Monday, October 26, 2009

Singing in the rain: parting the clouds in state water law

Photo of a rain collecting "guzzler"

By Kurt Unger, Department of Ecology, Water Resources Program

We’re singing in the rain in the Department of Ecology’s Water Resources Program, celebrating a new rainwater collection policy that says it’s OK to collect and store rainwater from your roof for use on your property.

To the delight of the green building community and many others in Washington state, we issued a new policy statement on October 12th clarifying that water right permits are not required for either the use of or the on-site storage of rainwater collected by a rooftop system or a guzzler. (Guzzlers are devices used to catch and store rainwater and dew to provide wildlife or livestock with drinking water.)

Under the department’s policy, the on-site storage and/or beneficial use of rooftop or guzzler collected rainwater is not subject to the permit process of RCW 90.03, Washington’s 1917 surface water code. But if and when the department determines that rooftop or guzzler rainwater harvesting systems are likely to negatively affect instream values or existing water rights, local restrictions may be set in place to govern future systems.

To qualify as rooftop collected rainwater, the roof collecting the rainwater must be part of a fixed structure above the ground with a primary purpose other than the collection of rainwater. Typical uses of rainwater include using it to flush toilets or for watering lawns and gardens.

Those not familiar with the issue may ask, “Why the heck was Ecology requiring water right permits for rooftop rainwater collection in the first place?”

Instead of deluging you with information, here’s an answer that will fit in a watering can:
Nearly all states west of the Mississippi River follow one form or another of what is commonly known as the Prior Appropriation Doctrine. The underlying tenant of this water law doctrine is first in time, first in right. That is, the first person to use a certain quantity of water for what’s called beneficial use (pretty much everything except wasteful use) has a senior water right. Of course, not all applications are approved by agencies like Ecology because water is a finite resource. Subsequent approved applications have what’s called a junior water right. When water supply is tight (during a drought, for example) or in basins where water is seemingly perennially tight (such as in the Yakima Basin in Washington), the most junior water right holders are told they must stop using water so that the more senior water right holders get their full allotment of water.

This priority-based system has caused some issues with rainwater collection in Washington and some western states, notably Colorado and Utah – two states that are actively attempting to regulate and enforce strict legal interpretations about the use of rooftop rainwater requiring a water right.

Previous interpretations of the broad language of Washington’s 1917 surface water code found that the use of undefined phrases describing water limited Ecology’s ability to determine what sort of uses are not subject to the water right permitting process. Our legislators took notice of the issue in 2002 and tried to fix it. Unfortunately, they were unable to agree on legislation that made common sense. To their credit, they kept trying every year thereafter, but the issue proved too challenging for a resolution.

As the years passed, the situation became more untenable. Rainwater harvesting projects were getting pushed into the backlog of water right applications (currently just under 7,000 and rising.) The result? Folks just kept collecting rainwater anyway and Ecology was losing credibility fast. Last year, Ecology undertook a renewed, detailed look at relevant water law and we found a way to bring clarity to rainwater collection and make it legal.

Hopefully, Washington’s practical policy will show other western states that are struggling with this issue that there is a rational path forward. As renowned water law professor David Getches notes in his book, Water Law in a Nutshell, “Obviously, not all water on earth is capable of management by governments.”

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