FLOOD08050 - Laserfiche WebLink

Home Browse Search

116 \\'.1TER L-j n' NLriEir VoluI11e4 h~uc 1 ARTiCLE UPDATE 117 water rig-hI was not required to II1('ct the 'call and will' test in addition to pro\'ing rca.<;onablc diligence. I Io\\'c\'cr, in that case, the court already had determined that Chevron sufficiently demonstrated 'a steady' application of effort to complete its appropriation in a reasonably expedient and efficient mauller.' Under the facts of that case, that conclusion by the water court was sufficient to satisfy bOlh lhe 'can and will' standard and the reasonable diligence standard. In general, the 'can and >,,rill' test requires an applicant to establish 'a 5llbs:antia! probability that this intended appropriation can and will rC;lch fruition. 'Proof of stich a substantial probability involves use of current information and necessarily imperfect predictions of future events and conditions.' An analysis of current economic conditions heyond the conlrol of the applicant is a part of the 'can and ",ill' test. We perceive no error in the water court's ruling either as to the statement of the law or the application of that law to the facts. The \~'aler court concluded that the oil shale project is technically feasible gi\'en currcnt tedHloiogy-or, in otiH.:r words, that GAry 'can' complete the project. The court found that OXY 'will' complete the project when the currt"nt economic conditions facing the oil shale industry' no longer exist. As we noted in Chevron, the General ..\.sscmb!y has rn;].de J policy decision that the infeasibility of ~levelopment of oil shale under current economic conditions should 1101 cause applicants like OXY to lose their conditional rights. We are honnd by that policy determination." ~ltJn. Subdist., N. Colo. \-Vater Conservancy Disc v. OXY USA. Inc, 990 P.2d 701,708 (Colo. 1999) (citations omitted). keeping life ill a proprietary right and is no t:xcuse for failure to perform that which Ihe law requires.' In the instant case, thc \\'ater court's flnding that OXY demonstrated steady effort to complete the appropnatIOn was sufficicllt on this point. OXY's investments, in this diligence proceeding and earlier proceedings, demonstrate that it intends to pursue the project to completion in the future. No questions were raised about the need for the full water right<; once OXY actually begins to produce oil shale. Thf' only issues that the Subdistrict asserts are those related to economic feasibility and timing of the project. Accordingly, the water court findings are suIIicient to satisfy both the 'can and will' st.andard and the anti-speculation requirements of Colorado law." !d. at i08-09 (citations omitted). Santa Fe Trail Ranches Property Owners Ass'n v. Simpson "The Subdistrict correctly claims that hexennial diligence applications are subject to the anti-speculation doctrine and that section 37-92-301 (4) (c) does not exempt conditional water rights from application of that doctrine, We declined to address this issue in Chevron because the parties did not properly raise the question before the water court. The anti-speculation doctrine, which prohibits the acquisition of a conditional right without a vested interest or a specific plan to possess and control water for a specific beneficial use, clearly applies to the initial entry of a conditional decree. The anti-speculation doctrine initially was intended to prohibit the entry of conditional decrees when the holder had nothing more than an intent to sell the right at an unknown time in the future for profit. However, because a conditional right, or some portion of that right, may become speculative over time, we now hold that just as the 'can and will' test continues to apply in later diligence proceedings, so does the anti-speculation doctrine. Again, the nature of a conditional water right dictates this conclusion. If a water right initially clears the anti- speculation hurdle, yet later becomes speculative, then the project is not moving toward completion and beneficial use. 'Speculation on the markel, or sale expectancy, is whoUy foreign to the principle of "Property right.s in water are usufructuary; ownership of the resource itself remains in the public. Because beneficial use defines the genesis and maturaLion of every appropriative water right in this state. we have held thai: ever"V decree indudes an impiied limitation that diversions cannot exceedl that which can be used beneficiallv, and that the right to change a water right is limited to that amount oiwater actually used beneficially pursuant to the decree at the appropriator's place of use. Thus, the right to change a point of diversion, or type, place, or time of use, is limited in quantity by the appropriation's historic use. These limitations advance the fundamental principles of Colorado and western water law that favor optimum use, efficient water management, and priority administration, and disfavor speculation and waste. Adherence to these principles serves to extend the benefit of the resource to as many water rights as there is water available for use in Colorado. Quantification of the amount of water beneficially consumed in the placement of water to the appropriator's use guards against rewarding wasteful practices or recognizing water claims that are not justified by the nature and extent of the appropriator's need." Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46, 54-55 (Colo. 1999) (citations omitted). "An undecreed change of use of a water right cannot provide the basis for quantifying the right for change purposes. The amount of consumable water available for transfer depends upon the historic beneficial consumptive use of the appropriation for its decreed purpose at its place of use. However, when historic use of a water right has been litigated and determined through a prior change proceeding, the court's judgment and decree control the matter, and -,......-- . ,.~....,....~ ~ -". '0---.. ".. .