William L. Andreen

Climate Change and the Puget Sound: Building the Legal Framework for Adaptation

The scope of climate change impacts is expected to be extraordinary, touching every ecosystem on the planet and affecting human interactions with the natural and built environment. From increased surface and water temperatures to sea level rise and more frequent extreme weather events, climate change promises vast and profound alterations to our world. Indeed, scientists predict continued climate change impacts regardless of any present or future mitigation efforts due to the long-lived nature of greenhouse gases emitted over the last century. The need to adapt to this new future is crucial. Adaptation may take a variety of forms, from implementing certain natural resources management strategies to applying principles of water law to mimic the natural water cycle. The goal of adaptation efforts is to lessen the magnitude of these impacts on humans and the natural environment through proactive and planned actions. The longer we wait to adopt a framework and laws for adapting to climate change, the more costly and painful the process will become.This publication identifies both foundational principles and specific strategies for climate change adaptation across the Puget Sound Basin. The projected impacts themselves of climate change in the region were well studied in a landmark 2009 report by the state-commissioned Climate Impacts Group. This publication analyzes adaptation options within the existing legal and regulatory framework in Washington. Recognizing the economic and political realities may not lead to new legislation, the recommendations focus on how existing laws can be applied and made more robust to include climate change adaptation.

Water Law and the Search for Sustainability: A Comparative Analysis

Domestic water law regimes all around the world face a common challenge: how to allocate freshwater resources in a fair, efficient, and sustainable way. Agriculture, industry, and municipalities have traditionally competed for this increasingly limited resource. The legal structures that were devised to meet those critical economic and social uses, however, ignored another use, a non-consumptive use that until recently was not well understood and had relatively few champions in the political or legal arena. The environment — including adequate stream flows and healthy ecological processes — is the use that our domestic water law regimes have typically overlooked since these legal systems were designed, in large measure, to regard water as a commodity for exclusive human use and consumption. As a result of this myopic approach to the use of a natural resource, many rivers and streams bear little resemblance today to the waters they once were. Agricultural interests, industry, municipalities, and other water managers have manipulated and degraded our freshwater resources in relentless fashion, all facilitated by domestic water law regimes. Meanwhile, little or no attention was paid to the adverse environmental effect of reduced stream flows or to the value of the ecological services that well-functioning freshwater systems provide. After so many years and the creation of so many economic and social expectations predicated upon prior practice, change is difficult. Nevertheless, a number of legal systems have attempted, to one extent or another, to integrate environmental concerns into their legal regimes for allocating water. This chapter, from the Water Resources Planning and Management book published by the Cambridge University Press, explores the way in which three nations have done so: the United States, South Africa, and Australia. It also examines the failure of a pure market approach in Chile, which made water into a complete commodity to the exclusion of ecological considerations.

Federalism, Delegated Permitting, and Enforcement

A common policy question confronting federal systems is how best to apportion environmental regulatory authority between the federal government and states. While that power could theoretically be committed exclusively to one level of government, a common approach is a system of shared regulatory authority, often referred to as cooperative federalism. That term can apply to a wide variety of arrangements. One example would be a predominantly state-based system in which federal authority is limited to narrowly delineated areas, providing technical or financial support, or publishing non-binding guidelines to encourage harmonization. Another “classical” form would encompass centrally enacted or promulgated standards, with permitting and enforcement left entirely to state authority. A more dynamic approach recognizes the strengths in a system in which authority is more closely intertwined and overlapping rather than kept within largely separate spheres.This chapter compares federal systems utilizing approaches that span the spectrum from classical to more dynamic, with a focus on regulation of water pollution as the organizing mechanism for exploring different forms of cooperative federalism.

Delegated Federalism versus Devolution: Some Insights from the History of Water Pollution Control

This paper examines the claim that state and local governments were beginning, prior to the enactment of the Clean Water Act in 1972, to make significant progress in the fight against water pollution. Based on this premise, some have argued that there is good reason to be skeptical about the necessity for continued federal involvement in water pollution control. At their broadest, such scholars use this revisionist history to question other federal environmental statutes’ structures as well. The implication of this argument is that the devolution of regulatory authority to the states would not produce lower levels of environmental protection. Thus our present approach to water pollution control — delegated program federalism, a form of cooperative federalism with federal regulatory floors preempting any more lax state regulation, and federal oversight of state delegated programs — is really not necessary from a practical point of view and can be discarded without producing substantial environmental harm. After setting forth the Clean Water Act’s approach to delegated federalism, the paper discusses the flawed nature of the data upon which this claim is made. The experience of the 1960s simply does not support the argument in favor of devolution. This does not mean that every state was retrograde in its protection of water quality. The paper, therefore, will also look at the progressive approach taken by some states, while also focusing upon the action of the federal government during the 1960s to improve water quality. Nevertheless, the best evidence we have indicates that water quality was not improving nationwide before the enactment of the Clean Water Act. In contrast to that level of performance, the Clean Water Act has produced considerable progress, progress, however, which would surely be jeopardized should the nation revert to the regulatory paradigm of the 1960s. The story reveals substantial benefits from federal regulation within a structure that preserves room for state participation, creativity, and even greater stringency.