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<br />(Ju15v' <br /> <br />29, <br /> <br />Robert Emmet Clark <br /> <br />Page 3 <br /> <br />" <br /> <br />pride." And it is not always clear what is being said. What has happened <br />in Texas, and what has been the law in Texas, and what has happened in <br />Kansas offer examples to compare. They present an opportunity to see <br />very clearly, as we should, the difference in an attitude toward this <br />phrase, this word "vested rights" in giving it an empirical reference. <br />In Texas, a vested right in percolating ground water exists in a vacuum, <br />so to speak. It is not measured by the amount you use. As Judge Dent <br />told you, it is limited only by waste or by some kind of pollution or <br />negligent use of it. Now in Texas the recognition of a need for some <br />limitation under the police power of the state is recognized under the <br />good legislation under which the High Plains District was organized. <br />This legislation was perm itted by the Constitution of Texas which says <br />that resources can be taken care of in a certain way as the legislature <br />provides. The legislature has author ized three districts. In those districts <br />this absolute right, which can exist only theologically speaking, if I may <br />use that phrase, can be limited in terms of what the people want in that <br />district. Now we'll set that definition aside for a moment, and lookat <br />Kansas. The Kansas legislation says, and it was upheld by the Kansas <br />Supreme Court, a vested right only exists in the amount you use. That <br />means actual beneficial use or water that is put to use by a specific date. <br />The Kansas court said, "We don't recognize any property rights in unused <br />water." The argument that water in the ground is like uranium in the <br />ground is fallacious, and I don't have to tell you scientists or engineers <br />how fallacious it is. It is not the same water that's the re all the time for <br />many centuries. ""hat I want to emphasize is that this constitutional <br />problem is enlarged and embellished and distorted beyond the understand- <br />ing of intelligent people like those attending this conferen ceo The idea of <br />"vested rights" does not mean some kind of a philosophical concept only. <br />It has a specific kind of reference. That's been the stumbling block in <br />much of this legislation. <br /> <br />I . <br /> <br />.' <br /> <br />One of the other problems of legislation, and I was glad that Mr. <br />Kelly got to talk about it because he laid the ground work for this criticism, <br />and I wish that he were here to hear it, is the distinction between non- <br />tributary and tributary ground water in Colorado. This is a two-edged <br />sword in Colorado. I live down stream from Colorado, and we know about <br />both edges of that sword just the same as Texas knows about New Mexico's <br />law. Colorado is the only western state that has a legal presumption that <br />all water not shown to be non-tributary is tributary to a stream. The <br />other side of that sword is this: It presents a great opportunity for <br />Colorado to integrate rationally some kind of administration of both <br />surface and ground water. Now with respect to non-tributary waters, I <br />