Water Rights and Rain
Posted Under: Outdoor News | July 9, 2008
All she wants is the rain water that lands on her roof. She lives with her husband and two children in a solar-powered home in rural San Miguel County. Committed to promoting sustainability, Kris Holstrom 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.
How is a roof a “tributary”?
Applying this legal fiction to Kris Holstrom’s effort to grow food at home, the state engineer argued that her roofs were “tributary” to the San Miguel River. Because the San Miguel River is “on call” during the summer months, Kris’s rain catchment would, the state engineer argued, “cause injury to senior water rights.” The court agreed, even though there was no proof that the water dripping from Kris’s roof would ever make it to the river.
If Kris wanted to collect rainwater for her gardens, she’d have to pursue an augmentation plan and convince the state engineer and water court that she could replace 100 percent of the precipitation captured. Not only did she have to return to the stream every drop of rain she collected, she would have to pay for a complex engineering analysis to prove that her augmentation water would return to the stream in a timeframe mimicking natural conditions.
She didn’t even try. “The farm doesn’t make enough money to pay for an engineering analysis,” she said. Indeed, it’s difficult to imagine a situation where it would make financial sense to harvest free rainwater that has to be replaced with another source of water.
The notion that you can’t utilize the rain falling on your roof might be easier to accept if you really were interfering with senior water rights, but in many situations it just isn’t true. In Kris’s case, most of the rain she collected would have evaporated or been transpired by native vegetation long before it ever reached the San Miguel River.
Hardly a drop in the bucket
A recent study commissioned by Douglas County and the Colorado Water Conservation Board has confirmed that very little precipitation that falls on an undeveloped site ever returns to the stream system. The study focused on an area in northwest Douglas County, where the average annual precipitation is 17.5 inches. In dry years, 100 percent of the annual precipitation is lost to evaporation and transpiration by vegetation. In wet years, a maximum of 15 percent of the precipitation returns to the stream system. On average, just 3 percent of annual precipitation ever returns to the stream.
Despite this hydrological reality, Colorado law requires anyone wanting to use rainwater catchment to send to the stream an amount of water equivalent to 100 percent of all precipitation harvested. That is, in effect, a gift to prior appropriators paid for by folks trying to live more sustainably.
An effort to address this problem stalled in the Colorado legislature this past session. A bill by state Sen. Chris Romer, D-Denver, would have allowed rural residents not on a municipal water system to store rainwater in cisterns up to 5,000 gallons. The bill also would have authorized 10 pilot projects where new housing developments could collect rainwater from rooftops and other impermeable surfaces. But even this tepid effort to update water law was sent to committee for further study.
The committee should use this study period to produce a bill that takes a more aggressive approach to water sustainability. The first thing is to make sure the benefits of rainwater harvesting are not dissipated into oversized yards filled with water-guzzling bluegrass. A serious effort would limit harvested rainwater to food production and Xeriscaped yards.
A resource down the drain
Even greater benefits could be achieved by promoting wide-scale rainwater harvesting in developed areas. Traditional land development practices typically direct runoff from roofs and other impervious surfaces to pollutant-laden streets and parking lots, and then toward storm drains.
Both of these problems would be ameliorated if all buildings were equipped to catch rainwater for later use. Additional benefits could be realized if the water collected from rooftops was brought inside for nonpotable uses. Rainwater that would otherwise be lost to evaporation or storm drains could be used in toilets and washing machines, and then sent to the treatment plant, thereby bringing more water into municipal water systems.
Colorado is expecting 3 million new residents by 2035. At the same time, climate change may be conspiring to exacerbate the water woes of all of the states served by the Colorado River. Rainwater harvesting is no panacea to deal with water shortages, but it should be part of a multifaceted approach to a looming crisis.
Fully utilizing precipitation where it falls reduces the demand on other water resources, leaving more water in streams or aquifers. The most important benefit of a legal change stimulating wide-scale rainwater harvesting may be its fostering of a new water ethic. People who make a personal effort to collect and utilize rain are less likely to waste water or tolerate public policies that allow waste by others, such as inefficient irrigation or inappropriate residential landscaping.
When people are maintaining gutters and cisterns to flush their toilets or grow their gardens, they are more likely to appreciate the importance and scarcity of water. They might finally say no to headlong growth that shows no regard for long-term availability of future water supplies.
Colorado should embrace rainwater harvesting. The legal fiction that all rain is tributary to a stream should be abandoned. Others should not be allowed to own the rain that falls on your roof before you can use it for reasonable domestic uses.
Reader Comments
Stupid is as stupid does. Liberals in the country are even dumber than their counterparts in the cities! Could be nothing but a Liberal who interpreted that law. Dumb! Dumb! Dumb!
People in Colorado are idiots. Almost as stupid as Californians.
The problem is obviously bureaucratic ignorance (not stupidity). The state law should be amended to require any harvested precipitation be required to be used solely on the same property of which it was harvested. That way “senior rights” don’t have a leg to stand on, the water is far less likely to be wasted, and if evolving a municipal water district…it would conserve every gallon saved.
The Colorado legislature as well as many Colorado citizens need only to be taught, not criticized as being stupid!!!
Nope.
They’re not ignorant.
They’re stupid.
Also, greedy and short-sighted.
Colorado is rapidly becoming the same sort of self-destructive hellhole that California has become since the ’60s. Filling up with witless consumers who moved here for the scenery and the sunshine, and then insisted on killing the goose that laid the golden egg.
Really appreciate the insightful comments. They certainly help to gain a deeper understanding of the problem. Do you people do every add anything constructive or just useless offer insults?
“Not only did she have to return to the stream every drop of rain she collected, she would have to pay for a complex engineering analysis to prove that her augmentation water would return to the stream in a timeframe mimicking natural conditions”
Okay we will “return to the stream in a timeframe mimicking natural conditions” by the same way that it would if she did not collect the water by dumping it on the ground to be worked through the natural rain cycle.
This is why LAWS and Governments must be changed
RIDICULOUS…The LAW IS AN ASS
I cannot understand the stupidity of the situation. There is a very serious problem if Goodness, Freedom and Common Sense are obstructed this way. This is beyond stupidity. This is ridiculous.
What the blithering bureaucrats aren’t recognizing is that if people use rainwater from their own property, they’re reducing demand on municipal water supplies.
This story makes me want to go to Colorado, set up a rain barrel, and go to court to get their law overturned on the basis that it requires a fourth-amendment violation to enforce it.
Very astute and very correct Earnan!
“Stupid is as stupid does. Liberals in the country are even dumber than their counterparts in the cities! Could be nothing but a Liberal who interpreted that law. Dumb! Dumb! Dumb!”
Thanks for the comment, since the “liberal” is the one with their own business, working hard and trying to collect the rain water that falls on their own house as a natural resource.
Meanwhile, the pro-water rights, big business, republican supported party in the matter sits back, collects the water from a natural resource and works hard by getting laws passed, politicians paid and keeping a team of lawyers….the dumb, dumb dumb liberals indeed. Thanks for highlighting who the dumbest of them all is…
Its simple – you have to “Out Moron” the government. Collect the rainwater, inform them that you are storing it for collection. When they don’t pick it up after a week claim Abandonment of the water then use it. That will make their heads spin.
Does this dumb bitch apply for government permission before she takes a drink of water?
I don’t recall applying to the police department for permission before I blow off the speed limit on the highway.
TL;DR Government is not your friend. Do whatever you can get away with.
The reason that this law persists is that it favors established moneyed interests over the individual small landowner. Therefore, as our democratic system has evolved towards weak accountability and strong government, the resources are going to go to the politically connected.
I wonder if there were any liberals in Colorado
at the time the prior rights doctrine was started.
Haha, this is hilarious! Rainwater is not property.
Does this make it illegal to own a swimming pool in this jurisdiction? Swimming pool owners are collecting rainfall for their own purposes.
What about a home garden? My vegetables are now nourishing themselves with rainwater that belongs to someone else (before it even hits the ground).
Is it illegal to go outside and open your mouth to the sky during a rainstorm?
This is not a liberal issue at all. In fact it falls under the rubric of “property rights”, which when it was controlled by a few was put into law all these circumlocutions. All the western states have such egregious claims not just to water, but all sorts of natural resources including mineral rights. Its chief principle is to privatize profits and socialize all risks. In other societies it would aptly be called plunder.
The engineer is merely implementing what the legislatures have enacted and mandated by the property barons of yore. A liberal interpretation of the situation would inform anyone that we ought to change the laws so “first come first served” has passed it’s usefulness.
Stupid is as stupid does. Conservatives in the country are even dumber than their counterparts in the cities! Could be nothing but a Conservative who interpreted that law. Dumb! Dumb! Dumb!
Colorado is a PRIOR APPROPRIATION state. All water in the state has already been claimed by downstream users such as California, Nevada, New Mexico under the Colorado River Compact (federal law). Colorado had a legal obligation under this compact to delivery 8,500,000 acre/ft a minute to Lee’s Ferry.
The reason this person cannot claim a ‘water right’ is there isn’t any unclaimed water available. It has all been appropriated. Sorry, you came to Colorado about 100 years too late. Try buying water rights from someone else who has senior rights if you really NEED water rights (you don’t).
An addendum to my previous comment:
One way to counter “senior rights” is to attach “senior responsibilities” as well. In practical terms it means, costs of flood control, damages from floods, sink holes, shrink/swell, and landslides are proportionally borne by the rights holders. It’s easy to assign the flood damage by watersheds in proportion to rights holders. In the event of default, such rights revert back to the state. This I think would be the most equitable solution instead of making exceptions here and there for convenience to some property owners, such as this farm that wants to collect its runoff.
My two cents — People trying to control something that falls out of the sky is just ludacris and they are just applying more taxes and want more of your money so you stay enslaved to a system that is bound to fail. Honestly, it’s water and we need it to survive. The people really do have to join together, worldwide, and fight this system of enslavement. They are trying very hard to get rid of the middle class and I do hope people realize what their gov’t is doing, Domestic and International. I really don’t know how its going to come about, but I do hope to see the people come together instead of fighting each other. Seek the truth and it will set you free.
A liberal decision? Maybe. Just as likely a claim by businesses which would point the other direction, wouldn’t it?
WTF do archaic Colorado water laws have to do with Liberals or California?
that is one of the stupidest laws i have ever heard of. it’s just a bunch of liberals being dumb
Idiots are our undoing!
Respectfully,
John Paul Riger
(Former Division of Wildlife Superintendent of the Crystal River Fish Hatchery, Carbondale, CO)
Frogdip:How can you “assume” it was a liberal who interpreted the law that way? Sounds like a conservative view: well, the law says water rights are supreme….
Fine, next time the states water damages something on your property, sue them for negligence by failing to provide adequate control of state resources.
Colorado is NOT a liberal state. You conservatives are brainless. This is merely a money grab by the greedy corporate types.
Does a septic tank qualify as a water return path? If so then the homeowner has been already returning water to the tributary system. The catchment on the roof would be easily offset by the septic tank return path.
Oh and “Frog Dipp”, you are an idiot.
Colorado is famously run by a bunch of conservative Republicans.
It’s their corporate hacks who are interpreting this law that way and hurting individuals (as usual) not “liberals.
Idiot.
It really is amazing to me that idiot judges and lawyers think they can tell people if they can have the rain water falling on top of them. She shouldn’t have applied for a water right, she should have just collected the rain and told the courts to keep their farcical laws to themselves.
Howabout, every time it rains, she calls the cops on the seniors for trespassing and storing water on her roof and property, or charge them a storage fee. Maybe leave a tv outside and charge the seniors with destruction of property, every time it rains. Or charge them with a noise complaint that their property is too noisy when it hits your roof. I think these suggestions are just as plausibly ludicrous…
The NWO on the move. Not only believe everything belong to them but also think of themselves to be GOD. Since when does the rain water belong to them, it seems to me there is too much people without brains who can’t wait to say yes and amen to whatsoever the government throw to them.
I’ve never heard of anythings so stupid and so ill concieved…what freaking morons..my 8 year old is smarter than this.
Frogg,
I don’t see where you make the connection to liberalism here. Idiots, conservative and liberal alike, make stupid judgments like this all the time.
“They might finally say no to headlong growth that shows no regard for long-term availability of future water supplies.”
Birth control? It’s not just people moving around.
This has nothing to do with “liberals” and everything to do with ignorance and greed. There was only one politico mentioned and he happened to be Dem. Trust me on this; it’s pure out right greed. I can guarantee the money behind the lobby is as much GOP as it is LibDem. Fact is in a logical sense, true logic, that rain water belongs to the person who owns the land on which it falls. If that person wants to collect it, then it’s up to that person. However, if that land and the rain on which it falls supplies a significant amount to the natural rivers, then I can requiring replacement of some of it. In the above case, it’s from her roof, not her land, she’s collecting a significant amount LESS than her land would. Someone paid that state engineer to be a bass tard for interpreting those laws. Feel free to debate for me it’s simple. You won’t be able to convince me she is NOT entitled to her roof-off rain water.
It was the Colorado Supreme Court.
Yes Frog, call out the “libruls” on this one. Genius. Where are you from, BTW? Let me guess, Jesusland? Do us all a favor, stay under your rock.
> : She applied for a water right.
And this was her first mistake. Why in gods green earth would anyone do that, seriously.
You want a constructive comment? Try this one; Get a semi automatic AK-47 or an AR-15, collect all the water that falls on your property that you want. When they come to ticket you and or confiscate your paraphernalia, ram the barrel of your gun down their throat and tell them the pursuit of life, liberty and happiness WILL NOT be denied.
Damn liberals! They took our rain!
If they make the absurd ruling that some else owns all the water that crosses your property and the courts back them. Then it is time to force the court into a corner by showing them how absurd their logic is. Everyone should sue any entity that follows the prior appropriation doctrine every time their water does damage to your property. Sue them when you slip and fall because they did not remove their water (snow) from the side walk. Sue them when you are in a car accident and the ice and water contributed to the accidents cause. I guaranty you, after the first few hundred lawsuits, these clowns would give up the right to a resource that no really entity owns.
Why did she ask for permission in the first place?
Huh I would have called this a big business thing and their rights for stomping on peoples ability to utilize rain water when they want to use the water that lands on someone elses roof.
This should be added to our bill of rights, the right to collect rain water. I guess this is what happens when people choose to live in areas of limited water resources e.g. NM AZ.
I still can’t even believe this is for real. Looks like a CO Dem is trying to change some of this though.
I live in Colorado too. This is STUPID, it’s her roof, and otherwise the water would just dry up.
This legal fiction doesn’t take into account that anything that falls on your property, is yours. I have to ask what business is it of our owners to even know what we are doing on our own property, less a search warrant? I would say this should be challenged all the way to the scotus, but we are no longer a nation of law, anyway. It is whatever our owners decree. God help us all, and Jesus return quickly, to save us from these monsters.
Typical bureacratic BS. I t will only get worst with time.Can , we the people, stop it??? I doubt it !
LSB
Not true, a liberal would recognize the rights of the harvester. Only a conservative would support the insane rights of corporations at the expense of regular people.
The Colorado legislature as well as many Colorado citizens need only to be taught, not criticized as being stupid!!!
Insanity above since you are educated beyond your ability to reason.
A rain barrel for vegetables to feed people unpoisoned food – Goverment is the problem . Grow a set Colorado and get rid the liberal idiots before they destroy you. Oh I get it they want to work for a living as a family, sorry go on welfare over rainwater which is a * commons of your property rights * so screw them. Yea, I can here the left whining we must think for you since where to smart to work. Look people next they will hold the gun while you dig. If a “family” cannot save water there no hope for your state.
Last I heard, you can’t even go to a public bathroom in CO w/o risking running into some freak pervert in a dress in the ladies room.
Soon it will be the air we breath. Sorry that air is being used by someone that has seniority over it. You need to have this x number of plants to replace that air. “But I can’t, I don’t have water for them.”
Regret to read about the Colorado Water laws. Someone need to wake up and respond on this or else they will very shortly come up with Colorado Air law, where people may be prohibited to breathe the air without proper license.
So, if she has a leak in her roof, is she entitled to sue the rightful owners of the water to come and fix her roof?