WSP09351

• File Number: 8220.111.J
• Description: Central Utah Participating Project
• State: UT
• Basin: Colorado Mainstem
• Date: 1/1/1993
• Title: The CUP Holds the Solution: Utah's Hybrid Alternative to Water Markets
• Water Supply Pro - Doc Type: Report/Study

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1993]

CENTRAL UTAH PROJECT COMPLETION ACT

183

away from lID.". The Board ruled that if lID did not save 100,000
acre-feet of water by 1994, lID would lose this water.'" lID, realizing
it had to find a way to conserve water, reached an agreement with
MWD. MWD agreed to build the most efficient water system possible
in exchange for the rights to the conserved water.'" Significantly,
three and a half months after the Board issued its decision, the parties
reached an agreement. '42 Similarly, the Central Utah Water Conser-
vancy District came to the bargaining table only after a lawsuit and loss
of federal funding jeopardized the completion of the CUP.'" Without
external pressure forcing agricultura11eaders to negotiate, superficial
attempts to painlessly change water laws, like those in Oregon and
Montana, will continue. ,..
A second lesson to be gleaned from recent water marketing
attempts is that new water policy proposals should not be isolated from
political realities. There has been a proliferation of water marketing
literature suggesting numerous ways to handle chaotic urban growth
and new demands for water. Many of these articles and books make
powerful nonnative arguments regarding the effectiveness of various
strategies. However, obstacles impede even those proposals, such as
water markets, that appear to be in the self-interest of all parties. Most
authors do not consider the impact of social and psychological barriers
and fail to assess the degree to which the proposal satisfies the interests
of the people affected.'" The application of dispute resolution theory

'" See REISNER & BATES, supra note 10, .t 14~6 .pp. A.
1<. [d. .t 157 .pp, A.
141 MWD and lID negotiated unsuccessfully from 1984 through 1988. When the Board issued
ill decision, lID decided to reenter negotiations with MWD, identifying specific consenration
projects and determining the costs and water conserved on a project-by-project basis. Seventy.
IIix days after the Board's decision came down, the parties reached an agreement. MWD
eetimates that it is paying about $128 per acre-foot annuaUy, and $148 when the cost of
pumping the water to its consumers is added. At earlier stages of the negotiations, 110 refused
to negotiate for less than $250 per acre-foot. MWD was unwilling to pay more than $100.
MWD now claims the projects were not chosen because they were the cheapest, but because they
were the ""best for the system as a whole.- ld. at 154-58 app. A.
,<2 [d. .t 157-5S,
14' Mosher, .upro note 38, at 21.
I~ A growing number of environmental commentators argue that alternative dispute
resolution (ADR) techniques, like mediation, arbitration, nonlitigative negotiation, and other
procedures, are viable alternatives to litigation. Se~, e.g., LARRY SUSSKIND & JAMES
CRUlKSCIIANK, BREAKING THE IMPASSE 3-15 (1987); ZYGMUNT J.B. PLAnER ET AL" ENVIRON-
MENTAL LAw AND POLICY 979-80 (1992). It appears, however, that until the nonlegal barriers
to water policy reform begin to break down, environmental activists must continue to pursue
strategies that combine negotiation or ADR with litigation, or at least the threat of litigation.
I" A recent study concluded that analysts fail to appreciate the significance afthe social and