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<br />164 J. ENERGY, NAT. RESOURCES, & ENVTL. L. [Vol. 13
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<br />West, but that today prevents the voluntary transfer of water rights."
<br />'The tenets of beneficial use, waste, and third party rights may not only
<br />deprive an individual of the right to water that was saved through
<br />conservation, but may require the saved water to pass automatically to
<br />noncontributing, nonconserving users.18 Accepting the argument that
<br />water markets will allocate water more efficiently and make all parties
<br />better off, the question remains why the Western States have not
<br />changed their water laws. While water market theorists have cogently
<br />analyzed the common law and statutory rules that prevent more
<br />efficient water use,19 the academic community has neglected the
<br />importance of external barriers that hold these old laws in place and
<br />block the adoption of water markets,"
<br />'The barriers that have blocked water refonn efforts are similar to
<br />those in any dispute resolution process. Before two parties seek to
<br />resolve a conflict through negotiation, they must believe an agreement
<br />will be more valuable than the alternatives; in other words, it must
<br />satisfy their interests.21 Crucial to a party's actions during a negotia-
<br />tion are its perceptions. If a party, rightly or wrongly, does not perceive
<br />that a potential agreement is either better than the status quo, or in its
<br />best interest, the negotiation is probably doomed to failure.22 If
<br />negotiation fails, unilateral pressure is the only option for a party who
<br />seeks change,"
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<br />17 From the beginning, state water law encouraged the use and distribution of water
<br />resources, rather than the efficiency of the distribution. See A. Dan Tarlock, The Changing
<br />Meaning ofWakr eoruervation in the West, 66 NEB, L, REv, 145, 152--64 (1987), At the federal
<br />level, the Reclamation Act of 1902 was originally intended to facilitate settlement of the arid
<br />West with small femily farms. WAHL, supra note 4, st 127.
<br />II See George W. Pring Ie Karen A. Tomb, License to Waste: Legal Bamer, to Conservation
<br />and Efficknt U.. of Water in the West, 25 RocKY MTN. MIN, L, INST, 25-1, 25-3 (1979).
<br />It See. e.g., Bruce C. Driver, The Effect of Reclamation Low on Voluntary Water Transfers,
<br />33 RocKY MTN. MIN. L. INST. 26-1 (1987). For a summary of the legal barrien to water
<br />markets in Utah, _ Edward W. Clyde, Legal Problems in Market Tranafera (Nov. 12, 1987)
<br />(unpublished manuscript delivered to the Central Utah Water Conservancy District, Orem.
<br />Utah).
<br />10 One article that examined water policy in Utah stated that the barriers to water markets
<br />have been largely political rather than legal; however. the article only discussed the legal
<br />barriers. Allen D. Freemyer & Craig M. Bunnell. lAgal Impedi1TU!nts to In~rstate Water
<br />Maruting:Application to Utah, 9 J. ENERGY L, & PoL'Y 237. 239 (l989),
<br />11 Focusing on interests is a fundamental approach to negotiation. RoGER FISHER &
<br />WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 41--67 (1981);
<br />Bee aloo DAVID A. LAx & JAMES K. SEBENIUS, THE MANAGER AS NEGOTIATOR: BARGAINING FOR
<br />CooPERATION AND CololPETlTlVE GAIN 83-87 (1986).
<br />2ll See LAX It SEBENIUS. .upra note 21, at 46-49.
<br />.. Recent sehotarahip in this field has investigated the strategic, institutional, and
<br />psychological barriers to the negotiated resolution of conflict. especially when there is little
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