concurring in part and dissenting in part.
I concur in the majority opinion to the extent that it holds that the legislature has empowered the ground water commission to grant a vested right, to a limited amount of designated ground water, contained in the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers, based on ownership of the overlying land. I do not agree, however, that this case requires us to decide whether an overlying landowner's right to such a grant is limited by the anti-speculation doctrine or that the majority's conclusion about the applicability of the doctrine would be correct if it did. Nor do I see merit in the majority's elaborate dictum on the treatment of ground water generally in this jurisdiction. While writing a benchbook on ground water law may be of assistance to both judges and practitioners, it should not be confused with the creation of law by this court's resolution of actual cases and controversies. I fear that the kind of global summarization attempted by the majority runs the risk of reducing precision and obscuring important distinctions in an extremely complex and technical area of the law, and suggests the considered resolution of matters better subjected to the adversary process.
The case before this court involves only an application to the ground water commission, by an overlying landowner, for rights to designated ground water contained in the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers. It is well-established in this jurisdiction that ground water with no more than a de minimis impact on the natural streams is subject to the plenary authority of the General Assembly. The General Assembly has chosen to exercise that: control by authorizing the commission to allocate designated ground water from those particular aquifers on the basis of overlying landownership, rather than by a system of appropriation. See § 87-90-111(5), 10 C.R.S. (2002). Both the language and history of HB98-1151 make clear that these overlying landowners, who therefore have the same inchoate right to this ground water, within designated ground water basins, as exists for overlying landowners of non-tributary ground water, see Bayou Land Co. v. Talley, 924 P.2d 186 (Colo.1996); compare § 37-90-102(1) with § 111(5), are similarly entitled to a determination of that right without automatically engaging the statutory requirements, and time constraints, for construction of a well and application of the water to a beneficial use. See § 37-90-1078).
Barring slippage between the statutory definition of designated ground water and ground water recognized by this court to have a sufficiently de minimis impact on natural stream water (which is not claimed here), the legislature clearly had the authority to allocate designated ground water as it saw fit; and therefore the district court need not have sought a narrowing construction in order to preserve the statute's constitutionality. In view of the statute's reference to the commission's determination of "[rlights to designated ground water," as well as our prior determination that rights to non-tributary water "vest" either upon construction of a well or upon adjudication of rights, see Bayou Land Co., 924 P.2d at 149, the commission's similar final determination of amount and allocation of designated ground water from the four named Denver Basin aquifers must also be treated as a vested right. As such it cannot be taken away by subsequent legislative action, although it is still subject to subsequent adjustment by the commission. See § I believe the district court was entirely correct, however, in holding that the anti-speculation doctrine does not limit the commission's au*82thority to grant an application for a water right to an overlying landowner.
Initially, because even the majority agrees that the applicants have made a sufficient factual showing that the anti-speculation doe-trine would not be violated by this application, the majority's determination that the doctrine applies will have no effect on resolution of the case before us. I would therefore leave for another day, when it actually matters, any resolution of this issue, about which the statutes are far from clear. I also, however, do not find persuasive the majority's determination that the anti-speculation doe-trine applies.
The anti-speculation doctrine was developed as a judicial gloss on the requirement that water be put to a beneficial use in order to successfully acquire a water right through appropriation. The doctrine has since been codified as part of the statutory definition of "Appropriation." See § 37-92-108(8)(a). The designated ground water at issue in this case, however, is not allocated by appropriation, or even a statutorily modified appropriation system; and rights to it cannot be acquired except by the overlying landowner or with his consent. The very reasons for the doctrine's existence and for which we have applied it to applications for designated ground water, see Jaeger v. Colorado Ground Water Comm'n, 746 P.2d 515 (Colo.1987), therefore simply have no meaning with regard to post-1988 applications by overlying landowners for designated ground water contained in the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers.
Quite apart from the impossibility of interfering with other potential appropriators, the commission's final determination of an application for designated ground water contained in the Dawson, Denver, Arapahoe, or Laramie-Fox Hills aquifers does not even require a showing of beneficial use. Unlike all other designated ground water, HB98-1151 appears to require a separate application for a conditional permit to withdraw ground water from these four aquifers for a beneficial use and apparently places no time limit on such an application, construction of a well, or withdrawal. Compare § 37-90-107(7)(d) with § 107(8). With regard to withdrawal of designated ground water from these four aquifers, no notice of beneficial use is required until 30 days after the first beneficial use of any water withdrawn, § 37-90-108(2)(d), and unlike other wells, no final permit need be issued. § 108(8)(a)(II). Whether or not anti-speculation can have any significance with regard to this limited category of designated ground water, the statutory scheme strongly supports the district court's finding that anti-speculation does not limit the commission's final determination of the amount to which the overlying landowner is entitled.
I would resolve this appeal simply by holding that it was within the statutory authority of the commission to determine the amount of ground water to which the applicants were entitled, and that by making a final determination, the commission granted the applicants a vested right, subject to subsequent adjustment to conform to actual local aquifer characteristics. I therefore concur in part and dissent in part.