JUDICIAL DEVELOPMENTS

October 2009

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Colorado Supreme Court Further Clarifies the ‘Can And Will’ Test for Conditional Water Rights
City of Aurora v. ACJ Partnership

The Colorado Supreme Court has affirmed the Division 1 Water Court’s denial of the City of Aurora (Aurora’s) applications for conditional water storage rights in three disputed sites. The sites significantly overlapped with reservoir sites currently being leased by Rangeview Metropolitan District (Rangeview) from the Colorado State Board of Land Commissioners (Land Board). Because the lease agreement precluded the Land Board from granting Aurora access to the disputed sites, the Court held that Aurora failed to satisfy the statutory “can and will” requirement for decreed conditional water rights. The Court clarified its prior pronouncements that while a non-final decision on access to a reservoir site will not form a basis to deny an application for conditional water rights, the applicant must proffer evidence showing a substantial probability of gaining access rights in the future.