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Section 5 <br />Legal and Engineering Considerations <br />Water seeping from other ditches and from irrigation of lands is presumed to belong to the <br />river system and is subject to appropriation and administration in order of priority. Flowing <br />water, even diffuse runoff and seepage that is not in a defined channel, is presumed to be <br />tributary to the river system. The 'No Harm Rule' disallows changes that deprive juniors of a <br />senior's return flows which supply their appropriations. Recognition "of the fact that practically <br />every decree on the South Platte River, except possibly only the very early ones, is <br />dependent for its supply, and for years and years has been, upon return, waste and seepage <br />waters." Waters remaining after applying them to a decreed use belong once again to the <br />river system at the moment they are released by the users...and start to flow back to the river. <br />(Comstock v. Ramsey-1913) <br />Water Must be Placed to Seneficial Use and is a Property Right <br />As the doctrine of prior appropriation has been interpreted fllrough case law, two <br />prenuses of water as a property right have enlerged. First, a water right does not <br />uzclude the right to waste the resource. Second, water rights are property rights that <br />can be bought and sold, even apart fronl t11e land wllere tlley were originally used. <br />The right to use water must be sufficiently flexible to accommodate changes of use <br />and fl1e free transferability of water rights u1 order to allow fl1e nlaxinlunl use of <br />water. With regard to the fornler, Colorado courts 11ave required water users to <br />employ an efficient nleans of diversion, and have linlited t11e anlowlt of water t11at <br />nlay be appropriated to the anlount necessary for the actual use. The Water P`ight <br />Determination and Admulistration Act of 1969 defined beneficial use as: <br />...tl1e ilse of that anzount of u~«ter tllat is ~~easonable and app~~opriate unae~~ ~~easonc~bl~ <br />efficient pt~c~ctices to acconiplish z~~ithoitt u~c~ste tyie pi~rpose for zvyiich tyie appropt~ic~tion <br />is lnz~~fi~ll~ mc~cle. <br />Courts have applied t11e principle of beneficial use in holdulg that a water user has no <br />right to divert nlore water than can be used beneficially, regardless of the anlount <br />decreed, or to expand its use beyond the anlount needed for the decreed use. <br />With respect to flexible use of water rigllts and fl1e rigllt to buy and sell water rights <br />apart from the land wllere it was 1listorically applied - Colorado law recognizes water <br />storage rigllts, conditional water rights, augmentation plans, changes of water rights, <br />appropriative rights of exchange, and instreanl flow rights, all of which allow water <br />users to make the nlost of a scarce resource. These tools and t11e ability for water <br />rigllts to be bought and sold on a willing buyer/ seller basis allow water to be <br />transferred fronl uses of lower economic value to uses of higher economic value. In <br />addition to makulg efficient beneficial use of water, ulterstate compacts and equitable <br />apportionnlent decrees limit the anlount of water Colorado can use. <br />DRAFT 5-4 <br />