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<br />... r. . .. ,~. <br />;.fltV.2>n1 g <br /> <br />junior could rely is moved. However, there appears to be no precise requirement that only <br />the historical consumptive use can be changed. The legal limits on the ability to change a <br />water right are prescribed by the amount beneficially used and by the "no injury" rule. <br /> <br />The water remaining after making beneficial use of a diversion becomes return flow <br />if it can reach the stream and waste if it cannot. Return flows do not belong to the <br />appropriator, but rather are a portion of the waters of tbe state, available for proper <br />appropriation by the original appropriator or by others. Water Supply and Storage Co. v. <br />Cill:1lli, 733 P.2d 680 (Colo. 1987). The fact that no one will be injured by the original <br />appropriator's reuse of return flows is not a sufficient basis upon which to claim a right to <br />those return flows. Id. Rather, all the requisite elements of an appropriation must be met; <br />i.e., concurrent intent to appropriate and overt acts to demonstrate that intent. Since return <br />flows are available for use by present vested rights and to supply new appropriations, one <br />may not preempt "the development potential of water absent a demonstrated intent to put <br />that water to beneficial use." Id. at 684. Thus, under current law the priority date for a. <br />plan to reuse return flows is based on development of that plan, not the date of the original <br />appropriation. <br /> <br />A concern presented by attempts to salvage water, by the reduction of non-productive <br />consumptive use, is the fact that this will be done in large part by either removing <br />phreatophytic vegetation or depriving it of a water supply. A line of cases cited by those <br />urging caution in creating a right to salvaged water holds that developed water can not be <br />produced by the eradication of phreatophytes. SECWCD v. Shelton Farms. Inc.. 187 Colo. <br />181,529 P.2d 1321 (1974). Developed water is "new" water not previously part of the river <br />system and is not administered within the priority system, i.e. it is not subject to curtailment <br />by call. Id. Additional cases following Shelton Farms have held that elimination of non- <br />phreatophytic vegetation also does not produce developed water. Giffen v. State, 690 P.2d <br />1244 (Colo. 1984). Nor may one dry up a marshy area, thereby allegedly reducing natural <br />consumptive use and claim a right to the saved water outside of the priority system. RJ.A.. <br />Inc. v. Water Users. Association. District 6. 690 P.2d 823 (Colo. 1984). After Shelton Farms <br /> <br />21 <br />