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<br />.002lJn---- --. <br />, 11" .'~ "",.- : " <br /> <br />IV Legal Standards Implicated by Water Salvage <br /> <br />Implicit in saved water proposals, as seen in HB 91-1110, are changes in historical <br />diversions, as opposed to reductions in consumptive use, and the claim that historical <br />diversions are the property (or should be) of the diverter. The basic notion of Colorado <br />water law is that a water right is the "right to ~ in accordance with its priority a certain <br />portion of the waters of the state by reason of the appropriation of the same." Section 37- <br />92-103(12) C.RS. An appropriation is "the application of a specified portion of the waters <br />of the state to abeneficial use". Section 37-92-103(3) C.RS. Beneficial use is "the use of <br />that amount of water reasonable and appropriate under reasonably efficient practices to <br />accomplish Without waste the purpose for which the appropriation is lawfully made...." <br />Section 37-92-103(4), C.R.S. (all emphasis added). Beneficial use has always been deemed <br />the full measure and extent of any water right. Green v. Chaffee Ditch Co., 150 Colo. 91, <br />371 P.2d 775 (1962). Indeed, "to view a water right as a fixed tangible amount of water is <br />to misunderstand tbe doctrine of prior appropriation." Navajo Development COlJl. v. <br />Sanderson, 655 P.2d 1374 (Colo. 1982). <br /> <br />The law of water rights has always recognized the extreme importance of return flows <br />to other water users. This recognition resulted in the "no injury" doctrine, which prevents <br />a senior water right holder from making changes to his water right that would reduce the <br />availability of water to others on the stream. Changes to the historical depletion caused by <br />the senior's original decreed use are not allowed to interfere with other rights. The "no <br />injury" rule is often expressed as the maxim that a junior water right holder is entitled to <br />preservation of stream conditions as they existed on the date he made his appropriation. <br />Return flows often provide the water supply for junior appropriators and the law has always <br />protected their reliance on that source of supply. <br /> <br />When a change of water right is made the simplest and easiest way to prevent injury <br />is to limit the volume of the change to the historical consumptive use that occurred under <br />the right. This assures that only water previously lost from the system and upon which no <br /> <br />20 <br />