Adapting Water Law to Public Necessity: Reframing Climate Change Adaptation As Emergency Response and Preparedness

Abstract

As a result of both climate change and non-climate-change forces, fresh water supplies in many parts of the United States are approaching a state of crisis. This article suggests that both the law and public policy should embrace that reality. Specifically, this article argues that viewing climate change impacts on water supply as an ongoing emergency could provide a more productive framework for initiating and implementing adaptation strategies. Classifying climate change’s impacts on water supply as a real crisis allows adaptation planning to become a form of emergency preparedness - concrete measures designed to deal with existing problems - underscoring the fact that the impacts are only likely to become worse in many parts of the country. Moreover, reframing climate change adaptation in the water context as emergency preparedness could productively shift the focus of adaptation strategies to the survival of communities as functional communities - that is, as something more than the mere physical survival of individual humans. Such reframing would also allow recognition that communities are coupled socio-ecological systems, dependent on the surrounding natural resources - like water - and the ecosystem services that they provide. Reframing climate change impacts on water as an emergency, moreover, could provide needed flexibility both legally and politically. Legally, emergencies allow for the operation of the doctrine of public necessity, a common-law doctrine that may prove very useful in reallocating water rights, especially in times of significant drought. However, this article also argues that public necessity invokes a broader public policy regarding the relationship of individual rights and community well-being that should produce a politically powerful synergy in the context of adapting water law to climate change, given that water is already considered a semi-public natural resource.