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MEMORANDUM <br />July 12, 2007 <br />TO: South Platte River Task Force <br />FROM: Anne Castle <br /> Bill Caile <br />RE: Salvaged Water <br />Introduction <br />We have been asked to brief the Task For ce on the law in Colorado regarding projects to <br />increase the physical supply of water through salvage of water that would otherwise be lost to <br />evaporation, evapotranspiration, or other na turally-occurring consumptive processes. <br />There is a long-standing rule in Colorado that water salvaged by the removal of phreatophytes <br />(“water-loving” plants such as tamarisk and cottonwoods) belongs to th e river system and is <br />subject to administration in order of priority. It is settled la w that water salvaged by reducing <br />evaporation or cutting vegetation does not belong to the person responsible for the salvage and <br />cannot result in a new or changed ap propriation free of the river’s call. Ready Mixed Concrete <br />Co. v. Farmers Reservoir and Irrigation Co. , 115 P3d 638, 644 (Colo. 2005). In other words, a <br />person who salvages water, whether by eliminati ng vegetation or by other means, does not have <br />a right to use that water outside of th e priority system. <br />Shelton Farms and its Progeny: Developed Water and Salvaged Water <br />The primary Colorado Supreme Court decision on salvaged water is Southeastern Colorado <br />Water Conservancy District v. Shelton Farms, Inc. , 187 Colo. 181, 529 P.2d 1321 (1974) <br />(“ Shelton Farms ”). In Shelton Farms, a landowner on the Arkansas Ri ver cleared two land areas <br />of phreatophytes, and filled in a third marshy area. He claimed that by his actions he had made <br />available approximately 442 acre feet of water per year that would have otherwise been <br />consumed by the phreatophytes or through evap oration from the marsh, and sought a decree <br />affirming the right to use that amount of wa ter The trial court awarded him 181.72 acre feet <br />annually, free from the call of the river. <br />On appeal, the Colorado Supreme Court reversed, a nd made several important statements of law. <br />First, the Court drew a distinc tion between “developed” water and “salvaged” water. 529 P.2d at <br />1325. Developed water exists when one “adds” wate r to an existing suppl y, if such water would <br />Holland & Hart Attorneys at Law <br /> LLP <br />Phone (303) 295-8000 Fax (303) 295-8261 www.hollandhart.com <br />555 17th Street Suite 3200 Denver, Colorado 80202-3979 Mailing Address P.O. Box 8749 Denver, Colorado 80201-8749 <br />. <br />Aspen Billings Boise Boulder Cheyenne Colorado Springs Denver Denver Tech Center Jackson Hole Las Ve gas Salt Lake City Santa Fe Washington, D.C <br />