Saving Water in the West to Avoid Breaking Law

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Every raincloud that passes over her eastern Colorado ranch tempts state Rep. Marsha Looper to break the law.

A long, hard drought has settled across the land, and on those rare occasions when the sky opens, Ms. Looper longs to set out some rain barrels to collect the bounty for future use. She’d like to use the rain to grow hothouse tomatoes. But she refrains.

“I don’t want to get thrown in jail,” she explains.

It is, in fact, illegal in Colorado to collect rainwater. State law is vague about the penalties, except to say that violators can be taken to court and ordered to pay damages. The state lacks the resources for vigorous enforcement and fines are extremely rare, officials say. Still, the law is the law — and so Ms. Looper has set out to change it. This might just be her year.

Colorado, like most Western states, lives by a rigid and byzantine knot of water laws. Vast quantities of river water are made available, free of charge, to a variety of public and private interests, including oil companies, ski resorts, fire districts and breweries. The international food conglomerate Nestlé has applied for a permit to draw water from a Colorado aquifer and sell it in plastic bottles under its Arrowhead brand.

Those appropriations are made under a seniority system based on first-come first-serve claims staked out as far back as the 1850s. Colorado law explicitly states that every drop of moisture suspended in the atmosphere must be divvied up according to those claims. That means each drop must be allowed to hit the ground and seep through the watershed into distant rivers, where it can be doled out to claimants ranging from alfalfa farmers to ExxonMobil.

With drought widespread across the West, many cities outside Colorado are encouraging rain harvesting through tax credits, rain-barrel subsidies, even building codes that require rain-catching cisterns in new developments. But in Colorado and Utah, the only other state with a blanket ban on rain harvest, powerful forces are determined to continue limiting access to precipitation.

Setting a barrel on the lawn to recycle rain “sounds nice and efficient, but in my opinion, under Colorado law, that is theft,” says Glenn Porzak, a lawyer who specializes in water-rights claims. “That rainwater is spoken for.”

One bill would let rural residents not served by a municipal water system store rain for fire protection, livestock feed and household uses. A second bill authorizes several new developments to capture and reuse rain, so long as the builders track how much water they divert from the state’s natural waterways.

Ms. Looper acknowledges that her bills still keep rain harvesting off limits to the majority of Colorado residents. But she says it’s the best she can hope for in a state that adheres faithfully to the old adage of Western life: “Whiskey is for drinking. Water is for fighting.”

Information excerpted from the Wall Street Journal.

Rosamaria Caballero Stafford
Co-Founder and the Original Green Irene