A good idea – if you can get away with it

All Mark Miller wanted to do was wash some cars and water the grass in front of his new car dealership.

As the proprietor of Utah's first LEED-certified, environmentally friendly car dealership, Miller wanted to minimize his reliance on water from Salt Lake City's public utility. So his extensive remodel of the building included two large new cisterns designed to capture rainwater for irrigation and car washing. But Miller was surprised to learn that trapping water on his own roof would be illegal.

"The state said no," he explains. "In order to use the system, we had to have an existing water share. It's ludicrous."

Miller is not the only water-conscious Westerner to run afoul of the region's prior-appropriation doctrine. Conservation advocates, including many utilities, have embraced the idea of using water collected from roofs, and stored in cisterns or rain barrels, to reduce reliance on dwindling surface water or groundwater supplies. Yet in Utah, Colorado and Washington, it's illegal to do so unless you go through the difficult -- and often impossible -- process of gaining a state water right. That's because virtually all flowing water in most Western states is already dedicated to someone's use, and state water officials figure that trapping rainwater amounts to impeding that legal right.

No one actively enforces these laws, as Boyd Clayton of the Utah Division of Water Rights notes: "We're not like cops out looking for speeders. Spending time enforcing these cases is not a priority."

As a result, would-be water harvesters often learn about potential legal trouble only when they try to do the right thing, as Miller did, by asking for a state permit. That's what happened to Kris Holstrom, who runs an organic farm outside Telluride, Colo. The well she's relied on for years provides less water than it once did -- a change she attributes to drought and increased development. So she asked the Colorado Division of Water Resources for a permit to collect runoff from building roofs -- and was denied.

"They felt that the water belonged to someone else once it hit my roof," she says. "They claimed that the water was tributary to the San Miguel River" -- which runs some three miles from her place and is fully allocated to other users downstream.

How much of the precipitation that falls on Holstrom's farm eventually reaches the river? Likely not much. A recent hydrological study found that little precipitation that falls on undeveloped areas in Colorado's Douglas County actually reaches streams. In a wet year, 15 percent of the precipitation does; in a dry year, none. Most observers agree that water collection by a few scattered rural residents is not going to affect overall supplies. Intensive collection by many urban residents, on the other hand, really might affect a region's water budget -- though advocates argue that widespread adoption of the practice can reduce reliance both on other water supplies and on costly stormwater management and wastewater treatment. Many municipalities embrace the practice; Austin, Texas, has subsidized residential rainwater-collection systems for years.

Elsewhere, the practice thrives underground. In July, a store in Durango, Colo., hosted about 30 people at a presentation about water harvesting.

"All these folks were either collecting or interested in getting started," says Laurie Dickson, owner of the Eco Home Center. "Some live in town; some live out on the mesa where they have to haul water, and they don't want to do that anymore."

Dickson readily acknowledges that she regularly sells such water-harvesting supplies as rain barrels and filters. "It's not illegal to sell the parts. It's kind of like 'don't ask, don't tell.' "

State legislators in Colorado, Utah and Washington are working on new laws that would allow small-scale collection of runoff without a specific water right. But given the numerous interest groups with a stake in water law, it's no easy task. Legislators in Washington and Colorado have had a hard time crafting rules dealing with the issue, though some expect that water harvesting -- by rural residents, at least -- in Colorado will be legalized next year. In hopes that it will be, Kris Holstrom is planning to install a 5,000-gallon cistern.

Cities have stepped in, too. Seattle now has a master water permit that allows residents of most neighborhoods to collect some rainwater. A similar solution is in the works for Mark Miller, who has worked out a deal whereby he will be covered for free under the city utility's water rights. City officials view that as a good deal for them, too.

The advantage to the city is that we can then take some demand off our system," says Jeff Niermeyer, the city's public utilities director. "That means we won't have to develop other (water) sources as soon."

This article was made possible with support from the William C. Kenney Watershed Protection Foundation and the Jay Kenney Foundation.

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