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<br />002514 <br /> <br />res judicata prevent Arapahoe from relitigating these <br /> <br />conditions. <br /> <br />The court also concludes that the water court correctly <br /> <br />dismissed Arapahoe's claim for a conditional water right for its <br /> <br />pumping plant at Taylor Park because Arapahoe lacked a permit. <br /> <br />Without a permit, or concrete evidence that it could obtain a <br /> <br />permit, Arapahoe could not meet the "can and will" requirements <br /> <br />for a conditional decree. <br /> <br />Additionally, the court found that <br /> <br />the water court's reliance on an expert witness's testimony <br /> <br />regarding the Project did not unduly prejudice Arapahoe. <br /> <br />Finally, the court holds that both the condemnation issue <br /> <br />raised by Arapahoe and the cross-appeal dealing with in-stream <br /> <br />flow requirements are moot given the determination that <br /> <br />insufficient unappropriated water remains available for the <br /> <br />Project. <br /> <br />3 <br />