by Michael Nunziata   

“Hope springs eternal,” wrote the poet, as surely as April brings rain. Hope returns this spring to Colorado, where the state legislature considers a bill that would allow residents to set out rain barrels to catch the rain. For the present, however, rain barrels in Colorado remain contraband and any person who collects the rain within the state’s borders defies the law. 

Colorado code defines a rain barrel as “a storage container with a sealable lid that is located aboveground outside of a residential home and used for collecting precipitation from a downspout of a rooftop.” Under the proposed rule, a resident could set out no more than two barrels, with a combined maximum capacity of 110 gallons. The resident could only use the captured rainwater to irrigate a lawn or outdoor garden that belongs to the same property as the rain barrel itself. Using the water for “inside purposes” is strictly prohibited. Not every resident may catch the rain.

So much for the proposed law, but what of the policy behind it? As you may have guessed, the issue really isn’t about rain barrels at all. Instead, it highlights the rapidly growing discussion in all states about ownership rights of water, though in Colorado that question is off the table, for now. Under Colorado’s water doctrine of prior appropriation, no person owns rights to the water that flows on or through her or his lands. The proposed rule wouldn’t change that. Even if the state does indeed allow residents to collect rainwater for outdoor use, the bill makes clear that the state could just as easily reverse their allowance.

Each state fashions a water policy to benefit its people. Colorado grants water rights to users based on a seniority system that began in the 1800s, when the state counted rather fewer residents than it does now. Senior users argue that rain barrels would reduce the amount of surface water runoff, leaving them with less available water to share. But most rainwater soaks into the ground or else evaporates. Colorado State University researchers reported last autumn that any surface runoff decrease caused by rain barrels would be too small to measure. 

Every rule carries the risk of unintended consequences, and for Colorado’s raindrop laws, some of these are beauties. Here’s one: If Colorado owns the rain then it surely claims all precipitation, and the state must therefore menace every Cub Scout selling artisanal snow cones with threats of fines or jail. A second: What happens when yet another once-in-a-thousand-year-storm event saturates the ground and floods a householder’s basement? If Colorado owns the rain in dry seasons, then shouldn’t it also repair the rain’s damage during wet ones?

I often walk by a rain barrel that stands in front of a house on a corner in the Kingston Stockade District. The barrel is made in the old style, with iron hoops and a sealable lid. A green downspout drops from the high rooftop into the barrel through a hole in the lid. It may be that a rain barrel has stood on that spot since the early days of the Dutch and Indian settlement, when a sleepy servant ladled out rainwater of a morning to rinse the night-dust from the stoop, and children sneaked hatfuls to offer thirsty horses, perhaps even to the proud war horse of General Washington himself. 

Just down the block, Vice President Clinton rests in the old Dutch churchyard, guarded by a squad of his officers and men from when he was Brigadier General Clinton and all of them were New Yorkers joined in a long, deadly fight for freedom. I visited the graveyard one rainy night the other week and gave the soldiers a short history of Colorado statehood. Then I read out its rule declaring the state’s dominion over raindrops and asked them what they thought of that. No one said anything. No one even laughed.

Michael Nunziata practices water law in New York State.

A glacier in Greenland.

by Michael Nunziata   

If groundwater has a poster boy, he’s surely James Bond. Agent 007 appreciates the importance of our most valuable resource, and he’s already shed some skin to save it. A few films back, Bond parachuted with a woman through a hole in a mountainside, crash-landing safely in an underground cave strewn with boulders. Fortunately Bond can see in the dark, and he realized at once that they’d fallen into a sinkhole, the bed of a subterranean river sucked dry by a villainous pump. Groundwater was the ultimate prize; the game was up and the bad guys doomed.

Groundwater comes from underground water-bearing formations called aquifers, which provide water to roughly half of all U.S. residents. (Surface waters such as lakes, rivers and streams make up the other half.) Most rural households rely on groundwater, but some aquifers also feed major urban centers, such as the great Magothy aquifer that waters nearly three-quarters of Long Island’s residents. Unlike Bond’s sub-surface river, most groundwater collects in the tiny spaces between sand and rock, as if you poured water into a bowlful of gravel. A groundwater well is essentially a straw pushed down into the saturated gravel in the bowl. A well runs dry when the water level in the gravel drops below the bottom of the straw. The remedy is to replenish the water in the bowl, or else push the straw down deeper.

We know a fair bit about groundwater aquifers: they can lie close to the surface or deep below it; they may be trapped, under pressure beneath an iron layer of rock or merely sunk in dirt and sand. An aquifer’s ability to replenish itself of the water we take depends on its location and physical quirks—and always the weather. Some aquifers may fill rather quickly while others need decades or longer.

We know that not all groundwater is safe to drink because poor soils or pollutants might add flavor. We know that aquifers are a living part of the planet’s hydrological cycle, the holy freshwater ocean that pirouettes between earth and sky. And a marvelous NASA satellite named GRACE tells us the change in the level of an aquifer every time she sails over it.

But that’s about all we know for certain, and not even GRACE can say how much water a particular aquifer holds or what its actual shape and size might be. No one can tell us, for the simple reason that we can’t see underground.

Five principal common law doctrines of groundwater allocation guide the fifty states. (Common law means the rules derived from judicial decisions, not those from statutes or regulations.) Each doctrine answers four questions: how much water can an owner take, and for what purpose? Will the water be used on the property or off, and must an owner consider the effect on a neighbor’s well?

Like Bond, the most dramatic of the doctrines is British. The English rule says that owners can take all the water they like and may use it for any purpose, even to waste. Owners can use the water anywhere, and they are not responsible for the well of their neighbor, who is always free to dig a deeper one. Some states still use the English rule. The American rule also allows an owner to draw any amount, but requires that the use be a reasonable one and that the water remains on the property. Most eastern states have adopted the American rule. 

The doctrines of Correlative Rights and Restatement both balance the amount of water among all the neighborhood wells. The water must be put to good use, whether on or off the property. The Restatement, which is the most restrictive of all the doctrines, is the least popular among states. The fifth doctrine is called Prior Appropriation; it awards the same annual amount of water to the same persons who stand in front of a long line. The state not the proprietor determines the safe amount of water to take from an aquifer. This is also the surface waters rule of choice in the arid western states.

The laws and regulations for New York groundwater are concerned mainly with limiting pollution in our most important aquifers. Other rules set out programs to rehabilitate stressed aquifers. Aquifers are classed in importance not by their size but by how many New Yorkers depend upon them. Anyone wishing to extract vast amounts of groundwater must apply for a permit. Everyone who digs a well needs a license to drill.

We’re fortunate to live in a region so abundantly blessed with water. Perhaps we’re just as lucky to have so few groundwater laws rather than a tangle of rules and regulations. As our groundwater knowledge and needs increase, we have the rare chance to craft good practices to ensure a fruitful supply.

Michael Nunziata practices water law in New York state. mnunz@nyfwlaw.com.

by Michael Nunziata   

We cheered the British Crown at a party last month, recalling the autumn day in 1777 when its Navy sailed up the Hudson and its Army burned down Kingston. I paused to thank the Queen for the ice cubes clinking in my glass, a local grant of water descended in straight lines from a Woodstock faucet and the common laws of England.

The English doctrine of water rights is called riparianism/ Riparianism provides the basis for surface water allocation in 31 U.S. states. (Groundwater is a separate subject altogether.) New York is a riparian-rules state. Put simply, riparianism refers to the bundle of water use rights attached to certain waterfront properties such as those along rivers, lakes, and streams (“surface waters”). The usage rights belong to the owners of riparian lands. Usage rights do not necessarily mean ownership rights: the sovereign “owns” the water for the benefit of its citizens. The usage rights stay with the land, regardless of changes in ownership. The doctrine arrived here with the Crown’s colonial governors to manage settlement, trade, and industry across the water-rich colonies of the Atlantic seaboard.

Riparian rights include access to the water and its measured use for chosen purposes, though riparian owners are not obliged to use any water at all. For colonial riparians who did, the English rule required them to use the water on the same property it came from. This has changed: modern riparian owners can use the water both on the riparian land and off, so long as they don’t interfere too much with the ability of other riparian owners to use the water, too. There are no riparian rights in municipal reservoirs and most other artificial water bodies. And as with all laws, there are exceptions to nearly everything on this page.

The British went home after the Revolution, leaving their doctrine behind. The Crown’s sovereign authority over water rights passed to Congress, which in turn handed it over to each newly created state.

Riparianism is one of two competing systems of U.S. water rights that govern surface water allocation. The other doctrine is called prior appropriation. A state’s choice between the two depends on its own peculiarities of geography, climate, history, and population. But mainly it comes down to precipitation.

The U.S. continental landmass is rather neatly divided into humid states and dry states. East of the Hundredth Meridian, crops will normally grow without irrigation. But in many lands west of the Line, farmers must carry the water they need to their fields. The two alternative water doctrines reflect this difference: most humid states have adopted riparian rules, just as prior appropriation took hold in states with little surface water and no direct connection to colonial England.

In contrast with riparian rights, which run with the land, prior appropriation rights follow a person. This doctrine grants water rights on a first-come, first-served basis to anyone who uses surface water in a “beneficial” way. Because appropriation rights do not attach to the land, appropriators are free to divert water long distances from its source. And unlike riparian owners, appropriators must actually use the water they’re granted or else forfeit their rights—and their water—to the next-served person waiting in a long line. 

The two doctrines belong to the common law, which means case law: the laws derived from judicial decisions. In addition, the water rules of New York (and all U.S. states) are subject to a perfect raft of statutes and regulations that range from local ordinances all the way up to the U.S. Constitution, with the regulatory agencies pulling at the oars and the Navy lining the rails. If it sounds like a disaster it isn’t: each part serves a different aspect of water, such as trade, security, food, health, and energy, just to name a few. When the rules do collide—or when someone wants to know what “beneficial” means— it’s often the courts that resolve the conflict. If anything, it’s the gaps between the rules that want attention.

Hudson Valley residents live in a region that is abundantly blessed with water. The resource is finite while our demands upon it increase. The state understands its water needs and, more importantly, that water policy doesn’t stop at New York’s borders. The challenge ahead for all states is to measure the water we’ve got, protect it from pollution and plunder, and find ways to do more with less of it. I would drink a toast to that.

Michael Nunziata practices water law in New York state. Email him at mnunz@nyfwlaw.com.