In this May 1, 2014, photo, irrigation water runs along a dried-up ditch between rice farms to provide water for the rice fields in Richvale, Calif. A federal agency said Friday that it will not release water for most Central Valley farms this year, forcing farmers to continue to scramble for other sources or leave fields unplanted. (Jae C. Hong/AP)
Do you live in Colorado? Does it rain on your house? Do the drops patter off the roof, compose romantic puddles on your porch?
Guess what: That water isn’t yours. You can’t have it. And you most certainly cannot set out a tank to catch what falls from the sky, you thief.
Water laws are so strict in Colorado that rainwater collection is virtually prohibited. The doctrine is written into the state’s Constitution. All the rain is already spoken for. It belongs to someone, and that someone probably isn’t you. So don’t you touch it.
“The rain barrel is the bong of the Colorado garden,” local columnist Dave Philipps wrote in 2007. “It’s legal to sell one. It’s legal to own one. It’s just not legal to use it for its intended purpose.”
That might change soon, slightly.
On Monday, Colorado representatives voted to allow people to store up to 110 gallons of the rainwater that flows off their roof. One hundred gallons is on the high end of how much water a person in America uses per day. It’s about three tubs full of water, or four loads of laundry.
Rain barrel legalization will not save the world, nor even Colorado, where already the law against rainwater collection is rarely enforced. H.B. 1259might not even pass Colorado’s Senate. But it’s a symbolic step toward a more modern way of thinking about water in America’s dry Western states.
In the West, water belongs to someone
The principle at stake is called prior appropriation, which is legalese for “first come, first served.” This doctrine forms the bedrock of water law in the Western states, where long ago settlers raced to gobble up all the water rights. Prior appropriation helps explain why water-intensive agriculture is still a major industry in a place as arid as the West: Many of the early claimants were farmers seeking to irrigate their crops.
These days, with drought parching the region, there’s hardly enough water to go around. According to the law, the people who get first dibs are the ones who called it first, which tend to be the agricultural users and not the city dwellers.
In Colorado, other people’s water rights even extend to the raindrops that fall onto your roof.
Why? Because those raindrops might tumble into the gutter; they might seep into the ground; might, in some other eventual, serpentine fashion, find their way to a river where somebody’s great-great-grandfather once established a claim.
Legal experts have long criticized the Wild West principle of prior appropriation. They say that the tradition of dibsies is incongruent with the way that people demand water in the 21st century.
“It’s this very rigid, very old system of water rights that hasn’t really changed that much in over a century,” said Reed Benson, a law professor at the University of New Mexico.
“Prior appropriation is so deeply embedded in Western water law,” said Robert Glennon, a law professor at the University of Arizona. “We academics criticize it but it’s not going anywhere.”
Benson has studied all the different ways that Western states have grappled with an increasingly stale idea like prior appropriation, which allocates water according to seniority instead of need. Bills legalizing rainwater collection are an example of how legislators have sought to carve exceptions into that way of thinking. (California passed a similar law in 2012.)
“There are a lot of good, practical, common-sense arguments in favor of a bill like this,” Benson said. “The fact that it’s controversial, the fact that it’s taken this long, shows you how well-entrenched that old tenacious legal system is.”
A snowboarder threads his way through patches of dirt at Squaw Valley Ski Resort in Olympic Valley, Calif., on March 21. Many Lake Tahoe area ski resorts have closed due to low snowfall as California’s historic drought continues. (Max Whittaker/Getty Images)
Whose idea was this, anyway?
Some laws are crafted by Congress; but the system of water rights in the West is a lesson in how customs can calcify into legal doctrine.
As the story goes, the dibsies approach to water management dates to the California Gold Rush. Flowing water has long been a gold miner’s best friend: As it cuts through the landscape, it picks up pebbles, dust, and occasionally, specks of something more precious.
These treasures end up naturally at the bottom of riverbeds, waiting to be sorted out of the sediment. During the 1849 Gold Rush, prospectors schlepped across the country to pan for those rare glints in California’s streams.
Miners of means sought to speed up the process. They set up high-pressure hoses to blast entire cliff sides. The runoff would flow through boxes that caught any gold fragments washed loose.
Hydraulic mining harmed the environment and placed exorbitant demands on a dry region’s water resources. The practice eventually fell out of favor, but not before it made a lasting impact on water law.
To feed their thirsty operations, miners dug channels that siphoned water from sources that could be miles away. They followed an apportioning rule carried over from mining principles. The first person to dig his canal was entitled to whatever water he carried away.
Eventually, Western states began to recognize and regulate this practice. They parceled out permits to surface water in the order and quantities that people came to claim it. As settlers arrived to start irrigated farms on parched soil, people continued to treat water as its own and separate property right: Just because you owned the land didn’t mean you owned the water.
The Eastern states, in contrast, were wet enough that they regarded surface water as a shared, inexhaustible resource (as in the common-law tradition, imported from soggy England). They did not keep tabs on how much water anyone took out of a river. People who owned land next to a river were free to use that river’s water in any reasonable fashion, as long as it didn’t affect their neighbors.
Though it’s maligned today, the system of prior appropriation suited the West’s arid climate. Unlike in the Eastern states, settlers could not rely on what streams, if any, ran through their property. They needed a legal system that allowed them to bring in water from far afield. Furthermore, water was scarce enough that it had to be measured out, which called for an orderly system of permits. These rights were given to those who would use the water productively — to irrigate a field, or to supply a mine.
In theory, prior appropriation made sure that water wasn’t wasted. People could not simply claim part of a river and divert it onto their property. They had to show that they had plans for the water, and that their plans did not interfere with the designs of the people who came before them.
Only then would they get rights to the water — and only enough water to serve their needs. As long as they continue putting the water to work, those rights are theirs forever.
Decades later, the unforeseen consequences
Fast forward 150 years to the present, when nearly every river basin has been burdened with claim on top of claim. Cue a record-breaking drought.
Prior appropriation has no provision for shared water conservation; the priority system is strict. During dry times, someone with a senior claim gets to suck down her full allotment. The people down the line might get nothing.
(In Colorado, she’s even entitled to the rain that falls onto her neighbor’s roofs. That rain, by law, must be allowed to flow unimpeded into the river for her to use.)
Critics say this system encourages waste. People with senior water rights don’t have any reason to cut back on their water use. (In practice the system is a bit looser, Illinois Institute of Technology law professor Dan Tarlock notes. It’s frowned upon to completely hog the water, even if someone has the legal right to do so. There’s some cooperation among growers.)
Consider the situation in California, where last week the governor imposed mandatory water conservation rules. Residents may not water their lawns more than a couple times a week. Restaurants can no longer serve water unless patrons specifically ask for it. If these measures don’t work, the state will consider punishing people with fines.
Yet, as the Economist noted last year, agriculture guzzles 80 percent of the water that California pumps, while representing only 2 percent of the state’s economic activity. Cities are responsible for most of the growth in the West, but irrigated farms still account for most of the water used.
California Gov. Jerry Brown (D) has set a goal for homeowners to cut back on water consumption by 20 percent; but even if every suburbanite complies, the reduction would mostly be symbolic.
“There’s a strong push to conserve municipal demand in part to send a message, because that’s where the people are,” said Benson. “But also because that’s viewed as easier to accomplish. Agricultural water conservation is hard to do: in part because it’s expensive, and in part because the law doesn’t incentivize conservation.”