Patterico's Pontifications

7/27/2012

Oregon Man Sentenced to Jail for Collecting Rainwater on His Own Property?

Filed under: General — Patterico @ 8:00 am



I include the question mark just because it’s one of those stories that sounds too outrageous to be true. But I have to admit, it seems like it’s true:

A rural Oregon man was sentenced Wednesday to 30 days in jail and over $1,500 in fines because he had three reservoirs on his property to collect and use rainwater.

Gary Harrington of Eagle Point, Ore., says he plans to appeal his conviction in Jackson County (Ore.) Circuit Court on nine misdemeanor charges under a 1925 law for having what state water managers called “three illegal reservoirs” on his property – and for filling the reservoirs with rainwater and snow runoff.

. . . .

According to Oregon water laws, all water is publicly owned. Therefore, anyone who wants to store any type of water on their property must first obtain a permit from state water managers.

Harrington got his permits, but then the issuance was revoked. So now he can’t store the water that God rains down on his own property without the government’s permission.

America: Land of the Free.

81 Responses to “Oregon Man Sentenced to Jail for Collecting Rainwater on His Own Property?”

  1. Ding.

    Patterico (feda6b)

  2. We’re losing our freedoms to government and Democrats clearly believe that’s how things should be because government is the solution. Hopefully American voters know better. I’m cautiously optimistic after reading this Ann Althouse comment.

    DRJ (a83b8b)

  3. A 1925 law? They can’t blame this on California transplants.

    Jim (748bc6)

  4. This practice was recently legalized in Utah. The State didn’t allow collecting rainwater because farmers and ranchers actually have claims to the water as it is a scarce commodity. http://www.waterrights.utah.gov/wrinfo/faq.asp#q1

    “Rainwater harvesting is now legal in the state of Utah, starting May 11 2010. Senate Bill 32 was approved in the 2010 session that provides for the collection and use of precipitation without obtaining a water right after registering on the Division of Water Rights web page (waterrights.utah.gov). There is no charge for registration.

    “Storage is limited to one underground 2500 gallon container or two above ground 100 gallon containers. Collection and use are limited to the same parcel of land owned or leased by the rainwater collector.”

    The ironic thing is that the EPA recommends harvesting rainwater as a way to protect stormwater pollution. http://cfpub.epa.gov/npdes/stormwater/menuofbmps/index.cfm?action=factsheet_results&view=specific&bmp=81&minmeasure=5

    Stray (7335fa)

  5. The issue of water rights is a lot more complicated than the article suggests. The rainwater and snow runoff feeds tributaries, which in turn feed the water supply for an entire region.

    It’s easy to be sympathetic to Harrington’s plight, but what if every landowner did what he did? You would basically tap the water supply to the point where economic growth and sustainability of the region gets hampered. That’s why those kind of laws were established in the first place.

    I have a small libertarian stripe, but I also recognize that governments are sometimes necessary to enact laws for the greater good. The water rights issue is a perfect example.

    Kman (5576bf)

  6. Just north of Oregon, in Washington it is illegal to collect rainwater off your roof. No permits are available. Rain must be allowed to return to the ground. Put a cistern on the end of your rain spouts? No way. Who do you think owns the rain anyway? And the water utility is owned by the town here as well…

    Michael Gersh (d9007c)

  7. According to Oregon water laws, all water is publicly owned.

    I’ll remember that next time I walk in to a 7-11 or Circle K in Portland and Eugene. I’ll confidently stroll to the coolers where soft drinks are stored, pull out a nice liter of Arrowhead water, open it and start drinking it, then walk out the store without paying. When the clerk accosts me, I’ll just remind him or her that all water in Oregon is publicly owned.

    JVW (edec8d)

  8. “So now he can’t store the water that God rains down on his own property without the government’s permission.”

    – Patterico

    Just because something is dropped on your property doesn’t mean it becomes your property. Elsewise I woulda never got my baseball back from mean ‘ole Mr. McCreedy’s backyard.

    Leviticus (e923df)

  9. `

    one of those stories that sounds too outrageous to be true.

    The origins of such lunacy dates back to the 1920s, so it’s hard to know the precise technical and ideological reasons for it. But it sounds dumb and absurdly intrusive no matter what. Perhaps a decades-old version of Bloomberg’s nanny state in New York City or San Francisco’s ban on Happy Meals at McDonald’s?

    Ann Althouse comment.

    I saw Romney interviewed by Matt Lauer this morning, and Romney started to move in the direction of saying that the Olympics will be good after all, because they’re about the athletes. Then he went back to aiming a barb at the preparedness (or lack of such) of the host country/city. I’m not sure what’s triggering that response in him, because it seems surprisingly persistent. From a purely social standpoint, it makes me uneasy, because it calls to mind all the social flubs and gaffes of the person who (God willing) he’ll be replacing in the White House. A certain finesse in etiquette is always a plus in the world of politics and partisanship.

    Mark (7b2cc7)

  10. Setting property law aside, it seems like this would’ve been a great place for a prosecutor to exercise a little discretion.

    Leviticus (e923df)

  11. ____________________________________________

    Just because something is dropped on your property doesn’t mean it becomes your property.

    Leviticus, if you can stretch that to include things like water falling from the sky, then it can easily — very easily — be extended to whether the government allows or disallows certain people from getting married. Think of it as sort of a flurry of marriage licenses raining down on a community.

    Mark (7b2cc7)

  12. Leviticus,

    Some things are gifts from God and if God drops them on your property, it should be yours. One of those things is rain. Another is puppies.

    DRJ (a83b8b)

  13. Leave it to the government to annex precipitation.

    Icy (5ef891)

  14. When the clerk accosts me, I’ll just remind him or her that all water in Oregon is publicly owned.

    Were I the clerk, I would respond that the water may be publicly owned, but you must pay for the bottle :)

    Chuck Bartowski (3bccbd)

  15. Seems a good test case to overturn Wickard.

    Captain Ned (60bf84)

  16. You have to go to the link and read the whole story. It’s very gray, not black and white.

    The issue doesn’t appear to be his collecting rainwater and snow melt.

    He has 137 acres. There are one or more dams he has constructed. He claims the dams are blocking the rainwater and snow melt from flowing off his property. The government says the dams are blocking streams flowing through his property thus taking and storing water that is not his to store.

    I don’t know who’s right and who’s wrong. I’m just saying it’s more complicated than saying the government is again being stupid. And I am certainly no fan of today’s government (state / local / federal) …

    Charlie (f1e1df)

  17. One correction – he has 170 acres …

    Charlie (f1e1df)

  18. Ask the farmers whose fields are drying up right now if the meager rain that falls on their cropland belongs to them and their plants. How about the rain water you collect on your property so your herd of beef cattle or dairy cows or your fowl do not die. You don’t even need to respond to this but please do at least think about, and consider, who gets to decide the greater good: is the “greater good” raising food to help feed the world’s masses, or is the greater good “allowing” rain runoff to go into tributaries while more than half of it evaporate along the way?

    elissa (771358)

  19. Under the Clean Water Act, as enforced here in SoCal, any water on your property – from any source – is your responsibility and it must be contained if it has picked up any contamination to prevent that run-off from contaminating ground-water, and/or the Pacific Ocean.

    Actually, it’s all Bush’s fault for inspiring people to collect, save, and re-use water as he does on the ranch in those huge underground cisterns he had installed.

    BTW, if rainwater falling on your acreage is not yours, does that mean as it soaks into the ground, the moisturized portion of the ground becomes “public property”?

    Only someone with an advanced degree could advocate such a position as is codified in OR law.

    Maroons! All of them.

    AD-RtR/OS! (b8ab92)

  20. Kman wrote:
    The issue of water rights is a lot more complicated than the article suggests. The rainwater and snow runoff feeds tributaries, which in turn feed the water supply for an entire region.
    — One might reasonably argue that the snow runoff originated elsewhere (state, county, local land, national forest) but rainwater?

    It’s easy to be sympathetic to Harrington’s plight, but what if every landowner did what he did? You would basically tap the water supply to the point where economic growth and sustainability of the region gets hampered.
    — Meanwhile, “every landowner” remains free to open up all of their taps and waste as much piped-in water as they wish, just so long as long as they pay their bill, including all of the government imposed taxes contained therein. And that’s what it all comes down to: the government isn’t concerned about people hoarding the water supply; they just want the revenue that they feel is their due in exchange for controlling it.

    I have a small libertarian stripe, but I also recognize that governments are sometimes necessary to enact laws for the greater good. The water rights issue is a perfect example.
    — Perhaps the governments should rename their reservoirs as “H2O Collectives”.

    That stripe is quite small, indeed . . . and of a shade in-between green and orange.

    Icy (5ef891)

  21. It makes more sense to me, in general principle, to ban collecting rainwater than it does to prevent someone from growing their own wheat.

    As others have mentioned, the idea of water rights has been very important. One cannot put a dam on a stream on your property and prevent the farms downstream from having access to it, for example. I guess depending on how big your property was/ what percentage of a river basin you controlled it could become significant downstream.

    On the other hand, collecting rain water off your roof so you can water your garden or lawn without having to add to the demand of purified water seems quite a good thing which we do to a very small degree ourselves (maybe a 30 gallon plastic “basket” at one corner of the house).

    Where that rational line is in the middle I would not know.

    Other than that, it hails back to the day of cattlemen and sheep farmers and who controlled the valley, it seems.

    MD in Philly (3d3f72)

  22. I don’t know how many farmers or ranchers read and comment here to give their perspective. For most of us, we do think of getting our water from the faucet and public supply, so it seems to us that anything that would allow us to cut back on the usage of public water seems obvious. However, if you aren’t getting all of your water from a public pipe system, but from the sky and the natural pattern of runoff, one’s homestead could be made worthless if something happened to redirect the water you depend upon.

    I think this is more an artifact of changing times than stupid government. The law would have been in the years prior to the dust bowl. On one hand it seems fair to capture the rain on your property, on the other hand, if your grandfather staked his claim a little lower down the watershed than his neighbors, it would be a bad thing if the neighbors could “horde” much of the water coming from the mountains into the valley. Like I said above, not clear to me how to draw a line between legitimate marshaling of one’s resources and interfering with a public resource.

    Haven’t their been laws and lawsuits about rights to sunlight in city zoning, etc.?

    MD in Philly (3d3f72)

  23. Water law is very clear cut on this. I don’t see the outrage. He’s not just collecting a gallon off of his roof.

    SPQR (26be8b)

  24. I forget when I first learned of the concept and importance of water law, but as much as I had never heard/thought of the concept before, once I did and had some of the issues explained to me it really is quite astounding in importance. It’s just that all of us (mainly city and suburban folk) who are accustomed to getting water through pipes from “somewhere” have never stopped to think about it.

    Just think if you lived on the 2nd floor of an apartment building and the person above you built a structure to capture all of the rainwater coming down in a 5 feet diameter around his balcony his plants so you had none.

    MD in Philly (3d3f72)

  25. his balcony for his plants so you had none.

    MD in Philly (3d3f72)

  26. I bet that he can’t legally fill those ponds back in again without running afoul of US laws regarding preservation of “wetlands”.

    Steven Den Beste (99cfa1)

  27. It is illegal in California and Arizona to collect water that would otherwise sink into the ground unless you have purchased water rights for the amount of water you collect. Water rights can be very expensive per acre foot of water. Sometimes many thousands of dollars.

    That first sentence was true a few years ago when I last looked into it, could have changed since.

    crosspatch (6adcc9)

  28. And note that the buying of “rights” to water was completely alien to me having grown up in a place where 5 inches of rain per month is not uncommon and one may pump as much water as they wish out of the ground.

    crosspatch (6adcc9)

  29. Yet when one considers living in drought situations, it would seem common sense for residents to collect as much rainwater as they can, if possible. Of course urban dwellers have less opportunity to do so than those in the suburbs or rural areas, but it would seem an logical option for one to remains self-sustaining during seasons where drought exists. And yet, here in So. Cali, even in our mountain regions, it is illegal.

    Dana (5ae38e)

  30. All of the water-rights in metro SoCal were acquired by the MWD, et al, during the early parts of the 20th-Century; and they began construction of a whole series of dams in the mountains ringing L.A., and the creation of settling-ponds along the tributaries leading to the ocean, to put that water back into the aquifer.
    It is rare to find land-titles in the “flat-lands” that still contain “water-rights” (or any rights at all), though there are still private wells – both legal and otherwise, to be found.

    AD-RtR/OS! (b8ab92)

  31. It’s time.

    Kevin Stafford (1d1b9e)

  32. 30- addendum….
    But, as SDB (nice to see that you and Kim du Toit are still around) notes above, water-rights law as written in the 19th & early-20th Century’s, is banging hard up against enviro-law as practiced today. That poor guy in OR would have a tough time, under the EPA’s current enforcement of “Wetlands” law (though there are one or more hits that they have taken in the Courts that may force them to change), in altering those “ponds” on his property if told to do so by OR courts; just as here in metro SoCal, urban water run-off is rigidly controlled to prevent contaminants (oil and other drippings from parked cars being a primary concern – I have no idea what they think they can do about such droppings on public right-of-ways, or rubber-dust from tire-wear) being flushed into storm-drains and out to sea, or from being introduced into the aquifer through settling.

    AD-RtR/OS! (b8ab92)

  33. He should find a sucker to buy the 170 acres and move out of the country. Optimally, the Sierra Club, the fight between the city and the eco-warriors in state court might be fun to watch.

    htom (412a17)

  34. Were I the clerk, I would respond that the water may be publicly owned, but you must pay for the bottle.

    Good call, Chuck. I’ll be sure to drink all the water while still in the store and place a nickle deposit on the counter and the empty bottle in the recycling bin.

    JVW (edec8d)

  35. C’mon, Pat, as a lawyer you know that riparian rights differ from state to state, based upon usage, need, and history. This OR law is no crazier than existing California law allowing easements for property owner A to cross property owner B’s land to water A’s livestock from water on or adjacent to B’s land. Look it up.

    Dirty Old Man (2ec81c)

  36. I realize that this will put me in opposition to a lot of ranchers, whom I’m normally in league with, but if rainwater falls on your property you should be able to collect it. I don’t care who sold you the water rights to what wasn’t yours to buy.

    What’s next? A tax on people who grow their own tomatoes? After all, some of the water that went into those tomatoes was somehow diverted from the “rightful owners” downstream.

    Steve57 (386607)

  37. No rainbarrels, even?

    SarahW (b0e533)

  38. I guess Oregon has droughty bits but usually I think of it as constantly wet.

    SarahW (b0e533)

  39. He applied for, and initially received permits for the reservoirs, kstooge.

    ∅ (721840)

  40. I live east of the Cascades from where the story is happening, but his area is (should be) medium wet. Over here, we are lucky to get 10 inches worth of rain a year, and fights over water can be huge. Still, water is a dear resource, and even the Blue portion of Oregon gets thirsty some years.

    The dam removal issue for the Klamath River is one of the biggest fights, and is part of a huge clusterflock of fights and “settlements”. Being on the wrong side of a water dispute like this can spell doom for a politician.

    I’m not surprised about the Medford fight. Don’t know water law all that well, but “senior” rights win out over “junior” rights, and “junior” wins over no-rights at all. The coveted position is to get rights from “time-immemorial”, like some of the tribes have. It’s possible to transfer and rent water rights, thus leading to all kinds of opportunities for grief and shenanigans.

    Don’t forget that _Chinatown_ wasn’t just about incest… See #30.

    Red County Pete (2ccf37)

  41. Only the NW 1/4 of Oregon is really wet. Over 1/2 is straight-up desert.

    Dan (ec608b)

  42. What’s next? A tax on people who grow their own tomatoes?

    Well, I suppose according to Wickard v. Filburn taken to its extreme, the government could require that you pay any excise taxes it might charge for sale of any goods you grow or produce yourself because according to the twisting of the commerce clause by that ruling, if you grow it yourself then you are not buying it from someone else so your action is influencing interstate commerce. This is because SOME of those hypothetical tomatoes that you buy could, hypothetically, have come from another state.

    crosspatch (6adcc9)

  43. “So now he can’t store the water that God rains down on his own property without the government’s permission.”

    Property is theft!

    Rafalfa (64270f)

  44. stupid laws deserve to be circumvented:

    1) plant HI WATER CONTENT crop
    2) harvest crops
    3) extract water from crops
    4) FREE LEGAL EXCESS WATER PROFIT !
    5) fart in sheriff’s general directionnnnnnnn nnn

    BioBob (203064)

  45. #44 BioBob: You missed a step.

    1) plant HI WATER CONTENT crop
    2) harvest crops
    3) extract water from crops
    4) FREE LEGAL EXCESS WATER PROFIT !
    5) Sell the dried crop (say, apple chips).
    6) fart in sheriff’s general directionnnnnnnn nnn

    crosspatch (6adcc9)

  46. If you’ve never dealt with water rights in Western states, it’s difficult to comprehend the complexity and importance. In this case, there seems to be existing channels across his land that carry snowmelt and rainwater to Big Butte Creek and he built gates to prevent the water from reaching the creek.

    Dale (b441ce)

  47. Wickard was about federal power to regulate. I don’t think it said anything bout what states could do. Pretty sure Mitt would agree with that.

    Kevin M (bf8ad7)

  48. This rain is your rain, this rain is my rain,
    But if you collect more rain than me without asking permission,
    We’ll throw your ass in jail.
    Because this rain was made for you and me.
    But mostly me.

    Ghost (6f9de7)

  49. I collect the water off our house and the shop, goes into 125 gal. barrels and gravity takes it to the garden.
    Americans waste too much water.

    mg (44de53)

  50. Water rights are something that causes all kinds of strife in a state, especially during a drought. If a river flows through your land, can you take from it without reservation? You didn’t create that water, to coin a phrase.

    Once upon a time, people might have answered yes, but when Hollis Mulwray William Mulholland used that tactic in the 1910’s to buy land along the Owens River and then divert almost all the water to Los Angeles, the California Water Wars of the 1920’s took off.

    I imagine these laws were spinoffs of that.

    Kevin M (bf8ad7)

  51. Despite my comment earlier, I can understand some frustration with the fact that water (even collected rainwater) is state-owned – particularly when the history of agencies like the Bureau of Reclamation is in large part a history of abused discretion in the service of private agribusiness interests.

    How can it be wrong for a citizen to divert water for his own private use but right for the Bureau or the Corps of Engineers to divert water for the (massively subsidized) private use of megafarmers in the San Joaquin Valley?

    Leviticus (102f62)

  52. One problem here is the landowner’s illegal reservoirs and/or dams. I doubt there would be a problem if he were collecting water in reservoirs that were naturally created or for which he had valid permits.

    It’s also complicated by the fact that these reservoirs have been there for decades and once had permits (when the regulatory system got involved), before the State apparently rescinded the permits. Those facts make it harder to get mad at the landowner because he seems like he’s trying to do the right thing.

    But IMO the biggest problem is that the State is using its criminal laws to coerce this landowner into effectively giving up his civil law water dispute. There is a tradition in American law of trying to keep civil actions separate from criminal actions, but that line has been blurred in the last 30 or so years.

    DRJ (a83b8b)

  53. Our freedoms are being stripped away chunks at a time now. how many laws are they going to keeep coming up with just to make a buck for their coffers.

    Leland (a5f674)

  54. In the West, whiskey’s for drinkin’, water’s for fightin’ over.

    Those “mega farmers” paid a pretty dollar for the water rights to the water that is being delivered to them. They have “Senior Rights”!

    AD-RtR/OS! (b8ab92)

  55. I do think that in this case, the landowner could make a case, and rejigger his dams, that he is only capturing the water that falls on his property, and is not impeeding the flow of water “through” his property. A sophisticated flow-meter could establish how much water run-off enters his property, and he could release the same amount over his spill-ways. In that way, he would not be taking/keeping anything that was not his to begin with. I doubt that it could be established that what falls by the Grace of God on his land belongs to someone else.

    AD-RtR/OS! (b8ab92)

  56. This took place on the Left Coast. No wonder the law is stupid.

    The law is also unconstitutional. Think about it. If the state owns all water, and you are 70% water, that means that you are 70% owned by the state. That’s slavery.

    The Borg (d7bfaa)

  57. The problem is that the water that falls on his lands, land upstream and downstream all recharge the streams, rivers and aquifers. If you own an acre of land and dig a well, do you take out more per year than falls on your land and seeps back into the ground through rainfall and snow?

    Dale (b441ce)

  58. It takes a special sort of man to understand and enjoy liberty — and he is usually an outlaw in democratic societies. -H.L. Mencken

    I would have probably been fined three times today by weirdos like that.

    Noodles (3681c4)

  59. Here is some additional commentary on how CA prices water, and what they use the funds for (sometimes they actually pay for the water with them, but not usually):

    http://www.capoliticalreview.com/top-stories/how-california-made-liquid-smog/?utm_source=CAPoliticalReview.com&utm_campaign=1702aad3b9-RSS_EMAIL_CAMPAIGN&utm_medium=email

    AD-RtR/OS! (2bb434)

  60. freedom’s just another word for

    crap

    I used to know this

    freedoms we miss you hiss the love cats

    happyfeet (0845e7)

  61. “One problem here is the landowner’s illegal reservoirs and/or dams. ”

    Yes. He should have used underground cisterns and they don’t lose as much due to evaporation, either.

    crosspatch (6adcc9)

  62. depends, feets

    freedom is just another word for nothing left to lose- Janis Joplin

    freedom, freedom, is just some people talkin’- Eagles, Linda Ronstadt

    MD in Philly (3d3f72)

  63. “freedom is just another word for nothing left to lose- Janis Joplin”

    Actually Kris Kristofferson

    Gary Rosen (afeaef)

  64. thanks, Gary

    MD in Philly (3d3f72)

  65. I don’t really see what the big hangup over death squads is.

    That Nebraskans’d be the last ones standing isn’t an altogether bad thang.

    gary gulrud (dd7d4e)

  66. Some more detail from the article:

    In 2007, he pled guilty to the charge of illegally withdrawing water from appropriation by building dams to capture rainwater, and was sentenced to three years probation and ordered to open the water gates on the dam.

    Shortly after the probation ended, he closed the gates.

    So … how *should* a court handle a violation of a court order requiring the gates to be kept open?

    Some more detail from the article:

    In 2007, he pled guilty to the charge of illegally withdrawing water from appropriation by building dams to capture rainwater, and was sentenced to three years probation and ordered to open the water gates on the dam.

    Shortly after the probation ended, he closed the gates.

    So … how *should* a court handle a violation of a court order requiring the gates to be kept open?

    aphrael (24797a)

  67. Elissa, at 18, in most states in the west, those farmers have permits entitling them to use the water that’s falling on their property. Or, alternately, they have a permit entitling them to take X water out of a stream, and the water that falls on their property is charged against the permit.

    AD-Rtr/OS, at 19:
    > if rainwater falling on your acreage is not yours, does that mean as it soaks into the ground, the moisturized portion of the ground becomes “public property”?

    No, of course not. Property rights in water are handled seperately from property rights in land, just as property rights in subsurface minerals are.

    Icy, at 20:

    the question of *origination* is irrelevant to western water rights. The basic idea is that there is [x] water in a stream, including all streams which are tributary to it, and that those rights are apportioned to users of the water based on time priority.

    That is, the question isn’t where the water came from, the question is where the water would *go* if it is unimpeded. If the water would end up in a stream, then the water is part of the stream system, and is subject to the apportionment rules for the stream.

    This has been the case in western states except California (which uses a different system) and Texas (which uses a different system) pretty much since they were settled.

    MD in Philly, at 21:

    one way to draw a distinction is between collecting rainwater *before it hits the ground* and collecting surface water once it’s hit the ground. That is to say, there’s a difference between putting buckets up and capturing water in buckets, on the one hand, and putting up dams to collect surface water.

    Colorado actually bans both. But Colorado is unusually extreme in its rules.

    MD in Philly, at 22:

    in California at least, *all farmers* operating on a scale larger than suburban gardeners get their water pursuant to permits from the state, and it’s been that way ever since the inception of the state.

    Crosspatch, at 28: western water law is very, very different from eastern water law. Out here in NY, there isn’t the scarcity that there is out west, so nobody cares as much.

    AD-Rtr/OS, at 30, the MWD is operating pursuant to a bizarre California misunderstanding of Mexican water law. Under the treaty of guadalupe-hidalgo, all property rights existant at the time of the treaty continued to exist. California courts misread Mexican water law to hold that any pueblo existing at the time of the treaty had a right to use ALL OF THE WATER in ANY STREAM which passed through ANY PART OF THE CITY, even parts of the city annexed after the treaty. This was a misunderstanding of Mexican water law, it’s been repudiated in other states subject to the treaty, but it continues to hold in California.

    Dirty Old Man, at 35, in water law circles, ‘riparian rights’ is a term of art referring to one kind of water law regime, similar to the way water law worked in England. Oregon does not have a riparian rights system, it has a time-priority system.

    AD-Rtr/OS, at 55, the landowner cannot make that case successfully. Oregon has had these rules for surface flow for decades.

    aphrael (24797a)

  68. Leviticus,

    California has a bizarre system which uses three different doctrines for surface water:

    * the pueblo rights doctrine, which i’ve already described above, based on a misunderstanding of Mexican water law. This only applies to pueblos which existed before the signing of the treaty of guadalupe hidalgo, and so is basically irrelevant to the san joaquin valley question.

    * the riparian rights doctrine, which holds that anyone with property adjacent to a stream has the right to take as much water out of the stream as they want, for a beneficial use, as long as they do not unreasonably impede the use of other people with property along the stream.

    this doctrine is common out east, but it makes very little sense in a place with water scarcity, because it is inherently self-contradictory.

    * the first-in-time doctrine, which holds that people who put water in a stream to beneficial use can continue doing so forever, as long as they are using it for the same purpose. water rights are based on a date priority; whoever was using X water from the stream first gets to continue using it forever, and if a drought requires cutbacks in water distributions, the cutbacks happen first to those people with the youngest priority date.

    So, for Reclamation, what happened is this:

    * they got permits authorizing them to build dams.
    * those permits also carried with them a right to [X] amount of water, for the beneficial use of distribution to farmers in the south part of the valley. NOTE: *Reclamation* holds the water rights, the farmers do not. The farmers have a contract with Reclamation to buy the water, and if Reclamation doesn’t deliver, they can sue for breach, but they don’t have a property right to the water, just a contract right against Reclamation
    * the water right has a date of whenever the dams were built.

    The other thing that’s important to note, and this is I think where the real key to answering your question comes from, is that the water right in California is a right to take X water from the stream at a particular time of year. This is essential to the system, as the amount of water in the stream varies over the course of the year; there’s lots of water in May and very little in October.

    One of the reasons Reclamation was able to get the rights in the first place is that what they do, in effect, is divert water from one time of year to another. Reclamation pulls water out of the stream in the spring, when there’s a relative surplus of water, stores it in their dams, and then releases it to farmers in October, when there’s a relative shortage of water. This constitutes a net increase in the water available in the fall, which pretty much everyone thinks is a good thing.

    aphrael (24797a)

  69. This NY Times’ article discusses the impact/result of aphrael’s complex legal points, although it seems to attribute the different laws to drought and other factors. I think the differences are more likely a result of the fact that the federal government owns much of the land in the western states so federal, state and local governments are more likely to try to control what happens there.

    DRJ (a83b8b)

  70. aphrael,

    Like a conscientious objector, the landowner would rather be punished than comply with the law. He’s making his point by being punished. The government should weigh the benefits of coercing compliance against the risks that the landowner’s crusade may end up changing the law.

    Maybe it’s a worthwhile risk to prevent other landowners from doing the same, but IMO the fact that these reservoirs have been there for so long suggests a negotiated solution rather than a legal case that could change the face of state-wide water rights. And it can happen. It just did in Texas regarding groundwater.

    DRJ (a83b8b)

  71. DRJ: the complex western rules don’t really have to do with state landownership per se. Although the large federal land ownership complicated things, and the reserved Indian rights make it even more complicated.

    But the fundamental difference between New York and the west is this: in New York, there’s enough water that in general people can take as much water out of the streams as they want for agriculture without harming downstream use, and in the west, that’s generally simply not the case.

    (Although even out east, there were horrible fights in the early 19th century about mill ponds, and whether they interfered with downstream use and the downstream users had a right to the water that they were losing).

    ——

    Your link doesn’t seem to describe a negotiated solution; is it the right link? It seems to describe a court case that allows a property owner in Texas to sue under the takings clause as a result of an attempt by the Texas legislature to change the historic Texas rule for groundwater (a rule of capture that let any property owner take as much water out of the aquifer as he wanted) to a permit system.

    Since this was just a ruling on summary judgment, the merits of the taking claim weren’t decided. (And, honestly, I really hope the landowner loses, because the rule-of-capture system in Texas is just broken. aquifers don’t underly single properties and don’t conform to surface property lines, and the rule of capture lets one property owner take all the water out of an aquifer he shares with other property owners … which is a recipe for aquifer destruction).

    How is this reflective of a negotiated solution?

    aphrael (24797a)

  72. aphrael,

    I wasn’t linking an example of a negotiated solution. I was linking an example of what happens if you don’t negotiate a solution.

    I think the landowner will win on remand.

    The rule of capture isn’t broken.

    DRJ (a83b8b)

  73. The rule of capture is broken if you want to preserve the aquifer for the use of future generations.

    The aquifer replenishes at a natural rate. Ideally, you would draw out of the aquifer at a rate equivalent to the rate of replenishment, so that there’s always water to draw out.

    The rule of capture prevents that. It encourages people to take out as much as they can possibly use now, because as long as the aggregate draw is greater than the replenishment, the aquifer is going to get drawn down, and if you don’t pull your share now, you won’t get anything.

    This is a sensible policy for subsurface minerals which we want to consume. It’s a terrible policy for a resource we want to preserve for future use.

    (In addition, the Texas rule severely irritates every other state in the west, as nobody else has a strict rule of capture for groundwater, and so aquifers which Texas shares with other states are getting drawn down despite the attempts of other states to conserve them).

    The long-term result of this is that the aquifer is depleted and agriculture which depends on groundwater extraction will become impossible.

    Texas is quite literally eating its seed corn.

    aphrael (24797a)

  74. One way around this is to aggregate all of the landowners in a particular aquifer into one entity which owns the water rights for the aquifer and which distributes income on a pro rata basis to the landowners. Since this would give every landowner overlying a particular aquifer an interest in preserving the aquifer, and it would prevent one landowner from consuming the resource at the expense of other landowners, this would encourage more conservation. Some parts of California have done this.

    aphrael (24797a)

  75. aphrael,

    As discussed by the Texas Supreme Court in the recent Edwards Aquifer case (pp. 20-25), the rule of capture applies to oil, gas and groundwater in Texas. Texas law also recognizes that each is a shared resource that must be conserved for future generations. That’s why all three are subject to regulations designed to protect current and future needs.

    Texas hasn’t run out of oil and gas, despite the rule of capture and years of environmentalists arguing otherwise. One reason is we are blessed with a lot of oil and gas; The other is the Texas Railroad Commission is a good steward and manages it well (as opposed to the EPA that seems to make oil and gas decisions based on emotion rather than fact). We may not have as much water but we’ll manage it well, too. And unlike oil and gas, groundwater can be replenished.

    DRJ (a83b8b)

  76. The comments on this thread have been very enlightening for me. Having spent all my life in the Midwest (with a few years on the east coast) the mere concept of permits and water rights are foreign– and creepy–to me. I can barely even process it, let alone discuss it. (Well yes, I did see the movie Chinatown.)

    I spoke at length with a grain farmer from central Illinois yesterday. They pray for rain upon the fields to help pollinate the corn and prevent the soybean flowers from falling off before they can even set pods. They pray for rain that will soak in an inch to keep the shallow roots alive. The “ground water” and aquifer are so far below the actual growing level as to be meaningless for crop production. It’s flat as a pancake here, not much in the way of runoff or tributaries to contribute to the “greater good”. Irrigation systems are nearly non-existant. Of course most farmers have personal use wells on their property and some maintain small open reservoirs which solely fill from rainwater that they can use to siphhen water to the cattle and pigs–and where the kids can play and cool off. But the reservoir has nothing to do with the crops.

    I appreciated all the information you provided Aphrael. I didn’t quite get how that crack to DRJ about Texas eating its seed corn applied to Utah and Cali water rights, though. What did I miss there?

    elissa (ee87eb)

  77. Elissa, Texas uses a system for allocation of groundwater which is unique among western states, and my crack about seed corn was a rhetorical device in an argument about how Texas’ system is problematic. It was a response to a side-current of the conversation stimulated by her link to a discussion of a Texas court case on the issue.

    aphrael (a2f252)

  78. DRJ, agreed that groundwater can be replenished. That said, the Edwards is being drawn down at a rate greater than the replenishment rate. So, basically, water is being taken out faster than it’s being replenished.

    I agree that oil is very well regulated in Texas. In fact, it is substantially better regulated than groundwater is – and if the case you linked to is won by the farmer, it will be all but impossible to adopt regulations similar to the oil regulations, because imposing such regulations would be interpreted as a taking.

    aphrael (a2f252)

  79. No, it will be treated under the doctrine of correlative rights, just like oil and gas.

    DRJ (a83b8b)

  80. aphrael,

    Even though Texas has been suffering from a record drought, even NPR acknowledges that San Antonio (the biggest user of the Edwards Aquifer) and most of Central Texas is only in limited water restrictions. The water in the Aquifer is being replenished.

    We can manage our water resources. Really.

    DRJ (a83b8b)

  81. Reminds me of the people’s republic of Lane County in the Eugene area. Couldn’t trim the widowmakers falling from the tree through the deck and roof because some owl might build a nest there. Same goes for the San Joaquin Valley where farming was shut down to save water for the delta smelt. In Arizona we have the pygmy owl and Texas suffers under the habitat of some lizard.

    On the railroad we witnessed birds of prey and carrion vultures sitting on phone poles and fences along the right-of-way waiting for a freight train to run over a slow antelope, rabbit or the odd bird between the rails spreading his wings out to protect the dead biologic. The beasts of the field adapt. In fact, they adapt faster than the tree hugging environmentalists who don’t have the brains to clear underbrush before a lightning storm hits. We have idiots on our team.

    vet66 (981247)


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