Feuds over water rights clog the courts. Governments impose oppressive regulations on landowners. What can you do when the water police pound on your door? Here are some tips on winning a water war:
The King’s Rule: Under English common law, all farmers along a stream must share water equally. Under Spanish law, the first farmer to settle on a watershed owns all of the water. Spanish custom is the basis for most water laws in the western U.S.A. For example, a person with “senior water rights” is often the descendant of an original homesteader = the first person to stake claim to a watershed.
Henri IV of France complained: “Spain is a land where small armies are defeated and large armies starve”. To understand Spanish water law, you have to visit Spain. After Switzerland, Spain is the second most mountainous country in Europe. Half of the land is rocky, barren, and dry. Irrigation is essential throughout much of the Iberian Peninsula. No water = no food, which is why Spanish water law is so strictly possessive.
Twisted Legislation: Over the centuries, Spanish customary law has been widely = wildly interpreted so that modern laws now bear little resemblance to colonial practice. Such extreme interpretations are the basis for silly regulations where governments claim to own the rain that falls on a farmer’s fields or prohibit a man from collecting water from his own house roof. Thus, “you must have license to build a pond because the water belongs to the State”.
Take Them to Court: If you have a combative personality, retain an experienced trial attorney and fight for your water rights. The most common argument is that “God owns the rain” or, more practically speaking, a farmer owns the rain that falls on his land, but the State may regulate water that flows through or beside his property. Thus, a farmer can build a pond on his own land but may not dam a common stream.
Justice for Sale: If you have money to invest, consider buying water rights or shares in a canal company. Alternatively, drill a deep well. Over the short term, this is often cheaper than battling in the courts. If you own canal shares then water regulations are mostly irrelevant because water law is designed to protect the “haves” from the “have nots”.
Beat Them at Their Own Game: Another strategy is to play the system. For this you need to read the law and clearly understand the legal definitions of “ponds” and other water control technologies. For example, many water regulations exempt artificial fish ponds provided they are not directly linked to public waterways. Meaning: You can convert an “irrigation reservoir” into a “farm fish pond” by stocking your lake with fingerlings purchased from the nearest State fish hatchery. Keep receipts in case the local water police try to regulate your pond. Carefully screen pond outflows so fish cannot escape into State controlled waters. Most states have programs and publications to help land owners manage fish ponds. Ask your local fisheries officer or agriculture extension agent for more information.
It’s not a Window, it’s a Door! Historically, French houses were taxed according to the number of windows. Crafty homeowners invented the French Door to outwit local tax collectors. Similarly, you can often dodge water laws by using “creative labeling”. It is not an “irrigation reservoir” but rather a “water distribution structure”, “swimming pool”, “stock watering tank”, “fire control pond” or “wastewater treatment lagoon”. Again, make certain that whatever structure you want to build meets official legal definition. Ask for help from relevant government agencies and meticulously record their involvement. Thus, you can pit competing bureaucracies against each other. For example, if the water police hail you into court, the fire control district becomes your ally.
Exceptions Define the Law: Water laws are all about “loop holes”. Search for exceptions that you can employ to your advantage. For example, many regulations exempt dams not more than 6 feet high. As long as your “water control structure” is under the mark, the water police are powerless to harass you.
Household Water Supplies: Cisterns and “potable water systems” are often exempt from local water regulations. Many water laws fail to define or limit the size or capacity of these systems. For example, when does a pond become a lake? How big is a kitchen garden? How much water do you need to fight fires or water livestock? Is a 2 year water supply too much or not enough? Do not be afraid to play the numbers, especially in these times of irregular rainfall and extended drought. Climate change affects everybody. Translation: A jury is most likely to find for a homeowner with an empty cistern.
Grandfather Clauses: Many activities are permissible because they were started or completed before modern laws were enacted. Thus, your lakes, dams and canals may be “grandfathered” because they predate current water regulations. “This dam is 100 years old; we are just repairing the spillway”. Note: The structure may be a 400-year old archeological ruin, but as long as there is physical evidence of hydraulic engineering it can be grandfathered in most jurisdictions. Mere traces of ancient canals are sufficient to legally establish prior irrigation works.
The Texas Two-Step: Sometimes the best way to win a water war is to side-step the issue entirely. Thus, it is not an “irrigation structure” but rather a “sediment control basin”. This is more devious than mere creative labeling. Most soil conservation technology exists to manage surface water. Thus, what is legal under a soil conservation plan may not be popular with the local water police. And while the big government bureaucracies are battling each other, you are free to do mostly as you please. Ask your local soil conservation officer about government services, grants, and low-interest loans for landholders.
Vote with Your Feet: Sometimes the least expensive way to win a water war is to change jurisdiction. Move across the border to another province or onto an Indian reservation. Every state has different laws and Indian lands are governed by Tribal Councils. What is unlawful in one jurisdiction is legal in another. Shop around for a location with the most favorable water regulations. Big corporations do this routinely, and for good reason. Choose the wrong state and your farm or business could lose vast sums.
Cute Furry Animals: Supporting local wildlife is politically correct. Nobody says no to Bambi, not even the water police. Take all of your land that is not good for crops or grazing. On many farms and ranches, problem lands take up half or more of total area. Incorporate these “useless” acres as wildlife preserves. (Nature reserves are tax exempt and eligible for government environmental subsidies, low-interest loans, and grants). Now you can thumb your nose at the water police because they will not fight the State Fish & Game Commission. Build as many ponds, dams, and weirs as you want — just make certain all “water control structures” are included in the watershed management plan for your deer park. The water police will be powerless to stop you.
The key to success is your official = government approved watershed plan. The goal is to trap every drop of rain that falls on your land = zero runoff. Of course there are ulterior motives here. You are not just signing away half of your farm for nothing. Supporting wildlife is just an excuse to do what you want = provide water for agriculture and grazing. This is accomplished by recharging the aquifer = raising water tables. Use bad land like a giant sponge to soak up and store water. Sink wells down slope to extract water for crops and animals. (Drilling horizontal wells avoids pumping costs). This game works because most states either do not regulate or weakly control ground water. In most jurisdictions, farmers can draw unlimited amounts of underground water — even in states with highly restrictive surface water laws.
The Spirit vs. the Letter of the Law: The Government forbids irrigation but you have 27 acres and need to feed your family. What do you do? Solution: Redefine “irrigation”. Install 27 wildlife drips, one for each acre. At each water point plant a single fruit or nut tree, berry bush, grape vine, sweet potato, squash or melon. Surround each plant with a blanket of mulch 8 inches thick to prevent weed growth and soil water evaporation. Runoff from each drip waters adjacent crop plant. Thus, you can obey the spirit of the law yet avoid the wrath of the water police. Talk to your local conservation agency and they might even pay you to install watering points for wildlife. Birds, toads, rabbits, snakes, mice, chipmunks, bees and other critters all need to drink — especially during a drought. (You can play the same game with stock watering tanks. Overflow from each tank waters an apple or almond tree).
Recycled Water: Why fight for water when you have already won the war? If you are lucky enough to own land near a wastewater treatment plant, you can get vast amounts of irrigation water super cheap or free-of-charge. You may have to pay for piping and hook-up to the local municipal water system but this is far less costly than buying water rights or canal shares. For less than it costs to drill a deep well you can own a water utility company with a single customer — you. Negotiate a long-term contract to protect your water supply. Ask to see a water analysis to prevent contaminating your land with unsafe amounts of heavy metals. Sign a municipal agreement to recycle treated sewage effluent and the water police will leave you alone. (Act now before some other clever farmer stakes claim to this water bonanza).
Beneath Government Radar: The water Nazis will not let you build a pond. Do not blow up and cuss them out. Cursing the mindless robots is but a momentary pleasure. Instead, smile sweetly then rent a trenching machine. Cut narrow trenches 4 to 6 inches wide every 50 feet across your land. Follow hillside contours or dig trenches perpendicular = at 90 degree angle to water flow across your fields. Dig trenches as deep as machinery reaches, 4 to 8 feet depth is ideal. Trenches intercept water and sediment before they run off your land. Use a back hoe to dig 12 inch wide trenches across canyon floors every 50 feet down the watershed.
A similar technology uses rotary post-hole diggers to excavate a sponge-like matrix across each field. Fill holes with compost or similar media then plant with deep rooted crops like squash or melons. Trenches and holes trap vast amounts of water for subsoil storage. 6-inch rains disappear like water in a colander. Aquifers rise and crops become nearly drought proof. Subsoil moisture is more important than surface water.
Another related technique is subsoil ripping or keyline plowing. For this you need 3/4 inch wide blades 12 to 16 inches long spaced 2 feet apart on a tractor tool bar. Till fields and pastures yearly along contour lines to increase air and water penetration into the subsoil. Digging trenches, drilling holes, or cutting slits across fields and pastures trap vastly more water than any farm pond. So let the local water police have their petty victory. You do not need a pond if your aquifer is bursting beneath your feet. Sink a well and draw all the water you need. No government regulation required.
On Again, Off Again: Streams that are dry part of the year are called seasonal or intermittent waterways. Seasonal creeks are often exempt from local water laws which concentrate primarily on “permanent” streams, rivers and lakes that are wet year-round. In desert and semi-arid climates, most canyons = arroyos = wadis = coulees = gullies = washes are seasonal watercourses that run primarily during the winter or monsoon months. In a good year, a gully might flood 4 to 6 times during the summer. In a bad year, the same stream might flow only once or twice in a growing season. Under most canyons are subsurface streams that can flow 5 years between rains.
The best way to manage seasonal creeks is to build small weirs = check dams every 50 to 100 yards down the entire length of the wadi system. Dump baskets of rocks across stream beds until weirs are 3 feet high. No mortar or concrete required. (If stones are small use wire gabions to hold rocks so they do not wash away). Weirs slow floods so water has more time to soak into ground. Slow moving water drops sand, silt, and clay behind each weir. Plant drought-resistant trees in sediments collected behind each check dam. Every pocket of soft soil acts like a giant sponge holding water and nutrients for improved crop growth.
Canyon systems collect and concentrate runoff from vast areas, effectively multiplying rainfall 10 to 20 times average precipitation rates. Thus, 1 inch of rain in the uplands = 10 to 20 inches of water in a coulee. The trick is to get all of this water to soak into the ground as fast as possible. Dry land agriculture is all about managing water tables. The aquifers below each arroyo support trees and crops during summer months or extended droughts.
Working at Cross Purposes: Many water districts have conflicting regulations that a clever attorney can argue in his client’s interest. What do you do when local ordinances forbid digging ponds yet, at the same time, prohibit landholders from discharging runoff from their property? Situations like this frequently involve several government departments (irrigation, sanitation, and conservation) each with their own often contradictory edicts. The best solution is to seek regulatory protection with the strongest local agency then let the bureaucrats fight among themselves. Divide and conquer. Build an “erosion control basin” and watch the water police slink away. Irrigation districts rarely cross swords with municipal water authorities or conservation agencies, and no judge will rule against a property owner who tries in good faith to comply with government regulations.
Go with the Flow: Some water laws are so strict they ban anything that impounds = stops water flow. Impound does not mean impede, restrict, or delay. As long as water continues to flow (however slowly) the landholder is exempt from water regulations. So if the water police forbid building a pond that does not prevent you from irrigating fruit trees with runoff from household downspouts. Turn your garden into a giant sponge. Dig out the topsoil and replace with 100% compost or peat moss. Organic matter holds 10 times its weight in water. Channel all runoff to your garden and your crops will be nearly drought proof. There are many ways to “go with the flow”. For example, you could build a series of “reflection pools” with 1/4 inch diameter drains. As long as the water continues to flow 24 hours a day = without stopping your wonders of hydraulic engineering will remain on the right side of the law.
Gresham’s Law: Whatever the King does not specifically forbid, a citizen may do. Whatever the King does not specifically command, a citizen need not do. The key word here is “specific”. If the government does not explicitly define, require, or limit an action, a landholder is free to do whatever he wants. Translation: The Government cannot prosecute a person unless his action violates a previously published law that exactly defines the offense. Always remember Gresham’s Law when reading or interpreting water laws. Pay special attention to legal definitions as law is all about little details. For example, a “swimming pool” is not an “irrigation pond” if it is used primarily for recreation (which does not prevent draining pool weekly to control algae and mosquitoes. This is part of good pool maintenance practices which are not often regulated by local ordinance. How drained water may be used is also not controlled in most jurisdictions. Thus, you can irrigate your garden with drain water from a swimming pool unless this action is specifically prohibited by law, regulation, or ordinance.
Would You Like to Know More? Please contact the author directly if you have any questions or need additional information about water rights and riparian law.
Please visit: http://www.agriculturesolutions.wordpress.com — or — http://www.worldagriculturesolutions.wordpress.com — or — send your questions to: Agriculture Solutions, 413 Cedar Drive, Moon Township, Pennsylvania 15108 United States of America — or — send an e-mail to: Eric Koperek = worldagriculturesolutions@gmail.com
About the Author: Mr. Koperek is an international consultant with many decades of experience developing agricultural water projects. Between business trips, Mr. Koperek breeds open-pollinated Indian corn, winter squash, and melons. Mr. Koperek farms in Pennsylvania during the summer and Florida during the winter. (Growing 2 generations each year speeds development of new crop varieties).
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