Ownership of Rainwater and the Legality of Rainwater Harvesting in British Columbia

AuthorKatie Duke
PositionIs a third year J.D. candidate at the University of Victoria
Pages21-41
APPEALVOLUME 19
n
21
ARTICLE
OWNERSHIP OF RAINWATER AND THE
LEGALITY OF RAINWATER HARVESTING
IN BRITISH COLUMBIA
Katie Duke*
CITED: (2014) 19 Appeal 21–41
INTRODUCTION
In recent years, a growing number of individuals and municipalities have become
interested in rainwater har vesting.1 e practice is par t of a larger shift toward s sustainable
building practices and stormwater management.2 However, the legality of rainwater
collection in British Columbia is uncertain. At the same time, freshwater resources in
the province are increasingly under stress from heav y use and climate change.3 As water
scarcity increa ses, conicts over rainwater har vesting may result. It is therefore pertinent
that the legality of rainwater harvesting be considered so that possible conicts can
be anticipated and areas in need of law reform can be addressed. is paper addresses
the issue of whether landowners or occupiers have the legal right to capture rainwater
falling onto their property and the nature of that right.4 Upon review of the relevant
water-related legislation and applicable common law, it is most likely that rainwater is
common property subject to the law of capt ure. Eectively, rainwater belongs to no one
and everyone until it is captured. While landowners do not have a property interest in
water until it is captured, t heir right to harvest rainwater is l ikely unrestricted and is not
subject to concerns of downstrea m water users.
is inquiry into t he right to capture rainwater is div ided into four parts. Part one review s
the nature of rainwater h arvesting, its benets , and its potential impacts. W hile rainwater
harvesting has many benets, it also has the potential to adversely aect instream ows
and other water users. Part two considers the statutory framework of water allocation
in the province and whether it aects the legality of rainwater harvesting. Although
the legislation is not unambiguous, the right to collect rainwater does not appear to be
* Katie Duke is a third year J.D. candida te at the University of Victoria . This article was originally
written as a term paper in t he course Water Law, which was taught by Professor Deb orah Curran
and Professor Oliver Brand es in 2012. Katie is especially indebted to Professor Curran fo r her
insightful comments, suggestions and encouragement throughout the development of this
article.
1 Khosrow Farahbakhsh, Christopher Despins & Chan telle Leidl, Evaluating the Feasibility and
Developing Design Requirements and Tools for Large-scale Rainwater Harvesting in Ontario (Ottawa:
Canada Mortgage and Housing Corporation, 2008) at 1.
2 Ibid at 1.
3 Oliver Brandes & Deborah Curran, Water Licences and Conser vation: Future Directions for Land
Trusts in British Columbia (Victoria: POLIS Water Project, 200 8) at 4.
4 This paper addresses the legality of r ainwater harvesting in British Columb ia. For an excellent
discussion of the right to har vest rainwater in the context of Alber ta’s and Ontario’s water rights
legislation, see Arlen e J Kwasniak & Daniel R Hursh, “Right to Rainwater – A Cl oudy Issue” (2009)
26 Windsor Rev Legal & Soc Issue s 105.
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APPEALVOLUME 19
aected by the Wa ter Act 5 or the Water Protection Act.6Part three of this paper considers
the historical com mon law position on water-related rights. Whi le there is some support
for the proposition that a landowner has a proprietary interest in rainwater before it is
captured, the most likely common law position is that rainwater is common property
and subject to the old common law concept of the law of capture. Since this common
law framework provides no redress to those who are adversely aected by rainwater
harvesting, part four briey addresses possible avenues for legal reform of the right to
capture rainwater.
I. THE POSSIBILITIES OF RAINWATER HARVESTING
Rainwater harvesting is re-emerging as a legitimate response to concerns surrounding
water scarcity. Rainwater h arvesting can c apture water for a variety of dierent purpose s,
including domestic uses, irrigation, aquifer recharge, and stormwater reduction.7 While
there are a variet y of dierent rainwater capture methods of var ying complexity, at their
core all methods i nvolve a wide catchment surfa ce and a device to store captured water.8
Common forms include micro-catchment earthen dug-outs, rooftop systems, and
articial recharge pits that encourage percolation of rainwater into the aquifer below.9
For the purposes of this paper, only the legality of rainwater harvesting that catches
precipitation before or as it hits the eart h’s surface is c onsidered.
Rainwater har vesting is an ancient practice. For thousa nds of years, indigenous cultures
in arid regions around t he world developed methods to capt ure, store, and use rainwater
for agricultural and domestic uses.10 In drought-prone areas of India, for example,
rooftops and eart hen pits were traditionally used to divert a nd store heavy monsoon rains
in tanks and wells.11 While modern-day western cultures have traditionally relied on
government controlled surface a nd groundwater supplies, there has recently been a large
increase in the number of ra inwater projects around the world as the potential benets of
rainwater har vesting are being rediscovered.12
Generally recognized as a “green” water management practice,13 there are numerous
benets to the implementation of rainwater harvesting systems.14 Rainwater is free and
since it can general ly be captured on the same site as where it is needed, the distr ibution
costs are low.15 As well, it generally requires little treatment in order to meet drinking
water quality gu idelines.16 In urban setting s, rainwater harvest ing can reduce the pressure
on municipal utilities in peak summer months.17 Rainwater is also a better source of
water for landscape irr igation and can reduce the amount of water going into stormwater
systems.18 Additionally, in areas where water is scarce or groundwater extraction is not
5 Water Act, RSBC 1996, c 483.
6 Water Protection Act, RSBC 1996, c 484.
7 Texas Water Development Board, Texas Manual on Rainwater Harvesting,3d ed (Aus tin: Texas
Water Development Board, 20 05) at 5.
8 Troy L Payne & Janet Neuman, “Remembering Rain” (2007) 37 Envtl L 105 at 107-108.
9 Ibid at 10 8- 111.
10Texas Water Development Board, sup ra note 7 at 1.
11Payne & Neu man, supra note 8 at 114.
12Ibid at 106, 112.
13Daniel Findlay, “Rainwater Colle ction, Water Law, and Climate Change: A Flood of Prob lems
Waiting to Happen” (2008-2009) 10 NC JL & Tech 74 at 74-77.
14Kwasniak & Hursh, supra no te 4 at 108.
15Texas Water Development Board , supra note 7 at 1.
16Ibid at 1-2 .
17Ibid at 1.
18Kwasniak & Hursh, supra not e 4 at 108, citing Texas Water Development Board, supra no te 7 at 1-2.

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