Several articles in Stormwater magazine have mentioned
projects that use rain barrels or other means of capturing and reusing
rainwater. (See for example “Sustainable Stormwater” in the recent July/August
2008 issue
and “Stormwater Programs in the Arid Southwest” in the July/August 2007 issue.) We think such means of capture and reuse are a good idea, and so do the many
cities and municipal stormwater programs that have been promoting the use of
rain barrels, offering stormwater credits for using them, or even distributing
them for free. However, as many of you who live in Western US states are aware,
not every state agrees, and in some cases their use is, technically at least,
illegal and subject to fine.
Why? It’s all about water rights and the “prior appropriation doctrine,”
a sort of first-claimed, first-served law that gives the rights to river water
to the first claimants and holds that water falling on individual roofs
tributary to the river or stream system.
Colorado has gotten perhaps the most press for
its policy. The Colorado Water
Court upheld a ruling against a grower of organic
produce who wanted to harvest rain that fell on her roof. Even in the absence of
proof that the water the farmer collected would ever have actually made it to
the river system, the court held that she would either have to put in place an
augmentation plan—that is, that she would have to replace the water she
collected—or else she could be subjected to a $500-a-day fine.
Is the water collected by individual rain barrels and other harvesting
systems actually being denied to the river system? If it is used for irrigation,
won’t it eventually infiltrate and make its way to the aquifer, and thus to the
river system? Or might the rainwater, uncollected, have mostly evaporated anyway
long before reaching the system? A study in Douglas County, CO, showed that at
most, 15% of precipitation reaches the stream system (less in dry years), but
the state still requires those harvesting rainwater to replace 100% of what
they’ve collected.
Some states and local jurisdictions—Washington, for example—have allowed
exceptions for individual rainwater harvesting. The same sort of exemption has
been proposed in Colorado.
In a larger sense, though, the debate represents a disconnect here
between those who see water as a resource and those (still mainly on the
stormwater side) who see it primarily as waste to be gotten rid of as quickly as
possible. If your concern is flood prevention and stormwater treatment, any move
toward keeping the water where it falls and thus keeping it out of the storm
sewer system is a benefit. (Putting it to beneficial use is an added bonus.)
If you live in a state that has a water-rights policy similar to
Colorado’s let
us know what’s going on in your area. Are rain barrels allowed or not?