Raindrops Keep Falling...

Fri Nov 21 10:19:17 PST 2008

Whether there is a constitutional right or not, don't the western states have a compelling interest in water management?  

Marci
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: Robert Sheridan <rs at robertsheridan.com>

Date: Fri, 21 Nov 2008 10:07:29 
To: CONLAWPROF Prof list<CONLAWPROF at lists.ucla.edu>
Subject: Raindrops Keep Falling...

An organic farmer in Douglas County, Colorado, was denied a county  
permit to collect rainwater off her roof when the well ran low.  The  
reason for the denial was that the runoff ran into the San Miguel  
River, three miles away, whose water is fully allocated to other users  
downstream.

In discussing substantive due process "liberty" in the 5th and 14th  
Amendments, I've sometimes referred to the right to eat food and  
breathe air as liberties that were too plain to have needed  
specification, but which I had no doubt were protected under this  
doctrine.  I'd have thought that about collecting raindrops, too, had  
I thought of it, but some things seem so plain, don't they?

Is there a constitutional right to collect the runoff from the  
raindrops on your roof?  Do we recognize property in the contents of  
gutter spouts?  Or does a county government (or the federal  
government, for that matter) have the power to prevent individual  
property owners from collecting water runoff for the greater good, say  
under the aggregation theory of Wickard v. Filburn?  How about wind  
power?  Say my turbines interfere with yours downwind.  Electric  
power.  Interstate commerce and all that.  What if they all did this?

rs
sfls

The article which inspires this deathless query is below:

Article:Water wars:/c/a/2008/11/20/DD8C147RIU.DTL
SFGate
Back to Article
SFGate
Water wars

Jon Carroll

Friday, November 21, 2008

I recommend to you once again the High Country News, which is  
available at hcn.org, where you can also find information about hard- 
copy subscriptions, which I prefer. A small article in the Oct. 13  
issue by Peter Friederici caught my eye.

It seems that one Kris Holstrom, who runs an organic farm outside of  
Telluride, had a swell idea. The well she had used to irrigate her  
crops was lower than it had been. There's a drought going on, as you  
may have heard - it'll probably be going on for some time - and new  
housing developments have increased the demand for groundwater. So she  
built cisterns to capture rainwater to replace the well water.

Seems like a sound ecological practice; recycling and all that. Being  
a good citizen, she applied for a permit to collect the rainwater from  
her building roofs. Bad idea.

In three states - Utah, Colorado and Washington - it's illegal to  
collect rainwater without a permit, and permits are often impossible  
to get. Holstrom's request was denied; she would be a common water  
thief. To quote from the article:

" 'They felt that the water belonged to someone else once it hit my  
roof,' she says. 'They claimed that the water was tributary to the San  
Miguel River' - which runs some three miles from her place and is  
fully allocated to other users downstream.

"How much of the precipitation that falls on Holstrom's farm  
eventually reaches the river? Likely not much. A recent hydrological  
study found that little precipitation that falls on undeveloped areas  
in Colorado's Douglas County actually reaches streams. In a wet year,  
15 percent of the precipitation does; in a dry year, none."

This may seem like a matter of bureaucratic intransigence, but there's  
some sense behind the law. Holstrom is probably not doing any damage,  
but suppose this sensible practice were to spread to exurban housing  
developments and small towns. Then the river flow and groundwater  
reserves really would suffer. Where do you draw the line? How do you  
legislate the weather?

It has been said more than once that "water is new oil," and that's  
probably right. We can in fact live without our cars, or get electric  
cars - which would be plugged into sockets that may very well get  
power from hydroelectric dams, which are run by huge snowmelt streams  
plunging into canyons.

But all mammals must drink water to survive. Are you going to let Fido  
or Fluffy perish so that you may live? Becoming a vegetarian is no  
good either - crops need water to grow. Unless we find a way to eat  
rocks, we're pretty much screwed.

That, of course, is a worst-case scenario, science-fiction stuff. But  
we live in an age of worst-case scenarios. Lots of scary people have  
the material and knowledge to build nuclear bombs. Two or three of  
those, and that would thin the herd considerably. It would also make  
the water undrinkable. Uh-oh.

George W. Bush said that we are "addicted to oil," which, in  
retrospect, seems like an idea he could get behind. But we are really  
addicted to oxygen, in both gaseous and liquid form. We are fortunate  
enough to have lots of plants pumping out oxygen for us to breathe,  
but if the plants go away ... don't even think that way. But do plant  
another tree.

At the moment, the laws in Utah, Colorado and Washington are not  
really enforced. There aren't water cops patrolling the streets.  
Unless you are foolish enough to ask for a permit, you'll be fine -  
for now. (Sort of like home remodeling in Oakland, not that I have any  
personal knowledge on that topic.)

Many water districts are now experimenting with tiered pricing  
policies, with water overuse being penalized by stiffer prices.  
That'll certainly help poor people watch their hygiene habits, but I  
imagine the private golf courses will still be greener than a fresh  
pork chop left out in the sun. (Note to self: better metaphor.)

Not that municipalities are unaware of the problem - particularly in  
the always sensible Northwest. As Friederici writes, "Cities have  
stepped in, too. Seattle now has a master water permit that allows  
residents of most neighborhoods to collect some rainwater. ... 'The  
advantage to the city is that we can then take some demand off our  
system,' says Jeff Niermeyer, the city's public utilities director.  
'That means we won't have to develop other (water) sources as soon.' "

But still, pretty darned soon, because if Seattle is fretting about  
water, imagine how Los Angeles and Phoenix are doing. Because every  
little river rolls down to the sea, not much rolls down to the desert  
except in aqueducts. And when the upstream people start fighting the  
downstream people - it's just not going to be pretty.

Raindrops keep falling on my head, and in these buckets I have  
conveniently placed around my home to - did I hear a siren? Get the  
buckets!

I don't know why you treat me so bad; think of all the things we could  
have had. Love is an ocean that I can't forget; my sweet sixteen I  
would never regret. I wanna know that you'll tell me, I love to stay:  
Take me to the river, drop me in the water, push me in the river, dip  
me in the water, washing me down, washing jcarroll at sfchronicle.com.

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/11/21/DD8C147RIU.DTL

This article appeared on page E - 2 of the San Francisco Chronicle
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