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I'Il'I"'Q"1iB,",'e' rJUCvJ' -- 728 for tributary and nontributary ground water in Water Division Numbers 1, 2, 5,6 and 7.8 There was an inunense up. roar and response to what was per- ceived in the Colorado water community and political establishment as an at- tempt by l'speculators" to gain control over huge amounts of Colorado's water. As is often the case in controversi- al water right matters, a bill was intro~ duced in the Colorado General Assem- bly in early 1979.. Senate Bill ("S.B.".l,. 481 llPparently was intended to prevent such applications in the future and, per- haps, to kill the applications that had been only recently filed. As originally introduced, S.B. 481 sim- ply stated that the policy of Colorado law that all waters are subject to appropria- tion was only applicable to water in or tributary to natural streams. However, soon after its introduction, the bill was amended substantially to add provisions dealing with other related matters. These included amendments to the defi- nition of an appropriation that now ap- pear at CRS * 37-92-103(3)(a) and a new standard for granting decrees for condi- tional water rights, which became * 30S (9)ib). The legislative history of * 30S(9)ib) is simple and clear. It was adopted as an amendment to S.B. 481 during the ini- tial hearings of the Senate Agriculture, Natural Resources and Energy Com- mittee. Throughout the legislative pro- cess, the language of the bill never changed. The original sponsors of the bill and the amendment stated repeat- edly during the legislative discussions that * 30S(9)(b) and the related changes in the definition of an appropriation in CRS * 37-92-103(3)werenotintended tociiahgeColorado law,but to~d~f the Vidler anti-speculation ruling that had Just been decided a few weeks be.' -'''-' -,' - ,- .-' - ':'I';t for~ 'There is no indication in the taped legislative discussions or written leg- islative history that any of the partici- pants thought that ~ 30S(9)(b) would impose any requirements for adjudica- tion of conditional water rights that did not already exist in Colorado case law.'o 'The anti-speculation rule supposedl~ codified in'* 30S(9)(b) was first enunei~ , _ - . -' - - -" -- '-1;. ated by the Supreme Court in City arUt,. County of Denver v. Northern Colorado. Water Conservancy D~'ThisdecisrQ!l stated that "mere speculators. who do" notihtend to use claimed water them- . " ., "- -' -' '- - -. : ,~,.. selves, or donat repres"nt "th~rs\Vh~ willl'se the. wate~, clUJl?ot obtain condi;" tiol1al water rights to Colorado's wate'\:;. ment or a lack of interest in the lands or 'entities claimed as the ultimate users~ Neither of the applicants in Florence 0/ FWS was a speculator in this sense. Rather, the applications in these cases were denied because the applicant could" not prove its ability to develop exactl;. the water right claimed. Ibis is a fund"", mental change in Colorado conditional water right law,..which traditionally has' utilized competition among cO,mpeting appropriator_s, rather than iniHaJ proof_~- of feasibility. to weed "Out projects that> _: -'~' cannot be built for any number of re,!-' sons. _~ Gi;en the emerging interpretation of ~ 30S(9)(b), applicants for new condi- tional water rights must ask themselves how far the new requirements might go and how their particular projects will be affected. It would be difficult if not im- possible to comply literally with the "can and will" requirements of * 30S (9)(b). Conditional water right adjudicac tions occur at the very start of a water development project; when financing; permitting and construction require'_~" menfs usually have been addressed onl1' in a general or conceptual manner. At -'1-< such a preliminary stage of the project, it may be impossible for an applicant to Analysis prove with the certainty normally re- In light of the legislative history of quired in judicial proceedings that the * 30S(9)ib) and the apparent attempt to project actually will be constructed. codify the Vidlcr rule, the Supreme If* 30S(9)(b) cannot be complied with Court's assumption in Florence and literally, the question becomes what lev- FWS that * 30S(9)(b) was intended to el of certainty is required. Without the change the law after Vidler seems doubt- direction of the legislative history, the ful. The court does not appear to have courts will need to apply some type of reviewed the legislative history of the reasonableness standard. Under Flor. statute. There is no discussion of it in ence and FWS, at least two rules have the opiuions, although the court assert- emerged. ed in FWS that First, if water will not be available for the General Assembly by enacting the. project in priority, the conditional" ".- . --- . ~ section 37,92-30S(9)(b) intended to re,. water right should be denied,. How to duce speCulation associated with COI);, detennine that water will not be avail- ditional decrees and. to increase the able in priority was not decided in Flor. certamty'.ofthc.EldrniniStration of 'Va: ence. However, in a case in Water Divi- ter rightS in Colorado." sion No.4 involving applications by Au- Instead, the Supreme Court apparently rora and Arapahoe County, it was decid. adopted a literal interpretation of the ed that all valid, existil1geondition~1 statute without reference to the legisla- water rights IIll.lSt be.taken into acooUj,11 tive history of the statute. in. this detennination@Second, under The requirements imposed in the FWS, it appears that'iiconditional wa- Florence and FWS cases go beyond the ter right should be denied 'if objector,~' traditional notions of speculation in show (and the applicant canliot dis- Colorado. As enunciated in Northern prove) that some permit, pennission, It, Colorado and Vidler, speCulation is the nancing or other item necessarY for~e obtaining of conditional water rights for construction of the project simply caD; the purpose of sale of the rights to oth- notbe obtained. ers, rather than for use by the appropri- Further extensions ofthe"can and will' ator or its customers. Speculation often ..doctrine to matters that are unknown or is evidenced by a vague plan of develop~.. . 'unknowable at the time of adjudication .HE COLORADO LAWYER The court was fearful that bona fide users would be required to "pay tribute" by purchasing the claims of "mere spec- ulators" in order to obtain water to which they have a constitutional right. The rule remained general until Vidler held that an appropriator could not form the necessary intent to appro- priate water for the use of others unless there is a firm contractual conunitment for the water or an agency relationship with the ultimate user." The Vidler rule has subsequently been appBed to 0) w-ater service outside the City and . "" County of Denver by the Denver.}Vatfr B9ar~:J (2) claims to reuse or successive use ortributary water14 and (3) claims' tot;;1,utary water und'.;? the Colorad.o Ground Water Management Act."e, "The requirements imposed in the Florence and FWS decisions go beyond the traditional notions of speculation in Colorado." . April 1991 of the more in re cou legisl vent perh that t unde stanti propo On Aurar tions i ly ha shoul cours that, would ject.18 could ing. It oftim Water not be agenci 1.6 2.E P.2d 12 3. C Dist. v. 566 (Col Wha tion, (719)4 The Co Which Agency, Front Abst ence .