Eminent Domain & Water Rights

CE 397 Transboundary Waters

Heather Davis

Water Availability

“As much as 40% of humanity's total water supply now comes from underground. Major aquifers in some countries will start to run low by 2030 unless immediate steps are taken to better manage the resource.”

-Professor Craig Simmons, Director of Australia's National Centre for Groundwater Research and Training

Water Uses

Manufacturing Energy

Cities/Towns

Water Supply

Agriculture/Farming

Mining

Environmental Flow

What is Eminent Domain?

• Eminent Domain is the legal term describing the government's right to take private property. Expropriation is the act of doing so.

• The 5th Amendment indirectly grants this right in the United States, stating that "private property [shall not] be taken for public use, without just compensation."

Property Rights = Water Rights

Individual

Family

City

County

Basin

State

Region

Country

Continent

Globe

The Role of Private Property in Civilization:

“First, because every man is more careful to procure what is for himself alone than that which is common to many or all . . . . Secondly, because human affairs are conducted in more orderly fashion if each man is charged with taking care of some particular thing himself . . . . Thirdly, because a more peaceful state is ensured to man if each is contented with his own.”

(Aquinas, 1969, p. 77.)

Individual v. Society

“The interests of society are paramount to individual interests, and the two must be brought into just and harmonious relations.”

(Brewer & Libecap, 2009.)

International Agreements

More than 3,600 treaties related to international water resources have been drawn up since 805 AD.

Only 37 acute disputes involving violence have occurred in the last 50 years, compared to 150 treaties that have been signed.

- Food and Agricultural Organization of the UN

The Public Trust Doctrine

The origins of the Public Trust Doctrine (PTD) stem from Roman law philosophy that there are three things common to all mankind: air, running water, and the sea (including the shores of the sea). Titles to these essential resources are held by the State, as sovereign, in trust for the people. The purpose of the trust is to preserve resources in a manner that makes them available to the public for certain public uses.

US Landmark PTD Case

National Audubon Society v. Superior Court 685 P.2d 709:

“The core of the public trust doctrine is the state’s authority as sovereign to exercise a continuous supervision and control over the waters of the state to protect ecological and recreational values.”

Source: Human Development Report 2006. Beyond scarcity: Power, poverty and the global water crisis. Chapter 6. UNDP, 2006

Groundwater in International Law

Article 19 - Shared resources

1. Contracting Parties that share natural resources shall co-operate concerning their conservation and harmonious utilization, taking into account the sovereignty, rights and interests of the Contracting Parties concerned in accordance with generally accepted principles of international law.

-FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS, Rome, 2005

Right to Water

"The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements. "

- UN COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (CESCR)

Case Study: The San Pedro Riparian National

Conservation Area

Case Study: The San Pedro Riparian National

Conservation Area• ~ 57,000 acres of public land in Cochise

County, Arizona, between the US & Mexico

• 40 miles of riparian area along the Upper San Pedro River

• Home to 84 species of mammals, 14 species of fish, 41 species of reptiles and amphibians, and 100 species of birds

• Habitat for 250 species of migrant birds

Case Study: The San Pedro Riparian National

Conservation AreaThe surface water catchment for the San Pedro River

drains an area of 11,620 square kilometers (km2), with about 16 percent, or 1,800 km2, being in Mexico.

The Arizona Department of Water Resources (ADWR) estimates that approximately 4,170.8 acres of non-federal lands existed within SPRNCA at designation. Included were:

• 3,825.5 acres of private property;• 280 acres of state trust land;• 64.9 acres of county land; and• 0.4 acres owned by the City of Tombstone.

Case Study: The San Pedro Riparian National

Conservation Area• Congress reserves a quantity of water sufficient to fulfill

the purposes of the San Pedro Riparian National Conservation Area.

• 1994 - San Pedro Riparian Technical Review committee formed – examine and attempt to resolve scientific disagreements about

groundwater issues.– recommended active management area in 1995, but this was

met with local opposition, some being Native American.

• 1981 - Gila River Adjudication - several thousand claimants and 12 Indian Reservations could result almost 1,230 thousand cubic meters of water being assigned

The Winters Doctrine

Winters v. United States (1908)

found that an Indian reservation may reserve enough water to irrigate all of the "practicably irrigable acreage" on the reservation with a priority dating from the treaty, act of Congress, or executive order that established the reservation.

Case Study: Nile River Basin

Case Study: Nile River Basin

• The Nile River is 6,700 kilometers • Serves ~ 15 million people • Catchment area covers 10% of Africa• 10 riparian countries: Burundi, Ethiopia, Eritrea, Kenya,

Egypt, Rwanda, Sudan, Tanzania, Democratic Republic of Congo, and Uganda

• 2 bilateral treaties between Egypt & Sudan in 1929 and 1959

• 1920 - Nile Projects Commission formed, with representatives from India, the United Kingdom, & USA

• 1999 – establishment of the Nile Basin Initiative (NBI), a partnership of the riparian states of the basin

Case Study: Nile River BasinWatershed features a

Name Riparian states (With % of national available

water being utilized) b a

Riparian relations (with dates of most recent Agreements)

Average annual flow (km 3/yr.) C

Size (km2)

Climate Special features

Nile Burundi (3.1), Congo, Democratic Rebublic of (Kinshasa), Egypt (111.5), Eritrea (n/a), Ethiopia (7.5), Kenya (8.1), Rwanda (2.6), Sudan (37.3), Tanzania, United Republic of (1.3), Uganda (0.6)

Cold to warm (1959 Nile Water Agreemnt Only includes Egypt and Sudan )

84 3,038 Dry to tropical

Scheduled As complex model/ workshop

Case Study: Nile River BasinThe allocations of the Nile Waters Treaty have been held to until the present.The 1959 Treaty had the following provisions: • The average flow of 84 BCM/yr. 74 BCM/yr to be divided after

evapotranspiration, etc. Allocations total 55.5 BCM/yr for Egypt and 18.5 BCM/yr for Sudan.

• Sudan could not absorb that much water at the time, the treaty also provided for a Sudanese water "loan" to Egypt of up to 1,500 MCM/yr through 1977.

• Funding for any project which increases Nile flow (after the High Dam) would be provided evenly, and the resulting additional water would be split evenly.

• A Permanent Joint Technical Committee to resolve disputes and jointly review claims by any other riparian would be established. The Committee would also determine allocations in the event of exceptional low flows.

• Egypt agreed to pay Sudan £E 15 million in compensation for flooding and relocations.

• Combined needs of other riparians would not exceed 1,000-2,000 MCM/yr., and that any claims would be met with one unified Egyptian-Sudanese position.

Discussion Questions• To what extent should the government intervene with

property rights as they relate to water? Individual scale v. basin? Should Indian water rights have precedence over environmental flow?

• How does the concept of eminent domain reflect in international settings? Should transboundary basins have a “governing” body that transcends the individual nations’ governments, but solely under the proposition to manage water rights and allocations within that basin?

• Inevitably, the demand for water rights within the Nile River Basin will become more of a concern for the eight other nations who share the basin, what steps may be taken to achieve proper allocation for the benefit of all riparian nations? Should the UN, or an established monitoring/allocating entity be involved?