 1rouI1991 f In September 1984, the Colorado Supreme Court issued its deci- sion in Southeastern Colorado Water Conservancy Dist. u. City of Florence' While not necessarily ap- parent at the time, Florence in retro- spect was the beginning of a new battle- ground for parties adjudicating, or op- posing adjudication of, new conditional water rights for controversial (and usu- ally large) water development projects. This article discusses CRS ~ 37-92- :J05(9)(b), onwhich the decision in Flor~" ence was ba~cd, and its implications fo.r practitioners. f Background Florence involved an application for a conditional water right for 100 cfs of Ar- kansas River water for municipal use by the City of Florence, The application was oppos~<} by the Southeastern Colorado WaterConservancy District ("Southeas- tern") on the groundsth~t (1) FlorenC.e was clainling far -mote water than" it could ever use,anc:l (2) since the Arkari.=, s-a~ River is heavily over-:appropriatec( the waterright would rarely, if ever. ~. in priority, Column Eds.: W. Bruce Thompson of Shaw, Spangler & Roth (Envi- ronmental), Denver-861-2223; Jan N. Steiert of Holme Roberts & Owen (Mineral), Denver-861- 7000; Michael F. Browning of Holme Roberts & Owen (Water), Bouhkr-444-5955 TraditLonally, under Colorado law, ad- judication of conditional water rights has been relatively simpk Applicants have becn required to prove only that they had initiated an appropriation by forming the intent to appropriate al)d' demonstrating that intent with an open physical act' While the appropriation could not be'made for speculative pur- poses, the availability of unappropriated water for the new conditional water right was not an issue.:i Under these standards, Southeast- ern's objections to the Florence applica- tion were probably irrelevant. However, Southeastern also relied on a relatively new Colorado statute enacted in 1979 and codified at CRS ~ :J7-92-305(9)(b), which provides as follows: ~. No claim for a conditional water right maybe'recognized or a decree ther~: for granted except to the extent that it is established that the waters can be.and will be diverted, stored, or oth: erwise captured,. possessed, and con'- trolled and willbebeneficiallyusedalliI that the project can and Will be com' pleted with diligence and within ,;: reasonable time. ~- The Colorado Si'ipreme Court noted that the new statute had been enacted since the controlling case of Colorado River Water Conservation Dist. v. Vidler Tunnel Water Co,~ had been decided.. The Supreme Court held that Floren~ must submit "proof that water will b~, diverted anc:l that the project will b.ll. completed with diligence before issuancg of a decree for a condition,ll right.'" The. case was remanded" to the .Wat~rt;;Court for additional evidence and findings on these issues. More recently, in FWS Land and Cat- tle Co. v. Division of Wildlife,. the Su- preme Court extended the interpreta- tion of ~ :J05(9)(b) that was adopted in Florence. In FWS, an application for a conditional water right to enlarge an ex;;. isting reservoir was opposccL"gn the...~ ground that the applicant did not own and could not obtain the right to use th~ lands under the reservoir to store watkr 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'~' denial of the application on the ground that the applicant could not prove that it had the necessary access rights7 Legislative History ,QES ~ 37-92,305(9)(b) was enacted by the Colorac:lo General Assembly as a re- sponse to the notorious Huston filings.;;' In late December 1978, numerous appli- ' cations were filed by four related groups of claimants for conditional water rights This column is sponsoreq,by the En- vironmental Law, Water Law and Min- eral Law Sections of the Colorado Bar Association. This momh's article was written by Robert V. 1l-out, Denver, a partner of Davis, Graham & Stubbs.