Growing urban water demand, recent recognition of tribal water rights, and needs for critical aquatic habitat in the face of the archaic law governing water allocation are driving people in the western United States to seek alternative methods to resolve water allocation disputes. The current ad hoc and locally driven approach to negotiation of basin-wide water issues runs the risk of overlooking broader interests. Whereas water use is local and rives local economies, the continued viability of our water resources and the legacy we leave to future generations in water infrastructure, social stability, an environmental amenities is national in scope. To ensure consideration of these broader interests, criteria for the evaluation of processes to negotiate the allocation of water and the resulting outcomes are necessary and can be defined as: efficiency, in terms of the cost of resolution; fairness in allocation of the benefits of use of the water resource; fairness in allocation of the benefits of use of the water resource; and durability as defined by the sustainability of both the institutions established to manage water and enforce water rights and the environmental health of the riparian system. Applications of these criteria to the Milk River Basin of Montana and the Truckee River Basin of California and Nevada indicates that the Milk River negotiations provided an efficient process resulting in a much fairer allocation of the benefits of use of the water resource and established durable institutions for management and enforcement of water rights. Nevertheless, the Milk River process may not result in a sustainable use of the water resource because solutions remain heavily reliant on state and federal subsidy and may do nothing to restore the environmental integrity of the aquatic system. In contrast, due to a shifting of power through litigation, negotiation on the Truckee River took place against a backdrop that gave equal voice to restoration of aquatic health. Nevertheless, institutions established to implement the Truckee River agreement may not provide sufficient flexibility to adapt to future change in water supply and demand, and the absence of a key party from the table during final negotiations may render the solutions vulnerable or at least more difficult to implement. The recommended criteria for evaluation attempts to span the gap between local and national objectives, between the reality that water use is local and drives local economies, and the fact that the continued viability of our water resources and the legacy we leave to future generations in water infrastructure, social stability, and environmental amenities is truly national in scope. In spanning that gap, the growing use of negotiation may herald a new era for water distribution and management in the West.
33 Envt'l L. 949 (2003)