The Nevada State Senate and Assembly are each considering bills this session that would legalize rainwater collection for domestic use. (For those of you tracking bills at home, the relevant bills are AB 138 and SB 74.)
News of this pending legislation has been met on social media with outrage over the notion that rainwater collection was made illegal in the first place. It seems patently absurd that one would be legally prohibited from collecting rainwater and storing it for use in watering lawn and gardens. After all, the rain that falls on our property belongs to us, right?
Actually, not really.
The current legal prohibition on collecting rainwater is a byproduct of a significant invention in water regulation — the doctrine of prior appropriation and beneficial use. To understand why rainwater collection is not currently allowed, you have to know a little about the history of water law.
At common law— the body of legal tradition and judicial opinions that form the basis for English and American law — water is allocated under the “riparian rights” doctrine. The principle underlying this doctrine is the idea that a property owner is entitled to make reasonable use of any body of water located on or next to his or her property. If there isn’t enough water to go around, you allocate water based on the relative amount of waterfront that everyone has. This system seemed to work fine in England and in the Eastern United States, where there is plenty of water.
During the California Gold Rush, it became pretty clear to everyone using water that the riparian system would not work because (1) water was just too scarce, and (2) water often needed to be diverted from the source to the place of use, so it didn’t make sense to connect water use to property ownership. In the second half of the nineteenth century, courts in California began to develop the doctrine of prior appropriation and beneficial use. Under this doctrine, the first person to put a water resource to beneficial use retains the right to that water for so long as he or she continues using it. This method of allocating scarce water caught on throughout the West in the late nineteenth century, and has nearly always been the law in Nevada.
The point here is not to defend the doctrine of prior appropriation as an ideal system; there are a lot of ways in which the doctrine should probably be tweaked to adapt to contemporary needs. However, the history of the West is the history is the history of water development; it is not possible to imagine any real agriculture or mining in the West under the riparian rights doctrine. It is no exaggeration to say that the doctrine of prior appropriation and beneficial use made the West what it is today.
Nevada’s current water statute was enacted in 1913, and it embodies the principles underlying the doctrine of prior appropriation and beneficial use. First, the statute sets forth the principle that water belongs to the public, not to private property owners (NRS 533.025). Second -- and I think this is the most elegantly written statue I have ever read, “beneficial use shall be the basis, the measure, and the limit of the right to use water” (NRS 533.035). Third, the statute sets forth the procedure through which someone may obtain the right to use water by placing it to beneficial use.
Finally, and here we are about to circle back to rainwater, the water statute provides that “all water may be appropriated for beneficial use as provided in this chapter and not otherwise.” (Emphasis added.) The reason for this is pretty clear — it doesn’t make any sense to have a uniform system for water appropriation unless it is, well, uniform — it has to apply to everyone. Therefore, the only way to obtain the right to use water is to apply for a permit to do so in the way that the statute describe. Unless such a permit is obtained, the water belongs to the public.
That is why rainwater collection is not legal under the statute — because to use water, which belongs to the public, you need to obtain a permit to do so. Water may not be appropriated otherwise, and the statute does not currently provide a way to obtain a permit for rainwater collection. Now, I should note that although it is not technically legal to collect rainwater, the Nevada State Engineer has not ever enforced this prohibition against domestic rainwater systems or wildlife guzzlers.
I am not arguing that the statute should not be amended to allow for small scale rainwater collection for domestic use and wildlife guzzlers. Those seem like perfectly reasonable policies, and the pending bills should probably be passed in one form or another.
What I am taking issue with is this popular notion that the prohibition on rainwater collection is a product of government overreach or some recent and heavy-handed regulation. To the contrary, this rule is a byproduct of the historic legal framework that allowed the West to develop in the way that it did. I hope that popular outrage over this law can be tempered with some historical perspective.
News of this pending legislation has been met on social media with outrage over the notion that rainwater collection was made illegal in the first place. It seems patently absurd that one would be legally prohibited from collecting rainwater and storing it for use in watering lawn and gardens. After all, the rain that falls on our property belongs to us, right?
Actually, not really.
The current legal prohibition on collecting rainwater is a byproduct of a significant invention in water regulation — the doctrine of prior appropriation and beneficial use. To understand why rainwater collection is not currently allowed, you have to know a little about the history of water law.
At common law— the body of legal tradition and judicial opinions that form the basis for English and American law — water is allocated under the “riparian rights” doctrine. The principle underlying this doctrine is the idea that a property owner is entitled to make reasonable use of any body of water located on or next to his or her property. If there isn’t enough water to go around, you allocate water based on the relative amount of waterfront that everyone has. This system seemed to work fine in England and in the Eastern United States, where there is plenty of water.
During the California Gold Rush, it became pretty clear to everyone using water that the riparian system would not work because (1) water was just too scarce, and (2) water often needed to be diverted from the source to the place of use, so it didn’t make sense to connect water use to property ownership. In the second half of the nineteenth century, courts in California began to develop the doctrine of prior appropriation and beneficial use. Under this doctrine, the first person to put a water resource to beneficial use retains the right to that water for so long as he or she continues using it. This method of allocating scarce water caught on throughout the West in the late nineteenth century, and has nearly always been the law in Nevada.
The point here is not to defend the doctrine of prior appropriation as an ideal system; there are a lot of ways in which the doctrine should probably be tweaked to adapt to contemporary needs. However, the history of the West is the history is the history of water development; it is not possible to imagine any real agriculture or mining in the West under the riparian rights doctrine. It is no exaggeration to say that the doctrine of prior appropriation and beneficial use made the West what it is today.
Nevada’s current water statute was enacted in 1913, and it embodies the principles underlying the doctrine of prior appropriation and beneficial use. First, the statute sets forth the principle that water belongs to the public, not to private property owners (NRS 533.025). Second -- and I think this is the most elegantly written statue I have ever read, “beneficial use shall be the basis, the measure, and the limit of the right to use water” (NRS 533.035). Third, the statute sets forth the procedure through which someone may obtain the right to use water by placing it to beneficial use.
Finally, and here we are about to circle back to rainwater, the water statute provides that “all water may be appropriated for beneficial use as provided in this chapter and not otherwise.” (Emphasis added.) The reason for this is pretty clear — it doesn’t make any sense to have a uniform system for water appropriation unless it is, well, uniform — it has to apply to everyone. Therefore, the only way to obtain the right to use water is to apply for a permit to do so in the way that the statute describe. Unless such a permit is obtained, the water belongs to the public.
That is why rainwater collection is not legal under the statute — because to use water, which belongs to the public, you need to obtain a permit to do so. Water may not be appropriated otherwise, and the statute does not currently provide a way to obtain a permit for rainwater collection. Now, I should note that although it is not technically legal to collect rainwater, the Nevada State Engineer has not ever enforced this prohibition against domestic rainwater systems or wildlife guzzlers.
I am not arguing that the statute should not be amended to allow for small scale rainwater collection for domestic use and wildlife guzzlers. Those seem like perfectly reasonable policies, and the pending bills should probably be passed in one form or another.
What I am taking issue with is this popular notion that the prohibition on rainwater collection is a product of government overreach or some recent and heavy-handed regulation. To the contrary, this rule is a byproduct of the historic legal framework that allowed the West to develop in the way that it did. I hope that popular outrage over this law can be tempered with some historical perspective.