Developing the Law of the River: The Integration of Law and Policy into Hydrologic and Socio-economic Modeling Efforts in the Willamette River Basin

A legal and policy infrastructure -- referred to as a law of the river -- exists for every river basin in the U.S. an can be as important as natural processes in terms of managing the future of the resource. Because of the way that water law and policy have evolved in the U.S., this infrastructure involves a matrix of state and federal law that governs the choices that policymakers, end users, and agencies make. This law of the river provides the context in which decisions are made and not made. It also draws the boundaries within which decision makers believe they can operate. As a result, the law of the river and the policy choices that are faced can be interpreted as immovable or as constant in the larger decision-making dynamics of a river basin. Decision makers and stakeholders often claim definitiveness in terms of what the law can and cannot accomplish, and the legal questions are often presented as well settled and resolved. The law of the river, however, is as dynamic and active as the river itself, whether through the existing discretionary *1092 authority that the law has provided to those who are charged with implementing the law or ultimately through democracy\u27s ability to change law based on the desires and needs of the public. This paper explores the fundamental structure of state and federal law as it related to the Willamette River Basin in Oregon, which is a familiar story for many basins in the U.S. Part I describes an interdisciplinary research project that seeks to integrate law and policy change into a set of future hydrologic scenarios on a hundred-year time scale for the Willamette Basin -- the Willamette Water 2100 project. Part II explains the value of integrating hydrologic modeling with law and policy on a basin scale. Part III begins to build a legal framework for both state and federal law and focuses on the particular pieces of those legal structures that are the most influential drivers for the management of water flow in the Willamette River. In addition, this part explores the inherent discretion and flexibility within existing law to help frame the conversation about what kinds of reasonable future scenarios can be explored for the basin. Part IV describes the process for building future flow scenarios for the Willamette River Basin using the inherent flexibilities in the existing legal infrastructure. Part V sets forth a set of preliminary conclusions and develops a set of research tasks that will drive the next stage of this work

Developing the Law of the River: The Integration of Law and Policy into Hydrologic and Socio-Economic Modeling Efforts in the Willamette River Basin

This is the published version

Finding Water Scarcity Amid Abundance Using Human–Natural System Models

Water scarcity afflicts societies worldwide. Anticipating water shortages is vital because of water’s indispensable role in social-ecological systems. But the challenge is daunting due to heterogeneity, feedbacks, and water’s spatial-temporal sequencing throughout such systems. Regional system models with sufficient detail can help address this challenge. In our study, a detailed coupled human–natural system model of one such region identifies how climate change and socioeconomic growth will alter the availability and use of water in coming decades. Results demonstrate how water scarcity varies greatly across small distances and brief time periods, even in basins where water may be relatively abundant overall. Some of these results were unexpected and may appear counterintuitive to some observers. Key determinants of water scarcity are found to be the cost of transporting and storing water, society’s institutions that circumscribe human choices, and the opportunity cost of water when alternative uses compete

Climate Change Meets the Law of the Horse

The climate change policy debate has only recently turned its full attention to adaptation - how to address the impacts of climate change we have already begun to experience and that will likely increase over time. Legal scholars have in turn begun to explore how the many different fields of law will and should respond. During this nascent period, one overarching question has gone unexamined: how will the legal system as a whole organize around climate change adaptation? Will a new distinct field of climate change adaptation law and policy emerge, or will legal institutions simply work away at the problem through unrelated, duly self-contained fields, as in the famous Law of the Horse? This Article is the first to examine that question comprehensively, to move beyond thinking about the law and climate change adaptation to consider the law of climate change adaptation. Part I of the Article lays out our methodological premises and approach. Using a model we call Stationarity Assessment, Part I explores how legal fields are structured and sustained based on assumptions about the variability of natural, social, and economic conditions, and how disruptions to that regime of variability can lead to the emergence of new fields of law and policy. Case studies of environmental law and environmental justice demonstrate the model’s predictive power for the formation of new distinct legal regimes. Part II applies the Stationarity Assessment model to the topic of climate change adaptation, using a case study of a hypothetical coastal region and the potential for climate change impacts to disrupt relevant legal doctrines and institutions. We find that most fields of law appear capable of adapting effectively to climate change. In other words, without some active intervention, we expect the law and policy of climate change adaptation to follow the path of the Law of the Horse - a collection of fields independently adapting to climate change - rather than organically coalescing into a new distinct field. Part III explores why, notwithstanding this conclusion, it may still be desirable to seek a different trajectory. Focusing on the likelihood of systemic adaptation decisions with perverse, harmful results, we identify the potential benefits offered by intervening to shape a new and distinct field of climate change adaptation law and policy. Part IV then identifies the contours of such a field, exploring the distinct purposes of reducing vulnerability, ensuring resiliency, and safeguarding equity. These features provide the normative policy components for a law of climate change adaptation that would be more than just a Law of the Horse. This new field would not replace or supplant any existing field, however, as environmental law did with regard to nuisance law, and it would not be dominated by substantive doctrine. Rather, like the field of environmental justice, this new legal regime would serve as a holistic overlay across other fields to ensure more efficient, effective, and just climate change adaptation solutions

Dam Removal and Hydropower Production in the United States–Ushering In a New Era

34 page

Hydropower Reform and the Impact of the Energy Policy Act of 2005 on the Klamath Basin: Renewed Optimism or Same Old Song?

48 p. A print copy of this title is available through the UO Libraries under the call number: LAW LIB. K 10 .O425Focusing on the Klamath Basin, this Article examines the major hydropower relicensing provisions of the Energy Policy Act of 2005;6 evaluates the relevant provisions of the Department of Interior’s implementing regulations for section 241 of the Energy Policy Act; and discusses two significant opinions, one administrative and one judicial, that will undoubtedly impact the water users and managers in the Basin. Finally, the Article briefly discusses factors outside of the FERC relicensing process, including the resolution of the legal challenge to the 2001 water curtailment, the results of the challenge to the most recent biological opinion for the coho salmon in the Klamath River, and the pending Fifth Amendment Takings litigation in the Court of Federal Claims that may also contribute to a changed dynamic among the various stakeholders