When It Pours, That Rain Fallin Ain’t Yours….

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Seems like a no-brainer, yes?  Rain fallin from the sky – catch it, use it, no problem.

Well, until 2009, putting a rain barrel at the end of your drainpipe could have landed you in court in Colorado. Or Utah even still.

The Convoluted Regulating World of Water Rights

You see, since 1907 in states west of the Mississip, the rain falling from the sky already belongs to someone else, an industry, a farm, a sub-division, further “downstream” from your property that has prior established rights.  It’s called “prior appropriation” and it was wrestled into general legal standing in 1907. (water rights and law in the eastern states is based on a completely different system called riparian water rights law based on English common law).

As a property owner in the west, whether it is 1/2 acre or 1000 acres, you have NO RIGHTS to even a drop of water that falls on your land. Zip. Nada. Unless you have acquired or bought special allocations through your state water office – and that takes time on often a fight with the state, neighbors, and other people, industries or corporations that have rights that might theoretically be affected by your water requests.  Now, because of public pressure and the acute shortages being felt by western states – most have given property owners rights to collect and use the water off their roof for domestic purposes – but don’t leave a bucket in the yard to catch a few drips more – that’s still illegal!

“Whiskey is for Drinkin’, Water is for Fightin’!”

This saying from the ol’ wild west tells all. From the very beginning of the surge westward, the scarcity of water for cattle and farming was fightin’ fodder. Huge and extremely nasty battles were and are still fought over water rights as water in the west is survival – both on a personal and big-business/corporate level. We learned this the hard way – and this is something that virtually no off-gridders or the general public knows as well.

But I sell my extra produce at the Farmers Market. So?

So what? Well lets say you’ve got a great big successful garden in New Mexico and times are tough – so you trot to market with your extra lettuce and radishes. Sorry – you’ve broken the law. To do this – you need a “commercial allocation” for water use on a commercial product and that takes time and sometimes tens of thousands of dollars if you use water from the regulated “interstate stream”  to water your garden. You may have the “right”, by virtue of your well permit, to use hundred’s of thousands of gallons for “personal” use, but water a radish with a cup of water and sell it and you’ve crossed the line.

Modern Science Research comes to Further Complicate

Now here is where it gets even sticker.  State water offices are given power over their “interstate streams” – assumed to be the flow of all water throughout the state. They also enforce their “rainwater harvesting” policies. Thing is, modern scientific analysis has tripped-up the agencies supposed authority – you see up until now, “diffuse surface water” (we call it rain…) was assumed to all pretty much end up in some watershed somewhere, and by ending up in said watershed, it was included in the state’s authority to regulate it.  That’s why they think they can tell you that your rain is not yours.

However, in 2007, a commissioned study in Douglass County Colorado found that, in fact, not a whole hell of a lot of the water that falls from the sky on open meadow/grasslands finds its way anywhere beyond where it falls, and certainly not into any watershed or stream.  The study looked at 56 years of data from the 1950’s through 2005 and found that on average, a whopping 3% of rainfall ever makes it to a watershed.  In wet years, that can be up to 12%, in dry years, a flat 0%. On average, 97% of all rainwater was absorbed by the local vegetation or evaporated and never reached any kind of “interstate stream”.

Kinda begs the assumption that there is, in fact, anything for the state to be regulating regarding collecting rainwater, yes?  In the face of some pretty clear scientific data, it seems that letting people collect as they wish (including additional collecting fields…) would be a pretty wise way to take some pressure off groundwater.

Now my intent here is certainly not to scare what must be a huge amount of small growers that sell for survival – my intent is a cautionary tale from an unpleasant and expensive personal experience. The water authorities don’t (yet) have a policing force – but there are always disgruntled neighbors, nasty competitors, or pissed-off x-spouses that could call your water piracy to the attention of the authorities – just good to be informed and prepared.

So watch your step – the state governments have gotten used to having power over ALL water and they won’t let go of their controls and assumed authority even in the face of direct scientific evidence.

Post part of Homestead barn Hop #4 return here

Do you have an experience with water harvesting? Or with over-reaching government authority regarding water use? Please share it here:

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8 Responses to When It Pours, That Rain Fallin Ain’t Yours….

  1. Hmmm. I didn’t know this law went back so far. Living out west, I know from personal experience that rainwater is precious. I have a natural spring on my property, but I can’t put a pump on it or anything. Not sure I can even legally divert the run off. Frustrating as it’s just watering a bunch of sagebrush. I’d like to see if these water laws don’t start to change with people pushing back against government’s far reaching arm.
    Thanks for linking up to the Barn Hop with a truly informative post!

    • daiaravi says:

      sadly, this area of “regulation” is horrifically entrenched – no amount of “pushing back” by anything less than a major (and majorly funded) corporate interest can get very far. Like most government agencies heavily vested in their power and control, this one has – in most states – an iron grip on their regulatory prowess – you would be shocked at what they do with YOUR rain…

  2. Wow. I had NO idea these laws even existed! Have to say, it makes me pretty angry to think that in some place you can’t even catch your own rain water. Disturbing. Thanks for sharing this important info with the Homestead Barn Hop!

    • daiaravi says:

      they exist, but selectively enforced for small-time “violators” – depends on your luck-of-the-draw. Got a neighbor that knows too much and likes you too little? then you may be next–

  3. Mandy says:

    We actually just moved from Douglas County in Colorado to Wisconsin in part because of the water rights issue (the other main reason was the cost of land). We researched it pretty well before we started looking at property there. It’s just amazing how strict they are with collecting rain water, yet in my cookie cutter neighborhood people would water their lawn everyday and half of it would go into the street. And it seemed like the cities/counties didn’t do any better! The wasted water for a perfectly green manicured lawn was ridiculous!

    • daiaravi says:

      … and not only the inane waste of water – but the lawn chemicals that are being generously washed into the water table are another delight…

      this is just yet another incredibly stupid disconnect of our wholly incapable, totally political government system–

  4. mzowl says:

    Hmmm – I have been breaking the “Law” then for the past 30 years out here in the PNW because I’ve used rain barrels (with gold fish in ’em to cut down on the ‘skeeto’s) for as long as I’ve been homesteading … loooong before ‘urban homesteading’ was coined 🙂

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