Mitigating the Exercise of Water Rights and Water Use: A White Paper on Questions Judges May Consider

In recent years, the issue of water mitigation has arisen in many contexts — priority administration, interstate compact enforcement, fishery impacts, and the groundwater-surface water nexus. The Conveners of the Dividing the Waters Program requested that the Program’s Board of Advisors advise the judges in the Program regarding how to assess proposals to provide mitigation for the effects from the exercise of water rights. The Conveners thought that the Board of Advisors, coming from different states, would be able to advise the Program’s judicial officers as to common issues and standards for review of mitigation plans. The Board convened at The National Judicial College in February 2015 to discuss mitigation and arrived with papers reflecting the mitigation practices or developments in several western states. The Board ultimately decided to offer this overview paper of mitigation issues as a vehicle for identifying the questions that judges or other adjudicators may wish to consider in assessing the sufficiency of a proposed mitigation plan.