Fighting to Cooperate: Litigation, Collaboration, and Water Management in the Upper Deschutes River Basin Public Deposited

http://ir.library.oregonstate.edu/concern/graduate_thesis_or_dissertations/vh53x1558

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  • Communities across the American West face new challenges in water management: historical management structures devised to prioritize economic uses, predominantly agriculture, are being tasked with adapting to address growing and changing populations, unaddressed species and ecosystem needs, and climatic changes. Scholars in the field of collaborative governance posit that collaborative processes may generate more innovative and flexible solutions better suited to resolving modern environmental problems, such as water management, than traditional regulatory approaches. However, there is a debate within this field about how collaboration and regulatory enforcement in the form of litigation may interact: does litigation destroy collaborative governance efforts or does litigation serve as a mechanism to facilitate collaboration? This thesis explores this question through a qualitative case study of the Upper Deschutes River Basin in Oregon, which provides an example of a community wrestling with the changing context of water management in the American West. Stakeholders, representing the diverse water interests in the basin, began two collaborative processes, the Upper Deschutes River Basin Study and the Deschutes Basin Habitat Conservation Plan, to lay the foundation for a new water management regime to address this changing context. However, a participant in these processes was concerned that they were not progressing and filed a lawsuit under the citizen suit provision of the Endangered Species Act seeking to mandate immediate flow changes in the Upper Deschutes River to protect the federally threated Oregon spotted frog. The results of this research, derived from semi-structured interviews with participants in the processes and observation and document analysis techniques, reveal that in this case the litigation, while having negative effects, did not destroy the collaborative processes; rather the litigation served as a mechanism to facilitate the collaborative processes by increasing incentives for the powerful to commit to making change within the collaborative processes and creating an assurance mechanism for the weak that their interests will be met in the collaboratives. The results of this research also illustrate that while the litigation was seen to help facilitate the collaborative processes, ultimately collaboration is perceived as the best method for developing a new water management regime in the basin.
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