Take a look at this article from a local news site.

CATCHING RAIN WATER IS AGAINST THE LAW
August 12th, 2008 @ 11:49pm
By John Hollenhorst

Who owns the rain? Not you, it turns out. You're actually breaking the law if you capture the rain falling on your roof and pour it on your flower bed! A prominent Utah car dealer found that out when he tried to do something good for the environment.

Rebecca Nelson captures rainwater in a barrel, and she pours it on her plants. "We can fill up a barrel in one rainstorm. And so it seems a waste to just let it fall into the gravel," she said.

Car dealer Mark Miller wanted to do pretty much the same thing on a bigger scale. He collects rainwater on the roof of his new building, stores it in a cistern and hopes to clean cars with it in a new, water-efficient car wash. But without a valid water right, state officials say he can't legally divert rainwater. "I was surprised. We thought it was our water," Miller said.

State officials say it's an old legal concept to protect people who do have water rights. Boyd Clayton, the deputy state engineer, said, "Obviously if you use the water upstream, it won't be there for the person to use it downstream."

"Utah's the second driest state in the nation. Our water laws ought to catch up with that," Miller says.

So what about the little guy, watering with rainwater at home? Will anybody do anything about that violation of the law? Clayton said, "If she really does that, then she ought to have a water right to do it." He added that they wouldn't likely make an issue out of it, though, because they have "bigger fish to fry."

After months of discussion, city and state officials worked out a tentative compromise with the bigger fish, Mark Miller Toyota. Jeff Niermeyer, the Salt Lake City director of public utilities, said, "He would basically be using a Salt Lake City water right and diverting it under our name."

State officials say the Mark Miller agreement could become a blueprint for other rainwater projects. Homeowner projects, although technically illegal, are likely to stay off the state radar screen.

Let's STAY off the radar! (state, city or federal)

Peace

Gail

Washing cars is a pretty good argument for water restriction laws in my book, especially in "the second driest state in the nation."

Water rights have always been a contentious issue throughout history and as the earth warms up and populations increase world-wide, they will only become more contentious.

It's nice the car dealer was able to work out a deal with the city to wasteutilize rainwater in an arid area. Other people have gone to war to settle water rights issues.

Wayne

You know, rather than relying on the state to live up to its "word" of keeping homeowners off the radar screen, it would behoove Utahans who want to use the rain water that falls on their property (for whatever purpose they choose since it's THEIRS) to work to change the wording of the law. There's no telling when the state will decide to implement the harshest interpretation of the law, and then where will Utah gardeners be?

I guess they will be charging folks to breath air next!

Trying to impose a change in the system of water rights in the arid west would rank right up there with ending slavery for national trauma.

Even a voluntary program, my gut guess is you're looking well over a trillion dollars to fund it.

Matt is right. If you try to mess with the law of prior appropriation, you are asking for a shooting war. This is not hyperbole.

There is not a stream in the west that is not already over appropriated, and anyone who interferes with a stream source, including the rain is diminishing the stream for a prior appropriator.

This has been the law of the West since Coffin v. Left Hand Ditch Co., 6 Colo. 443, 446 (1882), and the rule in Coffin, is gradually being imposed in Eastern states as well. If water shortages continue, expect more people to be arrested for diverting rain water, not less.

quote:

Originally posted by Lisa B.:
...it would behoove Utahans who want to use the rain water that falls on their property (for whatever purpose they choose since it's THEIRS)...

Nope, it's not theirs. Not in Utah, and not in Virginia either.

With very few exceptions, the air space above, the rain that falls on, and the minerals and water below the surface of land where your home is built were retained by the Crowns of Britain, France, or Spain, or by Napoleon himself in the case of certain parts of the Lousiana Purchase.

The US government acquired these rights when it claimed or otherwise obtained the various territories, and it generally retained the rights when it granted title through the various homestead and railroad acts.

A variety of other State and Federal Acts contain provisions for allowing individuals or corporations to acquire the mineral and water estates associated with a particular parcel of land.

Take a look at your own title documents. Most likely the granting language in your deed or the exclusionary language in your title insurance policy includes words like "except for any minerals...except for any subsurface waters".

I'm not saying it's right, but mineral, water and air space rights are all "property" rights under the law and they have value to the people who hold them.

Since many folks in my town depend on wells (I have one rarely used), my guess would be that the water conveys with the property here. But down south, where there are huge aquifers, the battle for rights to use continues.

In terms of your property, it does extend all the way to outerspace, but what rights are included is never clear when you buy a house.

M

up here when you buy a house it is pretty clearly stated that you don't own the minerals and the state can drill all over your land and also put in roads, when ever they want.

In Manhattan, property owners can sell "air rights". If you own a two story building you can sell the right to build additional floors over it without selling the real eatate on the ground.

Seperation of rights is very well established doctrine.

That well established doctrine changes from state to state though.

Recent readings, I can't even remember if both where on my antique tractor board or not, shows some of the differences.

In Texas, you (by default) own the minerals under your property and must be paid if they're extracted. Some Texas suburbs are embroiled in this now as the natural gas companies move into the neighborhood and drill -- however, as part of that, they're required to pay everyone from underneath whose property the gas is being extracted. Obviously some sophisticated geologic surveys are going on to make those estimates.

Pennsylvania doesn't have that principle -- your neighbor could drill one foot inside his property line and not pay you for gas or oil extracted even though it's coming from under your property. You own it, but if you don't want your neighbor to use it, you'd have to take steps to keep it from flowing over to his place.

A more modern example of this seperation of rights we see is in conservation easements and similiar programs. My state has an underfunded program called PDR - Purchase Development Rights - to preserve land in agricutlural use by not allowing non-agricultural construction to take place. There is a mechanism to buy back the rights from the state, but at the state's option (and the state has never allowed it.)

Many towns have a similiar program for open space where a developer will set aside certain parts of the property under a "conservation easement" owned by the town that prohibits it's development in perpituity, unless the town agrees to it. It's privately owned, and normally it consists of part of building lots sold to others -- i.e. you may have 20 acres in easements, of which 3 acres of that 5 acre lot is part of the easement, and 1 acre of that 2 acre lot is easement, etc, etc.

The person selling or giving the rights away knows it, the person who buys it from him or his estate knows it, etc, etc.

A century from now, would you have sympathy for someone declaring they own the land under conservation easement and should be allowed to build or do anything allowed by zoning? Even though the rights to do so was transferred a century earlier? And in the intervening time it must be presumed the value paid for the land reflected the diminished rights compared to other land?

It's a fascinating area of law, and it changes to fit the local conditions and old precedents. In New England, our water rights laws predominantly formed around the rules to impound and release water to power mills.

Texas is an interesting case because the mineral estate passed to the Republic of Texas, which, unlike the United States, did not retain the mineral estate when conveying lands to individual fee holders.

Similarly in parts of the West, some lands obtained by "customary use" (kind of like conquest and dominion) during the territorial period were patented under the unchallenged assumption that the mineral estate adhered to the surface rights.

Homestead, Mining and Railroad acts, inter alia, cut off these assumptions for future land claims in some territories, but to some extent prior use and exploitation of mineral and water interests were "grandfathered" in.

Elsewhere, a patchwork of inartfully drafted Spanish and, later, Mexican land grants spoke vaguely or not, of the use of minerals, water, game, wood gathering, collection of pinon nuts...as being conveyed to the people of a community as a commons, which, in at least one case, has perpetuated a sometimes (as recently as the mid 1990's) shooting war in at one community in this region.

To some extent, my property rights here, 1/2 mile South of the Upper Rio Grande, are different because it passed from Spain to Mexico to the United States, during the territorial period, and to the extent that it was populated, customs and legal traditions of all three sovereigns attached.

North of the Rio Grande, up to the Arkansas, the farms and ranches were once part of the Lone Star Republic, thus adding a Texican drawl to the Mexican land grant tradition.

Further north a Gallic overlay atop the Iberian tradition affects not so much legal status, but unspoken and unwritten, yet very much binding, custom and usage in various communities.

To the extent that any land was occupied and possessed by "civilized" peoples, the law has paid at least some attention to the customs and practices of the Europeon Sovereign who nominally asserted dominion over it at the time it was settled and although, overwhelmingly, the old rights have been extinguished over the years, every once in a while, an entailment is activated by a right of reverter that has survived the rule of perpetuities, calling for the services of historians instead of MBA's.

In South Dakota what they say is "whiskey is for drinking, and water is for fighting over"

quote:

Originally posted by GardenDmpls:
In Manhattan, property owners can sell "air rights". If you own a two story building you can sell the right to build additional floors over it without selling the real eatate on the ground.

The Manhattan situation is very interesting as well. It starts with the fact that the bedrock is close to the surface. This firm base for skyscrapers, Chicago's efforts notwithstanding, allowed New Yorkers to substantially perfect the form.

By the mid 1970's the towering form blotted out the street level sun in much of the borough plunging residential areas into perpetual shade. City planners succeeded in establishing height limits related, in part to the area of shadow that would be created by the new building.

New Yorkers then pioneered a new property right, the development right. This allowed the owner of a sentimentally, architecturally, or historically valuable, but otherwise prime development property to sell off the right to put, for example, a forty story building on the property to a neighbor who wished to construct eighty stories on his.

Such a transfer of development rights put ready cash in the hands of the land owner while limiting the commercial value, the tax liability and the estate tax consequences.

Pioneered in the East, Westerners seized on the device to limit the development value of farm and ranch properties and preserve them for agriculture, or wilderness values. This allows families to mantain ownership through the generations, of properties in resort or scenic areas that otherwise would be prime targets for subdivision into ranchettes, hobby farms and condominium sites.

As Matt points out, these rights are being sold today and they essentially lock up the land, substantially limiting the type and extent of future development.

TDR's have been a boon to organizations like the Nature Conservancy and Ducks Unlimited, but the bane of many a spoiled heir who is uninterested in running the family ranch and resents the fact that it cannot be subdivided into cabin sites.

Matt rightly wonders what landowners 100 years hence will make of lands locked up this way, but remember this, the Nature Conservancy, or the owners of the 500 story office tower, paid good money for the TDR.