Grogan_Div III (Final)

© Marushka Grogan, 2013
Negotiating Water: The Use of Negotiated Water Rights Settlements in United
States Water Conflict
Spring 2013
Marushka Grogan
Hampshire College
Abstract
As governments work to anticipate and respond to the increasing demands on global freshwater
supplies, the possibility of conflict over water supplies appears likely to increase on both the
inter- and intra-nation level. Negotiated water management strategies have been found to reduce
long-term conflict and promote better management of water resources than non-cooperative
approaches or "handed-down," arbitrative judgments. My work is located as the first step in an
ongoing project to create a “water mediator’s handbook,” designed to provide country- and
region-specific information to aid negotiators addressing water disputes. Specifically, I offer an
analysis of two water conflict cases within the United States. This analysis is rooted in a basic
understanding of historical and current United States water policy, and derives regionally
appropriate lessons that can be replicated and applied to such conflicts. I intend that, in its final
form, this work will provide a detailed and realistic reference tool for mediators and stakeholders
seeking legal, political, cultural and historical information on water conflict within specific
regions and nations.

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© Marushka Grogan, 2013 1
Introduction
In 2000, the European Union (EU) adopted the EU Water Framework Directive to reduce water
conflict and uncertainty and facilitate shared water resource management among member nations
(Directive 2000/60/EC). Eight years later, at the World Economic Forum, United Nations (UN)
Secretary General Ban Ki-moon stated that “…The challenge of securing safe and plentiful water
for all is one of the most daunting challenges faced by the world today…” (Ki-Moon, 2008). The
United Nations established water as a basic human right in 2010 (United Nations General
Assembly, 2010). In the United States, the March 2013 Statement for the Record: Worldwide
Threat Assessment of the US Intelligence Community identified “water” – specifically, risks to
freshwater supplies – on its list of most urgent threats to U.S. security. The report noted that
water supply shortages were a “destabilizing factor,” and countries would probably “experience
increasing water-related social disruptions” (Clapper, 2013).
This sample of events since the beginning of the 21st
century illustrates these governmental
organizations’ acknowledgment of increasing demands on world freshwater supplies. As
governments work to anticipate and respond to the ways in which these demands affect global
power relations, food production, economic resiliency, and national security, the likelihood of
conflict over water supplies appears likely to increase on both the inter- and intra-nation level
(Clapper, 2013; World Economic Forum, 2008; World Economic Forum, 2013; Kasymov, 2011;
Draper, 2007; Uitto & Duda, 2002). The Utton Transboundary Resource Center states that such
water conflicts will likely (1) “reflect full utilization of water supplies;” (2) “clarify differing
water needs and values;” (3) “sharpen jurisdictional boundaries;” and (4) “reveal institutional
limits” (Utton Transboundary Resource Center, 2004). Conflicts may take the form of violent
confrontation or other destructive realizations, including pricing wars, consumptive restrictions,
or withdrawal of financial or political support for water infrastructure projects (Clapper, 2013).
Water conflict can also indirectly exacerbate ongoing or developing conflicts. For example,
multiple authors have argued the role of water in the Israeli-Palestinian conflict (Giordano et al.,
2002; Feitelson & Fischendler, 2009; Fischendler, 2008).
However, several reports have shown potential for cooperative strategies in managing water
disputes and conflicting water demands (World Economic Forum, 2008; Wolf, 2007; Matthews
& St. Germain, 2007; Uitto & Duda, 2002). Such approaches have been found to reduce long-
term conflict, generate win-win solutions, and promote better management of water resources, as
well as better serving the needs of stakeholders than non-cooperative approaches or “handed-
down,” arbitrative judgments (Bencala & Dabelko, 2008). In order to achieve these benefits and
avoid violent conflict within and among nations over water resources, it is necessary to establish
mediation and negotiation of such conflicts as a priority. On the national and regional level, it is
important to determine clear guidelines to help mediators, stakeholders, and legal and
governmental parties navigate water disputes.
This paper is located as the first step in an ongoing, potentially collaborative project to create a
comprehensive “water mediator’s handbook,” designed to provide country- and region-specific
information to aid mediators in addressing water disputes. Specifically, in this paper I seek to
offer an analysis of two water conflict cases within the United States. This analysis will be

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rooted in a basic understanding of historical and current United States water policy, and will
derive regionally appropriate lessons that can be replicated and applied to such conflicts.
Future work will build on this paper by analyzing more case studies from a broad range of
geographic and sociopolitical regions; comparing different approaches to negotiation as viewed
by different cultures; compiling a list of useful resources by country or region; and exploring the
reasons some parties decide not to pursue mediation or negotiation. I intend that, in its final
form, this work will provide a detailed and realistic reference tool for mediators and stakeholders
seeking legal, political, cultural and historical information on water conflict within specific
regions and nations.
Water Conflict: Some Basics
Definitions of water & water conflict
In order to discuss water, it is necessary to establish some of the ways that different stakeholders
view water. As previously noted, water’s importance to life led the United Nations to establish
water as a basic human right (United Nations General Assembly, 2010). Other properties of
water ensure that it is valued and fought over on a much more complex scale, and these systems
of value correspond to different identities or definitions of water (Seabright, 2010). These
“identities” shape the types of conflict that develop over water.
Water is intrinsically versatile. It is an incredibly useful solvent, industrial ingredient,
transportation venue, and economic good (Seabright, 2010). It can be shared, stolen, invested,
and sold in the same manner that a piece of lumber or iron could. Each of these properties
seemingly contradicts the idea of water as a “right” and instead characterizes it as a “resource.”
Adding further complexity to this question of definition, water has important cultural and
spiritual aspects for many societies, which aligns it with UNESCO’s concept of “cultural
heritage” (UNESCO, 2003). When different groups’ ideas of water as “right,” “resource,” and
“cultural heritage” come into contact through the same body of water, it is difficult to establish a
common definition of value that is acceptable to all parties. Conflict can even arise between
groups with the same idea of water, but different views on how that idea should be exercised,
respected or safeguarded (Visscher, 2008). Either of these two situations can lead conflicts to
escalate or, in extreme cases, become entrenched as parties fight over the correct way to
approach negotiations over access to, use of, and care for water sources.
These contextual views of water mean that the idea of “water conflict” may actually have many
different definitions. For the purposes of this paper I define water conflict as conflict in which
water plays a key role. I further classify water conflict as either direct or indirect1
.
1
Visscher (2008) cites Lazarte’s 2006 categorization of water conflict as either “ ‘conflicts of interests’ that can be
resolved through negotiation,” or “ ‘structural conflicts’ that are very difficult to negotiate as they relate to the
organization of society and are often based on the unequal distribution of resources.” I consider these designations to
be roughly analogous to my designations of direct and indirect water conflict, respectively. However, for the
purposes of this paper I consider it more relevant to distinguish between types of conflict based on access to power,
rather than ease of resolving the conflict.

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Direct water conflict involves quantifiable issues, in which all parties share access to power or
due process, and agree to use a given structure of dispute resolution. Although larger political or
cultural issues may affect the parties’ positions within the conflict, they are not the immediate
cause of the conflict. Most water conflicts in the United States are direct water conflicts, because
parties share access to court systems or other neutral official forums.
Indirect water conflict involves larger questions within a society or region, and the conflict over
water is often an expression of a larger, multi-level dispute. Parties may have very disparate
access to power, and either lack access to or not wish to use officially sanctioned dispute
resolution methods. The segregation of access to municipal and irrigation water in Apartheid
South African is an example of indirect water conflict.
In practice, most water conflicts have elements of both direct and indirect issues, but are usually
characterized by one more than the other. Within the scope of this paper I will focus on direct
water conflicts in the United States.
How conflict is addressed
Given the frequency with which conflicts over water resources arise, it is natural that there are
multiple responses to water conflict. There are competing strategies within the field of
mediation, and different views of appropriate mediation and negotiation styles within different
cultures (Visscher, 2008). Stakeholders’ understandings of their alternatives to negotiation may
vary based on the context of the dispute. Even in a dispute in which parties have agreed to
negotiate, parties might explore their “best alternatives to a negotiated agreement” (also referred
to using the acronym BATNA) as a preferable way to fulfill their interests (Fisher & Ury, 1983).
Within direct water conflict, there are several common reasons why parties might chose to
pursue their BATNA instead of negotiated agreements.
Parties might not be prepared to make the tradeoffs typically required by mediated agreements.
They may view concessions as a “compromise” of their ideology or a display of weakness; they
may believe that their constituents will not support tradeoffs; or they may believe that the other
parties in the negotiation will not follow through on agreements. Parties may also not be willing
to undertake the opportunity costs of negotiation – in short, the fiscal, political, or social costs of
not pursuing other means of securing their interests.
The most compelling reason that parties decide not to pursue mediation is that they believe they
have a better chance of getting what they want by some other means (Burgess & Burgess, 1994;
Fisher & Ury, 1983). If this is the case, it is their right to do so; it is sometimes even better that
they explore and exhaust these options prior to attempting further mediation. Some common
public sector alternatives to mediation include: administrative power (appealing to relevant
government officials); litigation (challenges in court); political power (use of the political system
to change existing laws or to establish new ones); public opinion (persuading or educating the
public to gain majority popular support); and physical resistance (either non-violent or violent;
not usually successful) (Burgess & Burgess, 1994). Private sector decisions are an additional

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method, if the dispute can be settled through economic compensation or other property
incentives.
In the subsequent chapters, I will present the basics of United States water policy, and analyze
two case studies of direct water conflict, in which stakeholders’ decisions to pursue, delay or
sidestep negotiations vs. BATNAs have had a significant impact on the conflicts’ outcomes.

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Section One: United States Water Policy
Introduction to United States Water Policy
Most water conflicts in the United States fall into the category of direct water conflict, because
parties share access to court systems or other neutral official forums. This does not mean that
there are not power inequalities between parties. Rather, United States water conflicts may
reflect existing inequalities, but they are not generally utilized as part of an overarching societal
and/or governmental agenda to further those power inequalities.
This section is intended to provide a general background of the legal systems in which water
disputes and mediations occur in the United States. I will discuss the factors that set the stage for
U.S. water conflict, and use two case studies of the Southwestern and Southeastern United States
to examine the ways in which such conflicts are resolved or prolonged.
[Dis]United States of Water Policy
“One could argue that a fractured, ad hoc, haphazard, mish-mash of random, inconsistent, and
stove-piped projects administered by a hodge-podge of 36 congressional committees and more
than 20 agencies in accordance with outdated and inadequate laws constitutes a national water
policy. A de facto one. But with so many ignored aha moments followed by ever-more-frequent
and disastrous uh-oh moments, it seems we could use a policy that’s not quite so dependent upon
sandbags and firehoses.” – Elizabeth de la Vega, 2008
This scathing quote is American journalist Elizabeth de la Vega’s indictment of the United
States’ national water policy. However, it critiques a single United States policy, or the absence
thereof. Under closer examination, the United States has at least three main systems of water
rights that vary by state; a fourth, federal water rights system that often interacts with the other
three rights systems; a complex body of state and federal laws involving both case and statute
law2
; inter-state compacts; contrasting geographic and hydrological regions; and advocates eager
to stake their claims to the nation’s waters in the name of economic growth, municipal uses,
human rights, ecological needs, recreational benefits, and cultural significance (Macdonnell,
1989; Reisner, 1993; Black & Fisher, 2001; Anderson, 2010). Yet the United States’ national
water policy may be seen as “…fractured, ad hoc, haphazard…” (de la Vega, 2008) because it
was shaped by historical events that created highly localized systems in response to regional
water needs. These events’ legacy remains active in modern American water politics: water is
not just a question of the biophysical reality of water in the landscape, but of its legal reality.
There are four main structures that shape the legal reality of water: regional hydrological
differences; multiple rights systems; inter-watershed boundaries; and multiple levels of state and
federal agencies. These systems represent a combination of political, historical, economic, and
geographical influences. Respectively, they define what issues become conflicts; who are parties
2
Case law is formed through judicial decree in a court case; it may be overturned by later court decree. Statute law is formed when legislators passing it
into law, and is more difficult to overturn.

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to the conflicts; and how the conflicts are resolved. In the next few sections I will examine the
basics of each of these systems.
I. Eastern & Western United States: Regional Hydrological Differences
The key to understanding why different parts of the U.S. have evolved different water rights
systems lies in regional differences in hydrology and water use. In general, locations east of the
Mississippi River have been characterized by historic plenitude of water; high population
density; and industrial or in-stream water uses. Locations west of the Mississippi have been
characterized by scarcity of water; widely dispersed populations; and agricultural or extractive
water uses.
Watersheds in the Eastern United States are, if not perfectly lush and verdant at all times,
certainly not arid. Water is hydrologically plentiful. This region receives, on average, 35-60
inches of precipitation annually (Daly, 1994), supplied by annual recharge rains in the fall and
spring.
The East’s Euro American settlers did not always view the region’s plentiful water with
gratitude. Between 1849 and 1860, three different Swamp Land Acts were passed (de la Cretaz
& Barten, 2007). These acts were part of combined federal and state agendas to open up
wetlands for agricultural productivity and economic development. Wetlands were viewed as
“swamps” – “worthless” land that wrought disease and lack of economic growth if left in their
natural state. Through federal and state incentive programs, and the formation of rural drainage
districts, drainage of Eastern wetlands continued until the 1950s (de la Cretaz & Barten, 2007).
Today, water is still plentiful in much of the Northeast, but rapid economic growth in parts of the
Southeast has sparked increasing, and increasingly competitive, demand for water resources for
municipal, recreational, and industrial uses.
In contrast to the East’s historic drainage projects, Western agriculture relies on bringing water
in to make farmland profitable and productive (U.S. Army Corps of Engineers, 2012). Western
watersheds are characterized by less than 20 inches of precipitation annually (Daly, 1994), and as
much as 75% of Western water comes from seasonal snow pack rather than rainwater recharge –
making it much more seasonally volatile (Pederson et al., 2011). This arid climate has
necessitated stringent water management. Western water is quantified to the last million acre-feet
(maf) and divided among states and cities (Ackerman & Stanton, 2011; U.S. Bureau of
Reclamation, 2012). The Colorado River, the region’s main “water tap,” is notorious for not
completing its journey to the Gulf of California because it is literally used to the last drop
(Reisner, 1993; Ackerman & Stanton, 2011)3
. Because of this scarcity, the West evolved a
system of water rights that enabled water users to defend their water against newcomers’
challenges (Tarlock, 2010). However, the West is now in the midst of a “culture shift” in water
values, as drought and over-allocated water supplies force water rights-holders to negotiate water
settlements that provide some water for everyone as opposed to a “winner take all” mentality
3
As of November 2012, the United States and Mexico have just signed a historic, bi-national agreement (Minute 319) to restore the Colorado
River’s flow to the Gulf of Mexico (Postel, 2012).

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(Wheldon & McKnight, 2007; Bogert, 2008). These historic differences shaped the multiple
water rights systems that define modern water disputes.
II. Multiple Rights Systems
Table 1 shows the United States’ four major water rights systems. These rights systems interact
with each other in different ways depending on region and context. For the purposes of this
review, I consider the riparian and appropriative systems to be “primary” rights – applicable to
the general population of a
specific region - and the
correlative and Winters
systems to be “secondary”
rights – applicable to
specific rights-holders
only in certain
circumstances, either in
exclusion of or in addition
to the primary rights
systems. In general, the
two primary rights
systems arose in response
to the previously-
discussed differences in
biophysical environment
and settlement patterns
between the East and the
West. The two secondary
rights systems arose to
cope with the issues that
did not fit into the first two rights systems.
Primary Rights Systems: Riparian vs. Appropriative Rights
In order to understand the riparian and appropriative rights systems, it is necessary to examine
them in contrast (Johnson, 2009). There are similarities between the two: both systems derive
from doctrines, the Riparian Doctrine and the Appropriative Doctrine. Both systems are state, as
opposed to federal, law. Both give rights to use water, but not to own it; this means that after a
rights-holder uses water, the water must be allowed to flow on to the next right-holder.
However, in rights systems derived from the Riparian Doctrine, each rights-holder has equal
rights to a body of water. In times of shortage or drought, all rights-holders share the deficit
equally. Rights systems derived from the Appropriative Doctrine grant higher priority to water
users based on the age of their water rights. In times of drought, senior rights holders have first
priority over junior rights holders, and if necessary, junior rights-holders’ water allotments will
be completely cut off to continue supplying senior water rights.

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The rationale behind these methods of dealing with shortage is found in the way each system
establishes rights. Riparian rights exist because a piece of land touches a body of water; they are
inseparable from that piece of land, and exist even if the property owner does not use them. In
contrast, appropriative rights are not tied to land ownership, but are established by diverting
water for “beneficial use” – generally defined as economic improvement. These rights date from
the first diversion, and encompass the full amount of the first diversion. However, these rights
may be lost or diminished if the water user does not keep withdrawing the full amount they hold
rights to.
The differences between Eastern and Western water rights arise as much from dissimilarity in
these regions’ settlement as from the previously-discussed contrasts in the regions’ hydrology.
The first settlers into each region adapted the rights systems they were most familiar with in
response to the water resources of their new homes. Ironically, both Riparian and Appropriative
Doctrines descend from ancient Roman common law; yet their divergence occurred before they
arrived in the Americas. Riparian water rights derive from the version of Roman law found in
English common law, while Appropriative water rights derive from the Spanish version
(Johnson, 2009).
In the English-dominated East, riparian rights were well suited to plentiful water. As the region
evolved towards in-stream water uses – primarily industrial (e.g. mills) and recreational (e.g.
boating, swimming) – it made sense to have a system of water rights based on equal use and land
ownership (Black & Fisher, 2001).
The West’s prominent Spanish history set the precedent for appropriative rights. As new settlers
arrived – many of which were miners needing water for their work – they adopted the Spanish
traditions towards water allotment. These traditions fit into the mining industry’s emphasis on
“staking claims.” The first miners into an area were able to choose where and how much water
they wanted to divert; miners arriving later were allowed to use whatever water was left over
(Johnson, 2009).
As water conflicts arose and were settled through litigation, water law began to borrow from the
system of informal water rights utilized by the early miners. In 1872, this system of water rights
was codified into Western state law as the Appropriation Doctrine (Johnson, 2009; Black &
Fisher, 2001; Schorr, 2012)4
. As the West’s population increased and cities and agriculture came
to dominate the region’s industry (Ackerman & Stanton, 2011), appropriative rights began to
regulate irrigation and municipal water diversions instead of mining claims.
It is important to note that, although riparian rights are generally used to the east of the
Mississippi, and appropriative rights to the west, these systems exist as state law, and show
variation from state to state. Eastern states are increasingly “hybridizing” riparian rights with
4
David Schorr (2012) presents an interesting argument that, instead of arising from mining custom and Spanish law precedent, the
Appropriation Doctrine was instead intended to fit into a larger scope of mid- to late-19th
century agricultural reform and redistribution
legislation and case law. I believe that the origin of the doctrine lies somewhere in between these two positions. John W. Powell (1879)
was the first major federal proponent of what would eventually become the Appropriative Doctrine; he had traveled the West
extensively and was keenly aware that a Western water policy must exist at the intersection of the region’s prior customs, the realities of
region’s climate, and the idealistic opportunism of the frontier. Other federal and state entities later supported the Appropriative
Doctrine for varying reasons, ranging from protecting their own interests to defending the water rights of those without land (Reisner,
1993).

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some features of appropriative rights (Johnson, 2009). Likewise, some Western states are
adopting features of riparian rights to deal with issues such as groundwater. California’s
Correlative Rights rule is an example of this trend.
Secondary Rights Systems: Correlative Rights
Over time, it has become clear that some issues fall outside the purview of either riparian or
appropriative rights. Groundwater is one of those issues. It is impossible to divide up based on
the idea of a linear, flowing river, because it does not follow the same hydrological rules as
surface water, and because it is often difficult to map or quantify. Until the 1850s, little was
known about the ways in which groundwater systems moved or interacted with surface waters.
For this reason, laws specifically concerning groundwater are comparatively new.
Groundwater has historically been considered an attribute of land ownership. Under the British-
originating Rule of Capture, groundwater was viewed as an attribute of land ownership, and
landowners were allowed to pump any amount of groundwater from their property (Johnson,
2009). Since the 1850s, however, it has become clear that groundwater and surface water
systems are closely connected – and thus, that large withdrawals from one often result in
decrease of the other.
California’s Correlative Rights rule came into use in 1902 in an attempt to legally acknowledge
the effect groundwater has on surface water resources, and to codify the extent to which
landowners and other water users have rights to groundwater resources. Instead of tying
groundwater use rights to land ownership alone, they recognize groundwater rights as tied to a
common water source. This means that people with land above a groundwater supply; people
who have land next to streams fed by groundwater sources; and people who use water from a
groundwater-fed stream; all have rights to the water and a legally-recognized interest in
preserving their access in a state un-affected by other rights-holders’ withdrawals. A landowner
may pump groundwater from underneath their land, but in contrast to the Appropriative
Doctrine, they must limit their use if it affects another correlative rights holder’s use from the
same groundwater supply.
W. A. Hutchins, a legal writer who focused on Southwestern water law, summarized the
Correlative Rights Rule in this way:
Under the correlative doctrine, owners of overlying lands have equal rights to the ground-water
supply for use on such lands, and each is entitled to an equitable apportionment if the supply is
not enough for all. The courts have power to make and enforce an equitable apportionment....As
between owners of overlying lands, priority of use is not a factor. The landowner's right for use
in such land is paramount to that of a taker for distant use; but any surplus over the reasonable
requirements of overlying lands may be appropriated. (Hutchins, 1942)
Since correlative rights are closely tied to land ownership rather than seniority of use, they are
more closely aligned with the Riparian Doctrine than the Appropriative. However, they fit into
the state law of California, which generally recognizes the Appropriative Doctrine as the
prevailing legal model. This “hybrid” rights system is an example of future directions that United

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States water law might evolve towards as growing population increases pressure on water
resources.
Secondary Rights Systems: Winters Rights
The question of Native American rights to water is another issue not easily addressed by either
riparian or appropriative rights.
The concept of tribal rights to a certain amount of water was established by the 1908 Supreme
Court case, Winters vs. United States (Wheldon & McKnight, 2007; Bark, 2009; Anderson,
2010; Tarlock, 2010). In Winters, the Supreme Court legally acknowledged the large amounts of
water implicitly attached to Indian reservations as compensation for the reservations’ often-arid
and poor-quality land. These rights subsequently became known as “Winters rights.” Winters
rights were further supported and defined by the 1963 Supreme Court decision, Arizona vs.
California, which stated that access-to-water “…claims predating the Colorado River
Compact…” (a water usage agreement between river-bordering states) must be satisfied, even in
times of drought, regardless of other rights-holders’ claims (Reisner, 1993).
The legal application of Winters rights stalled when it came to matching “wet” water to tribes’
paper claims (Fort, 2012): non-tribal water users had, almost without exception, already
developed all available water resources within reservations’ watersheds (Anderson, 2010). This
was a result of federal development policies that historically ignored tribal water needs while
simultaneously encouraging non-tribal water users’ claims on water. However, tribal Winters
rights are federally reserved, which means that unlike state appropriative rights, they exist even if
water is not diverted or used. Furthermore, since Winters rights are a product of federal law
instead of state law, they may be interpreted to take precedence over appropriative rights, which
are a product of state law.
In order to place federal Winters rights within this context of states’ previously existing
appropriative rights, the Supreme Court defined Winters rights by the date of the establishment
of each tribe’s reservation. Under the appropriative system, this definition makes pre-developed,
non-Indian water claims junior to tribal water rights in most Western watersheds.
Beginning in the 1970s, tribes sought their rights through state and federal court systems (Moon,
2006). Litigation (bringing suit against other water users in the reservation’s watershed) or
adjudication (court arbitration) were the most common methods. Because tribal water rights are
federal law, the first several tribal water rights cases were tried in the Supreme Court, and were
settled in favor of the litigating tribes.
However, over the next decade, two events led tribes to shift away from litigating to secure water
rights – a shift of opinion within the Supreme Court, and a new application of the 1952
McCarran Amendment (Moon, 2006; Fort, 2012).
Throughout the 1980s and 1990s, The Supreme Court’s political alignment began to turn away
from favoring tribal water rights over pre-established uses for water in tribes’ watersheds (Moon,
2006; Anderson, 2010). This shift was partially political and partially practical: under present

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water resource conditions, strict application of state appropriative rights would render the non-
Indian, junior water claims forfeit until senior water rights could be met (Anderson, 2010).
Meeting the full amount of all tribal claims would also take more water than the West currently
has (Wheldon & McKnight, 2007). This change in court opinion was exemplified by the 1985
Supreme Court case Arizona v. San Carlos Apache Tribe, in which the Court established that,
under the 1952 MacCarran Amendment, tribal water rights cases could be tried in state courts as
long as state courts applied federal law. Tribal mistrust of state courts, and the realization that
any cases that went against tribal water interests could establish case law to weaken Winters
rights, temporarily stalled many tribes from securing their Winters rights (Moon, 2006; Fort,
2012). To date, out of 560 federally recognized tribes, 29 tribes have received water settlements
(Bushnell, 2011, citing Whiting, publication pending.)
These unsettled Winters rights claims have been compared to the mythical “sword of Damocles,”
hanging by a thread over the non-Indian West’s economic future (Bogert, 2008). They prevent
economic development for both tribal and non-tribal interests: tribes cannot develop water
resources they do not have, and non-tribal interests will not gamble on water resources they
might lose when a nearby tribe’s senior water rights are fulfilled (Wheldon & Mcknight, 2007;
Bark, 2009; Anderson, 2010).
In addition to Winters rights, tribal water rights may be defined by two other forms of federally-
reserved water rights. These are much more rare, and include Pueblo rights (from the Spanish
word for “settlement” or “village”), and “time immemorial” or “aboriginal” rights.
The Treaty of Guadalupe-Hidalgo established Pueblo rights as a result the negotiations ended the
Mexican-American War of 1846-48 (Stevens, 1988). The United States and Mexican
governments established that water rights of former Mexican citizens under Mexican and
Spanish law would be upheld in lands ceded to the United States under the Treaty (Stevens,
1988; Utton Transboundary Resource Center, 2013). These included water rights granted to
several Indian settlements, primarily in New Mexico and California.
“Time immemorial” or “aboriginal” water rights exist based on the assumption that reservations
formed by treaties have implicit water rights to maintain tribal occupations such as fishing; and
that tribes that remain in their ancestral homelands hold implicit priority rights to the water
resources needed to maintain their traditional life-styles. One of the tribes in the Arizona case
study holds “time immemorial” rights which, by definition, pre-date another tribe’s Winters
water rights (Hayes, 2012).
In Summary: Multiple Rights Systems
Multiple water rights systems can both help and harm the prospects of resolving a water conflict
through cooperative means. By offering established prioritizations and legal structures, they can
clarify decisions during a negotiation. However, when multiple rights systems come into conflict
– such as the West’s appropriative rights and Winters rights – problems result as rights systems
seem to “compete” with each other for legitimacy. Since most water rights systems exist as state
law, they can also experience changes over time as new policies and legislation comes into
effect. As issues are negotiated, solutions may deviate from the norms prescribed by rights

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systems; but rights systems will nearly always form the basis for such an agreement. Successful
negotiations require a firm grounding in each of the relevant water rights systems appropriate for
the region and issue.
III. Inter-Watershed Boundaries
It is possible to
look at a map of
the United States
and notice a
marked difference
between the right
and left halves.
Western states are
larger than Eastern
states, with
“neater”
boundaries rather
than the
meandering
“puzzle piece”
boundaries of Eastern states. These boundary differences – summarized in Table 2 - were
literally shaped by the surveying methods used (Black & Fisher, 2001).
Just as the Eastern United States adapted English common law into regional water rights,
surveyors used the English common law system of metes and bounds when creating the East’s
boundaries (Black & Fisher, 2001). This system relied on line-of-sight surveying methods.
Boundaries could be determined by man-made markers, such as buildings or markers stones, or
by natural features such as trees, streams or rivers. The use of natural features such bodies of
water meant that boundaries were more likely to run along, rather than across, rivers or
watersheds.
The Western United States was settled at a later date than the East. Surveyors engaged in
national planning used the General Land Survey (GLO) System to determine Western boundaries
by cardinal compass directions (Black & Fisher, 2001). This approach yielded a much more tidy
appearance on paper. By completely ignoring natural features and topography, however, major
rivers are much more likely to be interstate in the West.
This arrangement of boundaries has had three main effects on United States water issues (Black
& Fisher, 2001). First, each time water users want to accomplish anything on the state level –
such as regulate water withdrawals or preserve in-stream water levels for endangered species –
multiple states are required to communicate and work together. Second, the interstate nature of
United States rivers also draws the federal government into whatever conflicts might arise. The
United States Constitution’s Commerce Clause guarantees the federal government the right to
regulate waterways used for interstate commerce and shipping (Macdonnell, 1989). Finally,
multiple federal and state agencies have arisen in order to manage relationships between the

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local, state, and federal interests in each watershed. The effect of these agencies will be
examined in the next section.
Each of these factors increases the likelihood of conflict arising from multiple players trying to
protect their river interests, and increases the difficulty of resolving conflict when it does arise.
There is obviously nothing a mediator can do to affect these boundaries. However, understanding
what boundaries a specific water source crosses or is affected by will help a mediator identify
what parties should be
involved in
negotiations.
Boundaries will also
affect what level of
conflict is played out
– i.e. local, state,
regional, or federal.
IV. Governmental
Agencies
The Commerce
Clause gives the
federal government
jurisdiction over
interstate waterways,
but federal
jurisdiction is
administered by a
number of different
agencies with different regional commissions. In the Eastern United States, the Army Corps of
Engineers and the Tennessee Valley Authority are key agencies. Western U.S. water systems are
managed by agencies including the Bureau of Reclamation, the Army Corps of Engineers, and
the Bureau of Land Management. Since the early 20th
century, the number of agencies involved
with water management has grown to at least 24 different agencies (Black & Fisher, 2001) as
shown in Table 3.
At the state level, the complexity increases even more. In Arizona, there is neither a statewide
water plan nor a statewide agency responsible for coordinating all of Arizona’s water resources.
The Arizona Department of Water Resources (ADWR) is the most comprehensive of the state’s
multiple water agencies, yet its primary authority is over groundwater in Active Management
Areas (places were the groundwater withdrawals are in excess of the rate of replenishment).
The role of these agencies in water conflict will be examined more closely in the two case
studies, but it is important to note that for any given conflict, multiple agencies may be involved.
Water resources are usually managed by more than one agency, and may also fall under the
jurisdiction of state or local agencies. Another common occurrence is that a water system will be
managed by a “hybrid agency” – an entity, such as the Salt River Project or the Tennessee Valley

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Authority, which is owned by a state or federal government but run by a business arm and
responsible to shareholders. These agencies are particularly important in situations in which
water is used for irrigation, hydropower, or other infrastructure or utilities-related needs. During
negotiations, it is crucial to identify which agencies have responsibilities related to the involved
water source. The importance of this will be illustrated in the next section, as I examine two case
studies to understand the ways that rights systems, inter-watershed boundaries, and multiple
federal and state agencies’ involvement shape current trends in U.S. water conflict resolution.

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Section Two: Case Studies
Introduction to Case Studies
“Water is personal, water is local, water is regional, water is statewide. Everybody has a
different idea, a different approach, a different issue, a different concern. Water is the most
personal issue we have…” – Susan Marks, 2009
As Ms. Marks’ comment (above) makes clear, water represents many different things to different
people. This becomes apparent when multiple parties negotiate over water resources. In contrast
to court litigation or adjudication, negotiated settlements are viewed as a strategy that gives
stakeholders the opportunity to reach mutually beneficial agreements in situations of multiple
conflicting interests (Bogert, 2008; Bark, 2009; Anderson, 2010; Tarlock, 2010). Michael
Bogert, a representative of the United States Department of the Interior, points out that
“Settlement negotiations foster a holistic, problem-solving approach that contrasts with the zero-
sum logic of the courtroom, replacing abstract application of legal rules that may have
unintended consequences for communities with a unique opportunity for creative, place-based
solutions reflecting local knowledge and values” – Bogert, 2008.
However, the flip side to this is represented by the comments of an Indian water rights attorney,
Dan Decker, as quoted by Daniel McCool: “All too often we get up from the table, and we have
a different understanding of what we have agreed to” (McCool, 2011). Negotiations can lead to
complicated and protracted “unsettled settlements” (McCool, 2011). Even when parties seem to
reach an agreement, resolutions may fail to be enacted for many reasons including lack of
constituents’ support; prohibitive expense, lack of funding, or ineffective cost-sharing
mechanisms; unresolved issues or lack of clarity in the agreement; and “spin-off” issues that
arise. In this section, I present two case studies that illustrate successful and unsuccessful
negotiations over United States water resources. After summarizing each conflict and outlining
the positions, needs and interests of each of the stakeholders, I provide an analysis of the
conflicts and highlight the ways that stakeholders helped or hindered the resolution of the
conflict.
I. American Southwest Case Study: Arizona Water Settlements Act of 2004
1.1 Background
“Battles over water in the West are always about something more. At their most elemental, they
are about survival.” – Bettina Boxall, 2007
Issues of survival are intrinsic to Western water conflict, as noted in the above comment
concerning a 2007 water deal by the City of Las Vegas (Boxall, 2007). They are defined by
attempts to balance collective survival against multi-stakeholder water needs. In the face of
drought, fully-allocated water resources, and increasing expense, the strategies for resolving such
disputes are also changing. The litigation and “winner take all” politics that have historically
defined Western water conflict are giving way to negotiated water settlements. This shift has, in

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part, been expedited by the need to find water to meet tribal Winters claims (Wheldon &
McKnight, 2007; Bark, 2009).
Unsettled Winters rights claims seem to threaten existing non-Indian water users (Bogert, 2008;
Anderson, 2010; Hayes, 2012). However, they have also been characterized as a “…needed spur
towards cooperation” (Bogert, 2008). These settlements shift Western water disputes out of the
courtroom and into spaces of negotiation, giving water users opportunities to simultaneously
settle both Indian and non-Indian claims, reconcile differences between Federal and State laws
and multiple rights systems, ensure each party has at least some needs met, realistically
acknowledge limits to water resources, encourage improved water management and future use
planning on all sides, provide for water marketing agreements, and, in the case of Indian
reservations, bargain for the infrastructure to utilize and distribute the water they are entitled to
(Bogert, 2008; Hayes, 2012). However, despite these benefits, tribal water settlements have had a
hit-or-miss record of success. Arizona, in particular, has had several tribal water settlements that
appeared to reach a resolution, only to be stalled during the implementation phase.
The 2004 Arizona Water Settlements Act (AWSA) represents a capstone effort to resolve several
of these outstanding water rights disputes between state, tribal, municipal, and federal interests
(Bark, 2009). The Act – the largest settlement of Native water rights in history (Bark, 2009) – is
seen as setting a new example for regional water settlements (Bogert, 2008; Bark, 2009).
AWSA was passed into law as Public Law 108-451 after more than two decades of dispute and
fifteen years of negotiation (Bark, 2009). In addition to settling two tribes’ water rights that had
remained un-quantified and un-met for almost a century, the settlement provided new sources of
long-term water contracts for Arizona municipalities; settled issues of debt repayment and water
allotment for the federally constructed Central Arizona Project (CAP) canal, which supplies
around 21% of Arizona’s annual water needs with water from the Colorado River; and aided
future economic development by firming5
present and potential water rights. It also amended the
Southern Arizona Water Rights Settlements Act (SAWRSA) of 1982, an earlier water settlement
between the City of Tucson, the United States, and the Tohono O’odham Nation that stalled due
to intra-stakeholder disputes and lack of clarity in the proposed agreement.
1.2 The Issue
Winters rights define tribal water claims as existing from the founding of tribal reservations;
thus, tribes are senior rights holders in most Western watersheds. However, past non-Indian
development of water resources has meant that water is often not available for tribal use within a
reservation’s watershed. This was the case for both the Gila River Indian Community (GRIC)6
and the Tohono O’odham Nation (TON) reservations of Southern Arizona. Both tribes had been
separately litigating against the State of Arizona since the 1980s, with varying degrees of
success.
The Gila River Indian Community had theoretically received some water through both the San
Carlos Irrigation Project Act of 1924, and the 1935 Globe Equity Decree (United States District
5
To firm, in a legal context, means to legally solidify and increase the reliability of a right.
6
In addition to Winters rights, the GRIC also hold “time immemorial” or “aboriginal” rights to water.

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Court, D. Arizona, 2003) but the rights were only partly realized and the tribe felt that the United
States government, acting as legal trustee of tribal interests, had not pursued the full extent of
tribal water entitlements (United States, 2003). This led the GRIC to file a series of lawsuits in
both state and federal courts, beginning in 1982.
In 1975 the Tohono O’odham Nation, with the United States government acting as trustee, had
opened litigation against the City of Tucson in order to secure tribal Winters rights and to secure
damages for groundwater pumping (Wheldon & McKnight, 2007). SAWRSA had theoretically
resolved this dispute out of court, benefiting the Tohono O’odham Nation and two of its eleven
districts (Wheldon & McKnight, 2007). A combination of internal tribal disagreements and
legislative oversights had prevented the tribe from realizing concrete benefits from the act
(McCool, 2011). Water allotees from the San Xavier District subsequently refused to drop legal
claims against the City of Tuscon, and opened two new cases against the city in 1993. These
unresolved, ongoing claims prevented future Arizona water planning for the cities of Phoenix
and Tucson, as well as jeoparded current water users (Bark, 2009).
The two tribes joined forces and sought a combined water settlement beginning in the mid-1990s
(Bark, 2009). With federal support, and water from the Central Arizona Project (CAP) (a
federally funded state water project), the State of Arizona began to work with the two tribes and
bring key stakeholders to the negotiating table. Over 40 stakeholders were involved in the
negotiation process (Reece, 2011), including multiple irrigation districts; municipalities;
industrial water users such as Phelps Dodge and ASARCO; the United States Government; the
U.S. Bureau of Reclamation; the State of Arizona; the State of New Mexico; the Salt River
Project; CAP/Central Arizona Water Conservation District; the Gila River Indian Community;
and the Tohono O’odham Nation. Other parties with interests in the negotiations’ outcome
included the Navajo Nation and the San Carlos Apache Tribe.
Each of these stakeholders had individual reasons for being involved in the negotiation process.
Central issues involved settlement of water claims between the Gila River Indian Community,
the Tohono O’odham nation, the United States government, and the State of Arizona; debt
repayment between the United States Government and the Central Arizona Water Conservation
District; sharing of CAP water between the states of Arizona and New Mexico; and ensuring
future water supplies for the City of Tuscon and the City of Phoenix (Bogert, 2008). Various
other industrial and irrigation water rights-holders were also involved to ensure that they retained
access to their non-Winters water claims. The Central Arizona Project had given Arizona a slight
surplus of Colorado River water, which was used to fill tribal claims. In exchange for this high
quality (drinking quality) water, tribes agreed to settle for a third of their original water claim,
along with state provision of funding to build the tribes’ reservations’ water infrastructure (Bark,
2009). Tribes also signed leases and water exchanges with several Arizona municipalities,
including Phoenix and Tucson. Because CAP water was used to settle federally-reserved tribal
water rights, the United States government agreed to settle the issue of CAP construction costs
with Arizona. With the major claims cleared up, a flurry of smaller deals (Reece, 2011) settled
issues such as New Mexico’s allotment of CAP water and various industrial uses of water. In the
next sections I will examine the different positions, needs, and interests of each of the main
stakeholders in the negotiations, as laid out in Table 4 (next page).

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Table 4. Arizona Water Settlement Act Stakeholder Positions
Stakeholder GRIC TON San Carlos
Indian Tribe
Navajo Nation U.S.
Government
Arizona New Mexico Local Interests
Persuasive power,
public opinion.
Allies? Support fromthe
federal government
in its role as trustee
oftribal interests;
working with the
TON to receive
resolution of
claims through the
same Act.
Support fromthe
federal government
in its role as trustee
oftribal interests;
working with the
GRIC to receive
resolution of
claims through the
same Act.
Potential support
fromthe federal
government in its
role as trustee of
tribal interests;
potential support
fromother Arizona
tribal interests who
have yet to secure
their water rights.
Potential support
fromthe federal
government in its
role as trustee of
tribal interests;
potential support
fromNew Mexico
as it works to
ensure its allotment
ofCAP water;
potential support
fromother Arizona
tribal interests who
have yet to secure
their water rights.
Tribes with water
rights yet to be
settled.
N/A N/A Arizona
Persuasive power;
use oflitigation,
political power.
Forcing power;
persuasive power;
use oflitigation.
Persuasive power;
use oflitigation,
political power.
Persuasive power;
use oflitigation,
political power.
Power Position Persuasive power;
use oflitigation,
political power.
Persuasive power;
use oflitigation,
political power.
Persuasive power;
use oflitigation,
political power.
Protecting water
rights by
cooperating with
the negotiation
process.
BATNA Litigation and
court arbitration.
Litigation and
court arbitration.
Litigation and
court arbitration.
Litigation and
court arbitration.
Litigation and
court arbitration;
legislation.
Litigation and
court arbitration.
Litigation and
court arbitration.
Buying water from
tribes, Arizona, or
the federal
government.
Modify AWSA
legislation to
ensure adequate
water supplies
remain for
allocation to a
Navajo water
settlement.
Timely resolution
ofIndian and non-
Indian water rights
claims in order to
improve regional
stability and
economic
development.
Timely resolution
ofIndian and non-
Indian water rights
claims in order to
improve regional
stability and
economic
development.
Secure New
MexicoÕs
allotments of
Colorado River
water fromCAP
water and through
water exchanges
and water
marketing.
Interests Secure tribal water
allotments from
CAP water and
through water
exchanges and
water marketing.
Secure tribal water
allotments from
CAP water and
through water
exchanges and
water marketing.
To modify and/or
appeal sections of
AWSA pertaining
to the Gila River
and affecting the
water available to
the San Carlos
Apache Tribe
reservation.
In favor ofAWSA
as a means of
reducing
uncertainty and
risk associated with
un-firmed water
rights.
Needs Water to fulfill
longstanding water
rights; support
traditional
lifestyles and
irrigated
agriculture; and
enable the
reservationÕs
economic
development.
Water to fulfill
longstanding water
rights; support
irrigated
agriculture; and
enable the
reservationÕs
economic
development.
Water to fulfill
longstanding water
rights; maintain
cultural and
spiritual traditions;
protect endangered
species; support
irrigated
agriculture; and
enable the
reservationÕs
economic
development.
Water to fulfill
longstanding water
rights; deliver a
safe municipal
water supply to
communities; and
enable the
reservationÕs
economic
development.
Adequate
fulfillment of
obligations to
citizens and states.
Adequate
fulfillment of
obligations to
Indian and non-
Indian citizens.
Adequate
fulfillment of
obligations to
Indian and non-
Indian citizens.
Water to provide
municipal drinking
water, agricultural
irrigation water,
and water for
industrial
processing.
Believes that
AWSA will hurt
their own struggle
for realization of
tribal water rights
by placing
restrictions on
water which they
hope to incorporate
into their own
settlement with
New Mexico and
Arizona.
Supportive of
AWSA as a means
to settle unrealized
tribal water rights,
with the stipulation
that financial costs
ofthe settlement
must be
commensurate with
the benefit to each
ofthe stakeholders.
Supportive of
AWSA as a means
tribal water rights,
settle CAP water
project financing
payments between
the federal
government and
Arizona, and firm
existing and future
water rights.
Cautiously in favor
ofAWSA; believes
that AWSA
legislation needs to
be modified to
ensure adequate
CAP water
supplies remain for
allocation towards
New MexicoÕs
portion of
Colorado River
water rights.
Positions Supportive of
AWSA as a means
tribal water rights.
Supportive of
AWSA as a means
tribal water rights.
Believes that
AWSA will directly
harmtheir
reservation by
severely decreasing
the amount of
water in the Gila
River that flows
through their
reservation.

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1.3 Positions
a. Tribes
Tribal interests in the AWSA negotiations included two main negotiating parties – the GRIC and
the TON - and two auxiliary stakeholders, the San Carlos Indian Tribe and the Navajo Nation.
Tribes were willing to set aside past differences in order to negotiate with each other and the
state and federal government for several reasons.
In general, negotiated settlements avoid the potential of court litigation going against tribes and
thereby setting harmful precedents for future tribal water claims. Cooperation can also help
resolve longstanding tensions between tribes and other non-Indian water users within the
watershed.
The GRIC and TON were also in need of the greater bargaining flexibility offered by
settlements. Court decisions on water rights cases may grant tribes a larger amount of water than
that which they can gain by negotiations, but unless tribes have infrastructure in place to receive,
store and distribute the water they are unable to actually receive any of the water. This situation
is referred to as having “paper water” (United States, 2003). Both the GRIC and the TON had
some form of “paper water” prior to negotiations; however, neither tribe had the necessary
infrastructure or the finances to build infrastructure. The tribes settled for roughly one third of
their full legal water rights (Bark, 2009) in exchange for state and federal investments in
reservation water infrastructure.
This tradeoff also illustrates one of the disadvantages of tribal water settlements: compromise is
essential to negotiation, and tribes usually settle for less than the full amount to which they have
paper or potential rights. Each settlement also reduces the amount of water available for
allotment to other tribes’ settlements, since there is a finite amount of water in each state. The
San Carlos Indian Tribe and the Navajo Nation were both worried about the effect of AWSA on
their own potential future settlements. AWSA filled GRIC and TON water allotments with the
rest of Arizona’s “surplus” (unallocated) CAP water, thus depleting that source as a basis for
future tribal water settlements. However, some commentators argued that this surplus CAP water
was what had fueled Arizona’s push to settle tribal water claims, and speculated that, upon full
allocation of this water, future tribal water settlements would be more difficult to negotiate
(Wheldon & McKnight, 2007).
1. Gila River Indian Community (GRIC)
(This section draws extensively upon the prepared statement of Richard P. Narcia, Governor,
Gila River Indian Community, Sacaton, AZ, 2003 (United States, 2003))
Summary
The Gila River Indian Community is composed of two peoples, the Akimel O’odham (also
known as the Pima) and the Pee Posh (also known as the Maricopa). Both have lived in the
Phoenix Valley of central Arizona for centuries, where the Gila River has historically supplied
them with water for extensive irrigated agriculture and supported their traditional lifestyle.
Because of the stability and affluence brought by proximity to the Gila River, members of the

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Community were able to adapt to, aid, and live alongside the early influx of Euro-American
settlers, and even served within the first Arizona Territorial Guard.
Beginning in the late 19th
century, non-Indian settlers began diverting water from the Gila River.
These diversions drastically reduced the amount of water available for tribal use. As the Gila
River literally dried up, irrigated agriculture was no longer a viable option for the self-sufficient
food production the Community had always enjoyed. Poverty became the norm. Eventually
many members of the Community came to rely on food supplied by the United States
government. The Community viewed the loss of their water as a major detriment to their quality
of life, exemplified by the extremely high rates of diabetes within the Community which they
linked to the change from traditional eating habits brought about by removal of irrigation water.
Because the GRIC currently inhabit the same portion of land that they have historically, they
hold “time immemorial” or “aboriginal” rights to water in addition to their Winters rights. In
recognition of these rights, in 1924 Congress passed the San Carlos Irrigation Project Act to
authorize the San Carlos Irrigation Project – a portion of which was intended to supply water to
the Gila River Indian Community. However, the section of the project that was supposed to
supply the Community was never finished; thus, the GRIC never received any actual water from
this Act. Subsequently, the United States government – acting in its role of trustee for tribal
interests – sued upstream non-Indian water users to release more water for use of the GRIC. This
case resulted in the 1935 Globe Equity Decree, a consent decree stating that the GRIC had rights
to 300,000 acre-feet of Gila River water (United States District Court, D. Arizona, 2003). This
amount was much less than the Community had had access to prior to non-Indian diversions, and
the Community felt that the United States did not pursue this suit to the full extent of tribal
interests. In addition, the Community resented the United States’ prevention of the GRIC from
intervening to represent their own interests within the case. Finally, the Community never
received more than 100,000 acre-feet of the 300,000 acre-feet they were promised through the
Decree.
Beginning in the mid-1970s, the GRIC and the United States government filed a case in an
Arizona state court to “determine and establish the priority of water rights in the Gila River
system and its tributaries” (United States, 2003). While this case was ongoing, the GRIC also
filed a 1982 case in a federal district court to enforce the 1935 Globe Equity Decree against
upstream users and secure the rest of the Community’s 1935 water allotment. Because of the
large amount of non-Indian water users who would be affected by a finding for the GRIC,
various stakeholders – including the State of Arizona; the City of Phoenix; and the United States
government; entered into negotiations to settle the GRIC’s water claims in 1989. These
negotiations culminated in the Arizona Water Settlements Act of 2004.
The GRIC did not expect that regaining water would reverse damage to community health, food
autonomy, culture, and economy. However, many members felt that recognition and fulfillment
of tribal water claims would restore some agency to the Community by increasing on-reservation
economic potential and enabling off-reservation opportunities such as water marketing. The
opportunity to represent their own interests was also extremely important to the Community;
many Community members felt that the GRIC had received very little water under the Globe

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Equity Decree because the United States had prevented the GRIC from intervening on their own
behalf.
2. Tohono O’odham Nation (TON)
(This section draws extensively upon the prepared statement of Vivian Juan-Saunders,
Chairwoman, Tohono O’odham Nation, Sells, AZ, 2003 (United States, 2003))
Summary
The Tohono O’odham (also known as the Papago) have historically inhabited parts of Central
and Southern Arizona and Northern Mexico; the present-day TON reservation is located in the
Sonoran Desert south of Tuscon, AZ. Throughout the time AWSA was negotiated, the
reservation consisted of eleven political districts7
– nine contiguous districts and two non-
contiguous districts.
Culturally and linguistically, the Tohono O’odham share roots with two other Native groups in
Arizona: the Hia-Ced O’odham8
, and the Akimel O’odham who are now part of the GRIC.
Like the Akimel O’odham, the Tohono O’odham have traditionally relied on agriculture to
sustain their culture. Instead of the former’s riparian irrigation-based farming system, however,
the TON has used groundwater for farming (Colby et al., 2005). In contrast to the GRIC,
groundwater has been a distinguishing factor in the TON’s negotiations surrounding AWSA;
beginning in the 1970s the Nation’s agriculture was affected by groundwater depletion as the
TON competed with non-tribal central Arizona water users. The City of Tuscon, as well as
several extensive agricultural and industrial operations, had come to rely on groundwater that
originated underneath the TON reservation. This occurred because of the relatively unclear legal
guidelines surrounding rights to groundwater (Black & Fisher, 2001). The Nation claimed losses
due to reservation land subsidence and sinkhole formation resulting from extensive groundwater
pumping. In 1975 the TON and the United States, in the role of trustee of the tribe’s interests,
sued the City of Tuscon and other non-Indian water users for pumping groundwater (Wheldon &
McKnight, 2007). This suit was specifically on behalf of 1) the Tohono O’odham Nation as a
governmental entity; 2) the San Xavier and the Schuk Toak reservation districts, two of the
Nation’s districts that had experienced the most damage from sinkhole formation; and 3)
individual Indian residents of the San Xavier and Schuk Toak districts.
Because the suit affected the second largest municipality in Arizona, as well as large companies
such as ASARCO Incorporated, the defendants sought to open negotiations towards an out-of-
court settlement. The parties to these negotiations included the State of Arizona; the City of
Tucson; and agricultural and industrial interests. On behalf of the TON, the parties included
representatives of three different divisions of the Nation: the Tohono O’odham Nation as a
sovereign governing entity, the San Xavier and Schuk Toak districts as political entities, and
individual claimants within the San Xavier and Schuk Toak districts. The needs of each of these
7
In 2009, according to the tribal website, the TON acquired land to create a twelfth district for the Hia-Ced
O’odham.
8
The Hia-Ced O’odham are not yet federally recognized as an official tribe; however, according to the tribal
website, the Tohono O’odham recognize them as a tribe and recognize shared cultural history with them.

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TON divisions was theoretically fulfilled by the 1982 SAWRSA, which entitled the TON to
financial compensation and 66,000 acre-feet of water annually, 37,800 acre-feet of which was
CAP water allocated to the San Xavier district and Schuk Toak district. The final division of
water between the two districts was left to the decision of the Nation’s governing entity.
In exchange, the Nation agreed to limit groundwater withdrawals to ensure the sustainability of
groundwater supplies for future Indian and non-Indian users. Upon passage of SAWRSA, the
TON agreed to dismiss the court case after the United States government, the City of Tucson,
and non-Indian water users performed the settlement’s obligations.
However, this agreement unraveled due to tensions within the TON’s three involved parties. At
the time that SAWRSA was negotiated, the TON was simultaneously undergoing a change in
water management structures and drafting a new constitution. These changes prevented
immediate division of the water between districts. Furthermore, the changes obscured clear
guidelines for such a process. Because of this ambiguity and subsequent lack of assurance of
their fair allotment of water, some of the San Xavier district allottees disagreed with state and
federal government officials’ decision to leave final water allotments up to the TON. The San
Xavier allottees also felt that, during negotiations, the main represented TON viewpoint was that
of the Nation as a sovereign governing entity, and that their specific interests and concerns had
not been protected and advanced. As a form of “insurance” against their water claims, these
allottees opposed dismissal of the litigation against the City of Tucson. In 1993 they filed a class
action lawsuit, Alvarez v. City of Tucson, as well as a lawsuit against the United States, Adams v.
United States. Subsequently, the federal government placed the TON’s water allottment and
financial compensation in trust for the tribe until resolution of the claim, or until a new
agreement replaced SAWRSA.
When the opportunity to negotiate amendments to SAWRSA was incorporated into the ongoing
negotiations for AWSA, the San Xavier district allottees’ suits against the City of Tucson and the
United States were suspended. The TON’s role in the AWSA negotiations was primarily to
clarify and settle the water allottment issues between the tribal government, the district
government and the individual allottees. Upon intra-tribal clarification of these claims, the
individual allottees agreed to dismiss the suits against the City of Tucson and the United States.
AWSA included specific amendments to SAWRSA to clarify allocation of settlement water to
the San Xavier and Schuk Toak districts.
3. San Carlos Apache Tribe
(This section draws extensively upon the prepared statement of Kathleen W. Kitcheyan,
Chairwoman, San Carlos Apache Tribe, San Carlos, AZ, 2003 (United States, 2003); as well as
Court Order 272 F.Supp.2d 860 (United States District Court, D. Arizona, 2003))
Summary
Though not a party to the final negotiated settlement9
, prior to AWSA’s passage the San Carlos
Apache Tribe was invited to testify regarding the effect of AWSA water diversions upon their
reservation. At that time the tribal government strongly opposed the passage of AWSA.
9
In their submitted testimony regarding AWSA, the San Carlos Apache Tribe claimed that they had been
“…intentionally and systematically excluded from the drafting of this Settlement {AWSA}, and from participating

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The San Carlos Apache Tribe’s reservation is located upstream from the GRIC on the Gila River.
As established by the 1935 Globe Equity Decree, the Tribe’s water rights are junior only to the
GRIC’s “time immemorial” rights. The two tribes’ water interests became connected when, in
1924, the Bureau of Reclamation purchased land inside the San Carlos Apache reservation to
create Coolidge Dam and the San Carlos Reservoir. These structures were originally intended to
impound and store water for the San Carlos Indian Irrigation Project that was to supply the
GRIC’s water allotment.
The Apache were ambivalent about the water project for several reasons. The Reservoir created
the San Carlos Lake over the Apache town of San Carlos, flooding Apache burial grounds. The
Bureau of Reclamation and the San Carlos Apache tribe eventually reached a compromise in
which a concrete slab was laid over burial sites to prevent the human remains’ disturbance by the
waters of the Reservoir.
A second reason for Apache reluctance towards the project was that the tribe was not allowed to
operate or store water in the Reservoir. All water was to be used for the San Carlos Irrigation
Drainage District (SCIDD) and the GRIC. The Bureau of Indian Affairs (BIA) was responsible
for managing water levels in the Reservoir. The 1935 Global Equity Decree further solidified
this stipulation. Because the San Carlos Tribe lacked control over the Reservoir, in 1979 and
1999 the Tribe had to seek a Grant of Concession in order to operate the San Carlos Lake as a
fishing and recreational facility for tribal and non-Indian use. The location of the Reservoir
within reservation boundaries, coupled with the fact that the Tribe could not utilize the Reservoir
or independently operate it, became a sore point and was seen as a violation of tribal sovereignty.
The San Carlos Apache Tribe Water Rights Settlement Act of 1992 (Public Law 102-575)
theoretically addressed these issues by allotting the San Carlos Apache Tribe 52,838 – 63,838
acre-feet of CAP water annually. The Settlement also granted the Tribe the right to exchange
some of this CAP water for an equivalent amount of water already in the Reservoir on their
reservation. In this way the Tribe gained the right to some of the water in the Reservoir. This
water has been used for irrigation on the reservation, as well as to maintain minimum levels of
water in the Reservoir in order to support fish stocks and wildlife. However, since the Tribe’s
reservation straddles the Salt River and Gila River watersheds, the Settlement only addressed the
Tribe’s rights within the Salt River watershed, leaving the Gila River watershed rights yet to be
addressed.
The Tribe’s opposition to AWSA stemmed from their worry that additional water withdrawals
from the Reservoir, in order to meet AWSA water allotment needs, would drain the Reservoir
past the minimum levels needed to maintain fish stocks and wildlife. These fish stocks and
wildlife include several endangered species, as well as sport fish that draw anglers and bring
income to the Tribe. The Tribe also feared that such depletion of the Reservoir would cause
damage of tribal burial grounds that are currently underwater. Such damage could occur either
in the negotiations of the settlement agreements which have occurred over the last several years.” (United States,
2003). However, the State of Arizona maintains that “…the San Carlos Apache Tribe was not excluded from the
negotiation or drafting of the Arizona Water Settlements Act….To the contrary, the Tribe was repeatedly invited to
participate, but chose not to.” (United States, 2003).

Grogan Div III
through increased wave action in shallow waters, or by uncovering the graves and allowing
looters easy access to the remains and artifacts. Furthermore, the Tribe worried that, in the
aftermath of AWSA, there would not be sufficient CAP water left to meet their unresolved Gila
River watershed claims. As a result of these concerns, the San Carlos Apache Tribe attempted
several modifications to AWSA during the negotiation process, and also attempted several court
challenges (United States, 2003).
These challenges were unable to directly halt AWSA. However, they resulted in the addition of
Title IV of AWSA, in which the U.S. and Arizona governments made provisions for a
comprehensive technical review of the affect of the new water diversions on the tribe’s current
water resources and set aside money for future Gila River watershed settlements with the San
Carlos Apache. As of 2013 the tribes’ concerns had yet to be resolved.
4. Navajo Nation
(This section draws extensively upon the prepared statement of Joe Shirley, Jr., President,
Navajo Nation, Window Rock, AZ, 2003 (United States, 2003))
Summary
Though not a party to the negotiated settlement, prior to AWSA’s passage the Navajo Nation
was invited to testify regarding the effect of AWSA water diversions upon their reservation. At
the time the Navajo Nation opposed the passage of AWSA without assurance that the Act’s
allocation of water supplies would not jeopardize the amount or source of water available for a
future water settlement for the Navajo.
The Navajo Nation reservation is the largest Native American reservation in the United States.
The reservation is located in sections of both New Mexico and Arizona, and thus has an interest
in water allocations in both states. The western (Arizona) portion of the reservation, in particular,
lacks access to water for its residents’ daily use. For years the Navajo have considered water
from the Colorado River – which runs along the reservation’s western border - to be essential to
meeting reservation water needs. Both Arizona and New Mexico’s portion of Colorado River
water was to be supplied out of the CAP infrastructure in Arizona. The Navajo Nation
considered the settlement a threat to its potential water supply because much of the GRIC’s
water allocation was to come from the finite amount of un-allocated CAP water, thereby
substantially diminishing the amount of CAP/Colorado River water available to meet Navajo
needs. However, the Nation also considered settlement of the GRIC’s water needs a necessary
step in order to clarify and firm regional Indian and non-Indian water rights.
Although Navajo water rights were not addressed through AWSA legislation, Navajo
participation in negotiations paved the way for the tribe’s settlement by a separate act. Navajo
water rights were eventually settled in the 2009 Northwestern New Mexico Rural Water Projects
Act (Navajo-Gallup Water Supply Project/Navajo Nation Water Rights).
b. Federal
In the century since Winters rights were created, federal policies regarding tribal water rights
have evolved alongside federal policy towards Native American tribes. At the time of their

Grogan Div III
creation, Winters rights were a controversial, unprecedented anomaly. They resulted from a court
case that, according to prejudices of the time, should have favored the non-Indian water users.
They represented one of the first judicial recognitions that tribes were entitled to certain rights
that should be honored even at a cost to non-Indian citizens. Winters rights gave tribes a paper
claim to resources and, by extension, the potential power to collectively control their own
economic development and relations with non-Indian water users. This power was out of line
with the contemporary federal position towards Indian affairs – even though Winters rights
originated from an attempt to fulfill contemporary federal goals.
Winters rights effectively stemmed from the contemporary federal policy of “civilizing” Indian
cultures by assimilating them into agricultural labor – a long-term goal which could not be
realized without adequate water for crops. Thus, Winters rights are often defined by the number
of “practicably irrigable acres” within a tribal land base or reservation. However, this measure
places Winters rights in contradiction with the Dawes Act of 1887, which broke apart many
tribal reservations into land allotments for individual Indians. Not until the 1934 Indian
Reorganization Act were tribal land bases and governments re-established. Subsequently, the
U.S. government tried to resolve a few tribes’ Winters Rights through measures such as the 1935
Globe Equity Decree. However, federal agents were responsible for representing tribal interests,
and tribes were not allowed to advocate for themselves. Federal policies also did not encourage
states to seek resolution of tribal water claims, or encourage states to adapt water planning to
account for tribal water needs. This status quo did not change until the 1970s, when tribes began
acquiring legal ability to advocate for their own water rights through both state and federal
channels.
In general, current policies favor the resolution of Winters rights claims through negotiated
settlements wherever the financial cost is balanced by the benefits to both Indian and non-Indian
stakeholders. AWSA was one such situation. It fulfilled the United States’ legal responsibility to
both Indian and non-Indian citizens, thus ensuring against future litigation liability; improved
Indian and non-Indian relations within states; and laid the groundwork for other Indian and non-
Indian water claims to be settled, thus stabilizing and improving regional economic growth.
AWSA also included cost-sharing mechanisms which ensured the settlement did not place too
much of a financial burden on the federal government.
Summary
The federal government held a unique position within the AWSA negotiations, as the only party
responsible for representing its own position as well as protecting the potentially-conflicting
interests of each of the other main stakeholders.
The United States government’s treaty obligations as trustee of tribal interests were the most
stringent of these obligations, since Winters water rights are a product of federal law. For this
reason, in 1975 the U.S. government started the process of negotiations that led to AWSA by
suing the State of Arizona and local non-Indian water users on behalf of the Tohono O’odham
Nation. Instead of posing an overt threat to Arizona and non-Indian water users, this action was
likely intended as a way to bring together stakeholders and to provide incentive to negotiate a
water settlement – thereby reducing the number of conflicting claims for which the federal
government was responsible.

Grogan Div III
The treaty obligations require the U.S. government to not only represent tribes’ interests with
states but also with one another. Thus, the dispute between the San Carlos Apache Tribe and the
GRIC was of particular concern to the government for several reasons. The dispute opened up
the federal government for potential lawsuits from both the San Carlos Apache and GRIC. It also
jeopardized other non-Indian water users’ needs, thereby threatening Arizona’s ability to meet
these needs and potentially creating future extended water disputes that would likely involve
federal agencies including the Department of the Interior; the Bureau of Reclamation; and the
Bureau of Indian Affairs. Thus, the federal government was instrumental in negotiating AWSA’s
Title IV, which provides for the future resolution of San Carlos Apache Tribe claims.
The federal government also worked to ensure that both the States of Arizona and New Mexico
derived benefits from AWSA, in order to secure approval from both states’ Senators and thus,
that the resulting legislation would be supported in the Senate.
c. State
The 1968 Colorado River Basin Project Act formed the basis of both Arizona and New Mexico’s
involvement in AWSA negotiations. The Act defined the two states’ portions of Colorado River
water, and provided for the construction of the CAP (Central Arizona Project) to supply water to
both states against their Colorado River entitlements. This water provided for Arizona’s ability to
settle claims of the GRIC and TON; New Mexico was involved in negotiations to secure the
state’s share of CAP water, which it had rights to but had never built infrastructure to receive.
Both states were eager to settle CAP water allocation out of court, particularly surrounding the
issue of tribal claims. Typically, when rights are settled through litigation, states are required by
the McCarran Amendment to adjudicate all claims to a river system. This leads to very large and
complicated suits that can last for decades, and court outcomes do not address factors such as
cost-sharing and water marketing. In contrast, although AWSA was a complicated and lengthy
negotiation process, it offered the opportunity to resolve all claims on CAP water and design a
plan for effective long-term water management.
1. State of Arizona
Summary
AWSA provided an opportunity for the State of Arizona to settle outstanding tribal water rights
and allocate the remaining supplies of un-apportioned CAP water, thus eliminating uncertainty
among water users. By settling tribal water rights with CAP water, Arizona was also able to
settle debts the state owed the federal government in exchange for federal construction of the
infrastructure for CAP water.
2. State of New Mexico
Summary
AWSA included provisions to allocate the remaining, unallocated CAP water that was
not used for Indian water settlements. The State of New Mexico was entitled to a portion of this
water as part of the 1968 Colorado River Basin Project Act. The State of New Mexico never

Grogan Div III
received delivery of this water due to lack of infrastructure. New Mexico sought to ensure that
their rights to CAP water were firmed during the settlement process, and that provisions were
made for annual delivery of water.
d. Other
Local interests involved in the AWSA negotiated settlement include the City of Tucson; the City
of Phoenix; and private interests including irrigation districts and companies such as Phelps
Dodge and ASARCO Inc. These stakeholders were eager to participate in AWSA negotiations,
which lessened the risk of losing their water rights to tribes’ senior Winters rights. Industry
participants also sought to firm the amounts of water available for industry, irrigation, and
municipal use – an outcome for which they were willing to share some of the settlement’s
financial costs.
1. Local Interests
Summary
If the combined GRIC and TON water claims had of been found for in court, the Cities of
Phoenix and Arizona – Arizona’s first and second largest cities – would have lost rights to much
of the water they needed to support current and future growth rates. In addition to water for
municipal use, agriculture and industrial water rights would also have be forfeit.
1.4 Spin-Off Issues
Despite the general success of AWSA, an issue arose after the act’s passage which illustrates the
difficulty of enacting negotiated settlements in which many different stakeholders take part.
In 2009, the town of Payson, Arizona, applied for and received federal stimulus funds to repair
the town’s leaky drinking water pipelines (Trotter, 2011). The pipes carried water from C.C.
Cragin Dam Reservoir (Cragin Dam) in the Coconino National Forest. Cragin Dam was built by
the Phelps Dodge Corp. In 2004, the dam and reservoir passed into ownership of the Salt River
Project, a public utility in the state of Arizona. By 2005, as a result of AWSA, the dam and
reservoir again transferred ownership to the Department of the Interior, and then to the Bureau of
Reclamation (Salt River Project, 2012). Trouble arose, however, when the town of Payson
attempted to file a permit to repair the pipelines. The town soon discovered that both the Bureau
of Reclamation and the U.S. Forest Service - two different federal agencies - claimed
management capacity of the dam and its operations (Trotter, 2011).
The Bureau of Reclamation claimed that it had acquired ownership of the dam under AWSA,
and that its permit system should be used. The U.S. Forest Service – which had managed the
project when it was owned by the Phelps Dodge Corp. - claimed that a) it had not been one of the
stakeholders asked to negotiate AWSA; b) it had not been notified of any change in management
of the project; and c) since the project's pipelines ran across federal land, its permit system
should still be used to request repairs (Trotter, 2011; Gosar, 2012).
The Forest Service's permit considers a different section of the Endangered Species Act (ESA)
than that of the Bureau, and is therefore generally more stringent in order to protect national
forest land. The Bureau's permit is much more streamlined, designed to enable quick repairs to

Grogan Div III
projects. The Bureau had in fact already granted approval for the Cragin Dam repairs (Trotter,
2011).
When negotiations stalled between the two agencies, both agencies decided that a law was
needed to clear up jurisdiction (Gosar, 2012). In October 2011, after several attempts,
stakeholders managed to convince the Arizona Representative on the House Natural Resources
Committee to sponsor the bill through the House and Senate into law (Armstrong, 2011). Repairs
on the pipelines have resumed.
1.5 Take-Away Points
AWSA forced negotiators to grapple with key issues that had never been addressed in previous
settlements. In contrast to contemporary debates in the Southeastern U.S. (examined in the next
section), negotiations did not revolve around determining the nature of the water rights involved;
there was already a well-established legal structure to define the rights of various stakeholders in
relation to each other, and a clear hierarchy of priority for each claim. Instead, issues focused on
the ability of stakeholders to set aside past differences, compromise, and focus on crafting a
settlement that gave everyone something.
The sheer size of the combined tribal water claims helped the settlement, since state legislators
and water providers saw negotiations as an opportunity to resolve multiple outstanding water
claims at once. The public was willing to support the compromises necessary for the settlement
to take place, due to the large number of non-Indian water users in the affected watersheds.
 How do conflict-entrenched parties switch from litigation to negotiation?
State, federal, and tribal negotiators worked hard to secure broad support for the settlement
among their constituents. By securing broad support for the settlement among stakeholders,
negotiators secured the political will necessary to follow through on settlement agreements
(Jackson, 1993). This broad support for the settlement was crucial to its success. Many of the
parties involved in the settlement might have obstructed the process if they had not felt they had
a stake in its positive resolution. It also enabled stakeholders to continue working with each other
as the settlement entered the implementation phase in order to ensure all agreements were kept.
 How do views of negotiated water settlements vary among tribes?
Documentation of each tribe’s specific views on the AWSA settlement is scarce (see “what
challenges remain”). Each tribe likely viewed the process of securing their water rights in
differing ways that ranged from legal settlement to economic transaction to reparation. Tribes
negotiated among themselves as much with state, federal and local non-Indian stakeholders
(United States, 2003)– particularly since tribal decisions to accept water settlements would
remove the tribe from immediate solidarity with tribes who had yet to secure water settlements.
Both the GRIC and the TON decided to accept settlements despite the Navajo and San Carlos
Apache tribes’ concerns that the settlements would affect their own ability to reach water
settlements.

Grogan Div III
 What factors aided the negotiation process?
None of the parties had a best alternative to negotiation that they believed to be more attractive
than the potential of a negotiated settlement. Hence, all parties wanted to be involved in the
negotiations, and had broad support from the public. This was enough incentive for stakeholders
to set aside their differences from past conflict when it came time to undertake negotiations.
Negotiations were further helped by parties’ flexible, needs-based approach to securing a
resolution. All parties were willing to both give and take throughout the negotiation process, and
understood that they would not get all of the things they wanted from the negotiation process.
Parties also understood the benefit of working out all concerns related to the settlement during
negations, rather than reaching an agreement that only covered some concerns and having to re-
convene negotiations at some future point. Cost-sharing was an important component of this: all
costs were negotiated within the settlement, and shared among participants.
 What challenges remain?
Negotiated water settlements necessarily set the precedent for succeeding settlements (Bogert,
2008). However, the scarcity of documentation of previous settlements’ procedures has
presented a challenge to modern and ongoing negotiated settlements (Bushnell, 2011). Past
negotiation processes can provide templates for ongoing discussions; they can also illustrate
method pitfalls to avoid. Tribal settlements are particularly important because they are the
products of a relatively modern phase in federal-tribal relations, one based on collaboration in
which tribes are included in negotiations as sovereign entities (Tarlock, 2010); as such, they
provide a starting point for future federal-tribal relations. Settlements also tend to build on or
borrow from the precedent set by previous settlements (Bushnell, 2011; Fort, 2012), particularly
when previous settlements produced a particularly creative or workable solution to stakeholders’
needs. Yet little information is available about the process of negotiations prior to settlement and
implementation, although the outcomes of tribal settlements are publicly available in the form of
resulting legislation. This scarcity of documentation occurs for multiple reasons.
If the negotiation process originated in a suit or other court-based action, then court documents
may be classified, or may simply be the property of individual courts. Negotiations that were
heavily sponsored by one particular legislator may also be documented in the archives of that
legislator, or may reside in various municipal, state, or federal repositories. In each of these
cases, the documents are often technically available to the public, but difficult to access.
Negotiation process documentation may also be held in the archives of private interests who
engaged in negotiations – i.e. local water providers, companies, irrigation districts, etc. In this
case the private owner may wish to withhold access in order to protect confidential information,
particularly in the case of companies or other industrial water users.
Finally, the tribes who were involved in such settlements may hold documents related to the
process of negotiating their water claims. Tribes may wish to withhold such documents to protect
tribal privacy or tribal sovereignty.

Grogan Div III
This dearth of documentation is starting to change due to efforts such as the University of Idaho
College of Law’s Indian Rights Settlement Database (Bushnell, 2011).
Another challenge to negotiated settlements was illustrated by the Cragin Dam epilogue: there is
strong need for more and better coordination between state and federal agencies in order to
decrease regulatory uncertainty. In the same vein, a streamlined, easily applied best practices
framework should be established for water negotiations involving multiple agencies. A federal
document (Criteria & Procedures for the Participation of the Federal Government in Negotiations
for the Settlement of Indian Water Rights Claims. 55 Fed. Reg. 9223 (1990)), which was meant
to address this problem, has existed since 1990. However, it is only applicable to settlements in
which parties submit their agreements to the Executive Branch of the government – the current
presidential administration – for approval. Most settlements, including AWSA, specifically
bypass this option in favor of lobbying the Legislative Branch of the government to pass the
settlement into law. The guidelines established by the Criteria are very complicated and time-
consuming, and potentially involve less federal funding for settlement implementation than that
which could be achieved by passing the settlement into law through Congress (Bogert, 1998).
Prompt resolution of outstanding tribal water claims would also help agencies plan among
themselves for current management of and future demand for water resources.
A third issue that may jeopardize the future of negotiated water settlements is the availability of
large amounts of high-quality water required for such settlements. AWSA used a significant
majority of Arizona’s un-contracted CAP water reserve to settle the claims of two tribes, leaving
only 100,000 acre-feet of CAP water to settle future tribes’ claims (Wheldon & McKnight,
2007). Practically speaking, more water will need to be found in order to undertake future
negotiated settlements. The main sources of new, large amounts of Western Water are
conservation, greater efficiency of water use, and increased state and federal regulation (Bureau
of Reclamation, 2012).
II. American Southeast Case Study: “Tri-State Water Wars” of 1990 - 2011
2.1 Background
"It has been said that '[w]ater is a weed that flowers in the arid West.' Well, the seeds have
blown east."- J.B. Ruhl, (2003)
The Eastern United States has not historically viewed water as a scarce commodity, and as a
result there are few guidelines and little legislation in place to address Eastern water conflict
when it does arise (Ruhl, 2003). As a result of this lack of legal guidelines, in the next several
decades the East will likely experience a rise in interstate water litigation as the Western U.S.
appears ready to abandon litigation in favor of negotiation to settle water disputes (Bogert,
2008). Such litigation will necessarily present a critical regional challenge and involve both state
and federal stakeholders. The lack of clear-cut legal precedent for deciding on and enforcing
interstate water allocations could lead to entrenched, protracted conflict, as has proven to be the
case with the so-called “Tri-State Water Wars” involving Georgia, Alabama, and Florida. This
dispute is also referred to as the “ACT/ACF Dispute” to denote the sum of water-related
litigation that occurred from 1990 and 2011 between Georgia, Alabama, and Florida. Two

Grogan_Div III (Final)

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