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HC}LLAND&HART.T PM <br />MEMORAND UM <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 Force 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 naturally-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 the river system and is <br />subject to administration in order of priority. It is settled law 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 appropriation 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 eliminating vegetation or by other means, does not have <br />a right to use that water outside of the priority system. <br />Shelton Farms and its Pro2eny: Developed Water and Salva2ed 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 River 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 evaporation from the marsh, and sought a decree <br />affirming the right to use that amount of water 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, and made several important statements of law. <br />First, the Court drew a distinction between "developed" water and "salvaged" water. 529 P.2d at <br />1325. Developed water exists when one "adds" water to an existing supply, if such water would <br />Holland & Hart LLv Attorneys at Law <br />P3°cne (303) 295-8000 t=ax (303) 295-8261 www.hollandhart.com <br />555 17th Street Suite 3200 Denver, Colorado 80202-3979 Mailing Adcira>s P.O. Box 8749 Denver, Colorado 80201-8749 <br />Aspen Billings Boise Boulder Cheyenne Colorado Spnngs Derner Denver Tech Center Jackson Hole Las Vegas Salt Lake City Santa Fe washington, D.C.