If you’re on the lookout for new and exciting ways state and local governments are developing to screw over the regular American citizen, there’s a good chance you’ve heard about the man who has been convicted of “stealing rainwater” from the state of Oregon. Everyone is up in arms about this – and rightly so, as the idea that every drop of water that hits the ground being owned by the state government sounds like something Orwell might have included in 1984 – but is this really as nefarious and insidious as it sounds?
First, some background: Gary Harrington lives in Jackson County, Oregon. On his 170-plus acres of land, he has three man-made reservoirs which he constructed in 2002. Now, Oregon’s water rights are governed under what’s called Prior Appropriation Doctrine, much like other states in the western US, which are more arid than states further east. The precedent for prior appropriation goes all the way back to 1922 after the Supreme Court sided with Wyoming against Colorado, preventing the diversion of the Laramie River – the Court agreed with Wyoming that they had superior water rights as they had claimed it first, and that if Colorado were to divert the waters, Wyoming wouldn’t have gotten the water it needed to keep their crops and livestock healthy.
How does this apply to Harrington and the Oregon Water Resources Department? Well, this is where it gets sticky. Harrington says that he was initially given a permit for his three reservoirs, but the state bullies took it away arbitrarily and began to harass him over the now “illegal” reservoirs on his property. The OWRD says Harrington only sought his first permit in 2003, after the man originally constructed them, was initially taken to court, pleaded guilty to several violations, and drained the reservoirs, only to begin refilling them in 2004.
The status of Harrington’s initial permit is unclear. It’s a he said/she said situation, as everything I’ve researched on the side of the OWRS conveniently omits any mention of him being granted that initial permit. However, I can tell you that there are two steps to being permitted to have reservoirs on your land in Oregon. The first step, the water permit, is an initial, temporary authorization that is subject to cancellation by Oregon if the state deems that you have failed to fully develop your land in the appropriate manner; if you pass the permit phase you enter into what’s called the certification phase, where your water right becomes a permanent fixture of the land.
While the evidence is lacking on both sides of the argument, it looks like OWRD found issue with Harrington’s progress on his permit and cancelled it sometime between 2004 and 2008, which meant he no longer had the legal right to have the reservoirs be filled. Judging by the fact that Harrington was again taken to court in 2008 – where he entered another guilty plea – infers that he did not drain his reservoirs as he was supposed to, and once Harrington’s probationary period was up, he filled ‘er up again. This is most likely the cause of the OWRD to lose its shit when it came to Harrington, which is where we are today with the man finally facing a $1,500 fine and 30 days of jail time after his third and latest conviction.
Harrington has been fighting this last conviction tooth-and-nail. His primary defense is an affirmative one, whereas he states that yeah, he filled up the reservoirs, but with rainwater, so there’s no way he was actually infringing on the OWRD’s water rights. He wasn’t blocking off any streams or rivers that flowed through his property, so he’s arguing that he should be exempt from Oregon’s Prior Appropriation laws as he’s not depriving anyone of benefit downstream – and there are exemptions for collecting rainwater in the law. Not only that, but his primary use for the three reservoirs, he’s said, is “mainly for fire prevention,” which is also an exemption under the same law.
This seems like a good argument on the face of it – according to Harrington, he’s not hurting anybody and he needs the water in case of a fire. However there’s some serious holes in his story, as the reservoirs are allegedly seeded with fish and have boats and a dock, which sounds more like recreational use than for firefighting. Not only that, but the OWRD says that the runoff he’s collecting is part of the nearby Crowfoot Creek, which means that he’s not subject to either the firefighting or the rain collection exemptions.
And yes, there are exemptions for rain collection. I can hear some of you screaming now: “WHAT DO YOU MEAN OREGON OWNS ALL THE RAIN THAT FALLS ON MY PROPERTY JESUS CHRIST GODDAMN” – well, put down your copy of Atlas Shrugged and calm the fuck down: rainwater collected in artificial impervious containers, like rain barrels, paved driveways, and flat roofs, all stand outside the law, so nobody’s going to go to jail for collecting rain that way. Not only that, but there’s a groundwater exemption as well, so you’re completely within your rights to use up to 15,000 gallons a day of groundwater for domestic or group domestic use, or 5,000 gallons a day for industrial or commercial use, so the Water Nazis aren’t going to show up at your house and cart you away because you’ve been drinking your own well water.
So who’s in the right here? Is Harrington within his rights to collect runoff under Prior Appropriation? Is he being bullied by the OWRD because he’s a rugged individualist who disregards “nanny state” ideology because he’s in the right, or is he a self-entitled pain in the ass who keeps getting caught with his pants down and is only making a big stink out of it now because he’s facing a month of jail time finally? Well, the only honest answer is “it depends.”
I was two and a half years through law school before I was sidelined by my cancer diagnosis, but one of the things I remember most vividly is the old joke nearly all my professors would tell: you can answer any legal question with those two words. The problem with the Harrington issue is there’s really not enough information here for us to really determine what’s going on and who’s in the wrong – is he accessing run-off from Crowfoot Creek and interfering with Prior Appropriation water rights or isn’t he? Was he granted an initial permit or wasn’t he, and if he was, why did it never go to the certification phase?
Prior Appropriation only works when it serves the common good by ensuring that water, a valuable commodity in the arid western states, flows in enough volume that everyone who needs it gains access to it. Many Prior Appropriation laws call for a maximum amount of flow a landowner can divert, which is quite equitable, but Jackson County’s laws may be too restrictive, as all water within the county (besides the rainwater and groundwater exemptions) is public water and there are no concessions made for a partial flow diversion up to an accepted maximum volume. This makes me want to side with Harrington as someone who is defying an unjust law, but then why did he choose his third conviction to finally protest the charges?
This matter has been ongoing since 2002 – plenty of time for Harrington to build a case against Jackson County’s water rights legislation and fight for his landowner rights – but instead he simply smiled and nodded at the courts and then went back to doing his own thing, only raising a stink when he’s on the verge of being locked up for a month. It makes him appear petulant, crying “wolf” over how the Big Bad Government is running roughshod over his rights to do what he wants with his own property when all he really wants to do is just ignore the fact that he might have been granted certification for those reservoirs if he had just done the goddamn paperwork properly.
So where do I stand on the issue? Like I said, it depends. Jackson County’s water laws seem to be much too restrictive and need to be changed. At the same time Harrington seems like a bit of a lazy crybaby. Until more information comes forward from one side or the other, I’m going to call this one a draw: I can’t say which side is right, but I’m pretty sure both sides are assholes.