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<br />the historic 11.~{, 11lq\l11~ (,11111\,( "lh: rCdi'Ciled,
<br />undccrccd change {)r enJargcmclll.
<br />Jd. at 50.
<br />
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<br />
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<br />
<br />dn:i:-luil [li,H the infeasibdity of dncloPlllcnt of oil shale under
<br />CIIITCnt economic conditions should not calise applicants like OXY to
<br />Jose IhC"ir conditional righL<;.'"
<br />Mun. SubdisL, N. Colo. Water Conservancy Disc v. Getty Oil Exploration Co., 997 1'.2d
<br />557,565 (Colo. 2000) (citation omitted).
<br />
<br />"The question before the Water Court was whether an UI~dccreed
<br />chJ.ll"e of the two lColorado Flwl and Iron Companyl water nghts can
<br />he th~ hasis for decreeing a change of those rights, without regard to
<br />the amollnt of ''''ateI' consumed beneficially for CF & I's original
<br />appropriation. The Watcr Court correctly refused to allow Santa Fe
<br />Ra~lch.cs to substitute evidence of an undecreed change to irrigation
<br />lIse under the El Moro Ditch for cviJencc of the historic
<br />rnanuhctllring usage or Ill(' two CF & I \vatcr rights for its facility."
<br />
<br />'"
<br />
<br />"The 'can and will' test requires an applicant to establish 'a
<br />substantial probability that this intended appropriation can and will
<br />reach fruition. Proof of such a substantial probability involves the
<br />use of current in[onnation and necessarily imperfect predictions of
<br />future events and conditions.' As we noted in OXY, an analysis of
<br />current economic conditions heyond the control of the applicant is
<br />part of the' can and will' test.
<br />\Ve conclude that our resolution of this issue is governed by our
<br />decision in OXY. As in OXY; the water court in the instant case found
<br />that the oil shale project is technically feasible given current
<br />technology, thus demonstrating that Getty 'can' complete the project.
<br />The water court also found that Getty 'will go forward with the project
<br />when it becomes economically feasible.' Therefore, we hold that the
<br />water court properly interpreted and applied section 37-92-301 (4) (c)
<br />to the facts of the instant cas~."
<br />Jd. (citation omitted).
<br />
<br />T l........."r R.brlt Sflllirrf'1 ~rmmd Water Manal!cment District v. Goss
<br />'-'t't'~~~"-__.--"l_n.~-- - ....
<br />
<br />"Because the [Ground Water) Commission has authority to
<br />super....ise and control the exercise and administration of rights
<br />acquired to the use of designated ground water 'except to the ~xt:nt
<br />that similar authority is vested in ground wate-r management dlstncts
<br />.p'ilfsuant to section 37-90-130(2),' S ~7-90-111 (1) (a), the Management
<br />District ba." jurisdiction over controversies between appropriators
<br />regarding issues of injury 1.0 senior well withdrawals by JUnior well
<br />withdrawals. This authority includes the capacity 'by summary order
<br />[to] prohibit or limit withdrawal of water from any well duri~lg any
<br />period that it determines that such ""rithdrawal of water from said well
<br />would cause unreasonable injury to prior appropriators,' authority
<br />which the Commission would have in the absence of the Management
<br />Disuict."
<br />Upper Black Squirrel Creek Ground Water Mgmt. Dist. v. Goss, 993 P.2d 1177, 1187
<br />(Colo. 2000) (footnote omitted).
<br />
<br />Haystack Ranch, L.L.C. v. Fazzio
<br />
<br />"We have deferred to the General Assembly's choice to allocate
<br />and enforc~ rights in ground water not part of the natural stream
<br />waters, in three subcategories: (1) designated ground water; (2)
<br />non tributary water outside of designated ground water basins; and (3)
<br />non tributary and not-non tributary Denver Basin bedrock water of the
<br />Dawson, Denver, Arapahoe, and Laramie-Fox Hills aquifers."
<br />Jd. at 1182.
<br />
<br />"The evidence of disrepair and unusable conditions of the ditches
<br />in this case and their non-repair is consistent with a finding of nonuse.
<br />Water rights are usufructuary in nature, and nonuse retires the use
<br />entitlement to the stream. When this occurs, the property rights
<br />adhering to the particular water right no longer exist. In Twin Lakes,
<br />we upheld a water court's decree of abandonment after looking to
<br />evidence showing the unusable state of the ditches in question. We
<br />stated, 'Nonuse can be manifested by conditions inconsistent with
<br />active use of a water right. Such conditions include failure to make
<br />beneficial use of water [and] failure to repair or maintain diversion
<br />structures. '"
<br />Haystack Ranch, L.L.C. v. Fazzio, 997 P.2d 548, 553 (Colo. 2000) (citations omitted).
<br />
<br />Board of County Commissioners v. Crystal Creek Homeowners' Ass'n2
<br />
<br />Municipal Subdistrict, Northern Colorado Water Conservancy District
<br />v. Getty Oil Exploration Co.
<br />
<br />"In 1956, Congress passed the Colorado River Storage Project Act
<br />(CRSPA), See 43 U,S,C, SS 620-6200 (1994), This act authorized the
<br />
<br />"As we noted ill OXY, the addition of this section [s 37-92*
<br />301(4)(c)l is evidence that 'the General Assembly has made a policy
<br />
<br />2. A transcription of the oral arl!:ument to the Colorado SlltJrerne Court follows
<br />this summary. . ~ .
<br />
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