So Who Owns the Rain?

Gary Harrington, of Jackson County, Oregon was jailed and fined a couple of years ago for collecting rainwater. In court, Oregon officials declared unequivocally that rainwater is considered the "property of the state." Libertarians, conservatives and more than a few permaculturists (sustainable gardening/farming enthusiasts) are outraged. As it turns out they are more outraged by the government claiming to own the rain that falls on your property than they are by Mr. Harrington's treatment, but, after all, it's the principle of the thing.

Admittedly Mr. Harrington was collecting rather a lot of rainwater and it wasn't in barrels behind his house. Harrington had constructed 3 ponds on his 170 acre land which among them hold 13 million gallons of water. None of these ponds are situated on streams. The water comes from rain which actually falls on Harrington's property and from snow melt - also from snow on his land.

The big deal that sent everyone through the roof was the statement in court by Oregon officials that the State of Oregon owns all the rain that falls on your property and that if you want to use any significant amount of it, you have to get a permit from the state.  Given that streams and rivers and town water supplies depend on runoff from the land, one can kind of understand why the state or county might want to not lose 170 acres of it. But of course, in trying to make everything fair, the government almost creates more problems than it solves.

The way the law reads, you can only collect rain off of hard surfaces like concrete driveways, rooftops and such, but once it hits the ground, it's no longer yours to do with as you please. According to director of the Oregon Water Resources Department, Tom Paul, "Oregon law says all of the water in the state of Oregon is public water and if you want to use that water, either to divert it or to store it, you have to acquire a water right from the state of Oregon before doing that activity."

Always fearful of government overreach, people on both the right AND left wonder, "What's next?" Sunshine falls on your property. Are they going to charge you a fee for the sun that you use if you put up solar panels? How about the wind? Does Oregon own the wind? Will they charge you a fee for wind usage if you put up a wind charger? 

Here's one issue where we can hook up with the sustainable permaculture people, not a notably conservative lot and give them a little love and maybe get their votes next election. After all, it's liberals that are pushing this kind of thing, not conservatives. We think your home's your castle and rain, sun and wind belong to you. We don't like government overreach either.

If it had been a matter of Harrington arbitrarily blocking up a stream and depriving those downstream from free access to water, I can see the state's getting involved. In the Harrington case, Gary is a cranky old guy who blew off orders by the county to destroy his ponds and kept refilling them. This is more about government authority than it is about water. With his ponds full, Harrington's land is likely putting as much or more water downstream than it was when the pond acreage was covered in water-absorbing trees and grasses. Over time, the pond bottoms develop a kind of seal that holds water from being leaked out too quickly.  Water still percolates through to the water table, but even more goes downstream through overflow when the ponds are full.

Ironically, if Mr. Harrington had paved his land with concrete, destroying plants and trees and THEN collected the runoff, he wouldn't be in trouble. It's allowed for you to collect water from nonpermeable surfaces. So, since Mr H continued to allow much of the rainfall that hit his property to  to sink into the soil and down into the water table, he isn't allowed to collect any of what's left for his own use without paying for a permit and receiving permission to build his ponds, Actually Harrington did get a permit, but after the ponds were built, the state rescinded his permit.

Okay, so answer this question for me:  "If Oregon owns the rainfall, and if excessive amounts of Oregon State's rain falls and floods my property and destroys my home, can I sue the state for damages?"  After all, if my property, say my car for instance, crashes into your home, I have to pay the damages. I can do that because the state of Oregon forces me to buy car insurance in exchange for the privilege of driving Oregon's lovely roads.  Should Oregon then, be forced to buy flood insurance for the whole state, just in case THEIR rain wrecks my house?

This might be a fun case to present to the Supreme Court.  A more sensible ruling would be to allow the state to control streams and established waterways and prevent irresponsible damming up of shared water sources and leave rain which falls on your property to the property owner.  If you have a stream on your property, you wouldn't be allowed to dam it up, but in Oregon, with as much rain and annual flooding as they get, it seems likely they could use all the flood control ponds they could get. Harrington has even built three of them at his own expense.  

Oregon is not alone in claiming the rain as government property. Colorado does Oregon one better, claiming a right, not to just the rain after it falls, but to all the moisture in the atmosphere. There you can get in trouble for collecting rain off your roof.  The Colorado Division of Water Resources makes it clear:  “Colorado water law declares that the state of Colorado claims the right to all moisture in the atmosphere that falls within its borders and that ‘said moisture is declared to be the property of the people of this state, dedicated to their use pursuant’ to the Colorado constitution. Interestingly, in Colorado some folk have "senior" rights to the people's water, which, I think, means they acquired them before the Colorado legislature turned into a politburo. If only you have junior rights, you're just out of luck.

It's an interesting issue to say the least. I should think it would provide some real entertainment if it took a run through the Supreme Court.  But then what do I know. I'm just waiting for Jesus to come, tear it all down and start over with a New Earth, where God gives to all freely and we don't have junior and senior water rights to fight over.

(c) 2015 by Tom King