Colorado Water Rights and Temporary Detention of Direct Flow Rights

by EVstudio AEP on April 27, 2010

I recently wrote about Senate Bill 09-080 which allows rainwater harvesting for those on residential property who only have access to water through well. John Olson of EVstudio raised a great question about a 72 hour law in “which rainwater can be captured and dispersed as long as the water is not contained for 72 hours?”

In order to properly answer this question, some background is in warranted.

In Colorado there are two types of water rights. The first is called direct flow. This is generally measured as a rate of flow such as 1.0 cubic feet per second. This means that the appropriator (right holder) is allowed to take one cubic foot of water per second. They may do this so long as they have a beneficial use and the water is physically available in priority. That is, if there is a senior water rights holder, they can demand, or “call” the water before a junior rights holder can divert it.

The second type of water right is a storage water right. This means that the right holder can store a certain amount of water each year, to be used at a later time, for a beneficial use. However, there are times when there is a limit to how fast that water may be appropriated to be stored. For example, I may have a right to store 500 acre feet of water in my reservoir. I may only have a right to fill my reservoir at a rate of  2.0 c.f.s.

You may have noticed that I have used the term beneficial use twice. A beneficial use is generally regarded as: domestic and municipal use, mining, irrigation, stock watering, industrial application and other non-wasteful economic activities. That sounds quite broad. However, the rub is that an applicant who wants to put water to a beneficial use must demonstrate that unappropriated water is available. Since water rights in Colorado go back to at least the mid 1800’s there is no water left to appropriate. In all reality, the water here is likely over appropriated.

Therein lays the problem. Since the water is already appropriated a user can’t legally take water out of the system without the rights to do so. One-hundred percent for the rainwater someone harvests to water their petunia garden is actually already owned by someone else!

To answer John’s question, as I understand it, the only way to capture rainwater for up to 72 hours is if someone is already a direct flow rights owner and has a beneficial use.  Even that has a limitation. The water can only be detained if it affords a more efficient or effective beneficial use of the water.

With all of that said, it may change. Check back for my next post about water rights.


{ 1 comment… read it below or add one }

John Olson April 27, 2010 at 1:59 pm

Thanks Anthony! So, we can not detain the water unless we have the water rights to do so, which very few homeowners have. The good news is that we can re-direct the water toward plant material rather than simply sending it to the adjacent property in a concrete swale.

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