Stormwater control is necessary, but who should pay for it?
By Seth Richardson
On June 6th, an epic thunderstorm squatted ominously over Colorado Springs and dumped more than four inches of rain and hail in a few hours in places, causing localized flooding and lakes of hail four feet deep near the Citadel Mall. The flooding reignited the controversy over Colorado Springs’ obligation to control storm water flows, with threats coming in from Pueblo County to revoke the SDS pipeline permit if more is not done to control overabundant flows in Fountain Creek. “Stormwater is not being captured and is going into Fountain Creek at an alarming rate,” Pueblo County Attorney Dan Kogovsek said a day later.
Colorado Springs agreed to do more to control storm water flows as a part of the permit it obtained from Pueblo County to build the SDS pipeline. But the question is not just what ought to be done and who must pay for it, but whether that agreement is even legal and binding, given the nature of Colorado water law.
In Monday’s Gazette, editorial page contributor Terence Fraser hits the conundrum and inequity of the “storm water tax” directly on the head when he says “Whoever owns the [storm]water should be responsible for managing their property…isn’t that property rights 101?” Yes, it is. or at least it should be.
Colorado’s water law is exceedingly complex but what is absolutely clear is that every drop of rain that falls on the ground is owned by someone, and it’s not often the person who owns the ground it falls upon. The doctrine of Prior Appropriation means that the first person to divert water from a natural stream and put it to beneficial use owns not just that water, but the right to divert that amount of water each and every year forever, so long as it’s put to beneficial use. This “first in time, first in right” doctrine controls what anyone else may do that might interfere with the delivery of that water to its rightful owner at the point in the river that it’s been historically diverted. Those restrictions include doing anything on your land that interferes with, interrupts, slows or in any way diminishes the flow of rainwater or snow melt downhill into a stream or river and from there through the network of rivers and streams to the rightful owner.
This is why it’s illegal to put a rainbarrel under your rain gutters and collect the water flowing off your roof for use on your vegetable garden. According to the law, it’s not your water to store or use. You can’t even design your landscaping to retain that water on your lawn, even though science has proven that little more than than three percent of the rainfall and snowmelt actually reaches a natural river or stream in an average year. The vast majority of rainfall is absorbed by the ground and used by vegetation and is transpired back into the atmosphere by plants and evaporation long before it makes it to a river.
But the Colorado Supreme Court has long guarded the rights of senior water owners by using an expansive definition of “natural stream” and by making the demonstrably false presumption that all rainfall that hits the ground ultimately makes it to the river. If the Court were to consistently apply this ridiculous logic, then anyone who was not a senior appropriator would be required to pave over their property and allow every drop of rainfall to flow into the river in order to serve the legal and financial interests of the true owners of that water.
The irony of the situation as it applies to Colorado Springs is that this is exactly what has happened. As houses are built and roads are paved, the amount of rain that used to soak into the ground that never reached the river has increased massively, and now the taxpayers are on the hook to do exactly what they are forbidden to do on an individual basis…store and control the flow of excess natural rainfall that’s theoretically (but not in fact) on its way to its rightful owners downstream. Storm water flows from urban areas and suburban rooftops are actually a huge and artificial net increase in the “natural” delivery of rainwater to rivers to which the prior appropriators are actually entitled, something the Court has not considered in its rulings.
You, as an individual, cannot legally capture rainwater or even delay its travel to the river under one set of laws, yet Colorado Springs the city, which is nothing more than the people who reside here considered as a group, is required by another set of laws to both slow, diminish and control that flow of rainfall and pay for the infrastructure to do so. This makes no sense at all unless you completely ignore the state constitutional requirement that forbids doing precisely that because it interferes with the flow of rainwater to its rightful owners.
Colorado Springs should take this opportunity to challenge this inequity and hypocrisy in the law by refusing to control maximum storm water flows in Fountain Creek at all, and it should argue that because the Supreme Court has ruled that all rainfall belongs to senior appropriators and that such rainfall may not be diverted or interrupted, that Colorado Springs has no duty or obligation, and is in fact legally forbidden to interfere with such flows of water, lest it diminish the amount of water eventually reaching its owners downstream.
Instead of taxing the public to pay for controlling flows in Fountain Creek for the benefit of Pueblo County or anyone else downstream, Colorado Springs should only tax residents to pay for efficient storm water delivery into Fountain Creek, to prevent damage to property in Colorado Springs and to meet its legal obligation to deliver every drop it can of that privately-owned rainfall to its owners downstream. Let Pueblo County deal with its own flooding issues and meet its own obligations to deliver the water to who owns it.
And both Colorado Springs and Pueblo should send a bill for the costs of delivering that water to the people who own the water, not to the residents of the city.
Perhaps this will persuade the Colorado Supreme Court, and the State Legislature to bring some sanity and consistency to Colorado water law and apportion the costs of delivering rainfall to its owners properly, rather than shifting the burden to urban taxpayers.
© 2012 Altnews