Western Water Program Projects
Bridging the Gap between Water Quantity and Quality Management in the West
Water quality and quantity are naturally intertwined, yet the two are managed separately in the Western U.S. The federal Clean Water Act (CWA) is the foundation for surface water quality regulation while water quantity is regulated primarily by state law. Although state agencies are critical to the implementation of both water quantity and quality laws, most western states separate these authorities. The degree of compartmentalization appears to have so divided management of this resource that damage has been done to both sides.
In At the Confluence of the Clean Water Act and Prior Appropriation, ELI details the impact that water quantity law and practice has had on water quality and vice versa, explains the relative strength of surface water quality and quantity authorities in the Western U.S., and discusses practiced and potential ways to address these two aspects of water more holistically.
The report analyzes the legal authorities of western states and the federal government over water quantity and quality, respectively, and briefly recaps the current state of takings law relevant to appropriative rights and the CWA, revealing that many of the justifications for the divide between water quality and quantity management are not the great obstacles many believe them to be. The report then identifies examples of laws, administrative structures, policies, and practices that can advance relationships between, and ultimately the outcomes for, water quality and quantity management.
View the Report
Connecting Water Conservation Efforts and Instream Flow Protections
The Alliance for Water Efficiency, American Rivers, and ELI collaborated on a project funded by the Walton Family Foundation to explore the links between water efficiency and instream flow in the Colorado River basin. The project involved analyses of the water laws of each of the seven basin states for their conduciveness to protecting conserved water used for instream purposes and case studies of innovative and successful models from within and outside the basin, culminating in an identification of promising opportunities based on instream flow needs and economic, social, political, and legal circumstances. For more information, see the project webpage.
View the Report
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: Spring 2013
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