JUDICIAL DEVELOPMENTS

November 2004

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Colorado Supreme Court Clarifies the “Can and Will” Test for Conditional Water Rights
City of Black Hawk v. City of Central, ___P.2d___

In Colorado, an appropriator may be awarded a conditional water right, to preserve their place in line in the priority system, prior to water actually being placed to beneficial use under the subject right. C.R.S., § 37-92-103(6) (2004). When an applicant is granted a conditional water right, he or she must file a case in water court every six years to demonstrate that the applicant has been reasonably diligent in development of the conditional right. The “can and will” test of conditional water rights requires that an applicant show, in the original proceeding awarding the right, as well as in subsequent diligence proceedings, that the applicant can and will benefi-cially use the claimed water and that the project can and will be completed with due diligence within a reasonable time. C.R.S., § 37-92-305(9)(b). In this case, the Colorado Supreme Court denied the City of Central’s (Central City) argument that the water court erred in awarding the City of Blackhawk (Black Hawk) a conditional water right for an enlargement to Chase Gulch Reservoir, under the “can and will” statute.