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Water Privatization Trends in the United States: Human Rights, National Security, and Public Stewardship

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Current debates in U.S. law and politics seem to be questioning whether national security and human rights are in fundamental tension with each other, as our legal and political systems struggle with the scope of government powers to fight terrorism and the legal limits on the detention, interrogation, and punishment of suspected terrorists, such as those held at Guantanamo Bay, among other issues. This Article will address an area of law and public policy in which the shared (or common) interests of both national security and human rights receive too little attention. It is the area of privatization of water and public water services and infrastructure.

The Article will focus on water privatization trends in the United States. In particular, it will discuss three aspects of water privatization in the U.S.: 1) the privatization of public water services, 2) private property rights in water, and 3) water as a consumer commodity. These trends arise in the context of global water privatization trends and the opposition of human rights advocates and environmentalists to private corporate exploitation of water for profit. They arise in the context of the legal and socio-cultural history of private property rights in the United States. They arise in the context of tensions between the private and public nature of water; economic efficiency and social equity; globalization and local control; resource development and resource conservation; and the meaning of water as an economic good and as the ecological, ethical, religious, and social meanings of water.

For example, the water woes of the state of Georgia illustrate the power of water privatization and commodification forces in U.S. society and their deleterious effects. In recent years, Georgia has had at least eleven public water systems operated by private water companies. Most famously, Atlanta granted a twenty year contract to United Water in 1998 to operate its municipal water system, which Atlanta terminated just four years later for quality-of-service and mismanagement problems. Water often had to be boiled due to insufficient water pressure, ran a rusty brown color, and did not even reach many customers for lengthy periods due to backlogged work orders.

The water problems of Atlanta and Georgia have extended far beyond poorly-run municipal systems to problems of water scarcity and conflict. Once considered to be water abundant, the U.S. Southeast now struggles with drought, relentless and growing demand for water, depleting water sources, and persistent conflicts among major water users. Georgia has found itself in water crisis due to legal and political institutions’ accommodation of consumer demand for both water and energy produced by water: a growing population particularly in the sprawling Atlanta metropolitan area, recreational users of water, agricultural irrigators, power generators, and industries like pulp and paper mills, textiles, chemical manufacturing facilities, and the mining industry. For example, Georgia’s population grew by over 140% between 1950 and 2000, and its agricultural withdrawals from the Apalachicola-Chattahoochee-Flint (“ACF”) River System increased by 1320% just between 1970 and 1990.

However, the state and local governments have done little to constrain sprawl, mandate water-conservation techniques in design and development, or manage growth based on sustainable and secure water supplies. In addition, Georgia’s statutes regulating riparian rights to water through permits for water allocation have largely exempted agricultural water users, the largest category of water use in the state. Instead, Georgia has attempted to satisfy its diverse and powerful interest groups’ water demands by increasing withdrawals from the ACF systemprimarily though increased withdrawals from Lake Lanier, to the detriment of its neighbors, Alabama and Florida- and the ecology of the system. Georgia also is seeking to redraw its boundary with Tennessee so that it can obtain rights to water in the Tennessee River, which currently does not cross into Georgia.

The Georgia state government finally adopted the state’s first statewide comprehensive water management plan in February 2008–only after experiencing sustained drought and losing to Alabama and Florida in an action enjoining Georgia’s additional withdrawals from Lake Lanier. The Georgia Department of Natural Resources issued a draft of a water conservation plan in December 2008. The Georgia Chamber of Commerce, however, has insisted that any comprehensive water planning for Georgia recognize that water rights in Georgia are private property with which the legislature cannot interfere and should be freely transferable by the owner. In fact, the new state water plan allows for inter-basin transfers while relying on soft study and planning techniques, instead of hard allocations. Atlanta’s recent metropolitan plans for water conservation are modest at best. Georgia’s persistent treatment of water as a private consumer good, instead of a necessary public resource, is especially remarkable considering that Governor Sonny Perdue declared a state of emergency in northern Georgia in October 2007 when dangerously low levels of water in Lake Lanier put area residents arguably within 90 days of running out of water.

This Article argues that privatization of water and public water systems pose underappreciated risks to both public rights and national security in the United States. All life depends on water. Therefore, all communities, social and political systems, and economies depend on this finite resource for survival and vitality. However, both human rights and national security protections are inadequate to guarantee that all people will receive sufficient quantities of good quality water to meet basic human needs. These inadequacies result from the deeply entrenched conceptualization of rights in the United States, the fact that human rights and national security policies are not self-implementing, and the particular characteristics of water. Individual rights to water or protections against terrorist threats to water supplies do not necessarily achieve water conservation, sustainable management of water and watersheds, or long-term planning and investment.

Instead, the United States needs legislation and legal doctrines that limit private control over water sources and systems and that regulate privatization processes in order to protect the integrity and security of individuals, communities, and the nation. Even more importantly, the United States needs comprehensive principles of public stewardship of water resources to support human life and national security. Public stewardship principles are premised on the concept that the government is a trustee of water resources for the public, a fiduciary obligation not limited to the traditional public trust doctrine, but based in the many public characteristics of water in the United States, as well as the social and human necessities of a complex society. However, each member of the public would not only be a beneficiary but would also owe duties to his, her, or its cobeneficiaries, the other members of the public. Public stewardship principles would require long-range place-based planning with transparency and public participation, public investment, water conservation, watershed protection, water quality controls, full-cost pricing with subsidies to those unable to pay full costs, and heightened security measures.

Part I describes the trend towards water privatization in the United States. First, it explores the privatization of public water services, including: 1) status and trends, 2) causes, and 3) conflicts and failures. Then, Part I examines the legal doctrines, public policies, and cultural norms treating water as an object of private property rights. Lastly, Part I discusses water as a consumer commodity. Part II turns to the human rights aspects of water privatization in the United States, concluding that human rights legal theories lack the capacity to resolve the underlying concerns about meeting the human need for water. Part III examines several aspects of national security that are exacerbated by privatization and commodification of water: 1) conflict and scarcity, 2) foreign control of domestic water supplies, and 3) terrorism. However, national security policy is better equipped to address terrorist threats to water supplies than to address the larger issues of long-term water governance to ensure secure, stable, and sustainable supplies for the public. Finally, Part IV argues that the public needs water laws and policies that protect and facilitate the integrity and sustainability of human and natural water systems. Although human rights theories and national security policies may be insufficient by themselves to achieve this goal, a new concept of public stewardship of water would create new institutional capacity and responsibility to achieve this goal by imposing six fiduciary duties on state governments and the federal government for the benefit of the public: 1) the duty of security; 2) the duty of conservation; 3) the duty of sustainability; 4) the duty of equity; 5) the duty of investment; and 6) the duty of long-range, placebased planning. Members of the public, while being beneficiaries of these duties, would also share responsibility for acting on them