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A legal and policy infrastructure -- referred to as a "law of the river" -- exists for every river basin in the U.S. an can be as important as natural processes in terms of managing the future of the resource. Because of the way that water law and policy have evolved in the U.S., this infrastructure involves a matrix of state and federal law that governs the choices that policymakers, end users, and agencies make. This "law of the river" provides the context in which decisions are made and not made. It also draws the boundaries within which decision makers believe they can operate. As a result, the law of the river and the policy choices that are faced can be interpreted as immovable or as constant in the larger decision-making dynamics of a river basin. Decision makers and stakeholders often claim definitiveness in terms of what the law can and cannot accomplish, and the legal questions are often presented as well settled and resolved. The law of the river, however, is as dynamic and active as the river itself, whether through the existing discretionary *1092 authority that the law has provided to those who are charged with implementing the law or ultimately through democracy's ability to change law based on the desires and needs of the public.

This paper explores the fundamental structure of state and federal law as it related to the Willamette River Basin in Oregon, which is a familiar story for many basins in the U.S. Part I describes an interdisciplinary research project that seeks to integrate law and policy change into a set of future hydrologic scenarios on a hundred-year time scale for the Willamette Basin -- the "Willamette Water 2100" project. Part II explains the value of integrating hydrologic modeling with law and policy on a basin scale. Part III begins to build a legal framework for both state and federal law and focuses on the particular pieces of those legal structures that are the most influential drivers for the management of water flow in the Willamette River. In addition, this part explores the inherent discretion and flexibility within existing law to help frame the conversation about what kinds of reasonable future scenarios can be explored for the basin. Part IV describes the process for building future flow scenarios for the Willamette River Basin using the inherent flexibilities in the existing legal infrastructure. Part V sets forth a set of preliminary conclusions and develops a set of research tasks that will drive the next stage of this work.


University of Kansas Law Review



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