dissenting:
I respectfully dissent.
I.
Applicability of the Water Rights Condemnation Act of 1975
The majority opinion concludes that the City of Thornton is not subject to the provisions of the Water Rights Condemnation Act of 1975, section 38-6-201 through 216, C.R.S. 1973 (1976 Supp.), because Thornton is a home rule city with the power of eminent domain, as provided in Article XX, Section 1 of the Colorado Constitution. The Colorado Constitution, however, grants a home rule municipality exclusive control only over matters of local and municipal concern. Matters of statewide concern remain subject to statewide regulation. Spears Free Clinic and Hospital For Poor Children v. State Board of Health, 122 Colo. 147, 220 P.2d 872 (1950); People v. McNichols, 91 Colo. 141, 13 P.2d 266 (1932).
A municipality’s election to exercise eminent domain powers to condemn water rights is a matter of statewide concern, subject to statutory regulation by the General Assembly. Expanding water requirements of growing municipal populations are causing much of Colorado’s scarce water, previously devoted to agricultural use, to be acquired for municipal use. Municipal condemnation of water rights necessarily has a tremendous impact upon the economies of agricultural areas and disrupts farm operations which are far distant from the condemning city. Therefore, I cannot accept the majority’s conclusion that this area of statewide concern cannot be regulated on a statewide basis by the Water Rights Condemnation Act of 1975.
The regulations contained in the 1975 Act further indicate that the condemnation of water rights by municipalities is a matter of statewide concern. Condemning municipalities are required by the Act to prepare: (a) a community growth development plan which reflects not only present population and resource requirements, but also projected population growth and resource requirements, and (b) a detailed statement describing the present use of the water rights to be condemned and the adverse and irreversible effects that will result from the proposed taking. Section 38-6-203, C.R.S. 1973 (1976 Supp.). The community growth plan and the statement of effects must be submitted to a disinterested committee which is required to determine whether the proposed condemnation is necessary for the municipality’s proposed purposes. Section 38-6-207(1), C.R.S. 1973 (1976 Supp.). Furthermore, all proposed condemnations are subject to a general prohibition against the taking of water rights for projected needs beyond fifteen years. Section 38-6-202, C.R.S. 1973 (1976 Supp.). These provisions insure that a municipality cannot condemn water rights in excess of its reasonable needs as projected over a legislatively determined reasonable period of time.
*542Our Constitution specifically provides that the unappropriated waters of the natural streams in our state are the property of the public and shall be made available for use according to the appropriation system. Colo. Const., Art. XVI, Sec. 5. We have recognized that it is implicit in our Constitution that there be maximum utilization of our state’s scarce water resources. Fellhauer v. People, 167 Colo. 320, 447 P.2d 986 (1968). The statutory limitation on the right of all municipalities to condemn water rights to a period of fifteen years of projected need achieves the maximum utilization of Colorado water by permitting parties who presently hold and exercise water rights to continue to do so until the reasonable needs of a municipality justify a condemnation action. See City and County of Denver v. Sheriff, 105 Colo. 193, 96 P.2d 836 (1939).
The constitutional provision relied upon by the majority opinion was not intended to permit municipalities to become the water brokers of the State of Colorado. Although holders of water rights are subject to the reasonable exercise of the power of eminent domain by municipalities, they should not be subject to the whim and unreasonable projections of overambitious municipalities. The legislative accommodation of these competing considerations, as expressed in the Water Rights Condemnation Act of 1975, clearly establishes that the condemnation of water rights by municipalities is a matter of statewide concern which requires statewide regulation.
The majority opinion permits a home rule municipality to condemn water rights, regardless of necessity as projected over a reasonable period of time, subject only to review for fraud or bad faith. Judicial review according to such a test promises to afford municipalities an almost unchecked hand to condemn water rights contrary to legitimate statewide concerns expressed by the legislature.
II.
“Failure-To-Agree” Requirement
The majority opinion sets forth a correct statement of two principles of the law of eminent domain when it declares that a failure to agree upon compensation is a requisite to the commencement of a condemnation proceeding and that the burden is upon the petitioner to establish a failure to agree. Welch v. City and County of Denver, 141 Colo. 587, 349 P.2d 352 (1960); Stalford v. Board of County Commissioners, 128 Colo. 441, 263 P.2d 436 (1953). Unfortunately, the majority opinion then proceeds to conclude that a mere unanswered offer conveyed by mail is sufficient to establish the required failure to agree. I would require that the condemning municipality establish: (1) a good faith attempt to initiate negotiations, and (2) a failure to engage in negotiations due to a refusal to bargain or a failure to agree after negotiation. I am not persuaded that proof of failure to respond to an initial offer is legally sufficient to meet the municipality’s burden of proof.
*543I would, therefore, affirm the district court’s dismissal.
MR. JUSTICE CARRIGAN has authorized me to say that he joins me in this dissent.