Who owns the rain?
In Colorado, you generally didn’t have any right to use the rain that fell on your property.
But that’s changing, as the New York Times explained in a recent article. Now some property owners will be able to use rain barrels legally.
Colorado’s water laws are arcane and complex, but there are two main principles: “beneficial use” and “prior appropriation.”
It’s the “prior appropriation” that became an issue with rainwater. There’s a detailed explanation here, and the quick way to explain is by a hypothetical example.
Suppose you live on the family ranch along Remote Creek. Your great-great-grandfather settled there in 1868 and began irrigating the hay field with a ditch he dug that taps Remote Creek.
And suppose I bought some land upstream in 1993, built a cabin, and started holding rain water in barrels.
A dry year comes along. Remote Creek isn’t carrying enough water to meet your needs, even though you have an 1868 water right. And here I am, capturing water upstream, a process I started in 1993. You could argue that I’m depriving you of water that is rightfully yours, since you’ve got a much older claim to the water.
That’s the legal theory. In practice, the connection is rather tenuous, since so much rainwater either evaporates or is consumed by vegetation in the distance between my water barrel and your field.
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