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<br />OJ2258 <br /> <br />UNIVERSITY OF DENVER <br />WATER LA W REVIEW <br /> <br />VOLUME 1 <br /> <br />ISSUE 1 <br /> <br />FALL 1997 <br /> <br />COLORADO WATER LAW: AN HISTORICAL OVERVIEW <br />JUSTICE GREGORY J. HOBBS, JR.* <br /> <br />In contrast to California, Colorado has not adopted the public trust doctrine. Nor is "the <br />public interest" employed as a water allocation factor in Colorado water adjudication <br />proceedings. Nonetheless, since a water right comes into being only by application of <br />water to beneficial use, the inability to obtain a needed regulatory permit or obtain <br />financing for needed waterworks may effectively prevent the maturation of a conditional <br /> <br />right into a perfected water right. Colorado' s "can and will" doctrine recognizes that <br /> <br />conditional rights, which hold a place in the priority system predicated on actual use <br />being made, might not ripen into water rights. Speculative acquisition or retention of <br />conditional rights is not allowed, and water users hoping to improve the priority status of <br /> <br />their rights often challenge each others' conditional rights at the time a finding of <br /> <br />reasonable diligence is sought from the water court. <br /> <br />The maximum utilization doctrine enunciated in Fellhauer has been tempered by the <br /> <br />Colorado Supreme Court' s reference to "optimum use" requiring that "proper regard for <br /> <br />all significant factors, including environmental and economic concerns," be taken into <br />account. The court foreshadowed the possibility that a balancing of resource use might be <br />applicable when it refused to endorse the removal of water loving vegetation as a means <br /> <br />for "developing" water free of the river' s call. Draining of a peat bog or wetlands, or <br /> <br />creating impermeable land surfaces, such as by paving, have likewise been disallowed as <br />a means for obtaining additional consumptive use or augmentation water. <br /> <br />Fellhauer v. People, 167 Colo. 320, 447 P.2d 986, 994 (1968). <br />