Rebecca Nelson thought that she was helping the environment when she captured rainwater in a barrel and use it on her garden. Car dealer Mark Miller thought he was “greening” his facility with a cistern to use to wash vehicles. They were both violating the law in Utah where it is against the law to capture rain water. With California creating a “water bank,” one can imagine an expanded array of hydrocrimes, including bank robbery with intent to garden.
Boyd Clayton, the deputy state engineer, explained that citizens who capture water are depriving people with water rights: “Obviously if you use the water upstream, it won’t be there for the person to use it downstream.”
“Utah’s the second driest state in the nation. Our water laws ought to catch up with that,” Miller says.
It is hard to imagine who Col. Jack Ripper of Dr. Strangelove will be able to make his only beverage of rye and rainwater. It is not clear how pool owners fare but the law seems turn on a matter of intent. You can have a pool but not a cistern or barrel. Birdbaths are an obviously gray area.
Next time Clayton and the water police appear, Utahans can always sing out in protest:
Raindrops keep fallin’ on my head
And just like the guy whose feet are too big for his bed
Nothin’ seems to fit
Those raindrops are fallin’ on my head, they keep fallin’So I just did me some talkin’ to the sun
And I said I didn’t like the way he got things done
Sleepin’ on the job
Those raindrops are fallin’ on my head, they keep fallin’But there’s one thing I know
The blues they send to meet me won’t defeat me
It won’t be long till happiness steps up to greet meRaindrops keep fallin’ on my head
But that doesn’t mean my eyes will soon be turnin’ red
Cryin’s not for me
‘Cause I’m never gonna stop the rain by complainin’
Because I’m free
Nothin’s worryin’ me
For the full story, click here.
Gyges,
“I think your point may be moot. Wouldn’t you admit that for all intensive purposes once the water hits whatever gathering device is used, it’s on the ground? It would therefore be subject to the well established doctrines you’ve mentioned,”
That’s just my point; the water captured does not return to the ground system by definition. Thus, in a huge leap of logic, laws against rainwater collection ASSUME that the rain or snow you collect would “[OTHERWISE return to the stream system or to groundwater, and when it returns it is owned by someone who has a legal right to it.”
http://www.rockymountainnews.com/news/2007/nov/17/a-solution-that-holds-water/
Assuming that the State has sovereign power over the water in the sky above your land is the first leap.
The second leap is drafting the law without any constitutional basis for exercising such power.
Example, Colorado’s constitution only refers only to stream water.
While the Utah constitution doesn’t even go that far (see Article XVII, Section 1. [Existing rights confirmed.])
Finally, rainwater falling to the ground is in no way guaranteed to find its way back to the water table and requires labor to acquire it. Thus these laws not only exceed constitutional and real property law bounds, but they also contradict the theory of property by which the founders staked their claim with the Declaration of Independence.:
“Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.” (J. Locke, 2nd Treatise, Sec. 5 ‘On Property’)
Sure Patty, sure.
Your “writing” style just happens to perfectly mimic a well known text transfer issue.
😐
Sure.
You just randomly
break sentences
like this.
Because its your
writing style.
😀
Sure it is.
Wrong.
I don’t have any MS software on my PC – never have.
I hate Microsoft! I am an avid Apple user.
This is my writing style and I make my share of typos – just like JT
because I am BUSY.
I am a champion speller – since early childhood!
And since you want to start with the spell checking again, ….well,… I wasn’t going to say anything, but since you brought it up.
Lets all observe a little anomoly we see with so many of Patty C’s comments.
Notice how in her comments where she says anything more than a sentence or two, we always find these odd breaks in the sentence.
The line just “breaks” and a new line starts, right in the middle of a sentence, as you can see from this example taken from her Autobiography posted earlier.
—
Patty C
1, September 8, 2008 at 11:40 pm
He also died last year – of pancreatic CA
We hadn’t spoken since 2000 and only because I had become aware, years after out divorce, he figured out how to steal (MORE)
money from me.
No matter.
I have a new, more interesting, and motivating career and a new,
more interesting, partner in life and love, fantastic sex, an idyllic lifestyle – overall
—
Note the two unusal line breaks in these statements?
😐
Ever wonder where they come from?
Well, they come from using a word processor.
😐
When you use a word processor, like MS Word, or Corel Word Perfect, or any of the other processors out there, the formatting doesn’t transfer correctly to the HTML page (this blog) so line breaks occur in the transfer.
Its a common issue when cutting and pasting from Word Processor programs to blogs and chat rooms.
So what does this mean?
It means Patty is using a Spell Checker on her comments, prior to posting.
😐
Thats right.
The woman who apparently hates me and several others in here so badly that when she cannot defeat us in open debate, turns to spell checking our posts to accuse us of being ignorant because of a few typographical errors in our rapidly written comments, is herself, using a spell checking program prior to commenting in here.
There is no doubt here. This is a formatting transfer error that you can easily reproduce yourselves should you doubt it.
Patty C is such a bad speller, she has to use a spell checker to post a comment for fear of a spelling or grammatical error.
😐
So while I will once again gladly admit to making numerous typographical errors in my comments, I also gladly admit that I am not so illiterate that I need to run my comments through a spell checker prior to posting them.
Like Patty does.
😐
*This Comment Is Proudly Presented in Original “First Draft” condition.
Typos and all.
Thank you for admitting to calling me names, right after declaring to everyone that you don’t call names.
😐
You’re a smart one Patty, thats for sure.
‘Ape’, like Otto, in ‘A Fish Called Wanda’, is in in reference to your new handle, Cromag’- because you ‘Kant’ even spell!
Patty C said…
You are the one who pitches fits when he loses an argument and switches to personal attack mode with either the big fat mouth/big fat ‘arse’ insults.
I can assure you, and anyone else who is interested, I do not!
Really?
So when you call me names like “big ape”, thats your way of being friendly?
😐
Go figger.
Bob Esq. is ‘uninformed’ 😉
http://www.martenlaw.com/news/?20080723-rainwater-harvesting
Environmental News
July 23, 2008
Box of Rain – States Take a Closer Look at Rainwater Harvesting
and Cro,
You are the one who pitches fits when he loses an argument and switches to personal attack mode with either the big fat mouth/big fat ‘arse’ insults.
I can assure you, and anyone else who is interested, I do not!
And I never have… My thighs are ‘cottage-cheese free’, too!
CroMM,
Well then I agree, assuming that the law has remained unchanged, it’s a bad law. Although I stand by my statement that this paticular case is reasonable and is being handled well, I don’t find anything wrong with the idea of regulating medium to large scale harvesting of rainwater.
And sorry for including my own thoughts on the topic, instead of utilizing Pattys method of debate, which is to get angry and upset at anyone disagreeing with her, then begin praising her own lifes acheivements as she recounts them all the way down to her sex life, as if that somehow shores up her position, and then of course finally simply posting some long winded cut and paste she found on the internet that she thinks supports her position so as to bury any real conversation on the topic.
😐
Cromey don’t play that.
Gyges
1, September 9, 2008 at 3:30 pm
CroMM,
I’ll agree with you if the law actually forbids those things, it’s a bad law. However, there’s no proof that the law prohibits any of those things
The trash can incident is one I speak from on experience. A woman I knew in Salt Lake was cited back in the 1980s for not covering her trash can lids. This was the case I was referring to earlier. She had several regular size aluminum trash cans and when the trashmen came they never put the lids back on, and she was cited for leaving them uncovered, hence collecting rain water. This law is not new, its been around for a while. Back in the 80s there was drought, and water conservation was a big deal. Her case was dismissed without even going to court, but the fact was it was a stupid law.
Thats why I commented on this thread, because I’d seen the law in play. On the other hand there were laws with regards to sprinklers, and when they could be turned on, etc. These laws had to do with actually depleting the water tables, and during a drought, made sense.
But the collecting rain law, which orginally I think was intended to target farmers using wide spread water collection methods were written in such a way as to cover anyone “catching the rain”, and is why there are examples of silliness like the two in this article.
As a people, we need to ensure our laws make sense, and are not so clumsily written as to encompass “licensing the rain”.
Bob Esq. is ‘uninformed’ 😉
http://www.martenlaw.com/news/?20080723-rainwater-harvesting
Environmental News
July 23, 2008
Box of Rain – States Take a Closer Look at Rainwater Harvesting
By Jeff Kray
While water withdrawals from streams and wells are often closely monitored and contentious, regulators have historically tended to look the other way when it comes to water captured as rain. But as water becomes more scarce, regulators have begun to more closely scrutinize the increasingly popular practice of “rainwater harvesting” – collecting rainwater in barrels, buckets, and tanks.
Presently, there is little consistency among states in regulating the harvesting of rainwater. Some states, like Colorado, prohibit rainwater harvesting.[1] Other states, like Washington, are considering requiring a permit only for rainwater capture systems above a threshold amount.[2] In other places – notably Santa Fe, New Mexico – rainwater harvesting is actually required. Systems for rainwater capture must be installed on every new 2,500 square foot or larger residential or commercial building in that city.[3] Arizona, Hawaii, Kentucky, Ohio, Texas, and West Virginia are all either regulating or considering regulating rainwater harvesting.[4]
What is Rainwater Harvesting?
Rainwater harvesting is the collection, storage, and conveyance of rain as a water source. As the nation realizes the limits of its existing freshwater resources attention is returning to rainwater capture to help ensure adequate water supplies. Rainwater harvesting systems range from a barrel placed under a downspout to multiple tanks with pumps and controls. Residential collection systems can range from a 50-gallon rain barrel to cisterns of 30,000 gallons or more. Commercial systems can be much larger. As discussed below, rain water harvesting can provide several environmental benefits.
Catching and storing rain is an age-old practice throughout the world. In China, rainwater harvesting may date as far back as 6,000 years.[5] In India, the practice dates back over 4,000 years and traditionally meant storing water in tanks or reservoirs.[6] “By some estimates, 20,000 villages in India are harvesting their rains.”[7]
In the United States, water resources are primarily governed by state, rather than federal, government. State and local governments have taken opposing approaches to rainwater. As noted above, for example, Colorado assumes that rainwater contributes to streamflows and, therefore, prohibits rainwater capture systems.[8] Similarly, local and state building codes, zoning laws, and other regulations in Colorado and other states may limit rainwater harvesting’s availability.
In contrast, the trend in other states is moving towards encouraging rainwater harvesting. In 2005, for instance, the Texas legislature created a committee to evaluate and recommend minimum water quality guidelines and standards for rainwater use.[9] Texas provides financial incentives for rainwater capture systems and water utilities in Austin and San Antonio encourage rainwater harvesting to conserve water.[10] Under such policies, professional companies have installed more than 400 full-scale rainwater harvesting systems in central Texas and, over the last ten years, homeowners have installed more than 6,000 rain barrels through the City of Austin’s incentive program. Washington appears to be on the verge of adopting an approach to rainwater harvesting regulation similar to that of Texas.
Rainwater Harvesting in Washington State
Washington law broadly defines water resources as “all water above, upon, or beneath the surface of the earth, located within the state.”[11] Rainwater is, therefore, a state water resource the use of which through harvesting may require a permit. In the past seven legislative sessions, the Washington Legislature has unsuccessfully attempted to define how much rainwater capture is exempt from the permit requirement. Despite these efforts, existing law still provides no clear guidelines on the issue.
The Washington Department of Ecology has created a de facto exemption for certain rainwater harvesting and does not require homeowners to obtain water right permits to collect and store small rainwater amounts.[12] At the same time, Ecology has not yet provided guidance as to what it considers an amount of water that might trigger the need to obtain a permit. As a result, homeowners, businesses, non-profits, and other entities have been capturing rainwater from roofs and other suitable services without permits, but also without certainty that they are free from potential enforcement. Ecology has now determined to provide further guidance by rule.
For water quality purposes, capturing rainwater before it becomes stormwater runoff not only decreases the amount of stormwater that may need treatment, but it also decreases the amount of water that quickly runs off urbanized land into local streams, often carrying pollutants from human activities and scouring gravel from their beds, deepening and degrading them in the process.[13] In Washington’s Puget Sound region and in some other urban areas, stormwater and wastewater also sometimes share the same sewer line in what are called combined sewer systems. Large storm events can create so much stormwater that it exceeds the combined sewer system’s capacity and, as a result, the untreated excess flows into local lakes, streams, or the Puget Sound in what are called a combined sewer overflows (CSOs). The cumulative effect of many large scale rainwater collection systems may decrease the frequency of CSOs.
Washington has two distinct climates. East of the Cascades typical rainfall averages 10-20 inches, less for central Washington and more for the Cascade foothills and the northeast and southeast corners. West of the Cascades, typical rainfall averages 30-60 inches in the lowlands and double that for the Cascade foothills and the Olympic Peninsula.[14] Similarly, water is most limited on both sides of the state in summer and early fall, the time at which the demands are highest.
The state’s challenge is to define the permitting requirements for rainwater collection in a manner that differentiates between systems that cause little, if any, hydrologic impact (the vast majority of small systems) and those systems that could impair other water rights, notably in closed basins where Ecology is not issuing new water rights. For example, 50-gallon rain barrels used to gather water for residential urban gardens may provide stormwater management benefits without impairing water resources, whereas rainwater collection for consumptive use, such as irrigation, could potentially impair other water rights by limiting water amounts that would otherwise flow into freshwater streams with their own water rights or streams that supply other water right holders. The problem is that Washington has never defined the threshold for de minimis rainwater harvesting. As a result, Ecology will need to draft its proposed rule cautiously to avoid legal challenges asserting that it has exceeded its legal authority.
Seattle Public Utilities recently received a regional water right permit from Ecology to capture and put to use approximately 23,000 acre-feet of rainwater that falls on rooftops in areas of the city served by CSOs.[15] Similarly, island residents in San Juan County anticipate that they will be able to legally continue using rain for their water supply under island-wide water permits that Ecology is expected to issue in fall 2008.[16] Ecology’s proposed rule would not affect either the regional rainwater permit recently obtained by the City of Seattle, or future island-wide permits in San Juan County.
For many other actual or potential rainwater harvesting systems, obtaining permits is administratively and economically unfeasible. Few homeowners are likely to engage in Washington’s water right permitting process for a rain barrel, nor is Ecology likely prepared to handle a large volume of such applications. For such smaller systems, the solution is for Washington to clearly define which ones are required to obtain permits and which are not.
Washington’s Rainwater Collection Rule
Ecology currently envisions a rule recognizing and clarifying its historical permit exception for capturing, storing, and using small rainwater amounts. Furthermore, Ecology plans to create a distinct permit application for individuals and regional entities that plan to construct rainwater collection systems that do not qualify for the permit exemption, and the rule will authorize priority processing of those applications due to their stormwater management benefits.[17]
The proposed rule could include:
* Defined threshold limits, below which a water right permit will not be required.
* A distinct permit application process for individuals and groups that plan to construct rainwater harvesting systems that do not qualify for the permit exemption.
* Authorization for Ecology to expedite (priority process) rainwater permits due to their stormwater management and other environmental benefits.
Ecology is seeking public comment on where it should set the threshold for requiring a water right for rainwater harvesting. It has not yet set a timetable for its proposed rule or provided a draft for public comment.
Conclusion
Policymakers are beginning to remove hurdles to implementing rainwater capture systems and creating incentives for investing in such systems. Rainwater harvesting has the potential to provide outdoor irrigation and replace other water resources for indoor uses such as toilet flushing. As the legal and technical availability of rainwater expands, Washington and other states have signaled that they will also continue to ensure that the law protects existing water rights.
For more information on rainwater harvesting and Marten Law Group’s water resources and water quality practices please contact Jeff Kray
Bob Esq. is ‘uninformed.
http://www.martenlaw.com/news/?20080723-rainwater-harvesting
Jeff Kray is a partner at Marten Law Group whose practice focuses on water resources and environmental, civil, and appellate litigation. He represents public and private clients with an emphasis on cases involving regulatory compliance and civil liability. Jeff represents clients in actions involving sites in Washington, Alaska, Oregon, Missouri, and California.
More articles by Jeff Kray
* Washington State First to Require Low Impact Stormwater Management Techniques [9/3/08]
* EPA Rule Exempts Water Transfers from NPDES Permit Requirements [6/18/08]
* Trial Court Partially Invalidates Washington’s Municipal Water Law – Developers Not Entitled to Municipal Water Supplier Exemption [6/11/08]
* Washington Municipal Water Suppliers Could Lose Unused Water Rights by September, If Ecology Position Prevails in Key Test Case [5/21/08]
* Hearings Board Turns Back First “As Applied” Challenge to Washington State Municipal Water Law [5/7/08]
* A Perfect Storm(water) [3/19/08]
Environmental News
July 23, 2008
Box of Rain – States Take a Closer Look at Rainwater Harvesting
By Jeff Kray
While water withdrawals from streams and wells are often closely monitored and contentious, regulators have historically tended to look the other way when it comes to water captured as rain. But as water becomes more scarce, regulators have begun to more closely scrutinize the increasingly popular practice of “rainwater harvesting” – collecting rainwater in barrels, buckets, and tanks.
Presently, there is little consistency among states in regulating the harvesting of rainwater. Some states, like Colorado, prohibit rainwater harvesting.[1] Other states, like Washington, are considering requiring a permit only for rainwater capture systems above a threshold amount.[2] In other places – notably Santa Fe, New Mexico – rainwater harvesting is actually required. Systems for rainwater capture must be installed on every new 2,500 square foot or larger residential or commercial building in that city.[3] Arizona, Hawaii, Kentucky, Ohio, Texas, and West Virginia are all either regulating or considering regulating rainwater harvesting.[4]
What is Rainwater Harvesting?
Rainwater harvesting is the collection, storage, and conveyance of rain as a water source. As the nation realizes the limits of its existing freshwater resources attention is returning to rainwater capture to help ensure adequate water supplies. Rainwater harvesting systems range from a barrel placed under a downspout to multiple tanks with pumps and controls. Residential collection systems can range from a 50-gallon rain barrel to cisterns of 30,000 gallons or more. Commercial systems can be much larger. As discussed below, rain water harvesting can provide several environmental benefits.
Catching and storing rain is an age-old practice throughout the world. In China, rainwater harvesting may date as far back as 6,000 years.[5] In India, the practice dates back over 4,000 years and traditionally meant storing water in tanks or reservoirs.[6] “By some estimates, 20,000 villages in India are harvesting their rains.”[7]
In the United States, water resources are primarily governed by state, rather than federal, government. State and local governments have taken opposing approaches to rainwater. As noted above, for example, Colorado assumes that rainwater contributes to streamflows and, therefore, prohibits rainwater capture systems.[8] Similarly, local and state building codes, zoning laws, and other regulations in Colorado and other states may limit rainwater harvesting’s availability.
In contrast, the trend in other states is moving towards encouraging rainwater harvesting. In 2005, for instance, the Texas legislature created a committee to evaluate and recommend minimum water quality guidelines and standards for rainwater use.[9] Texas provides financial incentives for rainwater capture systems and water utilities in Austin and San Antonio encourage rainwater harvesting to conserve water.[10] Under such policies, professional companies have installed more than 400 full-scale rainwater harvesting systems in central Texas and, over the last ten years, homeowners have installed more than 6,000 rain barrels through the City of Austin’s incentive program. Washington appears to be on the verge of adopting an approach to rainwater harvesting regulation similar to that of Texas.
Rainwater Harvesting in Washington State
Washington law broadly defines water resources as “all water above, upon, or beneath the surface of the earth, located within the state.”[11] Rainwater is, therefore, a state water resource the use of which through harvesting may require a permit. In the past seven legislative sessions, the Washington Legislature has unsuccessfully attempted to define how much rainwater capture is exempt from the permit requirement. Despite these efforts, existing law still provides no clear guidelines on the issue.
The Washington Department of Ecology has created a de facto exemption for certain rainwater harvesting and does not require homeowners to obtain water right permits to collect and store small rainwater amounts.[12] At the same time, Ecology has not yet provided guidance as to what it considers an amount of water that might trigger the need to obtain a permit. As a result, homeowners, businesses, non-profits, and other entities have been capturing rainwater from roofs and other suitable services without permits, but also without certainty that they are free from potential enforcement. Ecology has now determined to provide further guidance by rule.
For water quality purposes, capturing rainwater before it becomes stormwater runoff not only decreases the amount of stormwater that may need treatment, but it also decreases the amount of water that quickly runs off urbanized land into local streams, often carrying pollutants from human activities and scouring gravel from their beds, deepening and degrading them in the process.[13] In Washington’s Puget Sound region and in some other urban areas, stormwater and wastewater also sometimes share the same sewer line in what are called combined sewer systems. Large storm events can create so much stormwater that it exceeds the combined sewer system’s capacity and, as a result, the untreated excess flows into local lakes, streams, or the Puget Sound in what are called a combined sewer overflows (CSOs). The cumulative effect of many large scale rainwater collection systems may decrease the frequency of CSOs.
Washington has two distinct climates. East of the Cascades typical rainfall averages 10-20 inches, less for central Washington and more for the Cascade foothills and the northeast and southeast corners. West of the Cascades, typical rainfall averages 30-60 inches in the lowlands and double that for the Cascade foothills and the Olympic Peninsula.[14] Similarly, water is most limited on both sides of the state in summer and early fall, the time at which the demands are highest.
The state’s challenge is to define the permitting requirements for rainwater collection in a manner that differentiates between systems that cause little, if any, hydrologic impact (the vast majority of small systems) and those systems that could impair other water rights, notably in closed basins where Ecology is not issuing new water rights. For example, 50-gallon rain barrels used to gather water for residential urban gardens may provide stormwater management benefits without impairing water resources, whereas rainwater collection for consumptive use, such as irrigation, could potentially impair other water rights by limiting water amounts that would otherwise flow into freshwater streams with their own water rights or streams that supply other water right holders. The problem is that Washington has never defined the threshold for de minimis rainwater harvesting. As a result, Ecology will need to draft its proposed rule cautiously to avoid legal challenges asserting that it has exceeded its legal authority.
Seattle Public Utilities recently received a regional water right permit from Ecology to capture and put to use approximately 23,000 acre-feet of rainwater that falls on rooftops in areas of the city served by CSOs.[15] Similarly, island residents in San Juan County anticipate that they will be able to legally continue using rain for their water supply under island-wide water permits that Ecology is expected to issue in fall 2008.[16] Ecology’s proposed rule would not affect either the regional rainwater permit recently obtained by the City of Seattle, or future island-wide permits in San Juan County.
For many other actual or potential rainwater harvesting systems, obtaining permits is administratively and economically unfeasible. Few homeowners are likely to engage in Washington’s water right permitting process for a rain barrel, nor is Ecology likely prepared to handle a large volume of such applications. For such smaller systems, the solution is for Washington to clearly define which ones are required to obtain permits and which are not.
Washington’s Rainwater Collection Rule
Ecology currently envisions a rule recognizing and clarifying its historical permit exception for capturing, storing, and using small rainwater amounts. Furthermore, Ecology plans to create a distinct permit application for individuals and regional entities that plan to construct rainwater collection systems that do not qualify for the permit exemption, and the rule will authorize priority processing of those applications due to their stormwater management benefits.[17]
The proposed rule could include:
* Defined threshold limits, below which a water right permit will not be required.
* A distinct permit application process for individuals and groups that plan to construct rainwater harvesting systems that do not qualify for the permit exemption.
* Authorization for Ecology to expedite (priority process) rainwater permits due to their stormwater management and other environmental benefits.
Ecology is seeking public comment on where it should set the threshold for requiring a water right for rainwater harvesting. It has not yet set a timetable for its proposed rule or provided a draft for public comment.
Conclusion
Policymakers are beginning to remove hurdles to implementing rainwater capture systems and creating incentives for investing in such systems. Rainwater harvesting has the potential to provide outdoor irrigation and replace other water resources for indoor uses such as toilet flushing. As the legal and technical availability of rainwater expands, Washington and other states have signaled that they will also continue to ensure that the law protects existing water rights.
For more information on rainwater harvesting and Marten Law Group’s water resources and water quality practices please contact Jeff Kray
[1] Colorado’s Division of Water Resources maintains that rain is assumed to ultimately contribute to streamflows and is deemed state property. Rain barrels are, therefore, illegal. M. Subramanian, Rainwater Harvesting Catches the Attention of State and Local Government, Western Water Law (June 2008). Colorado is considering a bill that would permit rainwater harvesting. See proposed Senate Bill (SB) 08-119.
[2] Ecology has conducted several public meetings about its proposal and is preparing, but has yet to release, a draft rule.
[3] Santa Fe County, N.M. Municipal Code § 2.4.1 (2007).
[4] Rainwater Harvesting Catches the Attention of State and Local Government, Western Water Law (June 2008).
[5], Rainwater Harvesting Catches the Attention of State and Local Government, Western Water Law (June 2008).
[6] , Thirsty Indian metropolis finds an answer in the rain, Christian Science Monitor (March 20, 2008).
[7] Fred Pearce, When Rivers Run Dry, p. 266 (2006).
[8] Id.
[9] Id., citing Texas’ House Bill (H.B.) 2430 (2005).
[10] Id.
[11] RCW 43.27A.020.
[12] Focus on Proposed Rainwater Rule, Washington Department of Ecology (June 2008).
[13] http://www.ecy.wa.gov/programs/wr/hq/rwh_sw.html.
[14] http://www.ecy.wa.gov/programs/wr/hq/rwh_augm.html.
[15] Water Briefs at p. 24, The Water Report #53 (July 15, 2008).
[16] Id.
[17] http://www.ecy.wa.gov/programs/wr/hq/rwh_rule.html.
Marten Law Group provides the materials and information contained in this website for its clients and non-client internet users for informational purposes only. This website is not a substitute for legal advice. Please consult with your legal counsel for specific advice and/or information. Using or accessing this website does not create an attorney-client relationship between Marten Law Group and the accessing user or browser.
Bob,
Thank you for the explanation, it did clear some things up. I had misunderstood what you were trying to say, my apologies.
I think your point may be moot. Wouldn’t you admit that for all intensive purposes once the water hits whatever gathering device is used, it’s on the ground? It would therefore be subject to the well established doctrines you’ve mentioned, regardless of the point of origin. Other then material, what essential difference is there between a tub sitting on the ground and a naturally occurring depression on someone’s land?
‘In the case of collecting rain water, I argue that the state lacks jurisdictional power to legislate and enforce the laws alluded to in the above article.’
*****
Tell that to the State Engineer!
Water Rights
With the passage of H.B. 51, Water Rights Amendments, the Utah Legislature enacted a bill that will potentially affect almost every water user in the state. At issue is the potential forfeiture of water rights for nonuse. The primary purpose of H.B. 51 is to protect public water suppliers from forfeiture of water rights needed to meet the reasonable future water requirement of the public. This protected future water requirement is defined as the water needed for the next 40 years within the public water supplier’s projected service area based on projected population growth or other water use demand. A community water system’s projected service area is the area served by the system’s distribution facilities and expands as those distribution facilities expand.
In addition to the exemption for public water suppliers, H.B. 51 also creates exemptions from forfeiture for: (a) water rights used according to a lease or other agreement, (b) water rights approved for use on land subject to an approved government fallowing program, (c) water rights that are subject to an approved change application that is diligently pursued, (d) water rights to store water in accordance with the Groundwater Recharge and Recovery Act, (e) water rights for water that is unavailable due to the priority of the water right, and (f) supplemental water rights when sufficient water is available under other water rights.
H.B. 51 also changes the time period after which a water right is subject to forfeiture for nonuse from five to seven years; clarifies that a water right may only be forfeited through judicial action; simplifies the nonuse application process; and allows a shareholder to file a nonuse application. H.B. 51 became effective May 5, 2008, and amended Section 73-1-4 of the Utah Code.
CroMM,
I’ll agree with you if the law actually forbids those things, it’s a bad law. However, there’s no proof that the law prohibits any of those things. We can make assumptions based on what the article says, but we’d be making them on very limited information. For instance there may be a quantity threshold, or maybe the collection has to be intentional, in either case it wouldn’t be enforced against your clogged gutters or trashcan lids. I don’t know what the law itself says, I haven’t found a copy of the law and the wording on the gov. websites is a little vague.
So here’s where I stand: I think for all the reasons that I’ve mentioned earlier that this instance of enforcement is reasonable. If they starts cracking down on people with bird baths or barrels for their garden then I’ll join you in saying the law is outrageous.
Gyges,
“Bob,
You’ll have to explain to me how “all waters” doesn’t include rain water. Also why stopping rain water from reaching the aquifer doesn’t constitute diverting it.”
I apologize if my brief comments seem confusing, but there are a few basic principles of property law, the genesis principles if you will, that if violated negate the entire system of laws.
First, if you picked up any treatise on the topic of Eminent Domain, e.g. Nichols on Eminent Domain, you’ll notice that in the very first chapter there’s a discussion on the origin of the power. That power has its origin dating back to the earliest feudal times; i.e. that sovereign power originates in the land. Thus, the power of the sovereign to effectuate a taking of land, or affect the land in any way so as to benefit the public, is not so much an exercise of power over a land owner’s right, but far more an exercise of the sovereign’s inherently retained right in the land.
When a state declares that it owns the rights to all navigable waters within its boundaries, it does so based upon the centuries of real property law permitting it to do so as alluded to above. Riparian water rights deals with the rights of land owners adjacent to rivers, streams, ponds, etc.
A recent (1920’s) spin off of riparian rights has been the prior appropriation doctrine. The appropriation doctrine deals with WATER ON LAND.
As set forth within the Colorado State Constitution (the State that essentially started the law):
“Section 5. Water of streams public property. The water of every natural stream, not heretofore appropriated, within the state of Colorado, is hereby declared to be the property of the public, and the same is dedicated to the use of the people of the state, subject to appropriation as hereinafter provided.
Section 6. Diverting unappropriated water priority preferred uses. The right to divert the unappropriated waters of any natural stream to beneficial uses shall never be denied. ….”
And where does appropriation begin?
“The first step of an appropriation is AN ACTION ON THE GROUND, such as a survey, coupled with an existing intent to apply the water to beneficial use. The appropriation date of a water right is the earliest date on which the applicant can demonstrate the initiation of the appropriation: i.e., the coexistence of both an intent to appropriate and an action on the ground manifesting that intent.”
http://www.waterinfo.org/colorado-water/colorado-water-rights
As I alluded before, the problem with laws against collecting rain water stems from the state’s lack of ‘grounded’ sovereign power to take the land owners rain from the sky or the chattel-containers in which it is collected.
N.B. Once the rain water becomes property, it is afforded every state and federal property right protection yet is also subject to various tort law exceptions that may mandate forefeiture. (e.g. Miller v. Schoene — where State’s use of condemnation power to destroy rusted cedar trees was not in excess of power of eminent domain)
My main point has been, and still is, that a legislature cannot simply state “it’s against the law to do this” without having a strong foundational jurisdictional power for doing so.
In the case of collecting rain water, I argue that the state lacks jurisdictional power to legislate and enforce the laws alluded to in the above article.
Hopefully you’ve gotten a glimpse of just how complicated the subject is and just how annoying simplistic ipse dixet assertions by those claiming to have superior juristic acumen and knowledge of the subject by simple virtue of prior marital relations can be so annoying.
Regards,
Bob
Gyges said…
My ownership of the water doesn’t override any state regulation of its use. I own my dogs, that doesn’t mean I get to ignore dog fighting laws.
No but water is not dogs. Water is not gold.
Dogs and gold are not life essential elements, for which all human beings have an inalieable right to. Without gold, a human being can exist for a long time. Without dogs, a human being can exist for a long time.
With water a human can survive only a matter of days.
Thus, water, particularly rain water, is an inherent right, particularly to the land owner on who’s land its falling on. But it also belongs to anyone walking down the street in the rain with a canteen.
When we begin defending the overly restrictive and smothering laws like this, we essentially welcome the entanglement of cumbersome, broad sweeping laws which eat away at our democracy and make living within the confines of the law, impossible. As I said earlier, if my trash can lids blow off, then they are collecting rain, and that by this law, constitutes a violation.
If my gutters are not clean, then they constitute containers capturing water, and thus I am breaking the law.
And if I look up to the sky on a rainy day, and perchance open my mouth, to catch a few droplets of rain to quench my thirst, then my mouth has become a container for capturing rainwater, and I am thus breaking the law.
This is a ridiculous law. A tribute to the minutia that the idle minds of local authority can dream up when left to their own devices.
When people stop defending such ridiculous laws, then maybe they will go away.
Thank you Monica Goodling.
For your information, I managed lawyers, cases, and four insurance claims offices nationally – for a living!