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Section 5 <br />Legal and Engineering Considerations <br />Salvaged and Saved Water <br />Within the context of the above discussion, two concepts have emerged fronl case <br />law-salvaged water and saved water. <br />Salvaged Water is generally viewed as water tllat results fronl reducing <br />nonproductive consumptive use of water suc11 as by the cutting or removal of <br />phreatopllytes. <br />^ Saved Water is generally viewed as water that results fronl nlore efficient diversion <br />and applicatiarl nlethods. <br />Much of the debate over water conservation uzdicates that inlprecise use of <br />ternunology creates confusion and often obscures the real policy considerations. A <br />better evaluation of the role of saved or salvaged will be fostered by fl1e use of <br />consistent language and an understanding of irrigation water use. <br />In 1974, t11e Colorado Suprenle Court u1 Soi~tlleastern Cola Wr~ter Conserz~anc~ Dist. V. <br />Sllelton Fc~rms (1974) ruled that water salvaged by the removal of pllreatophytes <br />(°water-lovulg" plants such as tanlarisk and cottonwoods) belongs to the river system <br />and is subject to adn~listration in order of priority. Water salvaged by reducing <br />evaporation or cuttulg vegetation does not Uelong to the person responsible for the <br />salvage and cannot result u1 a new water rigllt, free of the river's call. The Court in <br />Shelton Fc~rnis stated that while landowners are prohibited from claiming water rights <br />by cutting down phreatophytes, there is a need for the Legislature to address the <br />issue. Phreatophyte manageinent is an inlportant issue in Colorado and incentives <br />should be created for landowners to actively eradicate these ulvasive species. If <br />phreatophytes were eliminated on a wide-scale basis, Colorado could see significant <br />anlounts of water made available for appropriation. <br />With regard to salvaged water, there are at least two statutory clarifications to the <br />salvaged water concept that allow reservoirs and gravel pits to take credit agauzst <br />their evaporative losses for vegetation that was eradicated by ulundation of the water <br />surface. <br />Over tlle last two decades, tllere have been attenlpts to create legislation that would <br />provide the right to sell, transfer, and/ or reuse water resulting fronl salvaged, saved <br />or conserved concepts. This u1 part has contributed to the confusion over the ternls <br />"salvaged" and "saved° water. An attempt was nlade to address the issue of "saved" <br />water in 1991 w11en HB 91-1110 was introduced as a bill allowing t11e sale, transfer, or <br />reuse of "saved water° as long as it caused no uzjury to any downstream water right <br />holders. This bill was not ado~ted. <br />The Colorado Water Conservation Board, in a 1992 Report to the Legislature, <br />presented an analysis of salvaged water issues u1 Colorado. Anne Castle and Bill Caile <br />of Holland and Hart authored a nlenlo on Salvaged Water that was presented to the <br />DRAFT 5-5 <br />