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OO~~S3 Comment 21-The EA needs to more fully elaborate on the ownership of the water salvaged by the salinity control program. eolorado water law does not describe wasted water as a beneficial use. Water appropriators have no right to waste or squander water in an inefficient manner. Water salvaged from efficiency improvements therefore returns to the stream and should be available for new appropriation. The EA asserts that this salvaged water belongs to MVIC. The EA needs to elaborate on the legal justification for asserting ownership to previously wasted water, and needs to detail what Colorado statutes provide the authority for a water rights holder to assert rights to water salvaged from conservation enhancements. The water that this Carriage Contract would allow to be transferred from MVIC to OWeD constitutes saved or salvaged water under Colorado law and as such MVIC may not be able to transfer most, if not all, in a manner consistent with Colorado law. Because this change effects a change in place of use of the water (as well as a change in owner), DWCD must file an application in Colorado Water eourt. Also Colorado case law limits the out-of-priority use of salvaged water, the Colorado Supreme Court has ruled that such water should return to the stream for appropriation in priority. In addition, the applicant must prove that no senior water users would suffer injury. One water user senior to the change is the Colorado Water Conservation Board instream right on the Dolores. The EA needs to address these concerns. Response 21-The ownership of the water in question is a right owned and controlled by MVle and is in compliance with the laws of the State of Colorado. This water is not wasted water. A portion of it may not be needed by MVIC at times. MVIe stockholders have agreed to allow the sale of this water at the possible risk of more frequent shortages to themselves and a desire to expand agriculture in both Montezuma and Dolores Counties. MVIC's water right has an 1890's, appropriation date. No portion of it has been abandoned nor threatened with abandonment. In fact, it has been used regularly up until 1989 and several times since, including during the year 2000. As to the ownership of water saved through efficiency, Colorado State law and Salinity Agreement No. 9-07-40-R0730 recognize that water saved through efficiency of salinity control features belongs to MVIC to use. See Response No. 12. The final supplement to the Dolores final EIS also states that saved water would go to MVIC shareholders. The earriage Contract does not provide legal authority for the transfer of water from MVIC to DWCD. The contract only allows the carriage of non-project water in Dolores Project facilities. The legality of the water sale and transfer is between MVIC and the DWCD under Colorado law. As previously stated, the water right in question is a 1890's right and the CWCB's right is a 1977 right, so the instream right is not senior. The effect on the Colorado Water Conservation Board's (CWCB) instream flow right downstream from McPhee Reservoir requires certain background information. Prior to the construction of McPhee, the Dolores River frequently went dry in the irrigation season below the MVIC diversion. With the construction of McPhee, criteria for downstream releases were established. As indicated in the EA, this criteria has been changed from set minimums to a pool concept for the downstream fishery. It is the water, released from McPhee, that is the backbone of the CWCB's instream flow right. The requirement for a fishery 28