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<br />contingency in the event the Court found that there was insuffi- <br />cient unappropriated water available to permit diversion of water <br />without injury to existing water rights. This application asked <br />for conditional water rights at alternate points of diversion as <br />follows: <br /> <br />a. Structures located on the East River drainage: <br />1) East River diversion structure, 80 c.f.s., <br />2) Copper Creek diversion structure, 40 c.f.s., <br />3) West Brush Creek diversion structure, 50 c.f.s. <br />4) Middle Brush Creek diversion structure, 65 c.f.s. <br />5) East Brush Creek diversion structure, 50 c.f.s. <br />6) Cement Creek diversion structure, 125 c.f.s. <br /> <br />b. Structures located on the Taylor River drainage: <br />1) Deadman Gulch Creek diversion structure, 40 c.f.s. <br />2) Spring Creek diversion structure, 225 c.f.s. <br />3) Taylor River diversion structure, 290 c.f.s <br />4) Texas Creek diversion structure, 100 c.f.s. <br />5) Willow Creek diversion structure, 140 c.f.s. <br /> <br />C. CAN AND WILL DOCTRlHE <br /> <br />9. In seeking an award of conditional water rights for a very <br />large scale project (estimated to cost nearly one-half billion <br />dollars), the abov~ applications require analysis and application <br />of S37-92-305(9) (b), C.R.S. 15 (1990 Repl. VoL), which adopts a <br />"can and will" test for the issuance of conditional water rights, <br />and which specifically provides as follows: <br /> <br />"No claim for a conditional water right may be <br />recognized or a decree therefor granted except <br />that it is established that the waters can be and <br />will be diverted, stored, or otherwise captured, <br />possessed, and controlled and will be beneficially <br />used and that the project can and will be comple- <br />ted with diligence and within a reasonable time." <br /> <br />10. Prior to the adoption of this statute, an applicant was <br />not required to demonstrate water availability as a prerequisite to <br />obtaining a conditional decree. This was based upon a "wait and <br />see" approach which theorized that through some future circum- <br />stance, such as a change in the stream, or some meteorological <br />changes, the available supply of water might increase. See: <br />Colorado River Water Conservation District v. Vidler Tunnel Water <br />~, 197 Colo. 413, 594 P.2d 566 (1979). But this "wait and see" <br />approach was rejected by the 'Colorado General Assembly when it <br />adopted S37-92-305(9)(b); and the current state of the law is that <br />an applicant must prove "that water will be diverted and that the <br />project will be completed with diligence before the issuance of a <br />decree for a conditional right." Southeastern Colorado Water <br />Conservancv District v. Citv of Florence, 688 P.2d 715, 718 (Colo. <br />1984). The intent of the General Assembly in enacting this statute <br />was "to reduce speculation associated with conditional decrees and <br />to increase the certainty of the administration of water rights in <br /> <br />5 <br />