Advancing Freshwater Conservation in the Context of Energy and Climate Policy: Assessing Progress and Identifying Challenges in the Western United States

The article uses the Oregon Water Code as a case study to delve into the details of freshwater conservation in the context of specific statutory provisions. Despite the use of the Oregon Water Code as the case study, the lessons and challenges discussed in the article are applicable to any state that follows the prior appropriation doctrine. In Oregon, like all western states, a combination of statutes, administrative rules, agency policies, and case law make up the framework for water management. Accordingly, the article isolates and examines provisions of the Oregon Water Code that impact freshwater conservation and discusses how the legislature, state administrative agencies, and the courts have interpreted these laws. Section I details the basic administrative system governing new appropriations for surface and groundwater rights as well as transfers. Section II addresses the so-called “public interest review” in Oregon water law that is designed to address many of the concerns and issues around freshwater conservation. Section III covers enforcement of water rights including principles of beneficial use, forfeiture, and waste. Section IV analyzes the specific tools available to establish legally protected instream water rights in Oregon. Section V delves specifically into groundwater management in Oregon. Section VI explores various water-management mechanisms that impact the use of Oregon’s water resources. Section VII is devoted to hydroelectric power and its relationship to freshwater conservation. This article provides a resource for those working on the ground on these issues. After each detailed section, the article identifies the implications and discusses the challenges of existing law and emerging trends. The article only briefly touches on the significant role of the federal government. A more detailed discussion of the role of the federal government will be part of future work on this topic.