By Douglas MacDougal and Dustin Till, Marten Law PLLC
Excerpt: 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. This is particularly true in the arid west, but also in the plains states and many other parts of the country. 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. This article details some of the difficult trade-offs that decreased flows will require to be made. History Is No Guide to the Future of Water RightsMost agencies are accustomed to dealing with historical data over a "period of record" which is used as a basis for analysis and development of agency responses. It is hard to think of a single area involving hydrology or fisheries biology where the record of past flows in rivers and streams is not relevant in some way. But the climate context from which the past record was obtained is changing. Hence the practice of using a period of historical record to evaluate and justify future agency actions must called into question. Indeed, the International Panel on Climate Change (IPCC) has warned that past hydrological data is an unreliable predictor of future conditions for purposes of water management decisions.
About the Author(s)Douglas MacDougal has over 30 years of experience in water rights, natural resources, and real estate law. His water-related experience includes representing clients in water rights, permitting and regulatory matters, and natural resource policy issues. Doug has been lead counsel on a number of complex water negotiations in Oregon water basins, involving federal, tribal, environmental, and private party interests. He has substantial experience in contested water cases involving water right transfers, stream and groundwater hydrology, and native rights, and has been involved in the ongoing Klamath Adjudication. He frequently consults on individual, basin, and watershed issues involving water rights, the Clean Water Act, endangered species, dams, and hydropower operations. He also has been heavily engaged in various ESA Section 7 consultations, and has undertaken a variety of due diligence assignments involving water, natural resource, and real estate issues in large multi-party transactions. His work emphasizes representation of ports, irrigation water users, ranches, and municipalities.Doug often plays a lead role in multidisciplinary projects including consultants, lawyers, and other parties. He is skilled in resolving difficult issues and experienced in finding pathways to solutions and, using his technical science background, able to understand and comment on scientific reports related to client projects.
Doug is listed in The Best Lawyers in America and is named one of "Portland's Best Lawyers" in water law by Portland Monthly.
As a lawyer with the Marten Law PLLC, Dustin Till practices environmental and land use litigation with a special focus on climate change issues, permitting, and environmental review in the Pacific Northwest. Dustin represents clients in Washington, Oregon, Idaho and Alaska on a broad range of environmental matters, including permitting and energy infrastructure siting. Dustin shares his climate change expertise on behalf of Marten Law writing ongoing articles for LexisNexis' Environmental Law and Climate Change Center.Dustin has appeared before the Eighth Circuit Court of Appeals, federal district court and the Washington State Court of Appeals.
Marten Law PLLC is an environmental law firm advising companies and public agencies on some of the most challenging aspects of environmental, land use and natural resource legal matters. With experience in nearly every aspect of environmental law, the firm strives to help clients navigate the maze of federal, state, and local regulations in order to resolve disputes and grow their business. Marten Law is a leading legal expert on climate change policy, lending content and ongoing commentary to LexisNexis' Environmental Law and Climate Change Center.
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