Is Water Collection on Your Own Property Illegal? May 16,2018

Sustenance ( Water )

Is Water Collection on Your Own Property Illegal? (Pt. 1 Water Collection)

When we talk about prepping for all things that may affect us and our loved ones, ranging from natural disasters to an end of the world dire straits situation, we know planning for the future is essential and one of the essential things you will need in a crisis is water.  So imagine my concern when I see a headline, such as, “Man Sentenced to 30 Days for Catching Rain Water on Own Property,” or “California Couple Targeted For Being Preppers.” Headlines like this certainly capture my attention. There are literally tens of thousands of federal, state, and local laws / regulations and you might be surprised if your steps to prep for a crisis manage to run afoul of some obscure regulation.  So let’s look at the landscape and see how seriously we need to take these headlines that provoke an emotional and gut response and beg the question: is prepping effectively illegal?

There is a term out there we’ve all heard called “click bait.” These headlines are designed to grip attention and, unfortunately in the modern day, are often the only part of the story that’s read. It isn’t really anyone’s fault with the constant barrage of information every second of every day it is nearly impossible to keep up. You might often hear these headlines in conversation or discussed in TV news reports but never heavily detailed. It is as if all anyone needs to know is the headline but as rational thinking people we have to ask some questions. I dug a little deeper on some of these stories to see if common necessary prepping is actually illegal or if we have been baited to click on the headline. There is the old term “buyer beware”, well today the same goes for the reader, reader beware!

Today, I want to specifically talk about a couple of cases dealing with rainwater collection. If the grid fails due to any reason we all know how vital water will become and how quickly sources like bottled water will deplete. Rainwater collection, water purification, and water recycling are items of concern to the average prepper and gardener. These headlines are big news to many of us  and, if true, some of us might even be criminals right now and not know it!

Let’s start with the good news by citing the case of Mr. Gary Harrington, an Oregon resident, who is the gentleman referred to in the above headline sentenced to 30 days in jail. The good news here is the story is a bit more complicated than the headline would suggest. It is completely legal to collect rainwater on your property and use it for indoor applications as well, more on that later, in Oregon. The state allows for rainwater collection, “provided you are capturing it from an artificial surface ‘such as a rooftop’ with the assistance of rainwater barrels,” so far so good, right? How could Mr. Harrington go to jail if he lived in a state that allows for rainwater collection and use? Well, that’s where the scale and method of collection come into play. Mr. Harrington collected over 13 million gallons, that’s right millions of gallons, by creating three large reservoirs. One of these “manmade lakes” actually had bass within and docks on it (go big or go home, right?). He created the lakes by placing dams on his property; this is where he ran into legal trouble.

In fact, this is where most of us will run into trouble across the United States, depending on state and local laws. The deed to your property does not always, actually very rarely, include the “water rights” to the property. In the case of Mr. Harrington Oregon’s laws state water is publicly owned and to divert flow or build dams one must have state issued permits; alas, which he did not. He did apply for them and was even granted them until the decision was reversed and he has been in a protracted back and forth legal battle for nearly a decade. The state cites a 1925 law that gives the state full rights to the water sources, specific to the case, in the Big Butte Creek area.

This is where the bad news comes in. For some of us, especial along the west coast, you might have to become something of a legal expert to determine whether or not you actually can collect rainwater. Remember above when I said something about the use of the collected rainwater for indoor use? Well there are also laws in place in some areas that talk about what you can and cannot do with collected rain water.

Fortunately, these laws are being amended or outright reversed in some places, take California for instance. California used to allow only the outside use (e.g. lawn care, pool upkeep, gardening) of collected rainwater, this has changed as of September 2011. The Rainwater Capture Act of 2011 in California is a step in the right direction as far as the prepper is concerned as it relaxes the rules on rainwater collection.

Part 2.4 Rainwater Capture Act of 2011

10571. The Legislature finds and declares all of the following:

d) Expanding opportunities for rainwater and storm water capture to augment water supply will require efforts at all levels, from individual landowners to state and local agencies and watershed managers.

This bill gets a great deal more specific about the changes it does and does not make to current legislation but I think you get the point. Water collection isn’t as straight forward as you might think at first glance. Even in states where there is not statutory language, which is the great majority of them, you run into a very complicated legal issue. Water is not “real” property, a legal way of saying you don’t have the inherent ownership rights to the water on your property as surface waters are considered to be owned by the state. Trying my best to not get too deep into the “legalese” and keep this as far from boring as possible the main difference between real property and water rights come down to that word “ownership.” In effect you don’t own the rights to absolute and exclusive possession, use, sale, or transfer of water according to federal law. Without specific legislation stating you can collect rainwater the overall rule COULD be interpreted to say you can’t collect rainwater because you don’t have the exclusive rights to it.

Now we come to the next part of the laws that are on your side, riparian rights. In the Eastern United States common riparian rights doctrine states property owners can make use of water if the use is considered reasonable (what constitutes reasonable use is also always up for interpretation)and  what one politician during their term deems is ok may not be if the political winds change or if they are replaced.  In the western United States water rights are subject to a prior appropriation system based on the model of a priority system set up in the mid 1800’s by miners during a drought. As should be obvious by now these are some old laws with very old thinking behind them, they are not environmental in nature in the least. There have, in fact, been several environmental surveys done stating empirically allowing individual rainwater collection would reduce demand from water facilities and improve conservation efforts. As a point of fact the relaxing of California’s rainwater collection laws above attest to the truth of this as it was mainly enacted in response to the long term conservation efforts there.

In truth, as I have said once or twice above, water collection is actually a very complicated issue. If you are considering a rainwater collection system, or any truly off grid water solution there are several things to check ahead of time. First, what are your water rights to your property? Second, what side of the United States are you on? Third, what does your state have to say about it? Lastly, what does the current local government have to say about it? With all these ducks in a row you should be safe as long as you don’t plan on filling several manmade lakes on your land.


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