Legality of Swales

I am fascinated by this subject of greening the desert. I have read through the forums and watched a lot of videos. Amazing stuff.

I keep coming back to one question. It was my understanding that in most of the western United States due to water rights issues, the impeding or impounding of water is illegal in most cases. Are swales not considered impeding at least? I would love to implement these techniques in a coulee in Eastern Washington State. However, I fear a visit from the local and state Gestapo as soon as the first green appear.

How do swales fit into the North American desert model? How does one do it legally?

Mark Shepard has the PC terminology.

They are erosion control devices, but I don't remember the exact phrase.

In Paul's world domination video he talks about how there are certain height requirements of a dam or earth work before it is recognized by departments of sadness. It might depend on your city and state, but my understanding was that if your just under the height limit than all you have is simple landscaping, not technically a dam. Since there are no official guidelines for landscaping, no one has the legal right to tell you how to do it.

In Utah, the water that falls on your land is yours and the water that flows across your land belongs to the state.

Bill Bradbury wrote:In Utah, the water that falls on your land is yours and the water that flows across your land belongs to the state.

...but you are severely limited as to the size of storage you are allowed, so the water that falls on your land is only partly yours. So far, restrictions have been limited to impoundment structures (ponds, reservoirs, tanks, etc.). Increasing the storage capacity of your soil has not yet been deemed illegal, but if a lot of folks do it, I am sure some enterprising water lawyer would pursue restrictions.

R Scott wrote:Mark Shepard has the PC terminology.

They are erosion control devices, but I don't remember the exact phrase.

basically this ^^^

if someone from the govt is giving you grief, you are simply talking to the wrong dept.

go across the hall and you may find that department will give you money to do what you are wanting to do

get on NRCS website and start learning how to name your improvements

When I was looking at some fairly steep land (in WA), I came up with the idea of digging multiple swales along contour.
Obviously, you cannot do this when the soil is wet, so it must be done before the rainy season.

These were not swales.
They were where I planned to plant my potatoes, using the soil from the berm to cover the pants as they grew.
They would act as errosion control. Not water hoarding, just good agricultural practices.
(You may wish to fill them with compost, or other water retentive organic matter while you wait for spring.)
If, in the spring time, I changed my mind, and planted my potatoes elsewhere, so-be-it.

Generally, the water cops only investigate if there has been a complaint.
If you have the only green land in the region, some neighbors are bound to make a complaint.

WA state is fairly easy going about rainwater catchment compared to most other western states.
You are allowed to catch every drop that falls on any structure on your property - firewood shed, chicken coop, etc.
(A 10' x 16' chicken coop will capture 100 gallons for each inch of rain - no sense carrying buckets of water to your hens.)
About the only restriction is that you may not make a structure solely for catching water, so put that roof to some utilitarian use.

Thank you all for your responses. That clears things up and gives me some peace of mind.

It's an old post, I know, but I can't find anything definitive. With regards to Montana, do you have any thoughts on this?

"A person is not required to apply for a permit to develop a groundwater well, spring, pit, or pond with a use of 35 gallons per minute or less, not to exceed 10 acre-feet per year (Section 85-2-306, MCA)."

10 acre feet seems like a fair amount for small-size properties to work with.

https://dnrc.mt.gov/Water-Resources/Water-Rights/Apply-for-Water-Rights/Water-Rights-Permit-Exceptions

Sean, I can't answer your question though I feel there is a difference between what that is talking about and a swale.

In Texas, what you can do with water might vary from county to county so if I wanted an answer to this question I would start with my county.

I am sure if that is not the right place to ask I will be sent to the right office.

I am absolutely not offering legal advise on this matter.
However, that doesn't stop me from offering some opinions on permaculture matters.

Generally, the last people I would ask about permissible permaculture activities are those employed to detect, report, and punish what they see as violations concerning  regulation of those activities. Of course, they are going to see the activity as within the sphere of control, and you'd have to have no experience with such people to understand that their default answer to any non standard approach is "No." And the question has then brought you to their attention. You obviously see permaculture as a good thing. A set of philosophical and practical solutions to living in and interacting with the world. We all do. The powers that be do not agree with us, nor do their minions. They see you as a silly dirty hippy. Your questions will bring the light of the Eye of Sauron upon you, and that is probably not good light for growing.

Their are tons of other permaculture research tools that are appropriate to the growing conditions in your...jurisdiction area. Much agricultural knowledge can be harvested  from the annotated revised statutes of your state, which are generally available free on line from Lexus. The statutes define things, and the annotated case laws provide concrete examples of how the courts or admin courts interpret the law. Like a bird gleaning for seeds, you might have to look in a few fields or code sections for exactly the right tidbits.

One could also leaf through back copies of the law journals from the law schools in your area concerning these subjects. Many people find inspiration while prepping old magazines for recycling.

There are at least  three main areas of concern for the permaculturist in this matter:
The laws surrounding the definition, construction, and use of the devices.
The separate laws concerning the use and diversion of water.
The separate laws concerning the civil liability concerning the alteration of the "natural" state of the land.

When looking at all that, it is easy to understand why Sepp Holzer considers himself a rebel.




 








 

I'm just perusing land and states. TX and OK are much more agreeable with regards to water rights. In TX, one can a have up to a 200 acre feet pond without issue. OK diffused water is the property owners water. Colorado, which I think the SE corner is ideal for regreening and infiltrating water, is damn near impossible. MT on the other hand has some exceptions that seem workable if interpreted in certain ways. My quote implies that less than 10 acre feet for a pond is workable, definitely need clarification. But for parcels 40 acres and more a pond less than 15 acre feet storage doesn't need a permit. I'll track this down. There is also a "is it beneficial" clause that seems to be open to interpretation. What would be nice, and perhaps this a project forme, is a resource spelling out what state by state waters rights are in the west and what they imply for permaculture.

There seems to be some confusion about what a swale is.

Maybe this thread will help:

A swale is a ditch, plus berm on downhill side, that is on contour across the slope. (If you aren't clear on what "on contour" means, definitely ask!)

2. The purpose of the swale is to slow water flow down the slope to (A) enable more water to soak into the soil rather than run off, and (B) reduce the soil erosion that is associated with water runoff.

https://permies.com/t/19946/permaculture/understand-swales

A person wanting to build a swale might want to learn what the water right's in their state.  I think that most earth-digging companies would know this.

Here is a thread related to that subject:

https://permies.com/t/24113/Water-rights-earth-works