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In considering the status of water as an investment under international trade agreements, the concept of grasping seems particularly on point for several reasons. First, many international trade lawyers have conceptual difficulty grasping the nature and scope of private legal interests in the use of water. Second, many water lawyers have conceptual difficulty grasping the nature and scope of investor protections under international investment and trade agreements. Then there are recent efforts of private water users to secure recognition of entitlements to water under international trade agreements. These efforts represent a type of grasping as well.
This question is also now an important focal point for academic work in the field of international law, as evidenced by Oxford University Press’ 2005 book Freshwater and International Economic Law, a collection of essays by leading international law scholars from around the world.1 The debate over the scope of private interests in water under international law is therefore global in nature.
In many river basins around the world, the instream flows in the mainstem rivers are often determined by the contribution of water to these mainstem rivers from tributaries. Notwithstanding the somewhat obvious hydrologic reality that the contribution of water from tributaries helps determine the instream flow of mainstem rivers, the law often treats mainstem rivers as if they were hydrologically distinct from tributaries. That is to say, legal rights of diversion of water on mainstem rivers are often determined without taking into proper account how diversion of water on upstream tributaries impacts the volume of water in mainstem rivers.
Perhaps the most glaring example of this disconnect between hydrology and the law is the case of the multistate legal regime (often referred to as the “Law of the River”) to allocate the Colorado River in the United States. Pursuant to the Law of the River, California was granted the right to divert 4.4 million acre-feet (MAF) of water from the Colorado River, while Arizona was granted the right to divert 2.8 MAF of water from the Colorado River.
One of the instream uses of waterways is for navigation, and waterways are sometimes characterized in statutes and state constitutions as “common highways” open to all. In the case of man-made waterways such as canals, however, the notion of these channels as “common highways” has often been muddled or lost, as control of such canals has often been turned over to private companies.1 As some of these older canals have become less economically viable as corridors for commercial shipping, however, perceptions of these waterways have begun to change. These waterways are viewed less as privatized artificial conduits and more as public natural space.
When thinking about the concept of protected natural areas, there is often a tendency to consider such protected natural areas in contrast to or in opposition to artificial man-made structures. Similarly, when thinking about the concept of protected natural areas, there can be a tendency to assume that the appropriate location for such areas is geographically remote from the more built-up urban environment.
Many people around the world are familiar with the concept of a legal right to use water. That is, the right to divert water out of stream for consumptive use, or the right to use water instream to generate hydropower. This concept of a legal right is private in nature, a right held by the party that uses the water to grow crops, to provide water for domestic use, to operate a hydropower facility on a river. For example, in the American West, such private entitlements to water include riparian surface water rights (which derive from the early English common law) and prior appropriation surface water rights (which emerged after the California gold rush).
Alongside these accepted notions of private rights to water, however, there is an equally long tradition in many countries of a public right to keep water instream – for fisheries, for navigation, for flows to preserve water quality. In the Roman Empire, the Latin term was publicum ius aquae (public water right) and was closely related to the status of fish and instream flows as res communis (things held/owned in common by the public) under Roman law.
Many of California’s anadromous and freshwater fisheries are now in sharp decline. Salmon and steelhead trout runs throughout the state, as well as the delta smelt, are currently designated as endangered under federal law.
In addition to the biodiversity loss associated with the decline of these fisheries, the collapse of California’s salmon stocks has had severe economic impacts on the state’s commercial fishery sector – from the fishermen who catch the salmon, to those who service salmon fishing boats, to those who ultimately sell salmon to customers in markets and restaurants. All of these people whose jobs and livelihoods are involved in California’s fishing sector have taken a financial hit as the state’s salmon stocks have plummeted. As explained by the Golden State Salmon Association, an organization that works on behalf of commercial salmon fishermen in Northern California, “For many of us, salmon provides the income we use to keep a roof over our family’s head.”1
In recent decades, commercial fishermen, Native American tribes, and other fishery conservation stakeholders have relied extensively on a set of federal laws and federal agencies to keep water instream for California fisheries.
In the preceding chapters of this book, we have reviewed multiple sources of state, federal, and international law that establish a right to keep water instream. The sources of law reviewed in the preceding chapters, however, have generally not framed this right as a fundamental human right. When viewed in the context of the broader field of indigenous rights, we can discern the basis for framing the right to keep water instream as a traditional established human right.
Throughout the world, there are many indigenous cultures in which salmon is central and essential to tribal identity. For instance, in Siberia and the Russian Far East, the Itelmen ethnic group on the Kamchatka Peninsula petitioned the Governor of Kamchatka and the federal fishing agency to protect indigenous fishing rights.1 As another example, in British Columbia in Canada, First Nations on the west coast of Vancouver Island have banded together to form the Nuuchahnulth Salmon Alliance to press the provincial and federal Canadian governments to strengthen protection of salmon stocks from logging operations that degrade spawning waters.2
Globally, over the past century there has been an increasing trend to seek to reverse declines in wild fish stocks through the artificial rearing of fish in hatcheries, which are then released into the wild. As the use of fish hatcheries worldwide has increased, however, scientists have noted a troubling trend: increased reliance on hatcheries has often tended to result in further declines in wild fish stocks rather than the replenishment of such wild stocks. As was reported in a 2002 article titled The Future of Stock Enhancement: Lessons for Hatchery Practice from Conservation Biology.
The basic environmental impact assessment paradigm, under the federal National Environmental Policy Act (NEPA) and state laws such as the California Environmental Quality Act (CEQA), is as follows: set forth an accurate project description, describe baseline environmental conditions at the time the project is being considered for approval, assess the impacts of the proposed project on baseline environmental conditions, and then present a reasonable range of alternatives and feasible mitigation to reduce the significant adverse impacts of the project on baseline environmental conditions. The critical temporal assumption to this basic environmental impact assessment paradigm is that appropriate alternatives and mitigation will be determined in reference to a set of baseline environmental conditions at a fixed point in time when the environmental impact assessment is being prepared.
This critical temporal assumption is found not only in environmental impact assessment laws in California and the United States but also in environmental impact assessment regimes around the world. In general, the impacts of a proposed project or policy are evaluated against the baseline conditions that exist at the time the environmental impact assessment is undertaken.
There is a tendency to think of the impacts of hydropower facilities on salmon stocks as a more recent phenomenon, as an issue that emerged in the mid-twentieth century in the period when most of the large-scale onstream dams were constructed in the United States and elsewhere. As evidenced by the quote here relating to the passage of the 1807 River Tweed Act by the British Parliament, however, the law has struggled to reconcile the interests of salmon and hydropower for more than two centuries.2
The River Tweed forms the eastern border between England and Scotland and is one of the most productive salmon and sea trout fisheries in the United Kingdom. As its name suggests, it is associated with the woolen textile mills that began to operate along the waterway in the late 1700s and the early 1800s, mills that were powered by waterwheels. The textile mills along the River Tweed were often built upland away from the river’s edge, and water was diverted to the off-stream waterwheels adjacent to the mills through instream construction of impoundments called “caulds” to collect water, which was then diverted through channels to the waterwheels and then returned downstream back to the river.
There can be various reasons why onstream dams are constructed and operated on rivers. Some dams are built to create new water supplies for irrigation or domestic use that can be stored in the reservoirs behind the impoundments. Other dams are built to generate hydro-electric energy that can be produced by running the water stored in reservoirs through turbines. There are also dams built to regulate flows to avoid downstream flooding during storms. More often than not, there are “multipurpose” onstream dams that are designed to serve a mix of water supply, energy, and flood control purposes.
Globally, the presence of onstream dams is pervasive and extensive. A report by the World Commission on Dams in 2000 found that there were more than 45,000 dams in more than 150 countries.1
Some dams are geographically located in watersheds within a single nation, while other dams are located in watersheds that span multiple nations. For example, in North America, the Columbia River/Snake River watershed spans Canada and the United States, and the Colorado River watershed spans Mexico and the United States.
In California and many other countries and jurisdictions, surface waters have historically been regulated as if they were unconnected to groundwater. Yet in reality, surface waters and groundwater are often hydrologically connected. Many of the rivers that support fisheries are hydrologically dependent on tributary groundwater to maintain instream flow. This means that when there is an intensive pumping of tributary groundwater, the result can be reductions in instream flow and damage to fisheries.
Consider the Scott River in Northern California, part of the larger Klamath River basin, where nearby groundwater contributes to the Scott River. When high volumes of groundwater are extracted from nearby wells, it depletes the Scott River’s instream flow with adverse impacts on salmon and steelhead trout.1 This has led to litigation over the application of California public trust law to groundwater extraction affecting Scott River instream flows, and efforts to use California’s Sustainable Groundwater Management Act (SGMA) to ensure that groundwater pumping near the Scott River is compatible with the instream flow needs of fisheries. Situations similar to the Scott River surface and groundwater basin are unfolding throughout California.
Paul Stanton Kibel is Professor at Golden Gate University (GGU), School of Law in San Francisco, California, where he teaches Water Law, directs the GGU Center on Urban Environmental Law (CUEL) and serves as Faculty Editor for the GGU Environmental Law Journal. He has also taught Water Law at the University of California–Berkeley Boalt Hall School of Law and Water Policy in the West at the Goldman School of Public Policy at the University of California–Berkeley. Kibel holds an LLM from the University of California–Berkeley Boalt Hall School of Law and a BA from Colgate University in New York. He is also natural resource counsel to the Water and Power Law Group. Kibel previously published two books, The Earth on Trial: Environmental Law on the International Stage (Routledge) and Rivertown: Rethinking Urban Rivers (MIT Press), and his articles have appeared in such journals as the Stanford Environmental Law Journal, Georgetown International Environmental Law Review, Columbia Journal of Transnational Law, Berkeley Journal of International Law, Ecology Law Quarterly, NYU Environmental Law Journal, Virginia Environmental Law Journal, UCLA Journal of International Law & Foreign Affairs, and the William and Mary Environmental Law & Policy Review.
As legal creatures go, the public trust is an odd duck. Public trust principles are often echoed in constitutional provisions, but constitutions are often not the source of the public trust. Statutory provisions often reference the public trust, but its legal foundation is not found in such statutes. The public trust has been characterized as a property interest, but one that is not held by any particular entity.
The public trust is also now a legal concept that continues to gain broader acceptance internationally. As noted in the Introduction to this book, variations of the public trust have now been recognized in such countries as India, Kenya, and South Africa.1 Given that the origins of the public trust can be traced back to the English common law, it is perhaps not surprising that it has often been given a positive reception in many of England’s former colonies (such as India, Kenya, South Africa, and the United States), which are the inheritors of this tradition.
When Canada and the United States entered into the Pacific Salmon Treaty in 1985, a primary mutual concern was to curtail overfishing at sea to avoid depletion of salmon stocks originating in Canadian and US freshwater streams. To further the conservation of such salmon stocks, the Pacific Salmon Treaty contains provisions to encourage and reward Canada and the United States for increasing the “production” of salmon originating in their respective streams.
To increase the production of salmon, Canada and the United States often focused on artificial propagation in hatcheries rather than preserving spawning grounds and natural habitat for wild salmon. This focus on hatcheries to produce salmon coincided with a period of more intensive onstream dam building, more intensive logging of slopes adjacent to and upland of salmon spawning grounds, and more intensive diversion of water out-of-stream for farms and cities that reduced instream flow. The artificially propagated salmon from hatcheries were intended to replace the wild salmon runs displaced because of habitat loss due to dams, logging, and diversions.
There are competing demands for fresh water. Farms look to it as an irrigation source, cities rely on it for drinking water, and fisheries and fishermen depend on it for instream flow. When governments subsidize the costs of providing fresh water for irrigation in agricultural production, such subsidization can result in tiered water pricing. With tiered pricing, agricultural producers pay the government less than other water users. This tiered pricing can distort the water marketplace in a manner that can encourage wasteful irrigation practices and that can leave insufficient water instream for fisheries.
As the authors of the book Legal Control of Water Resources explained, in reference to irrigation subsidies in the United States, “[S]ubsidies have lessened water users’ fiscal incentive to conserve. There is far less reason to invest in expensive irrigation control or to line canals when you are receiving water for only a fraction of the costs.”1 This same dynamic is true outside of the United States, such as subsidized irrigation for rice-growing in India and Japan and subsidized irrigation for cotton-growing in Brazil.
In terms of climate change law and policy, at present there are efforts underway at the state, federal, and international levels to curb greenhouse gas (GHG) emissions. These efforts to reduce GHG emissions (and thereby mitigate global warming and other climate changes resulting from such GHG emissions) are generally referred to as “climate mitigation” laws and policies.
In addition to climate mitigation, however, there is increasing recognition that the global warming and climate changes resulting from past and present GHG emissions are happening now and will continue to happen for many decades to come, regardless of whether we are successful in curbing GHG emissions going forward. This recognition has led to the development of legal and policy responses to anticipate and plan for the global warming and climate changes that are taking place. Efforts to anticipate and plan for the effects of past and present GHG emissions are generally referred to as “climate adaptation” laws and policies.