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.
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?
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."
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.
You don't like it... move back East —quick-like. Or end up owning a plot six foot long and six foot deep.
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.
Hal Duston - Capture that dangerous runoff water and send it West, we'll pay good money for it!
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.
Just wow.
The proof of the pudding is in the eating.
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.
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.
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?
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?
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?)
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
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.
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 !
I'm not making any comment about whether the rule is sensible or not (I'm not quite sure), just making this observation.
Got axed when some idiot Californian mayor tried to tax satellites passing over his city.
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!)
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.
Law makes long spokes of the short stakes of men.
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.
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?
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 . . .
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.
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.
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.
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.
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?
Exactly what law do you think needs defending?
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?
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?
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.
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.
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.
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
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.
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.”
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...
Soronel: What do they do if you hit a gecko?
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.
...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!
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?
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.
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:
That was truly beautiful. A legal test worthy of the Talmudic sages!
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.
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.
I'd surmise this broke the legal path for theft of service listening to satellite broadcasts, another radio wave you can't intercept.
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.
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.
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.
If the state was Hawaii, it would. It did.
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?
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?
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.
Simple. Pee on the ground. Problem solved. ;)
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.
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.)
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.
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.
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.
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.
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.
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.
West Texas is like that.
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.
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.
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.
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.
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?
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.