PUB00100

• Year: 1992
• Title: An Analysis of Water Salvage Issues in Colorado
• Author: CWCB
• Description: An Analysis of Water Salvage Issues in Colorado
• Publications - Doc Type: Water Resource Studies

IV, Legal Standards Implicated by Water Salvage

Implicit in saved water proposals based on changes in historical diversions (such as seen
in HB 91-1110), as opposed to reductions in consumptive use, is the claim that historical
diversions are the property (or should be) of the diverter, The basic notion of Colorado
water law is that a water right is the "right to ~ in accordance with its priority a certain
portion of the waters of the state by reason of the appropriation of the same," Section 37-
92-103(12) C.R.S, An appropriation is "the application of a specified portion of the waters
of the state to a beneficial use". Section 37-92-103(3) c.R.S, Beneficial use is "the use of
that amount of water reasonable and appropriate under reasonably efficient practices to
accomplish without waste the purpose for which the appropriation is lawfully made...."
Section 37-92-103(4), C,R.S, (all emphasis added), Beneficial use, not a decreed diversion
rate, has always been deemed the full measure and extent of any water right. Green v.
Chaffee Ditch Co" 150 Colo, 91, 371 P,2d 775 (1962). Indeed, "to view a water right as a
fixed tangible amount of water is to misunderstand the doctrine of prior appropriation."
Navajo Development COllJ, v, Sanderson, 655 P.2d 1374 (Colo, 1982),

The law of water rights has always recognized the extreme hydrologic importance of
return flows to other water users, This recognition resulted in the "no injury" doctrine,
which prevents a senior water right holder from making changes to his water right that
would reduce the availability of water to others on the stream, Changes to the historical
depletion caused by the senior's original decreed use are not allowed to interfere with other
rights, The "no injury" rule is often expressed as the maxiin that a junior water right holder
is entitled to preservation of stream conditions as they existed on the date he made his
appropriation, Return flows often provide the water supply for junior appropriators and the
law has always protected their reliance on that source of supply,

When a change of water right is made, often the simplest and easiest way to prevent
injury is to limit the volume of the change to the historical consumptive use that occurred
under the right. This assures that only water previously lost from the system and upon
which no one else could rely is moved. However, there appears to be no precise
requirement that only the historical consumptive use can be changed, The legal limits on
the ability to change a water right are prescribed by the amount beneficially used and by the
"no injury" rule,

The water remaining after making beneficial use of a diversion becomes return flow if
it can reach the stream and waste if it cannot. Return flows do not belong to the
appropriator, but rather are a portion of the waters of the state, available for proper
appropriation by the original appropriator or by others, Water Supply and Storage Co, v,
Curtis, 733 P.2d 680 (Colo, 1987), The fact that no one will be injured by the original
appropriator's reuse of return flows is not a sufficient basis upon which to claim a right to
those return flows, Id, Rather, all the requisite elements of an appropriation must be met;
i,e" concurrent intent to appropriate and overt acts to demonstrate that intent. Since return
flows are available for use by present vested rights and to supply new appropriations, one

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