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"Nontributary ground water" means that ground water . the withdrawal of which will not, within one hundred years, deplete the flow of a natural stream ... at an an- nual rate greater than one-tenth of one percent of the annual rate of withdrawal.4/ The constitutional right to appropriate the unappropriated waters of the state was long thought not to apply to nontributary ground water.5/ Senate bill 213, enacted in 1973, provided for the al- location of nontributary ground water based on land ownership.6/ In 1983, in what is popularly known as the Huston case,7/ the Colorado Supreme Court confirmed that the constitutional right to appropriate does not apply to nontributary ground water, the use of which is instead subject to reasonable regulation by the leg- islature. In Senate bill 5, the General Assembly accepted the court's invitation and established a comprehensive system govern- ing the withdrawal and use of nontributary ground water, as well as "not nontributary" ground water in certain deep aquifers (more on this later). All underground water is, however, presumed to be tributary to the surface stream.8/ The person who asserts the contrary has the burden of proof.9/ The second limitation on the right to appropriate is that the wa- ter involved be unappropriated. Most major Colorado rivers are already overappropriated. This means that there are more decreed water rights than the amount of water annually available for use and, therefore, no water available for appropriation. The fact that a river has unappropriated waters during flood flows does not mean there is unappropriated water available for use at any other time.10/ However, even in an overappropriated stream sys- tem, water may be made available for appropriation by obtaining a decreed plan of augmentation.ll/ An augmentation plan is a de- tailed plan to make more water available for appropriation by shifting the time and place of depletions on the stream and/or by pooling water, providing substitute supplies or other acceptable means.l2/ b. Constitutionally preferred uses Article XVI, section 6, supra, contains a ranking of preferred uses of water. The section gives domestic uses priority over all other uses. Agricultural users have preference over those using water for manufacturing purposes. These preferences would appear to be contrary to the principles of prior appropriation. Howev- -5-