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<br /> <br />vegetation. It should be observed that phreatophyte protection and other resource trade offs <br />require balances which the General Assembly is ideally suited to adjust. In the Shelton <br />Farms line of cases the court has urged the General Assembly, in the strongest language, <br />to develop policies and mechanisms to accomplish better water management after weighing <br />the competing resource use issues. <br /> <br />Senator Glass introduced bills in 1984, 1985, and 1986 which would have created a right <br />to sell, transfer, or reuse salvaged water (defined as any reduction in historical consumptive <br />use) resulting from efficiency improvements under the original priority date. SB 84-161, SB <br />85-95, SB 86-126; see appendix A Senator Glass explained that such a right might already <br />exist with respect to a Colorado water right, but due to uncertainty water users were <br />reluctant to become more efficient, or at least had less incentive to do so. The right to <br />change a portion of the historical consumptive use of a water right while continuing the full <br />level of activity under which that consumptive use previously occurred apparently has never <br />been judicially approved. Such a plan might seem like an improper expansion of use, and <br />yet the stream would be unaffected because actual depletion before and after the efficiency <br />improvement would remain the same. <br /> <br />In 1991 a different approach to encouraging improved efficiencies was introduced by <br />Representative Foster, HE 91-1110. That bill would have allowed the sale, transfer, or <br />reuse of "saved water" defined as the reduction in historical diversion rates resulting from <br />system modernization, which would otherwise be lost to appropriators in Colorado. A saved <br />water right would retain the same priority date as the original appropriation. Any use or <br />change of this saved water could only occur if it caused no injury to any downstream users. <br />This proposal would appear to overturn the holding in Water Supply Co., supra that a reuse <br />right only receives an appropriation date fixed by the formulation of the intent and "first <br />step" to reuse the water. <br /> <br />During attempts to move HE 91-1110 out of the Senate Agriculture, Livestock, and <br />Natural Resources Committee, an amendment limiting saved water to the Colorado River <br />basin was considered. There was substantial support for the concept in Western Colorado <br />and return flow reliance there is not as great as on the Front Range. Such an attempt to <br />limit the statewide applicability of a salvage or saved water right may raise issues of special <br />legislation and equal protection under the law. However, there may be valid reasons based <br />on hydrology, compact provisions, and resource demands to target specific watersheds. <br />Another potential constitutional problem arises from assigning a priority date which predates <br />the actual intent to make an appropriation for reuse purposes. This may be inconsistent <br />with the declaration that ''The water of every natural stream, not heretofore appropriated <br />... [is] the property of the public, ... subject to appropriation.... The right to divert the <br />unappropriated waters of any natural stream to beneficial uses shall never be denied." Colo <br />Const. Art XVI, Sections 5 and 6. <br /> <br />A final legal concept which needs to be considered is the authority of the State Engineer <br />Office (SEO) to administer water rights, prevent waste, and determine that water rights have <br /> <br />17 <br />