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
If I un derstood the article well, I think the local authorities are responsible about the rainwater they collect as they will be reusing or reselling it afterwards, but everybody should be free to collect the rain water they have access to. In the global situation we cannot afford contradictory strategies and water is essential
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As my rain water runs down stream it is the responsibility of the city, county, district sewers to manage the water in a storm. The sale of water should have considered maintenance. As far as Colorado State law be free to retain as much rain water as an itty bitty residential property owner can because the amount collected is negligible. First person to get a ‘ticket’ is the first person yet to fight in court for a rain barrel. I thought that was the point of the keep our ground water clean campaign and the reason no one should be paying storm water tax. My utility company is already charging me for waste.
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 (who created a legal obligation to deliver every drop downstream? Let Pueblo County deal with its flooding by working up stream and state stream to fund storm water issues and request more money from the down stream rights to elevate all the issues. I like the spot light on the issue of an obligation and needs to re-negotiation if nature hurts the delivery of the water to who thinks they own it.
I’m reading Joel Salatin’s excellent book “Folks, This Ain’t Normal” and to my shocked delight, in his chapter titled Grasping For Water, he wrote, on page 177 “Perhaps no state has a more wrongheaded, antiwater environment than Colorado. According to official Colorado govt idiocy, if you impound water [via rain barrels, cisterns etc] you’re hoarding a public resource.” He elaborates, which I won’t here.
Seth – please comment.. Also, please write an article for publication in the Gazette and let’s get the ball rolling on undoing this wrongheaded water law.
The problem comes from the courts, which have ruled that whereas the state Constitution says “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 courts have ruled that rain and snowfall are “tributary” to streams even before the precipitation strikes the ground. This fiction is of course in support of prior appropriators and appears to violate the plain language of the Constitution and several Supreme Court cases.
For example there is this: There is presumption that all water is tributary to some natural stream. Whitten v. Coit, 153 Colo. 157, 385 P.2d 131 (1963).
The natural presumption is that all flowing water finds its way to a stream. Cresson Consol. Gold Mining & Milling Co. v. Whitten, 139 Colo. 273, 338 P.2d 278 (1959).
But that presumption is prima facie only and is therefore rebuttable. Whitten v. Coit, 153 Colo. 157, 385 P.2d 131 (1963).
But appropriation applies only to water in natural streams. This and the following section recognize the doctrine of appropriation as applicable only to the water in “natural streams”. Whitten v. Coit, 153 Colo. 157, 385 P.2d 131 (1963).
These two cases do not specifically address rainfall, but the term “flowing water” and the use of “natural streams” would logically seem to limit the water subject to appropriation and owned by the public to that water which actually makes it to a natural stream, a term that is broadly construed. But it’s hard to see how it can be so broadly construed as to apply to precipitation that never in fact touches the ground which falls on a person’s roof and flows into a rain barrel.
Another important consideration is the law of airspace, which says that the owner of the surface owns the space above the surface, subject to the right of the flight of aircraft. Presumably then he owns and may make use of the air and moisture in the air above his property. This is true for example when it comes to wind power. The owner of the surface has the exclusive right to build structures to intercept the blowing wind, or for that matter the power of flowing water caused by gravity, as in a hydropower installation.
Therefore, it’s hard to see how the courts can continue to countenance this obvious fraud of the state claiming ownership of the moisture in the air, the falling precipitation, or any water falling from the air that does not strike the ground or actually end up flowing in a stream.
As I said, current research claims that only 3 percent of the precipitation that falls actually ends up in a stream, the rest being absorbed into the ground and used by plants and transpoevaporated back into the atmosphere long before it gets to a “natural stream.”
But the false presumption that rules today is that 100 percent of the moisture in the air which eventually condenses and falls to the surface is “tributary” to some stream and therefore may not be collected and used by the owner of the property upon which it falls, even though quite obviously the vast majority of rainfall falls on crops and vegetation and is consumed by the plants and recirculated back into the atmosphere.
This is a dichotomy in the law that needs to be corrected, and if the legislature won’t do it (and it won’t, for obvious political reasons) then the People need to petition an amendment to the Constitution that allows an individual to collect and use all precipitation that falls not on the ground but upon an impermeable surface such as a roof and never becomes “tributary” to any water right by virtue of never touching the surface of the earth.
You said: …the People need to petition an amendment to the Constitution that allows an individual to collect and use all precipitation that falls not on the ground but upon an impermeable surface such as a roof and never becomes “tributary” to any water right by virtue of never touching the surface of the earth.
How about YOU writing an editorial and yet more editorials and get the public stirred up to revoke this idiocacy.
I read that by 2030 water demand in Colorado will exceed supply by
40%. This means that water barrels and cisterns will be needed to provide water to Colorado homes.
It is time for the people in the state to realize how ridiculous it is to keep people from having rain barrels or cisterns to keep rain water for the garden and the yard. It eventually all goes to the drain, or in the ground, or into the air. What a fiction to think that someone downstream has a legal title to water falling from the sky. It might be the law here, but it is ridiculous and needs to be reviewed in the light of current science and beliefs.
Then apply the current scientific link of rising West Nile virus to standing (in this case, hoarded) water.
Ahh yes, wait till you get hit with SWPP’s and BMP’s and PM10′s, ad nausea. You will pay through your nose for others to control. I don’t disagree with the need for SMART controls, but what we got now in the Republic of Ca. is the definition of insanity.
I question whether the volume of water flowing down Fountain Creek is greater or more intense now than it was in the 1860′s. Only when the publicity-seeking District Attorney in Pueblo convinces me that the problem has been exacerbated with population growth during the past 150 or so years will he make his case against Colorado Springs “abuses”.
In his memoirs (Memories of a Lifetime in the Pikes Peak Region), Irving Howbert stated that one flood during pioneer times left a mass of water from Bear Creek where it flows in to Fountain Creek half-a-mile wide. Survivors had to cling to heights in the Cottonwood trees. Similarly the Monument Creek flood of 1935 pretty much wiped out downtown Pueblo, including the rail yards. But there were no politically ambitious District Attorneys present back then to decry Colorado Springs’ storm waters. Score one point for the mythical “Good Old Days”.
Curt Neeley, Native-Born Colorado Springs-an American
Water Rights 101 -This opinion piece ignores three things:
Groundwater (natural aquifer recharge) which is owned by the city. Whether it springs back into surface streams or stays in underground reservoirs, I doubt that was factored into your 3 percent citation. Retention dams are designed to allow everday runoff but impede destructive storm events and help recharge groundwater. But unless you have a grandfathered well, your rain barrels, roofs and driveways are stealing water from the city.
Pollution and contamination of both groundwater and runoff: Urban sources are mostly domestic pets, pesticides and lawn fertilizer in much higher concentration than farm and grazing land. You can be held liable for enormous DAILY EPA fines once the point source is located on your property.
Finally, the difference between surface/ground water as a resource compared to flood water as a liability. While you may not own the water, whatever debris you lose in major storms causes snags, washouts and diversions downstream. You can be held liable for property damage downstream, same as when you neglect a dead tree and it falls on your neighbor’s garage.
An ounce of fees (prevention) is worth more than a ton of fines.
Rain barrels are legal only in rural areas, not within city limits. You are quoting Seth’s NY Times propaganda article but neither of you read it thoroughly. And they are only legal if your agricultural acreage has an existing well. The 2009 law was a clarification that it’s all the landowners’ water regardless if it’s captured above ground or percolated into their wells. With his rural cattle operations, Seth Richardson cannot equate stock ponds and watering troughs and groundwater rights to city rain barrels and urban aquifers.
Betcha you & Seth don’t own the mineral rights under your feet, either.
Well stated, Seth.
I would not mind paying for stormwater mitigation if the water were mine. I would capture some and use it for irrigation of my own yard instead of paying to drain it out (stormwater) and then pump it back (utility water).
A few years ago, we all conserved water at the request of utilities. The result was that utility revenue dropped so they raised the rates.
Our government is not in the business of protecting our property. It is in the business of consuming our property. It does so with divisive, conflicting laws such as these or Obamacare.
This is just another example of government property consumption destroying the American dream.
Even if we fight this in court, we the taxpayers will pay for BOTH sides of the fight. The only winner is government.
The losers are liberty and justice. Both have fled this country for lands unknown.
Ah, yes…another tax stamp mandated by the Cleptocracy!