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Saturday, April 4, 2015

Coloradans may Soon be Able to Collect Water in Rain Barrels

The Colorado House of Representatives has passed a bill allowing Coloradans to collect water in rain barrels . . . with restrictions of course.  HB 15‑1259 Residential Precipitation Collection Rain Barrels.


Colorado’s unique system of water rights is called a “prior appropriation” or “first-in-time, first-in-right” system.  Whoever first takes water from a stream (or aquifer) and puts that water to some beneficial use has the first right to that amount of water from that particular stream system.  Prior appropriation means that the owner of that first right must be satisfied before anyone else can take water from the stream system.

                For example, if a farmer was the first to take water from a stream in Jefferson County in 1850 and used that water for irrigation, his heirs still own the farmer’s right to the quantity of water the farmer took from the stream.  If a ski resort now wants to take water to make snow they have to honor the farmer’s right.  Even if the ski resort is upstream of the farm, on a river the stream feeds into, the resort cannot take so much water that the farmer’s water right is impeded.

Water rights apply to stream systems as a whole, including all stream and rivers that empty into or flow from the stream in question.  CRS 37-82-101  Waters of natural surface streams subject to appropriation.

                At this point in time all, or nearly all, of the water in Colorado is already appropriated, so if an energy company wants water for energy development, it must buy water rights from a current possessor.  Thus, the farmer’s heirs’ could sell their rights, or a portion thereof, to an energy company.  The energy company would then own a right to the amount of water it purchased with a priority date of 1850.  The energy company now has the first right to the water.

                Prior appropriations affect rainwater harvesting because all water that is appropriated originally fell from the sky as rain or snow.  Even water in an aquifer originally fell as precipitation.  If, rather than buying rights from the farmer’s heirs, the energy company collects rainwater for its own use, that collection would deprive the heirs of their first-in-time right to the same water.  Such illegal collection of rainwater would subject the energy company to civil fines and penalties.

                Keep in mind, however, that everyone is entitled to the rain and snow that falls on their property, as long as the precipitation percolates into the ground.  Under the prior appropriation system, rainwater that falls on a roof can run off and irrigate the property in real time, but it cannot be collected.


On March 23, 2015, the Colorado House passed a bill allowing rain water from a residential roof to be collected for future use.  HB 15‑1259.  Of course, there are restrictions:  A residential property of four or fewer units may have no more than two 110 gallon barrels and the water can only be used for outdoor purposes.

So, this bill really only allows temporary storage of water.  The water must eventually end up in the same place it would have been if not collected.

But, if it passes the Senate and doesn’t get thrown out in court, it’s a start.