Marten Law: Climate Change Ushers in Era of Uncertainty for Water Resource Mgmt

Scientists are seeing more climate change impacts on water availability-particularly in those areas dependent upon glacial and snow meltwater for agriculture. As water becomes available at different times of the year (or grows more scarce), controversies over water allocation will grow more common. Water resource agencies will increasingly struggle with how to protect senior water rights, preserve agriculture and other economic activity, manage flood events, and provide instream flows for fish habitat and other ecological purposes. In this Analysis, Douglas MacDougal and Dustin Till detail some of the difficult trade-offs resulting from decreased flows. They write:

It is well established that agencies must take the environmental effects of climate change into account in their decision making. This is particularly true with respect to changes to hydrology attributable to climate change, such as the example given above in the Hood River basin. Failure to do so in the face of mounting evidence of the effects of climate change can lead to a conclusion that an agency's decisions are arbitrary and capricious.

     For example, the U.S. District Court for the Eastern District of California's decision in Natural Resources Defense Council v. Kempthorne [enhanced version available to lexis.com subscribers] is instructive. That case involved challenges to a determination under the Endangered Species Act (a biological opinion or BiOp) that the continued operation of federal and state water diversion projects in California would not jeopardize the continued existence of certain fish species or adversely modify their critical habitat.

     The court concluded that the evaluation, which was based on, among other things, 72 years of historic hydrological and meteorological records, was flawed because it assumed that neither hydrology nor climate would change.

     The court specifically rejected arguments by the defendant agencies that they properly declined to engage in "guesswork" about the impacts of climate change in light of the uncertainty of climate change predictions. The court acknowledged that "[w]hile the precise magnitude of [climate and hydrologic] changes remains uncertain, judgments about the likely range of impacts can and have been made." Thus, the fact that there may have been some uncertainty concerning the site-specific impacts of climate change did not absolve the agencies' failure to address climate change; climate change was an important aspect of the problem that required some analysis in the agencies' decision making.

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