Managing Water Resources in the West Under Conditions of Climate Uncertainty A Proceedings (1991) / Chapter Skim
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12. Western Water Law, Global Climate Change, and Risk Allocation
12. Western Water Law, Global Climate Change, and Risk Allocation
Pages 239-254
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From page 239... ...
. Urban areas that survive sea-level rises will probably face severe water shortages as spring runoffs decline and forests die.
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From page 240... ...
Simultaneously, the efforts to allocate more water to in-situ uses that began in the 1970s may literally evaporate. A recent global warming disaster scenario includes the prediction that "lien northern California, low water levels and high temperatures deoxygenated Tule Lake, inducing epidemics of botulism that eventually killed off immense flocks of ducks and geese that had made Tule the greatest single gathering around the world for migratory waterfowl" (Oppenheimer and Boyle, 1990~.
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From page 241... ...
Rather, it assumes that the West faces a substantially increased risk of water shortages and speculates about how the existing law of prior appropriation will respond to these shortages, when and if they occur, as well as the likely effect of recent trends in western water law on global warming adaptation. The basic conclusion is that the law of prior appropriation is not well suited in practice to achieve an optimum allocation in times of shortages because of the gap between priority rights holders and demand, but that reallocation trends currently underway can form the basis for a western global warming adaptation strategy.
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From page 242... ...
Western water law is premised on shortages and priority schedules that provide clear risk allocation schemes. But we do not expect the risks to occur with any regularity.
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From page 243... ...
Most irrigators have been buffered by the harshness of prior appropriation by both carryover storage and formal and informal mechanisms that share the burdens of shortages by pro rata rather than pro tanto delivery reductions. Thus, although the law of prior appropriation is a risk allocation mechanism, the expectation that it will be used for this purpose is low.
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From page 244... ...
Until recently, there was a widespread perception that the allocation of western water was eternal, but the system was never completely static. It contained reallocation mechanisms that allowed minor adjustments, though, in general, prior appropriation remained watershed-based in practice.
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From page 245... ...
Although most western water rights are transferable, the transaction costs of a transfer can be high. The vested rights of third parties must be protected under state law, and in an increasing number of states transfers are subject to public interest review.
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From page 246... ...
First, reclamation law creates strong expectations that the original project beneficiaries will be the eternal beneficiaries of project water; every proposed transfer or conservation requirement will be met with substantial, although not insurmountable, opposition. Second, the Bureau's attempt to recast its mission as that of a multiple-purpose manager to deflect criticism that it has helped pollute western waters and degrade or destroy prime fish and wildlife habitats may be inconsistent with global climate change adaptation.
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From page 247... ...
The net effect of Section 8 is that project water based on state water rights cannot be reallocated by the federal government alone unless Congress has preempted state law. Individual Bureau of Reclamation project contracts may present additional problems.
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From page 248... ...
Congress may preempt state law and delegate to the Bureau the power to allocate water as it chooses.8 Thus, the modern rule is that the Bureau must presumptively follow state law unless Congress has chosen to preempt it. The carrier analysis works to structure the operation of small Bureau of Reclamation reservoirs; the Bureau stores the maximum amount of water possible during the spring runoff and answers calls during the irrigation season, refusing to honor a call only if there is not enough to satisfy senior water rights holders.
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From page 249... ...
As long as supplies are relatively abundant over a threeor 4-year period, there is usually a difference between the de jure operating rules and the de facto operating procedures. Glen Canyon Dam's operation provides an example of the changes in operating procedures that severe shortages must produce.9 Glen Canyon Dam is the linchpin of Colorado River management because it enables the upper Colorado River basin states to store sufficient water to meet their 10-year delivery obligation to the lower basin states.
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From page 250... ...
To establish the relationship between power generation and other river uses, there would have to be a prolonged drought making it impossible for the upper basin to meet its 10year delivery obligations, and the lower basin states would have to demand the release of water for power generation. The late Dean Meyers suggested that if lower basin consumptive demands are met, Article III (e)
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From page 251... ...
The post-Colorado River Compact experience with the accommodation of new interests contains mixed lessons for global warming scenarios. Three major classes of uses were traditionally excluded by reclamation-era allocations: recreation, environmental quality preservation (including public health and fish and wildlife habitat enhancement)
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From page 252... ...
The two most relevant for the Colorado River are the Clean Water Act and the Endangered Species Act. These statutes superimpose environmental protection mandates onto existing water allocation regimes without specifying the extent to which prior allocations are modified, but the few court cases involving these statutes suggest that existing allocations must be accommodated to accomplish the federal objectives.
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From page 253... ...
1987. The effect of reclamation law on voluntary transfers of water.
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From page 254... ...
1985. Competing demands for the Colorado River University of Colorado Law Review 56:413.
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