Water Rights for Rivers

Session Date & Time: 
May 6, 2012 - 8:30am
Session Length: 
90 minutes

Linda Sheehan, Earth Law Center

Mark Twain's adage that "whisky is for drinking; water is for fighting over" has never been more true than today, when over-diversion and continued pollution threaten waterways already imperiled by the relentlessly escalating impacts of climate change. In addition to ecological integrity, these threats also impact the waterways' spiritual and cultural values, as recognized by indigenous peoples who have made the waterways home for tens of thousands of years. The proposed panel would present the reasons that the Clean Water Act and other, existing water protection laws allow ongoing environmental and spiritual/cultural harm, and it would offer specific, Earth-based governance alternatives. Discussion of such issues is particularly timely given the 40th anniversary of the Clean Water Act, which prompts deep reflection on our next steps as waterway advocates.

The panel would first provide an overview of existing federal and state waterway protection laws and describe how such laws are failing, or will fail, to prevent significant damage. It would then discuss the inherent flaws underlying these laws, which erroneously separate people from nature in an effort to "manage" ecosystems to advance human desires. The paper would then focus on particular case studies to demonstrate how these inherent flaws will inevitably fail to advance ecosystem health, where "ecosystem" is defined to include the spiritual and cultural values immanent to a place.

This foundational information would then lead to presentation of alternative governance strategies that fully recognize the rights of waterways to ecological, spiritual and cultural health, consistent with an "Earth-based" legal system. Such strategies include: the development of legal rights for waterways based on science and informed by indigenous knowledge, enforcement of such rights by independent appointed guardians, real-time and transparent monitoring, and program funding from fees on existing water diversions. The panel would conclude by demonstrating how adoption of such waterway rights would prompt advancement of localized water and energy solutions that will best server waterways and their integrated human communities through the coming decades, particularly in the face of climate change.

In summary, the concept of legal rights for the environment has been relatively well-explored in theory, and several governing bodies already have incorporated it into constitutional and local law. Moreover, there has already been one successful case applying rights for nature to an impaired river (Ecuador, March 2011). However, other than this single example, there has been no actual implementation of Earth-based law in practice on the ground. The proposed panel would discuss how to change this dynamic and advance a rights-based movement on behalf of waterways, one that is specifically informed by Native American representatives, whose wisdom from many thousands of years of living in respectful harmony with waterways is invaluable.