Colorado outlaws rain barrels. Can the ban be lifted?

Details: Category: Water; Published on Sunday, 28 February 2016 17:33

Marianne Goodland
The Colorado Independent
February 24, 2016

Put a bucket under your downspout and collect rain running off your roof to water your garden. You’re an outlaw in Colorado.

Critics have lambasted the state for barring this quaint eco-friendly, urban-farming technique, but to rural Coloradans devoted to prior appropriation, the water rule that the first person to take water secures rights to it into the future, rainwater harvesting should be banned.

While this square state is one of 19 governing water with a prior appropriation doctrine, we’re the only one to ban rainwater collection.

James Eklund, director of the Colorado Water Conservation Board, doesn’t see harm in the practice. He’s the brains behind Colorado’s state water plan, Gov. John Hickenlooper’s strategy for avoiding a massive water shortage by 2050.

The water plan pushes the state to take a leading role in water usage and conservation, something the anti-rain barrel ban makes a mockery of, as the law’s critics see it.

Last year, an attempt to rid the state of the ban was stalled and eventually defeated by Sen. Jerry Sonnenberg, a Sterling Republican who said the changing the law would undermine first-come first-serve water rights for farmers and ranchers in his district.

Rainwater, as proponents of prior appropriation see it, is included under the first-come-first-serve doctrine. Even urban runoff replenishes streams, rivers and aquifers, they say.

For the second time in two years, lawmakers are trying to undo the ban, saying a rigid interpretation of Colorado water laws shouldn’t get in the way of much needed water conservation. Democratic Reps. Jessie Danielson of Wheat Ridge and Daneya Esgar of Pueblo took a bill to strike the law to the House Agriculture, Livestock and Natural Resources committee Monday for a first hearing.

Danielson and Esgar brought witnesses to the hearing who championed the bill, saying rainwater would be put to good use in the state’s suburbs and cities. Rainwater harvesting would educate Coloradans about water scarcity and conservation, said the bill’s defenders.

Drew Beckwith of Western Resource Advocates said rain barrels would help inform the public about water issues.

“It makes visible what is invisible,” Beckwith said.

Ag committee member Rep. Jon Becker said the new bill’s proponents had not addressed farmers and ranchers’ concerns that allowing rain barrels would undermine prior appropriation and deprive rural communities of much needed water for livestock and crops.

Last fall, Colorado State University’s centers on stormwater and urban water studied the impact of rainwater collection. In an average rainfall, about 8,000 gallons of water fall on a lot with a home, according to the study. A rain barrel would collect roughly 55 gallons. The new bill would allow up to two rain barrels per household. Uncaptured rainfall would evaporate or run off into underground drainage systems, back to rivers and creeks, and to downstream ranchers, farmers and towns.

The CSU study concluded that the impact of collecting rainwater on downstream users would be minimal, according to the presentation made to the committee.

The bill directs those who collect rainwater to use it to water lawns and gardens, and not for drinking.

Currently, most Coloradans who water their lawns use treated drinking water instead of runoff. That makes no sense, said water board head Eklund to the committee.

Farmer Jim Yahn of Sterling, who says he and fellow farmers and ranchers measure every drop of water to make sure they’re not ripped off, didn’t buy Eklund’s arguments.

“We’re not anti-rain barrel,” Yahn told the committee. “We’re against the misuse of the prior appropriation system.”

Yahn pointed out that “wet” years with above-average rainfall are unusual, and he fears he won’t have enough water in the more normal, dry years.

“You either believe in prior appropriation or you let water go” outside of the priority system, Yahn said.

There’s no recourse in the bill for those who say they would lose water from rainwater harvesting. If someone in the priority system wants to argue they have less water because of rain barrels, they’d have to figure out the specific person who took more than their share and seek redress with the state water courts. Doing so would be impossible, Sonnenberg told The Independent.

The bill offers no means for ensuring rain water collectors are accountable to water law, Sonnenberg said Tuesday, and he expects it to be amended to address that issue.

Currently, water courts rule on such issues; however, the process is too costly for the average Coloradan. Sonnenberg said the state water engineer could be given that task of investigating rain water barrel users abusing their rights.

Becker asked the sponsors to consider some way to replace water collected by rain barrel users, an idea that was floated in the interim Water Resource Review Committee last summer. He also asked that the bill be amended to halt rainwater collection when there are calls on the rivers. A call occurs when people with more water rights have less than they are entitled to and take water from those with fewer rights.

Even fellow Republicans didn’t support Becker’s amendment, saying it was unenforceable.

Danielson and Esgar said they worked with water rights holders to create a bill that would honor prior appropriation and still allow rainwater collection. Danielson cited her ag family’s dependence on first-come-first-serve water rights as a reason the bill would not undermine prior appropriation.

Environmentalists cheered as the bill passed, 10-2, with three Republicans backing it. That included Rep. Lori Saine of Firestone, whose constituents have battled flooded basements and fields for the last several years. Next, the House will debate the bill, where it will likely pass.

The big question is whether the bill will be able to clear the Senate Agriculture, Natural Resources and Energy Committee, a Republican-majority committee led by Sonnenberg, who opposed the bill last year.

Sonnenberg told The Independent his support hinges on amendments that reinforce prior appropriation doctrine.

To appease him, Danielson and Esgar secured an amendment to put language supporting first-come-first-serve water rights into the bill’s statement of intent.

Conservation Colorado called the ban on rain barrels antiquated and said the bill would help connect Coloradans to their water use.

The public supports rain barrels, the group said in a statement, so opponents “must move out of the way and recognize that Coloradans want to use rain barrels…”

In cheering the bill’s passage, Esgar noted that people can shovel snow off their sidewalks and put the snow onto their lawns.

If you can do that, she said, “Why can’t you collect rainwater and put it on your garden?”

Marianne Goodland has been a political journalist since 1998. She covered the state capitol for the Silver & Gold Record from 1998 to 2009 and for The Colorado Statesman in 2010-11 and 2013-14. Since 2010 she also has covered the General Assembly for newspapers in northeastern Colorado. She was recognized with awards from the Colorado Press Association for feature writing and informational graphics for her work with the Statesman in 2012. She currently writes for the The Colorado Independent, where this article first appeared. Used with permission from the publisher.