OK, so it’s been a while. It appears my last post was in July 2015. I would like to say I was out of contact that whole time–maybe a 57-week river trip–but I don’t have an excuse nearly that good. I did spend a fine four months in Alberta (at the University of Lethbridge), learning about water law and policy issues in a part of Canada that shares many water management challenges with the western U.S. And I have been spending a LOT of time thinking about reservoir operations in both countries; I will be writing more on that topic in this space, and if all goes well, it won’t take me another 13 months to do it.
One of the more notable moments of my past year was testifying before Congress. In what has become something of an annual event, the House Water, Power and Oceans Subcommittee (of the Natural Resources Committee) held a hearing to criticize a few different federal agencies for their actions regarding water in the West. The Subcommittee didn’t actually call any federal witnesses; instead, it invited testimony from local officials who were unhappy with some aspect of federal policy. I spoke at the invitation of the Minority side of the Subcommittee, just as I did at a remarkably similar hearing in 2013.
For the Subcommittee majority and its witnesses, a common theme of both hearings was that the Obama Administration is “overreaching” on water issues in the West. In their view, the feds are basically abusing their power, exceeding their authority over water at the expense of the states who rightfully have it, and trampling on the rights and interests of local entities and private users. They have pointed to a variety of actions taken by federal agencies from EPA to the Forest Service, insisting that federal bureaucrats are running amok. I must admit that I haven’t found their arguments convincing, but then, I don’t see “overreach” every time a federal agency involved in water takes an action that wasn’t requested by a state or a user.
My concern, in fact, has been the opposite: agencies often don’t fully use the authority they have to address environmental concerns or protect other public interests in water. This is true of government agencies at all levels, not just federal ones, although much of my writing has focused on the feds — primarily the Bureau of Reclamation. For a variety of legal, political, and institutional reasons, agencies involved in water have generally been more concerned with maintaining existing practices regarding water supply, flood control, and hydropower than with advancing environmental or recreational interests. There have certainly been exceptions to that general rule, but many of them have basically been forced by the application of the Endangered Species Act.
In my Subcommittee testimony this year — HouseWPtestimony16 — I argued that Reclamation could and should do more under its existing authorities. I identified three more-or-less specific steps it could take under current law, including the SECURE Water Act and the Drought Relief Act. The agency is indeed taking some positive measures, including a “Reservoir Operations Pilot Initiative” to assess potential revisions to the operating documents for its projects. It is still early days for this initiative, but it could eventually result in Reclamation being somewhat more flexible and forward-looking in how it operates its reservoirs. That would be a positive and important move, because climate is not the only thing in the West that is changing, and there is more to environmental restoration than endangered species.
westernriverlaw 