Western Water Program Projects
Examining Progressive Reforms of Prior Appropriation
Burgeoning populations require more water—not only for drinking, personal hygiene, and landscaping, but also for groceries, energy, processed materials, services, and recreation. And as uncertainty in supply due to climate change continues to mount, the prognosis for the future appears bleaker. A number of legal and non-legal factors affect how we use our water and why, but the prior appropriation system, the predominant legal foundation for water allocation in the West, is a central influence. Prior appropriation is rule-bound, founded on the historical order of rights and quantity of usage, which often makes adapting the status quo to meet new challenges both slow and arduous.
Although the Western system is founded on prior appropriation, each state has its own specific laws and regulations concerning water allocation. Particularly in recent years, states have amended these to reduce the disincentives to sustainable water usage and allow incentives for stretching supplies, to more easily influence the decision-making of right holders. These legal reforms have varied significantly from state to state in objective, form, and success.
In Western Water in the 21st Century: Policies and Programs that Stretch Supplies in a Prior Appropriation World, ELI identifies and explains illustrative examples of reforms from across the West with the potential to:
- Reduce the active disincentives against reducing water use and supporting future supplies by adding to the definition of “beneficial use” or exempting more activities from forfeiture and abandonment;
- Allow the use of conserved water (from reductions in consumption and evaporative losses) beyond what is permitted in the water right; or
- Accelerate the transfer process, particularly for short-term transfers.
The Handbook also addresses the circumstances under which the policies and programs arose and their results (in the view of those familiar with their application). View the Handbook.
ELI currently is conducting a case-by-case analysis of progressive reforms of prior appropriation in various Western states to reveal what makes some innovations successful and causes others to fail. Economics, politics, local history, law, and other factors could be critical to the success or failure of a specific policy, and that information is important, particularly when deciding whether to adopt a law or regulation used in another state. Anticipated Release Date: Fall 2011
Coordinated Water Quantity and Quality Management in the West
Water quantity law is almost exclusively under the jurisdiction of the states and operates like a specialized form of real property law. Water quality law, however, is primarily governed by the Clean Water Act and state laws carrying out the mandates of that Act, and operates as a regulatory and enforcement-oriented regime. These two fields often are separate and even inconsistent in practice. But in nature, water quality and quantity are intimately linked and interdependent. Climate change and its consequences such as increased flooding and severe drought, reduced water from snowmelt, long-term changes in water temperatures, the need for new water storage, further stresses on instream flows, and other issues are drawing (slow but mounting) attention to the need to address water quantity and quality in a unified manner.
ELI currently is analyzing the ways in which the Clean Water Act, Safe Drinking Water Act, and state water quality laws do and may influence water quantity and, in turn, the ways in which state water quantity laws do and may influence water quality. ELI will develop a report on practical options for using existing laws more effectively and (where necessary) show how new laws and institutional structures can be adopted to achieve the goals of both water quality protection and efficient and equitable water management. Anticipated Release Date: Spring 2011
Obstacles and Opportunities in Wastewater Reclamation
With support from the Puget Sound Partnership and in cooperation with the Washington Department of Ecology, ELI developed four reports on separate aspects of the legal and financial challenges to promoting water reclamation in the State of Washington: water rights, funding mechanisms, economic incentives, and operator liability. Each report also identifies how other Western states have addressed these issues and concludes with recommendations tailored for Washington. Links to those reports are provided below.
Water Right Impairment in Reclamation and Reuse
Report on Funding and Financing for Reclaimed Water Facilities
Report on Incentives for Reclaimed Water
Comparative Survey of Liability and Indemnification Concepts for Reclaimed Water
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