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. I . /l r ")/'1 ? L t..) ~- .....' ,~~. ... water supply to this vegetation. It should be observed that phreatophyte protection and other resource trade offs require balances which the General Assembly is ideally suit~d to adjust. In the Shelton Farms line of cases the court has urged the General Assembly, in the strongest language, to develop policies and mechanisms to accomplish better water management after weighing the competing resource use issues. Senator Glass introduced bills in 1984, 1985, and 1986 which would have created a right to sell, transfer, or reuse salvaged water (defined as any reduction in historical consumptive use) resulting from efficiency improvements under the original priority date. SB 84-161, SB 85-95, SB 86-126; see appendix A Senator Glass explained that such a right might already exist with respect to a Colorado water right, but, due to uncertainty, water users were reluctant to become more efficient, or at least had less incentive to do so. The right to change a portion of the historical consumptive use of a water right while continuing the full level of activity under which that consumptive use previously occurred apparently has never been judicially approved. Such a plan might seem like an improper expansion of use, and yet the stream would be unaffected because actual depletion before and after the efficiency improvement would remain the same. In 1991 a different approach to encouraging improved efficiencies was introduced by Representative Foster, HB 91-1110. That bill would have allowed the sale, transfer, or reuse of "saved water" defined as the reduction in historical diversion rates resulting from system modernization, which would otherwise be lost to appropriators in Colorado. A saved water right would retain the same priority date as the original appropriation. Any uSe or change of this saved water could only occur if it caused no injury to any downstream users. This proposal would appear to overturn the holding in Water Supply Co., ~ that a reuse right only receives an appropriation date fixed by the formulation of the intent and "first step" to reuse the water. During attempts to move HB 91-1110 out of the Senate Agriculture, Livestock, and Natural Resources Committee, an amendment limiting saved water to the Colorado River basin was considered. There was substantial support for the concept in Western Colorado and return flow reliance there is not as great as on the Front Range. Such an attempt to limit the statewide applicability of a salvage or saved water right may raise issues of special legislation and equal protection under the law. However, there may be valid reasons based on hydrology, compact provisions, and resource demands to target specific watersheds. Another potential constitutional problem arises from assigning a priority date which preclates the actual intent to make an appropriation for reuse purposes. This may be inconsi$tent with the declaration that 'The water of every natural stream, not heretofore appropriated ... [is] the property of the public, ... subject to appropriation.... The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied." Colo Const. Art XVI, Sections 5 and 6. 'l A final legal concept which needs to be considered is the authority of the State Engineer Office (SEa) to administer water rights, prevent waste, and determine that water rights have 17 1 ~ .b..'- ....., _ ',':i , .,~ ~_ 6~_"~~ ~, ,