## Facts

- Two public water-supply districts applied in Colorado water court for conditional storage and direct-flow water rights to meet projected future municipal and related demands.
- Several initial objectors resolved their objections by stipulation; Trout Unlimited remained as the sole objector and participated at trial.
- The water court entered a conditional decree based on a 100-year planning period and long-term population and demand projections, granting substantial conditional rights.
- The decree did not contain sufficiently detailed findings explaining the evidentiary basis for the planning horizon, projected demand, or the amount of water reasonably needed above existing supplies.
- Trout Unlimited appealed, arguing the decree relied on speculative future demand and that the findings were inadequate for appellate review.

## Issues

1. What evidentiary showing must a governmental water provider make to establish a non-speculative intent to appropriate water for future uses supporting a conditional water right under Colorado law.
2. Whether a 100-year planning period and associated projections can satisfy the anti-speculation doctrine for a conditional appropriation by a governmental water provider.
3. Whether the water court made adequate findings to support the statutory “can and will” requirement and the policies of maximum utilization and optimum use.

## Decision

- The Colorado Supreme Court vacated the decree to the extent it lacked adequate supporting findings and remanded for further findings and reconsideration.
- The Court held that governmental water providers are subject to the anti-speculation doctrine and must prove non-speculative intent with substantiated evidence.
- The Court required a three-part showing of non-speculative intent for governmental conditional appropriations: (1) a reasonable planning period, (2) substantiated population projections reflecting a normal rate of growth for that period, and (3) a quantified showing that the amount of unappropriated water sought is reasonably necessary to serve that population above existing supplies.
- The Court reiterated that applicants must also satisfy the “can and will” test by showing they can and will place the water to beneficial use within a reasonable time.
- Because the water court’s findings did not sufficiently connect the evidence to these standards, the Supreme Court could not perform meaningful review.

## Legal Principles

- Conditional water rights require a non-speculative intent to appropriate water for beneficial use; public or quasi-public status does not exempt an applicant from anti-speculation limits.
- For governmental water providers, non-speculative intent is shown by proof of: a reasonable planning horizon, substantiated population projections based on normal growth, and a quantified need for unappropriated water above existing supplies for that horizon.
- The “can and will” requirement demands evidence that the applicant can and will complete needed steps (including financing, construction, and operation of facilities) to place the water to beneficial use within a reasonable time.
- Water court decrees must include sufficiently specific findings of fact to permit appellate review, particularly where large, long-term conditional rights are sought.
- Determinations must be consistent with Colorado policies favoring maximum utilization and optimum use, including consideration of demand-reducing factors such as conservation and reuse where relevant.

## Conclusion

The court required substantiated, reviewable findings supporting long-term conditional appropriations by governmental water providers and vacated and remanded a decree that relied on a 100-year planning period without adequate findings on non-speculative intent and the “can and will” showing.


Pagosa Area Water & Sanitation Dist. v. Trout Unlimited, 170 P.3d 307 (Colo. 2007)