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<br />water supply to this vegetation, It should be observed that phreatophyte protection and
<br />other resource trade offs require balances which the General Assembly is ideally suited to
<br />adjust. In the Shelton Farms line of cases the court has urged the General Assembly, in the
<br />strongest language, to develop policies and mechanisms to accomplish better water
<br />management after weighing the competing resource use issues,
<br />
<br />Senator Glass introduced bills in 1984, 1985, and 1986 which would have created a right
<br />to sell, transfer, or reuse salvaged water (defined as any reduction in historical consumptive
<br />use) resulting from efficiency improvements under the original priority date, SB 84-161, SB
<br />85-95, SB 86-126; see appendix A Senator Glass explained that such a right might already
<br />exist with respect to a Colorado water right, but, due to uncertainty, water users were
<br />reluctant to become more efficient, or at least had less incentive to do so, The right to
<br />change a portion of the historical consumptive use of a water right while continuing the full
<br />level of activity under which that consumptive use previously occurred apparently has never
<br />been judicially approved, Such a plan might seem like an improper expansion of use, and
<br />yet the stream would be unaffected because actual depletion before and after the efficiency
<br />improvement would remain the same,
<br />
<br />In 1991 a different approach to encouraging improved efficiencies was introduced by
<br />Representative Foster, HB 91-1110, That bill would have allowed the sale, transfer, or
<br />reuse of "saved water" defined as the reduction in historical diversion rates resulting from
<br />system modernization, which would otherwise be lost to appropriators in Colorado. A saved
<br />water right would retain the same priority date as the original appropriation, Any use or
<br />change of this saved water could only occur if it caused no injury to any downstream users,
<br />This proposal would appear to overturn the holding in Water Supply Co., supra that a reuse
<br />right only receives an appropriation date fixed by the formulation of the intent and "first
<br />step" to reuse the water,
<br />
<br />During attempts to move HB 91-1110 out of the Senate Agriculture, Livestock, and
<br />Natural Resources Committee, an amendment limiting saved water to the Colorado River
<br />basin was considered, There was substantial support for the concept in Western Colorado
<br />and return flow reliance there is not as great as on the Front Range, Such an attempt to
<br />limit the statewide applicability of a salvage or saved water right may raise issues of special
<br />legislation and equal protection under the law, However, there may be valid reasons based
<br />on hydrology, compact provisions, and resource demands to target specific watersheds,
<br />Another potential constitutional problem arises from assigning a priority date which predates
<br />the actual intent to make an appropriation for reuse purposes, This may be inconsistent
<br />with the declaration that "The water of every natural stream, not heretofore appropriated
<br />... [is] the property of the public, .., subject to appropriation.... The right to divert the
<br />unappropriated waters of any natural stream to beneficial uses shall never be denied," Colo
<br />Const. Art XVI, Sections 5 and 6,
<br />
<br />A final legal concept which needs to be considered is the authority of the State Engineer
<br />Office (SEa) to administer water rights, prevent waste, and determine that water rights have
<br />
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