A Next, Big Step for the West: Using Model Legislation to Create Water-Climate Elements in Local Comprehensive Plans
University of Montana - Alexander Blewett III School of Law
March 11, 2013
3 Wash. J. Envtl. L. & Pol'y 1 (Spring 2013)
There is an emerging recognition that water law and land use law are inextricably entwined. While the legal fields of water and land use have been historically separated, we are now witnessing early, important efforts to join water supply and land use planning through assured supply laws that more strongly demand adequate water availability before development is approved. Although these early efforts began taking shape before climate change became the prevailing conversation, the reality of climate change makes the convergence of water-land use planning all the more critical. Climate change poses profound impacts on local water supply and land use, and land use, in turn, remains one of the primary human drivers of climate change. This reality calls for a third planning connection that links water supply-land use planning with climate planning.
While this need is broadly applicable throughout the United States, it holds particularly true in the West, where population pressures continue to strain already over-claimed water supplies that are further imperiled by climate changes. The U.S. Census Bureau forecasts that western states will experience a nearly 46% population increase between 2000 and 2030, the largest in the nation. Unlike in the past, the West can no longer rely on massive federal water projects to back-stop increasing water demands. The West also grapples with the unchecked use of exempt wells that fuel housing development without undergoing water rights review ― “water management’s Achilles’ heel.” And aside from the sheer practical necessity of providing people with adequate water, there are other legal drivers for linking water-land use-climate: Endangered Species Act (ESA) protections for aquatic species in climate-stressed waters, federal mandates to address climate change during water project planning, and tribes exerting more control over shared waters through their aboriginal and reserved water rights.
Early efforts in assured supply regulation, while important, are not designed to address the full ambit of these issues. They are often limited to specific large development proposals, specific water supply sources, or specific urbanized areas. Standing alone, these laws will not “ensure the broader and deeper coordination between water and land use planning needed today.” For this reason, commentators have noted the need to “merge assured supply laws into larger legislative and planning proposals” to better achieve sustainability for communities.
Local comprehensive planning presents itself as an existing and indispensable tool for unifying these important planning efforts. Local governments are not only the primary regulators of land use, they are also at the front line of regulating a myriad of environmental concerns that federal and state laws do not reach. And while not the principal regulators of water, local governments are integral partners in planning and implementing water-related initiatives alongside tribal, state, federal, and private partners. Comprised of approximately 4,700 local government units and 2,700 natural resource special districts, the West’s potential for broad-based action is greatly increased if water and climate become an essential, required element of local comprehensive planning. Unfortunately, current comprehensive planning statutes do not reflect today’s water and climate realities. These enabling statutes typically lump water under broader elements such as infrastructure or natural resources and generally do not require climate planning at all.
This article thus calls for a new, freestanding “water-climate element” in comprehensive planning that better prepares our communities for the important task of managing water in wise, resilient, and collaborative ways. Model enabling legislation can facilitate the use of this new element by providing states with a uniform template for adoption. In a second, related article, the Land Use Clinic at the University of Montana School of Law will provide the actual text for such model legislation, including annotated comments and guidance for legislative bodies.
Part I of this article summarizes the first legal steps taken in the area of water-land use planning, predominantly through assured supply laws. This first level of integration alone is no small task since it requires a realignment of historically separated legal spheres in which water law is the domain of the state and land use is the domain of the local government. Yet there is still more to be done. Part II then argues for a further, expanded linkage to climate planning, and discusses the innovate work that King County, Washington has generated in this area. Part III, the centerpiece of the article, maintains that model legislation for a “water-climate” element in comprehensive planning is a next, important step in advancing the West’s response to the climate change. It then describes the key provisions of such model legislation. These key provisions are informed by best practices in the fields of water, land use, and climate planning, along with recent, on-the-ground examples such as those in Washington’s Yakima River Basin, Walla Walla River Basin, and Tri-Cities region.
The article concludes that if states require local water-climate planning, there will be improved community preparedness and more robust inter-jurisdictional cooperation regarding shared water resources. Model legislation can also foster a level of uniformity among local responses to water-climate issues while also affording flexibility to tailor planning to the unique water needs of each region. Thus, a water-climate element is a practical and critical next step to integrating water, land use, and climate planning in the West.
Number of Pages in PDF File: 59
Keywords: climate adaptation, comprehensive planning, water supply
JEL Classification: K32, R14, R52, H70, Q24, R11
Date posted: March 13, 2013 ; Last revised: September 17, 2013