A Thirsty Colorado Battles Over the Destiny of Its Raindrops

Denver: When Jason Story bought an old soy sauce barrel to collect the rain dripping from his downspout, he figured he had found an environmentally friendly way to water his garden's beets and spinach. But under the quirks of Western water rules, where raindrops are claimed even as they tumble from the sky, he became a water outlaw.

Water is precious in the arid West, now more than ever as the worst drought in decades bakes fields in California and depletes reservoirs across the region. To encourage conservation, cities and water agencies in California and other states have begun nudging homeowners to use captured rain for their gardens, rather than water from the backyard faucet.

But Colorado is one of the last places in the country where rainwater barrels are still largely illegal because of a complex system of water rights in which nearly every drop is spoken for.

And when legislators here tried to enact a law this spring to allow homeowners to harvest the rain, conservationists got a lesson in the power of the entrenched rules that allocate Western water to those who have first claim to it. Even if it is the rain running down someone's roof.

"Where does it stop?" said Story, 40, a regional manager of a beverage company. "Does that mean you own the cloud, too?"

The rain barrel debate was a microcosm of intense fights across the region over who should get to keep using water and who should have to cut back.

In California, farmers and other residents are cutting their water use by 25 percent or more. Cities in Colorado's fast-growing Front Range, in the central part of the state, are vying with farms and users on the wetter, western side of the state as officials piece together a water plan. And as water grows scarcer, critics have assailed a water rights system that is based largely on seniority and century-old claims to stream flows.

"Water allocation doesn't satisfy most people's norms of fairness," said Doug Kenney, director of the Western Water Policy Program at the University of Colorado Law School. "A lot of people are clearly surprised to see that it's a system where some people will get 100 percent of their water, and others will get zero."

In Colorado, the rain barrel idea was modest: A bill with bipartisan support would allow homeowners to buy two 55-gallon water tanks that, together, would be able to collect about 650 gallons every year - just about what an average American uses in a week.

A few years ago, laws were passed that exempted a small number of people from the rule against barrels - for example, some who are not served by municipal water systems - but legislators wanted to allow everyone with a barrel to collect and use what poured off their roof.

The biggest newspapers in the state got behind the idea, as did several city governments and water officials. Conservation groups said it would cost nothing to carry out and would not take any water out of the streams and rivers that supply users downstream. Most rain soaks into the ground or simply evaporates, long before it can cascade into a storm drain and toward any parched ranch or farmer's irrigation ditch.

But some irrigation officials and politicians who represent thirsty ranchers on the state's eastern plains saw a threat - as well as a violation of property rights and water principles that are written into the state constitution.

"It's actually stealing," said state Sen. Jerry Sonnenberg, R-Sterling, a northeastern farming and ranching town on the plains, who voted against the rain barrel measure when it landed in the Agriculture, Natural Resources and Energy Committee he leads. "You might say, it's a little bit of water, just a barrelful, how much damage could that do to someone downstream?"

But, he continued, "If it's just a little bit, why wouldn't we allow everyone go to into 7-Eleven and take just one bottle of water, just a little bit?"

Water use multiplies fast, and critics said that millions of gallons of water could be pulled out of the system if the entire state caught rain-barrel fever.

Colorado's Constitution and years of legal cases have established that the hierarchy of water stems from when a farmer, public agency, company or other user secured the right to draw it from the surface water system. Just because water flows across a person's property - be it a river or a trickle of rainwater - does not mean the person owns it, water officials said.

"Normally we're very water short, and the priority doctrine is set up to allocate water in these times of shortage," said Joe Frank, the general manager of the Lower South Platte Water Conservancy District. He opposed the rainwater measure. "Even in average years, there's not enough water to go around."

People who illegally divert water can face fines of $500 a day if they defy orders from state regulators, but a spokesman for the Colorado Department of Natural Resources, Todd Hartman, said he did not know of any case in which a homeowner had been cited for having a rain barrel.

The amount of water in question is so low, said Kevin Rein, the deputy state engineer, that "we simply do not have the ability to monitor rain barrel use."

That is good for people like Deb Neeley, an office manager and urban farmer who lives near a small lake by the western border of Denver and collects water from a gutter off her greenhouse. She said that her plants grow better when they are watered by rain and that she did not feel like she was robbing water from anyone else.

But if rain barrel use suddenly explodes, she said, officials should measure whether it has any effects farther downstream.

"If I felt that I were taking away from other people I wouldn't do it," she said. "I don't feel guilty doing it. I feel like it's the right thing to do to capture this resource."