Commentary and Analysis Regarding Colorado Law

Water rights in Colorado are prioritized and administered based on the year of their decree and date of appropriation. The oldest decreed water rights are most senior and are entitled to divert their decreed flow rate when water is in short supply. If there is not enough water in the stream at their diversion point, they can place a call for the delivery of water against junior water users to satisfy their full demand. The State Engineer and Division Engineers can also shut down water diversions that cannot be adequately administered to protect other water users.

In many parts of Colorado, the streams have been over-appropriated for 100 years or more at certain times of the year, and calls for water rights may be as senior as the 1860s. Water rights on the main stem of the Yampa River had never been called out until 2018. It happened again in 2020. Those highly publicized calls were placed to protect water rights decreed in 1951 through 1963 near Dinosaur National Monument. The calls lasted about 23 days in 2018 and only ten days in 2020, assuming the early September snowstorm puts an end to calls this year. Those calls would have lasted longer if it had not been for tremendous cooperation between the water users, Division Engineer, Tri-State, Colorado Water Trust, and the Colorado River District.

Recently, the City of Aurora entered into a contract to purchase 119 shares in the Whitney Irrigation Company from BCI Waterco, LLC, an affiliate of the Broe Companies. Some are concerned that this purchase signals a renewal of water raids from the Denver metro area into northern Colorado water supplies. However, the Denver metro area water needs are on a scale that water providers want to purchase and assemble large blocks of water.

It is not efficient or economical for metropolitan water providers to purchase small amounts of water and then transport that water to the south. Economies of scale discourage such patchwork purchases where options to make a single purchase of a larger quantity of water exist. The Aurora purchase is for shares with an already quantified historic consumptive use of 1,629 acre feet for a purchase price of more than twenty-six million dollars. The shares historically irrigated approximately 1,100 acres.

According to http://www.treehugger.com, the UK calls rain barrels “water butts”. I was suspicious, but when I “Googled” water butts, a whole list of sites for rain barrels came up, so yes, rain barrels are really called water butts in the UK. The reason for this article is that until recently, rain barrels were illegal in Colorado. In Wisconsin where I grew up, my grandmother had rain barrels and used the water for flower boxes and also to wash her hair. She said it made her hair soft and slowed down the process of going gray. As I remember her now, she could have been right.

The Colorado Division of Water Resources website tells us that the State of Colorado claims the right to all rain that falls within the state. That is why rain barrels were illegal in Colorado until August 10, 2016. Practically speaking, there was concern that the collection of rain water would have an adverse effect on owners of senior water rights by taking too much water out of the natural water cycle. In 2009, there was Senate Bill 09-080, which allowed the use of rain barrels in limited circumstances, but it wasn’t until this year that the use of rain barrels or “rooftop precipitation collection” systems were made legal for most of homeowners in Colorado.