## Facts

- Shelton Farms, Inc. and Colorado–New Mexico Land Co., Inc. owned land along the Arkansas River in Colorado.
- Each undertook projects intended to reduce non-beneficial water consumption on their properties, including removal of phreatophytes (water-consuming vegetation such as tamarisk/salt cedar) and filling or draining marshy areas to reduce evaporation.
- The claimants asserted these actions “salvaged” water that would otherwise be lost to transpiration and evaporation and sought decrees recognizing rights to the amounts allegedly saved.
- The Pueblo District Court (sitting as a water court) entered decrees awarding the claimants water rights based on salvaged water and declared those rights “free from the call” of all senior decreed rights on the Arkansas River.
- The Southeastern Colorado Water Conservancy District, Fort Lyon Canal Company, and Holbrook Mutual Irrigation Company objected and appealed; the cases were consolidated due to similar issues.

## Issues

1. Whether water “saved” by removing phreatophytes or reducing evaporation from marshy areas can be treated as a separate supply subject to a new appropriation under Colorado law.
2. Whether a court may decree a salvaged-water right that is “free from the call” of senior appropriators on a fully appropriated natural stream.
3. Whether awarding such a salvaged-water decree is consistent with Colorado constitutional requirements of diversion, beneficial use, and administration by priority.

## Decision

- The Colorado Supreme Court reversed the district court’s judgments and decrees.
- The Court held that the claimed salvaged water was not a separate, privately appropriable source created by the landowners’ actions.
- The Court rejected decrees granting any right to salvaged water that operates free from, or superior to, senior priorities on the Arkansas River.
- The Court concluded that any additional water made available by these measures remains part of the natural stream system and must be administered under the prior appropriation doctrine.

## Legal Principles

- Water “saved” by eliminating phreatophytes or reducing evaporation in areas connected to a natural stream is part of the natural stream supply, not a new privately owned source.
- Courts may not create a water right category insulated from the constitutional and statutory system requiring administration of rights according to priority.
- Acts that prevent transpiration or evaporation, without more, do not themselves constitute a diversion or appropriation sufficient to justify a new, call-free decree.
- In an over-appropriated stream system, any additional water made available by changes in vegetation or surface conditions is subject to existing decreed rights and the calls of senior appropriators.

## Conclusion

The Colorado Supreme Court held that removing water-consuming vegetation and filling marshy areas along the Arkansas River does not generate a new, superior, or call-free water right; any water thereby made available remains part of the natural stream and must be administered in accordance with prior appropriation and senior calls.


Southeastern Colo. Water Conservancy Dist. v. Shelton Farms, Inc., 529 P.2d 1321 (Colo. 1974)