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

• Author: Katie Duke
• Position: Is a third year J.D. candidate at the University of Victoria
• Pages: 21-41

APPEAL VOLUME 19

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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 growi ng number of individuals and mun icipalities have become

interested in rainwater har vesting.1 e practice is par t of a larger shift toward s sustainable

building practic es and stormwater management.2 However, the lega lity of rainwater

collection in British Columbia is u ncertain. At the sa me time, freshwater resource s in

the province are increa singly 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 legal ity of rainwater harve sting be considered so that possible con icts can

be anticipated and area s in need of law reform can be addre ssed. is paper address es

the issue of whether landowners or oc cupiers have the legal right to capt ure rainwater

falling onto their proper ty and the nature of that r ight.4 Upon review of the relevant

water-related legislation and applicable common law, it is most likely t hat rainwater is

common property subject to the law of capt ure. Eectively, rainwater belongs to no one

and everyone until it is ca ptured. While la ndowners 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

harvesti ng has many benets, it als o has the potential to adversely a ect instream ows

and other water users. Part t wo considers the statutory f ramework of water allocation

in the province and whether it a ects the legalit y of rainwater harvest ing. Although

the legislation is not una mbiguous, the right to collect ra inwater 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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aected by the Wa ter Act 5 or the Water Protection Act.6 Part 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 propriet ary interest in rainwat er before it is

captured, the most li kely common law position is that rainwater i s common property

and subject to the old common law concept of the law of captu re. Since this common

law framework provides no redre ss to those who are adversely ae cted by rainwater

harvesti ng, part four briey addre sses possible avenues for legal reform of the rig ht to

capture rainwater.

I. THE POSSIBILITIES OF RAINWATER HARVESTING

Rainwater har vesting is re-emergi ng as a legitimate response to concer ns surrounding

water scarcity. Rainwater h arvesting can c apture water for a variety of dierent purpose s,

including domestic uses , irrigation, aquifer rechar ge, 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-catc hment earthen dug-outs, rooftop sy stems, and

articia l recharge pits that encoura ge percolation of rainwater into the aquifer be low.9

For the purposes of this pa per, only the legality of rainwater ha rvesting that c atches

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 a nd wells.11 While modern-day we stern cultures have trad itionally 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 recogn ized as a “green” water management pract ice,13 there are numerous

benets to the implementation of rainwater ha rvesting system s.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 re quires little treatment in order to meet dr inking

water quality gu idelines.16 In urban setting s, rainwater harvest ing can reduce the pressure

on municipal utilities in pe ak summer months.17 Rainw ater 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 area s where water is scarce or groundwater ex traction 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.

10 Texas Water Development Board, sup ra note 7 at 1.

11 Payne & Neu man, supra note 8 at 114.

12 Ibid at 106, 112.

13 Daniel 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.

14 Kwasniak & Hursh, supra no te 4 at 108.

15 Texas Water Development Board , supra note 7 at 1.

16 Ibid at 1-2 .

17 Ibid at 1.

18 Kwasniak & Hursh, supra not e 4 at 108, citing Texas Water Development Board, supra no te 7 at 1-2.