Is the wind next?
The Denver Post
Can you own the rain?
Make harvesting the resource legal
By Daniel Fitzgerald
06/28/2008
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.
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...cont'd
http://www.wildlifemanagementpro.com/2008/07/09/water-rights-and-rain/
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