BOARD01483

• Board Meeting Date: 7/24/2000
• Description: ISF Section - Recreational Instream Flows - Policy Discussion
• Board Meetings - Doc Type: Memo

f ,

.
o

274

WA TER LA W REVIEW

Volume 2

'.

must show that the water "can be and will be diverted, stored, or
otherwise captured, possessed, and controlled and will be beneficially
used and that the project can and will be completed with diligence and
within a reasonable time,'"
The can and will requirement, codified in 1979, is a relatively new
addition to Colorado water law.' The primary goal of the statute's
enacunent is to prevent speculation' Section 305(b) requires an
applicant to establish a substantial probability that the intended
appropriation can and will reach fruition.'
When reviewing an application for satisfaction of the can and will
doctrine, a court will consider economic capability, need, present
availability of water, the feasibility of the project, and whether the
applicant can complete the project with diligence and within a
, .
reasonable time. One commentator stated that, although statutory
language fails to address many of the issues that have been litigated
under the rubric of the can and will doctrine, precedent had dictated
that the Colorado judiciary "address heretofore unconsidered issues of
public interest when acljudicating conditional water rights,'"
Under section 305(9) (b) an applicant must make a threshold
showing of the reasonable availability of water to put to beneficial use
to prove that the applicant "can" complete the appropriation." In
Aspen Wildemess Warkshop, Inc. v. Hines Highland Limited Partnership,"
the Colorado Supreme Court stated that an applicant must
demonstrate the availability of water based upon the "river conditions
existing at the time. of the application, in priority and on sufficiently
frequent occasions, to enable the applicant to complete the
appropriation with diligence and within a reasonable time."!! The
court, recognizing the necessity of imputing reasonableness into this
availability, noted that availability is based upon "necessari1y imperfect
predictions of future events and conditions."" The court further
stated, "(a] showing of reasonable availability does not require a
demonstration that water will always be available to the full extent
applied for in the decree,"!; The court rejected an argument that the

.

4. Co~o. REv. STAT. !j 37-92-305(9)(b) (1998).
5. City of Thorton v. Bijou trrigation Co., 926 P.2d 1, 42 (Colo. 1996).
6. Id. (noting legislative goal of Colo. Rev. 5tac !j 37-92-305(9)(b) is to ,educe
speculation associated with conditional decrees and to increase the certainty of the
administration afwater rights in Colorado).
7. Id.
8. Southeastern Colo. Water Conservation Dist. v. City of Florence. 588 P.2d 715,
718 (Colo. 1984),
9. Mark E. Hamilton, TIu "Can and Will" Do<tri", of Colorado Rwis,d StatuU S"tion
37-92-305(9)(b): Changing u.. Natur. of Co"d~ional Wa.... Rights in Colorado, 65 U. Coco.
L. REv. 947, 963 (1994).
10. Aspen Wilderness Workshop v. Hines Highland Ltd. Part.. 929 P.2d 718, 722
(Coto. 1996).
11. Id.
12, Id.
13. City of Thornton v, Bijou Irrigation Co., 926 P.2d 1.43 (Colo. 1996).
14. Id. at 724.

.