Can the Government Tax Rainwater?
The Alchemy of Jurisdiction: When a Rainstorm Turns Private Land into Public Property
In the annals of government overreach, there are stories that strain credulity not because they are complex, but because they are so astonishingly stupid that they reveal the predatory nature of the state in its rawest form. We are presented with a scenario that reads like a fable about the death of common sense: a farmer digs a pond on his own land, maintains it for fifteen years, and then, following a heavy storm, finds himself sued by the county for forty thousand dollars. The crime? The rain fell so hard that his private water touched a municipal ditch. In the twisted, hallucinations of the bureaucratic mind, this momentary connection transformed his private property into a “tributary” of the state, subjecting a man’s labor to federal jurisdiction and a crushing fine. It is a case that exposes the modern administrative state as a pervasive, opportunist infection that waits for a natural disaster not to help, but to conquer.
The setting of this injustice is critical. We have a farmer with forty acres. Forty acres is a significant plot; it implies a buffer, a zone of privacy and autonomy. Fifteen years ago, this man used his own fuel, his own backhoe, and his own sweat to dig a pond. He did not ask for a grant. He did not ask for the county to do it for him. He created value where there was none. He built a reservoir for his livestock, his crops, or perhaps just his own enjoyment. For a decade and a half, this pond was a “fully contained” ecosystem, a closed loop of private ownership. It existed entirely within the boundaries of his deed. The state had no hand in its creation and no stake in its existence. It was, in the truest sense of the word, private.
Then came the storm. A hurricane or a heavy deluge is an act of God. It is a force of nature that respects no property lines and obeys no ordinances. The physics of water are simple: when a hole fills up, it overflows. The pond, overwhelmed by the heavens, spilled over. The water sought the path of least resistance, which happened to be the municipal ditch. This is where the physics ends and the insanity begins. A rational observer sees this event as a temporary drainage issue, the natural result of a weather event. The county, however, saw it as a legal coup. They looked at the muddy stream connecting the farmer’s pond to their ditch and saw a golden thread of jurisdiction. They decided that this temporary stream was not runoff; it was a “tributary.”
The word “tributary” carries immense legal weight. In the Byzantine world of water law—specifically the nebulous and often tyrannical definitions surrounding the “Waters of the United States”—a tributary is a federal waterway. It is subject to the Clean Water Act. It is subject to the Army Corps of Engineers. It is subject to the whims of the county. By classifying the overflow as a tributary, the county attempted a feat of bureaucratic alchemy: they tried to transmute a private hole in the ground into a public asset. They argued that because the water touched their water, they now owned the source. It is the logic of a contagion. If I shake your hand, do I own your arm? If my dog wanders into your yard, does your yard become a public dog park? The county argued yes. They argued that “connectivity”—even momentary, accidental, storm-driven connectivity—erases the concept of private property.
The demand for forty thousand dollars is the tell. It reveals that this was never about environmental protection or water management. It was about extortion. “He needs the $40,000 water rights permit.” A permit is usually a permission slip bought before an action. Here, they are demanding a retroactive permit for a pond that has existed for fifteen years, triggered by an event the farmer could not control. They are penalizing him for the weather. They are holding his wallet hostage because gravity exists. The sum is punitive. It is designed to crush. For a small farmer, forty grand is a new tractor, a barn renovation, or a child’s college tuition. To the county, it is just a line item, a transfer of wealth from the productive citizen to the parasitic state. They are essentially saying, “Nice pond you have there; it would be a shame if we regulated it out of existence.”
The county attorney’s defense—”Technically, the connectivity creates federal jurisdiction”—is a masterclass in the weaponization of the word “technically.” This is the battle cry of the tyrant. “Technically,” you are in violation. “Technically,” the code says this. When a government official hides behind technicalities to destroy a citizen’s life, they are admitting that they have no moral standing. They are appealing to the letter of the law to violate the spirit of justice. The attorney knows, deep down, that a rain-swollen ditch does not turn a farm pond into the Mississippi River. But he doesn’t care. His job is to expand the reach of the state. His job is to capture assets. He views the map not as a collection of homes and farms, but as a game board where the state must occupy every square.
The implications of the county’s argument are terrifying. If “overflow” creates jurisdiction, then there is no such thing as private land. Every time it rains, water flows. It flows from roofs to driveways, from driveways to streets, from streets to storm drains. Under the county’s logic, your driveway is a tributary of the city sewer system, and therefore the city can regulate how you park your car. Your roof is a tributary of the gutter, and therefore the state can charge you a water rights fee for your shingles. It is a philosophy of total assimilation. It posits that because nature is interconnected, the government’s power must be absolute. It denies the possibility of separation. It uses the water cycle to justify a totalitarian administrative state.
The farmer’s defense is grounded in the tangible reality of the earth. “I dug that pond… It’s fully contained on my 40 acres.” He speaks in the language of boundaries. Civilization is built on boundaries. Fences, deeds, borders—these are the things that allow us to live together without constant conflict. The county is trying to dissolve these boundaries. They are trying to turn the solid lines of the property map into porous, fluid suggestions. The farmer stands on his land and says, “This is mine.” The county stands in the ditch and says, “Everything the water touches is ours.” It is a fundamental conflict between the Jeffersonian ideal of the yeoman farmer and the Kafkaesque reality of the managerial elite.
The storm itself serves as a convenient pretext for this power grab. Governments love disasters. A crisis is an opportunity to suspend rules, seize property, and expand budgets. In this case, the hurricane was the partner of the taxman. The wind and rain did the physical work of bridging the gap between the pond and the ditch, and the lawyers rushed in to pave that bridge with citations. It shows a predatory instinct. A decent government looks at a farmer after a storm and asks, “Are you okay? Do you need help clearing debris?” This government looked at the farmer and asked, “How can we monetize this flooding?” They kicked a man while he was down. They used the chaotic aftermath of a natural disaster to ambush a citizen who was likely already dealing with downed trees and power outages.
The judge’s reaction is a beacon of clarity in a fog of legal sophistry. “You want 40 grand because we had a hurricane.” The judge strips away the jargon. He refuses to use the word “tributary.” He refuses to entertain the “connectivity” argument. He looks at the cause and effect. The cause was a hurricane. The effect is a lawsuit. He highlights the absurdity of penalizing a man for the climate. It is a moment where the judiciary steps in to protect the citizen from the lunacy of the executive branch. The judge recognizes that if this precedent were allowed to stand, the government could effectively tax the rain.
“Weather is not a contract.” This sentence deserves to be carved in stone above every courthouse in America. It is a profound legal and philosophical statement. A contract requires a meeting of the minds, an offer, and an acceptance. The farmer did not agree to join the municipal water system. He did not sign a paper saying, “If it rains really hard, I give you my pond.” The weather is a unilateral event. It is force majeure. To claim that a rainstorm acts as a binding legal agreement that transfers property rights is insanity. The judge is asserting that the boundaries of ownership are not soluble in water. They are fixed legal principles that cannot be washed away by a few inches of precipitation.
Furthermore, let us examine the concept of the “municipal ditch.” The county claims the overflow touched their ditch. What is a ditch? It is a hole the county dug to manage their own runoff. Now they are using their infrastructure as a weapon against the neighbors. Because the county built a ditch nearby, the farmer is now liable? This creates a “radius of liability” around all government infrastructure. If you live near a road, a ditch, or a power line, you are in danger of “connecting” to it and losing your rights. It encourages people to get as far away from government services as possible. It makes the presence of the county a hazard to be avoided rather than a service to be welcomed.
The “water rights permit” scam is also exposed here. Water rights in the West are serious business, historically involving cattle wars and feuds. But this isn’t a dispute over who gets to drink the water. This is a dispute over the existence of the water. The county isn’t claiming the farmer is taking their water; they are claiming he is holding his water in a way that offends them because it once touched their water. It is a permit for existence, not consumption. They want him to pay for the privilege of having a hole in the ground that gets wet. The $40,000 figure is likely arbitrary, plucked from a schedule of fines designed to terrify rather than correct. It is a shakedown, pure and simple.
The vacating of the demand is a victory, but the fact that the county brought the suit is the tragedy. Consider the stress the farmer endured. He likely spent sleepless nights worrying about losing his farm. He had to hire a lawyer. He had to take time away from his work to go to court. The county attorney gets paid a salary either way. The bureaucrats don’t lose sleep. If they lose the case, they just go back to the office and find another victim. The asymmetry of the conflict is glaring. The citizen fights for his life; the government fights for a line item.
This case is a microcosm of the “Waters of the United States” (WOTUS) debate that has raged for decades. Federal agencies like the EPA and the Army Corps of Engineers have repeatedly tried to expand their jurisdiction to include “ephemeral streams,” “prairie potholes,” and yes, farm ponds, under the guise of protecting navigable waters. They argue that because a drop of water in a farm pond might eventually, theoretically, evaporate and rain into a river that flows into the ocean, they have control over the pond. The county here is mimicking that federal overreach at the local level. They are adopting the mindset of the central planner who believes that all resources belong to the collective, and private stewardship is merely a temporary toleration.
The farmer’s shovel—the backhoe he used 15 years ago—is the symbol of legitimacy here. He put in the work. He modified the land. In the Lockean view of property, he mixed his labor with the soil and made it his. The county’s only contribution was the lawsuit. They are the ultimate rent-seekers. They create nothing, they fix nothing, they build nothing. They simply wait for the productive man to stumble—or for the rain to fall—and then they rush in to claim a share of what he built. They are the weeds in the garden of liberty.
The judge’s ruling reaffirms that nature is not an agent of the state. The wind does not serve the zoning board. The rain does not work for the tax assessor. When the elements rage, they do not rewrite the deed to your house. The distinction between “private water” and “public water” must be maintained with ironclad rigidity, or else the concept of private property dissolves into a muddy slurry of administrative discretion. The farmer keeps his $40,000, and he keeps his pond. But as he looks out over his 40 acres the next time the clouds darken, he will likely feel a new kind of dread. He knows now that the storm brings two threats: the rising water, and the rising greed of a government that watches the flood level not to save lives, but to measure the extent of its new dominion.