2011 Forum Abstracts

Fifth Annual Barbara L. and Norman C. Tanner Center for Nonviolent Human Rights Advocacy Forum

WATER, CONFLICT, AND HUMAN RIGHTS: EMERGING CHALLENGES AND SOLUTIONS
February 23-25, 2011

Abstracts and Presenter Contact Information

Opening Keynote: “The Global Water Crisis and the Coming Battle for the Right to Water”
Maude Barlow, National Chairperson of the Council of Canadians, and Founder of the Blue Planet Project

The world is running out of available fresh water and billions are at risk as is the planet. Already, many conflicts have arisen from this scarcity, paramount among them the question of whether water should be considered a public trust and a human right or put o the open market for sale like running shoes. Maude Barlow presents the causes and nature of the crisis and share her three point plan toward a water secure world.

Panel I - Water Demand: Population Growth, Economic Development and Energy

Zach Frankel, Founder and Executive Director, Utah Rivers Council
“Water Demand for the World’s Largest Water User”

For decades, Utah’s urban water use has consistently been the highest in the United States.  To meet projected population growth in coming decades, government water suppliers continue to propose billion-dollar water diversions with escalating environmental damages to desert aquatic ecosystems even in the face of a drying climate.  What makes Utah so unique in its gluttonous water use and how does this waste compare to other states and other nations?  We reveal surprising ironies of one of the most conservative states in the country.

Anya Plutynski, Associate Professor, Department of Philosophy, University of Utah
“Risk, Perception, Precaution and the Climate-Water Nexus”

Water is the central limiting resource of the Western United States, the source a unique and elaborate body of law, the site of extensive dams and development, and the center of a history of divisive politics of the West. For the past 100 years, water has been developed to serve largely narrow utilitarian ends: agriculture, mining, and the ever-growing population of the West. Today, a new challenge faces those who manage and plan for water in the west: climate change. Scientists and engineers, as well as the NOAA, are already documenting change and planning for the stresses water variability and shortages might place on users in desert states such as Utah, New Mexico, and Arizona.
 
However, in western states with a libertarian bent, the law and politics of water and the politics of climate change make an especially heady mix. The very claim that warming is happening, not to mention that it is caused by anthropogenic activities, has divided politicians and scientists, policy makers and activists, along partisan lines. Many of those with the most power in state and local governments regard climate change abatement measures as a challenge to “western” values of liberty and free enterprise. Moreover, states are deeply divided because of a long history of tension over rights to water - from the headwaters of the Colorado to Mexico.

Scientists, lawyers, water users, stakeholders, leaders of environmental organizations, and leaders in state and local government have very different perceptions about the extent and nature of risks due to climate change, and how to address these risks. These differences in knowledge and perception will no doubt have substantial repercussions for water use and availability in the future.

The object of this paper is first, to briefly summarize the state of climate science, particularly, its potential impacts on water resources in the west. Second, I will reflect on the political, social and logistical complications that these changes will bring for planning for water in the West. Third and finally, the object is to try to map out the causes of these very different perceptions, suggest ways in which scientists and policy makers might better communicate, about our values in planning for water resources, as well as our shared obligations in responsibility for non-human animals, ecosystems, and future generations.

Dennis Strong, Director, Utah Division of Water Resources
“Water: Plan, Conserve, Develop, Protect”

The Governor’s Office of Planning and Budget is projecting that Utah’s population will exceed five million by 2050. Facing this increased growth, how will Utah meet future water needs? The State has set a water conservation goal that by 2050 the 2000 per person water use will be reduced by 25%. Meeting this goal will provide about 60% of the water needed to meet the increase in water demand for 2050. How will the balance be met? Can current water consumption be reduced more than the current goal? More than 80% of Utah’s current water use is for agriculture. What roll will agricultural water play in meeting future industrial and domestic water needs? Who should make decisions about growth? And as an aside; should water be priced and marketed only as a commodity using economic models associated with the theory of “supply and demand”?

Keynote Lecture: “The Water Crisis, New Solutions, and the Role of the Human Right to Water”

Peter Gleick, Co-Founder and President, Pacific Institute for Studies in Development, Environment, and Security

The world is desperately in need of new thinking about how to manage our scarce and precious water resources. Our current use of water is out of balance and unsustainable - we hear the headlines and see the evidence all over the world, every day, from resurgent cholera in Africa and Haiti, where basic human needs for water still are not being met, to growing severity of floods and droughts; from farmers killing farmers in Africa to cities shutting down farms in China over water disputes. I believe that ultimately and inevitably we will move to a future where we use our water in a sustainable way - to what I call a “soft path” for water. But there are many routes to long-term sustainable water use. While none of them may be easy, some are attractive while others must be avoided. Part of this new thinking is the realization and acknowledgement, at last, that there is an explicit human right to water. While declaring such a right, as has finally been done at the United Nations, is a crucial step forward, more must be done before our use of water becomes sustainable for future generations. For water managers, planners, hydrologists, engineers, economists, even for policy makers who care about water, it is a time of new challenges, new thinking, new technology, and new ideas.

Panel II - Water Privatization: Inter-Basin Water Transfers, Democracy, and Human Rights

Susan Spronk, Assistant Professor, School of International Development and Global Studies, University of Ottawa, Canada
“Struggles for Water Justice in Latin America: Alternatives to Privatization”

In Latin America, struggles against water privatization have played an essential role in delegitimizing the neoliberal model, such as the infamous “Water War” in Cochabamba in 2000 and the constitutional referendum in Uruguay in 2004. Thanks to these and other struggles that seek to defend water as a human right and common good, Latin America has changed from being a region in which the neoliberal model was dominant to a territory of hegemonic instability in which alternatives are being sought and contested. For this reason, the world is looking to Latin America for alternative models of service delivery which challenge the commercializing logic of neoliberalism. Based upon research conducted with the Municipal Services Project, this paper first reviews the problems engendered by private sector participation in the region and then provides an overview of a diversity of actually-existing and proposed alternatives to privatization in the water sector, in urban and rural areas in Latin America. While there is no ‘perfect’ alternative the region is replete with many examples of ’successful’ alternatives to privatization, including statist and communitarian solutions to the challenge of providing non-commercialized forms of water and sanitation for all.

Simeon Herskovits, Director and Chief Counsel, Advocates for Community and Environment
“Balancing the Gradient: Using Grassroots Organizing, Public Participation and Legal Strategies to Ensure that Interbasin Water Transfers Do Not Destroy Environmental and Cultural Rights to Water in the Rural West”

It has long been a truism in the American West that water flows uphill toward money and power. This maxim is being played out as urban centers pursue unsustainable growth, spurred on by big developers and the proliferation of ever more aggressive schemes to export water from rural basins to urban centers. Yet the economies, environment and cultural and spiritual vitality of these less powerful rural communities are dependent on the limited water that is naturally present in those areas.

Using the current struggle over Las Vegas’s push to import groundwater from rural eastern Nevada and western Utah as a case study, this presentation will explore the interplay between legal action and broad public participation in decisionmaking processes at the federal, state and local levels of government. The presentation also will examine the strategic use of opportunities to challenge interbasin transfers from a variety of angles that reflect the varied rights to and interests in water that are possessed by diverse communities and constituencies, including Indian tribes, non-Indian farmers and ranchers, outdoor recreationalists, and citizens’ groups devoted to protecting the environment, public health and social justice.

In addition to using these public processes and legal tools to stop problematic interbasin transfers, promoting broad participation can transform the public discourse concerning water resource management and allocation. This enriched dialogue promises to rebalance the gradient in the interbasin flow of water, giving greater voice to historically neglected environmental, cultural and socioeconomic roles and values of water.

LaDawn Haglund, Assistant Professor, Justice and Social Inquiry, Arizona State University
“Constructing the ‘Public’ of Public Goods: The Role of Organizing Principles”

The provision of public goods, once regarded as primarily the responsibility of governments, gave way in the 1980s to privatization and greater reliance on market mechanisms. The record of the past twenty-five years of market-led development, however, has not been encouraging, as Haglund outlines in her recently-released book, “Limiting Resources: Market-Led Reform and the Transformation of Public Goods.” Not only did it fail to improve public services significantly, but it at times undermined democratic institutions and processes, reproduced authoritarian relations of power, and suppressed alternatives made possible by an increasing global acceptance of economic and social rights. In this talk, Haglund critiques the narrow conception of public goods used in economics, which tends to limit the range of resources considered “public,” and proposes an expanded conception drawing from multiple disciplines that incorporates issues of justice, inclusion, and sustainability.

Panel III - Water Quality, Ecosystems and their Restoration, Community Well-Being and Public Health

Robert Adler, Professor, S.J. Quinney College of Law, University of Utah
“Clean Water and Communities: Rights and Responsibilities”

The concept of an individual human right to water has a nascent but still uncertain status in international law. However, providing or protecting that basic human resource is also a function of community rights and responsibilities. Approaching the ‘right to clean water’ from a community rather than an individual rights perspective may enhance our ability to improve access to clean, sustainable water supplies around the world.

Joy Zedler, Professor, Botany, University of Wisconsin
“Restoring Clean Water in Wetlands and Watersheds”

Dirty water that runs off the land and through a wetland comes out cleaner, because the wetland can settle out suspended solids, transform nutrients, remove pathogens, and denature toxic materials. These ecosystem services (collectively, “water quality improvement”) led to the protection of wetlands under the federal Clean Water Act and requirements that municipalities remove suspended solids before discharging urban runoff. Unfortunately, wetlands are still being filled; damages are not necessarily compensated; engineered stormwater retention ponds provide limited service; and natural wetlands cannot handle all the dirt that comes their way. How then, will dirty water be cleansed? An attractive solution is “watershed planning,” namely, the strategic restoration of wetlands and placement of facilities to treat stormwater runoff, using science to decide which kinds of wetlands and treatment systems should be used where and how. Several efforts to improve watershed planning are underway; e.g., The Nature Conservancy’s effort in Wisconsin aims to establish a model for other states to follow. To aid that effort, my research program is (1) testing “designed plant assemblages” to enhance services provided by restored wetlands and (2) seeking “superplants” that can perform multiple services especially well. But, better science is not sufficient. Further challenges to be overcome include loopholes in the law, flaws in the regulations, and pressures on the regulators. The hope is that watershed planning and implementation will become adaptive, i.e., improving over time as alternative approaches are tested and monitored, and the best outcomes are used more widely.

Walter Baker, Director, Division of Water Quality, Utah Department of Environmental Quality
“Protecting and Restoring Our Waters When It’s Much Easier to do Otherwise”

Mr. Baker will explain the pillars of Utah's water quality program, the challenges and even the sacrifices we face if we are to preserve our waters for future generations and what we can individually do to make a difference.

Panel IV - Water Conflict Case Studies: Stakeholder Mediation, Dialogue and Lessons Learned

Joseph Dellapenna, Professor of Law, Villanova University
“Better Red than Dead? Conflict or Cooperation in the Dead Sea Basin”

It is common place today to predict “water wars” as looming in the 21st century. While no one can be certain that such wars will not occur, historical evidence suggests that the risks are much exaggerated. The Dead Sea basin provides a case in point. The five national communities that share the waters of the basin -- Israel, Jordan, Lebanon, the Palestine Authority, and Syria -- have engaged in nearly continuous conflict over many issues over more than 80 years, they have in fact cooperated in significant ways over their shared waters. While cooperation over water has not translated into cooperation over other actually conflicted spheres of activity, it has brought considerable achievements. One result has been the provision of water to a much larger population in the region that was thought possible 80 years ago. Another result has been the massive degradation of the lower Jordan River, the Dead Sea, and other water sources in or near the basin. Cooperation continues today, with perhaps its most significant manifestation being the proposal to divert water from the Red Sea to the Dead Sea in order to provide power generation, desalinated water for various uses, and in order to stop the on-going degradation of the Dead Sea. Whether this will happen, and whether it will succeed in its several goals, remains to be seen. This paper will explore the history of recent conflict and cooperation over water in the Dead Sea basin, with a particular discussion of the proposed Red-Dead project. (As a matter of public disclosure, I am currently head of the “legal and institutional aspects” team of the World Bank feasibility study for the Red-Dead project.)

Madeleine Greymountain, Member, Confederated Tribes of Goshute Reservations
“Potential Effects of Reduced Groundwater from the Water Aquifer under the Goshute Indian Reservation”

Before Utah was settled, approximately 20,000 American Indians lived within the exterior boundary of Utah. The Northwestern Band of Shoshone to the north, the Goshute (Skull Valley and Confederated Tribes) to the west, the Ute in the central and eastern regions, the Paiute in the southwest and the Navajo in the southeast.

The Tribes moved with the seasons to gather food, hunt and fish. They regarded the lands sacred and have strong spiritual connections to the land. They lived in peace and harmony with the land and its resources was critical to their existence.

Water is an essential part of any ecosystem, reducing the availability water for the natural environment will have devastating effects. Water and land cannot be treated as separate issues. Just as the environment is integrally tied up with the social, health, and economic impacts of water use, ensuring environmental sustainability and regeneration will also have positive effects on these areas.

The land and water governance structures exist on the Goshute Indian Reservation, but they are not systematically recognized by different governments. If water reforms are to improve the livelihoods of Goshute Indian people and rural people, their voices and concerns need to be heard and acknowledged as part of the reform process. The Goshute people and rural people face an intricate web of deprivations. Taking water away from its sources will greatly impact the lives and livelihoods of Goshute people and will place water resources under increasing and unsustainable pressure. These challenges set the scene for the need to look at water in all of its contributions to development -- in health, in food, in livelihoods, in energy and industry -- through development that does not jeopardize the integrity of the environment.

The Goshute Indian Reservation and adjoining community water resources is jeopardized by the proposed pumping of huge volume of water to Southern Nevada. The Tribe has been protecting its resources to mitigate the unsustainable exploitation of water resources.

The Goshute Tribal human and economic development will be stifled without an adequate supply of water of suitable quality. They have been living in peace and harmony with nature and water has been worth more that gold or oil. There must be sufficient water to meet human and environmental needs. The value of freshwater exceeds narrow economic calculations by encompassing a whole range of social, cultural, and ethical considerations.

Water is a common element in the lives of all peoples and societies. Water has been the foundation, and sometimes the undoing, of many great civilizations and today is essential for the agricultural, economic, and industrial activity that helps societies to develop.

The environment is also a source of many resources - food (agriculture, fisheries and livestock) and raw materials from forests.

Flows of water are also essential to the viability of all ecosystems. Unsustainable levels of extraction of water for other uses diminish the total available to maintain ecosystems integrity. This will inevitably lead to the further disturbance and degradation of ‘natural’ systems and will have profound impacts upon the future availability of water resources. Actions to ensure that the needs of the environment are taken into account as a central part of water management and conservation are critical if present trends are to be reversed.

Michael Campana, Professor, Department of Geosciences, Oregon State University
“What Would Elvis Say? Mississippi v. Memphis and the Curious Case of the Memphis Sand Aquifer”

Conflict between USA political jurisdictions over transboundary aquifers are rarer than conflict over surface water bodies. The recent case involving the Memphis Sand aquifer in the south-central USA, a seeming anomaly, could indicate that more such cases are on the horizon. This presentation will discuss the case and its implications for transboundary groundwater management and water conflict within the USA.

The Memphis Sand aquifer underlies about 26,000 km2 (10,000 mi2) in the south-central USA, primarily in the states of Arkansas, Mississippi, Tennessee, and Kentucky. The aquifer is renowned for its good quality water, making it an ideal source of drinking water. The aquifer provides water to the residents of Memphis, Tennessee, and many of the residents of Shelby County, Tennessee - a total of over 1.1 million people. The city-owned water utility, Memphis Light, Gas, and Water (MLGW), pumps anywhere from 600,000 to 760,000 m3/day (160 to 200 million gallons/day) from the aquifer, which is up to 200 meters (650 feet) thick beneath Memphis.

The state of Mississippi, which lies just south of Memphis, claimed that MLGW’s pumping from the Memphis Sand was capturing water from beneath the state of Mississippi - up to 30% of the total pumping - and that it was thus entitled to damages. Memphis claimed its groundwater pumping was ‘reasonable’ and did not reduce the availability of water in Mississippi. In 2005, the state sued the City of Memphis and MLGW for over USD $1 billion in U.S. Federal District Court. For Memphis, losing the case would not only mean potentially paying a large penalty but also dictating that MLGW would have to tap the Mississippi River for some of its water, necessitating construction of an expensive treatment plant.

The district court dismissed the lawsuit; Mississippi appealed the case but the original decision was upheld by the U.S. Fifth Circuit Court of Appeals. The appellate court also required that the State of Tennessee be designated a defendant in the case as it was a “necessary and indispensable party” to the lawsuit. It further ruled that since the lawsuit was now between two states, it must be decided before the U.S. Supreme Court, which declined to hear the case. Mississippi’s claim was thus rejected, although the Supreme Court left the door open for another lawsuit if Mississippi thinks it can prove that it has been harmed.

In summary, Mississippi v. Memphis will have a profound influence on water management and the potential for conflict in the US. The case has elucidated a number of issues that will no doubt appear again in the future, some of which are: 1) groundwater ownership versus use; 2) the resolution of transboundary groundwater disputes that do not involve state versus state; 3) the value of groundwater and possible groundwater marketing; 4) the public trust doctrine as applied to groundwater; and 5) the need for compacts designed specifically for groundwater.