WaterWired

South African High Court Rules: A Human Right to Water

Colleague Kate Ely clued me in that the South African High Court in Johannesburg recently ruled that people have a human right to water. The Court ruled that the poor have a constitutional right to water, and it's believed to be the first time this constitutional right has explicitly been raised anywhere.

Judge MP Toska ruled that the City of Johannesburg had to provide free basic water in the amount of 50 liters per person per day to the residents of Phiri, Soweto. The City had been cutting off water when residents exceeded a monthly household limit of 6000 liters (200 liters per day per household) of free water, unless pre-payment for more was made.   

The judge found the aforementioned practice unconstitutional and wrote that denying the poor access to adequate water "is to deny them the rights to health and to lead a dignified lifestyle."

In specifying the 50 liter per person per day figure, Judge Toska referenced the research by Dr. Peter Gleick of the Pacific Institute. Here is the press release.

Read more here.

This decision really struck a chord with me. I remember at the Third World Forum (3WWF) in Kyoto in 2003 during an open-mike session, a South African man from Soweto told the audience in trembling voice:

"When the whites ruled the South Africa, my water was free. Now that I live in a democracy and my people [the African National Congress (ANC)] are in charge, they turn off my water when I cannot pay."

I hope he's around to witness this historic decision.

 

Vermont Protects Its Ground Water: Violation of NAFTA?

Their New Hampshire neighbors might sneer that they are "quiche eaters" (Vermont does make some wonderful cheese) but when it comes to protecting ground water, the Green Mountain State folks don't want strangers to pump too much of their precious ground water.

Today's Christian Science Monitor has Tom A. Peter's story.

So the Vermont legislature just passed a bill that establishes a water permit system, which Gov. Jim Douglas (R) will likely sign. The law declares ground water to be a public trust and requires all enterprises pumping more than 57,600 gallons per day (40 gallons per minute) to obtain a permit. Most farms are exempt.

The amount allowed without a permit is not insignifcant - it's about about 65 acre-feet per year. That's actually a lot of water from a so-called "exempt" (exempt from a permit or water right) well. Here in Oregon, we allow an exempt well 15,000 gallons per day, which is a lot; Washington allows an exempt well to pump 5,000 gallons daily. New Mexico, much drier that OR, VT, or WA, allows 3 acre-feet per year or about 2,700 gallons per day,  < 2 gpm.

So let's say you pump 57,000 gallons per day; no permit is required. That's enough to bottle over 200,000 one-liter bottles of water daily (I am conveniently neglecting the water used in the process), or over 80 M bottles per year. That is not a huge bottling operation, but it's not small, either.

There could be a problem, though: Vermont's measure may violate the North American Free Trade Agreement (NAFTA), since it could constitute a barrier to international trade. If a foreign company believes that its ability to conduct business is hindered by the law, then it can file a claim against the state under NAFTA.

One Canadian firm already pumps Vermont ground water and bottles it in New Hampshire for sales across the country. Other firms may be considering bottling operations. Again, Vermont has "cachet".

Some have warned that NAFTA would have this effect and compromise the ability of border states (or provinces) to manage/allocate their water. Vermont believes it will not be a problem, because all enterprises are treated the same; international firms are not singled out.

Alyssa Neir and I broached these NAFTA issues as they might develop along the USA-Mexico border.

But time will tell, and I suspect this'll get interesting.

"We cannot direct the wind, but we can adjust the sails." -- Bertha Calloway

ABA Best Papers in Water and Environmental Law

Colleague Patrick Griffiths of the City of Bend alerted me to this information, which is from the American Bar Association's Section on Environment, Energy, and Resources (EER).

The ABA Section of Environment, Energy, and Resources recognizes the following paper submissions as the "Best Papers" prepared for the 37th Annual Conference on Environmental Law (Keystone), 26th Annual Water Law Conference, 15th Section Fall Meeting, and the 36th Annual Conference on Environmental Law. Each author was presented with a certificate of recognition and a Section publication as a token of appreciation for their outstanding submissions.

You can download each of these free here.

Here are the Environmental Law winners:

Thomas A. Bloomfield | Gallagher & Gallagher, a Professional Corporation
The Topsy Turvey World of CERCLA Uncertain Law – Uncertain Science

Sharon M. Mattox | Vinson & Elkins, L.L.P.
The 404(b)(1) Guidelines: Overview and New Developments

Rex R. Raimond | The Meridian Institute
Ethical Considerations Regarding the International Development and Application of Nanotechnology and Nanoscale Materials

Douglas R. Williams | Saint Louis University School of Law
Complexity, Competence, and Confidentiality: Ethical Issues at the Cutting Edge of Environmental Law

Water Law winners:

Charlton H. Bonham | Trout Unlimited
A Recipe from the Field for Dam Removal Agreements

Sandra Zellmer | University of Nebraska College of Law
Anti-Speculation: Ghost-busting, Trust-busting, or Ensuring Beneficial Use?

I have read only Zellmer's paper, which both Patrick and I strongly recommend. Her paper graces the 15 April 2008 issue of The Water Report. A brief synopsis follows, and you can download the paper here:

Download BestZellmer_WaterLaw08.pdf

Zellmer is an excellent and entertaining writer, and the paper's title befits the topic. Any paper that starts and ends with Dr. Peter Venkman and Ghostbusters  (yes, that Ghostbusters) gets my vote. She delves into the realm of Western water law and the prohibition it places on speculation, i.e., the purchasing of water rights and holding them as they increase in value, just like one does with stocks and art.  This proscription against privatization or commodification of water has served as a barrier to speculation. She posits whether this prohibition still serves the public interest, or is merely a relic, but notes that many feel water speculation is "just plain wrong."

Zellmer then takes us on a journey to visit with "Water Baron" (synonymous with "Robber Baron"?) T. Boone Pickens and the Ogallala aquifer (High Plains aquifer, actually), the Great Lakes, Michigan (bottled water - see this publication from the Great Lakes Law blog), California, and British Columbia. Pickens is referred to as the "most brazen" of the Water Barons.

She correctly states that not all privatization schemes are alike, and even relates that Enron was keenly interested in water privatization, but realized that water was quite a different commodity from oil or natural gas, and not as easily "corralled". Its foray into the water field cost the firm $300M.

Cut to the chase: Zellmer concludes that some believe that anti-speculation provisions in Western water law may:

1. have the "perverse effect" of promoting speculation, in the sense of allowing a speculator to "disguise" his/her true intentions by purchasing water rights, then using them to irrigate a crop with little or no value, simply to hold onto the water rights for future sale; and
2. prevent rational planning for future growth (although the prevalence of municipal exceptions undermines this belief, since municipal use is often treated as a "super-beneficial" use).

She notes that nearly 50% of all Western water transfers occur in Colorado, the state believed to have the strongest anti-speculation laws.

A very thought-provoking paper indeed.

"Why worry? Each one of us is carrying an unlicensed nuclear accelerator on his back. " -- Dr. Peter Venkman, Ghostbusters

Noah Hall's Great Lakes Law Blog

Professor Noah D. Hall of the Wayne State University Law School recently started the Great Lakes Law blog. Wayne State is home to the Great Lakes Environmental Law Center, of which Hall is the Executive Director.

If the first posts are any indication, then this will be a significant addition to the waterblogosphere. There are posts about bottled water issues, the Great Lakes Compact (hey, Gov. Bill Richardson: check these out) and a nifty little post about 'Groundwater and the Public Trust Doctrine', replete with a short document about GW and the PTD in Michigan:

Download Hall_PTD_and_groundwater_memo.pdf

He provides some Congressional testimony about Federal and State laws regarding bottled water industry, providing an overview and recommendations:

Download Noah_Hall_Bottled_Water_Testimony.pdf

And view this article by Coral Davenport from Congressional Quarterly's weekly magazine, CQ Weekly:

Download CQ_Weekly_Creating_New_Water_Ways.pdf

This is going to be an important source - not just a rehash of material from elsewhere, but some serious analysis by Hall, and not necessarily Great Lakes-specific.

Welcome to the waterblogosphere, Noah!

A Blog on All Things Wet and Legal in the Great Lakes Region by Professor Noah Hall

"But never underestimate the ability of the federal government to waste billions of dollars of taxpayer money on a dumb water project." -- Noah D. Hall, 1 April 2008