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1 , , f <br />In addition to setting forth the test for a non - speculative appropriation by a <br />governmental agency, the Supreme Court made several other comments or observations <br />that bear repeating. Most notably, the Supreme Court indicated that appropriations made <br />by a governmental agency for sale or use outside of the agency's boundaries are "bound <br />by the anti - speculation standards applicable to private appropriators." In addition, the <br />court noted that a desire to appropriate water before such water is tied up by virtue of an <br />instream flow appropriation, a recreational in- channel diversion, or a federal permit <br />condition is not a valid consideration for evaluating water availability. <br />There were two concurring opinions to the Supreme Court's decision. Two <br />Justices (Justices Eid and Rice) agreed that the Water Court had failed to make sufficient <br />findings to support granting the Districts' appropriation, but disagreed with the Supreme <br />Court's imposition of a "narrow" construction on the governmental agency exception to <br />the anti - speculation doctrine. In particular, these Justices felt that imposition of a "de <br />facto" fifty year planning limit was inappropriate. One Justice (Justice Coats) agreed that <br />the Supreme Court should reverse the Water Court's decision, but argued that the <br />decision should be reversed for failing to satisfy the "can and will" statute. Justice Coats <br />argued that nothing in the anti - speculation exception for governmental agencies relieved <br />such agencies from the "can and will" requirement that they show they could complete a <br />proposed project within a reasonable time in light of the legal, engineering and economic <br />circumstances of the project. <br />7 <br />