Many people believe that collecting rainfall in Colorado is illegal. But that is like saying that diverting water from a river or well is illegal. Colorado water law governing the diversion and use of all tributary water, including rainfall, is basically the same regardless of its source. As long as water is diverted in priority, it is legal to divert it and put it to beneficial use, whether it comes from a stream, the ground, or the sky.
Colorado follows the law of prior appropriation, meaning “first in time, first in right.” This means senior water rights must be fulfilled before junior water rights are entitled to divert any water. If a water source contains sufficient water to satisfy all water rights, no water use gets curtailed. Junior water rights, including unadjudicated water rights not decreed through water court, only get shut off if the water supply drops below the amount needed to satisfy senior users. Fortunately, this has never occurred in the Animas River Basin, with the exception of some of its smaller tributaries, such as Elbert and Junction creeks.
Relative to our population and water demands, we are blessed with plentiful water in La Plata County. Contrast this to Colorado’s Front Range, where virtually every drop of water is spoken for because the water supply is small relative to the large population and water demands. Even on the “dry side” of La Plata County, junior water users have historically been able to legally divert in priority during the winter and early spring from the La Plata River or its tributaries, because the water has not typically been needed during those times to satisfy downstream irrigators or New Mexico users under the interstate La Plata River Compact.
If a homeowner in the Animas Valley, for example, builds a rainwater collection system to harvest the late summer monsoons for his gardens, his diversions will be legal throughout the growing season as long as the water flows in the Animas River meet the needs of all users. However, if a homeowner in the Florida River Basin (north of U.S. Highway 160) builds a rainwater collection system, his diversions will generally be in priority only for part of May and sometimes into June, depending on the water year. After that, the Florida River goes “on call” to meet the needs of senior users, such as the City of Durango and the Florida Ditch Companies, so junior users, including rainwater collectors, must cease diverting water and allow it to return to the stream, either on the surface or through the groundwater table. Junior users who divert water after their water rights have been called out are then diverting illegally, and may suffer unpleasant encounters with the water commissioner or district attorney.
Even in areas such as the La Plata and Florida River basins that are water scarce during the irrigation season, there are two ways to divert rainwater legally even when the streams are water short. The first way is to obtain an exempt well permit. The Colorado Legislature recently amended the exempt well statute to allow people who qualify to collect rainwater under the permit and use it for exempt uses, which include household use for up to three homes, one acre of lawns and gardens, domestic animal watering and fire protection. An exempt permit can be obtained for a 35-acre parcel in water critical areas, for smaller parcels in non-water critical areas, and renders the authorized uses exempt from the priority system so they won’t get shut off when the stream goes on call.
The other legal way to continue collecting rainwater (or other water sources) when the stream goes on call is to obtain a water court-approved augmentation plan. Augmentation plans are designed to replace out-of-priority depletions so the affected stream system is made whole and no water users are injured. For example, a junior water user on the Florida River who wants to continue collecting rainwater (or other water sources) throughout the irrigation season, could petition the Florida Water Conservancy District for a lease of augmentation water from Lemon Reservoir to replace the water used from the rainwater collection system.
Most of our water comes from the sky, either in the form of snow or rain. Diverting it in priority and placing it to beneficial use is sanctioned by Colorado’s constitution and statutes, and necessary to life in the arid West. If the proper procedures are followed, rainwater in our area can be diverted legally at any time of the year, whether the user resides on a water plentiful or water scarce stream system.
Geoff Craig is a Durango native and attorney practicing in the areas of water rights, real estate, business law and estate planning.
