Laserfiche WebLink
<br />. .~ . <br /> <br />.o...,."es <br />u u ~ ~l <br /> <br />IV. Legal Standards Implicated by Water Salvage <br /> <br />Implicit in saved water proposals based on changes in historical diversions (such as seen <br />in HB 91-1110), as opposed to reductions in consumptive use, is the claim that historical <br />diversions are the property (or should be) of the diverter. The basic notion of Colorado <br />water law is that a water right is the "right to ~ in accordance with its priority a certain <br />portion of the waters of the state by reason of the appropriation of the same." Section 37- <br />92-103( 12) C.R.S. An appropriation is "the application of a specified portion of the waters <br />of the state to a beneficial use". Section 37-92-103(3) c.R.S. Beneficial use is "the use of <br />that amount of water reasonable and appropriate under reasonably efficient practices to <br />accomplish without waste the purpose for which the appropriation is lawfully made...." <br />Section 37-92-103(4), C.R.S. (all emphasis added). Beneficial use, not a decreed diversion <br />rate, has always been deemed the full measure and extent of any water right. Green v. <br />Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775 (1962). Indeed, "to view a water right as a <br />fIXed tangible amount of water is to misunderstand the doctrine of prior appropriation." <br />Navaio Development Corp. v. Sanderson, 655 P.2d 1374 (Colo. 1982). <br /> <br />The law of water rights has always recognized the extreme hydrologic importance of <br />return flows to other water users. This recognition resulted in the "no injury" doctrine, <br />which prevents a senior water right holder from making changes to his water right that <br />would reduce the availability of water to others on the stream. Changes to the historical <br />depletion caused by the senior's original decreed use are not allowed to interfere with other <br />rights. The "no injury" rule is often expressed as the maxim that a junior water right holder <br />is entitled to preservation of stream conditions as they existed on the date he made his <br />appropriation. Return flows often provide the water supply for junior appropriators and the <br />law has always protected their reliance on that source of supply. <br /> <br />When a change of water right is made; often the simplest and easiest way to prevent <br />injury is to limit the volume of the change to the historical consumptive use that occurred <br />under the right. This assures that only water previously lost from the system and upon <br />which no one else could rely is moved. However, there appears to be no precise <br />requirement that only the historical consumptive use can be changed. The legal limits on <br />the ability to change a water right are prescribed by the amount beneficially used and by the <br />"no injury" rule. <br /> <br />The water remaining after making beneficial use of a diversion becomes return flow if <br />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 the state, available for proper <br />appropriation by the original appropriator or by others. Water Supply and Storage Co. v. <br />Curtis, 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., conc:.Jrient intent to appropriate aad 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 /> <br />15 <br />