Water Dispute Resolution in the West: Process Elements for the Modern Era in Basin-Wide Problem Solving

By Cosens, Barbara A. | Environmental Law, Fall 2003 | Go to article overview

Water Dispute Resolution in the West: Process Elements for the Modern Era in Basin-Wide Problem Solving


Cosens, Barbara A., Environmental Law


I.   INTRODUCTION
II.  WHY NEGOTIATE?
     A. The Problems
        1. The Milk River Basin, Montana
        2. The Truckee River Basin, California and Nevada
        3. The West
     B. The Approach
        1. The Inadequacy of Litigation
           a. Multiple Jurisdictions
           b. Existing Law Versus Changing Needs and Values
        2. Handling Complex Facts
        3. Broad Participation
        4. Arguments Against Negotiation
           a. No Precedent
           b. Underrepresentation of the Underprivileged
           c. Hard Choices
III. THE PROCESS OF NEGOTIATION: A FRAMEWORK FOR EVALUATION
     A. Defining the Elements
     B. Efficient Process
        1. Less Duplication of Data--Less Money
        2. Less Adversity--Less Time
           C. Fair Process
        1. Water Interests
        2. Basin Community
        3. Public Accountability
     D. Durable Outcome
        1. A Comprehensive Solution
        2. Equitable Distribution of Use of the Water Resource
           a. Intragenerational Equity
           b. Intergenerational Equity: Sustainable Use
        3. Ease of Implementation
           a. Steps to Finalization
           b. Simple, Flexible Administration
           c. Funding
           d. Future Dispute Resolution
     E. An Efficient and Fair Process Leading to a Durable Solution
IV.  APPLICATION OF AN EFFICIENT AND FAIR PROCESS AND A DURABLE SOLUTION
     A. The Milk River Basin
        1. Efficiency
        2. Fairness
           a. Water Interests
           b. Basin Community Interests
           c. Public Accountability
        3. Durability of the Outcome
           a. Comprehensiveness
           b. Equitable Distribution of Water Use Benefits
           c. Ease of Implementation
     B. The Truckee River Basin
        1. Efficiency
        2. Fairness
           a. Water Interests
           b. Basin Community Interests
           c. Public Accountability
        3. Durability of the Outcome
           a. Comprehensiveness
           b. Equitable Distribution of the Benefits
           c. Ease of Implementation
V.   RECOMMENDATIONS FOR A PROCESS FOR BASIN-WIDE
     WATER DISPUTE RESOLUTION
     A. The Hammer
     B. Public Accountability
        1. National Standards
        2. Reform of the Federal Process
        3. Political Leadership
     C. Equitable Distribution of Benefits
     D. Paying for Solutions
VI. CONCLUSION

I. INTRODUCTION

The allocation, management, and development of water in the West are dynamic. Yet the basic law governing allocation of western water has not changed substantially in over one hundred years, and is steeped in archaic concepts fashioned to address situations no longer relevant. (1) Why this dichotomy between reality and the law? In short, the resource itself, our demands on it, and our view of its value are changing at a rate that outpaces the law's ability to' adapt. Supply fluctuates on both a seasonal and a long-term basis. Estimates indicate that 1.2 billion people globally experience a shortage of potable water, and given current population trends that number will only increase. (2) Many Indian reservations in the United States, like the developing world, lack potable water. (3) In the West, growing urban demand, recent recognition of tribal rights, and needs for critical habitat place increasing strain on this scarce resource. (4)

To meet these needs in the face of growing concern with the cost of water development on the integrity of ecosystems and the federal pocketbook, the focus in water policy both globally and in the West has moved away from the twentieth century emphasis on water development and toward improvements in management and efficiency. (5) Yet many of these efforts in the western United States run headlong into the archaic law governing water allocation. Western water policy makers and practitioners find themselves in a constant struggle to introduce sufficient flexibility into the law to address changes in supply, demand, and values. …

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