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The Latest Absurdity in the Fight to Conserve Water: Making Rainwater
Harvesting Illegal
http://www.progressivereform.org/index.cfm
By Yee Huang , Center for Progressive Reform. Posted April 13, 2009.

Absurd laws are challenging the collection in some states, while others are
embracing the practice.

A recent article in the Los Angeles Times described the latest absurdity in
the never-ending search to quench the thirst for water: ownership of
rainwater and, more precisely, the illegality of rainwater harvesting.
Residents and communities in parts of Colorado are turning to this ancient
practice of collecting and storing rain to fulfill their domestic water
needs, including flushing toilets and watering lawns.  Using this
“grey” water, as it is called, relieves pressure on water resources and
can be extremely efficient.

Many long-time water users, however, object to the practice.

These so-called water buffaloes argue that people who collect rainwater are
taking away from their water by collecting the water before it has a chance
to flow into a river from which they obtain water.  Effectively, they
argue, the rainwater belongs to them – they own the rain that falls from
the sky as part of their water allocation, even though 97 percent of the
rainfall that falls on soil does not reach a river.   The bad news?  The
law in Colorado stands behind those water buffaloes.

Like most states west of the one-hundredth meridian, Colorado follows the
doctrine of prior appropriation to allocate water.   For all water uses
that are non-domestic, a person must have a water right.  Water rights are
assigned a priority date, which is the date that the water use was
initiated.

Under prior appropriation, these senior water users – many of whom have
rights dating back to the 1800’s – have priority in times of water
shortages based on the date of their initiation.  Their water allocation is
fulfilled before any junior users, who are often left with a nominal amount
of water.  People who harvest rainwater are “interfering” with the
priority system by jumping ahead of all the senior users, who have the
first right to use the water.

This dogmatic adherence to temporal priority blocks efforts to acquire
water rights for newer or more efficient uses, such as in-stream
conservation and recreation.  These uses, initiated relatively recently,
will always be subordinate to older, more consumptive uses.

Ownership of water has always been a tenuous proposition.  Water and water
rights linger on the perimeter of traditional property rights, eluding the
solid “property” categorization of items like land or salad bowls.
Individual water molecules cannot be marked or identified, and water is in
constant motion, swirling below, above, and around the earth in the global
hydrologic cycle.  More significantly, water is survival for the vast array
of living creatures on this planet, so privatizing the world’s most
precious liquid would necessarily create a divide between haves and
have-nots.

Whether or not water is definitively property has great legal implications
for constitutional and civil claims, and courts have not given clear or
consistent guidance.  If, for example, water is considered a property right
and the government required reduced water delivery to irrigators under the
Endangered Species Act, those irrigators might have a valid claim for
compensation under a Fifth Amendment takings claim.  CPR Member Scholar Dan
Tarlock blogged about this specific issue here.  Categorizing water as a
private property right also facilitates the commodification of water, which
often ignores the common public interest in water quantity, quality, and
viability.

Many water rights are colored by the public trust doctrine, which holds
that certain natural resources cannot be privately owned and instead must
be held in trust by the government for the use and benefit of the public.
This doctrine, an inherent component of a water right, tends to support the
argument that water is not a matter of private property.  As inexpensive
supplies of water dwindle, how water is viewed as a private property will
become increasingly important to water allocation and priorities.

In other parts of the West, states are exploring the idea of rainwater
harvesting.  Santa Fe, New Mexico, became the first city to require by
ordinance rainwater harvesting on all new residential or commercial
structures of a certain size.  Tucson, Arizona, became the first city to
require rainwater harvesting to provide 50 percent of landscape-irrigation
needs.   Even Colorado has reconsidered its position, recently passing a
bill that permits extremely limited instances of rainwater harvesting.  It
remains illegal for most individual residents to harvest rainwater.

Given an increase in population and per capita consumption, coupled with
water needs to restore and maintain aquatic ecosystems, perhaps those water
buffaloes need to lower their horns and let other creatures sip from the
limited watering holes in the West.