Marti Oakley (c)copyright 2010 All Rights Reserved

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A recent article about state governments seizing the rights to rain water off your roof, elicited a comment that almost sounded like it was relevant; until you examined the actual available data.  Because the of the convoluted logic used to make the arguments in this commentary, we felt it necessary to dispel misconceptions many people operate under when it comes to the issue of water rights.  This comment, crafted to look as though the government both state and federal is …..only trying to protect the rights of land owners….is a PR piece; gee….I wonder where this came from? 

C=Comment

A=Answer

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C.  First, in the western states, water rights are held for the beneficial use by the public and apportioned for use by seniority.

A. At one time this was true, but reinterpretation by the BLM of “public use”, “adequate use” and “beneficial use” have rendered seniority use as a part of property rights, null and void.  This means you have no water rights to speak of; apportioned use is not even a consideration.  Profit is all that matters and many states no longer recognize water rights as belonging to individual land regardless of what the previous statutes and laws were.

Because water is now declared by BLM to be a salable commodity, every effort is made to contract the allocated rights to water, to private corporations for use in strip mining, geo-thermal activities, and for sale to private corporations for diversions to far away places!

These private sellers have first rights to their allocation of water before any water is released to the “public”. On public lands either owned or controlled by the BLM, ALL waters existing above or below the surface belong to and are controlled by the BLM.  They could give a crap if you have water or you don’t. 

The private corporations BLM contracts with will get their “allotment” (the amount of water they contracted to buy) before you get a drop.  This is done under the “multiple use” doctrine they them selves developed, whereby they determine what is not only beneficial use, but also “adequate use” of natural resources, including water. And where the rain fell is of no concern to them. 

C. A water right is a property right. The first person to use the water has the better right; first in time, first in right. See the Colorado state constitution, Art. XVI, for example. 

A. You will find that your state constitution has no relevance when it comes to edicts of the BLM regarding sale of, drilling for, distribution of, or use of, water and most especially not on lands that it owns or controls. BLM claims ownership and control of all water either percolating, or aquifer, or surface waters.

C. Second, rain water is river water is well water is spring water. It is all hydraulically connected (with a few exceptions).  It all falls as precipitation. Left alone, the rain that falls on your roof will eventually reach the river on its way to the ocean. It may travel underground for miles along that course before joining a surface river. Someone along that river has a senior water right recognized under law that relies on that rain, and is waiting to receive and use it. The only difference between rain water and tap water is the point in time and space where it is removed from the hydrologic cycle and used. There are efficiencies in using rainwater directly for non-potable needs, but that’s an economic issue, not a legal one. 

A.  Sometimes I wonder who it was that sat around with enough time on their hands to think up this kind convoluted logic as the reason and rational as to why the “state” or the BLM should decide who can collect water (rain) that falls from the sky.  Especially when you never know when it is going to rain, where it is going to rain, or even how much its going to rain.  If its your water, why did it fall on my roof?

Does the BLM or state assume responsibility for excess amounts of rain and the ensuing floods?  Do they have an added liability for the excessive amounts of water (rain) that collected on the lands of people you claim do not own the water?

There may be people down the line waiting to receive and use what was never in their possession to begin with (like rain) but that rain could just as easily evaporate, get sucked into dry ground or pool up in small depressions in the earth.  Or it could end up in my rain barrel because I collected it.  Either way, if it falls on my land; its mine. 

(Using the logic of the commenter, I would assume the commenter is a proponent of removing all water dam systems, man made reservoirs, and any other man made structure or pipeline that alters, halts, slows, diverts or stores water for later use, or that pipes it away many times into other states.)  

C. The truth is that government is not banning rainwater collection; it is recognizing and protecting the vested property interests of the senior water rights owners, and preventing everyone with a water barrel from stealing the water rights that belong to their neighbors.

A. The government has no interest in your vested property rights and is doing everything it can to either make them untenable or to strike these claimed rights down altogether in the name of the “public good” (BLM profits).

What the government is protecting is the right of the investor (not land owner) to seize his water allocation as per contract and for profit.  Otherwise, the corporations under NAFTA and CAFTA, could sue the federal government for erecting a barrier to trade.  Both NAFTA chp. 11, and CAFTA chp. 7, claim the rights of the investor are to be held above those of the individual and/or state.  You got no rights!

Making it a criminal act to collect rainwater off your roof, is not a ban?

C. That’s not tyranny, it is protection of private property under law. It is no different than me expecting the police to remove the trespasser from my front porch. The government is not stealing water supply; it is preventing people from stealing their neighbors’ water supply.

A.  You claim possession of something that was never in your possession to begin with? This has to be the lamest argument I have heard in quite some time.  Using this twisted up but carefully crafted line of BS…..I can only assume that Mexico will soon come knocking wanting THEIR water that fell as rain in Canada.  

I am left with only two possible conclusions after reading this last statement by the commenter:

    1.  This is a BLM plant who is intentionally disseminating erroneous and blatantly false information. Or;

     2. Someone hasn’t done their homework and just decided this must be the way it is.

Personally, I think #1 is more probable.  This is straight off BLM and its fictionalized propaganda pages meant to make you think they actually give a flying flip about your property rights or how thirsty you might be.

Note***

After demurring in 2007 as to whether or not water was a commodity, as opposed to declaring it a human right, The UN finally decided this year that water is a human right. 

“Safe and clean drinking water and sanitation is a human right essential to the full enjoyment of life and all other human rights, the General Assembly declared today, voicing deep concern that almost 900 million people worldwide do not have access to clean water.”

This was a U.N. declaration July 28, 2010

The US voted against it.

Must not be any rain where these 900 million people live.