It’s not every day that someone who steals water from the commons for private use on his large estate gains folk hero status in the sustainability movement. But thanks to a few irresponsible members of the alternative press, and a well-earned reputation in several states for having complex rainwater catchment regulations, that’s what happened to Gary Harrington. For over a decade, Harrington diverted massive, river-sized runoff water from snow and rainfall into large reservoirs on his land. That water was part of a watershed, and was supposed to supply the town of Medford, Oregon. When, after repeated attempts to negotiate with him, the state finally prosecuted Harrington, he painted himself as a folk hero and a rebel against government overreach.
The libertarian alternative media, with their connections to the sustainability and self-sufficiency movements, drank the story up like water. They ran pieces saying things like “a rural Oregon man was slapped with fines for collecting rain water on his own property”; referred to the “simple act of collecting rainwater on his own property,” and lamented that, in this era of government control, we aren’t even allowed to collect rainwater for personal use. The articles sounded alarmist, sanctimonious tones about self-sufficiency and the dangers of Big Brother, how it’s now illegal to collect rainwater on your own property, how the government claims to own even the rain.
None of them were remotely true. As the Oregon Water Resources Department stated in a press release dated July 29, 2012, and reprinted at Snopes.com, it’s perfectly legal in Oregon to collect rainwater for personal use. You can collect it in barrels or tarps or off your own roof. What you can’t do is alter or collect from flowing bodies of water. You can’t be Hercules and divert the course of rivers – or interrupt downstream flow when the people downstream have a legal right to and a basic need for the water that arrives there. That’s what Gary Harrington did, and he did it in style. He didn’t collect water in rain barrels; he stored it in three artificial reservoirs filled with enough water – 13 million gallons – to “fill almost 20 Olympic-sized swimming pools.” He built docks, stored boats, and stocked fish there for him and his friends.
The Harrington case reveals a lot about the perils of viewing water as a private commodity. It also reveals a little about the struggle of various states to adjust to new realities about water and drought. What the facts in the Harrington case do not do is sustain the myth that Gary Harrington is some kind of water-collecting Robin Hood.
I asked Lawrence MacDonnell, former Director of the University of Colorado Law School’s Natural Resources Law Center, and a longtime professor of water law at the University of Wyoming, whether Harrington had even a remote case for being within his rights collecting that amount of water. “The water he is collecting by building the structures on his property would have gone into a stream in which people already have legal rights,” MacDonnell told me. “If the landowner’s capture of water prevents those with senior rights from getting the water to which they are entitled under state law then he has unlawfully interfered with their established legal rights.”
The water rights of those who live along watersheds and waterways are known as riparian rights. The most basic principle of riparian water rights is that a person can’t divert the natural flow of a watershed without due consideration for the downstream landowners. Because the entire water supply of Medford lay downstream from Harrington’s estate, and because the State of Oregon has designated that water is a public resource, Harrington was violating the rights of the people of Medford, and diverting a common resource for what, according to all available evidence, was recreational private use.
The state of Oregon tried to work with Harrington for 10 years. Initially, they were successful in persuading him to stop diverting the town water supply. In 2002, he drained the reservoirs but, in 2004, he again closed the headgates he’d illegally constructed, eventually collecting 13 million gallons of water. He was denied judicial review in 2007 and pled guilty in 2008, paying a fine and receiving probation. Again, he refused to drain the reservoirs. In 2012, he received a 30-day jail sentence.
If Gary Harrington had filled up a few barrels full of rainwater, nobody would have cared. “The scale of his efforts is probably what got the state’s attention,” MacDonnell said. “Rain barrel collection involves such a de minimis amount of water that most states don’t care if people collect this limited amount.”
Many states don’t merely allow rainwater harvesting, but proactively encourage it. The problem is that some states have relatively complex regulations, and one state in particular, Colorado, did in fact make personal rainwater collection illegal for many years. Colorado’s rationale was an outdated legal doctrine of prior water rights, and the state legislature has since taken steps to change that law.
Orpheus, a blogger on rainwater harvesting, put it this way last year: “I have checked all 50 state government websites and found that there is currently no state government law in the U.S. that considers rainwater harvesting by individuals (homeowners) in a direct manor and bluntly, ‘against the law’ for anyone and everyone and furthermore, ‘government’ is not becoming ‘more restrictive with rain water harvesting’... One exception is Colorado, where there are still limitations for some people.” Orpheus’s enlight-inc.com blog is the most comprehensive source of information on the legality of rainwater harvesting, with a state-by-state guide. Orpheus even has a letter grading system; the states with the lowest grades include Colorado, which is currently changing its laws to explicitly allow rainwater catchment, and a few states with complex regulations like California, Minnesota, Georgia, Illinois and Ohio – all of which allow rainwater harvesting provided harvesters understand those regulations.
Some states have complex codes that warrant careful study. Some municipalities within states may have particular restrictions. In all cases, the common denominator is that harvesting cannot interfere with other people’s water supplies. You can’t massively divert from your community water supply. You can’t prevent your neighbor from having water. Rainwater harvesting for personal use would never cause that to happen. And in any case, what Mr. Harrington did so egregiously exceeds these parameters that painting him as either a hero of the self-sufficiency movement, or a simple citizen fighting Big Brother, is highly inaccurate.
For further clarification of what constitutes legitimate rainwater collection for a sustainable community, I talked to Kurt Kessner, carpenter and co-owner of the Milkweed Mercantile at the Dancing Rabbit Ecovillage, an off-the-grid intentional community in Missouri. Kessner was excited to tell me how rainwater provides for his village. “We have a diverter valve on the downspout that directs the first flush of rain off the roof onto the ground,” he told me. “When the water runs clear, I switch the valve and direct the flow into the cistern... In the cistern is plumbed a foot valve at the end of the take up pipe. The water is pumped from there into an ordinary pressure tank which provides house pressure to all the taps.”
Kessner emphasized that their catchment activities don’t deprive anyone else of water. “Here at Dancing Rabbit,” he said, “we only harvest water from our roofs, with the exception of our ponds. This water is used for recreation and to some small degree, irrigation for agriculture.” Other than the health code, there are no laws impeding the collection of even large amounts of rainwater for use in single or collective housing – provided that you aren't interfering with downstream water rights.
Brooke Jones, Development Assistant at Dancing Rabbit, provided me with the community’s consumption figures. They showed that community residents not only consume far less water than the general population (19% of what the average American consumes), but also that the majority of that comes from rainwater. Conscientious use of rainwater, designed with an understanding of local laws and a willingness not to interfere with other people’s rights, is fully consistent with ecologically responsible water consumption.
Kessner and others who build sustainable, effective, and socially responsible catchment systems are the true water heroes. The alternative press needs to stop confusing the public, and states and municipalities that are lagging behind the times need to simplify their catchment laws and encourage rainwater use. Communities need water, and rich landowners often take that water. That’s what Gary Harrington did, and the media needs to be able to explain the differences between what he did, and what responsible rainwater catchment is all about. It may be less exciting to simply tell stories of how people can use policies and laws to share their resources responsibly, but deliberative management of the commons is the key to our survival in the challenging decades ahead.
Water is life. As it falls from the sky and forms coursing streams into our communities and our bodies, it ought to remind us of our own interconnectedness and interdependence. That’s what sustainability of the commons is all about. Self-sufficiency should reflect that principle as well, rather than feeding destructive narratives about how it’s okay to hoard the source of all life from our neighbors downstream.
Matt Stannard is policy director at Commonomics USA and a Board Member at the Public Banking Institute.
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