Exploring the Depths of Water Law

Without Drowning in a Sea of Confusion

By Laura Reed

Prior to returning to law school my exposure to law was limited to the work I did as a transactional paralegal.  When I finally took the leap of faith and decided to return to law school, to pursue a lifelong dream, I did so for many of the same altruistic reasons I had  right out of high school.  Trite as it may sound, I still sought to pursue a career that would provide me with the opportunity to make a meaningful contribution to society and the world.  I know all too well how the mundane aspects of the practice of law can quickly drown such lofty aspirations.  Nonetheless, I believed I could do more to achieve that goal as an attorney, than I could do as a paralegal.  As a mother this desire only grew stronger.  Having grown up in the urban jungle of Southern California, but appreciating and enjoying open space, the outdoors, fresh air and clean water, I decided to challenge myself and pursue environmental law as a possible career path.  My exposure to this area of the law prior to law school and my internship with the Columbia Institute for Water Policy was limited to reviewing environmental impact statements for potential developments and insuring the litany of conditions imposed by such statements and land use ordinances were addressed by CC&Rs or planned unit developments.   

Although I was certain I would be much more comfortable in a class on secured transactions, than a class exploring the labyrinth of laws and regulations pertaining to the air we breath and the water we drink, I nonetheless challenged myself to step into the uncharted waters.  It was not until my second year of law school that I was able to take my first Environmental Law class, and challenged I was.  The complexity of environmental laws coupled with my limited scientific background, made me doubt whether this was where I belonged.  Nonetheless, I stuck it out, and despite the challenges, embraced this area of the law.  In my third year of law school I took classes in Water Law, Environmental Dispute Resolution, Land Use and Zoning and International Environmental Law. 

My thirst for more exposure to this area of the law grew.  Therefore, when a global e-mail was sent to all 2Ls and 3Ls for an internship with the newly formed Columbia Institute for Water Policy I jumped at the opportunity.  Working as an intern on water policy issues seemed much more intriguing to me than some of the more traditional internships summarizing deposition transcripts and running errands.  I was selected for the internship among several other well qualified candidates and was thrilled to have the opportunity to work closely with a professor I respected and admired on issues that I believed were important not only to myself, but to the community, the world and future generations.  

I had no idea what to expect when I began the internship, but hoped to gain some practical experience working in the environmental arena, gain a greater understanding of water law in general, and decide if this was an area of the law in I could practice upon graduation.  The internship met these expectations and more.  It challenged me personally and professionally, and was one of the more rewarding experiences I have had.  Up until this internship, my concept of water law was very limited and the moral and philosophical aspects of this practice area remained well beneath the surface, mostly out of sight and out of mind, much like the water trickling through an underground aquifer.  Then, I was assigned my first task:  research and write an essay on water and sustainability for possible publication on the Columbia Institute’s Website. 

I had never given much thought to the concept of “sustainability” from a legal or moral standpoint, and trying to put to paper what that means proved to be very challenging.  Rather than finding solid answers, I found more questions.  What exactly does “sustainability” mean? For whom do we seek to sustain?  This generation, the next generation, or ten generations?  And do we really need to?  After all, isn’t water, unlike gas or oil, a renewable resource?  How does one judge how much water any one person is entitled to and for what purpose?  Does anyone have the right to limit our access to an element as vital to our existence as the air we breathe? It wasn’t until I studied International Environmental Law that I even came close to answering some of these questions as I explored the concept more deeply and particularly the legal implications of water as a human right. 

Although this concept seems so basic, from a legal standpoint, water as a human right is complicated and raises many of the same questions my initial research raised.  How do we define how much water a person is entitled to and for what purpose?  For people in developing countries the availability of clean potable water to meet basic needs such as drinking and eating, is their major concern.  But if this right becomes a human right enforceable under international principles of human rights law, what are the legal ramifications if a government fails in its obligations to meet those basic needs?  And can a developing country even begin to meet those demands, particularly when foreign corporations and interests may have contributed to or are presently contributing to polluted water and limited supplies? How does meeting these very basic human needs impact the environment and other species?  Can other species or the ecosystem be ignored or discounted so that basic human needs are met instead? If they are, doesn’t the destruction of species and ecosystems ultimately impact human beings and our survival? 

Although at first glance these questions may be of little significance in our little corner of the Western world, I learned through this internship, that they are as of much significance locally as they are globally.  One need only look at House Bill 2860 passed by the Washington Legislature in 2006 to realize there is a pressing need to better manage water resources in the Columbia basin to meet all of the competing demands placed upon the basin.  In many respects those demands look similar to the challenges faced in other Western states and in many parts of the world.  How do we meet the competing demands of fish, farmers, hydroelectricity and individual consumers of water from renewable but finite resource?  Do the approaches we have traditionally relied upon, such as a “hard path” of constructing more infrastructure (i.e., dams and diversion works) and the prior appropriation doctrine, suffice to meet these increasing demands?  Or are alternatives, such as a “soft path” approach more appropriate given our changing values?  (In a nutshell, the soft path approach focuses on our end use of the water and how best to meet that use.  By looking at the end use, we may discover we don’t really need the highest quality of potable water for that use.  For example, do we really need the highest quality potable water to flush our waste into the sewer, or water our grass, or grow certain crops?) 

The “soft path” approach is another fascinating topic for which I was privileged to research and write about as it relates to water.  Much has been written on this approach in the energy field and it is beginning to be used as a viable alternative to our traditional methods of water management.  However, it requires that we ask difficult questions and look for answers that may be well outside of the box, which is perhaps what makes it so fascinating and encouraging since the alternatives are quite frequently limitless.  For example, do we even need water to flush our waste when dry composting toilets are now a viable alternative?  Can we reuse treated water for other purposes?  (Washington and Idaho have both adopted policies that encourage the reclamation and reuse of water for these purposes.  I find these policies and the willingness of legislators to adopt them, encouraging and exciting, although much more can and should be done to insure their success.)  Do we really need to be growing the types of crops we’re growing in the arid regions of the United States and the World?  Are there crops that are more conducive to the climates within which we live that can still sustain our economies while using less water? How much do we as individuals consume and can we consume less?  Are there more efficient ways to deliver the water we need for the end uses we’ve identified, even if the immediate bottom line may be less profitable to a corporation or business?  How do we weigh the environmental costs of these decisions, not only the immediate cost but the cost for generations to come? 

Following the completion of my research and essay on water and sustainability, I was assigned a much more daunting task of analyzing and comparing the water laws of the various governmental entities within the entire Columbia River Basin, (four states, numerous tribes, British Columbia) against the backdrop of federal law, to ascertain how these states address water conservation and efficiency and whether they incorporate a “soft path” approach to water management.  Needless to say this was a huge undertaking and at times I felt as though I was drowning in the abyss.  Nonetheless, by focusing on segments and small chunks, I managed to complete the research and analysis of all of Idaho’s water laws and policy, and most of Washington’s water laws and policies, compare the two, and write the beginnings of a white paper on this topic.  Although challenging, this project was extremely rewarding.  I believe I learned more about water law in just a few short months, than any young attorney practicing in this area can hope to learn in a year.  I attended a local watershed planning meeting in the Spokane River watershed area and gained some insight into the mechanics and people involved in the watershed planning process.  I learned about the challenges watershed planning units face with the numerous competing interests they must attempt to satisfy and the role of politics in that process.  I attended a tribal workshop at which tribal representatives gathered to discuss and learn how to protect their interests and cultural values in the water that runs through their tribal lands.  I met with representatives of the Washington Water Trust and local governmental officials to explore possible ways instream flows can be increased and maintained in various stretches of the Spokane River.  Participating in these activities coupled with the research I was conducting brought to life the complexity of water use and management and the significant challenges we face as a community, society and world population. 

I read treatises and commentaries on western water law, the historical development of water law, the prior appropriation doctrine, and commentary questioning the effectiveness of that doctrine in meeting the changing needs of our modern society. I learned that while the prior appropriation doctrine is quite flexible in its definition of “beneficial use” and therefore allows for changing societal values, these changing values, have placed increased demands upon the finite resource.  I read commentary after commentary, about how the “first in time, first in right” and “use it or lose it” concepts of the prior appropriation doctrine may actually be barriers to the efficient use of water, a fundamental principle of the prior appropriation doctrine.  I learned that under the prior appropriation doctrine, our water codes which were developed and adopted based upon that doctrine, and case law which has interpreted and sought to enforce the doctrine, these competing needs may not be protected or met.  While Washington and other western states recognize aesthetics, recreational and other instream uses as beneficial uses for which appropriation is available, little can be done to protect these “newer” values since much of the water in Washington and Idaho is already appropriated and any new rights that may be available would nonetheless be junior to more senior rights for different competing interests (agriculture, industry and municipal).  These are complex issues our policymakers will continue to face. 

Furthermore, the framework within which water laws are adopted and carried out can create inefficiencies and further barriers to water management.  Not only are there transboundary issues, but there are federal laws, state laws and agencies that may have competing interests and obligations.  Water quality issues can affect water quantity and vice versa, yet each have traditionally been regulated in isolation of the other.  Likewise, we now have a much greater understanding of the interaction between groundwater and surface water and know that the two are quite frequently inextricably linked and one cannot be managed without considering the impact upon the other.  The agencies within state and local governments have often been charged with carrying out and managing these types of water issues in isolation of one another.  These agencies may be the state’s environmental quality agency, or water resources agency or both.  In Washington the Department of Ecology is charged with both water quality and water resource management.  However in Idaho water quality is managed by Idaho’s department of ecology while water resources are managed by the Idaho Department of Water Resources.  And within each agency there may be divisions that are charged with particular aspects of water law, such as irrigation efficiencies, watershed planning, etc.  Washington has attempted to address this problem through its Watershed Planning Act which requires that lead agencies consult with other agencies that may be affected by the planning process and communicate with the local planning unit.  Idaho has attempted to address this issue by the adoption of a Comprehensive Water Plan.  However, both efforts have provided mixed results in achieving their goals.  Nonetheless, both are steps forward to a more integrated approach to water management that recognizes the need to look at the larger picture while also involving local citizens in the process. 

As I tried to make sense of the various laws, policies, regulation, case law, and the interaction of the various agencies, I realized the value of creating some sort of clearinghouse where researchers, policymakers and lawyers could come to gain a bird’s eye view of how these issue are being handled in various areas of the basin, which was one of the primary goals of this paper.  By examining how different states within the region are addressing water policy in their state, tribe or nation, perhaps policy makers can work together on a more collaborative and regional scale to adopt policies that are beneficial to the entire region, rather than focusing only upon their particular state, county or city.  Such a vision may seem farfetched and impossible to achieve, given each nation, state, tribe, county, city and individual’s interest in survival and meeting the individual’s needs.  However, it is a vision worth consideration given the importance of this resource to our continued existence. 

During the course of this internship I found myself returning to the sea of unanswered questions I encountered with my first assignment.  How do we define the best use for water, and who gets to define what that use is? How do we decide how much water is really necessary for that particular use and when a use becomes wasteful?  Who decides that?  As a society, and as individuals living within this society, are willing to make the difficult choices we may be forced to make with global warming and changing weather patterns?  Are we willing to invest in alternative approaches to water policy?  Perhaps these are all questions environmental lawyers have struggled with since time immemorial.  Perhaps this is what draws lawyers to this particular practice area.  As a law student only beginning to explore this area of the law, I had no idea that water law, or environmental law in general, could be so complex and loaded with so many legal, moral and philosophical challenges.  While I felt at times I was drowning in uncertainty, and I certainly don’t have all of the answers, I did gain an appreciation and respect for this area of the law, and the challenges we all face in answering these difficult questions.  At times reaching the other shore seems to be much too difficult.  But as with most things in life, it is with small steps, or perhaps small strokes, that we are able to achieve great things. 

As lawyers, our job is not just to advocate, but to teach and counsel.  Perhaps by taking what we know about water law and what works and doesn’t work given our present and future values, we can help policymakers and legislatures make educated and reasoned decisions.  Only then can we help to insure that access to what truly may be basic human right, is available to future generations.  Whether our passion lies with protecting indigents, insuring a criminal defendant gets an adequate defense, helping the average citizen right the wrongs of others, or insuring future generations experience the same rights and privileges we have, isn’t that ultimately why many of us pursued a career in this noble profession in the first place?  This internship gave me the opportunity to experience first hand the importance of even the most mundane tasks, and exposed me to an area of the law I can and will embrace and for which I can be passionate.  I’m grateful to have been given that opportunity and look forward to pursuing this fascinating and rewarding area of the law.