The Right to Rainwater: an Unlikely Fairy Tale

• Jurisdiction: United States,Federal
• Publication year: 2018
• Citation: Vol. 69 No. 2

The Right to Rainwater: An Unlikely Fairy Tale

Autumn R. Triplett

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Comment

The Right to Rainwater: An Unlikely Fairy Tale^*

I. Introduction

Everyone loves a good story, but what makes a story good?

First, a good story has a hero. Cinderella's fairy godmother helped her to realize her potential, Harry Potter saves the wizarding world once again, and rainwater changed our world.¹ Of course this contention sounds strange, but if presented with the question of which natural resource is most vital to sustaining life on earth, most people would give the same answer: water.² This is a statement that would likely be met with little resistance. That is because from a very early age, just like we are taught the importance of literary heroes, we are taught to keep in mind just how essential this resource is in our day to day operations.³ It is common knowledge that water facilitates life and vegetation on Earth.⁴ Water keeps us and our environment clean, hydrated, and healthy.⁵

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Water is incredibly and undeniably important. Rain quite literally sustains the world's surface water supply.⁶ For all intents and purposes, rainwater is a modern-day hero.

Second, a good story often presents a villain. In this story, as in most other iconic tales, many people do not fully appreciate the hero until the strength of that hero is nearly depleted by evil. We all know that water is important, but unfortunately the clean water supplies of many communities across the country, and even worldwide, have been threatened in recent years.⁷ For reasons ranging from pollution and overconsumption to climate change, the future of this hero has become increasingly grim.⁸ Fortunately, individual home and business owners have banded together to fight against these villains. Many of these people chose to implement a system of rainwater collection on their own properties.⁹ The goal of these systems was to reduce waste and recycle water so community supplies of groundwater could be replenished and purified.¹⁰

This leads to the final and most well-known element of a story. Readers always seek a happy ending, but what is considered a happy ending is highly subjective. Many considerations, emotions, and opinions on characters factor into a reader's satisfaction with the story's resolution. A polarizing character can create quite a controversy, and that is exactly what is happening here. Enter the Environmental Protection Agency (EPA) and its counterpart, state government. Some states have recently introduced regulations regarding rainwater collection and the purification of a county's rainwater supply in order to comply with the EPA standards for clean water and stormwater

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management in an effort to achieve the happy ending that everyone longs for.¹¹ While some perceive the EPA and state governments as a sidekick of sorts, others are critical of their roles in the water crisis.¹² Is there a reason for concern, or does the government have the best interests of both water and our local communities at heart?

This Comment presents the different outcomes to the above story and considers an ending that is happy for everyone. First, this Comment canvasses the history of the EPA's role and the considerations regarding the existence (or non-existence) of restrictions and regulations on rainwater collection. Second, this Comment looks at the implementation by different states, particularly Georgia, of such regulations. Third, this Comment explores the pros and cons of each states' different positions and discusses which options are ultimately best for preservation of the national clean water supply.

II. History & Background

A. An Overview of Rainwater Harvesting

Rainwater collection, or harvesting, is a technique that many property owners use as a way to store and repurpose rain that collects on their land.¹³ To understand the impact rainwater harvesting can have on the water supply as a whole, it is important to understand the process and its goals.

1. The Process

Each collection system consists of the same basic elements: a catchment surface, gutters and downspouts, leaf screens, roof washers, a storage tank, and a delivery system.¹⁴ It is easier to understand the harvesting process as a whole when the function of each of these elements is understood. A catchment surface is a sloped surface from which the rain flows as it is falling.¹⁵ The gutters and downspouts collect the water from the catchment and distribute the water by directing its flow to a

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holding container.¹⁶ The storage tank, or cistern, plays the most integral part in the collection process.¹⁷ The cistern, which can be made from a variety of different materials that each affect the quality of the water and the amount the tank can store, holds the collected rainwater that flows directly from the supply line.¹⁸ Leaf screens and roof washers both serve as preventative measures and attempt to filter pollutants from the collected water. Leaf screens catch leaves as the water flows and separates them from the supply.¹⁹ A roof washer, an optional but often utilized component, diverts the "first flush" of rain before collection to rid the supply of any pollutants or debris collected as the water flows from the catchment.²⁰ Finally, the delivery system is the element that directs the collected water to fulfill its next purpose, whatever that purpose may be.²¹

2. The Goals

Many landowners have different, but equally important, goals in harvesting rainwater on their property. First and foremost, rainwater is essentially a free resource.²² It is possible to collect around 600 gallons of rainwater runoff just from the roof of a home after an hour of moderate rainfall in almost any area in the country.²³ The average household in America uses between 80 and 100 gallons of water per day for a multitude of purposes ranging from bathing to cooking to drinking.²⁴ Estimating even from the top end of that range, a typical family's water consumption per month would be about 3,000 gallons. In 2015, the average monthly water bill in the Atlanta area was $253.²⁵ Accordingly, someone who effectively harvests the rainfall on their property could significantly reduce their monthly water bill with just five hours of moderate rainfall in a month. Based on these figures, a dedicated local harvester could

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easily save $3,000 per year. Rainwater collection has a substantial economic benefit, and many homeowners seek to save money by implementing a harvesting system.²⁶

Next, many people collect rainwater to decrease their environmental footprint.²⁷ Rainwater harvesting collects water so that it can be recycled and used for various purposes.²⁸ Rainwater can be used to complete many household tasks, even when left untreated.²⁹ Homeowners use collected water to wash their cars, landscape their lawns, and water their gardens.³⁰ Using harvested water lessens the environmental impact of these necessary tasks that would be otherwise demanding on the water supply.³¹ When homeowners use rainwater runoff to complete these chores, less water is drawn from the lakes, rivers, wells, and reservoirs in any given area.³² Additionally, rainwater harvesting positively impacts the environment by conserving energy.³³ Energy is rarely used to purify and access the rainwater when it is used privately and taken from storage.³⁴ Further, many rainwater collection systems are gravity driven.³⁵ As such, no energy is used to transfer the water.³⁶ Gravitational pull causes the water to run directly through the private supply area established by the collector.³⁷

Not only does harvesting help sustain the water and energy supplies in an area, it can also help treat and purify the water and return it, at least more closely, to its natural state.³⁸ Because rainwater is captured as it falls, the water usually does not immediately come into contact with any surface water or community water supplies.³⁹ Because the water is stored by property owners, it does not run the course of other stormwater

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in an area.⁴⁰ As such, there is less chance for sediment, pesticides, or fertilizers to be picked up and find their way into these community waters.⁴¹ It follows that pollutants, which are less present in the water supply, can be more effectively filtered out because filtration systems are not overloaded with contaminated rainwater.⁴²

Finally, rainwater collection can be directly beneficial to the community in which it occurs.⁴³ Harvesting rainwater facilitates the control of stormwater,⁴⁴ and therefore reduces the risk of erosion that would affect the lay of the land or any present farming ventures.⁴⁵ Additionally, control of stormwater can minimize the impact of large amounts of rain on a community's infrastructure and sewer systems and can reduce flooding.⁴⁶ In any community where harvesters are present, harvesters divert rainfall into their personal supplies.⁴⁷ Again, this may result in significantly less stormwater for the local government to manage at the time of a rain event.⁴⁸ Because the infrastructure in the area is not overloaded, rainwater that is not harvested can more effectively be absorbed into the ground.⁴⁹ A greater amount of free water can be absorbed when more rainwater is personally collected—even during heavy rain events⁵⁰ —because open drainage systems allow water to flow freely and reduces flooding.⁵¹

3. The Problem

Rainwater harvesting provides numerous benefits and is a great private effort to positively impact a community's water supply. While legal rights to the ownership of water are admittedly cloudy, it seems intuitively unlikely that a person would not be entitled to collect and use rainwater on their own property as they wish.⁵² However, both federal agencies and state governments have imposed regulations and

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restrictions, directly or indirectly, on the process of rainwater harvesting.⁵³ Environmentalist groups and citizens alike share concerns regarding private...