Rain collects on a downtown sidewalk during a recent afternoon shower. Now, after much ado, state residents will be able to legally collect the rain that falls on their property to be used for landscaping purposes. One concern about the new rain law was that it would take away water from water rights holders, but that belief was debunked by a recent CSU study./Photo by Jennaye Derge

Let it rain

Law allowing for rain barrels goes into effect Aug. 10

by Tracy Chamberlin

It took years for lawmakers to negotiate. Their
debates over who owned the raindrops falling from the sky often topped the headlines, all the while bewildering residents, who wondered if that was really a question at all.

When the law finally did pass, Colorado Gov. John Hickenlooper held a special ceremony where he signed both the bill and a now-famous rain barrel, just to make a point.

After all the pomp and circumstance, though, the controversial rain barrel law goes into effect Aug. 10 with little fanfare.

No one in Durango is planning any special ceremonies or rebate specials, and local stores aren’t anticipating a run on rain barrels. It seems many of the people who use them already have them.

Before HB-1005 passed the State Legislature this spring, Colorado residents could have been fined $500 for using a rain barrel. It wasn’t something law enforcement actively enforced, and those who did have them just kept them out of sight.

With the new rain barrel law, though, they can now come out of the shadows.

The new law allows for two rain barrels with a combined storage capacity of 110 gallons per household. The collected precipitation, as it’s often called, cannot be used for drinking or anything inside the home, like washing dishes or flushing the toilet.

It’s supposed to be for outdoor purposes only – things like watering the lawn or the garden.

One Durango resident who purchased a rain barrel this spring for just that reason is Michelle Fletcher.

The Durango West resident said she doesn’t use it to water her lawn, only the garden and a few flowers she has in the back yard.

“We’re on water restrictions a lot where I live,” she said. In fact, she added, this is the first summer in years they haven’t had water restrictions.

The rain barrel is a way to keep the garden growing during those lean times. For Fletcher, like many others, it’s about water conservation.

“I hope it catches on,” she said. “I think it’s a great idea.”

Water conservation is the primary point supporters of the rain barrel legislation used during negotiations over the bill.

With drought becoming commonplace and the Centennial State’s population increasing every year, most discussions about the future of water in the West begin and end with conservation. It’s also a major component of the Colorado Water Plan, which was released at the end of last year.

So when talks turned to trapping rain to use in the garden, instead of turning on the spigot, it seemed like common sense to many residents.

But trapping the rain water and not allowing it to flow downstream was actually the specific problem for opponents of the law. And it was the reason it didn’t pass during the 2015 legislative session.

At the heart of the controversy was a tenet of Colorado water law called “prior appropriation.”

Essentially, it means the first person to take the water is the person who owns the water. It doesn’t matter whether it comes from a lake, river or underground. It doesn’t even matter who lives closest to the water in question. The first time someone in Colorado used the water, they also laid first claim to it.

The concern with rain barrels was that if the law allowed someone to catch the rain, instead of letting it fall to the ground and run into streams, rivers and underground aquifers, then the people who had water rights in those streams, rivers and aquifers wouldn’t get the water they owned.

Even more concerning was that the law wouldn’t just allow someone to take the water before it got downstream, it could potentially put a dent in the armor of prior appropriation.

Several amendments were added to the bill to ease those concerns, including language that reads “the use of a rain barrel does not constitute a water right.”

Another one of the differences between last year’s bill and this year’s was a study conducted by Colorado State University.

Researchers there looked at the effects rain barrels would have on surface water runoff and found no evidence that the amount of surface runoff heading downstream would decrease if Colorado residents started using rain barrels.

As an extra layer of protection, an amendment was added to require future studies. The law reads that by March 1, 2019, and again three years later, the state engineer will report to lawmakers on “whether the allowance of small-scale residential precipitation collection … has caused any discernible injury to downstream water rights.” It also gives the state engineer the right to “curtail rain barrel usage.”

Local representatives from Southwest Colorado, including Sen. Ellen Roberts (R-Durango) and Rep. J Paul Brown (R-Cortez), supported the bill. It passed overwhelmingly in the House, 61-3, and the Senate, 27-6.

The law does have a lot of specifics. In order to break it all down, the CSU Extension office distributed a fact sheet addressing many of the questions.

For example, the collected rainwater can’t be used to fill a hot tub, but it can be used to water the garden.

When it comes to some of the questions about allowing dogs to drink the water or wondering if it’s acceptable to wash the windows, the fact sheet suggests people might be getting a little too caught up in the details.

“There are endless scenarios that are both humorous and pedantic,” the fact sheet reads. “The basics of rainwater collection in Colorado are that it may be collected and used for lawns, gardens and landscapes.”

But, apparently, washing the car in the driveway is OK, too.