In Albuquerque, Santa Fe and other New Mexico communities, water authorities actively encourage residents to capture rainwater streaming off the roof for use on gardens and lawns. In Colorado, that’s against the law.

But the law didn’t keep Santa Fe water-harvesting advocate Doug Pushard from going over the border to encourage a bit of civil disobedience. The Durango Herald reports that Pushard, a Santa Fe resident and founder of the water-conservation advocacy site HarvestH20.com, recently met with La Plata County residents in Durango to discuss the pros and cons of collecting rainwater "should a homeowner decide to do so."

Like most Western states including New Mexico, Colorado adheres to the water theory of "first in time, first in right," meaning those who first put the water to use have the right to continue using it, and not lose it to newcomers. And, as elsewhere in the West, virtually every drop of water is claimed, so no one can take water off the surface or from underground without somehow making it up to existing users.

But in a sweeping diversion from other states, Colorado figures that even water falling out of the sky belongs to someone, somewhere downstream, and therefore generally prohibits the practice of collecting rain in barrels and cisterns — unless the harvester buys water rights to replace the missing juice.

Colorado State University’s Extension Office puts it this way:

Practically speaking, this means that in most river drainages, a person cannot divert rainwater and put it to a beneficial use without a plan for augmentation that replaces the stream depletions associated with that diversion.

In most areas of Colorado, the only sure legal way to use rainwater is to direct roof gutter downspouts to drain to landscape areas you wish to water.
That doesn’t mean water hijackers are likely to be sent up to the Big House or waterboarded into telling authorities where they got the rain barrel. Marta Ahrens, the public information officer at the state Division of Water Resources in Denver, told the Herald:

"Actually, we’re pretty lenient. We send a cease-and-desist order, but we don’t have the manpower to investigate unless we have a water commissioner in the area. Neighbors are often the ones to complain about the diversion of rainwater," she said.

"We also get calls to the effect, ‘Other states allow it, and New Mexico encourages it, so why don’t we?’" Ahrens said.

But relief may be in sight for Colorado residents clamoring for rain barrels and the right to use them. Colorado Gov. Bill Ritter recently signed a bill (SB 119) that calls for additional study of rain harvesting and how it fits into the state’s overall water conservation plans. Legalization is on the horizon, perhaps as early as 2009, Ritter said in a release.

In the meantime, Colorado home owners who want to flaunt the law can go online to learn to make a simple rain barrel or a more complex system with filters, sanitizers and pumps. HarvestH20 also has a substantial resource section, though it doesn’t appear to offer legal representation.