Advancing Freshwater Conservation in the Context of Energy and Climate Policy: Assessing Progress and Identifying Challenges in the Western United States

Adell L. Amos, University of Oregon, School of Law

Abstract

This article critically evaluates freshwater conservation efforts in light of energy and climate policy in the western United States. Many, if not all, governmental entities today are facing tough and controversial questions involving energy demand and consumption. In the western United States, these energy questions are often inextricably linked to water resource availability and demand issues. With increased population and development pressure the challenges involving energy and water are likely to increase. Moreover, as the impacts from changes to climate and weather patterns increase various areas of the country will see changes to precipitation patterns, increased drought cycles, increased storm events and/or changes to snow pack and spring melt, among other hydrologic changes. Unfortunately, the laws and policies that deal with energy and those that address water policy have developed as independent and separate bodies of authority. Often various pieces of applicable law and policy reside at different jurisdictional levels of government—the municipal land use board may have authority to approve or disapprove a new housing development, but the state government has the authority to grant or deny water rights associated with the development and the federal government may ultimately run the reservoir system that could provide the water or energy needed to support the project. Both within and among most jurisdictions the connections between energy and water policy are absent.

This article provides several examples of the important connections between energy and water policy and encourages national, state, municipal and local governments to begin to coordinate the exercise of their various authorities. Not only will elected leaders and policy makers benefit from making connections between energy, land-use and water policy at their jurisdictional level, but they will also be well served from efforts to integrate energy and water policy through the various levels of local, state and national government. By way of specific example, the article examines the doctrine of prior appropriation to investigate the places where existing water law can incorporate and address questions of energy efficiency and land-use. The article concludes by offering some specific water policy ideas that state water agencies, particularly those in the western United States, may want to explore.

Recognition of the importance of freshwater conservation is a relatively recent development in the history of the prior appropriation doctrine in the western United States. Oregon is widely recognized as one of the leaders in freshwater conservation and was one of the first western states to recognize the value of minimum perennial stream flows and ultimately declare instream flow to be a beneficial use. Thus, Oregon’s code served as an excellent candidate for providing a concrete framework to examine these issues. Accordingly, the article isolates and examines provisions of the Oregon Water Code that impact freshwater conservation and discusses how the legislature, state administrative agencies, and the courts have interpreted these laws. The lessons and challenges discussed in the article are applicable to any state that follows the prior appropriation doctrine.