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
Katie Duke*
CITED: (2014) 19 Appeal 21–41
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
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.
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.
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.

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