When Is Building Dams Called Rainwater Collection?

Probably when you want a headline to make it sound as though someone is being victimized by the State of Oregon for building unauthorized dams across a channel, thereby possibly impairing someone else's water right.

Consider this headline and story (sent to me by David Zetland) from the Cybercast News Service:

Oregon Man Sentenced to 30 Days in Jail - for Collecting Rainwater on His Property

Poor guy - busted and jailed just for collecting rain!

To me, 'collecting rainwater on his property' strongly suggests that he's got some rain barrels or cisterns and is harvesting rainfall running off a roof or other impervious surface. Under Oregon water law, that is fine and you do not need a permit. The headline says nothing about dams or wrongfully diverting water that might be intended for someone else - in this case, the City of Medford.

The CNS story itself is pretty reasonable, even pointing out that the 'victim', Gary Harrington, had three reservoirs on his more than 170 acres of land. Harrington said he was merely collecting rain and snowmelt from his property:

Harrington, however, argued in court that that he is not diverting water from Big Butte Creek, but the dams capturing the rainwater and snow runoff – or “diffused water” – are on his own property and that therefore the runoff does not fall under the jurisdiction of the state water managers, nor does it not violate the 1925 act.

Click here to listen to a brief interview with Harrington.

Wonder where does he think streamflow comes from, if not rainwater and snowmelt? Baseflow, right?

Wonder if he could prove that runoff from his land was the sole source of the water in his reservoirs?

Here is a related CNS post:

If Oregon Owns the Rain, Who Owns the Air?

Back to Harrington - here's what The Oregonian had for a headline - calling a spade a spade:

Jackson County Man Sentenced for Illegal Water Diversion, Ordered to Remove Dams

The first few paragraphs:

A Jackson County man with a 10-year history of illegally diverting water with homemade dams was sentenced this week to 30 days in jail and fined $1,500. 

Gary A. Harrington was convicted earlier this month of nine counts of unauthorized water use. Under Oregon law, all water is publicly owned and a permit is required to divert or store it for personal use. 

State Water Resources Department officials said Harrington has three dams across channels that cross his property outside of Medford and feed into Big Butte Creek. The creek is a tributary of the Rogue River. 

Two of the dams stand about 10 feet high and the third is about 20 feet tall. Harrington stocked the reservoirs that formed behind the dams with trout and bluegill, built boat docks and used the ponds for fishing. 

Oregon Public Broadcasting took a middle ground, using both 'rainwater' and 'reservoir'

Rainwater Reservoirs Net Jail Time for Oregon Man 

And the story:

MEDFORD, Ore. — A Southern Oregon man is facing 30 days in jail and a hefty fine for building dams of up to 15 feet high to keep rainwater on his property and out of his local watershed.

A court has sentenced Gary Harrington of Eagle Point to 30 days in jail, and a $1,500 fine for maintaining 3 illegal reservoirs on his property.

Harrington has told the court, and the Mail Tribune newspaper, that he was just storing rainwater to use for wildfire protection. [Hey, how about those docks and fish?]

Tom Paul, Deputy Director of the Oregon Water Resources Department, says rainwater is what fills most of the rivers in Oregon; landowners can’t divert its natural flow it without getting permission first.

“If you build a dam, an earthen dam, and interrupt the flow of water off of the property, and store that water that is an activity that would require a water right permit from us” Paul said.

According to Paul, one of Harrington’s dams was 15 feet high. And the dams were capturing water that flowed into a nearby creek, which belongs to the City of Medford. Harrington is appealing his conviction and jail sentence.

A final note: if you’re capturing the rainwater that runs off your roof or driveway, no need to worry. There’s an exemption in Oregon’s water rights law just for that: it’s #7 on the list of exemptions here.

Note that only the CNS story contain quotes from Harrington.

I initially thought Harrington's jail time was unreasonable, but I now believe it to be appropriate. The guy was warned and refused to comply. 

“They’ve [the government] just gotten to be big bullies and if you just lay over and die and give up, that just makes them bigger bullies. So, we as Americans, we need to stand on our constitutional rights, on our rights as citizens and hang tough. This is a good country, we’ll prevail.” - Gary Harrington

Comments

[Kevin]

This is weird that someone has sent to jail just for collecting the rain water even on his own property!