Pergamon

The Social Science Journal 38 (2001) 527–542

The politics of water scarcity in the Western states

Sandra K. Davis*
Department of Political Science, Colorado State University, Fort Collins, CO, 80523, USA

Abstract
Water is a scarce and highly prized commodity in the arid Western states. Not surprisingly, water
policy creation is very much a challenge for a number of reasons. Citizens hold multiple water values
such as economic development and the protection of wildlife which are often contradictory. State prior
appropriation laws are not easily reconciled with federal reserve rights and the public trust doctrine.
There are multiple governmental and nongovernmental actors who work to influence and implement
policy in a decentralized political system. If actors lose a policy battle in one decisionmaking arena
(such as a legislature), they often try to influence policy at another venue (a court, Congress or an
agency). Policymaking involves water issues that are dynamic over time. Furthermore, there are
several types of water policy (distributive, allocative, redistributive and cooperative) that vary
according to who pays costs and receives benefits, the level of conflict, the openness of decision-
making to interested parties, and the level of government which dominates. Long ago, Mark Twain
was correct when he said “Whiskey’s for drinking, water’s for fighting about.” © 2001 Elsevier
Science Inc. All rights reserved.

1. Introduction

In the arid Western states, water has always been an important resource. For over 100
years, federal and state governments and local water users have worked to provide water to
agriculture, industry and residents. Since 1902 the Bureau of Reclamation alone has spent
$21.8 billion to construct 133 water projects (Western Water Policy Review, 1998, p. 2–9).
The tremendous population growth of Western states has created increased demands for
water. As the Western Water Policy Review Advisory Commission (1998, p. 2–13) com-
mented, “The west’s water is made to work incredibly hard.”
Water is often used as a tool of economic development. Settlers needed dependable water

* Tel.: ⫹1-970-491-5281; fax: ⫹1-970-491-2490.

E-mail address: skdavis@lamar.colostate.edu (S.K. Davis).

0362-3319/01/$ – see front matter © 2001 Elsevier Science Inc. All rights reserved.
PII: S 0 3 6 2 - 3 3 1 9 ( 0 1 ) 0 0 1 4 8 - 3
528 S.K. Davis / The Social Science Journal 38 (2001) 527–542

sources for crops, mining and other economic activities. Water laws and water delivery
systems were developed to satisfy this demand. The resulting prior appropriation doctrine
and water projects reflect the values and needs of this earlier era. Today farmers, cities and
other interests still depend on readily available water supplies. Yet critics worry that our
current water management system has damaged the environment, failed to provide water to
Indian and other minority populations and ignored noneconomic purposes to which water
might be put. Serious challenges to existing water policy have come from many sources. In
order to better understand the demands made in this policy area, this paper will examine the
competing water values held by citizens. This paper also examines the principles and biases
of water law and the different types of water policymaking.1

2. Competing water values

Water policy is often a contentious area because water users hold conflicting values that
are not easily reconciled. A brief review of these values and countervailing arguments
follows.

2.1. Economic development

Westerners depend on water for irrigation, mining, industrial development, and domestic
consumption (Bates et al, 1992, p. 30 – 40; Feldman, 1991, p. 1). Water is important because
it supports current economic activities and allows for future economic expansion. Further-
more, dominating nature is often perceived as necessary in order to “pave the way” for
prosperity. While few would disagree that water has fueled development, critics question
whether the resulting environmental changes have been worth the costs.

2.2. Individualism

Westerners like to pride themselves that they settled a frontier relying upon their indi-
vidual hard work at tasks such as clearing fields and building water delivery systems. While
this is partially true, it is also the case that they relied heavily upon federally constructed and
financed water projects. Nonetheless, the myth of individualism remains the dominant
explanation of Western settlement (Resiner, 1993, p. 51).

2.3. Efficiency

Beginning with the conservation movement, efficient use of water resources has been an
important principle (even though many would argue that actual water use is inefficient).
Science and rational planning were seen as the vehicles that would produce efficient water
delivery and use (Feldman, 1991, p. 17; Waller, 1995, p. 158). Critics argue that in practice
government responded with projects to satisfy political demands rather than with projects
that met efficiency criteria (Resiner, 1993, p. 167– 68).
 S.K. Davis / The Social Science Journal 38 (2001) 527–542 529

2.4. Traditional use

Historical water use patterns provide legitimacy for continuing patterns of water use
(Feldman, 1991, p. 218). Critics argue that wildlife, recreation, Indians and protection of
aesthetic instream flows have been slighted by current water allocation decisions. Yet people
have made decisions on the basis of existing water rights and changes in policy that negate
water rights would be perceived by many as threatening and illegitimate.

2.5. Equity

Under the current system, those with the most senior water rights are entitled to divert and
use their share of water regardless of the need of other parties. This is contrary to an equity
argument holding that since so many humans and other species need water, it should be
shared. Current water management disadvantages Indians, Hispanics, environmentalists,
future generations and nonhuman species (Bates, 1993, p. 183; Feldman, 1991, p. 1).

2.6. Ecology

Water is an important element in a complex and interdependent natural system. In this

holistic system it is imperative that protection be provided for flora and fauna (Feldman,
1992, p. 1; Bates et al, 1993, p. 18). Supporters of existing water rights argue that people
should use water according to their legal water rights. If citizens decide to provide water for
nonhuman species, this should be done within the existing water laws.

2.7. Spiritual values

Water can have special meaning to communities. Pueblo Indians, for example, say they
came from water (Bates et al, 1993, p. 123). Having access to water can provide communities
with a sense of hope and justice (Bates et al, 1993, p. 158). Traditional water users either fail
to comprehend or reject the spiritual notion of “springing from” water. They do, however,
accept that water brings hope and justice; however, a traditionalist’s sense of justice is the
entitlement that accrues from working within state water law.
Not all values can be made compatible with each other. Walton argues that the larger
Western culture integrated contradictory forces: state sponsorship and risk-taking pioneers;
indigenous tribes and emigrating settlers; a dearth of material comforts and dreams of
prosperity; civil society and the ethic of individualism (Walton, 1992, p. 309). The contra-
dictions of water values and Western culture create conflict in water policy decisionmaking.
To better understand this conflict, Western water law, which embodies some of these values
much more so than others, will now be examined.

3. Western water law

States exercise the primary authority of formulating and implementing water laws. Congress
could override state laws but with the exception of water pollution, water projects and Indian
water rights, it seldom chooses to do so (Bates, et al 1992, p. 144 –149). Left largely to their own
530 S.K. Davis / The Social Science Journal 38 (2001) 527–542

devices, nine Western states have adopted the prior appropriations doctrine while three have a
hybrid mixture of water laws.2 Under prior appropriation, those who first put water to beneficial
use have the right to divert and use it. Those with the earliest water rights, senior rights, may use
the water before anyone with a junior right has access to the water. In dry years those with a junior
right may have to do without water (Bates et al, 1992, p. 142; Getches, 1997, p. 101). Failure to
divert water may result in a forfeiture of the water right. Prior appropriation is a doctrine well
suited to the 19th century when government policy was to encourage the settlement of Western
territories (Bates et al, 1992, p. 150) because it allowed water to be diverted and moved to
locations away from rivers and lakes that were being developed.
Under prior appropriation, individuals and organizations do not legally own water. Water is a
public resource administered by the states for the public benefit (Getches, 1992, p. 82) despite the
fact that many water rights holders would contend that they own their water. Individuals and
organizations with a water right do have a property right, which varies from state to state, that
entitles them to divert water for a useful purpose (Getches, 1992, p. 83). State officials enforce
the law to insure that appropriators do not take water out of priority (Getches, 1992, p. 103).
Water may be transferred, subject to state law.3
The issue of using water for the public benefit is murky. Although 19th century state
constitutions said that water was a “ . . . common resource to be administered for the benefit
of society” (Getches, 1992, p. 84), states have done little to enforce the societal interest
provision (Bates et al, 1993, p. 155). This societal interest is usually defined in terms of
protecting communities from which the water emanates or providing enough water in rivers
(instream flow) or lakes for plant and animal habitat, recreation or aesthetic appreciation.
States have begun allowing local communities to have input into decisions that would
transfer water out of the community although there is no clearly established protection for
community stability. Most states now have the ability to require that the public interest be
considered in new appropriation decisions; a public interest review is part of the transfer
decision making process in California, Idaho, Montana and Wyoming (Western Water Policy
Review, 1998, p. 3-58 and 3-61).
In addition, the public trust doctrine can be used to protect societal interest in water
decisions. The public trust doctrine requires that both environmental and consumptive uses
of water be considered.4 The doctrine was recently applied to water decisions when the U.S.
Supreme Court ruled (Audubon Society v. Superior Court, 1983) that Los Angeles’ diversion
of water from Mono Lake could be limited to protect citizens’ right to enjoy water quantity
and quality in the lake (Western Water Policy Review, 1998, p. 3-63 and 3-64). The decision
recognized both the rights of the Los Angeles and the lake to water (Hart, 1996, p. 102). At
present, neither public interest nor public trust provisions are firmly established in state water
law. States have substantial latitude to interpret their obligation to societal interest (Western
Water Policy Review, 1998, p. 3-64).

4. Types of water policymaking

To speak of water policy as one unified area is misleading. There are actually several types
of water policy.5 First, there is distributive policy which typically involves delivery of water
to a particular locality. Allocative policy, the second area, is concerned with water rights.
 S.K. Davis / The Social Science Journal 38 (2001) 527–542 531

Third, in redistributive policy challengers try to change the distribution of water rights and/or
water delivery. Finally, there is cooperative policy in which participants work together in
water policy. These types of water policy are characterized by different distributions of costs,
benefits and predominant political actors. Each is now examined.

4.1. Distributive water policy: quintessential porkbarrel politics

In distributive water politics a relatively small group of people in a locality receive water
from a project paid for by U.S. taxpayers. In other words, a few receive concentrated benefits
that are paid by a much larger segment of society (Waller, 1995, p. 159). Since this involves
the construction and funding of complex water projects, the federal government with its
financial resources and expertise plays the premier role. Federal legislators and agencies have
found it in their own interests to be responsive to the demands of local water users.

4.1.1. Distributive water politics

The primary impetus to construct water projects came from farmers and their local water
districts who wanted irrigation water for their crops (Western Water Policy Review, 1998,
p. 5-5). These local water organizations have a variety of shapes and sizes but all focus on
acquiring water rights and constructing water delivery systems.6 When Western states were
being settled, private for-profit ditch companies tried to develop water, depending on their
own capital. Many of these companies failed, some reorganizing as irrigation districts after
state constitutions exempted these public irrigation districts (also called conservancy, con-
servation, reclamation, water control or fresh water districts) from state property taxes.
Today the irrigation districts distribute about half of all water used in Western states. In
addition to providing water they also provide hydroelectric power, recreation facilities,
drainage, flood control, sanitation as well as water supplies for towns and industries
(Getches, 1997, p. 420 –23).
These agricultural organizations forged alliances with the Bureau of Reclamation, Army
Corp of Engineers and Western legislators to build water storage and delivery systems. The
main beneficiaries included proponents of economic growth and local water users while the
Army Corp and Bureau of Reclamation reaped congressional funding and the satisfaction of
engineering and building large edifices (Ingram, 1990, p. 20). Of course, not everyone
benefitted from porkbarrel projects. Those disadvantaged include environmentalists, Indian
tribes, some Hispanic communities, future generations and citizens who wanted the money
spent on other programs (Waller, 1995, p. 158 –59; Ingram, 1990, p. 11–12).
The era of big water project construction is generally thought to be over (Western Water
Policy Review, 1998, p. 2– 6) because 1) the best sites have already been built upon, 2)
recreational users want free flowing rivers, 3) there is less federal subsidization and 4)
environmentalists, sometimes using the Endangered Species Act, have fought large new
projects (Reisner, 1993, p. 510 –12; National Research Council, 1992, p. 25). Today the
focus is on construction of fewer and small water storage and delivery projects with
offstream water storage (Western Water Policy Review, 1998, p. 3–9). Dam removal has
made it on the agenda for political discussion (Western Water Policy Review, 1998, p. 3–53).
With growing populations, communities face pressures to provide domestic and industrial
532 S.K. Davis / The Social Science Journal 38 (2001) 527–542

water supplies with the result that irrigation water is being transferred to other uses (Western
Water Policy Review, 1998, p. 2–29), leading to the next topic of water allocation policy.

4.2. Allocative water policy: states in control

In the most typical allocative decision, an individual or group of individuals benefits when
given the right to use water. Those paying the costs are the larger political community which
must forego the opportunity costs of using the water. Most decisions are routinely made by
state administrators who follow water rights law. The level of conflict is generally low and
the process largely impermeable to those without water rights. An example is the process that
a citizen follows to receive permission to pump groundwater or divert water from a river.
There are, however, occasions when competition and conflict arise in allocative decisions.
This tends to occur when one large group competes for water with another large group.
Unless a compromise is found, conflict is high as one group benefits by winning the water
right as the other pays by losing the right to use it. Legal disputes between states over water
rights is an example of this type of allocative decision.

4.2.1. Allocative water politics

4.2.2. Water permits

States typically vest administrative authority in a state engineer or director of a water
department (Western Water Policy Review, 1998, p. 5-4). As head of a water agency, this
official has responsibility for the regulation and administration of water resources, including
applications for surface and groundwater rights, implementation of dam safety and flood
control programs, administration of instream flow programs, maintenance of water informa-
tion databases and representation of state interests in interstate river compacts (California
Dept. of Water Resources, 1998; Colorado’s Water Resources, 1998; Wyoming State
Engineer’s Office, 1998).
State officials have traditionally carried the responsibility for determining which individ-
uals and organizations had the right to use water (Western Water Policy Review, 1998, p.
5-4). In most states, a water right is acquired via an administrative process.7 A formal
application is made to the state engineer or administrative agency. The notice is published so
that objections are noted. An administrative agency holds a public hearing after which the
state engineer (or other official) evaluates the data on which the permit decision will be based
upon. The agency decides whether to issue the permit and this decision may be appealed to
the courts. After the requirements of the permit are met, the applicant obtains a water right
(Getches, 1997, p. 141– 43).
Colorado chose to use its judicial system to issue water permits and rights. Water users file
an application with a state water court. The applications are publicized so that those with
objections may file them. A court referee investigates the facts and decides whether to
approve the application. If the matter is complex, the referee asks the water judge to make
a ruling (Getches, 1997, p. 153).
Whether the permit is issued via an administrative or judicial process, the water permitting
process routinely allocates water rights in cases when unappropriated water is claimed or a
 S.K. Davis / The Social Science Journal 38 (2001) 527–542 533

water right is transferred to another person or organization who uses the water for the same
purpose. Increasingly, however, water in a state is fully appropriated and there are demands
to transfer water to different purposes, increasing the conflict over water. As a result, states
have responded by establishing new processes to transfer water that are discussed below in
the redistributive policy section.

4.2.3. Interstate allocation

The level of conflict rises when two or more states claim the right to water in a river that
flows within their boundaries. There are three mechanisms which can be used to settle
interstate disputes. First, Congress may apportion water among states although it has done so
only once in trying to settle a dispute between Arizona and California over the Colorado
River.8 One argument in favor of legislative apportionment is that Congress could require
sound economic and/or environmental mandates for river management (Thorson, 1994, p. 5).
Although the U.S. Supreme Court seems to favor legislative solutions (Getches, 1997, p. 402
and 415), legislators are reluctant, preferring to rely on local interests to work out a solution
(Thorson, 1994, p. 5). Second, despite Supreme Court reluctance, interstate litigation is the
most prevalent mechanism used to resolve water claims. These cases between states are ones
of original jurisdiction. The Court has developed a body of common law to settle these
disputes. Litigation is expensive and time consuming, often exacerbating mistrust among the
states. One additional criticism is that courts consider only existing harm, refusing to
adjudicate rights for future development that are necessary if long-term solutions are to be
found (Getches, 1997, p. 402– 04; Thorson, 1994, p. 4-5).
Finally, disputes can be resolved through interstate compacts. A compact is typically
created when Congress authorizes the negotiation of the compact, the parties work out an
acceptable solution and Congress then consents to the agreement (Getches, 1997, p. 408).
Most water compacts allocate water among states but compacts may also address water
pollution, flood control and comprehensive planning (Thorson, 1994, p. 123). Between 21
(Getches, 1997, p. 406) and 34 water compacts (Thorson, 1994, p. 122) have been negotiated
since the initial Colorado River compact in 1922. The advantages of a compact are their
ability to be tailored to individual river basins and to provide basin-wide planning that
includes management of the ecosystem. Critics of compacts complain that they are expensive
and time consuming to establish, create another level of government bureaucracy or fail to
provide basin-wide ecological planning (Thorson, 1994, p. 140 – 41).
The Colorado River, admittedly a river marked by a high level of conflict, demonstrates
that interstate allocation issues are not easily solved. Attempts to settle state water disputes
on this river have included all three mechanisms discussed above. First, the 1922 compact
was drawn up although Arizona refused to ratify it. Second, Congress stepped in with
legislative allocation to try to force a settlement upon the lower basin states. A court suit was
the third mechanism used to resolve the dispute. While this put the matter to rest for some
decades, it reignited again in the 1990s, with upper basin states complaining that California
was using more than its allotment of water. The latest stage in the Colorado River saga is a
2000 agreement that over the next 15 years California will reduce its withdrawal of water to
its 4.4 million acre feet entitlement (Greene, 2000). It is likely that future chapters in this
dispute remain to be written.
534 S.K. Davis / The Social Science Journal 38 (2001) 527–542

4.3. Redistributive water policy: “ . . . Water’s for fighting about”9

In redistributive policy, the benefits traditionally enjoyed by one group are transferred to
a different set of individuals. This transfer, not surprisingly, causes resentment and conflict
as those who will lose fight to maintain their rights. Although federal officials are more
involved, state and local actors also initiate and participate in redistributive policy. In some
redistributive policy decisions, a few lose benefits which are transferred to many. Those
losing the water often feel a personal sense of loss which results in very high levels of
conflict. The decision making process is permeable as many parties participate. Dam
decommissioning and transfers of water from the agricultural community to urban areas
illustrate this type of redistributive policy.
In other instances the benefits are transferred from a numerically larger group to a smaller
one. Many actors are involved, making this a permeable issue with high conflict since there
are more people to resent and work against their loss of benefits. Courts and legislatures are
likely to order such transfers when they feel an individual or group has been short-changed.
Examples include a takings dispute in which an individual must be compensated with tax
money for his/her inability to develop a wetland and a transfer of water to a tribe that had
been used by the Anglo community.

4.3.1. Redistributive water policy: from the minority to the majority

4.3.2. Urban water transfers

With most surface water fully appropriated, cities and environmentalists struggle to
acquire water to meet their needs. They may purchase water rights using the administrative
and judicial permitting process described above but states have found that the challenge of
providing water calls for additional measures. They have responded to demands for reallo-
cation with a variety of market based mechanisms to facilitate voluntary water transfers.
These mechanisms may involve either leases or purchases that may or may not encourage
conservation. In general they promote efficiency by facilitating the transfers of water to a use
with higher economic value. The challenge is to ensure that political and social values are
considered; for if the money is the only consideration in transfers, poorer and less politically
powerful communities (many of which are rural) may find themselves devastated by water
transfers (Western Water Policy Review, 1998, p. 3–22; National Research Council, 1992,
p. 35).

4.3.3. Transfers occur via a variety of mechanisms

First, water leases provide an opportunity for the existing water rights holder to tempo-
rarily lease water to a new user rather than to sell the permanent right. This can be
accomplished via existing water laws and institutions. Second, states may establish banks to
rent surplus water during a drought. Water banks allow a water rights holder to lease their
water without fearing forfeiture of the water that they are not putting to use. The water bank
also allows them to make a profit from their surplus water and meet the water needs of
another party. The state can also promote beneficial water use by setting criteria to determine
whose need for the rental water is greatest. Third, transfers of salvaged water may occur
 S.K. Davis / The Social Science Journal 38 (2001) 527–542 535

when a government or business pays for conservation improvements (often to irrigation

systems) in return for the right to use the resulting water savings. Finally, modification of
cropping practices may free up water for other uses. A farmer may temporarily or perma-
nently make water available by withdrawing irrigated land from production (crop fallowing)
or switching to a less water intensive crop (Western Water Policy Review, 1998, p. 3-22,
3-24 and 5-9; Natural Research Council, 1992, p. 30 and 32). These water transfer mecha-
nisms are attempts to dampen conflict over demand for increasingly scarce water resources.

4.3.4. Dam breaching

Dams are increasingly under attack as the following examples illustrate. First, the Sierra
Club wants to drain Lake Powell (although it would leave the Glen Canyon Dam standing).
Second, the Federal Energy Regulatory Commission refused to renew the license needed by
a privately owned Maine dam to produce hydroelectricity. Third, environmentalists argue for
the destruction of four large dams on the lower Snake River to protect salmon (Delong,
1998). Critics complain that dams lose their viability when they fill up with sedimentation;
dams also change river flows in ways that harm wetlands, fish and other wildlife (Western
Water Policy Review, 1998, p. 3–53).
Although there is currently a lot of talk about dam breaching, there is more smoke than
fire. Of the approximately 75,000 dams in the U.S., about 2 dozen have been removed in
recent months, with another 18 scheduled for demolition in 2000 (Howard, 2000, p. 4A).
Most of these dams are smaller dams whose owners have agreed to their removal (Ger-
stenzang, 1997).
Although serious consideration was given to removal of the four dams on the Snake, the
Clinton administrations decided to wait eight years before making a decision, waiting to see
if the salmon recovery programs will work (Howard, 2000, p. 4A). The discussion will likely
continue but wide scale destruction of dams is unlikely in the foreseeable future.

4.3.5. Environmental protection

The emphasis on protection of animals, plants and their habitat is one of the major changes
that occurred in the last quarter of the twentieth century, with the result that water policy is
now made on a more holistic basis. The change was spurred by passage of legislation that
has constrained the construction and operation of federal water projects. The National
Environmental Policy Act (NEPA) required that all federal projects be reviewed for envi-
ronmental damage which must be mitigated. The Wild and Scenic Rivers Act prohibits water
development on river segments receiving this designation. The Federal Energy Regulatory
Commission gives consideration to both wildlife and environmental protection and energy
development when issuing hydroelectric power licenses. The Endangered Species Act (ESA)
makes protection of species its only priority, derailing or modifying a project if it jeopardizes
a species or its habitat (Western Water Policy Review, 1998, p. 5–22). It should be noted that
although critics complained that ESA would prevent new water projects and render existing
projects inefficient, ESA review has been less draconian than expected. Of the 100,000
proposed federal actions, fewer than 1% have been found to involve unavoidable jeopardy
that would completely stop the project (Western Water Policy Review, 199, p. 5–31).
Another change in water policy is the move to begin protecting instream flows as part of
536 S.K. Davis / The Social Science Journal 38 (2001) 527–542

the public interest. Although the change has begun, instream flow protection is still erratic.
While most states define fish and wildlife needs as beneficial uses, fewer states have actually
defined instream flows as beneficial use. States have chosen a variety of mechanisms to
protect instream flows. Some state agencies acquire water rights that can be used to provide
instream flows. Washington is working to develop a water budget that would assure
necessary water flows at critical times for fish. In a few instances, states and federal agencies
are restoring the operation of rivers and wetlands to protect habitat as required by ESA. Also,
the Northwest Power Planning Council, a four state compact, is working to make water
projects more fish friendly. Finally the Natural Resources Conservation Service works with
local conservation districts and the U.S. Fish and Wildlife Service to promote recovery of
wetlands (Western Water Policy Review, 1992, p. 5-11 and 5-13).

4.3.6. Redistributive water policy: from a majority to a minority

4.3.7. Takings
Property rights advocates challenge wetlands regulations that restrict a landowner’s ability
to develop or otherwise use his/her property. Current wetlands policy require landowners to
obtain a permit from the US Army Corps of Engineers before dredging and filling wetlands
as they develop property. Property rights advocates complain that this restriction on the use
of property reduces the value of their land and constitutes a governmental taking of their
land. If successful in their attempt to inculcate water policy with takings prohibitions, more
wetlands would be developed or more landowners would receive compensation for restricted
use of their property.
So far, property rights advocates have had limited success. They have turned to the Court
of Federal Claims, created in 1982 and predominately staffed with appointees of Presidents
Reagan and Bush (Margolis, 1999).10 Although property owners have won only 10% of the
approximately 120 federal takings cases and only a few cases related to wetlands regulations
(Litvan, 1994), proponents are optimistic because three federal cases have forced land-use
planners to justify that the regulation serves a legitimate public purpose and does not place
a disproportionate burden on property owners.11 Property rights supporters have also tried to
persuade Congress and state legislatures to create a “takings” policy. Although they have not
yet succeeded in passing major legislation, it remains an issue of great concern to them
(Henderson, 1994).

4.3.8. Adjudication
All states have adjudicative procedures that may be used to settle numerous competing
water claims on a stream or river but general stream adjudications are used to settle broader
disputes. They may be used to clarify water rights, improve public and private management
of water and quantify federal reserve claims made by Indian tribes and federal agencies
(Western Water Policy Review, 1998, p. 5–7). It is possible that an adjudication will result
in the redistribution of water rights and political power from agricultural to environmental,
tribal and/or federal agency uses. The level of conflict is high because entrenched water users
fear losing their water rights.
The process typically begins when the state legislature passes a bill authorizing the
 S.K. Davis / The Social Science Journal 38 (2001) 527–542 537

adjudication and describing the rules that will be followed. In most adjudications a state
agency or special master gathers information about claims, holding initial hearings to make
decisions about who has a right to a specified quantity of water with a designated priority.
This water right is then filed with a court which issues a court decree which, in turn, may be
appealed by other water users (Getches, 1997, p. 149 –50).12
General stream adjudications are used to resolve conflicts that arise out of social and
political conflicts. An adjudication may occur when there are disputes about how much water
residents of different states should have when a river crosses a state border (interstate
apportionment concerns); when states are concerned about the effect of senior federal
reserved rights on the state’s water users; when there is a struggle between riparian and prior
appropriation doctrines in a state (Kropf, 1999, p. 2); and when attempts are made to transfer
water rights from agrarian or mining uses to municipal, recreation or wildlife uses (Cham-
bers, 1999, p. 2; Kropf, 1999, p. 7). The state hopes to create greater certainty about water
rights that will facilitate the administration of water rights (Chambers, 1999, p. 1–2; Kropf,
1999, p. 10).
States began using adjudications in the late 1800s (Kropf, 1999, p. 2) but the large
adjudications began in the 1970s and 1980s (Western Water Policy Review, 1998, p. 5–7).
General adjudications are or have been underway in Arizona, Idaho, Montana, Oregon,
Washington, New Mexico, Nevada, Utah and Wyoming (Chambers, 1999, p. 1; Kropf, 1999,
p. 7–10; Western Water Policy Review, 1998, p. 5–7; Getches, 1997, p. 150).
Federal Reserve Claims: Tribes and Federal Public Land Agencies. When the U.S.
Supreme Court established the Winter’s doctrine in 1908, tribes were given rights to water
necessary to carry out the purposes of their reservation. Although these rights were declared
more than 90 years ago, many tribes still do not know how much water they are entitled to
because their rights have not yet been quantified. The process of quantifying rights has been
exceedingly slow. Fifteen water rights settlements were ratified by Congress between 1982
and 1994 and another 60 cases involving 45 to 65 million acre feet of water were in court
as of 1995 (Western Water Policy Review, 1998, p. 3-45 and 3-48).
Indians may use four types of dispute management to quantify their rights. The most used
methods are litigation and negotiation.13 Both present risks to the tribe. If Indians obtain
court decrees giving them water rights, they often anger Western legislators whose constit-
uents may be forced to reduce their water usage. On the other hand, if they negotiate a
settlement, they are usually forced to settle for less water than they are entitled to in return
for funding (or partial funding) for a water project. The tribe then has to depend on Congress
to ratify the agreement and appropriate the funding. If Congress fails to deliver, the tribe is
forced back into court having given up the right to a large amount of water (Burton, 1991,
p. 60). Other constraints that Indians face include fully appropriated rivers, a reluctance of
state government to take water from non-Indian appropriators with junior rights and the
impact of the Endangered Species Act which may delay or kill water projects (Western
Water Policy Review, 1998, p. 3-45 and 3-47).
In addition, federal reserve rights have been extended to federal lands (such as parks,
national forests and wildlife refuges) which are entitled to water necessary for carrying out
the purpose for which they were created (Getches, 1997, p. 311–312).14 Those with prior
appropriation rights resist either type of federal reserve claims for various reasons. First,
538 S.K. Davis / The Social Science Journal 38 (2001) 527–542

prior appropriators tend to feel that they own their water and do not recognize the legitimacy
of federally mandated rights for Indians and public land. Second, if water has to be set aside
for federal reserve rights, it often has to come from pool of water being distributed among
appropriators because many sources of surface water are fully appropriated. This is a zero
sum game in which any additional claim harms the interests of those already exercising water
rights. Third, there are additional threats that come from the open ended character of federal
reserve claims. The quantity that a tribe or public land parcel requires is not easily defined
because federal reserve claims may expand to meet future definitions of the water necessary
to fulfill the purposes of the land reservation. It is difficult to introduce open-ended federal
reserve claims into state water legal systems. Finally, tribes and federal agencies which hold
federal reserve rights are immune from suit because they are sovereigns (although the
McCarran Amendment waives this immunity in general stream adjudications) (Getches,
1997, p. 319, 330-31 and 334-35).

4.4. Cooperative water policy: a new way to manage water?

Much water policymaking is characterized by high levels of conflict. In recent years,

attempts have been made to develop cooperative policy. It is cooperative in two senses. First,
people work together to try to establish a policymaking process that minimizes conflict.
Policymaking is open to nongovernmental actors and all levels of government officials.
Second, the substantive policy itself is cooperative in that participants choose to share both
costs and benefits. With many participants helping to create policy, it is a permeable policy
process. Watershed management projects exemplify this type of policymaking.

4.4.1. Cooperative water policy

As more parties entered the water arena in the 1970s and 1980s, policymaking became
more contentious, even to the point of gridlock. In reaction, there was a movement toward
more cooperative policymaking in the 1990s.15 Watershed councils have been used in the
1990s to seek cooperative ways to find solutions to water allocation and quality issues.
Participants include government entities from federal to local level plus nongovernmental
participants such as agricultural, timber, mining and environmental interests (Western Water
Policy Review, 1998, p. 3-40 –3-41). Such endeavors strive to provide ecological and
economic sustainability, extensive citizen participation and pragmatic problem solving
processes (Kenney, 1997, p. 46). The strategy is to rely on consensus decisionmaking and to
involve all interested parties in the decisionmaking lest excluded stakeholders try to block
watershed proposals through courts or other political venues (Western Water Policy Review,
1998, p. 3– 41). Watershed initiatives have many different structural arrangements but most
are characterized by an attempt to tailor the solution to the unique configuration of water
problem(s), water interests and institutions within the watershed. A threat of federal inter-
vention to deal with an endangered species or water quality is often a catalyst to begin such
an initiative. It is harder to generalize about the source of initiative since all levels of
government plus private groups have begun watershed efforts. Of the watershed programs
examined in The Watershed Source Book, the state most often initiated the program (40% of
the time) but initiatives also came from federal participants (20%), local governments (20%)
 S.K. Davis / The Social Science Journal 38 (2001) 527–542 539

and private groups (20%). Most efforts are truly intergovernmental efforts (Kenney, 1997, p.
47– 48).
Despite the promise that watershed programs show, there are limitations on their ability
to solve water problems. First, while most of the initiatives studied produced success, it is
less likely that unsuccessful programs are studied. Also, the definition of success is often that
the program increased the communication among stakeholders. Programs are seldom eval-
uated on their ability to protect watersheds (Kenney, 1997, p. 55). Second, most initiatives
are based on geographically small areas rather than providing regional or river basin
solutions (Western Water Policy Review, 1998, p. 3– 41; Kenny, 1997, p. 45– 46). Third,
stakeholder collaboration may constrain the ability of individuals and organizations in other
parts of the country (often “outside” environmentalists) to advocate watershed uses contrary
to local water uses (Kenny, 1997, p. 53). Finally, consensus decisionmaking tends to produce
the “lowest common denominator” decisions (Western Water Policy Review 1998, 3– 41) or
to exclude dissenters (Kenney, 1997, p. 53).

5. Conclusion

A number of arguments have been made in this overview of decisionmaking in the area
of water supply in Western states. First, water is important to a great many different
individuals and organizations in arid regions. In addition to scarcity constraints, these
stakeholders have conflicting beliefs about the value of water and how it should be used. The
belief that water should be used to stimulate economic development is not easily reconciled
with the assertion that water should be left in rivers and streams because naturally flowing
waterways are intrinsically good. These values are often deeply held beliefs about how the
world should be organized, posing real challenges to the political system which must try to
find compromise policy decisions.
Second, the political system is decentralized with multiple government and nongovern-
ment actors participating in water decisions. They include Congress, secretaries of Interior
and agencies at the federal level; tribal governments; governors, state engineers and courts
at the state level; municipalities and water districts at the local level; and multitudes of water
user and environmental organizations from the private sector. Participants may seek water
policy decisions from multiple venues: legislative bodies, agencies, courts and executive
officials. As a result, a water participant frustrated in the achievement of its goals at one
venue typically has a number of alternative venues from which to seek a more favorable
result. With these options, there is little incentive to accept undesirable decisions; rather,
disappointments in policy decisions are often pursued at yet another venue. This results in
protracted decisionmaking that offers little closure to policy disputes.
Third, water decisions are dynamic, changing according to the relevant political and social
pressures of the day. For example over the last 100 years, water projects run a gamut:
struggling local interests trying and often failing to build projects gave way to the era of big
federally financed and constructed dams which, in turn, led to the current emphasis on
environmental protection, smaller projects and rudimentary attempts to breach dams. In the
area of water allocation, the hegemony of agricultural initiative to supply and control water
540 S.K. Davis / The Social Science Journal 38 (2001) 527–542

is giving way as tribes, community of origin, recreational and sport enthusiasts and envi-
ronmentalists demand changes in water availability.
Finally, reflecting the trends mentioned above, the pattern of intergovernmental relations
becomes more complex than ever. In the early to mid-20th century, the federal government
had predominant power in water projects while the states largely controlled water allocation
through water rights law. With the advent of environmental regulation in areas such as water
quality and endangered species, this separation of federal and state authority has blurred.
Federal environmental laws have not contravened basic state allocation policy but they do
“overlay water rights regimes” (Western Water Policy Review, 1998, p. 3–39). Thus, state
water law still stands but water rights holders must accede to federal requirements for federal
reserve rights and environmental protection. The mix of federal, tribal, state authority and
private demands also appears in redistributive conflicts: federal authority is particularly
notable in dam breaching, endangered species disputes and federal reserve claims for federal
land; tribes are slowly but insistently establishing quantified water rights and access to water
projects; states exercise considerable clout in routine water allocations and, to a lesser
degree, in general stream adjudications; local actors take the initiative in urban water
transfers; private interests have had some success in takings claims. In settling these
competing demands, state and federal authorities each have a role to play but mutual
responsibilities and authority are fluid. While cooperative decisionmaking including gov-
ernmental and nongovernmental participants from all levels offers some hope, the redistrib-
utive disputes cataloged here suggest that it is unlikely that collaboration will solve most
problems.

Notes
1. Water includes related quantity and quality issues but this paper focuses on surface
water supply.
2. States with prior appropriation water laws include Alaska, Arizona, Colorado, Idaho,
Montana, Nevada, New Mexico, Utah and Wyoming. Hawaii has a combination of
laws from the ancient Hawaiian Kingdom and more recent laws (Getches, 1997, p.
7– 8). California, Oregon and Washington adopted a hybrid system of water laws that
draws from both prior appropriation and riparian law because neither doctrine was
sufficient for establishing and administering water rights (Getches, 1997, p. 190 –
191). In a riparian system, landowners located on rivers may use water in a reasonable
way. If there is a shortage, all water users must proportionally reduce their water use.
Riparian rights come from land ownership which means that failure to use water does
not result in a loss of a riparian right (Getches, 1997, p. 4 –5). Disputes between
riparian and appropriation water rights holders can be difficult to resolve because of
the inconsistencies between the two systems of water law (Getches, 1997, p. 202).
3. Water transfers are more difficult when there is a change in 1) the purpose for which
the water is used, 2) the time the water is used or 3) the diversion point (Getches,
1997, p. 155).
4. Public trust rights were first established in Illinois Central Railroad v. Illinois (1892)
 S.K. Davis / The Social Science Journal 38 (2001) 527–542 541

which held that Illinois could not give land to the railroad because the state had a trust
responsibility to keep this land for its citizens’ benefit (Western Water Policy Review,
1998, p. 3– 63).
5. A fifth policy type is regulatory policy which is prominent in water quality issues.
Since it plays a minor role in water quantity policy, it is not discussed here.
6. Getches (1997, p. 420 –23) delineates eight types of public and private water orga-
nizations.
7. Oregon relies on a mixture of courts and administrative agencies (Getches, 1997, p.
140)
8. Congress passed the 1928 Boulder Canyon Project Act which authorized Hoover Dam
and a separate compact which would apportion water to lower basin states. Although
the compact was not forthcoming, the suggested allocation of water in the statute was
adopted in Arizona v. California (1963) (Getches, 1997, 413–14; Thorson, 1994, p.
126). This was the only direct use of legislative allocation although it has been used
implicitly in water quality disputes in the Great Lakes (Thorson, 1994, p. 5).
9. Mark Twain is supposed to have said “Whiskey’s for drinking and water’s for fighting
about.”
10. The Court of Federal Claims hears cases involving claims of $10,000 or more brought
against the federal government. Many of these include takings cases (Margolis, 1999).
11. In Nollan v. California Coastal Commission (1987), Lucas v. South Carolina Coastal
Council (1992) and Dolan v. City of Tigard (1994), the Supreme Court has required
that restrictions on property must not place too great a burden on the property owner
(Henderson, 1994).
12. Adjudications can be carried out in judicial, administrative or judicial and adminis-
trative proceedings. Administrative adjudications are limited to situations in which
there are no federal reserve claim brought by tribes or federal agencies (Western
Water Policy Review, 1998, p. 5–7).
13. Other avenues of dispute resolution include legislation and administrative adjudica-
tion, often as part of a hydroelectric licensing process (Burton, 1991, p. 49).
14. Arizona v. California (1963) stated that federal lands have a federal reserve water
right.
15. Other collaborative policy making tools include alternative dispute resolution and
adaptive management (Western Water Policy Review, 1998, p. 3-41 and 3-44).

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