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Law Offices of Ronald W. Rutz
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May 10, 2003: Water Storage Issues

During the years of writing this column, I have always responded to readers' questions. This time I thought I would ask the questions. I did run the following series of water law questions past five water attorneys for their input. Of course, I received 4 different responses on what the law is. But the following will give you perhaps a broader insight into what you previously might have read or heard about.

Q: Can I catch and use rain water such as putting a tub on my roof or barrels under the roof's drain spouts?

A: There are two distinct and vigorously expressed schools of thought. One says absolutely not. The sheet of water subject to our prior appropriation system includes any water the moment it touches anything that is on the surface of the earth (some extend the concept to the atmosphere).

Others hold that there is a long history and Supreme Court cases that permit the taking of water from intermittent sources and cite examples including landowners catching rainwater in ravines.

So if you want to spread a plastic sheet to turn your yard into one big catching mechanism, it is your call (although you would probably kill at least some of the vegetation under the tarp anyway). Chances are that the State Engineer will look the other way, even if the state of Colorado takes the position that you would be intercepting another's water.

Q: What about putting a tub in your shower, catching the water, and then reusing the water to irrigate trees, shrubs, etc?

A: Now if your water provider issues rules prohibiting this kind of activity, then no reuse is permitted. And there is an old legal maxim that "once the water starts running down the row," it is part of the water sheet and there is no right to prevent it from rejoining the drainage system.

But there is another maxim that as long as control of the water's movement is maintained, then the water can still be used. Thus, some farmers have catch ponds at the end of their fields where water is collected and pumped back up to the head of the field for reuse (a practice that at least one water attorney vigorously contends is illegal).

And to make things even more murky, "foreign water" (water transferred from one water basin to another) may be reused. Thus, Fort Collins' water supply is made up of domestic water (water generated in the South Platte Basin) and foreign water (water from the Colorado River Basin and a small part from the North Platte River Basin). But here's the rub (while you are showering in your tub), Fort Collins' water supply contains Northern Colorado Water Conservancy water, which even though "foreign water," by Board action cannot be reused. Otherwise, places like Julesburg would never get any water. So there is no legal right to reuse the part consisting of Big-T water, but in theory there probably is the right to use the part consisting of North Platte Basin water and maybe the part made up of domestic water, but only if the water provider says its alright.

Notwithstanding the politically correct position, and at the same time acknowledging the environmental concerns about reducing overall water consumption especially during a drought, while ignoring the fact that some of us are charged for water according to how much we use, from a purely water law perspective, running water, such as while shaving or flushing toilets, may not be a waste because that water flows back into the system and becomes the "source" for another's water right. Unlike the east coast or the west coast where water is used once or possibly twice before flowing into the ocean, Colorado water (in the Northeast part of the state) is used from six to more than 10 times (depending on whose figures are cited) before flowing out of the state. Thus cities cutting back on wastewater discharged, along with the effects of a drought, impacts agricultural exponentially. The latter point is often overlooked but sheds light on the deep impact that a drought has on the availability of water for agriculture.

Q: So will Colorado ever not have a water shortage?

A: If you mean supplying everyone who wants to use water, conservation and storage will help to maintain the status quo for a short while. But agriculture uses up to 87% of all the water in the state. So there is more than enough water to support urban areas. But agriculture as we know it will change. The real question is at what level should we maintain irrigated agriculture using surface supplies.

Darn! Running out of space. I am just too wordy at times. Bottom line is that here is no easy answer, at least in water law. For every "rule," a good lawyer can come up with at least one spin "rule" to muddy the waters.

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