Let’s Talk Water – What’s Legal And What’s Not

There is so much misinformation regarding water collection and use in the cities of Colorado ( to include Colorado Springs) that it is time to set the record straight.  Many of the rumors are absolutely false; others teeter on the line of falsehood.  I am not saying that you should follow the letter of the law regarding water use in Colorado, but I am suggesting you should know what the laws are so you can make an informed decision regarding your own adherence to the laws or your own civil disobedience.  

Myth #1 says that it is now legal to catch rain water in Colorado.  So what’s all the ruckus regarding rain barrels?  Haven’t we determined that rain barrels are legal in Colorado?  Um, no, not really.  Rain barrels are legal in Colorado under very specific circumstances, with a permit and approval, and most Coloradans don’t qualify.  The number one factor that makes rain barrels illegal for the vast majority of Coloradans is this – it is illegal to catch water in a rain barrel or any other catchment system if the household has available water service from a municipal source.  In other words, if you live in a city that provides water to the city (regardless of if you use it or not) you may not collect rain water.  The reason has to do with water rights already appropriated on your behalf (tap water) and catching rain water is not part of that water right.  Catching rain water in the cities is, according to the Colorado Division of Water Resources, a taking of another person’s water.  There are some lucky ducks inside the city limits that have historic, grand-fathered in wells on their property.  While they can often use the wells (check to make sure your permit is valid) rain water is still prohibited under the municipal water clause.

Myth #2 says if you hold water for less than 72 hours it doesn’t count as catch water.  This rumor has been circulating Colorado Springs for years now.  According to the Ground Water Help Desk at the Colorado Division of Water Resources this rumor was partially taken from a statute that involves the building of sub-divisions, and has been misapplied to catching rain water.  If a developer is building a sub-division within city limits that developer is required to install catch-ponds to catch storm water run-off.  Those ponds, buy law, must be drained within 24 – 72 hours of the rain event to maintain water flows “in time and place.”  This 24 – 72 hour time frame does not apply to rain barrels – not ever.  Rain barrels are illegal if they are used for any period of time inside city limits in the State of Colorado.

Myth #3 says gray water is illegal in Colorado.  Well, it used to be, at least mostly.  However in May of this year the Governor signed HB13-1044 into law.  While gray water was used in a limited manner across the State, this bill allows for more comprehensive gray water use, including gray water use for residences in the cities, something that had long been discouraged.  The bill allows counties and cities to determine how and if they will allow gray water, so right now gray water still isn’t “legal” in the cities but that is expected to change.  A true gray water system will most likely be required (no straight-piping laundry water) and you will most likely need to apply for a permit from your local health department – gee, no surprise there.  By the bye, warm-up water (putting a bucket under your shower as it is warming up) is not covered under gray water or catch water and is legal to use on your landscape.

Myth #4 says you can impede the flow of water and sink the water into your soil, as long as you are not putting it into a barrel.  This is the grayest of the gray areas, and probably the one you might actually get away with.  Here’s the deal – if you put the water to “beneficial use” you are taking a water right from someone else.  I spent some time with Dr. Perry Cabot of the Colorado Foundation for Water Education and asked him about this very directly.  I use berms and swales to slow water off of my roof and give it a chance to sink into my dry, hard soil.  So far so good – mitigating storm water run-off and keeping it from flooding my living room.  The potential problem is that I planted fruit trees on the berms.  Now I am putting the water to beneficial use – apples.  This particular form of beneficial use is so minor that chances are no one will ever care, though I suspect that the powers-that-be would care greatly if all of Colorado Springs were to install berms and swales on their residential properties.  If that were to happen very little storm water from the cities would return to “the system” and that my dear reader would be viewed with disapproval.

In the next several decades Colorado is facing a severe water shortage and there is no silver-bullet plan to overcome this shortage.  At the same time Colorado Springs government officials (as well as many other government officials along the Front Range) are forever selling us on the ideas of growing the economy, revitalizing the construction industry, and attracting young professionals and their families.  When is enough enough?  I can’t legally put a bucket under my downspout because the State is so water restricted, yet growth continues to be trotted out for our supposed benefit.  Water is our lifeblood in the arid West, and folks, we are running out.  The rules and regs listed above are meant to keep the water flowing, but even with such strict protocols we are indeed running out.

I am not going to tell you to follow the above laws or conversely to practice civil disobedience – that’s your call.  I will however ask you to consider your water use and find ways to use every drop.  If you are watering your landscape make sure you can eat from your landscape – don’t use water for lush, green Kentucky Blue Grass lawns in Colorado.  Not now, not ever.  Currently in Colorado 86% of our water goes to agriculture, and a proposal to bring more water to the cities is what’s called “buy and dry.”  In other words, buy water rights from the farmers and then divert their water to the cities along the Front Range and dry up the farm land.  This is tragic (really tragic), and possibly one of the only ways to bring additional water into the Front Range cities.  There simply is no more to go around; we are long “out” of unallocated water.  With potential for agricultural lands in the State going out of production we have a responsibility to grow more food in the cities.  Not a right, not an option, but a responsibility to grow more food in the cities.  If the water is going to be funneled away from traditional agricultural regions and into urban areas we damn well better not be wasting it on lawns once it gets here.  And if that means growing apples on berms, well then so be it.

 

Three water quotes for your consideration:

Food is medicine, water is life.

Whisky’s for drinkin’, water’s for fightin’.

Water doesn’t flow up-hill or down-hill – water flows toward money. 

 

 

About Christine

Backyard farming rocks!

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38 Responses to Let’s Talk Water – What’s Legal And What’s Not

  1. Fred August 23, 2013 at 10:50 am #

    Good stuff, Christine!

    If you run our current water (mis)use trends out to their likely conclusion, we are on a frightening path, Here’s the money quote: “If the water is going to be funneled away from traditional agricultural regions and into urban areas we damn well better not be wasting it on lawns once it gets here.”

    No kidding. And, it’s later than we think!

    • Christine August 23, 2013 at 1:42 pm #

      I agree – it is later than most of us think regarding water (and many other resources). Why the elected officials keep talking about “growth” is beyond me. Actually, that’s not true. The reason the elected officials keep talking about growth is because that’s what most of us want to hear. We want to hear that the economy will be booming once again – something that requires the use of natural resources to include water. And if we hear what we want then the politicians get re-elected. We are doing this to ourselves…

  2. Kip August 28, 2013 at 10:23 pm #

    I know this may fall into the gray area for what’s legal here but what are your thoughts on doing a hugelkultur with heavy mulching for water retention?

    • Christine August 29, 2013 at 3:59 pm #

      Kip,
      ‘Love huglekultur! And, it is a gray area. I am guessing it is less gray than berms and swales, but probably similarly along those lines. If you are putting the water off of your roof to beneficial use, technically that is prohibited. The reality here is that instead of impeding the flow of water (berms and swales) you are creating an atmosphere in which the water more naturally soaks into the ground. The likelihood that your practices would ever be challenged are really, really low. I wouldn’t call it legal per se, but I wouldn’t call it criminal either.

      • Kip September 6, 2013 at 2:26 pm #

        Thanks for the response Christine. It does seem like a workable solution for this area, especially with the low amount of organic material in our soil. In my limited study of permaculture I find that any efforts to harvest rain water in a region using swales, berms, ponds and huglekultur no only increases local water availability but also availability down stream. I wish the powers that be could see this. Thanks again.

        • Christine September 6, 2013 at 6:01 pm #

          I agree Kip – a paradigm shift is required and those are often met with resistance.

  3. Karen September 6, 2013 at 9:21 pm #

    Thanks Christine. A very good article which gave me a better understanding of Colorado water laws. We had lived in Arizona where we were encouraged to collect rain water in barrels and to use gray water. Guess the difference is – buying water rights (Arizona) and selling water rights (Colorado).

    • Christine September 7, 2013 at 9:18 pm #

      What a great insight Karen – upstream versus downstream. That makes so much sense in that context!

    • Joseph Whitehead August 5, 2014 at 2:12 pm #

      Sure wish California would start desalinating more water for drinking… LA alone would make a huge difference. However, quite a bit of California’s use is agriculture because it’s one of the most efficient places to grow almost anything, ever. You can not generally substitute plain distilled(or osmosis-cleaned) water for mineral-rich fresh water like surface sources have. It’s like anemia for plants and soil. The other issue is that generally, plans for desalination require the building of a dedicated (and large) power plant and given how ‘popular’ nuclear/coal is and how ‘cheap’ solar/wind is, I don’t see this happening on a large scale anytime soon.

      Yeah, Arizona has an ‘interesting’ bit of history with California and Colorado regarding water resources. Almost as ‘interesting’ as WWII and the cattle wars. ;)

  4. Bob September 9, 2013 at 5:29 pm #

    So I live in Black Forest (county) my house burnt down and I was thinking of ways to retain water for the dry months. I am on a well is it legal for me to catch water.

    • Christine September 11, 2013 at 11:36 am #

      Bob, so sorry to hear about your house. :( That was a fierce wild fire. How badly burned is your soil? Is there any vegetation left on the property? Answers to those questions will inform your approach. I have pasted a link to a publication from the Extension Office – Soil Erosion Control After Wildfire. http://www.ext.colostate.edu/pubs/natres/06308.html I hope it is helpful to you. Berms and swales are probably your best bet. As long as you don’t get hung-up in the “putting water to beneficial use” I think you would be okay. Double check with the Colorado Foundation for Water Education – they are a great resource as well. http://waterinfo.org/colorado-foundation-for-water-education

  5. Bob September 9, 2013 at 5:31 pm #

    Sorry I meant when I rebuild I want to be smart and build to retain water.

  6. Mike March 29, 2014 at 9:30 pm #

    I do not live in Colorado but find it interesting that the state or any government can tell people they cannot ‘catch’ water falling from the sky onto their property. In your reply to Bob you mentioned as ‘long as he ‘don’t get hung-up in the “putting water to beneficial use” you think he would be okay. Does that mean a person that catches water for a garden can’t do that? I must be kind of slow, as I just do not understand how you can get into trouble for ‘catching’ water for your garden on your property. Thanks for reading my comment. I am going to try and find more information about this as I was actually contemplating a move to Colorado and this could affect my decision. Thank you again.

    • Christine March 30, 2014 at 8:22 am #

      Hey Mike! Yes, putting water in your garden that you caught from your roof would be considered putting the water to beneficial use. That being said, I know folks in the city that have caught water for years with no problem. I also know folks who were catching water in the city, and were ordered to removed their barrels or face a $500 fine. How the law is enforced is not clear, but I suspect it has something to do with neighbors turning people in. I have also heard rumblings of a backing-off from this law, but I will believe it when I see it.

  7. Bev April 21, 2014 at 1:51 pm #

    So glad to read this article! I suspect most residents do not realize how serious future water shortage in Colorado is likely to get. and some want fracking in Colorado!

    I’m available to help anyone with their back yard gardens this summer – in exchange for some fresh veggies when they’re ready! I can help provide mulching materials if you like, coffee grounds and potato peel kind of things. I’m also available to help weeding and working, even planting. e-mail me if you know anyone who wants help. I live on the east side now (Cimmaron Hills) so close to home would mean I’d be available more often. (I’m early retired so have plenty of time right now)

    Please e-mail me at bevm1663@yahoo.com and put “garden help” in subject line if you want help – or know of someone who wants help!

    Bev

    • Christine April 21, 2014 at 4:22 pm #

      Thanks Bev – very generous offer. :)

  8. Shawn Speidel April 26, 2014 at 10:28 pm #

    Great article Christine! You confirmed some questions I had!
    Yes, as a recent transplant to Colorado it is troubling to see no future foresight in this state for direct food production and we essentially have sold our birth right, so to speak. We are a state that likes to look good with big fancy homes, new shopping malls, and wide streets and have been growing the cities so long we don’t understand basic necessities of life such as clean, nutritious food on the table and that requires clean water, even when humus in soil is maintained at an optimal 5%. Food will not always be flown/trucked from Chile, China, California, etc. I believe that a nation that can’t feed itself nutrition, can’t sustain itself, even with money.
    Another concern with not being able to collect what rightfully falls on one’s property is what does someone do when they have low quality water, particularly high sodium, bicarbonate and/or soil cation stripping sulfates? I have no economical, scaled down answer yet for small market gardeners or homeowners. Out water quality can only continue declining as more people like me move in and salts in water concentrate.
    But the really big problem with all of this is the abuse of power on water collection. Why do we keep clowns in power that strip away a basic human right, particularly something that will save a household money just so they can continue generating revenue resulting from bad past promises? Are we that afraid of water rights lawyers or simply to speak our minds on the decisions they have historically made in our behalf.
    And didn’t I see a Douglas County study which determined that rainwater collection would only influence steamflows by something like 3%?! If folks could capture and retain, that would mean less tax dollar paid infrastructure, less erosion, less runoff pollution, essentially cleaner stream water and it essentially doesn’t affect streamflows (water rights holders in KS, AZ, NE and elsewhere) by very much.
    In my estimation, Colorado soils can most of the time easily be corrected in three years to produce very nutritious food, but having no access to decent amounts of water with good water quality, we put ourselves in a BIG bind.
    I’m hopeful that in the near future this water collection subject will be viewed from a common sense approach and not from the short-sighted revenue generating side. Americans need to once again think for themselves, but since the vast majority are so far removed from any semblance of food production, so this is unlikely.
    Pumping in atrazine and glyphosate water from the Missouri might be the option going forward for water and “new jobs”.

    • Christine April 27, 2014 at 7:48 am #

      Shawn thank you so much for your comments – you’ve clearly spent some time pondering this topic. The 3% number you mentioned is quite interesting – I hadn’t heard that statistic previously. If that stat is true, then why on earth are we still banning rain water in this state!? Ludicrous – absolutely ludicrous.

    • Joseph Whitehead August 5, 2014 at 2:25 pm #

      It’s going to be harsh, but bans on selling grass seed and making new golf courses are not totally unlikely in our lifetimes. At the very least, limiting what kinds of grass are legal to plant It’s pretty short-sighted to decrease planting in Colorado but then use trucks from California that aren’t exactly more environmentally-friendly in the balance. :(

      I confess to having grass in our front yard but it’s a duplex and neighbors wanted it for the front. They have big dogs so planting something like strawberries or irises is NOT an option. I did get them the seed mixes aimed at Colorado, though. The ones they tried before obviously died off when we didn’t water it like a madman. These seem to be surviving so long as they don’t mow it too often. No brown out since I recommended that change to mowing schedule. You’d be surprised how many people don’t know that mowing below 6 inches is a really bad idea in Colorado Springs.

      Now a funny bit: Grass naturally grows as a weed in my backyard (different variety that is across the state) and it needs no watering at all. Too bad it has to be over a foot to really thrive. :P

  9. Ray May 4, 2014 at 9:39 pm #

    Christine…thank you for the information…and for all the comments and posts here…extremely critical, among several others in my decision to move my company and my managers/families to your state. You just validated the rumors I received when I visited several cities around Denver. That was just one of several…state taxes are pretty high, but when I drove through Colorado Springs, there were some terrible roads. A state that penalizes their own tax paying residents for collecting clean rainwater on their own property to save dollars on their chemical-laced low quality water bill…incredible! Texas, Florida, Louisiana and Alabama offer large incentives for moving to their states…still researching though. I believe collecting rainwater in those states aren’t considered as taking another persons water. I’m still baffled at the lack of common sense…and wonder what other freedom-limiting laws exists within Colorado. Thank you for the clarification!

    • Christine May 7, 2014 at 2:53 pm #

      You are most welcome. By the by the by, I used to live in Louisiana. They were just named (once again) the most corrupt state in the union. Buyer beware. ;-)

  10. Nathan May 9, 2014 at 8:29 am #

    Do you know of any organization coalescing for the purpose of advocating change in Colorado water law? As more people start seeing the importance of sustainability and the fact that permaculture techniques benefit everyone, it seems we could quickly reach a tipping point and push for the necessary change.

    • Christine May 10, 2014 at 2:16 pm #

      I do not know of anyone working to change water law in Colorado. And, I’m not optimistic that the laws will change. Read Cadillac Desert for a run down on the history of water and the Colorado River. The water in the Colorado River watershed is actually tied to an international treaty with Mexico, and enables us to buy oil from our neighbors to the south. Very complicated issue.

  11. Brin May 24, 2014 at 12:43 pm #

    Totally craziest thing I ever heard. Where I’m from, you’re considered ecologically friendly to catch water. Here it’s illegal. I have never, ever heard of such a law. It does not sound like its anything but a way for the water suppliers to make more money, rather than have people collect a free public resource. You might as well make it illegal to have wind power or solar. As dry as this area is I cannot beleive that a bucket to catch the occasional rain shower is going to make that much difference. Even if everyone in the entire southwest collected.

    • Christine May 24, 2014 at 1:20 pm #

      I tend to agree Brin, and the science is backing up that claim. The number I heard was something allowing people to catch water would reduce flows in the Colorado River by no more than 3%.

    • Joseph Whitehead August 5, 2014 at 2:38 pm #

      Well the difference here is that in Eastern states the _flooding_ is a much worse threat than droughts and with wind power, you’re effectively creating wind breaks which again prevent the worse threat of stuff like alkali dust storms. The flooding causing damage along water paths (lakes/rivers/sewers/homes/etc.) is actually a good argument for a more even and managed release in Colorado. On the other hand, a less even flow will clear out nasty stuff that backs up like logs? The analogy to forest fires and controlled burns versus paranoid levels of fire outbreak prevention seems to come to mind.

      Every drop that you hold up in yards is increasing humidity which arguably should increase rainfall (this by definition has to be an almost-closed system since water vapor doesn’t magically go back to the ocean immediately). But bottled water and tanks keep it out of either the air or soil so do in fact reduce water levels downstream. This sounds like an interesting grant proposal for super computer users – to find out if increasing use in dry states actually increases ocean evaporation. Heck, we’re desperate enough for new sources of water, that trying to find new ways to increase rainfall is looking very much like a good idea, obviously.

  12. Jill June 21, 2014 at 10:00 pm #

    I recall back in the 80s visiting a living museum (White House Ranch, perhaps) where the discussion of water use came up and I didn’t quite follow it, but I now think the basis of this law was to prohibit upstream farmers from damming water sources so that downstream farmers couldn’t get water. I can understand that concern, but it seems a far stretch to legally prevent people in an urban environment from beneficially using water that falls on their roofs.

    • Christine June 22, 2014 at 10:09 pm #

      Yeah, Colorado water law is really an entity unto itself. Nothing else really compares in the water law department.

  13. Cathalene June 29, 2014 at 7:03 pm #

    My question is what is being done with the water run off, from the rain, if we can not harvest it?

    • Christine July 3, 2014 at 4:08 pm #

      The hope (and the science supports this to some degree) is that the water will soak into the ground and recharge the ground water as well as support the flowing of the river systems.

  14. kim July 16, 2014 at 8:58 am #

    Great information. We live on a 2 1/4 acre lot in the little Town of Severance, East of Fort Collins. We are on Town water but have a septic system. We HAVE water rights for a well we dug, for irrigation purposes only.(main reason we bought our house!) SO, I am figuring if I collect rainwater in barrels and use it for irrigation of my property/garden then I am still within my rights. What do you think?
    P.S. – Colorado Cities need to QUIT building golf courses and “stealing” farmers lands!! Plant community vegetable/fruit gardens instead!…stepping off my soap box now.

    • Christine July 18, 2014 at 8:07 am #

      Kim,
      If you have a well, with water rights, and the well performs at a certain level (fairly low), then you can apply for a permit to collect rain water. Simply having a well does not automatically allow you (legally) to collect rain water. You’ll need to go through the permitting process and see what the State says.

      And, I agree. Buy and Dry is a dangerous policy – we need to protect the water on farm lands. And, if the water is diverted to the cities, no more Kentucky Blue Grass and golf courses – we have a responsibility to produce food with the water we have available to us.

  15. Greg July 21, 2014 at 10:06 pm #

    Henry David Thoreau said, “Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once? Men generally, under such a government as this, think that they ought to wait until they have persuaded the majority to alter them. They think that, if they should resist, the remedy would be worse than the evil. But it is the fault of the government itself that the remedy is worse than the evil. It makes it worse. Why is it not more apt to anticipate and provide for reform? Why does it not cherish its wise minority? Why does it cry and resist before it is hurt? Why does it not encourage its citizens to be on the alert to point out its faults, and do better than it would have them?”

    I believe the rain water that falls from the sky, upon the roof of my home and falls upon my property in toto and in general, is my property; if it truly is not and my roof leaks and my property damaged by someone’s rain water, would they not be assailable and a tort against my property? It is my natural and unalienable right to it’s collection and proper usage, no matter what the state says. What will be next? Will they some day limit who might breath or who might or might not be permitted to stand in the rain, lest the water not reach some stream where some person owns water rights? The water laws in Colorado are an abomination and a violation of all of our civil rights so proclaimed in the Constitution and the Bill of Rights. When laws are unjust, we need not follow them. Should the state catch us violating their cruel and unusual laws, there is recourse in the courts. Freedom is not free.

    • Christine July 23, 2014 at 4:08 pm #

      Well stated Greg – I think you speak for the masses on this subject.

  16. TimE August 10, 2014 at 9:46 pm #

    So – if I stand outside in my yard in Colorado during the occasional rainstorm with my mouth wide open and the intent to catch the rainwater for my beneficial use of hydrating myself – am I breaking the law? Similarly – if I am riding my bike during a rainstorm in Colorado and happen to catch water in my mouth, am I obligated to spit it out or face a fine?

    With the numbers of 3% out there, it makes sense to me to eliminate this law. 3% seems about right – 3% of all space is covered my rooftops that “could” collect water, the other 97% is roads! yards, and other open areas.

    • Christine August 11, 2014 at 3:21 pm #

      Funny stuff Tim! :) If we ever go bike riding together, please don’t spit out the rainwater. ;-)

  17. roland stay August 27, 2014 at 10:23 am #

    Are you nuts in Colorado???

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