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Can you own the rain that falls on your roof? Not in Colorado, where you can be fined $500 a day for harvesting rainwater

Posted by: Aqua Blog Maven on June 29, 2008 at 6:58 am

From the Denver Post:

Kris Holstrom lives with her husband and two children in a solar-powered home in rural San Miguel County. Committed to promoting sustainability, she grows organic produce year-round, most of which is sold to local restaurants and farmers markets.

On a mesa at 9,000 feet elevation, however, water other than precipitation is hard to come by. So Kris did what thousands of farmers before her have done: She applied for a water right. Except instead of seeking to divert water from a stream, she sought to collect rain that fell upon the roof of her house and greenhouse. To her surprise, the state engineer opposed her application, arguing that other water users already had locked up the right to use the rain. The Colorado Water Court agreed, and Kris was denied the right to store a few barrels of rainwater. If she persisted with rain harvesting, she would be subject to fines of up to $500 per day.

How could this happen?

Like other western states, Colorado water law follows the prior appropriation doctrine, of which the core principle is “first in time, first in right.” The first person to put water to beneficial use and comply with other legal requirements obtains a water right superior to all later claims to that water.

The right to appropriate enshrined in Colorado’s Constitution has been so scrupulously honored that nearly all of the rivers and streams in Colorado are overappropriated, which means there is often not enough water to satisfy all the claims to it. When this happens, senior water-right holders can “call the river” and cut off the flow to those who filed for water rights later, so-called “juniors.”

Overappropriated rivers are not unique to Colorado. Most of the watercourses in the West are fully or overappropriated. Yet other western states allow or even encourage rainwater harvesting.

The obstacle for aspiring rainwater harvesters in Colorado is not the state constitution. It speaks only of the right to divert the “unappropriated waters of any natural stream.” The problem arises because Colorado’s Supreme Court has given an expansive interpretation to the term “natural stream” and coupled that with a presumption that all diffused waters ultimately will migrate to groundwater or surface streams. And because most streams are overappropriated, collecting rainwater is seen as diverting the water of those who already hold rights to it.

Believe it or not, in Colorado, roofs are considered tributaries. Click here to read the rest of this article from the Denver Post.

June 29, 2008 · Filed Under Southwest Water Issues

Comments

One Response to “Can you own the rain that falls on your roof? Not in Colorado, where you can be fined $500 a day for harvesting rainwater”

Ray Walker on June 29th, 2008 8:34 am

As the Water Referee for the District Water Court for the Colorado River and its tributaries, an application for a water right to collect rainwater was not denied !

The Colorado State Constitution states very clearly that “the right to appropriate the unappropriated water shall never be denied”.

A water right to divert water from one’s roof and it appy it to beneficial use was approved by me, but subject to the priority system which has been in affect long before Colorado was a State.

Water can be legally diverted from the roof when the water right is in priority. This would rarely occur during the irrigation season unless streams were near flood stage because others own the right to the use of that water dating back as far as 1850 ( People’s Ditch in San Luis).

What may have triggered a Supreme Court ruling was the request by the applicant that the requested water right be exempt from the priority system. For example certain types of domestic wells are exempt for specified beneficial uses spelled out in the State Engineer’s well permit approvals. These have caused irreparable harm and should have been ruled unconstitutional long ago, but there were hundreds of thousands of them when the ground water laws were inacted in 1965 and Colorado had little choice except to exempt them.

Capturing the water when others are legally entitled to it is theft and that is why there is a fine ! That may also be why the rain harvesting case went to the Supreme Court.

If your 100 year old water right were damaged by the person who just moved in and intercepted part of your supply ( say there were a 1000 roof tops), you too would demand protection of your real property…your vested water right !

Allowing exempt water rights by simply catching rainwater from home roofs would spread to larger structures and even huge parking lots. The US Forest Service once made a claim to all waters falling on Forest Service lands !

For those of you who think that the doctrine of prior appropriation is not fair and that every newcomer should be able to acquire the property of others, think about this. When a child is born all of the land has long since been legally accumulated and is already owned by others. (The same is true for water in all desert environments.) Should the child who has just arrived be allowed to take a few acres from someone who already owns it or should the child be required to work & accumulate enough money to buy it?

For those of you who have been following my comments in recent months, hopefully you can appreciate the signficance of a truly new fresh water Source that will yield a million acre feet a year (325,900,000,000 gallons) without damage to the water rights of anyone, anywhere or the environment. Investigation of the Source is offered confidentially to any entity in NV, CA, CO or AZ that can beneficially use a signficant part of that amount. There are solutions to complex water availability problems.

Ray Walker (Retired Water Rights Analyst)
waterrdw@yahoo.com