The Ownership Society

Breaking the law by collecting rainwater

What he actually said will never be known, but what Chief Seattle said in popular recounting has the power of deeper truth:

How can you buy the sky? ... How can you own the rain and the wind?

The air we breathe... the wind that ruffles our hair... the rain we catch on our tongue or in a barrel... belongs to all of us, and to each of us... Well, not exactly, it seems in fact some do own the rain:

While building a system to collect rainwater may be fairly straightforward, the challenge comes in its legality. In large Colorado municipalities like Aurora, collecting rainwater for storage remains illegal, a restriction that’s tied to the state’s convoluted water laws that have their roots in the precedents set in the 19th century.

Water is increasingly scarce throughout the mountain and plains states and restrictions on rainwater harvesting have long been in force in Utah and Washington too. Using a rain barrel in Colorado can result in a $500 fine. The rationale?

"All the water was spoken for here in the Arkansas Basin 100 years ago or more," said Kevin Lusk, water supply engineer for Colorado Springs Utilities. "If the water falls as rain, that's water that was going to get to the stream system, and somebody already has dibs on it, and if somebody intercepts that, it's the same as stealing."

Other states, including even desert southwest states like Arizona and New Mexico, encourage the collection of rainwater for domestic use. Rainwater harvesting makes ecological sense, and has been practiced, even mandated, throughout the world. It not only optimizes use of an essential resource, it fulfills an essential human need—some would say a human right.

In Colorado a study that showed 97% of all rainwater in Douglas County near Denver evaporated or was absorbed by plants without ever reaching a stream. So Colorado loosened restrictions this year, but not completely—Senate Bill 80's legislative summary says:

This bill allows for the collection of precipitation from up to 3,000 square feet of a roof of a residence that is not connected to a domestic water system serving more than 3 single-family dwellings. The collected water must be used for:

• ordinary household purposes;
• fire protection;
• watering of animals and livestock; and
• irrigation of not more than 1 acre of gardens and lawns.

A person wanting to capture rooftop precipitation who meets the qualifications in the bill must submit an application and unless the person currently has a well permit, pay a fee to the state engineer. Owners of certain wells are allowed to collect rooftop precipitation under the same use limitations as contained in their well permits. If a person violates an order issued by the state engineer regarding collection of rooftop precipitation, that person is subject to a $500 fine per violation.

There were once rainwater collection restrictions in Washington, but a year ago the State Department of Ecology decided to largely allow the practice, at least at small scale, issuing this guidance:

to 1) clarify that a water right is not required for on-site storage and use of rooftop or guzzler collected rainwater, and 2) identify the Department of Ecology’s intent to regulate the storage and use of rooftop or guzzler collected rainwater if and when the cumulative impact of such rainwater harvesting is likely to negatively affect instream values or existing water rights.

In other words, Washingtonians can collect and use rainwater so long as it is small amounts; materially divert water from those with existing "rights" and the Department of Ecology reserves its prerogative to revoke its permission.

So who has these water rights? Notwithstanding the halting and limited steps in the US, the trend is clear. Individuals do not have rights to water; instead, corporations do. The prospect of sustained global drought is growing, as are commercial demands for water. The implications are ominous.

So who owns the rain? As with so many other things, it appears in future it will be those with the most money.

---

"My sorrow, when she's here with me, thinks these dark days of autumn rain are beautiful as days can be; she loves the bare, the withered tree; she walks the sodden pasture lane."
—Robert Frost, American poet