From the Colorado Independent (Marianne Goodland):

Colorado is the only state in the country that outlaws rainwater collection, a popular conservation technique among urban farmers and gardeners that has some rural farmers and ranchers worried cityfolk would violate first-come-first-serve water rights.

A new bill that would allow Coloradans to collect rainwater runoff from their roofs and protect downstream senior water-users rights is coursing its way through the state Capitol.

Leading negotiations between urban and rural water users: Republican Rep. Jon Becker of Fort Morgan.
Under the 2016 bill, residents could collect rainwater in no more than two 50-gallon rain barrels. The state engineer would be responsible for providing information on the appropriate use of rain barrels, and under a Becker-sponsored amendment, would ban rainwater harvesting in years when there’s not enough to go around.

Becker has opposed rainwater harvesting in the past, twice last year, and once this session, when an earlier version of the bill went through the House Agriculture, Livestock and Natural Resources Committee.

Most Republicans at the Capitol have opposed the bill in the past. Were rain barrels to become popular, opponents worry benevolent city slickers would suck up water farmers and ranchers need for their livelihood.

[First in time, First in right] water rights, called prior appropriation, are the backbone of Colorado water law. The first person to use a water source secures the rights. Farmers, ranchers and municipal water providers often have first dibs on water that comes from rivers, streams and ditches.

Senior water rights holders worry that during droughts, which Colorado experiences regularly, there would be no way to enforce restrictions on rain water harvesting and that urban dwellers would abuse their rights.

Rainwater harvesting enthusiasts and environmental groups say the practice will help educate urban and suburban Coloradans about the importance of conservation and where their water comes from. This is a compelling argument to rural water users who complain city dwellers are clueless about where their water comes from and fail to understand how precious every drop is.

Collecting rainwater would have a minimal impact, if any, on water rights, according to a recent study from Colorado State University that proponents have used to show the practice would not impact senior water-rights holders.

The Ag Committee amended the rain barrel bill, House Bill 16-1005, to declare water a property right. Under the amendment, the use of rain barrels would be subject to the prior appropriation doctrine. But the declaration doesn’t have the force of law and did not outline how disputes would be addressed, abuses curbed and rules enforced.

Becker and several other committee Republicans still weren’t convinced, and voted against the bill.
After a week of negotiations between Becker and the measure’s sponsors, the bill was ready for the full House debate last week.

“Is there an appropriate path for an injured party to go through in order to curtail the use of rain barrels?” Becker asked the House, suggesting an amendment to clarify that the state engineer could ban rainwater collection when a downstream user with senior rights didn’t have the water they were entitled to. That authority is granted under a 1963 law intended to address a shortage issue when wells pump out too much water. Becker said rain barrels should apply to this rule, too.

Becker’s amendment also asked the state engineer to keep a close eye on rain barrel use. Under the amendment, the state engineer would report back to the House and Senate ag committees on whether rain collection has violated water rights, based on complaints, rainwater collection pilots or any other data. But that report wouldn’t be due until 2022.

Proving that collecting rainwater in a barrel hurts downstream users isn’t so easy and that concern is sure to be a stumbling block when the bill reaches the Republican-controlled Senate. Still, Becker’s amendment was enough to eliminate much of the Republican opposition to the measure.

“It’s a responsible way to look at rain barrels,” Becker told the House. His efforts didn’t go unnoticed. The bill’s Democratic sponsors and House Majority Leader Crisanta Duran of Denver all applauded Becker’s work on the bill, which gives it a better chance of surviving the Senate.
As amended, the bill garnered support from 16 more House Republicans than a year ago, including Becker, and it passed the House almost unanimously, 61-3.

Here’s a guest column from Samantha Fox running in the Loveland Reporter-Herald:

Rain barrels are in the news again in Colorado, the only state in the U.S. where collection of rainwater is illegal. House Bill 1005, now with the Senate, is an attempt to change that; a similar bill was defeated last year.

Many people react strongly to this debate with a question: why is rainwater capture, a strategy that seems aligned with a water conservation ethic, illegal in a dry state that needs to conserve water?

Others answer just as strongly that the longstanding and tightly managed “prior appropriation” system of Western water rights must be protected. Once the spigot on rain barrels has been opened, can it be turned back off if water rights owners are affected?

Those two poles sum up most of the discourse around rain barrels, but it need not be a polarizing issue. Here are some of the nuances being carefully considered behind the scenes:

• Rainwater harvesting has actually been legal on a limited basis in Colorado since 2009 — those who can’t connect to a municipal system qualify. How many people are operating in this capacity? Has there been evidence of injury to water rights from this law?

• In urban areas, impervious surfaces funnel rain into municipal systems or storm drains. Does this mean it isn’t available to streams for diversion by water right holders anyway? Municipal supply often comes from rural areas. If rainwater harvesting catches on, how would water rights in big drainages be affected by changing the current storage dynamic of rainwater?

• In times of low or even average river flows, some water right holders have to place “calls” that halt junior diversions in favor of senior ones. Just how tenuous is this balance? Is it really so tight that rainwater harvesting could immediately cause some rights holders to lose water? If so, where does this happen and what’s the recourse?

• Colorado is a headwater state for six states dependent on Colorado River water. It’s also the only mainland state that has rivers flowing out but no rivers flowing in. All of Colorado’s water comes from snowpack and rain. Could the scale of rooftop water harvesting become big enough to impact water legally promised to other states? A 2007 study found that 97 percent of rain in one Colorado county evaporated or was taken up by plants. But that is one county in a state with diverse topography and microclimates. How does this dynamic work in every area that is crucial to stream flows?

• Some people have been capturing rainwater illegally for years in Colorado. In other states, rainwater capture is only used by 5 to 10 percent of households; how does Colorado currently compare to this number, and will it reach the same plateau of adoption?

• In the language of the bill, rooftop snow accumulation is equivalent to rain under the generic term, “precipitation.” How does the seasonality of these flows affect water right holders who expect injury?

The sponsors of this bill hope to encourage water-wise practices. Water rights holders are acutely aware of the value of water and understand the importance of conservation, but they are looking for assurance that their water availability and their long-fought-for rights won’t be harmed. After amendments added recently that address data collection on impacts, provide for a review and objection period, and expressly stipulate that rain water harvesting does not constitute a water right, it looks like the bill may pass this time.

Take a closer look at the issue and you’ll realize it isn’t as simple as conservationists versus farming. Water rights are an important component in our state’s laws, and affect flows that underpin a broad spectrum of critical water uses, stream conservation, farming, and municipal supply, among others. They are inherently tied to our economy and ability to grow sustainably. Asking the less obvious questions is more likely to lead us to a solution we can all live with.