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Last modified
7/14/2009 5:02:31 PM
Creation date
5/20/2009 10:22:58 AM
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UCREFRP
UCREFRP Catalog Number
7776
Author
Paddock, W. A. and W. C. Weiss.
Title
A Primer on Colorado Water Law.
USFW Year
1986.
USFW - Doc Type
\
Copyright Material
NO
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ond, the appropriator must demonstrate this intent by an overt <br />act sufficient to (1) manifest the intent to appropriate;T2T_ <br />demonstrate a substantial step toward the application of water to <br />beneficial use; and (3) put third parties on notice.40/ The ele- <br />ment of intent need not precede or be contemporaneous with the <br />work on the land. What is required is that at some point in time <br />the two elements coexist and the priority date is set not earlier <br />than the date on which both elements are present.41/ <br />What constitutes a sufficient first step varies in every case and <br />is determined on an ad hoc basis by the court.42/ No precise <br />guidelines have developed on what is necessary to constitute a <br />sufficient first step. A field survey is a common and acceptable <br />method of accomplishing the first step.43/ However, a survey <br />alone is not sufficient in all situations. One appropriator may <br />not rely on the survey of another person when there is no privity <br />between the appropriator and the person performing the survey.44/ <br />Conditional water rights may not be obtained for speculative pur- <br />poses. The appropriator must actually intend to take the water <br />and apply it to some definite beneficial use. Accordingly, the <br />appropriator must actually intend to build the project <br />himself.45/ This intent may be evidenced by attempting to pro- <br />cure lands for irrigation use or development of a power plant, <br />formation of a water district or attempts to procure financing. <br />One who intends to provide water for municipal or domestic uses <br />must represent the municipal users or have contracts to supply <br />them with water.46/ If the appropriation is for a speculative <br />purpose, it will be denied. <br />(2) Relation back doctrine and the require- <br />ment of reasonable diligence <br />The chief virtue of a conditional water right is that, if the ap- <br />propriation is completed, then the priority date relates back to <br />the date of initiation of the appropriation. This is known as <br />the relation back doctrine and allows an appropriator to preserve <br />an early priority date while he builds the structures necessary <br />to apply water to a beneficial use. <br />To be entitled to the benefits of the relation back doctrine the <br />appropriator must proceed with reasonable diligence to build the <br />structures necessary to apply water to beneficial use.47/ What <br />constitutes reasonable diligence is a question of fact to be de- <br />cided in light of all the circumstances of the particular case. <br />The factors to be considered include the size and complexity of <br />the project; the extent of the construction season; the availa- <br />bility of materials, labor and equipment; the economic ability of <br />-10-
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