Monday, October 01, 2012

California Now Has Water as a Human Right. Oh, Really?

The headlines read: law passed in California to make water a human right.  AB685 does indeed have that language but California is far from that as a reality. The question really is whether this is a real breakthrough or whether it presents the potential of a creating a new maze of litigation in the future. From looking at the language of the bill, it would be a profound mistake to consider this a victory for poor people or an acknowledgement of their basic survival needs. It needs to be said that there are so many questions raised by such a law that are not addressed in the law that it will assuredly result in profound impacts on farmers and farm workers throughout the state of California.

Water as a Human Right has to be defined in the context of both drinking water and food production.

This bill needs to be repealed and the sooner the better. As someone who has written on water as a Human Right  and on its relationship to regional water planning, I have continued to advocate for political and structural reform that democratizes water resource management.   AB685 is bad law and bad law opens the door to litigation, protest, corrupt administration and usurpation of authority. Messing around with water supplies is a dangerous precedent that Sacramento has gotten in the habit of doing on a regular basis.

There is a profound mischaracterization of water use among urban users, academics and many Greens that singles out “agribusinesses” as the focal point of structural reform. This addresses corporate law, not water allocations. If we are to address the users of the resource even-handedly, we need to acknowledge that agriculture will always be the primary user of water. From there, we need to acknowledge not only the economic benefit of agriculture but also its social good in providing the food that supply both our urban and rural populations. Increasing dependence on food importations is not a sustainable alternative that develops and improves the quantity, quality and distribution of food to our growing population.

Water governance in the age ahead needs to be structured for open input and transparency. Adaptive governance needs to provide flexibility and input in water management in an effective manner. Administrative state agencies are not representative of users. Neither are they elected because of their distinct interests and concerns as stakeholders. No where does the bill provide for long-term regional planning or adaptive governance in this matter. Unintended consequences of this bill as written are so obvious it was opposed by water agencies in the state of California. This is not some classroom assignment or a slogan for some demonstration.

It is long past due for those who want to guarantee safe drinking water and sanitation for people to start looking at the consequences of their proposals when enacted into law. It is time for NGO’s to stop using environmentalism and social justice as rationalizations for promoting Democrats and recognize the distinct needs and concerns of diverse users. Water as a Human Right requires both the political and administrative entities that address water. As it stands, water is a function of partisan divides and not collaborative decision-making by users, the science and the environment. As it stands, the case made for Water and Sanitation as a Human Right holds its advocates with no responsibility towards allocations that are fair and equitable to all users.

Opponents of AB685 have raised the issue of the impact on pricing of the law. Given California’s financial status, it is reasonable to raise the issue of how future research and development for new sources, re-uses, desal, improved purification, sanitation and conservation are critical in addressing increasing demands for the resource. The presumption that AB685 will address this by supporters is myopic and fundamentally disregards the particular characteristics of regional supplies. There are positive local models as demonstrated by the Stanford groundwater study.   These initiatives will increase out of necessity. But, what AB685 does not do is establish a structural foundation for decision-making that addresses long-term planning and distinct concerns of regional users and stakeholders.

Do we injure the fundamental goal of developing Water and Sanitation as a basic Human Right by opposing AB685? Only if our putting the language into law is more important than addressing the underlying issues that obstruct the real implementation of that goal. If the object is to take water from agriculture to give to growing cities, then AB685 will be a tool with fundamentally conflicting consequences. The process of really making water a human right will require the restructuring of existing water law in California where rural users are under-represented in the debate. The presumption that drinking water will be a priority exists today. The failure in implementing this does not lie in the absence of AB685 in the vast array of water-related laws and regulations. Rather, it lies in the hands of the State Legislature’s proclivity towards diversions and politically based funding of existing infrastructures such as the upgrading of the Hetch-Hetchy aqueduct.

Will regional planning develop and improve the quality of decisions in regards to decisions made regarding use and allocations of our fresh and salt water supplies? We do have a learning curve here in the record of depletions and subsidence in the San Joaquin Valley and elsewhere, that suggests bad decisions and overuse manifest in agricultural uses as well as in urban uses.   Water planning is not simply an administrative matter where constituencies are not integrated into the decision-making process. The economic and social consequences of water allocations have distinct impacts that need to be recognized in the future through the development of regional governmental water entities. Water politics and governance are polarized as things stand today and benefit the two party constituencies only to the extent that they influence the State Legislatures.

Water as a Human Right has been qualified by the United Nations in regards to the characteristics needed to make it meaningful and implemented in a fair manner. “Human rights can be a powerful vehicle for change. However, they have to be enshrined not just in normative statements, but in legislation, regulatory systems and governance systems that make governments and water providers accountable to all citizens, including the poor. Too often, the language of human rights serves as a smokescreen behind which the rights of poor people are violated by institutions that have little or no accountability.”    In point of fact, the rural poor stand to gain more from a process that includes them as stakeholders in the decisions being made than does legislation that lack the means for input and implementation. The risk of AB685 is raised in the UNDP report as follows: “Water may be a human right, but someone has to pay the capital investments and cover the operating costs— either users or taxpayers and government.”  “Water is a human right. But human rights count for little if they are divorced from practical policies to protect and extend them—or from mechanisms for accountability that empower the poor to demand their rights.”

Furthermore, the UNHDP Report specifically cites issues in regards to agricultural users and even uses a California example of the impact on family farms by urban users. "The danger is fast growing cities and industries seeking more water will extend their hydrological reach into rural areas, reducing the access  of poor households to a crucial livelihood resource." Page 173, Chapter 5, "Water Competition in Agriculture, UNHDP Report. elsewhere in the report a California study is cited regarding the impact of urbanization on rural and agricultural poor and family farmers. "One study of the distribution of gains and losses from water transfers in Mendota, California, found that the  number of farms in water-exporting regions fell by 26%  between 1987 and 1992. But the number of small farms fell by 70% and labour demand fell even more as wholesale produce firms went out of business. While aggregate welfare increased, the losers included a large group of poorer producers."  Page 180, Chapter 5, "Water and Competition in Agriculture", UNHDP Report.

Lest anyone think we are omitting poor and working people, it is important to take notice of the population growth in the Central Valley and the growing political engagement around the water issue. Both the peripheral canal and the proposed sale of water by Modesto to San Francisco engaged local users and residents in the Central Valley. It is possible only in a political context to really unify urban and rural constituencies around the issue of diversions and Water as a Human Right. From the start, Water as a Human Right has to be defined in the context of both drinking water and food production.


Martin Zehr said...

from a NM elist comes this response. Thank you Michael for authorizing its posting in the Comments here. This response expresses solely the views of Michael Jensen and not those of any organization to which he may be affiliated.

California has had policy on the books since the early 20th century
stating that domestic use is higher than any other use. AB (Assembly Bill)685 narrows the policy mandate to saying that every human (specifically excluding those virtual humans known as corporations - for example, new development projects) has a right to a safe water supply (for drinking, cooking, and washing). It asks state agencies that deal with water to consider this policy when carrying out their duties. That's it

There were other pieces of legislation that were linked to AB685, in essence creating a package of legislation establishing the overall "vision" (AB685) and linked policies that would help to make that a reality:

* AB938 ("chaptered" that is, put into law, 10/7/11) - Notification of water-related health risks should be published in English, Spanish, or other languages used by the affected community(ies) [an extension of similar requirements for other public processes]

* AB983 (chaptered 10/7/11) - Better access to a state fund for cleaning contaminated water for disadvantaged communities; also allows smaller communities to consolidate their supply system with a larger system as a way to get clean water

* AB244 (chaptered 10/7/11) - Requests county and municipal governments to draft a plan for providing water to unincorporated or fringe communities [an extension of current law requiring these political entities to
consider their "sphere of impact" when doing planning]

* AB1221 (chaptered 10/7/11) - nonprofit organizations representing tribal or disadvantaged communities would be eligible to access the state water
fund to clean up contaminated water

* AB1187 (unanimous "Do Pass" in environment and toxics committee but died in Appropriations 2/1/12) - Create a regional approach to safe drinking
water for all communities by requiring the Department of Water Resources to include a safe drinking water plan in the next update of the State
Water Plan

Analysis I read indicates that there is almost zero basis for any
litigation out of the policy statement in AB685 ... but given the current political climate, I'm sure opponents of the law will not miss the opportunity to try.

Since the law relates primarily to water quality, there is no direct
connection to agriculture (such as "taking" more ag water) and no inherent demonization of agribusiness - except to the extent that agriculture has
contaminated drinking water sources (which is indisputable). Proponents stated that it would actually improve existing state policy by narrowing the "domestic preference" over agricultural uses to safe water for humans and not the sweeping preference that previously existed as policy.

The package of bills specifically incorporates planning at the municipal and county level and tried to get state water plan attention. I'm sure that part of the package will come up in the legislature again.

I could go on, but I have other things to do than correct rampant
misconceptions and mischaracterizations of the bill and its larger potential impact.

Onward and upward.

Michael Jensen

Martin Zehr said...

In response to Michael (see below) I would say: All the bills presented in the bills cited do nothing to reform the decision-making processes be become more inclusive of users. the issues raised in Michael's post all deal with the issue of colonias, unincorporated residential regions without existing municipal governments. Corporations are water users, agricultural, industrial and commercial users. To absent them from the representation of water users, science and the environment would not present a democratic scenario for water governance. In this connection it should be said how the commercial interests on UUEDA in MRGWA attempted to repeatedly deny representation on UUEDA for urban residential users. Most political corporations, known as advocacy groups, use no water as corporations, but are a collection of residential users but they are represented by those stakeholders who provide input on urban use, science and the environment. The point of reform is to make the process MORE DEMOCRATIC, not to lock it in to foregone conclusions. Advocacy groups need to demonstrate their relevance to the people in water governance. Their role as funders for Democrats to restrict representative democracy needs to be called what it is. Their role in the elections runs parallel to that of corporations. But, as users, they are more virtual than corporations. It's a phoney debate that only takes you back to the two party system instead of representing users and stakeholders.