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It’s Now Legal to Catch a Raindrop in Colorado
Published: June 28, 2009

DURANGO, Colo. — For the first time since territorial days, rain will be free for the catching here, as more and more thirsty states part ways with one of the most entrenched codes of the West.

Precipitation, every last drop or flake, was assigned ownership from the moment it fell in many Western states, making scofflaws of people who scooped rainfall from their own gutters. In some instances, the rights to that water were assigned a century or more ago.

Now two new laws in Colorado will allow many people to collect rainwater legally. The laws are the latest crack in the rainwater edifice, as other states, driven by population growth, drought, or declining groundwater in their aquifers, have already opened the skies or begun actively encouraging people to collect.

“I was so willing to go to jail for catching water on my roof and watering my garden,” said Tom Bartels, a video producer here in southwestern Colorado, who has been illegally watering his vegetables and fruit trees from tanks attached to his gutters. “But now I’m not a criminal.”

Who owns the sky, anyway? In most of the country, that is a question for philosophy class or bad poetry. In the West, lawyers parse it with straight faces and serious intent. The result, especially stark here in the Four Corners area of Arizona, Colorado, New Mexico and Utah, is a crazy quilt of rules and regulations — and an entire subculture of people like Mr. Bartels who have been using the rain nature provided but laws forbade.

The two Colorado laws allow perhaps a quarter-million residents with private wells to begin rainwater harvesting, as well as the setting up of a pilot program for larger scale rain-catching.

Just 75 miles west of here, in Utah, collecting rainwater from the roof is still illegal unless the roof owner also owns water rights on the ground; the same rigid rules, with a few local exceptions, also apply in Washington State. Meanwhile, 20 miles south of here, in New Mexico, rainwater catchment, as the collecting is called, is mandatory for new dwellings in some places like Santa Fe.

And in Arizona, cities like Tucson are pioneering the practices of big-city rain capture. “All you need for a water harvesting system is rain, and a place to put it,” Tucson Water says on its Web site.

Here in Colorado, the old law created a kind of wink-and-nod shadow economy. Rain equipment could be legally sold, but retailers said they knew better than to ask what the buyer intended to do with the product.

“It’s like being able to sell things like smoking paraphernalia even though smoking pot is illegal,” said Laurie E. Dickson, who for years sold barrel-and-hose systems from a shop in downtown Durango.

State water officials acknowledged that they rarely enforced the old law. With the new laws, the state created a system of fines for rain catchers without a permit; previously the only option was to shut a collector down.

But Kevin Rein, Colorado’s assistant state engineer, said enforcement would focus on people who violated water rules on a large scale.

“It’s not going to be a situation where we’re sending out people to look in backyards,” Mr. Rein said.

Science has also stepped forward to underline how incorrect the old sweeping legal generalizations were.

A study in 2007 proved crucial to convincing Colorado lawmakers that rain catching would not rob water owners of their rights. It found that in an average year, 97 percent of the precipitation that fell in Douglas County, near Denver, never got anywhere near a stream. The water evaporated or was used by plants.

But the deeper questions about rain are what really gnawed at rain harvesters like Todd S. Anderson, a small-scale farmer just east of Durango. Mr. Anderson said catching rain was not just thrifty — he is so water conscious that he has not washed his truck in five years — but also morally correct because it used water that would otherwise be pumped from the ground.

Mr. Anderson, a former national park ranger who worked for years enforcing rules and laws, said: “I’m conflicted between what’s right and what’s legal. And I hate that.”

For the last year, Mr. Anderson has been catching rainwater that runs off his greenhouse but keeping the barrel hidden from view. When the new law passed, he put the barrel in plain sight, and he plans to set up a system for his house.

Dig a little deeper into the rain-catching world, and there are remnants of the 1970s back-to-land hippie culture, which went off the grid into aquatic self-sufficiency long ago.

“Our whole perspective on life is to try to use what is available, and to not be dependent on big systems,” said Janine Fitzgerald, whose parents bought land in southwest Colorado in 1970, miles from where the pavement ends.

Ms. Fitzgerald, an associate professor of sociology at Fort Lewis College in Durango, still lives the unwired life with her own family now, growing most of her own food and drinking and bathing in filtered rainwater.

Rain dependency has its ups and downs, Ms. Fitzgerald said. Her home is also completely solar-powered, which means that the pumps to push water from the rain tanks are solar-powered, too. A cloudy, rainy spring this year was good for tanks, bad for pumps.

The economy has turned on some early rainwater believers, too. Ms. Dickson’s company in Durango went out of business last December as the construction market faltered. The rain barrels she once sold will soon be perfectly legal, but the shop is shuttered.

“We were ahead of our time,” she said.

Op-Ed Contributor
Life, Liberty and Benign Monarchy?
Published: July 2, 2009

FROM the perspective of 2009, democracy in the United States is a great success. This makes it is easy to imagine that the march to democracy was the only path — that there is a clear line from the Declaration of Independence to the presidency of Barack Obama, and that democracy is the only fair society. But republican government was a risky choice at the time of the Revolution, and democracy was almost out of the question. There were more proven alternatives for running a society fairly. A look at two other contenders for control of the continent in 1776 — American Indians and Spaniards — reveals that democracy’s supremacy in promoting human rights was far from inevitable.

There were Indians fighting on both sides of the Revolution and others who tried to stay neutral. But whatever their choice, Indians did not fight for an American republic or a British constitutional monarchy but for their own goals, especially sovereignty. While American Indians were politically diverse, by the Revolution their most common governance structure consisted of multiple chiefs with limited power, advised by councils of elders. Chiefs led by persuasion rather than force. As a Mohawk man of the day explained, “We have no forcing rules or laws amongst us.”

For the British, a signed document was what sealed a treaty; but for the Indians they dealt with, a treaty had no validity without public acclaim. At a treaty negotiation, hundreds of people would gather for weeks, discussing and debating in formal sessions and over elaborate meals. Although not always reached, consensus was the ideal.

Historians and anthropologists have hypothesized that this extreme insistence on shared power was a reaction to the fall of earlier, hierarchical Mississippian chiefdoms, which had ruled much of North America from about 700 to 1600 A.D. Mississippian chiefs could be brutal. Weapons and art depicting violence are abundant at Mississippian archaeological sites. Some chiefs were buried with not only piles of luxury goods but also people, killed to accompany their leader in death.

Later American Indians may have inherited a distrust of centralized authority from their oppressed ancestors. Did Indians build democracies? No. Did they provide liberty and justice for their people? Often, yes. Indians built consensus-style government over time, in response to the hard lessons of history.

Indians were the most populous but not the only rivals to British-American occupation of North America in the 1770s. King Charles III of Spain saw the American Revolution as an ideal opportunity to extend his empire north. Although most people forget Spanish involvement in the war, Spain won battles against the British at Baton Rouge, La., Mobile, Ala., and Pensacola, Fla. At the end of the Revolution, European maps showed Spain in possession of most of what is today the continental United States: the entire Gulf Coast and everything west of the Mississippi River.

Immigrants from the new United States were offered free land in the west if they swore an oath to the king and converted to Catholicism. Knowing what we know now about imminent United States dominance, this might look like a bad deal. But thousands of Americans took the king up on his offer as land became scarce in the east. Royalist, imperial, theocratic, bureaucratic Spanish governance was not out of the question.

Surprisingly, the Spanish empire provided some freedoms that the United States would later take away when it expanded westward. Women in the Spanish Empire were not subject to coverture, the legal doctrine under which their legal identities were subsumed under men’s, first by their fathers and then by their husbands. In the post-Revolutionary United States, married women could not own property, participate in local politics, serve on juries, write wills, sign contracts or exercise custody rights over their children. Under the Spanish system, in contrast, women kept their names, property and legal identities. They were not equal to men of their rank, certainly, but they had legal rights unavailable in Anglo-American society.

Slaves in the Spanish colonies of Louisiana and the Floridas also had some rights and opportunities that they would lose under the United States. Slaves who felt mistreated by a master (beyond the “normal” allowed violence) had the right to appeal to the local military commander — and they sometimes won. Slaves could gain freedom through wartime service; thus hundreds served as soldiers, messengers, spies and laborers for the war effort. After the American Revolution, appeals became easier to win, and more than 1,000 slaves in Spanish territory freed themselves either by buying themselves or being paid for by a family member or friend. The life of a slave in Spanish Louisiana and Florida was not easy, but it was far less dehumanizing than the plantation system of the American South.

America’s founders did not want to become Indians or Spaniards. Many of them admired Indian freedoms but believed the natives had no real government. Not knowing of the Mississippian past, Thomas Jefferson wrote in his “Notes on the State of Virginia” that Indians had “never submitted themselves to any laws, any coercive power, any shadow of government.” While he judged that “too much law, as among the civilized Europeans” was worse than “no law, as among the savage Americans,” he believed representative government was best of all.

And the founders believed the Spanish were even more despotic than the hated British. Jefferson believed that the monarchy and priesthood left Spanish subjects “immersed in the darkest ignorance, and brutalized by bigotry and superstition.” He ignored the many black slaves and impoverished white settlers who voted with their feet, moving to Spanish territory for freedom and land.

Councils of elders and monarchies are not better than democracies, and usually are worse. But North American history makes clear that the details of a political system often make more difference in people’s lives than the form does. Our past should give us pride but also humility and caution as we proceed in the world.

Last night Barb and I went over to Indian School Steele Park to see the fireworks. Wandered around a little, got Italian Ice, listened to local group Tramps & Theives (they're good), watched fireworks, rode the Light Rail for the first time (nifty!). Walked past the usual crazies (hand-printed sign reading "When people fear the government, that's TYRANNY!" which lead me to wonder what folks like that would do if they actually lived in a tyrannical society...), considered glowy things but didn't buy any. We had her Mom over, served burgers and beans, corn on the cob and fruit salad. It was yummy. It was, indeed, a good day.

I managed to nab another stripe, but it's the same color as the first ones I got. I want a GREEN one...

Adopt one today! * Adopt one today! * Adopt one today! * Adopt one today!

Tags: 4th of july, articles, dragons
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