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<br />002M9 <br /> <br />.. . . . . , <br />l' . ... ~ ' <br />~'!:. 1". <br /> <br />tbe General Assembly also decided that a plan for augmentation could not "include the <br />salvage of tributary waters by the eradication of phreatophytes." Section 37-92-103(9), <br />C.RS. However, the General Assembly has allowed gravel pit operators to take an <br />augmentation credit for the "historic natural depletion ... caused by the preexisting natural <br />vegetative cover ... permanently replaced" in the process of mining and exposing the water <br />table to the atmosphere. Section 37-92-305(12)(a), C.RS. This statute indicates that in <br />some instances limited salvage is already allowed in Colorado. It should be noted that the <br />above language allowing credit for preexisting vegetative cover in sand and gravel . <br />augmentation plans is being challenged in Central Colorado Water ConservanG)' District v. <br />Danielson, Case No. 89CW170, Water Division No. 1. <br /> <br />Salvage and saved water proposals submitted to the General Assembly do not involve <br />claims for developed water, rather the saved or salvaged water would continue to be <br />administered within the priority system. Both salvaged and saved water transfers also would <br />be subject to the no injury rule, a further recognition that this water was and remains part <br />of tbe tributary water system. Thus Shelton. Giffe!l, and RJA do not directly apply to <br />salvage projects. However, the Court in those cases did express concern for the <br />environmental damage that may result if incentives are given for removing vegetation and <br />drying up wetlands. Section 37-92-103(9), which prohibits "eradication" may be a obstacle <br />to salvage plans because almost every transfer of water rights involves a plan for <br />augmentation as the means of preventing injury to other rights. Often phreatophytes need <br />not be directly eradicated (i.e. cut down and removed) to reduce consumptive use, rather <br />water can be prevented from reaching their root systems by reducing the seepage which <br />supplies their water needs. The result may eventually be the same, death and loss of <br />vegetation, but the mechanism probably can not be considered eradication. When <br />phreatophyte loss follows seepage reductions it is doubtful that courts would find that the <br />legislature intended to require water users to continue to provide a water supply to this <br />vegetation. It should be observed that phreatophyte protection and other resource trade offs <br />require balances which the General Assembly is ideally suited to adjust. In the Shelton <br />Farms line of cases the court has urged the General Assembly in the strongest language to <br /> <br />22 <br />