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. c . , ' M~022 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 histotical diversions are the property (or should be) of the diverter. The basic notion of Colotado water law is tbat a water right is the "right to yg 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 "tbe 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 ~ 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. Gre~n 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 CoW. 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 maxim 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. M. Rather, all the requisite elements of an appropriation must be met; Le., 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 15 ;'j' ,-+ {. [il ' '~ :tit" ..c ,;- ,i-';~' i _. ,.e'" &i.. '_'u}"'-"