Raindrops Keep Falling...
hamilton02 at aol.com
hamilton02 at aol.com
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?
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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
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?
The article which inspires this deathless query is below:
Back to Article
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
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
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.
This article appeared on page E - 2 of the San Francisco Chronicle
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