Colorado follows the doctrine of prior appropriation when it comes to water use. In other words, Colorado is a "first in time is first in right" state. This means that those who apply first for water-use rights are granted rights, resulting in senior water-rights holders and junior water-rights holders.
Water that is not appropriated belongs to the public. The prior appropriation system in Colorado has been in effect since before statehood, and the Colorado Constitution, ratified in 1867, recognizes the prior appropriation doctrine. Colorado Methods of Practice, Article 16, Section 5 of the Colorado Constitution provides: "The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided."
The prior appropriation doctrine lets water users take water that is available from a common source, such as a stream or river, according to that person's seniority. If Colorado is in a drought year, senior users still can take all of the water they need, and do not have to reduce their water usage because of low supply.
Colorado has enacted statutes to implement the prior appropriation doctrine. The first statute was enacted in 1879, and the most recent statute, the Water Right Determination and Administration Act, was enacted in 1969. This act created seven water divisions based on Colorado's river-drainage patterns. There is a separate water court system in Colorado that governs water cases, with a water judge appointed by the Colorado Supreme Court, a water referee appointed by the water judge and a water clerk assigned by the district court.
Colorado's water judges have authority to determine water rights, the use of those water rights and all other water issues within the jurisdiction of their water divisions. Each division also is staffed by a division engineer appointed by the state engineer.
Under Colorado Supreme Court decisions, a user may appropriate tributary groundwater as well as surface water. All surface and underground water in Colorado is considered to be tributary to natural streams within Colorado. Waste water, precipitation, snowmelt, seepage, flood water, springs, mine water and ground water are all presumed to be tributary to a natural stream and are subject to appropriation. Thus, the general rule for many generations has been that all water coming from any of these sources was not to be collected, but rather allowed to flow into the nearest stream or river, making it subject to appropriation.
These sources of "gray water," or nonpotable water, could not be collected in buckets from the eaves of your roof, captured from the snowmelt down your drive, or drained into cisterns. In fact, harvesting precipitation in Colorado is not legal.
However, after hundreds of years, change is on the horizon. On Jan. 13, House Bill 1129 was introduced in the Colorado House of Representatives. The bill proposed a pilot program for 10 new residential or mixed-use development projects to collect precipitation from rooftops for nonpotable uses. The bill was amended and passed in the House on March 13. On April 23, it passed the Senate. And on June 2, Colorado Gov. Bill Ritter signed it into law.
The new law's goal is to evaluate our technical ability to really determine how much gray water ends up in Colorado's streams, to measure local precipitation patterns and groundwater flow information, to evaluate the collection of precipitation and to evaluate the point at which collection of precipitation harms others with prior water rights.
The Colorado Water Conservation Board will administer the pilot program, and will select applicants who apply to become part of the program. The total number of applicants accepted into the program initially is not that high, and is expected to average only one to three per year. The pilot program's life is effective through July 1, 2020.
While the new law does not allow all individuals to start harvesting rainwater from their rooftops to water their vegetable gardens, it is a step in that direction. Rainwater harvesting, which I imagine has been in practice since the beginning of civilization, once more may be allowed in the arid state of Colorado for all of us.
Marla Underell is a Durango lawyer. Reach her at 247-8236.