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<br />" <br /> <br />. <br /> <br />. <br />. <br /> <br />. <br /> <br />ry~J2~O <br /> <br />A <br /> <br />Legal Issues <br /> <br />The main legal issues surrounding salvage and saved water in the Grand Valley <br />involve the entitlement to claim historical diversion levels, and thus return flows, as an <br />attribute of the original appropriation. Current law appears to fix the priority date for a <br />plan to use return flows to the date such an intent is fonned and manifested, not the date <br />of the original appropriation. Water Supply and Storage Co. v. Curtis, 733 P.2d 680 (Colo. <br />1987). The availability of the "no injury" rule to upstream juniors who have not made <br />physical use of return flows, but wish to assert reliance on those return flows will be at issue <br />if a right to reuse or transfer saved water is recognized. The issue of reliance on return <br />flows will be further complicated by uncertainties over how Colorado River Compact <br />apportionments will be met and the role of return flows in meeting those apportionments. <br /> <br />B. Policy Issues <br /> <br />The prospect of finding some increment of "new" water in an over-appropriated basin <br />raises water supply allocation policy questions, particularly where the status of that water <br />within the priority system is unclear. If the priority system does not provide a basis for <br />allocating this water, the courts or the General Assembly may have to allocate it on policy <br />grounds. <br /> <br />The Endangered Species Act requires federal resource and permitting agencies to <br />do everything in their power to avoid jeopardizing endangered native Colorado River fish. <br />Those powers include review and approval of non-federal water development projects. <br />Potential solutions to the habitat needs of endangered fish may depend upon a consensus <br />within the water user community. Until the habitat needs are protected all future Colorado <br />River depletions, and to some extent current depletions, are at risk, regardless of where the <br />end use of those depletions occurs. <br /> <br />There are also important environmental and economic policy questions, involving <br />protection of wetlands and fair recognition of federal taxpayer investment in local water <br />supply projects. The environmental price for saved water may be high. In the Grand valley <br />the main beneficiaries of irrigation losses are wetlands and ditch and field tree borders. The <br />seepage from the Government Highline Canal, for instance, supports a vegetated corridor <br />through otherwise barren range and cropland, used extensively by wildlife and for local <br />recreation. The Salinity Program will be mitigating some portion of its environmental <br />impacts, but if a broad incentive for further irrigation efficiency is created, there may be no <br />mechanism to prevent environmental damage from private conservation efforts. On the <br />other hand, if municipal demands are forced to look elsewhere for water, the environmental <br />consequences may be worse than the loss of phyreatophytes or artificial wetlands. <br /> <br />Some believe that since the U.S. has funded the bulk of the efficiency improvements <br />which produce salvaged or saved water, its claims to control that water are superior to that <br />of the original appropriators. The Salinity Act requires that the Grand Valley Unit be <br /> <br />8 <br /> <br />