Who owns rain?

The idea that anyone “owns” rain struck Bolivians as so outrageous that it fueled a massive “Water Revolt” in 2000. Ownership of rainwater was not the immediate issue, but it came to symbolize everything Bolivians hated about the heavy-handed economic policies imposed by the World Bank and the International Monetary Fund.

Latin American countries burdened by poverty and debt were being pressured to privatize their economies in return for much-needed foreign investment. Bolivia’s government, headed by former dictator Hugo Banzer, obligingly gave a subsidiary of U.S. corporate giant Bechtel the rights to commercialize all water systems – including natural and agricultural systems – in water-starved Cochabamba, the third-largest city in Bolivia.

Water bills immediately doubled to a quarter of the average Cochabamban’s salary, with no improvement in the poor service. Bechtel also took over wells that had been drilled – with great effort and with no help from the government – by local cooperatives. Bechtel then installed meters, for which they charged the cooperatives, and started charging for well water that had previously been free and plentiful to cooperative members.

Cochabambans were livid. A citywide protest campaign rallied around resistance to leasing the rain,” reflecting the fear that Bechtel would begin to charge residents for collecting rainwater under the agreement that granted the company control of all water in the city. The protests spread to other cities; the government declared a state of siege and sent in troops to break up demonstrations; a teenage boy was killed and more then 100 people were wounded; the government told Bechtel executives it could no longer guarantee their safety; the water privatization plan failed catastrophically. Today, Bolivia, still poor and in debt, has had mixed success in standing by its definition of water as a basic human right rather than a marketplace commodity. (Sources on Cochabamba: Finnegan 2002; Shultz 2008)

But ownership of rain wasn’t invented by multinational corporations looking to make a buck off of vulnerable Third-World countries. Residents of Colorado and Utah have recently been surprised to learn that what seemed like a great, environmentally sound idea for watering their lawns and flushing their toilets – collecting rainwater runoff from their roofs – is illegal. Why? Because someone else owns the rain that falls on their property.

Unlike land, which pretty much stays put, water moves through a hydrologic cycle – on the ground, underground, and in the atmosphere – and can be reused by many different people. A complex body of federal and state water law has developed to sort out the inevitable conflicts. Western states tend to go by the doctrine of “prior appropriation” – whoever first puts the water to beneficial use and satisfies other legal requirements has first claim to the use of that water, followed by the next user, and so on until the water is put to its maximum use.

Colorado’s constitution grants appropriation rights over all “natural streams.” But Colorado courts’ unique interpretation of this law considers rain to be part of the groundwater and streams it replenishes – and nearly every stream in the state is already over-appropriated. A seemingly reasonable petition by Colorado farmer Kris Holstrom to collect rainwater from her roof was recently denied. She discovered, to her surprise, that the state of Colorado considers her roof a “tributary” to the San Miguel River.

As is often the case, water law struggles to keep up with advances in technology. States and their citizens are grappling with the contradictions between laws that ensure fair apportionment of water rights and individual attempts to develop creative environmental solutions. Policies that forbid people from collecting rainwater from their roofs in a barrel and using it to water their gardens strike many people as absurd. But what about rainwater catchment on a larger scale? In Utah, where it’s also illegal to catch rainwater without a permit, Mark Miller, a Salt Lake City Toyota dealer, had a more ambitious plan.

“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.’”

Eventually city and state officials worked out a compromise with Miller.

“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.” (Sources for Colorado and Utah water law: Hollenhorst 2008; Fitzgerald 2008; Water Encyclopedia n.d.)

The problem of scale is recognized by the state of Washington, which considers rain a water resource of the state. Residents are allowed to collect small quantities of rainwater without permits. The state has currently invited residents to help establish exactly what “small” means. (ENS 2008)

The state of Washington is wise to involve its citizens in working out fair and forward-thinking policies to conserve a valuable communal resource – in contrast to the approach of American investors in Bolivia. Like many other creators of misguided policies, Bechtel and World Bank executives believed that imposing their version of a free market would solve the chronic problems of water supply in Bolivia. They were stunned at the animosity their actions created. Protests and resistance to water privatization have also occurred in Panama, Argentina, Peru, Brazil, Trinidad, Indonesia, Pakistan, India, South Africa, Poland, and Hungary (Finnegan). Maybe it’s time for Americans to look to the Third World for guidance about whether water, the most basic of human needs, should be considered a consumer good – similar to, say, an iPod – or a human right.

References

Environment News Service. 2008. “Washington State Drafts Rainwater Collection Rule” (July 14). www.ens-newswire.com/ens/jul2008/2008-07-14-094.asp

Finnegan, William. “Letter from Bolivia: Leasing the Rain,” New Yorker, April 8, 2002. www.newyorker.com/archive/2002/04/08/020408fa_FACT1

Fitzgerald, Daniel. 2008. “Can you own the rain? Make harvesting the resource legal,” denverpost.com (June 27). www.denverpost.com/ci_9712027

Hollenhorst, John. 2008. “Catching rain water is against the law,” ksl.com (August 12). www.ksl.com/?nid=148&sid=4001252

Shultz, Jim. “Water in Cochabamba: After the Water Revolt; a Legend With Mixed Results,” excerpt from a chapter in Dignity and Defiance: Stories from Bolivia's Challenge to Globalization, University of California Press, 2008. Available for download at http://www.democracyctr.org/bolivia/investigations/water/

Water Encyclopedia: Science and Issues. n.d. “Law, Water.” www.waterencyclopedia.com/La-Mi/Law-Water.html