ER

RES*URCES

RESEARCH

VOLUME 20 MARCH 1984 NUMBER 3

PUBLISHED BY AMERICAN GEOPHYSICAL UNION

WATER RESOURCITS RE,SEARCI{. VOL. J0. NO. J. PAGES 3]3-331. tvlARcll l9ttl

Guidelines for Improved Institutionalin Water Resources Planning

HgLE,N M. INcRAM,I DEnN E. MnNN,t Gnny D. WrnrHERFoRD.3

Analysis

AND HnNNA J. ConrNERo

turns to the task of preparing institutional analyses andbricfly outlines some issues that the analyst must considerbefore beginning to compile data and information for theanalysis. It identifies the kinds of information that theanalyst needs to collect about current institutional arrange-ments for waler use and management. These categoriesinclude information on actors, the resources that they haveavailable to pursue their interests, and the biases of thealternative decision-making structures through which vari-ous rvater resource decisions are made. The last section ofthe guide points out the importancc of going beyond a

description and anall,sis of current conditions to an assess-

ment of the possible strategies and solutions that can be

applied to the problems identified.In order to apply to a variety of situations. the discussion

must. of necessity. bc general. An effort is made. however,to illustratc many points with specific examples. A numberof institutional analvses were conducted in connection u,ithproposed energ)/ development projects requiring r.vater. andse!'cral cxelmplcs ure dra\\'n from these studies. lvlilnv of the

examples ilre related to the Colorado River basin because of'the authors' firmiliarity' with rvestern \\,'ater devclopment.

J'He IrrpoRTnNCE. op INSTrrurroNAt- ANnLysts'l'hc tcrnr "institutionul" is mcant to include thclse lcgitl,

pcllitical and adnrinistrative structures and processes throughwhich decisions are made rvith respect to public policy.Thcse structures and processes consist of laws and regula-ticlns that govern the d istribution of benefits and costs andset the ground rules for conflict resolution. Thef include alsothc inlormal procedures by which conflicts are regularlyresolved u,hcn larvs arc unclear or are not consistent with therrctrrirl distribution of influence in the policy nctwork. Institu-tional urnrngcmcnts rest ufrun the distribution of politicalsupport ftlr a givcn allocation of costs and bcncfits and areaflected by public opinion. thc attitude and preferences ofintcrcst groups. and thc orientation of public ofTicials. Theprocess by u;hich anal-""sts can improve their competence torecognize how institutional factors affect water rcsourcesplanning and evaluation anrl can manage the opportunitiesancl brrrricrs prcscntccl hy institutional tactors is tcrmcdinstitutional anul y'sis.

Institutional factors can of'ten be among the most f ormida-ble influcnces upon wuter resources programs. Yet. despitesuch inrportance. one anomoly of water resources planning

ill

Institutional factors are often among the most formidahle obstacles to the development andimplementation of feasible water resource programs. Cuidclines for gathering and analyzing informa-tion on institutional factors as part of water resource planning and evaluation activities are pre.sented.ln approaching the analysis of current institutional arrangenrents. analysts should pay particularattention to ( l) the actors and their stakcs in the dccision-muking process: (2) the political and decision-making resources actors have availablc to pursue their interests; and (l) the biases of the alternativedecision-making structures through r"'hich various water rcsource decisions are made. While institu-tional analysis can pinpoint importanl burricrs and constraints to plan implementation. it is of most usewhen it goes beyond a description and analvsis of current institutional arrangements to assess possiblestrategies and solutions that can be applied to the problems identified.

IxrnooucrroNThe realization that institutional problems in u,ater re-

sources development and management are more prominent.persistent, and perple,xing than technical, physical, or eveneconomic problems has fostered as much frustration as

insight among analysts and planners in rvater resourceagencies. While technicians are willing to acknou,ledge thatinstitutional factors must be considered. thev are not at allclear about just what needs to be taken into account.Although guidelines for u'atcr resourcc planning and assess-ment documents frequently call for institutional anall,sis. thetypical discussion of institutional arrangcments in such doc-uments is brief and unillunrinating. involving little more thanan annotated listing of public agencies. statutes. regulations.compacts. and judicial decisions. Such a list creates theimage of a lifelcss ma ze of check stations. pilss:lgc\\'avs. lrndbarriers. Fornt prevails over substunce in such prescntu-tions. and little understanding oI thc d]'numics of institution-al operations or change is prescnte d.

The ainr of this article is to cstablish somc guidelirrcs andstandards for improvcd institutionill analy,sis in u'atcr rc-sourccs planning and analysis docunlents. Our intent ispartly to serve the needs ol'practitioncrs in u,ater resourccplanning orgilnizalions u,ho arc callccl upon to an;rlvz-c:rnrldcscribc institutional lrrctors irs pilrt ol'irn ()vcrurll irsscssnrcntof watcr resources but lvho ma-v ntlt havc any plrrticullrr'disciplinary background in institutions. Wc also hopc to aidwater resource teachers ancl rescitrchcrs \\'hosc cxpcrtisc ismainly technical but who recognizc that they'thcmselves andtheir students need to grasp institutions in order to undcr-stand ancl cvaluate the institutional componcnt that is com-monly inclucJcd in n'l:tny studics.

'l'lrc discussion \\'hich ltlllou's bcgins \\,'ith lr c()r'lsitlcnrtionof thc pitradox of thc importirncc of irrstitutions vcrsrrs tlrcpaucity ol' ttscl't-tl ltnitl),scs ltntl suggcsts soptc ttntlcr'lt,ingreasons ilnd hou' they n'r:lv hc mitigutccl. -l'hc articlc thcn

I Department of Political Science. LJnivcrsitv ot- ,,\rizonu.r Departntcnt ol' Political Scicncc. tJnivcristy ol' Crrlitirrniir.' John Muir Institu'te.o Cc,'rrgc IJ:rnzhlrf & Conrpirn\'.

Copyright 198.1 b!,the American Gcophvsicrrl Union.

Paper nunrber 3W ltl66.0041- I 39711t4i003 w- I r{66$05 .(x)

3?4

and evaluation cllorts to darte hits bccn thc supcrficial and

summilry 'trcatmcnt givcn to institutiorral factors ttnd itr-rangenrents. As a COnSeqUenCe, wilter rcsource programs

which might othcru,isc bc bcncficial facc poor prospccts lorimplementation because of unanticipated and unanalyzedinstitutional consequences. lnstitutional changes often in-volve fundamcntal shifts in income, powcr, ancl prcstige.

Thesc changes may carry too high a pricetag and be unac-

ceptable to affected interests. Inadequate institutional analy-sis may also lead to other analytic failure, since it is often the

case that what appear to be hard numbers on such matters as

physical availability of watcr, projcctcd nccds, or ability topay for water may vary with institutional influcnces. Fur-thermore, failure to adequately analyze institutions foregoes

the opportunity for creative institutional responses to prob-

lems. Since the institutional analyses that are done tend to be

static rather than dynamic, often mere listings of existingorganizations, little thought is given to changing behaviorthrough changing incentivcs. Instcad. the burdcn lor rc-sponding to problems is placcel on tcchnology of variouskinds, evcn though technical possibilities may have serious

side effects or be inappropriate to particular situations.The barriers to improved institutional analysis are both

substantial and understandable, including ( I ) a reluctance to

treat institutional factors because they deal with mechanisms

by which society allocates scarce values and therefore deal

with sensitive subjects involving political conflicts: (2) ir

perception by agencies that they have no mandate to changc

or manipulate institutions; (3) the premium placcd on quanti-

tative anal),tic proccdures u,hile institutional ftrctors arc less

subject to quantification and arguabl), less predictable: (4) a

tendency to build puhlic support and enhance the agencY'sposition by dcnying that institutional considcrations allectagency clecision processes: and (5) a lack of firmiliarity u'ithinstitutional l'acttlrs among thc comntunitv of pr:rctitioncrsand scholurs u,ho undertake. intcrpret. and evitluitte assess-

ments. This last irnpcdiment. lhe rcticence tolvilrd venturinginto unfanrililrr territory. ciln bc eflcctivel!'addresscd trnd

mitigated. f hc guidclines that follou, are intcnde d to convc.v

in terms understandablc to the non-social scientist the

important institution:rl questions that should be addrcssecl

and the relatcd data that should be collcctccl.

Tne' CoxrEXT or AxAt,\'sts

Dc.ftninli tltc I'rohlent ttnd Scopirtlit h e A.t.l('.t'J lll t'rl /

lNcnnlt t:t Al-.: CiurDt:t-tNIs tjoR ltrtpHovt.tr lxs'tlIUl loNAl- Arunl-\'sls

loging the universc and including extrancous nlatcrial. U n-

less thc analysis is properly focuscd and framcd. thcre is aclanger of describing institutions withotrt considering the

extcnt to which they may be relatcd to the question at issue.

A clear statement of the context of analysis also provides

an opportunity at some point flor the analyst to consider what

might happen if the context should dramatically change,perhaps by the replacement of drought by flooding, the

substitution of an energy shortage by an oil glut, a change in

economic circumstances, a shift in partisan power, or the

development of a social or political movement. While initial-ly thc analyst must take what now exists in the institutionallandscape as given. it is important to portray the institutionalcontext as dynamic and capable of change that would alterthe scope of necessary institutional considerations. Institu-tional analysis needs to be iterative and continuous, €Xpand-

ing and contracting as changes in the institutional setting

occur.

(Jndcrstancling the Lirnits of Artnl1'.ris

It is also important for the analyst to realize that the

process of institutional analysis is itself affected by institu-tional factors. What is or is not included in an assessment is

in part a function of the institutional bias of the agency doing

the assessment. It is also a function of institutional judg-

ments as to the desirability of making explicit the institution-al factors underlying physical estimates and projections.

The institutional analyst must not, for example, be so

intimidated by the apparcnt conclusiveness of physical data

as to overlook the institutional influences integrally involvedin data collection ancl interpretation. An analyst assessing

the Colorado River basin, for instance, will be confrontedwith estimates of reconstructed virgin outflow ranging from13.5 x 106 acre feet (tree ring data covering 400 -Vear period)

to I 4.9 x 106 acrc fcct (strcam gauge data sets for 1906-1973)

fiUe,atltu.f-ortl untt Jucoltt'. 1975l. Different interests promote

difl'erent data scts and methodologies. High florv estinlates,

eXpcrience h:rs shtlrt'n. are used to Support water resource

developnrcnt projects. while low flow estimates are used to

oppose lurther development. support augmentation. or pro-

mote conse rvat ion .

Water supply ftgurcs arc ntlt the only data that must be

approached cirutiousl),. Prcrjections of future water demand

are notoriousl.v speculative and unreliable, in part because

they exhibit the tendency of water development agencies

and interests to inflitte the market demand for rvater tojustify further investment in water projects. Such projections

The perceptions of a prescnt or emerging sct of water ought to be repcated with caution and presented with

prohlcms that prompt the unclcrtaking of :rn ilsscssnrcnt qualific:rtion, i.e.. instituticlnttl sources and itssumptions

orient and to son'lc cxtcrrt bouncl u,hut tlrc irrstitrrtionirl ought ttl bc pointcd tlut. lrtlr cxample.the r:rte and lcvcl ol'

:rnalvst shtlrrlrl c()nsitlcr. Pcrh:rps thc asscssnrcnt n'liry hc pr(licctcd cncrgy dcvclrlpmcnt ftrr thc uppcr Ctllclritdtl Rivcr

age. iln encrg), crisis rcquiring rvatcr intcnsivc clc\/clopmcnt. 19741; s-r-nfucl und p(-)\'er plant develclpment has been slorver

or a desirc to protcct instrcam wltcr uscs or n,irtcr quulity. ln and more modcst than previously estimated by' the mission-

each case the nirture of thc issuc u'ill to il largc cxtcnt orientcd Burcau of Rcclltnratitln.detcrnrinc thc mirgnitutle of changc ilssocilrted u,ith v:rrious Ellectivc institutionitl analysts will be sensitive to the

scllutions t9 thc problcnl. rvho the rclcvrrnt rrctors :rrc ancl institutional as rv'cll as thc nrethodological linrits on analysis

have availsblc. 1nd tlrc arcnas in rvhich action ma), takc bc ablc to rclatc thc proccss of analysis to the institutional

placc. It is inrpcrittive that thc an.alyst clearlv spccil'y thc setting within which etn assessmen[ is developed etnd its

context of the analy,sls in iln explicit statcnrent of the scopc results used.

and purposc clf thc ilsscssmcnt. Ily clcarl-v idcrrtil'1,irrg thc Our discttssitltt n()\\' turns to cxamittc thc kinds of qucs-

starting point ancJ assumpticlns. Ihe analyst ciln avoicl cat:.r- tions to ask in itsscssing [hc actors' rcsources. and institu-

lNr;Hnrt Et At-.: Gun)t,l.tNt-s rr()R

tional structures involvcd in currcnt institutional itrrilngc-mcnts for water rcsourccs dccision ntaking.

ANnt-\'sts ot' CIURRI:NI lNsr tlul'toNsIndividu:rl actors have ccrtain rights or values which thcy

seek to preserve or enhance. l'hcy pursue thcir intcrests byusing the resources they have available within the boundsimposed by the sociopolitical system. Whcn change eitherthreatens to impact adversely or to advance their interests.actors have incentives to participate in the decision process.When mobilized, they then strive to ensure that any resultingdecisions are made in thc institutional arenas most condu-cive to their interests and their available resources. Inapproaching the analysis of current institutional arrange-ments, the analyst should therefore pay particular attentionto ( l) actors and their stakes in decision making for waterallocation and use; (2) the resources actors have at theirdisposal to use if sufficiently motivated to do so: and (3) thebiases of the alternative decision-making arenas throughwhich actors may try to achieve their goals.

Iclentifl,ing Actors und Their S/nAcs

The analysis of group interests, resources, membership,and practices is a necessity in institutional assessmentfTrumun, 1955 i Greetrv'alcl. 1977 i h[oc, 1980]. An importantstep toward identifying relevant group interests or actors ismade when the analyst specifies the scope and purpose ofthe assessrnent. When propcrly drilwn. a statcment of pur-pose and scope also indicates the stakes. or u,hat gains orlosses may be at issue. For instance. an assessment of u,ilteravailability for energy in a fu lly allocated river basin natural-ly drau's the analyst to consider the stakes of establishedusers rvho currently excrcise u,ater rights, Water rights aregencrirlly ilcquirctl lry thc lrct of'irppr()prilrting u,iltcr. thcposscssion of riparian or ovcrlying land. or Ihc grant (c.g..pernrit ) or contraclual prrlmisc rl{' il g()vcrnnrcnt thlrt hasassumcd owncrship or control ol'thc u,atcr. depe nding onthe circumstances and rvuter llr\r'sy'stcnr ol'the p:rrticulirrjurisdiction involved. Existing allocations o{'u'ater rights area reflection of accommodations to previous claimant s forwittcr use rvho, in turn. currentll, itrc challcngcd [Turlock.r e82 l.

'l'hc analyst must idcntil'y how antl trl lvhut dcgrcc virriousttsui or uscrs will bc allcctcd hy'the watcr issucs bcingassessed, i.e., reduced or increascd quantity, degraded orimproved quality, increased or dccreased price. greater orlesser vulnerability to drought and othcr stress. deprivationor incrcase of opportunity to g,row. changing lilcstvles, etc.While cconomists excludc sccondary inrpacts lrom theircost-bcncfit itnalyses frrr sorrncl lcchnical rcirsons. thc inci-dcncc and magnitudc ol'Lroth prirnilrv ilnd scconclary inrpactsshould be iclcntified fronr an institutional pcrspcctivc. lrorinstancc, the primary impact ol'allocating surplus rvater toenergy in a basin dominated by irrigated agriculture may besmall. Yet, sccondarily. larmcrs may havc to compctc withenergy developcrs for l:rbur. capitaI. transport:rtion laciIitics.itncl othcr goods itnd serviccs. Asscssing sccondurv socio-econonric impacts is esscntiarl to sorting out thc stakes andactors involvcd in making watcr lrvailablc to cncrg),.'l-hcattention given to such mattcrs as the socioeconomic im-pacts of cncrgy development in il rcgion. hou,cver. requircsjudgnrcnt because an asscssment must not ltlsc sight of thefact that its locus is watcr-rclatcd inrpircts:rnrl no[ ncccssari-

lnrpnovt,u lxsr tr uT toNAl- AN..rr-)'srs 315

ly energy developmcnt impacts. As lhe authors of iln asscss-

mcnt tliscussing the availability ol' tvatcr lbr synluel develop-mcnt in thc uppcr Colorado Rivcr basin rcpttrt, dramaticchangcs will occur in cnergy-intpacted communities rcgard-less of thc source. quantity, or use of water [ColorudoDepurtmc,tr rf Natural Resource.\, 19791. Nevertheless,location of synfuel plants in given communities in givensubbasins could have dramatic impacts on employment andthe general character of life and should be addressed in suchassessments ICumntings and Schulze, 1978].

It is important that the analyst identify anticipated orperceived as well as scientifically predicted impacts. Wateris a highly emotional and symbolic issue. One needs only toconsider the public controversy that ensues whenever it isproposed to dam a river used for white water rafting or totransfer water from one region to another to recognize howvolatile public feelings are on water issues. For some peoplethe loss of Glen Canyon can never be counterbalancedregardless of the benefits of Lake Powell. Institutionalanalysts must invariably use judgment to distinguish be-tween important and trivial impacts. Yet in making suchdeterminations they must take into consideration the judg-ments of those impacted. Potential conflicts can be generat-ed by those who perceive impacts as significant and arewilling to take action to protect their interests.

The variability in perception of impacts is illustrated in theissue of water availability for energy. It is almost inevitablethat there will be varying perceptions regarding the desirabil-ity of some aspects of any project of the dimensions of an

emerging energy technology (EET) facility. The authors ofthe Upper Colorado River Basin Assessment, for example.explicitly recognize these sources of conflict at variouspoints throughout their report and most pointedly in stating:

. . onc ntav anticipatc that any l'urther clepleticlns of thcstreams of thc Upper Colrlrado River lJitsin by EE'f dc-velop-nrcnt (or irnv other uscs. ftrr thnt mittter) u'ill be in conflict u'iththc values :rntl perceptions of at least some segment of thepuhlic unde r just about any circumstances

fColorudo De purtntettt o.f llutttrrtl Resout'ces, 1979]. Recog-nition of the potential for conflict equips the reader for an

evAluirtion of'thc likclihood that therc mily be seriouschallcnges focusing on water issues either to an overallbasinwide plan or to il specific proposal to site plants in a

given area.The reading of contractual rights and obligations may

revcal the stakes of parties to whom benefits and costs mayaccrue through changes being assessed. Twenty percent ofthe farming in the West, for example, occurs in federalreclamation projects. In thesc projects, rights to the deliveryol'stored:rnd regulated water are dcfined in part by long-tcrm contracts that provide the mechanism for the repay-mcnt. opcration. and maintenancc of project u,orks.'fhemaster contracts betwee n the Bureau of Reclamation and thewatcr distribution districts-as well as the contracts andarrangements betwecn the districts and the individual us-ers-provide important sources of informaticln concerningthe identity and water entitlement of users.

l'he idcntification of primary and secondary ellccts is a

common requirement of environmental impact statementsand the prcviously required principles and standards: there-ftrrc the mcthodology is well developed. Of course. whatpcoplc fecl. bclicve. and value is likcly to be more diflicult to

326

specify than concrete physical ernd econontic intpacts. .l'ct

the analyst usually can rely on secondary sourccs. Studentsof history and literature have documcnted the dcvclopmcntand persistence of attitudes aboul water ilmong groups in thcpopulation. These attitudes and values are often articulatedby spokespersons in public hearings or in newspaper covcr-age. It is suggested that the institutional analyst becomeimmersed in the particulars of the problem from the perspec-tive of water users who have something at stake. The analystshould begin by learning all he or she can about the back-ground, experience, and points of vierv of various interests.Early on, the analyst should begin to compilc a list of keyinformants or contacts in the region or basin being assessed.

In identifying interests with a stake in water allocations,the analyst must pay particular attention to those that maynot be readily apparent. Although often not included as

interests at party to water decisions. the analyst mustidentify local. state, regional, and federal u,ater and otherresource agencies. While not benefiting or losing from waterallocations themselves, these organizations have a stake inthe distribution of authority and accompanying personneland budget allocations [Rourke, 1969; Dox'ns, 1967; Nis-kanen,l9T l]. Governmental actors can be identified througha review of agency-enabling legislation and governmentorganization manuals.

The appropriate geographical and other boundaries withinwhich to identify interests in institutional assessmentsshould be drawn from an understanding of the stakes ratherthan river basin boundaries. subject matter. or other artifi-cially imposed limits. For instance. the analy,st should notlimit discussion to laws and institutions whose direction is

exclusively water planning. development. and management.Other laws and institutions have notervorthy effects on \\/irteravailability and use. National and regional forces which are

creating nerv u,ater development patterns ought to be iclenti-fied. Take this example: a proposed dam project on theWhite River in Utah faces problems because it could ad-verscly affect the habitat of the Colorado Squau'fish. Appli-cation of the Endangered Species Act could thus influenccthe timing and uvailability of water for synthetic fuel clevel-opnrcnt. Or consiclcr this furtlrcr cxilmplc: rcstricti()ns onencrgy f acility siting along the coast ol'Calilorniir unclcr statcitnd lcderal coaslal nranagcmcnt lcgislation. u'hilc applicablcto areas outside the Colorado River basin. have the e{l'ect ofincreasing power plant development:rnd cooling u,atcr useu,ithin the basin.

It is important to look at consequcnccs from a particular-ized or localized pcrspective as u'ell as businrvicic. Dcspitethc fact th:rt ph),sical scicntists clcscrilrc r-ivcr hlrsins us

gencral. intcrconnectcd systcms. thc cxpcricncc ol' intprrctsis ol'tcn tliscrctc und loc:rlizcd. l;or cxanrplc. if'loclrliz-ctl trtrtsignificant shclrtages arc likcly to occr.n- irr u hirsin thirt.ovenrll. has a rvatcr surplus. the anilll st shoulcl itlcntil'1' thcthreatened usr:s and uscrs.

Finally. the analyst must rccogniz-c that changcs in thcissue context may well affect perccptions of intcl'ests andcntcrgcncc of rclcvant actors. 'l-hc dcfinitirlrr ol'intcrcsl is lrdynamic process, and impacts that spark littlc rcaction no\\/may ['rc the basis of political action latcr. 'I-hus it is inrpor-tuntto portra.v the identification of intcrcst as rr process andsigntrl what nlav be only latcnt c()nstitucncics l'l'rtnrturr.1955'. Cobh ttntl lildcr. 19721: lor cxanrplc. tlrc polltttion ol'grounrlw'aler stirs intcrcst todrry'u,hcrc thcrc \\'irs n()nc a lcu'

lncnert r:T Al-.: crt'lD[t-tNr-s t.oR lrtpRovF.Lr lxsrtTU"nONAl- r\xnl ]'sls

years ago. Also. while thc prohlem of land subsidence

caused by falling rvater tables where extensive o\Ierdralioccurs has not prompted a concerned constituency. it oneday may in arcas of Arizona. Where the analyst can idcntil'ylatent constitucncies, it is useful to specify the barriers and

incentives toward organization. such as conflicting interests,lack of information, and the costs of participation.

Identifl,irtg the Resources Ac'tors Hoveto Advence Their I ntere.\ts

For each of the above actors, the analyst should identifythe existing and available resources or strategies whichcould be mobilized to affect or impede changes that are beingassessed and the likelihood that those resources will be

utilized. Such resources include the following.Legal rules and arrange ments. Legal structures define

rights and obligations of various parties and procedures forenforcement of each. At the same time, they provide thestrategic grou nd from which interests seek to negotiate,bargain. resolve disputes. and change outcomes.

Within states. individual water rights (with the exceptionof federal or Indian "reserved water rights") are defined bystate law (statute, court ruling, or administrative ruling).Depending on the depth of analysis appropriate, the relevantfeatures of state water law can be identified. These includethe rules and restrictions on place of use, type of use.reasonable or beneficial use, reuse. diligence. forf'eiture,waste water transfers. etc.

Water laws should be vieu,ed as potentially flexible prob-lem-solving instru ments and not simply permanent impedi-ments to change. In the world of water law. things are notalways rvhat they seem. In many arid areas the availablesurface water is appropriated or approaching "full appropri-ation." meaning that the available water supply is coveredby u,ater right filings or claints. Such a condition lcads someanalvsts to conclude erroncously that all the available $'ateris being consumed or that no new wetter uses can be

accommodatcd. There is commonll' a gap bct\\'een tlre

accumulated claims to u'ater and the amount of wetter

actually used. Some claims have never been "perfected"undcr the liru' or huvc bccn ab:rndoncd. Somc rvttter is

wastcd. And. most import:tnt. cxisting u'itter rights in mostsettings can bc purchuscd to supply the needs cll'ncw uses. Itis gencrally misleading to conclude in an ilssessmcnt thatwater supplies are totally exhausted. permitting no ne\\/ uscs

fktrlrx'k. 19821.

A r,vater compact. st:rtute. agreement. or court dccisionmay not be thc "last word" in an opcrative sensc. in r.vhich

casc rclying on it c:rn lclrd lo far"rlty analysis. Strch agrec-mcnts irnd dccisions can bc substantiully altcrcd t'ty lcgisla-tiolr or chlrngccl circumstirnccs. rvithrltrt any lorntitl itmcnd-mcnt tll'thc agrccntcnts or dccisions thcmsclvcs. Irorexirmplc. thc 1922 Colorado River Compilct purportcd togivc thc uppcr bitsin. as u.'cll as thc lc'rwer. a perpetuitl right to7.5 x l0" acrc feet pcr annum. Ilut to citc that figurc. uts is

done l'ronr time to time. is greatly misleading.becausc theklwcr busin's shirre is guilr:lntccd as a minimum. rvhilc theuppcr basin's is not. Morcovcr. thc flow of'the Colorado has

bccn ilvcraging lar lcss than enough to mcct the atpparcntentitle mcnt expressed in the 1922 agreement IMutttt et ul.,te1 41.

Sonrc court rulings hccome datecl and irrelcl'ant due toncw lcgal rulcs nradc in a difl'crcnt forum. Ftlr institnce.

Arizona prcvailcd ovcr Calilorniu in thc latcst Arizonit r'.r.

Calilornia lSlrrlc tlf'Ari:.ontt r'('r'.Trr,r' Sttttc t4l'Culi.frrniu. 1963J

watcr suit. ten'rporurily quicting C:rlilornia's clainr that itsusers'early ilppropriations should bc givcn priority ovcrArizonas users. In ordcr to obtuin congrcssional authoriza-tion to put the lion's share oI its hard-won entitlcnrcnt of 2.8x 106 acre feet to work in t he Central Arizona Project,however. Arizona had to accept a subscquent congressionalenactment giving California priority for its 4.4 x 106 acre feetin the event of shortage.

Distinctions between state and federal laws and arrange-ments often must be drawn by the analyst. The federal andIndian reserved water rights claims. which are largely un-quantified, are peculiarly relevant to the basins of thewestern part of the United States. The precise relevance ofreserved rights cannot be expected in assessments IPriceand Weuthu.fttrcl. 1976J: they remain unkno\r/ns. Nor is itpossible to predict the extent to which an environmentalimpact statement under the National Environmental PolicyAct (NEPA) may impede a given water-related develop-ment. But the applicability of NEPA should be indicatcd.and some judgment provided regarding its possible impacton planned development IAndet'son, 1973: OrloJf unctBrooks, 19801.

Finally, it must be remembercd that where thc basis forconflict among water users or claim:rnts exists. thc rvaterrights ot'claints of the parties oftcn takc on the character olchips in a pokcr gamc: thcy define. in part. lhc bargainingpo\\'cr. stratcgy. and st:rying po\\'cr of participants in thebargaining proccss. Rights and claims o[tt:n arc nrodificd orredefined in the bargaining process surrounding u,atcr devel-opment and manilgcment. Watcr rights and rclations llre onepart rulc and one p:rrt proccss. Howcvcr static they,ilppcilrfor ltlng pcriods. thcy itrc srrh.jcct to chungc.

Ii<'rttttttrti<' lttn r'('r". Ecrlnortric p()\\'cr hirs \llrricd chlrrircl.cr-istics: nrarket po\\,er. thc po\\'cr trl creatc jobs. thc po\\'cr Ioinfluencc legislatures and adnrinistrattlrs. and thc po\\'er tohire lau'ycrs and engage in costll' judicial procccdings. Sucheconomic po\\'er may he lbund in both puhlic and privatcsectors. Analt,sis of economic po\\/er should examine itsvaried manifcstations and its potential for intlucncing deci-sions.

One attributc of cconomic porvcr is ability to pay lirr rvutcrsupply.'l'hc purchasing pow'cr irnrong tt,atcr u:icrs tlillcrssignificantly. particularly in settings rvhere publicly subsi-dized n,ater uses (e.9.. irrigated agriculture) are presentedwith competition frorn new industries (e.g.. coill-fired po\!'erplants). For e,xample. the price of w'ater under the nationalreclamation program in the westcrn United Statcs has bcenbased on a farmcr's "ability to puy." rcsulting in lorv-priccdwater (e.S.. $7.50/acrc foot pcr annunr) bcing uscd on lorvincome yield crops. Sonrc crops bccomc unprofitable. lorexample. u,hen water priccs begin tt-l exceed $15 or SJ0iacrefoot per annum. The capacity, of would-be users to payhigher than customary priccs fr-lr rvater in an area u,hereinadequate or no unappropriated lvatcr exists can rcsult inwater rights transfers from the economically disadvantagedto the economically advantagcd. This phcnomcnon ought tobe identified by thc analyst.For institnce. thc lntermount:rinPower Project (lPP) agreed to purchasc stock in mutualwater companies from larnrcrs ncar Lynndyl. Utuh. irt er highprice ol $1775/acrc foot (lor a permancnt. nrlt pcr annum.right to usc) IWcuthcr.fitrcl. l9tl2ul.

3t7

Thc lcvcl ol'ecorronric rcsources uvailirblc r,vithin u tt'ittcrusc scctor partially dcternrincs thc iln'lount ol'political ptlu'crwhich celn be asscrted to influcnce u,atcr allocation itncl

manitg:emcnt outcon'tes. For exanrple, tlre economic/politicalresources represented in the city of Dcnver havc resultcd in

the authorization ol' transmountain water diversion projects.The metropolitan centers outside the Colorado River basin

but within the basin states (i.e.. southern California coastalplain, Phoenix. Albuquerque, Denver. Fort Collins) havegencrally prevailed to have water diverted to them. Thelobbying efforts of the Central Arizona Project Association"composed of various economic interest groups on behalf ofthe Central Arizona Project, were important to the authori-zation of that project by Congress. It is clear that economicsmotivated the strong backing from locals the IntermounttrinPower Project (lPP) received in Utah. Local residents antici-pated that increased property values. improved local serv-ices, and new jobs would keep their young people frontmoving away. This support survived the rejection of one sitefor air quality reasons and compelled the governor of Utah toinitiate a search lor a ncw site in which a number of interests.including environmental groups, could participate and be

accommodated.While the influence of economics is often more ditficult to

document than the IPP case. federal and state lobbying larvsthat require groups who try to influence legislation toregister and provide basic financial information have helpedrescarchers. It is now possible to asccrtain thc siz-e ol'Iobbying stafl's:rncl the amount of money spent on thatactivity,. Often it is more dillicult to specifl,thc economicresources of- industrial interests u,hose influence is exercisedin the course of doing business than it is privatc organiza-tions rvhosc main purposc is aflecting governmental action.

Pr(vuilinli vrtltte,s rtnd pttblic oytittion. An impclrtant rc-sout'cc tlr:rt supprlrts ccrtirin uscs lrnd uscrs is thc gcncnll lrrrtl

spccifrc attitudcs hcld by thc public about the dcsirubilitl'ol-alternativc uses. -f he analyst should assess attitudes. boththeir distribution and intensitl,. l-hese attitudes mil)/ not bcclosely rclatcd to-indeed. they may conflict with-theeconomists' calculation of value. For instance. public opin-ion survcy data indicate that votcrs in the Southwest u'ouldprefcr that thc same or more water bc supplied to irrigatedagriculturc in thc future. l'hey fecl this \\/ay in spite of thefact that irrigertccl agriculturc currently accounts lor as muchas 907c of diversions and that othe r uses. such as municipaland industrial. are small. high value. and growing Irt11'unt elul.. 19801. These people may feel that rvater should be usedin agriculture because thcy prefer the environmental ameni-ties associated r.",ith agriculture'(open space, green expanses)over suburban home tracts or industrial park complexes. Ifso. tlrcn watcr in agriculture has an extcrnal vzrlue notcapturcd in m:rrkets or entered into the economist's calcula-tions but which should nevcrthcless be calculated bt'theinstitutional analyst.

Thcre are a variety of methods through u,hich the anal-vst

can asccrtlrin public opinion. some much morc reliable thanothers. M<lst sinrply,the analyst can make a content analysisof local ncw'spilper coverage and editorial opinion. Localhistorics, biographies, and other literature mily also bc roughindicators of public attitudes. It must be recognizcd. hotvev-er. that local commentators, however lanriliar rvith localattituclcs. nta\/ well havc biases u,hich color their exprcs-sions of vicrv. ln many cases. it survey may alrcitdv have

1Fffi l-i',-i'ilm$dtdl!fiffi*l\ir{{ilF.-' -.,.

I ltl lNc;nntt t:'r At-.: Ct.rlt)t:r-tNr:s FOR

bcen done by a(lministrative agcncics. privatc groups, oruniversity scholars employing questions that may be usetirltcl the analyst.Care must be taken in employing such studiesto insure that srrmpling procedures and interpretations arescientifically justifiable. In some cases the analyst may wantto conduct a survey either of elites-those rnost closelyinvolved in the subject of water resourees-sp the masspublic. However, the frarming ot'questions and the tlr:rwingo[ samples are complex mutters about which the nonproflcs-sional should seek protessional advicc ll Itntrt.T.r_\'. lgtl l;Welc:h uncl Comer, 1975i Soncltrist ttntl Dttnklebt,rg. 1977ll.

Teclrnicul experlise und conlrol,rJ' in.fitrrnutittrt. Accessand capacity to generate informirtion may be importantresources. Prof'essionals with credentials have a particularclaim to expertise. The analyst must be scnsitive to v:rryingcapacities to generate and use infornration in rescllvingconflicts over alternative uses [Rrtttrke, 1969. Dorr't.T. 1967:

Benvettiste, 19721. Water resources is a purticularly tcchni-cal subject, and special knowledge is required to estimatesuch things as river flows, water use rcquirements, andwater law.

Particularly because o[ their ability to amass a pool ofe.\perts, l'ederal agencies have had advantages in irrfluencingthc cor,trse of'r.vater policy. For muny years. most stute rvateragencies lacked similar expertise. Ho\\'ever. in the lastclecade, mirny state agencies have added to thcir capabilityby hiring experts l'rom a variety of disciplines. Industrial andmunicipal water users frequently have sufficient economicresources to develop their own expertise. Private organ iza-tions often f are less well. although it is possible to citeexceptions. For instance, Ihe turning point irr the Echo Parkcontroversy of the 1950's came u,hen ()pp(.)nents of thcproposcd reservoir wcre able. through thc analysis ol'thcirown experts, to discredit the evaporation estimates of theBureau of Reclamation [Stra t tott untl S irot kin , I 9591.

It is important to note here that expertise is a great dealless important in circumstances where there is technicaluncertainty and clisagreement. For instance. Arizonans andthe upper basin states had very cliltcrcnt estinratcs of thcIong-tcrm avcrage flow of the Coloratlo Rivcr tluring consid-cration ol'tlrc Colorado ltiver ljirsin llill ol' 1961. As ir rcsult.the testimony of any particular set of hydrologists hadrnininral influence.

C o n t rol o.f o r g u rt i t.tt t i o n tt l o n d u d m i ni s t rtt t iv t, tn t, c hurri.rrn.r.

Certain users are pilrticularly favored becar:se ol'their closerelations to administrative agencies. Indeed. agency mis-siorts ol'tcn coincidc with thc intcrcsts of spccific groups.The Soil Conservation Service, for instancc. has a close tieto agricultural intercsts through its ltrnctiorr o[ supplyingtechnical information. Historicerlly, the relartion of the tsu-reau of Reclamation with western irrigation interests wilsvery close. Sometimes, close relations result flrom overlap-ping memberships. For instance, high-r:rnking federal ofti-cials during the Carter administration helci posts in environ-ntcntal g'roups prior to 1976. Thcsc closc relations shouldalert the analyst to the influence over both technical andpolitical mlttters that can result firom such alignments. Some-times access to administrative mcchanisnrsi comes throughprocctlurcs. Courts:rrc opcn to cascs brought by purlics thathave appropriate legirl rcsourccs untl expcrt isc. 'l'he cnviron-nlcntal inrpitct statemcnt and other proccsscs provitlc oppor-tunitics for commcnt.

['ttliticttl r(.\(,tu'('(,.r. 'l'hc irnlrl] st rnuy firrrl thcsc rc-

lrrlpn'r't,D INs-rp u'1oN,\1. Atrt,.rt )'sts

sources dillicult and evcn pcrilous to spccily. At the sametime. some political rcsourccs may be cxtrcmely importantin institutional analysis and thc absence ol'such analysis maymake an :rsscssment rclirtively mcaningless. Somc mcasurcsmay be lairly well agreed upon. i.e., size o[ membership inorganizations, ability to turn out membership tor politicalactivities such as voting or letter writing. and ubility toinlluence others through the press or rvith canrpaign contri-butions. Since tlre inrpact ol'political resources olien comesl'ronr thc reputatitln lrlr porvcr rather than its actual exercise.the analyst can ol'ten rcly on inclexes of reputution. Groupsthat newspapers, journtrls. decision-makers, and students ofthe subjecI nratter suy have politica.l power often do in facthave power.

It should be noted that particular resourccs are not alrvuysrelevant, antl uctors do not always choose to use thenr.Difl'erent resourccs mury be relcvent at different stuges ol thepolicy-making proccss. Favorablc public opinion may havc ir

great impact upon the process of raising antl defining ern

issue but may be less rclevant to discrete adnrinistrativedecisions made in thc process of implemcnting policy. ilstuge ut which legal authority and expertise may dominate.The deployment clt'resources is nclt costless. and there nlaybe circumstances \\/hcrc rrn ilctor rvilljrrdge his or her interestars tt-lo insubstantial trl u'arrant the cllbrt. E,cononrists aretused to talking about transitction costs in markets. and therearc costs to political intcruction as well. The comnritnrcnt ofresources will be balanccd off against expected gains.

I de ntiJ\' i n 14 B iu.se.s oJ' Altcrnut ive Decision-M ukin gArt'tttt.s

-l'hcre itre a virriety of institutional structures throughrvhich dccisions ahout rvatcr rcsources allocation and useoccur.'l-hcse structures are likcly to have ditlerent policyorientations. They are also likely to vary in their:lccessibili-ty and responsiveness to particular interests, their capacityto generate the appropriate flow of inlormation, and theirpreference for certain problem solutions.

ln undcrstanding instituticlnal structure, the zrnalyst shouldbc aw:rre thert most clecisions involving water resources arenr:,rdc ()n tlrc lrlrsis ol'bargaining, rrcgotiation, ancl conlpro-mise. But the character of the bargaining varies, dependingon the arenel in which the bargaining occurs. This is sobecause institutions huve diverse decision rules, traditions,legal authority, and protessional orientation. A rvide varietyof interests rvith varying intensities of concern are involvedin legislative decision-rn:rking: consequently, the result mayreflect a broud consensu s but not necessarily be precisely.suitcd to the mqior ilctivc intcrests whose stakes are signifi-cant and rc:rl. On the other hand, only the most activeinterests with important stakes are likely to bear the cost,both in time and money. involved in litigation. There is a

major b:rrgaining component in both the legislative andjudicial lrrenas. but the interests represented, the locus of theisstte. thc cviclcntiary busc. and the scope within whichcompromise may occur may bc quite dillerent in the twoarenas.

Morcover, intcrests havc dillcrential access to given cleci-sion-makirrg urcnils. i.e.. thc opportunities lor -qroups toitpproilch tlccision nrakcrs to obtain a firvorable hcaring forthcir cituse vary f'ronr onc institutitlnal setting to thc next.I{cccnt history lras dcnrtlnstratcd thlt u;atcr dcvclopnrcntintct'csts hrrvc hirrl grcrrtcr inlltrcncc in lcgisllrtures tlrarr thcy

have hatJ irr the courts. whcre cnvironntcntal groups httve

tendetl to gain itdvantage. Morcovcr, intcrests have quite

natunrl advantages in various lorums: givcn the dclensiveposturc of most environmental groups, it is not suprising thatthey have tended to rely on the judicial system to prevcnt

administrittive agencies-itncl s()mctintcs even Ctlngre\.r-from achieving wnter developmcnt objcctives. l'he sclection

o[ a forum or arena in rvhich to undertuke the contest torachievirrg its rvater-oriented golrls may lrc one ol the nrost

important strategic choices an intcrcst gt'()Ltp or itctor may

nrakc. A clecision about itppropriatc dccision structurcs is

not, theretore. un exercise in logic or constitutional law, butrather an exercise in political analysis lrttd evalutttion ofpossible consequences IWor n(r. 119761.

Finally, like many issues dealt with hy Americttn govern-

mcnt. decisions on rvater resources tend ttl be ntade incre-mentally, rvith partial decisions bcing nrade by variousactors irnd institutional structul'cs ()vcr itn cxtcndcd pcritld oftimc. Most institutions ilnd clccision-making proccsses huve

only part of the "action," and thus finirl clccisions resultingin dedication of a given water supply to it given purpose itreotien made only aflter nlrmerous preliminary decisions have

cleared ar,vay objections. iVlorcover. cach ol'the preliminaryclecisions is likely to crrll fbrth opposing ellorts in otherarcnas whcre conllicting intcrcsts hilvc thc irtlvattt:rge . -fhus

ir wntcr itgcncv nllr)' irllocirtc u,irlcr lo ir prtljcct. bc chal-lcnged in it court. r,vhose tlccisitln. it'contrltry to thc rvater

allocation. may be appealed to the lcgislattlre. One-stopdecision making.however attractive it muy scem to those

desiring quick action. has never hcen fitvored in the Ameri-can political process. -l-he anulyst, thcrelctre, musl be pre-pared to evaluate not only the likely actitln of'an agencyclircctly chargctl with a tlccisirln on ir spccilic issttc. htrt thcsubsequcnt and cc)ntingent uctions thirt itrc likcly to be

engaged by the initial decision.The follorving discussion is designcd to scnsitize the

analyst to the principal institutional structures throughwhich decisions ure likely to be made. It also e,\amines the

key orientations of these structures and how they may play a

part in the clctermination of socictal values and the allocationo[ those valucs ilmong conflicting groups.

Congress uncl stote leS4i.slutrtre.s. Congress and state leg-islatures are key institutions in making certain kinds ofmodifications and adjustments in the institutional structureand in determining the substance o[ water policy. Congressmust authorize water projects and finance water pollutioncontrol projects. State legislatures play a key role in dcfiningwater rights; Congress may or may not play ir major role inthe quantification o[ fedcrirl :rnd Indian vt'ater rights. Bothlegislative bodies may determinc the influcnce that variousgroups may play in water project decision mzrking by design-ing processes for public participation.

Legislative bodies are among the mosl "open" of publicinstitutions in this country. Dcspite their openness, ilcccss isnot equally available to all groups and interests. l'he internalstructures of lcgislative bodies antl the ne,\us between lcgis-lators, constituent groups, executive olllciitls. and publicopinion tend to skcw thc legislative proccss in litvor o[certain values and against others. ln terms of wttter policy,Congress historically has bcen strongl y' clricnted torvitrdfedcral sponsorship and financing ol'rvatcr dcvcloprncnts ttsit specics ot'public rvrlrks having grcut votcr ilppcal. Oppos-ing intercsts antl those who sousht to gturrtl thc public

329

treasury-such as the Prcsident-scldont had much influ-ence over water policy making.

'fhe incentivc structure ot'legislative bodies has changcdmarkcdly in the past 15 years. in part becausc of fiscalconservutism ancl in part because public values associatedwith protecting the environment have come to play a nroreimportant part in legislators' thinking and behavior. Analystsshoulcl be awure of the attitude structure and the historicalrccord ol legislative bodies in their assessments oI the rolethat those boclies may play in the dctermination of policy orinstitutional change $ngrurn et ul .,19801.

Both because of the broad distribution of agriculturalgroups concerncd',vith water policy and the strong supportagricultural values generally receive in the Unitecl States.legislative bodies tend to respond to organized agriculturalinterests on multers concerning water policy. Where thosegroups arc powerfully organizecl, they can have a significantellect on legislative output.'fhe various agricultural organi-zutions plus the irssociation ol irrigation and rverter supplydistricts in Califbrnia have been extremely influential inmany recent issues, for example, the peripheral canal,opposition to changes recommended by a governor's com-mission r)n rvatcr law revision. and opposition to any con-trols imposed on groundwater pumping without a firm statecommitmcnt tcl augment current surfirce rvatcr supplies.

I"r'dt,rrrl tttrtt .ttrtle c'ttttrl,s. Another mechanism lor rc-solving conllicts over scarce water supplies or rvater qualityis the judicial process. -the courts are open to all who candemonstrirte a justiciable issue either under statutes. com-pacts, or common law doctrines such as liability or equity.lncreasingly. legislatures have opened up the judicial proc-ess by specifically authorizing individual or group suits. Thec()r.rrts thenrsclvcs :rlso progressively narrowecl the cloctrineof'sovercign inrmunity. making it possible for individuals andclasses of individuals to sue the states or the federal govern-ment.

While access to the courts opened up considerably duringthe 1970's, there still remain severe constraints on utilizationof the judicial process. One is clearly money. Litigation is

expensive, and private groups-especially environmentalgrou ps-find it necessary to restrict the number o[ suits theyfile to those considered crucial. A second constraint is loundin the nature of the judicial process itself. Decisions aremade by inclividual judges and/or panels of judges on the

basis of legal norms. Unquestionably, judges respond tobroad social values and their own sense o[ what societyneeds or demands, but their decision is framed by the legalissue ars it comes before them; they cannot frame the issue insome other terms. At least partially for this reason, it is

difficult to come up with compromise solutions that reflectthe entire complex set of values that may be involved in agiven litigation. Moreover, judges are not in a position toconsider side payments that may alter the judgments of thepartics to the dispute. Judges also tend to be bound byccrtain conventions of their profession: the tenclency todecidc the cuse on as narrow a legal issue as possible and thetcnclency to tbllow precedent. Finally, decisions of courts,whilc framcd in broad legal doctrines and precedents, estab-lish the law o[ the case: others mily interpret the conclusionsin the light of othcr circumstances. Thus it may not bepossihle to prcrlicl outcomes o[ other cases rvhcre the sitmelcgal rloctrincs apply.

In adrlition ttl unrlerstanrling horv thc gencritl ot'ientation

lx<;H,rrrt t- t' Al .: Cit.rlt)trt-ti.it:s t"'oR lttt'Rt-lvt,tr lxs t I I ut't()NAt- r\runl-t'sts

Il0 Inc;nnlt ET At..: GulDILINI--s FoR IlrpRove o lNsr-r ru rtoNAr- AN,-rL]'sts

of the judicial system impacts the development of waterpolicy, it is also necessary to consider the differing orientet-tions of various jutlges and courts operating within thejudicial system. lhere is clear expectation and sufficientevidence to demonstrate that state courts will tend to makedecisions in favor of dominant state interests, while thefederal courts are more likely to rule in favor of federalinterests. These penchants are clearly demonstratcd in thecontroversies over Indian and federal reserved rights. Statesclcarly prclcr litigating irr statc courts and pcrsuadcd Con-gress to pirss the McCarrun amendnrent requiring that suitsinvolving federal and Indian rights will first be litigated instate courts with appcals possible to the federal courts.Moreover, environmentalists are more comfortable initiatinglitigation in the District of Columbia circuit court than in theother federal circuits. rvhile in Califurnia no onc ciln ignorethe environmental sympathies of the state supreme court. Insome instances, it may even bc appropriate to evaluate thepossibility that a particular judge may hear a case.

Some states. such as Colorado. have established special-ized courts for dealing with water matters. These courtsdevelop experience and expertise beyond that available togeneral courts in other states. These specialty courts providea highe r level of conficlencc among litigating parties :rs to thelairrtcss or tcchnical aclcquacy ol'the dccisions that arerendercd.

Finally, it should bc undcrstood that a judicial stnrtcgymay be part of a more general strategy that involves longdelays and possible remedial action by legislatures or evenvoters. Dominant interests may argue that litigation thatlasts l0 years-even il thcir position is not likely to besustained-allows them to continue to enjcly rights to rvateror allorvs thcnt to continuc to pr:llute until cnjoincd tronrcloing so. Moreover. they huve some confidence that theymay appeal to it lcgislature or to Congress lor sorne remedialaction, either in the form of a delay in the application of thedecision or some financial assistance to mitigate the burdenplaced upon them.

Fedcral nrtcl .stnlt' udntini.rlrolive agencie.s. Administra-tive agencies are both technical designers of projects andprograms and advocates of those projects and programs inthe political pl'ocess. They are often mission-oriented agen-cies, authorized to pursue the achievement of certain goalssuch as reclamation of land, protection of fish and wildlife.and protection of the environment generally. or energydevelopment. Because both external and internal incentivestructures ilre geared to achieving elgency missions, it ishardly surprising that the agencies'vision of the publicinterest is partial. Moreover, agencies work eflcctively withinterest grou ps and with individual members and committeesof Congress and state legislatures in carrying out their tasks.At the federal level, the tripartite relationships among agen-cies, congressional committees, and interest groups aresometimes referred to as "iron triangles."

When several agencies have partial responsibilities foractivitics allccting rvirtcr managcmcnt, it is ol'tcn ncccss:tryfor thcm to coordinate plans. negotiate dilfercnccs, cx-change technical intbrmation, and generally cooperute in the:rchievcment of concerted policy and administration. Whentlrcy cuttnot do so. othcr ugcncics of govcrnntent-chicl'executives. legislatures-mcdiate their disputes. l'he rcsolu-tion ol'the snail dartcr controversy by an act of C)ongress isuln illustrution of this proccss.

Fragmentation of administrative responsibilities and au-

thority is inevitable in dealing with a fugacious resource likewater that has impacts on a variety of public and privateactivities. Consolidation in large departments does not nec-essarily mean elimination of differences of perspective orinterest, although such consolidation may change the con-text of bargaining and the b:rrgaining strength of variousparticipating groups $vlunn untl Anugnoson, 19791. On theother hand. it can be argued that fragmentertion often timesproviclcs opportunitics fbr innovation and expression ol'diverse viewpoints that might otherwise be suppressed I n-

llrem uncl Ullery. 19801.

Administrative ilgencies dr:rw their power in the politicalprocess from both their technical e,\pertise and the discre-tionary uuthority granted them by legislative bodies. Admin-istrators at the state level ciln make decisions about theallocation of w:rter rights. trans[ers of rights, water qualitystandards and their application. pricing of water at stateprojects. and conservation measures, ils well as a host ofother matters. Federal water agencies are in a position to letcontracts fbluvater at federal reservoirs. establish n:rtionaland regional w:rter quality standards. determine minimumlow florvs. and set standards of eligibility for receiving watersuch as the ucrcagc limitation in the reclamation elcts. Theirknowlcclge of'rvater managcment matters on a day-to-dayhasis provides thcm with lbrmidable strcngth in makingdecisions and having them acccpted. iI challenged. in othertbrums. such as administrative law courts or regular courts.

Some administrative agencies are clearly in a superiorposition to realiz-e their goals. This superiority lies in greateraccess to political power in legislative bodies and greaterst-tpport in locrtl communities. For years the U.S. Fish andWilcllifc Scrvice has occupicd a secondary position to waterdevclopment agcncies in the planning and development ofwatcr projects. lt may be argued that the Service has nowachieved greater influence in these matters owing to thestrength of the environmental movement both nationally andin specific localities where the implications of these bureau-cratic decisions are felt most directly. The analyst should besensitive to these shifis in political and administrative stand-ing.

Loc'ul governmenl.t: Municipulities, corurlies, und c/i.s-

tricts. Urban wnter supply is a major problem throughoutthe United States. u,ith recurring severe shortages duringperiods of drought. Policies of local governments are there-fore important factors in evaluating the institutional charac-teristics of a given water supply situation. This is specificallyrecognized in the upper Colorado River basin assessment,where note is taken o[ the positive benefits of conservationeflorts in Albuquerque, Salt Lake City, and Denver inreducing the competition lor scarce Colorado River waterIColorttdo Depurtntent o.f Nutttrul Resottrce.r. 19791. Similar-ly, it is generally recognizcd that the rehabilitation of leakingand inefficient water systems in the eastern states wouldgreatly reduce water supply shortages in many river basins.

Municip:rl govcrnmcnts arc largcly retailcrs of water,although some municipalities have thoroughly intcgratedwater supply systems. Their retailer capilcity is reflectecl indecisions such as whether to meter water use, the extent torvhiclr rvittcr charges arc hirldcn in the t:rx hase. und thepricing policics adopted (flat nrte, higher ratcs ftrr greateruse. marginal pricing. etc.). Dcmand tbr water is clearlyclustic. i.c.. rlcnrlrnd is clircctly rclatcd [o price and thus is

lrucnlu ET At-.: CutDF-t.tNES FoR Iltpnovt o lNsrtrurloNAL AN.rtl'sts 33r

susceptible to deliberate manipulation by those u'ho supplyu,ater tbr rcsidential. commcrcial and industrial Llse.

Municipal rvater use ordinarily takes legal prcccdence

over other uses,pitrticularly in thc western states. lvlore-

over, tnunicipalities have the porver of eminent domain and

are in a position to obtain water supplies by payment of f aircompensation. With greater fiscal capacity and greater will-ingness to pay high priccs. municipirlities are in it betterposition to obtain rvatcr supplics in tinres of dirc neccssity.The clrought of the latc 1970's dcmonstrated the rcsponsive-ness of major rvholesalers of water. such as the Burearu ofReclamation, to transfer large blocks of rvater awily fromagriculture and towerrd urban uses.

Urban interests, sometimes reflected in the positionstaken by municipetl leaders. of'tcn cr)rrespond rvith the inter-ests of environmental groups. ivlany environntentalists livein urban ilrei.rs but en-ioy the naturarl e nvironment. which theyrvish tcl protcct against tlcvclopnrcnt. Whcn supply is scitrcc.supporting prioritics tor municipal use may preclucle re-

source development in rvildland arcas. On the other hand.

other environmentalists may oppose urban grou'th with itsaccompanying increase in municipal wilter use.

'I'he interests o[ smaller urb:rn communitics in largelyagricultural areas may correspond rv'ith locttl agricuItttritlist s.'l-hcsc cornmunitics ma)I lavor rvirtcr tlcvclopnrcnt ltlr irgri-culture or retention tl['watcr in agriculture rlrther than

allorving rvatcr to be transf'errcd to other intcrcsts. strch as

energy companies. They may usc their influence in legisla-

tures or act dircctly through their zoning powcrs to impede

changes that threaten the agricultural base.There are a large variety of irrigation. rvater supply,

drainage, water conservation districts. and u'ater ct)mpaniesauthorizcd under state stertutcs to supply'\vittcr fbr manypurposes but largely tbr agricultural uses. In some. influenceis broadly distributed. but in others. particularly those in

rvhich voting rights are based on the extent o[ propertyownership, influence is highly concentrated. Such districtsare jealous of their local prerogatives and resist the imposi-tion o[ requirements by state lcgislatures or Congress

IMaas.s und Anderson, 19781. Opposition to the acreage

limitation requirements of the Reclamation Act and resist-ance to groundwater control legislation are in parrt traceableto this strong local feeling.

Districts exist for the purpose of supplying witter and are

largely service organizations for their members. Under some

circumstances they may have some independent influence.particularly where the price ol rvater is high. the technologyo[ supply and management is sophisticatcd, and thc conse-quences of waste are significant. District officials may have

important control and entbrcement responsibilties. -fhe or-ganizations of water districts may be influential indeed,especially in state legislatures'uvhere water policy otien ismade. Their concerted influence may outweigh the influenceof individuals who represent interests whose numbcrs are

several magnitudes larger than the numbers involved inagriculture. An irnalyst should bc scnsitivc to the rcalitics otsuch distributions of political irrfluence.

Popttlttr pro('cr.rc.T t1l' dcci.siotr rnukin,g. Another lorumfor decision making is the rcferendum and the initiative(espccially in thc wcstcrn statcs but gairring populurityelsewhere). Private groups, through the circulation ot'peti-tions, ci.ln Iorcc a legislative cnitctmcnt onto thc birlltlt or cllnplace their own initiatcd nrcnsurcs on the ballot. Strch

devices have been used on measures dealing rvith waterpolicy. eithcr to frrcilitate or to block some proposed action.While in mitny instances the results clearly reflect a popularjudgment, it is also clear that such devices of public partici-pation are subject to manipulation by interest groups thathave sutficient economic resources to shape public opinionon a given issue.

Other inslittttions. There are a large variety of otherinstitutions for dccision making either in existence or cominginto bcing. These include compact commissions. some ofrvhich, like the Delaware River Basin Commission, have

major responsibilities and others rvhich have only modestpowers and little inf'luence fDerthick, 197 4]. There are large

rvhole saling districts, such as the Metropolitan Water Dis-trict of Southern California or the Northern Colorado Con-servitncy District. And there itre new institutions, such as

agencies that perform water transfer functions, that are inthc proccss of'conring into bcing. All have some role to playand some influence to exert but the analyst should be

sensitive to the nuances in their roles and the extent of theirinfluence. The formal authority anrJ roles attributed to themmay not reflect their true influence in political decision-muking.

AN,rt-ySIS OI; iVlr',rNS Of- OvERCOTUINC; INSTI-fUTIONALI nt pE D I r\'t E N'rs

Institutional analysis should not stop r.vith institutionalimpediments and problems but should proceed to responses

arnd solutions. The utility of an assessment can be greatly

enhanced by a discussion of how institutional barriers and

constraints might be altered or overcome by proven orpossible strategies and techniques of response. Among the

stratcgies and techniques that an analyst might identify as

being relevant for any given institutional setting are the

tbllowing.

The Opcratiott of' it'l at'ke t lvl ec'hartisrtts

A major method of accommodating new water uses is

through the transfer of water rights from existing uses, Whilemarkets for water rights are only beginning to appear in the

United States, the reallocation of water by water sales and

exchanges is on the rise and can be expected to play a moreimportant role in rvater management in the future. Thecreation of these new markets is dependent upon state

legislative action to remove legal prohibitions against trans-fers, upon state legislative action to further define propertyrights in water so that they can be dissociated from place orpurpose, and u pon the authorization, probably by state

le gislature, of institutional structures to provide mechanismsfor such transfers that protect the interests of third parties.

Recent research has produced both criteria for identifyingand evaluating water rights markets in the west, as well as

case examples of proficient and nonexistent markets lKho'shakhlagh et al., 1977 i Ellis and DttMars, 19781.

Market arrangements are designed to make it possible forwilling scllers and buyers to exchange watter at a price thatreflects thirl commodity's scarcity value. Institutional ar-rangements such els these suggest that society's interest is

cnhanced by the heightened efficiency in use associated wrthhaving rv:rtcr priccd at its real value. It may be expected thatthe crcation of nrurkets will be tavored by industrial. com-

mcrciul , and nrunicipirl interests, all o[ rvhich have a stake in

obtaining incrcuscd supplics from agriculture and who have

332 lncnaru ET At-.: GutDELINEs FoR lr'rpRovED lNsrtrurtoNAt, AN,.lt.\'sts

the capitarl to make purchases. Opponents are likely to be

tound among argriculturists and those closely linkecl to the

agricultural industry who fear that market arrangements willresult in a marked decline in agriculture and associatedcommercial, financial, and industrial activities. They mayalso be concerned that third party interests may not be

adequately protected. Studies in the Tulare Basin in Califor-nia, for example, revealed little support for state legislativeaction to remove the prohibition against transfers of waterbeyond the boundary lines of individual irrigation or watersupply districts [Weatherford, l982bJ.

While clearly not market pricing, it should be noted thatboth state and lederal agencies, to the extent that they areengaged in water supply organizations, are moving in thedirection of full-cost pricing of water. It may be expected, forexample, that prices charged by the Bureau of Reclamartionto reclamation customers will dramatically increase whenwatcr clclivery contracts are rcnewed in thc [uture.

Water pricing can be expected to facilitate entry into themarket by new users-at least in the short term-and to leadto greater efficiency in use. The relative role of rvatermarkets (present and prospective) in the reallocation andconservation of water supplied ought to be then noted and. ifpossiblc, analyzed in assessments [A n,gclidc.r ttntl fJurduclt,l97ttl. 'l-he anirlysis could includc un cxamination ot'thc legaland institutional barricrs to the devclopment and operationof water markets ( such as belief in and long reliance on" free " water, legal restrictions on the sale or leasing ofwater, or long-term repayment contracts), as rvell as some o[the negative variants or effects (e.9., monopolization, lack ofparticipation by affected persons).

Chungts irt Lc'tr1ttl Dcfinititttts, Ri,g/r/.r, ttnd Rclulion.s

Changes in water allocation, use. arnd milnagement pat-terns can be prompted or achieved in many instances bymodifying old legal rules and contracts or by creating newlegal rules and contracts. A court ruling allorving a farmerwho conserves water to sell what he has conserved, revers-ing an older line of cases to the contrary, exemplifies the waya change in legal rules can mitigate conditions o[ waterscarcity. While there is normally considerable resistance tochanges in the legal definitions of rights and duties. changesdo occur in response to active pressure (e.g., lobbying o[legislators, bringing of law suits, introduction of new tech-nology). Signs of possible change can be found in proposalsfor legislation, pending but unresolved litigation, the ap-pointment or clcction of judges with diflcrent jutlicial philos-ophies, the recommendations of interest groups, journalarticles and research reports, and interviews with informedobservers and commentators. Trends and developments inother states or regions often signal forthcoming change. Forexample, the recommendations of the Governor's Commis-sion on Water Law in CaliforniA. which have not beenimplemented, could provc ncverthclcss to inllucnce futurelegal changes in various parts of the West [.Stale of Cali.for-nia, l97tll.

Whatever the origin of the water rights recognized understate law, assessments ought to recognize that those rightsare as subject to the police power regulation of the states orto condemnntion, as are rights in land. -fhcir use can be

restricted (e.9. , waste prohibited) under recognized doc-trines of "beneficial use" and "reas()nable use," althoughactual enforcement. except in fiairly gross celscs of pollution,

is lax. Where statutory and proper purposes exist. the powerof eminent domain can be e,\ercised to condemn waterrights. The analyst should not assume, then, that a particulartype or pattern oI use is eternal or inevitable. Water rightscan have difl'ering duration (in perpetuity or lor a number ofyears) and can be expressly subject to conditions concerningtheir limits and uses, as set out in permits, regulations orlegislation IClurk, 1973: Hutchin.r, 197 ll.

Heavy reliance in assessments upon the stated rules ofwater law is not always justified. There commonly are gaps

between legal protocols arnd on-the-ground practices. Inother words, responses to institutional barriers may be

already occurring in the field. A particular state law, forexample, can prohibit the transfer of water from one farmerto another without approval of a public agency, but sub rosatransfers among neighbors still may be widespread andcommonplace in practice.

Chunge.s irr (joverttntcnl Wutcr Munagentenl Pructic'es

Changes in agency practices can occur with the redefini-tion of mission, new financial arrangements, and alteredwater mirnagement techniques. The Bureau of Reclamation,for example, recently began to require water use efficiencylund conscrvaticln provisions in its new contracts lbr rvaterdclivery to irrigation districts in reclamation projects. -t'his

represcnts a slight dcparture from a long-standing policy ofnot attempting to influence (except through occasional vol-untary technical assistance) the internal water distributionand on-farm water use practices followed within rvaterdistricts tU..t. Departntent r{ the Interior, 19781. It repre-sents, in one sense, a positive response to the generalineffectiveness ol legislation and court-made law requiringrcasonablc usc and prohibiting rvastc. Program changes. inresponse to institutional constraints. are ongoing phenomenawhich, rvhen significant, should be noted by the analyst.

Creution of Nex' Instittttions

The analyst should be on the lookout for situations whereinstitutions may arise or be emerging in response to a

recognized water-related need or problem. Water banks andgroundwater management codes are two examples of rela-tively new institutions that have contributed to the resolu-tion of water use and allocation conflicts [Angetides andBordach, 1978J. Even though state water laws might formal-ly restrict the transfer of werter from a water user in onewater district to a usier in another district, during droughtconditions a governmcnt agcncy might assume the role ofbroker or water banker, effecting temporary exchanges ofwatcr by changing water delivery amounts and schedules.Thus new institutions can be created rvithin old ones.

Negotiatecl Settlernents and Coalitions

Whcre intcrcsts conflict, rcsolution can often be found in anegotiated settlement. A would-be user of water can some-timcs still thc f cars of cxisting watcr uscrs who pcrccivc thenew use will impinge on their rights by agreeing in advanceto compensate them for injury or to take specific actions tomitigate the adverse eflects. Indemnification and mitigationilre tcchniques which have allorved oil shale companies torucquire conditionarl water rights on the rvest slopc of Colora-do, tor example. although on the face of the record of waterrights filings in the area an analyst nright have concluded that

INcnnu Er AL.: CutDEr-tNEs FoR Ilrpnovso INsrtrurtoNAL ANlt-vsls 333

no water would have been available without a formal waterrights transfer I Univer.sitl' of' Wi.st'onsin, 19751.

Negotiation can also be prompted because institutions fearthe high costs of unccrtainty and protractcd conflict. Forinstance, conflict and uncertainty over the long-term flow ofthe Colorado River has structured development decisions.As a hedge against uncertainty, the state of Californiainsisted upon a guarantee of 4.4 x 106 acre feet per year arfter

the Central Arizona Project was built. Consequently. theburden of risk of low river flows was shifted from Californiato Arizoner in the Colorado River Basin Bill of 1968 ftngrum,19691. Attempts to minimize and shif,t the burden of riskduring negotiation are characteristic of water resource poli-tics and can be anticipated in the assessment process.

Nert'/y Developed or Disseminutecl Infrtrntatiort

The lack of knowledge and inf ormation can give rise toconflict or prevent needed change from occurring. Onegroup may oppose a proposed water development or man-agement decision because its likely effects are unknown or amatter of dispute. Lack of knowledge can also spawn newinstitutions. Political disputes over water supply require-ments and questions about the feasibility of transferringwater from the Columbia to the Colorado river basin thus.for example, led to the creation of the National WaterCommission and its assignment to study interbasin andinterstate transfler issues and possible policy ideas. Moreknowledge and information can sometimes have the effect ofsuggesting solutions to conflict or removing the grounds forconflict. The availability and effectiveness of institutionswhich generate, analyze, and disseminate information con-cerning important water issues are therefore appropriatesubjects for thc analyst to irddress.

Engineering und Technic'ul Soltttittrts

Sometimes the response to an institutional problem is

largely technical. The relations between the United Statesand Mexico have been strained over the incidence of highsalinity in the waters of the Colorado flowing south of theborder. The express terms of the 1944 Mexican Water Treatyallotting 1.5 x 106 acre feet of the Colorado River flow perannum to Mexico were silent on the water quality issue.Subsequent agreements in 1965 and 1972 involving physicalsolutions were required to address the salinity problem.Among the hoped-for technical solutions are bypass canals,groundwater pumping, desalinization, and the control ofsalty point sources IMann, 1975J. When technical approach-es are taken to institutional problems, however, the costscan be high both economically and institutionally. Neitheragriculture nor industrial users, for example, can afford thecosts of desalted water. The institutional analyst needs toremain vigilant to the possible implications of attempts toredefine and address problems in technical terms.

Sut"rMARY AND CoNcLUStoN

Our goal has been to convince water resources scholars,students, and analysts that institutional analyses are ( I )important and (2) feasible. They are important becauseinstitutions are important, often as important as physicalconditions that constrain or make possible a given project orprogram. Institutional analyses are feasible-they are tloneall the time-but they require an understanding of the toolsand the data resources that are available. Institutions are not

necessarily "black boxes," inscrutable and mysterious,even though they may not be described with mathematicalprecision. They deal with choices and preferences andthercfore partake of a normative elemcnt that is not zrltogeth-

er predictable. But the elements that influence thosechoices-ideology, decision-making rules, laws, regulations,traditions, and rights-can be described, evaluated, andassessed.

We hope also to have convinced our readers that institu-tional assessments should examine not only the statics butthe dynamics of institutional arrangements. Institutions existfor making decisions, and those decisions imply changes,challenges, and new sets of circumstances and requirejudgment, interpretation of the past, assessment of thepresent, and predictions of the future. I n other words,institutions tend to deal with dynamics and are themselvessubject to the dynamics of the subject matter with whichthey dcal. lnstitutions can and do change to meet challengesjust as physical or economic arrangements can and dochange.

We have :rrgued that institutions are made up of humanbeings who are subject to various incentives. Some institu-tional assessments often favor creation of formal organiza-tions without careful examination of the incentives to whichthe officers of the organization may be subjected. The resultis formalism but little capacity to deal realistically withsituations that invite imaginative change. The assessment

that makes a contribution will be one that examines howhuman beings are likely to behave and not how we mighthope they rvould behave.

Because institutions are dynamic and made up o[ peoplewho make choices, the sophisticated analyst must be awareof the possibility of unintended consequences. Predictably,those who are averse to change will react, set backfires, stirup opposition. Conflict may occur in policy sectors otherthan that with which our analyst is dealing. The analyst is

therefore careful to assess not only water policy but also the

context in which water policy is fashioned and implemented.Finally, the realistic water resource scholar and practitio-

ner will understand that institutional analysis, because itdeals with complexities and dynamics, is time-consuming,intellectually challenging, and costly. It cannot be done "onthe cheap"; it cannot be done with inadequate tools; and itcannot be purchased in a "canned" form from work doneelsewhere.

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(Received July 5. 1983;revised November 17. 1983;

accepted November 21, 1983.)