Colorado legislation legalizing the use of rain barrels has passed and will take effect in August. It is the last state to have laws formally outlawing them. I have seen several questions about how such a seemingly common sense best practice for conservation could be outlawed for so long, and the answer comes down to the convoluted and odd way western states choose to deal with the issue of water rights.
Some people might assume that water, whether it falls from the sky or runs in the form of a river, is a common good to be shared by all for the greater good, but that is not the case. Water in America is considered a commodity and its use is regulated by a set of laws which fall into two categories: riparian rights and prior appropriation doctrine.
Those unfamiliar with water rights would probably describe something akin to riparian rights: water belongs to those whose land it falls on, or those whose land it runs adjacent to. In the eastern part of the United States that’s exactly how it works: the landowners next to a river have first rights to the water that runs through that river and to the rain water that falls on their property. In the western states prior appropriations doctrine is the law of the land which regulates whom water belongs to.
States in orange utilize prior appropriations, green use traditional riparian rights and blue use modified riparian rights. Grey states use a hybrid water rights system.
The basic tenant behind prior appropriations is that no one “owns” the water in a stream or river, but whoever claimed the rights to water usage first has priority to it. For instance a farmer whose family has been diverting a river 30 miles from his property for irrigation for hundreds of years has precedent over the family who actually lives on the banks of the river. It’s a process which can be dated back to the times of the gold rush, when miners would stake their claims to rivers to pan for gold and the law was enacted to make sure new miners couldn’t set up shop closer to the water and steal claims.
Rain barrels are where prior appropriations doctrine starts to get slightly complicated. It seems common sense to allow homeowners to collect small amounts of rain for their personal use but under the strict letter of the law the rain belongs to senior claim holders who should have first use of the water.
Colorado’s legalizing of rain barrels is a welcome step forward, but concern remains that other states may be considering tightening their belts when it comes to citizen water use. Agriculture makes up the vast majority of water use in western states and agricultural lobbies have long been pushing to secure their claims to precious water, a resource that is becoming increasingly scarce in the light of recent droughts. I would love to see more western states stepping up to guarantee individual rights to a set amount of water (Colorado’s 110 gallons seems reasonable) that homeowners could collect without having to worry about prior appropriations being claimed.