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.
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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.
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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.
