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Illegal To Use the Rain Water That Falls on Your Roof?

From High Country News:

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....

Kris Holstrom, who runs an organic farm outside Telluride, Colo. ... 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....

Elsewhere, the practice thrives underground. In July, a store in Durango, Colo., [the Eco Home Center,] hosted about 30 people at a presentation about water harvesting. Laurie Dickson, owner of the ... Center ... 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.'" ...

Thanks to Prof. Robert Sheridan for the pointer.

BarrySanders20:
Wow. An excellent example of government run amok.
11.21.2008 1:23pm
FantasiaWHT:
It actually makes sense, if you buy the general structure of water rights. Where do you think the water in the rivers comes from? It's all gotta rain (or snow) somewhere, first.
11.21.2008 1:30pm
Frog Leg (mail):
This story is one-sided since it does not have the context from which these laws came. Before these laws existed, a landowner who happened to own the land upstream from another had the right to use 100% of the water for their own purposes, thereby leaving the downstream owners high and dry, so to speak. And anyone who has spent significant time in the arid West knows that the difference between a stream and rainwater runoff is one of degree, not of kind.
11.21.2008 1:32pm
Brian S:
Leg,

I see where you're coming from, but to me waters aren't part of a stream until they touch the ground.

If I can keep it from touching the ground, it should be "found" water, as it were.

Otherwise, what if I walk outside during a rainstorm, look up, and open my mouth? Why wouldn't that violate someone else's water rights just as much as catching the water on my roof would?
11.21.2008 1:34pm
Gino:
So when can we expect bills from the Air Department?
11.21.2008 1:36pm
ntruitt (mail):
I agree that this regulation seems an easy target of ridicule, but the situation is much more complicated than this blurb makes it sound. Proponents of using water collected from roofs say that doing so would "reduce reliance on dwindling surface water or groundwater supplies," and that is certainly true for the individuals who would collect the water. Still, collecting that water would in fact reduce the amount of "surface water or groundwater supplies" available to everyone else.

I'm not suggesting that the government should necessarily intervene to prevent individuals from collecting water in this way. I admit I don't know nearly enough about the issue. What I do know is that water rights in the mountain west is an infamously tricky and complex issue that has been the subject of intense and acrimonious discussions between a bewildering array of stakeholders for the past century. It's precisely the sort of issue that is subject to unfair distortion when reproduced in a three-paragraph-long quotation employed with the polemical goal of making us chortle at the insanity of "big government run amok."
11.21.2008 1:39pm
Frog Leg (mail):
Brian S., that's a reasonable point. I would like to see how the statute is actually written--it is also entirely possible that the regulators are overreaching (like that ever happens /snark).
11.21.2008 1:42pm
SeattleSolicitor:
I don't think you can pin this on government run amok; if anything has run amok, it's private property rights. The water rights in dry Western states (and yes, I'm including Washington; our eastern half in particular has very little water) were set up very differently than in the East where water was much more plentiful. As I understand it, in the East the upstream users can pretty much take what they want, and at least in the early years this was never much of a problem. Out West, the problem was that an upstream user could divert all of the water from an entire river (say in times of drought when the water flow is quite small), leaving nothing for the people downstream. To handle this, our legal system was set up to protect the rights of the first person to put the water to beneficial use. The downstream user who has been using the water for 100 years can force the new, upstream user to leave enough water in the river for the downstream user.

The problem with rainwater collection is that it sidesteps this whole system. It's not a big deal if you collect rainwater from the roof of your home in Seattle where the water would otherwise drain directly into the Puget Sound. But if you collect rainwater to irrigate your farm in Yakima, somebody downstream isn't going to have enough water for their crops. I don't doubt that the downstream farmer could get a court to shut down your rain collection to allow him to water his crops. The prior appropriation system has its share of problems, but it's tough to come up with a better way of dealing with the problem.

Here's some basic information about prior appropriation doctrine, and this page from Marten Law Group describes the Acquavella water rights case that took 3 decades to litigate; people take their water right seniority very seriously out West.
11.21.2008 1:44pm
Piano_JAM (mail):
People, we are talking about water from a roof. What is this maybe 1% of the water that hits this guys farm?? If he was putting up a 20 acre water collection system, maybe i might agree, but come on.
11.21.2008 1:49pm
Old Timer:
Anyone who's lived any length of time in the arid regions of the American West knows that the rights to land and rights to water are separate creatures.

You don't like it... move back East —quick-like. Or end up owning a plot six foot long and six foot deep.
11.21.2008 1:50pm
Forgotten Password (mail):
Erie resemblance to Wickard some seventy years later (pun unintended). Different issues implicated, but erie all the same.
11.21.2008 1:50pm
Brian Mac:

Otherwise, what if I walk outside during a rainstorm, look up, and open my mouth?

I shall charitably interpret that as an innocent hypothetical, rather than as a flagrant threat to the rule of law which our forefathers fought so hard to ensure.
11.21.2008 1:52pm
Robert Farrell (mail):
If you consider the percentage of the catchment basin which is roofed (a tiny, tiny fraction; much less than 0.1%) the capture of rainwater striking one's roof should have a negligible impact on water rights downstream. Water law is long overdue for an overhaul and legalizing this practice would be a good first step.
11.21.2008 1:53pm
Wahoowa:
I agree with Piano_JAM. This is an unbelievably de minimus use of all the water that falls on this guys roof. Even if he's collecting it off his McMansion, shed, barn, and 12 other random outbuildings that covers maybe 1% of his estate on an average-sized rural plot, maybe less. I live in Colorado and there is plenty of open space where rain &snow can fall unmolested, especially on the dry western slope.
11.21.2008 1:58pm
gee mail (mail):
This is crazy, next you'll be telling me that congress can regulate the small amount of wheat I grown on my farm for personal use as some kind of "interstate commerce" !
11.21.2008 1:58pm
Tony Tutins (mail):
Everybody lives in one watershed or another. Make your soil nice and fluffy so it absorbs as much water as possible.
11.21.2008 2:04pm
Hal Duston (mail):
And yet in Kansas City, MO, my water bill has a line item for "Impervious Surfaces" where they purport to charge me for the amount of runnoff water from my property. If I wish to offset this charge, I can create capture basins to retain this water.
11.21.2008 2:04pm
SeattleSolicitor:
I agree with the comments about the rooftop probably being de minimis use. Around here we don't have any precedent for a de minimis exception to infringement of water rights, but I know it's an oft-discussed topic at CLEs and among practitioners. We may see reform on that in the coming years, but expect to see fierce opposition from agricultural interests and all sorts of difficult questions about where de minimis ends and a real impact begins.

Hal Duston - Capture that dangerous runoff water and send it West, we'll pay good money for it!
11.21.2008 2:12pm
Ryan Waxx (mail):
I don't think you can pin this on government run amok; if anything has run amok, it's private property rights.


Um, no. Water regulation is collective property rights that are sold or assigned to a private actor. That doesn't make it private property. An example of private property rights run amok would have the opposite effect - the example above of the person upstream taking all the water that is on his property.

No, the problem here is that government is failing to properly balance private property against collective property, and as usual falls far on the side of the collective.
11.21.2008 2:16pm
richard cabeza:
if anything has run amok, it's private property rights


Just wow.
11.21.2008 2:29pm
Fub:
ntruitt wrote at 11.21.2008 1:39pm:
I agree that this regulation seems an easy target of ridicule, but the situation is much more complicated than this blurb makes it sound. ...

... It's precisely the sort of issue that is subject to unfair distortion when reproduced in a three-paragraph-long quotation employed with the polemical goal of making us chortle at the insanity of "big government run amok."
When the result of that "complicated" regulation is as absurd and transparently unjust as in the result presented here, then I see no reason not to conclude that "big government [has] run amok."

The proof of the pudding is in the eating.
11.21.2008 2:29pm
Steve H (mail):
As the article points out, the state water rights folks aren't going around citing people for this.

But when someone asks for a permit to collect and use the water, thus preventing that water from entering streams, the agencies say no, as they are legally required to do. Water rights in Utah rivers and streams are already appropriated several times over.

So this isn't government run amok. This is actually government doing the sensible thing -- giving the legally correct answer when asked, but in the meantime, not wasting time on it.

I have to say, though, the article makes me kinda glad that I take my car to Mark Miller Toyota for servicing.
11.21.2008 2:38pm
pintler:

Still, collecting that water would in fact reduce the amount of "surface water or groundwater supplies" available to everyone else.


If I didn't have a scofflaw rain barrel under the downspout, the water would run onto the lawn ant eventually to Puget Sound. Instead, my wife uses it to water the flowers, and then it runs into Puget Sound. Other than time shifting by a few days there isn't much of an effect outside my yard.


But if you collect rainwater to irrigate your farm in Yakima, somebody downstream isn't going to have enough water for their crops. I don't doubt that the downstream farmer could get a court to shut down your rain collection to allow him to water his crops.


I'm curious - does land use also play a role? If I have no water rights, and I change a nonirrigated cover crop to one that transpires more of the rain that falls, am I infringing? If I change an existing crop to one that transpires less, have I created water rights I can sell?
11.21.2008 2:49pm
Michelle Dulak Thomson (mail):
Steve H,

Exactly. The only people who are going to be punished for doing this are the people with sufficient social conscience left that they attempt to get the law's blessing rather than simply skirting it and doing what they like.

This you call government "doing the sensible thing." Maybe in the short term; but I don't like the cumulative effects of a policy that thwarts everyone who tries to comply with law, while letting everyone else do what they like. Do you?
11.21.2008 2:52pm
Michelle Dulak Thomson (mail):
pintler,

I'm curious - does land use also play a role? If I have no water rights, and I change a nonirrigated cover crop to one that transpires more of the rain that falls, am I infringing? If I change an existing crop to one that transpires less, have I created water rights I can sell?

You know, I was about to ask that very question. (Minus "transpires" — didn't think of the word.) If you have a previously barren (or nearly barren) hillside, and you seed it — not with crops, but with wildflowers or something else that you don't intend harvesting — there's going to be less runoff from your land. Can you be fined for reducing the water leaving your land? Can you be required to undo your work, or else made to supply equivalent water at your own expense? If not, why not?

(Suppose part of your land burns, and runoff increases in consequence. Are you "stealing" the new-found water if you try to restore the land?)
11.21.2008 2:58pm
Don Miller (mail) (www):
I live in a pretty arid area of Idaho. We don't have regulations that are this tight, but water rights are something people fight about.

We have very few rainfalls over the course of the year that would be sufficient to produce runoff from the property. IE, the ground is usually so dry that any rain gets soaked up and used.

In parts of Southern Utah it is even worse. Some resevoirs may count on those 3 or 4 rainfalls a year that produce enough runoff that they can fill the resevoir.

My first thought was that when people catch the rain from their roofs, that they are just delaying the water from joining the groundwater and surface water downstream. But this isn't true.

Because they catch the excess, and then use it over time, most of that water will never go downstream. It will be lost to evaporation and to use by plants over time. The homeowner would never put out enough at any one time to produce any significant runoff.

One or two people in a rural area aren't going to catch enough water to make an impact, but what about a subdivision in a rural area, thousands of homes all doing this? It could make an impact. What about the HOA that says, we are going to catch the rain off the roofs and off the streets and sidewalks, because we own those too.

It seems like a petty regulation at first, but if you are the last guy downstream on the Colorado River with water rights, and there isn't anymore water in the river for you to take because the people upstream are using the rainwater to water their lawns, you might get a little upset. That person who doesn't get their allocation might be a city that counts on that water for drinking water, it might be an irrigation district who grows enough food to feed 1,000,000 people.

Its a complex problem
11.21.2008 3:09pm
Harry Eagar (mail):
'in Kansas City, MO, my water bill'

HaL, do you mean wastewater bill?

In Hawaii, it is even worse. We apply public trust doctrine to water, so that fish and indigenes have superior rights to prior appropriators.

Also, in state-controlled aquifers, a legal 'sustainable yield' is set, based, in part, on historical accident.

So that in our principal aquifer, which was tapped for irrigating cane fields, the old, 'inefficient' system of furrow irrigation recharged the aquifer, goosing the apparently sustainable yield.

When the plantations switched to 'efficient' drip irrigation, the recharge was cut in half, reducing the real but not the legal sustainable yield. pintler is not necessarily correct about the impact of his wife's watering on Puget Sound.

Since the county water department kept pumping at the legal level, chloride levels rose, damaging the public resource.

This is the simplified version. It's really more complicated.

Colorado sounds quite sensible compared to us.
11.21.2008 3:14pm
Monty:
Wouldn't the logical compromise be that the land owner has first claim to any rain that falls on thier land, but rely on the current system for water running through it? You could even restrict the right to onsite use of any collected water...
11.21.2008 3:18pm
NYOPINION (mail):
Cuius est solum, eius est usque ad caelum et ad inferos

would the state take my mineral rights too w/o just compensation? it also presumes that the water I collect would actually make it to the water systems instead of being lost to evapotranspiration - legitimate police power exercise here ? what about solar panels - please don't take my sunshine away !
11.21.2008 3:27pm
Cathy (mail) (www):
What happened to that notion that when you own land you own it from the center of the earth up to the heavens? The rules preventing the capture of rainwater falling from a cloud over your land would seem to conflict with that principal.

I'm not making any comment about whether the rule is sensible or not (I'm not quite sure), just making this observation.
11.21.2008 3:28pm
Ryan Waxx (mail):
What happened to that notion that when you own land you own it from the center of the earth up to the heavens?


Got axed when some idiot Californian mayor tried to tax satellites passing over his city.
11.21.2008 3:45pm
Charlie (Colorado) (mail):
Folks, you need to look into the history of riparian law out here in the West. I grew up not far from Telluride on an 83 square MILE ranch. On which about 5 inches a year total precipitation fell. My grandfather's water rights were worth much more than the land was --- without water the land was worthless. We had water wars out here, and the states are still fighting out water rights issues.
11.21.2008 3:47pm
OGRE (mail):
Well if that rainwater that falls on my property conceivably belongs to someone else, then shouldn't they pay me rents for temporary storage of their water on my land? Or for an easement right? Otherwise, would it not be trespassing? I mean, you might have a claim to the water, but you have no claim to my property, and I am under no obligation to provide-free of charge-for your lack of control of your property.

I'd further question ones ability to lay claim of ownership to something for which they are unable to exert any control. Is that not parcel to the definition of ownership, the ability to exert control over the thing owned? How can A exert any control over the rainwater that falls on B's property?

Also, to the poster above, any water captured in this way would indeed work its way back into the water supply. If it evaporates it will eventually return as rain...where else does the rain come from? If it consumed by humans or animals it will be redistributed as either waste water or perspiration. And if it is consumed by plants it will return to the air as water vapor via transpiration.

I think it all would make more sense if it were coined in terms of harm rather than ownership, i.e. negative externalities. In other words, A's claim against B for trapping rainwater would be based on the amount of harm done to B by A. If B lives adjacent to a watersouce such as a river, and A is trapping rainwater such that less water comes through the watersource, then one can argue that A has harmed B's property interests by decreasing the utility of B's property. Of course, the proper remedy is for A to compensate B for the harm, and A may very well decide that appropriate compensation to B is worth trapping the rainwater. That is, if A values the utility of trapping the rainwater more than what he must pay to B. And if A does value it more than B, why shouldn't he get the utility of the rainwater so long as hes willing to pay for it? Now that is how private property interest are supposed to balance out, not the government setting in stone who owns what then levying fines on people (and keeping said fines!)
11.21.2008 3:53pm
JamesInSeattle (mail):
Thought these links from the city of Seattle might be of interest.
11.21.2008 4:03pm
Old Timer:
would the state take my mineral rights too w/o just compensation?


NYOPINION,

No. I think under the law of the West, you have mineral rights in the chunk of lead deposited in your six foot long by six foot deep plot. Provided, of course, that one of the names you're known by is on the claim's monument. And the corners are properly staked.
11.21.2008 4:11pm
Fub:
Cathy wrote at 11.21.2008 3:28pm:
What happened to that notion that when you own land you own it from the center of the earth up to the heavens? The rules preventing the capture of rainwater falling from a cloud over your land would seem to conflict with that principal.
Good point. For a legally informed but purely poetic explication of the principle, see William Empson's "Legal Fiction".

Law makes long spokes of the short stakes of men.
11.21.2008 4:13pm
A. Zarkov (mail):
So do I own the sunlight that falls on my roof? If I use that sunlight to make heat or electricity, do I one day face the prospect of having US Department of Energy tell me that I'm engaged in interstate commerce?

I think the our governments are now too old and too sclerotic to function properly and in the public interest. It's time for a new Constitutional Convention.
11.21.2008 4:13pm
PersonFromPorlock:
So, would it be illegal to have an outdoor swimming pool in such jurisdictions? It would act as a catch basin, after all, and might easily have as much surface area as a house's roof.
11.21.2008 4:17pm
John Wayne:
Charlie has it straight. Out here, whiskey is for drinking, water is for fighting.
11.21.2008 4:17pm
whit:

the article points out, the state water rights folks aren't going around citing people for this.


right.

so this is just like the nannystate liberal WA's law against online gambling. it's a C felony, equivalent to auto theft, but they don't intend to actually punish any players with the law. seriously, that was the line the gambling commission gave when the law was passed.

they just want to scare people, and use it to show the indian casinos that they care about them and their precious revenue, not to mention the state tax coffers (state doesn't collect any tax when you play online).

recently, the city of Auburn, and several other cities too have SOLD rain collection barrels designed to be attached to roof downspouts. i was there. did they inform anybody that they needed a license to do so? of course not.

i have garden in my back yard. am i hoarding the state's water?
11.21.2008 4:35pm
BrianE (mail):
Just to reinforce OGRE's point. If I collect rainwater for use in my garden, all I'm doing is delaying the water making it's way back to a source. Whether it leaches into my property during a rainstorm, or later when I redirect it to my garden or lawn, in the end it reaches the same point.
11.21.2008 4:39pm
Andrew J. Lazarus (mail):
I'm fascinated by the division between commenters who know what they are talking about (many living in the arid West) and knee-jerk government-haters who don't bother to discuss the problem of water allocation. I guess that's what they call glibertarianism.
11.21.2008 4:39pm
richard cabeza:
AJL, they look one in the same to me.
11.21.2008 4:46pm
Michelle Dulak Thomson (mail):
Andrew J. Lazarus,

I'm fascinated by the division between commenters who know what they are talking about (many living in the arid West) and knee-jerk government-haters who don't bother to discuss the problem of water allocation. I guess that's what they call glibertarianism.

Not sure which side of that divide I'm on, living in the not-arid-but-still-occasionally-drought-ridden bit of the West (CA Bay Area). In my own neighborhood we're more worried by and large about floods than drought, though we get both.

Just for another Bay Area perspective, I present

Jon Carroll from today's San Francisco Chronicle.

I hope that link works . . .
11.21.2008 4:50pm
Toby:
I remember when I first went away to college, into the middle of a drought. The drought was so bad that they were considering sending the freshman home after the first week. What astonished me was that during the first two weeks of school, before the drought broke, the area received more than the annual rainfall where I grew up. And yes, that amount was not a blip in the drought, but was considerably less than the expected rainfall for that time of year.

Western water rights are quite reasonable, and well thought out. As whole towns are looking to run out of water in parts of the west, these laws are not going away. Just as you can, and often do, buy land already shorn of its mineral rights in, say, Texas, land used for new developments is often sold without water rights.

If the predictions of running out of potable water in many parts of the world are accurate, this is likely to be a growing area of legal practice. Folks outside of what used to be known (before they were states) as The Great American Desert might do well to learn them rather than ridicule them.

They might even expand. I can imagine that all the carbon rights for a valley had been bought up, and that new arrivals could need to purchase them before buildimg a home.
11.21.2008 5:18pm
Duffy Pratt (mail):
Prior appropriation systems of water right are much different than riparian systems. Before you make fun of them, you should maybe travel in some areas where the rivers are literally bone dry most of the year. Maybe these systems need some reform, but for now this result sounds to me like it is a straightforward exception to property law. As for the "de minimus" exception some people have advocated, I suppose you wouldn't object to people trespassing and mining on your land just because it was on a very small portion of it?
11.21.2008 5:20pm
Duffy Pratt (mail):
Of course I meant to say "a straightforward application of" ... Doh!
11.21.2008 5:21pm
Fub:
Andrew J. Lazarus wrote at 11.21.2008 4:39pm:
I'm fascinated by the division between commenters who know what they are talking about (many living in the arid West) and knee-jerk government-haters who don't bother to discuss the problem of water allocation. I guess that's what they call glibertarianism.
Well, so far those "who know what they are talking about" have not produced an iota of relevant evidence supporting what a layman might consider a rational reason for such a law. I'm not talking about the odious "rational basis test", under which government can call a dog's tail a leg and deem that dogs have five legs.

The simple question: How much water flows into the aquifers from a piece of property if no roof catchment and cistern is used. How much is prevented from flowing into aquifers if one is used. Surely some ratio of the two numbers would be acceptably small to be considered de minimis at law.

What are the same aggregate numbers for existing properties covered by the law?

My guess is that if everybody in the area saved all the water that landed on their rooves, the aggregate amount would be miniscule compared to the amount of water that falls directly on the land.

I think that is what the outrage is about. But no defender of the regulation has provided any actual numbers to support it.
11.21.2008 5:23pm
Nibbles:

Just to reinforce OGRE's point. If I collect rainwater for use in my garden, all I'm doing is delaying the water making it's way back to a source. Whether it leaches into my property during a rainstorm, or later when I redirect it to my garden or lawn, in the end it reaches the same point.


No, you're changing where it goes and how it gets there. Impoundments tend to decrease surface flow and increase evaporation and sub-surface seepage.

Take two rain events, both delivering 1/2" of water. But the one delivers it over the course of a day, while the other delivers it in one hour. The surface runoff from the two events will be very different.

In the case of your roof, the volume is fairly trivial but you are still stealing someone's property. Just like stealing a peanut from the bulk bin at your local supermarket.

If you don't like it, either buy your own water rights or move to a riparian jurisdiction.
11.21.2008 5:24pm
Steve H (mail):

so this is just like the nannystate liberal WA's law against online gambling. it's a C felony, equivalent to auto theft, but they don't intend to actually punish any players with the law. seriously, that was the line the gambling commission gave when the law was passed.

they just want to scare people, and use it to show the indian casinos that they care about them and their precious revenue, not to mention the state tax coffers (state doesn't collect any tax when you play online).

recently, the city of Auburn, and several other cities too have SOLD rain collection barrels designed to be attached to roof downspouts. i was there. did they inform anybody that they needed a license to do so? of course not.

i have garden in my back yard. am i hoarding the state's water?


I think you're missing the point. The State of Utah didn't just pass a law requiring a permit to collect rainwater. The State of Utah simply refused to grant a permit -- i.e., to recognize an ownership right in the rainwater. This refusal was correct because the water in every watershed here is already overappropriated.

I'm not sure what this has to do with the nanny state. And it's not about protecting the "state's" water. It's about recognizing the rights of the senior appropriators.

I'm somewhat surprised to see so much resistance around here to governmental protection of private property rights.
11.21.2008 5:26pm
dmbeaster (mail):
AJL:

Your point is correct -- people unfamiliar with the impact of water in an arid environment trivialize the significance of the rules for allocating water.

The underlying issue is the problem with line drawing inherent with the application of any rule, and the anomalous sharp distinctions that result even though the particular case is right on or even straddles the line.

The duty of the Colorado Division of Water Resources in this instance was to rigorously enforce water laws that are designed to protect existing ownership of water supply. Vast amounts of wealth and property are vitally dependent on the application of these rules to protect ownership. Absent further laws to address the new issue of rainfall collection from roof tops, the Colorado Division of Water Resources should not be approving methods of water appropriation not currently authorized and which arguably undermine existing water rights of others.

The effect of roof top water collection may be de minimus, which suggests making an exception, but it is not really the job of a water board to make that judgment call about what exceptions to make to the law.

What if I extended the rainfall collection practice to areas on my property other than rooftops? Does it then become a problem? Why if it should be OK for rooftops?
11.21.2008 5:31pm
Fub:
whit wrote at 11.21.2008 4:35pm:
recently, the city of Auburn, and several other cities too have SOLD rain collection barrels designed to be attached to roof downspouts. i was there. did they inform anybody that they needed a license to do so? of course not.

i have garden in my back yard. am i hoarding the state's water?
Maybe the government will make it so if there is a shortage of rain in Seattle. Please report any Seattle rainfall shortages here immediately. The MSM will just bury the lede and spin the facts: "Seattle remains a beauty spot in rapidly spreading desert wasteland surrounding Puget Sound".
11.21.2008 5:33pm
Steve H:

Well, so far those "who know what they are talking about" have not produced an iota of relevant evidence supporting what a layman might consider a rational reason for such a law. I'm not talking about the odious "rational basis test", under which government can call a dog's tail a leg and deem that dogs have five legs.


Exactly what law do you think needs defending?
11.21.2008 5:36pm
Fub:
Steve H wrote at 11.21.2008 5:36pm:
Exactly what law do you think needs defending?
The law or regulation that makes rooftop water catchment unlawful. I thought that was the subject of discussion here.
11.21.2008 5:50pm
EIDE_Interface (mail):
Creeping fascism never stops creeping. Didn't Thomas Jefferson advocate occasional revolution to keep America fresh and free?
11.21.2008 5:52pm
pintler:
I can confirm some of the above - our scofflaw rain barrel was purchased (and, IIRC, subsidized) by local gov't.

Furthermore, our property taxes include something like 'Surface Runoff Mitigation Fee', where I pay for the impacts of water running out of my yard, and there are fairly strict limits on adding to the impervious area, e.g. adding a patio, because it would increase the runoff.

So if I build a patio, would that make up for diverting rain barrel water to the flower bed?

Can I relocate the existing downspouts to dump the water in a different part of the yard, like a flower bed, or should I pay for an engineering study to assess the impact first?
11.21.2008 6:06pm
Steve H:

The law or regulation that makes rooftop water catchment unlawful. I thought that was the subject of discussion here.


See, from the articles I don't think there is such a law. As I understand it, there is only the general rule that prohibits interference with someone else's water right.

Once again, the agencies are not going after anyone, they are simply refusing to grant permits in certain situations.

Do you think that law needs defending?
11.21.2008 6:18pm
Fub:
Steve H wrote at 11.21.2008 6:18pm:
Once again, the agencies are not going after anyone, they are simply refusing to grant permits in certain situations.

Do you think that law needs defending?
If the law requires a permit, then the fact that the agencies aren't actively enforcing the law at present is irrelevant.

If the law requires a permit, and agencies are refusing to issue permits, then their basis for refusing should be examined. If that basis is as silly as appears from the article, then the law or reg should be changed to disallow such a silly interpretation.

The regulators who interpreted it in a ridiculous way should also be canned, though that's a much less likely outcome. Government officials who overreach only rarely suffer any consequence for their acts.

Meanwhile, evidence of accurately measured facts and figures, that rooftop catchment actually significantly affects groundwater levels is conspicuous by its absence here.
11.21.2008 6:37pm
Steve H:
I still don't see where you are coming from.

We don't know that there is a law that requires a permit for someone to collect water from a roof. I'm pretty sure that if there is a law at all, it doesn't talk about collecting water from a roof, but rather appropriating and using water in general.

I am sure, however, that the general water permit laws do not allow the agencies to issue permits to appropriate water that interfere with senior water rights.

So I don't see the basis for concluding that regulators are interpreting a law in a ridiculous way, as much as people around here like to tell themselves that's what regulators do. At most, the regulators are interpreting a law in accordance with its plain language so as to ensure that private property rights are fully protected.

As I said before, I thought VC posters were usually in favor of that.
11.21.2008 6:47pm
paul lukasiak (mail):
I think this can be answered rather easily.

If the roof leaks, and damages the interior of the building, who pays for the repairs? If its the building owner, then he owns that water -- because if that water is owned by people downstream, they should be paying for the damage caused by their property.
11.21.2008 6:57pm
Glenn W. Bowen (mail):

People, we are talking about water from a roof. What is this maybe 1% of the water that hits this guys farm?? If he was putting up a 20 acre water collection system, maybe i might agree, but come on.



I went to a rainwater site and found the little formula to compute what a roof will yield- my mother's barn roof would provide 30,000 gallons a year.

http://www.csgnetwork.com/rwcollectioncalc.html
11.21.2008 7:04pm
John S. (mail):
<i> Folks outside of what used to be known (before they were states) as The Great American Desert might do well to learn them rather than ridicule them. </i>

Many folks outside the Great American Desert realize that the massive investments of our tax money in economically unsound water projects is the only reason settlement was possible in the desert in first place - thus the source of much of the ire regarding water rights.
11.21.2008 7:25pm
Soronel Haetir (mail):
One thing that has not come up in this discussion, is the domestic use allowance. It may vary by just how arid an area is, but where I lived in Idaho, a property owner could take up to5k gal/day without any water right. I would expect that a roof collection system would be hard pressed to deal with that amount of run-off, and that the property owner would likely have bigger issues if they suddenly did.
11.21.2008 7:34pm
Riley Still (mail):
Water law is certainly socialistic. I have not read or heard of any law for water allocation that is based on application of logic to just property rights principles. As far as I can determine, water law is based on power politics.

Extending OGRE's concept @ 3:47 pm:

The effect of these laws is that B wants (or gets) some or most of A's rainwater and all of B's rainwater. Of course in all watersheds the chain of upstream -- downstream landowners is very long … say A to Z, with Z being at the mouth of the watershed flowing into the sea.

Current "law" says that A does not have free use of all his rainwater, B has some of A's rainwater plus all of B's rain water. But C gets some of B's rainwater (and A's rainwater) and all of C's rainwater. And on and on to Z. Z gets all of his rainwater plus some of A thru Y's.

If all water is used before it flows into the sea, then someone gets more rainwater than falls on their land because A always get less than falls on his land.

We have this situation in North Georgia. All Georgia rivers originate in Georgia. The Northern Chattahoochee River watershed above Atlanta (think A) is 1.0 million acres and produces 4.0 million acre feet (af) of rainfall per year. 3 million people of A withdraw .7 million af per year.

One million downstream users (Think B, C, ...Z, with Z being Apalachicola) get the rest. They get all their Chattahoochee River rainfall (17 million af on their 4.3 million acres) plus 3.0 million of A's rainfall.

They are not happy; they want more of A's rainwater. The effect is that B thru Z want all of their rainwater and most of "Atlanta's."
11.21.2008 7:59pm
Old Timer:
If the roof leaks, and damages the interior of the building, who pays for the repairs?


You're driving down the road and your pickup hits someone's cow. Who pays for beef there, partner? What?—you didn't see the sign on this range? Tough.

If your leaky roof messes with someone's water...
11.21.2008 9:10pm
Soronel Haetir (mail):
In the case of hitting a cow, you may very well be liable for both your car and the cow. I just about had to sue one of Geico's clients when they drug their heels paying for a struck cow.
11.21.2008 10:01pm
Hoosier:
If you outlaw rainwater, only outlaws will have rainwater.



Soronel: What do they do if you hit a gecko?
11.21.2008 11:20pm
Soronel Haetir (mail):
Hoosier:,

Not sure what you mean, the driver was liable even though it occured in the middle of the night on a highway. Most of Idaho is open range, ranchers are only required to keep their animals fenced in if they reside in a herd district, which was not the case where I lived. Once I threatened to go after their client directly they caved.

If you mean what happens if a rancher hits one of his own cows, the answer is I don't know.
11.22.2008 12:01am
NYOPINION (mail):
OGRE &BrianE - I get the water cycle but my evapotranspirated water might wind up in the midwest or Europe depending on prevailing weather patterns - and, though I'm one of dem damn Easteners, I get riparian rights - but stormwater falling from the sky is just not the same as someone upstream of me on a creek or river having to deal with allocation of water rights -

...penned while in Boston @GreenBuild Expo '08 (which is why the late post - had to go to the North End for dinner ) where stormwater capture and re-use was touted as an essential element of sustainable development - if I do move closer to the left coast,I'm takin my rain barrel with me so let 'em come and try to lock me up!
11.22.2008 12:08am
BobDoyle (mail):
So, in years when there is more rain downstream, I take it that the downstream water users are required to ship water to the upstream water users -- NOT!

I presume that the landowners downstream pay less for their land than those upstream because they are more susceptible to water shortages. Why should the upstream people have to subsidize the the downstream landowners?
11.22.2008 12:43am
Soronel Haetir (mail):
BobDoyle,

If you are talking typical western practice, upstream/downstream isn't the key, the key is when the water right right was established. Land with junior or non non-domestic (household) water will in fact be less expensive than land with senior rights. This gets much more complicated by interstate compacts, I can't really speak to how that effects such considerations.
11.22.2008 1:01am
JollyBlue (mail):
Duffy Pratt:


As for the "de minimus" exception some people have advocated, I suppose you wouldn't object to people trespassing and mining on your land just because it was on a very small portion of it?


No, but I also wouldn't prosecute them for the dirt tracked away on their shoes.

There's a piece I'm missing here: it seems to me that if I collect 20 gallons of rainwater, that reduces my drain on the rest of the water supply by 20 gallons (assuming perfect efficiency). So the net supply is the same.

Also, how high up do the water rights start? I keep hearing, "once the water hits the roof...", but what about when it's still a mile up? 200 feet? At what point does it become owned? Because if I could put the collection barrel on stilts, the water is collected without ever touching my roof.

Paul:

If the roof leaks, and damages the interior of the building, who pays for the repairs? If its the building owner, then he owns that water -- because if that water is owned by people downstream, they should be paying for the damage caused by their property.


That was truly beautiful. A legal test worthy of the Talmudic sages!
11.22.2008 1:05am
Rosooki:
The question I see is the question of at what point does 'rain' become 'property'. Steve H. and others keep talking about protection of private property rights, but when does the rain become someone in particular's 'private property' - senior rights to my junior rights?

When it is already in the river heading toward them? When it is runoff that can be blocked? Does it start to belong to them from the moment it is hitting my roof? When it is falling through the air toward my roof? When the clouds are gathering above? I can't see how I can interfere with someone else's property if isn't their property yet.
11.22.2008 8:10am
Rosooki:
Sorry JollyB, should've read your post first!
11.22.2008 8:12am
Rosooki:
And yes I can imagine a day when "all generated electricity belongs to the public" and you'll have to pay the going rate for electricity created by your own solar panels.
11.22.2008 8:14am
Toby:


Folks outside of what used to be known (before they were states) as The Great American Desert might do well to learn them rather than ridicule them.

Many folks outside the Great American Desert realize that the massive investments of our tax money in economically unsound water projects is the only reason settlement was possible in the desert in first place - thus the source of much of the ire regarding water rights.

The funny thing is, most of the law on water rights preceeds the large federally financed water projects. Start your perspective with range wars, not the Hoover Dam. Start your perspective with homesteading, and with a new homesteader upstream destroying your ongoing long-standing business. Consider that the use of these rights has been bought and sold for 150 years.

This is likely to be an expanding area of law, and snark because it is different than in the rainy NW or in the different rules of the East are all I read. Consider instead:

- What if you polluted rather than captured the water. Do water rights expand the scope of parties able to bring a court case for pollution?

- How do these rights synchronize with Scottish fishing rights?

- Am I harmed if you build a large building that blocks sunlight to my property, sunlight that I have invested a good deal in developing a harvesting process for, one that currently [theoretically] keeps me off the grid, or even provides for my retirement?

- What is my solar power is in the window glass of a high-rise helping me to acheive a zero net energy building and you are building traditional high-rise next door? What if this happens several times, and effects the power reliability in the city?

- What if you interfere with my wind patterns instead. Can a wind break planted by my neighbot for soil conservation interfere with my wind farm?

- What is my wind farm is only permitted, but not yet built?

In Texas, noone is surprised when undeveloped mineral rights do not travel with surface rights through multiple subdivisions and transfers. Someone at GreenBuild wants to demonstrate the moral superiority by not recongnizing the externalities of their own behavior (Green for thee, but not for me...). Water rights are simply externalities recongnized and given property value.

Modern sustainability is about recognizing externalities, and, possibly, monetizing them. There is going to be a *LOT* more law like this in the future. Water Rights law is not government overreach, but is government at its libertarian minimum, enforcing property rights. Government overreach would be a majority of voters, probably all newcomers who bought into a subdivision last year, voting to no longer recognize log-standing property rights of others.
11.22.2008 9:11am
Ron Hardin (mail) (www):
It's also been ruled that you can't intercept radio waves going through your own house; at least cell phone frequencies. This was a privacy fix in the wrong place (should have required encryption instead, but corporate lobbying to avoid corporate cost won); where the law used to be that you can listen to anything but can't divulge it if private.

I'd surmise this broke the legal path for theft of service listening to satellite broadcasts, another radio wave you can't intercept.
11.22.2008 9:56am
David M. Nieporent (www):
Where's Mr. Coase when you need him?
11.22.2008 10:02am
Steve H.:

The question I see is the question of at what point does 'rain' become 'property'. Steve H. and others keep talking about protection of private property rights, but when does the rain become someone in particular's 'private property' - senior rights to my junior rights?

When it is already in the river heading toward them? When it is runoff that can be blocked? Does it start to belong to them from the moment it is hitting my roof? When it is falling through the air toward my roof? When the clouds are gathering above? I can't see how I can interfere with someone else's property if isn't their property yet.


I don't think it's a matter of specific molecules being anyone's property. It's a right to a certain quantity of flowing water. So if you are capturing water in a way that interferes with the supply that reaches a downstream but senior appropriator, then you are interfering with that appropriator's water right.

I think that as a matter of logic, there is no way a water agency could grant the permits that were being sought for rainwater collection.

I am assuming that the permit requirement applies to an "appropriation" of water. If the rainwater collection is too trivial to count as an "appropriation," then a permit should not be issued because the activity is not covered by the permit requirement. But if the collection is substantial enough to count as an appropriation, then a permit should not be issued because doing so would interfere with senior rights.

Either way, no permit should be issued, and no government is running amok.
11.22.2008 10:19am
TruePath (mail) (www):
I quite enjoy the irony of people complaining about this on such a libertarian leaning blog. I mean if we approached this from a theoretical perspective there is absolutely nothing different about having a property right to the unimpeded flow of water from the surrounding area than the property right to your home. Given that these rules date back a very long time enforcing these rights can't be seen as an instancce of government seizure, it's purely a policing action to prevent the violation of one person's property rights by another. The sort of thing libertarians claim to think the government should be involved in.

So sure, the amount of water that would be lost from roof collection might be very small but so what? That's one of the problems with property rights. If you couldn't be a douche and demand that your property not be used/taken even in ways any nice reasonable member of our culture would allow it's not really a property right. Just as owning your house and yard gives you the right to be a dick and tell the neighborhood kids they can't walk across your front yard so too does owning a water right give you the right to demand people not collect rain from their roof. Of course in both cases the government shouldn't be enforcing the rule without complaints from the right holder but if asked they should certainly admit that both collecting rain from your roof and walking across your neighbors yard against the right holder's wishes is illegal.

As an aside the fact that roof collection tends to be small doesn't help much as a matter of law since if there was an exception for your roof people might build giant cheap roofs just to collect the water. Ideally the land would come along with the right to collect some percent of falling rain but I don't think a proper libertarian could favor the sort of government seizure and redistribution doing this now would require.

Ultimately my point isn't to knock libertarianism, though I do think many people overlook the harms from complicated contracts, ancient grants of property and conditions (homeowners association) that would result from taking property rights very seriously, but to point out that most of commenters who claim to be libertarian are really more a flavor of conservative than really libertarian.

I mean if your reaction to this story was that's absurd and stupid for the government to prevent me from using the rain water on your own roof, despite knowing that you didn't have a property right to it then your more driven by some cultural notion of what we should be able to do without consulting others than you are by any support for property rights. After all if you think the law is doing something wrong when it supports property rights against your idea of what's the appropriate way to live you are doing the same thing that libertarians complain about liberals doing with their redistributivist programs.
11.22.2008 2:04pm
richard cabeza:
despite knowing that you didn't have a property right to it


Which would be begging the question, not to mention ignoring the fact the matter is on one man's property (you should try to work with the actual defintion of the word, which includes commons claims and is not completely subsumed by it). In the absense of private agreement, there are no other rights involved. Further, in the absence of government decree, there are no other compulsory acts involved. The latter is the main point of this post, since government agencies were directing people what to do with their property.
11.22.2008 3:22pm
Harry Eagar (mail):
'would the state take my mineral rights too w/o just compensation?'

If the state was Hawaii, it would. It did.
11.22.2008 3:38pm
Allan Walstad (mail):
I need a tutorial. How does rain falling on one guy's roof get to belong to another guy? This is not a rhetorical snipe. Can anybody give a brief account of the historical and legal thread?

Also, I still don't have an answer to a question that several other posters have asked one way or another: Suppose I plant a tree? It will use and transpire water. Do I need a permit?
11.22.2008 4:19pm
Old Timer:
I need a tutorial.


Allan Walstad,

After the Utes pass by, burning that roof of yours, then you don't have no more right to the hair on your scalp.

Property is a cultural construct.

I said it already once: In the arid regions of the American West, the rights to land and the rights to water are separate creatures. A deed to land may give you the right to put up a roof —keeping the rain off your scalp— until the Utes, or the Commanches, or the Apaches pass by. But just 'cause your neighbors permit you to put up a roof, doesn't mean your neighbors will permit you to interfere with the uses they've already put to the scarce water supply.

As for trees, what do you say about the Dineh orchards? Don't know who the Dineh people are? Some call 'em Navajos.

There's a lot of folks down in the valleys now. Some of them been there for awhile. Now some Los Angeles law professor wants to send around the war stick and put on paint for a water fight up in the mountains?
11.22.2008 5:27pm
Rosooki:
If by logic we can come to a result as horrible as this one, (that water falling from the sky is not a resource usable by the person who's head it is falling on) then there must be a problem somewhere else in the argument.

In this case it is probably in the idea that someone can have a right to a future supply of water in the first place. In particular the right to a quantity of water that doesn't exist yet.
11.22.2008 7:09pm
scopio_79:
wickard v. filburn people.
11.22.2008 7:57pm
Wacky Hermit (mail) (www):

Otherwise, what if I walk outside during a rainstorm, look up, and open my mouth?

Simple. Pee on the ground. Problem solved. ;)
11.22.2008 8:59pm
Ken Arromdee:
Which would be begging the question, not to mention ignoring the fact the matter is on one man's property (you should try to work with the actual defintion of the word, which includes commons claims and is not completely subsumed by it).

I think the point is that the water rights are not part of the property rights, and moreover, they have never been part of it. The government is not taking the water rights to give them to someone else; the water rights have always been owned by someone else. It's part of the initial distribution of property that changed it from unowned to owned. The landowner is no more justified in complaining that the water belongs to someone else than he is in complaining that a piece of land a half inch outside his backyard belongs to someone else; it never was his to begin with.
11.22.2008 11:42pm
Ken Arromdee:
If by logic we can come to a result as horrible as this one, (that water falling from the sky is not a resource usable by the person who's head it is falling on) then there must be a problem somewhere else in the argument.

In this case it is probably in the idea that someone can have a right to a future supply of water in the first place. In particular the right to a quantity of water that doesn't exist yet.


Consider a somewhat different situation--suppose that the water rights are what you'd expect (the property owner has them), but someone comes up to the property owner and says "for a sum of money, I'll buy the water rights to your property in perpetuity". The property owner then sells the rights. Some years later, the property owner sells the property to another buyer, with a deed which clearly states that the property doesn't include the water rights.

The new buyer then makes the same complaint people are making here--that he can't use the water on his own land. Is he justified?

(If the answer is "no, he's not justified", then you do indeed agree that someone can have a right to a future supply of water, you just disagree on the details of how this may come about. If the answer is "yes, he's justified", then you've just stated that property rights cannot be sold except in bundles, which is a rather odd position.)
11.22.2008 11:48pm
richard cabeza:
Ken Arromdee: In that case, there are two mutually-accepted agreements (water/mineral rights and surface-and-possibly-more rights) that transfer the now-separated property rights.

That's a bad example in understanding government action because resolving the private agreement privately or in civil court is rather different from fighting a large fine and contesting an existing law that may be morally defective by which isn't procedurally defective.

What seems to be the case, giving each party described in the original article the benefit of doubt, is that there's a long-standing law (so we can't blame fickleness of current legislators) that's caused confusion because of poor enforcement (or even blantant disregard) and seeming intrusiveness. One of the best arguments that the law is bad is that non-water-collecting actions make more of a difference in how the water moves than water-collecting actions would.
11.23.2008 1:49am
Mark in Texas (mail):
On the subject of water disputes predating the Hoover Dam:

Arizona and the Colorado River

If you remember the early part of the first Star Wars movie, Luke Skywalker was told by his uncle to repair the condensers in the irrigation system on their farm on the desert planet of Tatooine. Assuming that you had a source of very cheap electricity to power refrigeration units that could condense moisture from the air, would this be an interference in the water rights of others? After all, the water vapor is removed from the air before there is any rain and I think that you might have a very hard time establishing that water vapor in the air was destined to fall as rain within the watershed of the water rights owner.

Were the sand people disappointed plaintiffs who felt that they had been aced out of their water rights in court by clever shyster lawyers hired by Owen Lars, Luke Skywalker's uncle? Having despaired at finding justice in the legal system had they then pursued extralegal means to redress their grievances? The history of violence in the western US before the introduction of water rights laws suggests this is a distinct possibility.
11.23.2008 3:49am
FatWhiteMan (mail) (www):
Living in the foothills of Appalachia and not having spent any time in the arid West, the whole idea of water use and rainwater collection as a matter of law is a foreign concept to me.

My first reaction to this was utter outrage that the government would have the audacity to even publish such a law. Now that I have read a few comments on the basis and history of these laws at least the fact that they exist is no longer so shocking.

Now the part that I still find shocking is that people would actually seek such a difficult and maybe expensive permit to collect water from their roof. First of all needing such a permit would not even occur to me and secondly, bothering to obtain one would not even occur to me either. As far as I am concerned, the public domain ends at my property line. If the government thinks I am doing something wrong I guess they can get a judge to issue a warrant to come inspect my gutters. Instead of worrying about these silly permits, which are just revenue generators usually anyway, just do it without one.

Of course my view may be tainted by the fact that I am a hillbilly living amongst other hillbillies and silly bureaucracy is just that, silly. In fact, I just built a 2,000 square foot house without the need for a single building permit or inspection so I guess I am somewhat spoiled too. Gotta love Appalachia.
11.23.2008 8:16am
pintler:
I must say that the 'a rain barrel is stealing' arguments have been quite persuasive, and I am confronting the fact my past behavior may have been antisocial.

I am in fact conducting a wide ranging review of my behavior looking for any other unethical acts, and I need advice. Over the years I have spent many months - collectively a few years - backpacking in the mountains of Wyoming. This is mostly in watersheds that eventually feed the Colorado, which certainly means there are oversubscribed water rights. I must confess, on all those trips, I simply dipped my canteen into the nearest creek, with no regard whatsoever for the rights of downstream water rights owners.

Furthermore, I can't make a de minimis argument - in the course of the summer we will drink more water hiking than we collect in a year in our rain barrel, and the de minimis argument for that has been roundly rejected.

What should I do to avoid stepping on the clear property rights of others? Fill one of those small army water trailers with a summers worth of tap water from home, and just not go on trips of more than a couple of days, so I can carry all the water we will need?

As an aside: I used to live in Wyoming, and I am aware of the importance of water rights. That said, I predict telling the average Wyoming resident that rain barrels violate water rights is going to result in bemusement and amusement. Wyoming is, IMHE, a state filled with practical people.
11.23.2008 10:48am
Ken Arromdee:
That's a bad example in understanding government action because resolving the private agreement privately or in civil court is rather different from fighting a large fine and contesting an existing law that may be morally defective by which isn't procedurally defective.

If your property has a deed saying you don't own the water rights, and you insist on taking water anyway, exactly the same thing will happen as happens now: nobody will notice unless you ask the government, in which case you'll be told that someone else owns it and you're not allowed to do it. Property rights get enforced by government; in this example it's the property rights of the person who bought the water rights, and in the original example it's the property rights of the downstream people who own the water rights from the start.

There's no real difference between my scenario, where the water rights were sold to someone else, and the scenario where the water rights always belonged to someone else. Government action is not a difference; in both case it's someone else's property right enforced by government.
11.23.2008 11:29am
Allan Walstad (mail):
Fascinating topic for discussion. Wish I knew more about the history.

I can see where people who settle next to a river should be able to have some reasonable expectation that the river will not simply be blocked and all its water appropriated by people upstream. Arguably, that is similar to a lake that gets drained by one of many landowners along the rim. But it would be quite another thing to argue for a property right in negating climatic differences.

Many years ago, visiting San Diego, I noticed that people had nice lawns, but apparently only because of pipes in the ground that kept it watered. Otherwise, it was desert. Well, sorry--if you choose to live in an arid climate, go ahead, but it's not clear to me why you should have a right to impose on people who live in moister regions that get the rain and snowfall that supply the rivers.

Even within an arid region, where people directly access the rainfall on their own properties it would seem to promote more efficient usage. If the water must be permitted to seep into the ground and make its way to rivers, more will be lost to evaporation.

Not being in the anarcho camp, I think there can be a proper role for government in establishing as well as recognizing and enforcing property rights, but respect for liberty demands a rather high presumptive barrier against imposing on what one can do on one's own land, especially regarding something so trivial as collecting rainfall from the roof of your house.
11.23.2008 12:34pm
Sam H (mail):
I went to high school in Abilene Texas and a classmate lived on a ranch. His family kept drilling for water and were disappointed when they kept hitting oil. Water was worth more than the oil to them.

West Texas is like that.
11.23.2008 12:41pm
Guest12345:
If your property has a deed saying you don't own the water rights, and you insist on taking water anyway, exactly the same thing will happen as happens now: nobody will notice unless you ask the government, in which case you'll be told that someone else owns it and you're not allowed to do it.


I'd just make the argument that my roof adsorbs less water than the ground that existed here prior to my house being built. Therefore the run off from my roof is larger than the run off from the initial land and that I was only collecting the difference.
11.23.2008 12:58pm
Ken Arromdee:
I'd just make the argument that my roof adsorbs less water than the ground that existed here prior to my house being built. Therefore the run off from my roof is larger than the run off from the initial land and that I was only collecting the difference.

That's like saying "sure, I broke the window and stole some merchandise from the store, but I left behind an amount of money equal to the price of what I took and what I damaged".

It's still a crime.

You don't get to justify taking someone else's property by saying that you replaced it with something of equal value. They have the rights to the water; you can't say that the water you took is balanced out by the extra water that they get from you having a roof in the first place. You still took it.
11.23.2008 6:40pm
richard cabeza:
No, it's more like saying "sure, I bought up all milk from the store, so you either have to drive to the next one or do without cereal until they get their next shipment."
11.24.2008 1:14am
Ken Arromdee:
The other person who wants the milk and has to drive to the next store doesn't own the milk in the store. If he did, you couldn't tell him you took the milk, but you also left him some milk in another store as compensation. It would still be theft, even though you replaced the milk with more milk.
11.24.2008 10:20am
einhverfr (mail) (www):
For some odd reasons (my member in an electronic engineering society), I get CE News, a magazine (mostly advertising) aimed at the civil engineering community. One of the things that struck me about these regulations is that rainwater diversion and detention is a standard part of many or even most commercial building projects, from horse racetracks to office buildings. The issue is that rainwater is a hazard in many cases which has to be managed with cisterns, diversion channels, etc.

It seems to me that rainwater detention (which is what is really talked about here) is sufficiently routine and even required in significant building projects that banning it would raise in my mind questions of vagueness.

If the argument is that you can't use someone else's water, but detaining it for non-use is fine then this makes no more sense regarding property rights than an argument that I can pick all the apples from your tree and store them, but if I eat them that is a crime.
11.24.2008 11:47am
Nibbles:
If you want to understand the history of prior appropriation water rights:

Think back to about 1860. The first white settler in a desert area picks out a nice spot at the mouth of a canyon to start a homestead. There's flat ground there to plant some veggies and hay, and a little stream coming down the canyon that he can dam to make a pond for irrigation.

Now, that stream has a catchment area of tens of thousands of acres and all that area is necessary to generate the stream flow to irrigate just a few tens of acres.

Under the original Homestead act, the settler can just claim 160 acres as his homestead. That will be the land he has planted at the mouth of the canyon, but he is still dependent on the entire catchment area above his homestead. Without that water, his entire 160 acre homestead is just about enough to support a jackrabbit or two.

With the water he can grow enough hay to support several dozen cattle through the winter. In the summer they graze on public rangeland. So in order to modestly support a family, the homesteader has to utilize thousands and thousands of acres that he doesn't own, and couldn't own even if he wanted to.

It would have made much more sense to grant the homesteader enough land to live on. But that didn't happen because congress was made up of ignorant wet-landers (just like most of the people commenting here) who thought 160 acres (later increased to 640 acres) was a huge amount of land. So you get wierd things like prior appropriation water rights and the Taylor Grazing Act to try and get around the deficiencies of the Homestead Act.
11.24.2008 1:27pm
random_computer_geek (mail):
Late to the party, but I thought that I had posted this yesterday.

So under the logic given by those in agreement with the idea (and laws) that rain is owned by someone other than who's head it fails on, wouldn't this device be illegal? It's pulling the water out of the air.

www.guardian.co.uk/environment/2008/nov/
23/water-mill-eco-invention">

Also, other states look at roaming cattle differently that than the ranchers that get the free ride of grazing on public property. Cattle must be fenced in; if your cow/bull/horse gets out and is hit by a vehicle, you could be libel for the damage.

Comparing mineral rights to water rights has some obvious problems. The most notable one with granting it to rain is the fact that the oil or minerals are present on and are an integral part the property; precipitation isn't. It is a random factor; in essence, the government is creating an geographical ownership interest in the weather. Given all the factors that can affect precipitation patterns, this legal position is not grounded in logic or modern science, but the twisted reasoning that contributes to the popular stereotype of lawyers/law. That stereotype being that the legal profession does not exist to promote justice, but attempts to subvert it with technicalities, procedures, and rules.

The river/creek comparisons arguably hold up a little better; but still is not directly comparable.
11.25.2008 8:04am
Soronel Haetir (mail):
RCG,

I'm not sure what you are trying to get at pointing out the differences between open range and herd districts. Both systems exist and both systems work. Or should law be absolutely uniform across the nation? If so why should we bother having states at all?
11.25.2008 9:09am
Randy R. (mail):
" This is mostly in watersheds that eventually feed the Colorado, which certainly means there are oversubscribed water rights.:"

Well, there's an understatement.

This has really been enlightening, as I didn't know exactly how these water laws actually worked.

I guess the root problem here is too many people using too little water. I don't care how many laws you pass, or what property rights are respected, you aren't going to get any more water. And as the population increase in these parts, the problem will only get worse, not better.

Here's a thought -- let's not encourage any more growth in these dry areas. In fact, let's try shrinkage. There are plenty of other places that need the population and can handle them much better that these dry areas.

As for the property rights argument, i say baloney. If you bought a piece of land that isn't worth anything unless you force everyone else to contribute to your water needs, then my question is why should I subsidize that? If your land isn't worth anything, that's YOUR tough luck. Sell it and buy a better piece of land. But don't make everyone else suffer just so that you can raise cattle or crops that need more water than nature was willing to put there in the first place.
11.26.2008 12:36am