Five Questions for Gabriel Eckstein

The water law expert explains it all.

Gabriel Eckstein

This is Part Six in an occasional series of Q&As with Texans involved in issues of the environment and energy. (Read Part One with Bee Moorhead here, Part Two with Andy Sansom here, Part Three with Katherine Hayhoe here, Part Four with Patrick Kennedy here, and Part Five with Michael Banks here.)

Below I put five questions to Gabriel Eckstein, a professor of law at Texas Wesleyan University in Fort Worth, where he specializes in water and environmental law. An expert on a wide range of water issues, Eckstein directs the International Water Law Project and is Senior Fellow for the Texas Tech University Center for Water Law & Policy.

In this Q&A, Eckstein explains why water isn’t considered a human right, discusses the “gloomy” future of the Rio Grande, and muses on how Texas can avoid a water crisis.

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1) What’s the most important thing a Texan needs to know about water and the law in this state? Are there any aspects of Texas water law that stand out to you as unique?

Water rights in Texas (as in most states) depend on whether the water is ground water or surface water. While ground water generally belongs to the landowner, surface water belongs to the state of Texas and the right to its use is allocated in accordance with a permit system. The result of this legal scheme is two completely different sets of rules for the allocation, conservation, and management of these water resources that ignores the hydrologic reality that so many of these resources are interrelated. For example, a water well drawing water from an aquifer hydraulically linked to a nearby river can deplete the river with impunity. Similarly, rivers that historically feed underlying aquifers can be fully allocated without regard to the impact such action could have on the aquifer and those who rely on it.

As a result of this bifurcated legal system, numerous challenges relating to the management of Texas fresh water resources have arisen, including concerns for the long-term availability of fresh water for growing communities and economic development, and the sustainability of aquatic environments and the economic and other benefits that they provide. While an overhaul of the state’s water laws is unlikely, more affirmative and thoughtful effort needs to be made to harmonize the two legal regimes in ways that minimize negative consequences to existing water rights holders and that continue to meet the state’s growing water needs into the future.

2) Texas, of course, shares an international boundary with Mexico, a border that happens to also be a river. The borderlands are booming in population with no end in sight and shared water resources seem to be under increasing strain. What do you think the future holds for the Rio Grande and the people who depend on it?

Unfortunately, the water future of the border region is rather gloomy. Although the region’s population is expected to double in the next 10-15 years, water supplies are expected to decline. Water in the Rio Grande is already over-allocated and predictions of extended droughts and other climatic changes are likely to exacerbate the existing water-scarcity.

Moreover, the lack of an agreement with Mexico over the region’s transboundary aquifers leaves their exploitation to the whims of local landowners and governments. This ground water situation is especially troubling. With the exception of the aquifers in the El Paso/Ciudad Juarez region, we know relatively little about the rates of exploitation or natural recharge of these shared water resources. Anecdotal and other preliminary evidence, though, suggests that they are being pumped at unsustainable rates.

While the International Boundary and Water Commission – the bi-national entity tasked with promoting cooperation over shared water resources along the common border – has undertaken a number of projects to enhance the management of transboundary waters along the border, the lack of a coordinated water policy between the two nations, especially with respect to ground water resources, does not bode well for the region’s future.

3) And as a follow-up to the last question… Are our politics and legal system adequately equipped to deal with the possibility of future droughts, increased scarcity, climate change, etc?

One of the chief challenges facing Texas is the politics surrounding climate change. The debate over whom or what is to blame has been especially stifling and has greatly prevented the state legislature and local governments from taking steps to respond to the growing threats of climate variability and change. The fact remains that regardless of whether it is the result of human activity or natural cyclical phenomenon, our climate is changing and we desperately need to begin adapting to that reality.

Unless we want to see hundreds of towns and farms die out because of a lack of water (see the projects of the Texas Water Development Board), we need to develop more concerted adaptive strategies that incorporate long-term water management, storage, and delivery mechanisms (e.g., aquifer storage, lined canals, etc.), production of new water resources (e.g., recycling, desalination, etc.), more thoughtful economic development and growth strategies, and enhanced climate change projections (e.g., fluctuations in precipitation rates, temperature, and other weather patterns). Unfortunately, while we quibble over blame, it’s getting hotter and drier outside.

 

4) Does the international community in any legally-binding sense regard water as a human right? If there is opposition, where is it coming from?

That water is absolutely essential to life – all life – is undeniable. It is championed by countless non-governmental organizations, most indigenous communities, and even some nations – at least nine countries and two US states (Massachusetts and Pennsylvania) recognize water as a human right in their respective constitutions. Moreover, many of the world’s religions regard water as a gift from God that cannot be bought or sold lest the gift be dishonored.

Surprisingly, though, water as a human right does not appear in any of the chief international instruments articulating universal human rights (e.g., Universal Declaration of Human Rights [http://www.un.org/en/documents/udhr/index.shtml], Covenant on Civil and Political Rights [http://www.hrweb.org/legal/cpr.html], and Covenant on Social, Economic, and Cultural, Rights [http://www2.ohchr.org/english/law/cescr.htm]). In fact, the word “water” doesn’t appear even once. While this absence has been described by some as an oversight, it does not negate the possibility that it was intentional. This, however, raises the question: why would anyone object to such a right, whether at the time these instruments were formulated, or now?

Trepidation over a human right to water is likely tied to the responsibility and liability that would be associated with such a right. A “right” is an entitlement that is held against one’s government (not against a fellow citizen or companies). Accordingly, governments would be the ones with the responsibility of ensuring a human right to water. However, according the World Health Organization (WHO) and UNICEF (see http://www.who.int/water_sanitation_health/monitoring/jmp2008/en/index.html), some 884 million people globally live without access to clean drinking water and more than 2.5 billion lack access to minimal sanitation services, all of which results in millions of deaths every year directly attributable to these deficiencies. These are staggering numbers, numbers that many governments might want to avoid. And the US is no exception – According to the 2000 U.S. census, more than 1.7 million people in 671,000 American households lacked the basic plumbing facilities that most of us take for granted (see report at http://www.rcap.org/stilllivingwithoutbasics).

The concern, however, is also propelled by the projected costs associated with ensuring clean and safe water for everyone globally. According to a WHO study, the cost of attaining the Millennium Development Goals (adopted in 2000) for water and sanitation (to “halve by 2015 the proportion of people without sustainable access to safe drinking water and basic sanitation”) would require the world community to invest some US$70 billion annually between 2005 and 2014. Considering diminishing marginal returns, the cost of guaranteeing clean and safe water for everyone on the planet would likely be far more than double that figure.

Finally, there are those that contend that fresh water resources would be squandered under governmental control and that the private sector could provide water to the masses more effectively than any governmental scheme. Given the income levels and extent of poverty that the “have nots” in so many countries live in (in the US as well as elsewhere), its questionable whether a truly unfettered market system would respond to all human water needs (but see below my comments on using market forces to provide water).

The question of a human right to water is far from an easy topic, and certainly not something that can be addressed in a short Q&A. I have written more about it at http://www.internationalwaterlaw.org/blog/?cat=8, and will be speaking on the topic at the forthcoming conference Implementation of the Human Right to Water in the West, which will be held February 3-5, 2011, at Willamette university in Salem, OR (see http://www.willamette.edu/wucl/news/2010/spring/water_conf_papers.php).

 

4) Historically, the impetus in Texas has been to respond to problems of water scarcity by building more infrastructure – dams, pipelines, aqueducts, well-fields, etc. At the same time, cities like San Antonio and El Paso have done a remarkable job dramatically reducing per-capita consumption of water through conservation, efficiency, and management programs. Can we engineer our way out of a water scarcity crisis? And on the flip side of that question, are efficiency and conservation enough to meet the state’s growing water demands, or do we in fact need new reservoirs, pipelines, and the like?

According to the TWDB in its 2007 State Water Plan (see http://www.twdb.state.tx.us/wrpi/swp/swp.asp), between 2000 and 2060, water demand is projected to increase by 27% (from around 17 million acre-feet [MAF] to 21.6 MAF), while existing water supplies are expected to decline by 18% (from 17.9 MAF in 2010 to 14.6 MAF in 2060).

While such studies suggest that there could come a time at which demand for fresh water will exceed supply, we’re not there yet. There is enough water to meet all our needs, but only if we manage it carefully. By employing conservation and efficiency-enhancing measures, as well as expanding water storage potential and distribution capacities, Texas could quench its growing thirst. Demand-focused (e.g., conservation, management, etc.) and supply-focused (e.g., new reservoirs, desalination, etc.), however, are not mutually exclusive. In fact, neither one can succeed on its own. While there are financial and technical limitations on the extent to which we can reduce water use, there are similar limitations on how much water we can dam or create.

The key to Texas’ water future will be in its ability to adapt to the new hydro reality of declining per-capita supplies and worsening climatic conditions, as well as change the accepted paradigms of water use and supply. Do we really need to use potable water to flush toilets, water lawns, and operate our businesses? Should the “yuck” factor of sewage and waste water prevent the use of recycled water? Could we consider aquifer storage and other creative options for expanding our long-term supplies as alternatives to dams and reservoirs? These few issues, though, are not the only concerns that should be considered in formulating a comprehensive and flexible state-wide water policy. There are numerous other water-related societal issues that should be addressed at both the local and state levels, including the use of water from non-recharging aquifers for water-thirsty crops, and the facilitation of population and economic growth in water-scarce corners of the state.

According to the TWDB’s 2002 State Water Plan (see http://www.twdb.state.tx.us/publications/reports/State_Water_Plan/2002/FinalWaterPlan2002.asp), within the next fifty years some 900 cities and water user groups in Texas, representing nearly 38 percent of the State’s population, could face water shortages during droughts. This reality, however, is not inevitable. We still have time to improve our water usage and conservation schemes and ensure secure and sustainable water resources into the future.

5) How large of a role should private sector interests play in providing water to the public? In Texas, we’re seeing the emergence of more and more water marketers. For example, Boone Pickens has plans to pipe Ogallala Aquifer water from the Panhandle to the Metroplex; three or four private companies east of Austin are trying to broker deals to sell groundwater to booming Central Texas communities; and Clayton Williams appears to be working on a plan to transfer groundwater from the Ft. Stockton area to Midland. What of the argument that for-profit interests pose a threat to the fair, equitable, and affordable distribution of water?

 The idea of allowing for-profit interests to play a role in the provision of water to the public threatens a fundamental human notion that water is so elemental to life that it deserves a unique status in our societal system. The chief concern is that in taking a purely economic approach to a component of life, life itself is relegated to the market.

Yet, the private sector has a history of efficiency that often outpaces governmental approaches to production and the management of services. Problems related to 15-40% loss rates and patchworks of dangerously outdated supply systems, which are typical of many municipality-controlled water utilities, are areas in which the private sector conceivably could excel.

There may be, however, a viable compromise, one in which the value of water for life as well as the efficiency of the market could be intertwined. According to the Texas Water Development Board, water in Texas is used 60% by agriculture, 25% by indus
ry, and 15% by municipalities (see http://www.twdb.state.tx.us/kids/modules/texaswater.asp). Municipal use, however, includes water use by businesses as well as water applied to lawns and gardens. The amount of water that is actually used for domestic purposes and sanitation is likely considerably less than 10%.

What would happen if we guaranteed a minimum quantity of water at an affordable rate to all Texas residents and then subject quantifies in excess of that minimum amount, as well as water used for commercial enterprise, to pricing mechanisms and regulated market forces? We could institute tiered system that allow for personal use beyond a minimum lifestyle (e.g., swimming pools) to those who can afford it while maintaining a minimum standard for all people. And for commercial enterprises, including agriculture, we could manage water using similar market mechanisms that allow water to be traded as either a commodity or in the context of tradable usage rights. The result would be water use and pricing that actually reflects the reality of supply and demand. Moreover, it would allow for subsidizing water for all residents in accordance with the guarantee or, at least, for those who truly cannot afford even the basic costs.

The provision of water in such as system could be instituted through existing public utilities or public-private partnerships, or could even be opened up to the private sector through a bidding process. In any of these scenarios, where an entity is awarded the responsibility of provide water services, it could be bound by regulations to ensure the guarantee to Texas residents. It would then also be allowed to impose market-driven prices for all other water uses. The result is that both objectives – of protecting affordable water for Texans and enhancing water use efficiency through market mechanisms – are integrated into a workable and sustainable water management system.

Forrest Wilder, a native of Wimberley, Texas, is the editor of the Observer.

Published at 2:36 am CST
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