CALIFORNIA WATER RIGHTS THEORY: BOTTLING UP THE PUBLIC TRUST
W. Wesley Riley
B.A., California State University, Sacramento, 1993
THESIS
Submitted in partial satisfaction of
the requirements for the degree of
MASTER OF ARTS
in
GOVERNMENT
at
CALIFORNIA STATE UNIVERSITY, SACRAMENTO
SPRING
2010
CALIFORNIA WATER RIGHTS THEORY: BOTTLING UP THE PUBLIC TRUST
A Thesis
by
W. Wesley Riley
Approved by:
__________________________________, Committee Chair
Professor R. Jeffrey Lustig
__________________________________, Second Reader
Professor Alfred E. Holland, Jr.
____________________________
Date
ii
Student: W. Wesley Riley
I certify that this student has met the requirements for format contained in the University format
manual, and that this thesis is suitable for shelving in the Library and credit is to be awarded for
the thesis.
__________________________, Graduate Coordinator
Professor James Cox
Department of Government
iii
___________________
Date
Abstract
of
CALIFORNIA WATER RIGHTS THEORY: BOTTLING UP THE PUBLIC TRUST
by
W. Wesley Riley
Several factors are exacerbating the ongoing worldwide crisis of lack of access to fresh
water. Increasing demand and shrinking supply are adding intensity and oftentimes
violence to battles over water resources worldwide. A decisive majority of water
resource experts predict the problem will grow and produce new types of disputes that
center around questions of water ownership, human rights, and privatization. Although
water is frequently discussed and analyzed from economic, environmental, and
engineering perspectives, the profound underlying power relations and the political
theory of the democratic allocation of water are more rarely examined. This thesis
examines the questions of how Californians, in an environment of scarcity, have thought
about their water resources and what doctrines have been developed in order to allocate
water to citizens. A new form of local water privatization is used as a case study: the
corporate bottling of municipal water sources for resale. The dispute over corporate sale
of municipal water is examined against the three major doctrines of California water
rights: riparian, prior appropriation, and public interest doctrine. This thesis finds the
corporate bottling of water from municipal sources to be in violation of all known water
rights theories in California. The private provision of water as a strategy to increase
human access to freshwater for domestic purposes has become a subject of intense debate
in the twenty-first century.
_______________________, Committee Chair
Professor R. Jeffrey Lustig
_______________________
Date
iv
ACKNOWLEDGMENTS
Eugene V. Debs for eternal fire,
Howard Zinn for demonstrating that intellectuals still act,
Professor Fox for getting me back in graduate school,
Professor Lustig for getting me through,
and Barbara for making me finish.
v
TABLE OF CONTENTS
Page
Acknowledgments..................................................................................................................... v
Chapter
1. INTRODUCTION ............................................................................................................. 1
California’s Water History........................................................................................... 4
Human Right versus Commodity ................................................................................ 7
Contemporary Privatization Debates ........................................................................... 9
Privatization in the Form of Bottled Water from Municipal Sources ........................ 14
California Allocation via Water Rights .................................................................... 16
Thesis Overview ....................................................................................................... 18
2. RIPARIAN RIGHTS AND PRIOR APPROPRIATION DOCTRINE ............................ 19
Enter Prior Appropriation ......................................................................................... 22
Riparian Rights .......................................................................................................... 24
Prior Appropriation: The Beginning of Commodification From a Radical
Agrarian Ideal ............................................................................................................ 26
Prior Appropriation, Riparian Rights, and the Democratic Ideal .............................. 29
The California Hybrid Model: Lux v. Haggin ........................................................... 30
Significant Additions to the California Hybrid Model ............................................... 32
3. PUBLIC TRUST DOCTRINE AND THE MONO LAKE CASE ................................... 36
The Evolving Public Trust Doctrine .......................................................................... 42
4. BOTTLED MUNICIPAL WATER CASE STUDY: NESTLÉ IN SACRAMENTO ...... 47
Sacramento Water Becomes Nestlé Waters North America ........................................... 48
Prospects for Legal Action on Behalf of the Public Trust .............................................. 51
The Bottling of Municipal Water Violates All California Water Rights Doctrines ........ 56
5. CONCLUSION ................................................................................................................. 59
Bibliography
...................................................................................................................... 64
vi
1
Chapter 1
INTRODUCTION
Water is important to people who do not have it, and the same is true of control.
—Joan Didion, The White Album
Water is the sine qua non of human existence; and people in many parts of the
world are running out of it. Even though there is so much water on this planet that it
appears blue from space, about 97.5 percent of it is salt water unfit for human
consumption and most domestic needs. Of the remaining 2.5 percent freshwater, most of
that is locked in the polar ice caps. Therefore humanity’s supply of freshwater is finite
and small, when one considers it represents less than one half of 1 percent of all the water
on Earth. The term “water” is used throughout this thesis to refer specifically to
freshwater that has been improved to ensure it is safe for basic domestic uses such as
drinking, cooking, and hygiene or other personal consumption.
The total population of human beings is growing by about 90 million per year, or
the equivalent of another New York City each month. Humans are simultaneously
doubling their per capita use of water every twenty years. While demand for freshwater
skyrockets, supplies shrink. Urban and industrial pollution, corporatized factory farming,
inefficient flood irrigation methods, and massive dams all conspire to irretrievably harm
supply. Improved municipal drinking water supplies are shockingly contaminated with
fertilizers, pesticides, pharmaceuticals, hormones, and petroleum byproducts from plastic
2
bottles.1 More than half of the world’s major rivers are seriously polluted or going dry,
and half the planet’s wetlands were lost during the twentieth century.2
About 1.5 billion people worldwide already do not have access to safe drinking
water. The United Nations predicts that by 2025 more than 2 billion people will live in
countries that find it difficult or impossible to mobilize the water resources needed to
meet the needs of agriculture, industry and households. Two-thirds of the world's
population will experience some shortages of clean water.3
The World Health Organization calculates that the minimum basic daily water
requirement per person at 50 liters, or about 13.2 gallons. This minimum quantity must
meet not just drinking, but also sanitation and bathing needs. Insufficient water
accelerates the spread of disease and causes public health crises. Many African
countries, where people lack access to water the most, are using less than 10 liters per
person per day: Gambia uses a withering 4.5 liters (1.2 gallons), Mali 8, Somalia 8.9, and
Mozambique 9.3. In comparison the average US citizen uses about 500 liters per day. In
the wealthy and developed West, the average citizen uses about 8 liters just to brush their
teeth. Americans use more water than many Africans live on each day just to flush a
toilet, from 10 to 35 liters depending on conservation devices. Most of Americans
consume 100 to 200 liters for each shower. Due to contaminated water, one-third of the
1
Riccardo Petrella, The Water Manifesto: Arguments for a World Water Contract (New York: St.
Martin’s Press, 2001), 14.
2
Bill Marsden, “Cholera and the Age of the Water Barons,” The Water Barons, Center for Public
Integrity, 4-6. http://projects.publicintegrity.org/water/report.aspx?aid=44 (accessed February 3, 2003);
Diane Raines Ward, Water Wars: Drought, Flood, Folly, and the Politics of Thirst (New York: Riverhead
Books, 2002), 2-3, 13.
3
Kevin Watkins and Anders Berntell, “How to Avoid War Over Water,” The International
Herald Tribune, August 23, 2006.
3
global population suffers from preventable diseases every year, and over two million
preventable deaths per year worldwide can be traced to contaminated water.4
These crises are not new. The delegates of the first United Nations Water
Conference in 1977 unanimously agreed to strive to provide freshwater access to all
people by 1990. The 1980s were declared the “International Drinking Water Supply and
Sanitation Decade” and one of the main tenets of this effort was to bring water to all
people through increasing public funding.5
Though progress was made during that decade, cutting the number of people
lacking access to water worldwide almost by half, in 2006 the authoritative International
Water Management Institute joined the World Wildlife Fund (WWF) to report that water
scarcity worldwide was increasing even faster than expected only a few years ago.
Global water usage has increased by about 600 percent in the twentieth century, and
would yet double again by 2050, caused primarily by huge demands from agriculture
which uses 80 percent of all water worldwide.
The WWF report further warns that in the near future rich nations will be facing
the looming water crisis just as much as poor nations have for decades.6 The overall
forecast for all nations is foreboding and getting worse as global warming is likely to
bring lower rainfall and increased evaporation of surface water. Increased temperatures
4
World Health Organization, The Global Water Supply and Sanitation Assessment (Geneva:
United Nations, 2000), 4-12.
5
A. Agarwal, J. Kimondo, G. Moreno, and J. Tinker, Water, Sanitation and Health – for All?
Prospects for the International Drinking Water Supply and Sanitation Decade 1981-1990 (New York: UN
Environmental Program, 1981).
6
Living Planet Report 2006. (Geneva: World Wildlife Fund International; London: Zoological
Society of London; and Oakland: Global Footprint Network, 2006).
http://assets.panda.org/downloads/living_planet_report.pdf.
4
will melt snow and ice faster, changing the patterns of mountain watersheds. The report
concluded that water will become an increasing key political issue at local, regional, and
national levels as supplies disappear.7
Water managers and environmentalists are not alone in their dire predictions. The
US Central Intelligence Agency, PricewaterhouseCoopers and other corporate analysts,
and numerous military forces at home and abroad have all begun to plan for major armed
conflicts over water resources within the next 20-30 years.8 International water activist
and expert Riccardo Petrella cites close to fifty contemporary inter-state wars involving
bodies of water, and numerous examples of serious intra-state conflicts.9
California’s Water History
California is one of the most interesting places in the world to study the politics of
water, as it has experienced these contests for virtually its entire history. In many cases,
such as the famous Owens Valley conflict, some of the contestants were also armed.
With a huge population located in a desert region, California is facing similarly alarming
contemporary predictions of a near-future struggle for water. The State Department of
Water Resources (DWR) published a report in 2006 that offers the most detailed look yet
7
James Grubel, “Billions Face Water Shortages, Crisis Looms,” Reuters, August 16, 2006;
John Vidal, “Cost of Water Shortage: Civil Unrest, Mass Migration and Economic Collapse,” The
Guardian, London, August 17, 2006.
8
Ben Russell and Nigel Morris, “Armed Forces Are Put on Standby to Tackle Threat of Wars
Over Water,” The Independent, London, February 28, 2006; Watkins and Berntell, “How to Avoid War
Over Water,”p. 1.
9
Petrella, Water Manifesto, 39-42.
5
at how climate change could affect California water supplies.10 The report assumes a
range of parameters under two climate-change models and two emissions scenarios, but
each of the scenarios assume very conservative average temperature increases from
global warming by 2064. All four scenarios foretell a higher elevation snow line in
California’s mountains, causing decreases in California's mountain snowpack. As the
snowmelt runoff declines, the state can expect a drastic drop in its drinking and farm
water supplies, as well as more frequent winter flooding. The average difference by
2050, according to the report, would be a snowpack statewide that holds 5 million acrefeet less water. That’s more than the capacity of Lake Shasta, the state’s largest reservoir.
Worse yet, the report predicts more frequent winter flooding resulting from the
faster and heavier winter runoff caused by higher average temperatures. This means more
floodwaters to manage in winter, followed by less snowmelt to bank in reservoirs for
drinking water in the summer.
The DWR report also found global warming poses a critical threat to the health of
the Sacramento-San Joaquin Delta. The Delta is a vital water conveyor for moving
Northern California water to some 23 million Californians and 5 million acres of
farmland in arid Southern California. Because ocean levels are predicted to rise as global
warming accelerates the melting of Arctic ice, Delta water will become increasingly
saline, that is contaminated with salt, and therefore unfit for most domestic purposes.
Steve Hall, executive director of California Association of California Water Agencies,
10
California Department of Water Resources, Progress on Incorporating Climate Change into
Planning and Management of California’s Water Resources, Technical Memorandum Report (Sacramento:
California Department of Water Resources, July 2006).
http://baydeltaoffice.water.ca.gov/climatechange/DWRClimateChangeJuly06.pdf.
6
said about the DWR report: “We don’t have all the answers, but we know enough now
about the certainty and magnitude of climate change to begin to prepare in earnest. I don't
want to be alarmist, but frankly I think it's difficult to overstate the threat.”11
The looming crisis has many other causes as well. As water Historian Donald J.
Pisani writes: “there are many problems in claiming that aridity alone defined the nature
of western water law.” 12 Many of California’s water crises have not only been
environmental, but born of political origins as well. With a few notable exceptions such
as Pisani and Donald Worster, until recently the study of water was usually left to
specialized groups of experts such as hydrologists, engineers, scientists, city planners,
environmentalists, weather forecasters and others, each with only a very narrow interest
in a subject with vast implications.13 In the last decade however, a growing number of
voices including human rights and environmental groups, think tanks and research
organizations, official international agencies and thousands of community groups around
the world are sounding the alarm about natural and man-made policy causes of crisis.
More voices increases the variety of solutions offered to this crisis.
This thesis focuses its analysis of this debate on a fundamental question that
transcends reservoir capacity or ecological conditions: the question of allocation.
Allocation of water is also very much a political issue. In an arid land with many
interests, substantial control of water allocation can translate into tremendous power.
11
Matt Weiser, “Climate Report Sees a Thirsty Future,” The Sacramento Bee, July 11, 2006, p.
A1.
12
Donald J. Pisani, Water, Land, and Law in the West: The Limits of Public Policy, 1850-1920
(Lawrence: University Press of Kansas, 1996).
13
Donald Worster, Rivers of Empire: Water, Aridity, and the Growth of the American West (New
York: Pantheon Books, 1985), 2.
7
Many social consequences arise from allocation decisions. In terms of macro-allocation
choices, California has much in common with most of the world. Worldwide only about
8 percent of freshwater is consumed for domestic purposes; 69 percent is used for
agriculture, and 23 percent is used by various forms of industry.14 Important decisions of
allocation are made even within agriculture. For example, corn, wheat, and potatoes each
only require between 1,000 and 1,450 liters to produce a kilo of output. A kilo of chicken
meat requires 4,600 liters – a kilo of beef requires around 42,500 liters. Allocation
decisions have enormous consequences.
Reviewing the debate over water in the US and worldwide, most of the literature
can be categorized around two primary meta-questions: first whether water is a human
right or a commodity, and second, if water is a commodity, whether the “free market” or
something else is the proper allocation decision mechanism. Simply put: can water be
“owned,” and if so, who should own it?
Human Right versus Commodity
This paper will use the term “commodification” to discuss the promotion of
policies that treat physical water or water rights as articles of commerce to be privately
owned, bought, sold, or traded through market transactions – the value of which is set
only by the market. Unless a commodity can be priced in a market it has no value; its
value is nothing more than what the short-term market exchange says it is. Transactions
14
United Nations Educational, Scientific, and Cultural Organization, "Facts and Figures: Water
Use," International Year of Fresh Water 2003, http://www.unesco.org/water/iyfw2/water_use.shtml.
8
in the marketplace are supposed to determine the correct price and create efficient
outcomes. However, a serious flaw with the idea of the commodification of water is the
lack of a substitute good. Vandana Shiva succinctly emphasized substitution’s
importance, “The assumption of substitution is in fact central to [the] logic of
Commodification.”15 In order for the market to efficiently allocate water as a pure
commodity, there would have to be alternative goods that could reasonably satisfy
demand for water. Since there isn’t such a product, there is no elasticity of demand with
water.
Advocates on behalf of market allocation argue that public subsidy encourages
waste and therefore the market allocator is the best allocator of a scarce resource.
Privatization advocates contend that water consumers must be charged directly to recover
the cost of water service to homes and public spaces, instead of indirect general taxes and
other forms of governmental funding and subsidy, so that water services and sanitation
can improve in efficiency and accountability. Improvements in efficiency and
accountability will lead to greater access to clean water for everyone. 16
There are many responses to the pro-market argument but among the first and
most enduring was from Karl Polanyi. In his masterpiece The Great Transformation,
Polanyi argues that the development of economic liberalism provided justification for a
new set of public policies that facilitated the transformation of land, labor, and capital
15
Vandana Shiva, Water Wars: Privatization, Pollution, and Profit (Cambridge: South End Press,
2002), 15.
16
Brent M. Haddad, Rivers of Gold: Designing Markets to Allocate Water in California
(Washington DC: Island Press, 2000), 87; Matthias Finger and Jeremy Allouche, Water Privatisation:
Trans-National Corporations and the Re-regulation of the Water Industry (New York: Spon Press, 2002),
17.
9
into the “fictitious commodities” of a “self-regulating market.” Polanyi observes that
since resources like land and water cannot be created, the treatment of those resources as
commodities is not only fictional, but destructive to society. Polanyi further describes
how, in spite of the threat to social order, the philosophy from Adam Smith that came to
be known as “laissez faire” was “born as a mere penchant for non-bureaucratic methods
... [and] evolved into a veritable faith in man's secular salvation through a self-regulating
market.” 17
Contemporary Privatization Debates
International Financial Institutions such as the International Monetary Fund (IMF)
and World Bank heavily promote privatization as the answer to how water can be most
effectively allocated. Many globalization activists, such as Vandana Shiva of India,
excoriate the World Bank and other aid agencies for “aggressively pushing privatization
and market-based distribution of water,” which has resulted in “catastrophic”
consequences.18 Social movements have organized to resist the commodification of water
all over the world, including examples of mass protest in Bolivia, Argentina, Ghana, the
Philippines, Indonesia, France, South Africa, India -- even locally in Northern California,
in Stockton, Merced, and Sacramento.19
17
Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time
(Boston: Beacon Press, 1957), 71-73, 135.
18
Shiva, Water Wars, 87-98.
19
Julio Godoy, “Water and Power: The French Connection,” The Water Barons Project
(Washington DC: The Center for Public Integrity, February 4, 2003).
http://projects.publicintegrity.org/water/report.aspx?aid=47; Oscar Olivera and Tom Lewis, Cochabamba!
Water War in Bolivia (Cambridge: South End Press, 2004); see also Shiva, Water Wars, 2003.
10
“Privatization” is a broad term that can take many forms, like the sale of a public
resources or assets to private ownership, such as radio broadcast frequencies or land. It
can also refer to the process of governmental agencies contracting out the operations
management, service delivery, maintenance and fee collection of water provision to
private sector corporations. Sometimes privatization permits companies to own the water
system infrastructure that was built through public funds and manage it for profit under
lease contracts.
Although many groups and social movements have organized in opposition to
water privatization, most critiques have common themes such as concern with the
inherent profit motive of corporations. Unlike public agencies, private companies are not
investing money for the purpose of operating an efficient and clean water system for
public health goals. Public health, or lack of it, is incidental to the primary goal of profit
and frequently considered a mere “negative externality” in economic terms. Public
agencies can usually afford to ignore the pursuit of profit in favor of public health.
Operating only under a profit motive, private companies have no incentive to bring water
to places that lack it most, which are of course always poor communities. Privatization
opponents also usually point out that because water markets are conducive to the
formation of monopolies because water has no substitute good, especially given modern
engineering and the ability to manipulate natural flows.
11
There are many cases of the private provision of water services being challenged by
social movement groups worldwide.20 In 2000, there was a mass citizen rebellion against
the civic government in Cochabamba, Bolivia lasting over two months as a result of a
water privatization scheme. Oscar Olivera, the foremost leader of the uprising reports that
in 1999, the World Bank and the International Development Bank made privatization of
water systems a precondition for loans, and further recommended that there be no “public
subsidies to hold down costs to consumers.”21 People fought the total privatization of
their water system and the resultant rapid rate hikes, broken promises, and service cutoffs
with street protests, which became pitched battles in the face of brutal police repression.
The violence resulted in two dead and hundreds injured, but eventually the contract was
rescinded in what has been hailed as a major victory and a model for anti-privatization
activists worldwide. However, in a follow-up article at the end of 2005, the New York
Times found that serious water service problems continued anyway, despite citizen
control. Water quality is still substandard and there are still thousands of urban residents
without reliable or adequate service. “I would have to say we were not ready to build new
alternatives,” said Oscar Olivera, who led the movement that forced the Bechtel
Corporation out of Cochabamba.22
Jessica Budds and Gordon McGranahan, “Are the Debates on Water Privatization Missing the
Point? Experiences from Africa, Asia and Latin America,” Environment & Urbanization 15, no. 2 (2003):
87-113; Kathleen Slattery, “What Went Wrong? Lessons from Cochabamba, Manila, Buenos Aires, and
Atlanta,” Annual Privatization Report 2003: www.rppi.org/apr2003/whatwentwrong.html.; Nick
Mathiason, “Turning Off the Tap for Poor,” The Observer, August 18, 2002.
21
Olivera and Lewis, Cochabamba! Water War in Bolivia, 8.
22
Juan Forero, “Who Will Bring Water to the Bolivian Poor?” The New York Times, December
15, 2005.
20
12
Although activist groups have opposed various forms of privatization of water,
clear alternative solutions have not emerged. The common long-term goals of those who
believe water should be a human right is to create an international convention on water
that includes binding legislation.23 The pragmatic implementation of their theories
remains highly problematic. Petrella actually argues against the “state’s appropriation of
sovereignty and ownership rights over water…” He writes: “It is important to destatize
water: that is, to free it from the bureaucratic-centralist logic of state power.…”24 Instead
Petrella and his organization advocates for a vague “cooperative type of enterprise
delegated to run a public service (one that really does operate on the basis of cooperative
principles) is neither the state nor a private capitalist company…” However, in response
to Petrella’s call, other critics of privatization like Matthias Finger and Jeremy Allouche
reply: “…Petrella’s initiative and arguments, which are quite symptomatic of current
opposition to water privatization, are simply unrealistic.”25
Other scholars suggest that perhaps there is a false dichotomy between water as a
human right and water as a commodity. Even allowing that everything activists claim
about water in terms of human needs is perfectly valid, water has also been a critical
input into production of life-saving goods and must continue to be allocated as a raw
material for that purpose. There are remarkable advances in sanitation, human health, and
beneficial technology because of water. Law scholar David B. Schorr has written
extensively about how “contemporary debates over the worldwide trend towards
23
Petrella, The Water Manifesto; Olivera and Lewis, Cochabamba! Water War in Bolivia; Maude
Barlow and Tony Clarke. Blue Gold: The Fight to Stop the Corporate Theft of the World’s Water (New
York: The New Press, 2005).
24
Petrella, The Water Manifesto, 14-15.
25
Finger and Allouche, Water Privatisation, 213.
13
privatization of water systems and supplies have a historical precedent in the
controversies that raged in Gilded Age America over the control of irrigation-canal
systems by eastern- and foreign-owned corporations.”26 He goes on to challenge the
common typology of property in which private property is opposed with public,
demonstrating that these two ideas can be in harmony, with the more important
dichotomy distinguishing between widespread, diffuse ownership and concentrated
ownership.27
Since water is such a scarce resource, a democratic decision mechanism must
exist to resolve difficult decisions of allocation. The battle over defining water as a
human right rather than a commodity may be missing that crucial point. Even if
ultimately agreed upon as a human right, that does not help decide difficult allocation
questions where interests between different groups of citizens may come into conflict. In
terms of allocation, the process of commodification that has largely occurred over the
history of California has carried some advantages as well as problems. Even Polanyi
does not deny that treating land and water as at least partial commodities has brought
about “unheard of material wealth.”28 Placing a more accurate price on the value of water
allows for more just punishment of egregious polluters. Research has consistently shown
that water usage decreases and conservation practices increase when water meters are
installed. However, just because water has a price, it does not necessarily follow that the
market alone must make the political allocation decisions.
David B. Schorr, “The First Water-Privatization Debate: Colorado Water Corporations in the
Gilded Age.” Ecology Law Quarterly 33, no. 2 (2006), 313-361.
27
Schorr, “First Debate,” 356-358.
28
Polanyi, The Great Transformation, 71.
26
14
The full debate over the nature of water as a commodity or a human right is
beyond the scope of this study. This thesis shall simply conclude that water is an essential
service that governments must provide for citizens as a precondition to realizing any
democratic notion of freedom or any other universal human right. As will be shown in the
next chapter, the people of California have already commodified it to a large extent for
purposes of economic development. The key to understanding and activism is to change
the allocation goals, and place the highest priority on human consumption needs.
Privatization in the Form of Bottled Water from Municipal Sources
There are other forms in which water can be said to be “privatized” besides the
sale of public water facilities or service management contracts with private firms. The
bottled-water industry is one of the fastest-growing, least regulated, and most heavily
polluting in the world. In 1990, about two billion gallons of bottled water were sold
worldwide. By 2003 more than 30 billion gallons were consumed and sales have
continued to rise. The industry is expanding at an annual rate of 20 percent. Worldwide,
bottled water consumption surged to 154 billion liters (41 billion gallons) in 2004, up 57
percent from 98 billion liters in 1999, Earth Policy Institute (EPI) said in a written
analysis citing industry data. Almost all of it is sold in non-reusable, single-serving
plastic containers. Worldwide, some 2.7 million tons of plastic are used to bottle water
each year. Industry analysts eye the California market with particular zeal since it is
15
among the largest water-using states in America and the world. Nearly one-fifth of North
Americans use bottled water exclusively for their daily hydration.29
Consumers spend an aggregate $100 billion every year on bottled water according
to the environmental think tank EPI. According to multiple estimates, that is roughly
three times more than the amount required to meet the United Nation’s goals of giving
everyone access to safe drinking water and proper sanitation by 2015. Members of the
United Nations have agreed to halve the proportion of people who lack reliable and
lasting access to safe drinking water by the year 2015, but currently only spend about $15
billion every year on water supply and sanitation development.
Nearly anywhere in the world that has at least rudimentary public conveyance
infrastructure, bottled water invariably costs more than freshwater piped directly to places
of residence. In developing countries, water purchased from private street vendors
usually charge up to 100 times more per unit of water than public utilities.30 At up to
$2.50 per liter ($10 per gallon), bottled water costs more than gasoline in the United
States. According to the Natural Resources Defense Council (NRDC), American bottled
water consumers pay between 240 and 10,000 times the price of tap water.31
Four companies, Coca-Cola and PepsiCo from the United States, and Nestlé and
Danone from Europe, account for most worldwide sales of bottled water. These
corporations are engaged in a constant and unquenchable search for new water supplies
29
Tony Clarke, Inside the Bottle: An Exposé of the Bottled Water Industry (Ottawa: The Polaris
Institute, 2005).
30
Budds and McGranahan, “Missing the Point?” 87-113.
31
Tap water is transported by a relatively energy-efficient infrastructure whereas bottled water
must be transported long distances by boat, train, airplane, and truck burning fossil fuels. Petroleum is used
in packaging the water. Most plastic water bottles are manufactured with polyethylene terephthalate, a
plastic derived from crude oil.
16
to feed growth, aggressively acquiring water in any form. Nestlé’s bottled water brands,
including Perrier, Poland Springs, Pure Life, Calistoga and a dozen others, and Danone’s
Evian, Crystal and other brands, are pumped from natural aquifers in many countries,
sometimes resulting in dry wells and depleted aquifers.
Approximately one fourth of all bottled water worldwide and as much as 40
percent of what is sold in North America is simply municipal tap water run through filters
and treated with minerals or other additives.32 This thesis will use “municipal water” to
refer to water that has been improved or transported through infrastructure built with
public funds. “Bottled water is not guaranteed to be any healthier than tap water. In fact,
roughly 40 percent of bottled water begins as tap water; often the only difference is added
minerals that have no marked health benefit,” EPI wrote.33 Pepsi’s Aquafina and Coke’s
Dasani are filtered or “re-mineralized” municipal tap water. Product advertisements and
labels are often egregiously misleading. For example, “Alaska Premium Glacier” brand
bottled water is “drawn from the municipal water system in Juneau, Alaska, specifically,
pipe # 111241, which is not a glacier,” according to the Polaris report.
California Allocation via Water Rights
Water industry experts like the California Association of California Water
Agencies speak for many stakeholders in the water debate when they advocate for the
state to start building more reservoirs and groundwater storage systems as the only
32
Clarke, Inside the Bottle, 25.
Emily Arnold and Janet Larson, “Bottled Water: Pouring Resources Down the Drain”
(Washington DC: Earth Policy Institute, February 2, 2006)
http://www.earthpolicy.org/Updates/2006/Update51.htm.
33
17
solution to water shortages.34 Since the famous Owens Valley episode, California has
largely escaped further conflict over allocation by developing new supplies through
dams, reservoirs, and aqueducts. California has already repeatedly increased its capacity
through dams and reservoirs, involving some of the most impressive feats of engineering
in the history of the world, yet many parts of California still face serious shortages. All
of the relatively easy opportunities to expand supply are exhausted, causing Californians
to face difficult allocation choices.
That is why the most crucial and profound question about the future of
California’s water is about allocation. As scarcity increases, drought years become more
frequent, and local shortage crises occur more frequently, Californians will seek new
ways of deciding how to democratically allocate water. In California, water is already
allocated according to a complex system composed of multiple doctrines of “water
rights,” as will be explained in the following chapters. This thesis will contribute to the
debate about water privatization in California by posing a new question about a specific
form of water privatization, the corporate bottling of municipal water, and analyze this
relatively new practice within the context and terms of California water rights theory.
Specifically, this thesis will find that while there are many unanswered questions
regarding whether or not corporations such as Nestlé Waters North America hold any
valid California water rights to bottle municipally supplied water for resale, there is
significant legal and political precedent to conclude that this practice violates the major
principles of all California water rights doctrines.
34
Weiser, “Report Sees a Thirsty Future,” A1.
18
OVERVIEW OF THE THESIS
Chapter Two will explore the riparian and prior appropriation water doctrines in
California and their political origins and consequences.35
Chapter Three is dedicated to the Public Trust doctrine because of its special
importance in the privatization debate and the groundbreaking California Supreme Court
decision involving Mono Lake in California.
Chapter Four applies the principles of water rights outlined in earlier chapters in
order to assess the potential water rights of corporate bottling of municipal water sources
in a case study involving Nestlé Waters in Sacramento. While opposition to operations
of this type is not new, it almost always involves legal battles of environmental impact
reviews. This thesis will argue that the Public Trust doctrine is applicable to corporate
bottling of municipal water.
Chapter Five concludes that the private corporate bottling of municipal water
violates all major California doctrines of water rights, and asserts that the legal grounds
are fertile for trying a Public Trust case in conjunction with continuing legal efforts
towards environmental impact review requirements.
35
In the interest of brevity, this thesis does not cover other water rights subtleties such as federal
reserve rights, pueblo rights, groundwater rights, or the differences between pre-1913 versus post-1913
appropriative rights. This level of complexity is dealt with at length in water law scholarship.
19
Chapter 2
RIPARIAN RIGHTS AND PRIOR APPROPRIATION DOCTRINE
A “water right” is the right of a user to divert water from a natural water source
such as a river, stream, lake, or groundwater source. The term “user” can indicate a
natural person or a legal entity such as a corporation. In the United States, there have
historically been two primary doctrines that determine water rights: riparian and prior
appropriation. Though there are federal water rights, for the purposes and scope of this
thesis, each state generally determines its own water rights system through legislation and
the evolution of case law. Though each state’s geography, climate, regional cultures, and
local politics also heavily influence water rights doctrines, each has been built around or
adapted from either riparian rights or prior appropriation.
Riparian water rights theory was derived from English common law and is more
common as the primary water allocation doctrine in the humid Eastern states that were
first settled by the British. Prior appropriation theory was created chiefly in Colorado and
California and is the primary water allocation doctrine in only nine states, almost all of
which are located in the arid western region of the United States where diverting water
over long distances from natural sources is common.1
1
Brent M. Haddad, Rivers of Gold: Designing Markets to Allocate Water in California
(Washington DC: Island Press, 2000), 7. The nine appropriative rights only states include the following:
Alaska, Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, and Wyoming.
20
Ten states, including California, recognize a mix of both riparian and
appropriative rights.2 This hybrid approach is often referred to as the “California
Doctrine” because it was first developed early in California’s history. Since then
California has remained an innovator in water rights law and has added new dimensions
which will be discussed in the next chapter.
As Norris Hundley, Jr. writes in his history of California water, the Spanish
arrived in Alta California in 1769 and brought with them well-developed ideas about
water policy, having come from a terrain similar to their settlements in what is now
Southern California – few rivers and relatively low rainfall. Consequently their water
policy bears the very first relation to California’s: the notion that nature is to be subdued
and exploited for human benefit. The similarities end there – “community survival and
central authority persisted as the most distinctive features of Spain’s attitude toward
water.”3
Hundley notes that Spanish policy included not only community rights to an
equitable share of water, but carried with it community obligations as well.4 Each
resident had to contribute to the building of reservoirs, canal systems, and dams. The
community’s responsibility for the water system extended to quality as well. Many uses
were recognized including laundry, sewage, and trash removal. The Spanish enforced
detailed ordinances to fine community members who polluted the water. Pueblo water
2
Haddad, Rivers of Gold, 16. The nine hybrid states in addition to California include the
following: Kansas, Mississippi, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, Texas, and
Washington.
3
Norris Hundley, Jr., The Great Thirst—Californians and Water: A History (Berkeley and Los
Angeles: University of California Press, 2001), 28.
4
Hundley, The Great Thirst, 38-45.
21
rights are an allocation system rooted in Spanish law, where the sovereign King of Spain
granted usufruct rights to of the flowing water in each town to his subjects. Hundley
writes: “Under Spanish law, water in a municipality did not belong to separate
individuals, but rather passed from the monarch to the entire community as a corporate
body.”5
Little changed in terms of water law and principles during the Mexican period of
rule. Pueblo water rights continued to hold that upstream users could not restrict the
access to water of any settlement downstream. Like the Spanish, Mexican water policy
overall was designed with the needs of the entire community as the priority over those of
the individual. This community-centric philosophy is directly counter to the attitude of
the rugged, individual, self-sufficient American West settler that dominates the typical
story of California’s history. Water policy changed quickly and radically in California
after the United States’ 1846 victory in the Mexican-American war. Hundley writes:
“Viewed from the vantage point of the twenty-first century, Hispanic principles contrast
sharply with the individualism and monopolistic impulses of those who flocked to
California following the American conquest in 1846.”6
Under earlier Mexican rule private use of water was governed by the doctrine of
riparian rights, which mandated that those property owners adjacent to a river or stream
possessed a right to its use. The word riparian derives from the Latin “ripa” or “bank” of
a river. When California was ceded from Mexico to the United States these propertybased rights were specifically preserved and further reinforced when the first legislature
5
6
Hundley, The Great Thirst, 39-40.
Hundley, The Great Thirst, 64.
22
in 1850 adopted the Common Law of England, from which the doctrine of riparian rights
had been initially imported on the East Coast.
Enter Prior Appropriation
Contemporary California is a world-class agricultural producer. This would not
have been predicted after the Mexican-American war, however. In 1849, the United
States government sent Lieutenant George Derby to conduct agricultural surveys in the
California Great Valley. Lt. Derby noted the deplorable soil conditions and inferior
possibilities for settlement. Writing about the area where what are now the San Joaquin
and Merced rivers converge, he found the land to be “exceedingly barren, and singularly
destitute of resources, except for a narrow strip on the borders of the stream; it was
without timber and grass, and can never, in my estimation, be brought into requisition for
agricultural purposes.”7 Unlike other areas of settlement in the expansion of the United
States, California was not heavily influenced initially by agricultural traditions from the
East.
The acquisition of California land from Mexico was followed very shortly by the
discovery of gold in 1848. If California was not yet an attractive settlement for
agricultural land, it rapidly gained population as prospectors flooded in hoping to
discover gold and other precious metals. Mining technology of the time was very waterdependent, for example, panning and sluicing. Also, much of the ore-bearing mines were
miles away from the nearest water source. Miners immediately began to divert water
7
Donald Worster, Rivers of Empire: Water, Aridity and The Growth of the American West (New
York: Pantheon Books, 1985), 9.
23
from natural flows in large quantities. These diversions inevitably produced conflicts
over water.
There is little disagreement among scholars about the relationship between mining
claims and the doctrine of prior appropriation. In the absence of a central water policy
from the federal government, frontier traditions held sway locally. Frontier settlers placed
great emphasis on the rights of the first to arrive to a claim, be it land or mining. The
right to a gold claim went to the first person working it. Since water was usually
necessary in order to work a gold claim, the same “first in time, first in right” principle
was extended to water diversions.8
“First in time, first in right” became the primary principle of prior appropriation
doctrine. A significant consequence of this shift was that the priority of a right to water
was not measured by its use, but solely by the order in which people made the claims.
Whoever secured their water right first held the superior claim over the water in question,
as long as they continued to exercise their right by continuing to use the water. The only
other fetter on an entrepreneur’s claim of a valid appropriation right was application of
the diverted water to a “beneficial use.” One’s right to the water could be legally
perfected only by exercising the water right permit and using the water for a beneficial
purpose. Similar principles prevailed establishing the rules of mining claims, which
required that a mining claim be worked; absentee speculation was actively discouraged.
If the appropriator did not use his entire allocation of water, he would forfeit his right to
that unused amount.
8
Hundley, The Great Thirst, 71.
24
It is important to understand the political context behind prior appropriation
doctrine. The priority of water use was economic growth, but the notion of “beneficial
use” implies no hierarchy of uses. “Beneficial use” initially meant the use of water for
mostly mining purposes, but the definition of “beneficial” expanded quickly. As soon as
cattle and other livestock ranged open federal lands in the West, watering livestock from
rivers and lakes was regarded as a beneficial use. The use of water for domestic purposes
was clearly a beneficial use, as was commercial use of water as frontier towns began to
grow. In more recent California history, even swimming pools and decorative lawn
watering have come to be commonly considered “beneficial” uses of water. Another
crucial aspect of prior appropriation doctrine, however, is that it was never viewed as a
beneficial use to leave river water in the river or the lake. In fact, under the doctrine of
prior appropriation leaving water in its natural state was most often considered “waste.”
There was no requirement to return diverted water back to its natural flow after use
either.
Riparian Rights
Many water scholars trace the roots of riparian water rights doctrine to the
Justinian Code, which controlled water allocation throughout the Roman Empire.9 The
Emperor Justinian I (483-565) mandated the consolidation of all Roman laws evolved
over the prior thirteen centuries into what eventually became known as the Justinian
Code, which decreed that: “The public use of the banks of a river is part of the law of
9
Thomas V. Cech, Principles of Water Resources: History, Development, Management, and
Policy (Hoboken: John Wiley & Sons Inc., 2003), 5.
25
nations, just as is that of the river itself…. But the banks of a river are the property of
those whose land they adjoin.…”10
Under the riparian principle, all landowners whose property is adjacent to a body
of water have the right to make reasonable use of it. While the riparian landowner could
make use of the water for agriculture, milling, or other private purposes, most of the
water in a stream belonged to the whole public for fishing and navigation purposes.
Riparian water rights cannot be sold or transferred other than with the adjoining land, and
water cannot be permanently transferred out of the local watershed.
Under riparian rights doctrine, a distinction was made between navigable and
non-navigable streams. “Navigable” is defined as a waterway that can be traveled by a
boat. Such streams were owned by the public and could not be obstructed or reduced in
quantity to obstruct navigation. For non-navigable streams, the property owner adjoining
the stream held the water rights. Riparian water rights extend to the center of nonnavigable streams from each bank. Contrary to prior appropriation rights, under the
riparian doctrine water cannot be exported from a watershed. Also opposite prior
appropriation doctrine, at least most of the diverted water must eventually be returned
unimpaired in quantity and quality to the original stream.
Riparian rights theory in the United States came from English common law,
which of course meant is entered the United States consciousness through the humid
conditions of the East Coast. Miners’ rules for water rights were designed to provide
security of title to entrepreneurs who made the earliest claims on the water, thereby
10
Cech, Principles of Water Resources, 251.
26
favoring rapid economic expansion. Whereas riparian water rights are inherently attached
to the land, with prior appropriation, land title was not necessary to acquire water. The
goal of both miners and prior appropriation was liquidity in wealth creation. Miners did
not want to hold title to the land; their goal was to extract precious metals and move on.
This new doctrine of prior appropriation, with its exclusive private-property rights to
water, stood in stark contrast to both the common-property regime of correlative rights
under the English and eastern U.S. riparian doctrine and the Spanish community resource
tradition.
Prior Appropriation: The Beginning of Commodification From a Radical Agrarian Ideal
Vandana Shiva refers to prior appropriation water rights quite derisively as both
“cowboy economics” and “the Advent of Privatization.” According to Shiva, the mining
camps of the American West not only invented the doctrine of prior appropriation but
also the very idea of buying and selling water. She even traces the roots of some of the
contemporary global movement towards privatization of water to the foundation of the
western private appropriation philosophy.11 Her claims are bolstered by the fact that
prior appropriation made it possible for the first time in the United States to trade
diverted water as a commodity of its own, separated from the land. Unlike riparian rights,
water can be moved miles away from both its original source and the rights of the
landowners adjoining the water source. Law scholar David B. Schorr writes: “Supporters
and critics alike have associated the doctrine with values such as the preference for
11
Shiva, Water Wars, 21-24.
27
private over common property, the privatization of the public domain, and the facilitation
of markets in natural resources.”12
However, Schorr argues persuasively that the principles of prior appropriation
were not necessarily the seeds of corporate control over water that Shiva decries, but in
fact were designed to curtail the power of large corporations to monopolize ownership of
water resources. Analyzing water law and historical artifacts in Colorado, he explains
how the doctrine of prior appropriation was developed to advance the contemporary
American agrarian ideal of wide distribution of real property and anti-monopolism.
Unlike the eastern states where riparian rights originated in the United States,
western states including Colorado and California have very large areas of arid land
threaded by a single stream of water. If these few water flows could be monopolized by a
small number of landowners, that control would give them tremendous advantage over all
other landowners. Water rights could be locked into land ownership indefinitely.
However, prior appropriation gave no preference to riparian landowners, allowing all
users an opportunity to compete for water and to develop land far from streams.13 The
beneficial use requirement functioned to prevent speculative appropriations not intended
for use but for resale at a profit by absentee landowners. This limitation can be viewed as
an expression of the contemporary “producer ethic,” which located virtue in the labor of
the individual and small-scale, family, yeoman farmers.
David B. Schorr, “The First Water-Privatization Debate: Colorado Water Corporations in the
Gilded Age,” Ecology Law Quarterly 33, no. 2 (2006): 313–361.
13
Worster, Rivers of Empire, 104.
12
28
Land reform and agrarian movements of the mid-nineteenth century grew out of
the Jeffersonian ideology that favored small, family-sized farms and the idea that every
citizen should own land in order to preserve the individual independence necessary for
democracy to function. This widely distributed ownership of private property would be
the bulwark of human liberty. There was widespread concern in the American West that
the land of the public domain not be distributed to absentee speculators and corporations
controlled by Eastern US and European investors. It is important to note that agrarian
movements did not oppose private ownership of land and natural resources such as water,
only what agrarians reviled as excessive concentration of ownership which constricted
the opportunity to acquire property. This political philosophy enjoyed particularly strong
support in the West, because of the widely held view that there was plenty of
“uninhabited” land available for American settlement. The extent to which these policies
were successful is beyond the scope of this thesis, but is clear that land and water policy
of the mid-nineteenth century was designed to favor the archetypal “settler,” a mainstay
of agrarian political rhetoric.14
One of the most oft-cited examples of this nineteenth-century Jeffersonian ideal
implemented into law in the United States is the Homestead Act of 1862, which
contained all the core elements of Jeffersonian and agrarian thought: widespread
distribution of property, use requirements to maintain claim on that property, and limits
on total holdings. The doctrine of prior appropriation mirrors the same principles aimed
at preventing monopoly control of water supplies and the potential concentration of water
14
Schorr, “First Debate,” 316–318.
29
wealth in the hands of those who could afford to buy up the riparian lands of the aridcountry streams. As Hundley summarizes: “… the real enemy was monopoly, whether by
riparians or appropriationists.”15
Prior Appropriation, Riparian Rights, and the Democratic Ideal
Since tradition requires a riparian landowner to return any diverted water back to
the watershed in unchanged quantity and quality, the water itself is not usually viewed as
privately owned. This notion makes riparian doctrine attractive to many anti-privatization
activists. Vandana Shiva writes approvingly of riparian rights, which she argues are
“based on concepts of usufructuary rights, common property, and reasonable use.... Early
riparian principles were based on the notion of sharing and conserving a common water
source.”16 For Shiva and Indian culture, however, riparian rights have connotations that
American culture and water theory do not have. Donald Worster also makes riparian
doctrine appear attractive in many ways to many activists interested in a democratic
allocation of water:
In ancient times, the riparian doctrine was less a method of ascertaining individual
property rights and more the expression of an attitude of non-interference with
nature. Under the oldest form of the principle a river was to be regarded as no
one’s private property. Those who lived along its banks were granted rights to use
the flow for natural purposes like drinking, washing, or watering their stock, but it
was a usufructuary right only—a right to consume so long as the river was not
diminished.17
But contrary to Shiva and Worster, Marc Reisner is very critical of riparian water
rights. “The doctrine of riparian rights, which had been unthinkingly imported from the
15
Hundley, The Great Thirst, 99.
Shiva, Water Wars, 21.
17
Worster, Rivers of Empire, 88.
16
30
East, made it possible to monopolize the water in a stream if you owned land alongside
it.… Riparian doctrine alone, therefore, made it possible for a tiny handful of landowners
to monopolize the few manageable rivers of the West.”18 Reisner argues that under the
system of riparian water rights, landowners could manage to manipulate flows of water in
order to build their land holdings until neighbors recognized their predicament and
moved out. The rule dictates that the owner of a stream bordering his land had full rights
to the use of the water and those owners not contiguous to the stream had no rights to it.
Landowners with such water rights could monopolize its use.
Schorr analyzes one of the more famous cases in American water law, Coffin v.
Left Hand Ditch Co., handed down by the Colorado Supreme Court in 1882. This opinion
officially abandoned riparian rights and outlined the “Colorado doctrine” of “pure
appropriation.” This decision influenced the adoption of the appropriation doctrine by
other western states in following years. Schorr argues that the Colorado Chief Justice was
deeply concerned with preventing monopolistic control of water by speculators and
investors, and therefore acted to break the common-law rights of riparian owners in order
to expand access to more users.19
The California Hybrid Model: Lux v. Haggin
Like most water scholars, Hundley traces the evolution of the hybrid style of
California water rights largely from the 1886 Lux v. Haggin decision of the State
18
Marc Reisner, Cadillac Desert: The American West and Its Disappearing Water (New York:
Penguin Books, 1993), 43.
19
Schorr, “First Debate,” 347.
31
Supreme Court, which formally recognized both riparian and prior appropriation water
rights.20
One of the water monopolists that Reisner and Schorr argue was most feared was
a German immigrant named Henry Miller. Miller and his partner Charles Lux acquired
huge tracts of land throughout the Central Valley of California, largely along both banks
of the San Joaquin and Kern Rivers. The San Joaquin & Kings River Canal and Irrigation
Company founded by Miller and Lux used water acquired through their riparian rights for
cattle grazing, but many fellow Californians accused the company of being land
speculators who made strategic acquisitions of riparian properties in order to force
smaller landowners to sell out to them. In any event they accumulated enormous
underdeveloped and underused holdings. By the 1880s they had acquired over a million
acres.
James Ben Ali Haggin was the primary owner of the Kern Valley Land and
Water Company, which controlled approximately 400,000 acres of land upstream from
the Miller-Lux holdings. Haggin diverted a lot of Kern River water for irrigation through
his rights under prior appropriation theory. When Haggin’s diversions combined with
successive years of drought reduced the flow of the Kern River enough, many head of
Miller-Lux cattle died, causing Miller-Lux to file suit. Haggin hoped his case would
validate prior appropriation doctrine so that he could maintain the right to divert upstream
flows and improve the land through irrigation. Miller held that his riparian right to the
20
Hundley, The Great Thirst, 93-99.
32
river prevented any other user from taking water he needed to grow grass along his
riverfront property in order to feed livestock.
Lower courts initially ruled in favor of prior appropriation and Haggin, but Miller
appealed to the California Supreme Court. The Supreme Court eventually ruled that preexisting riparian rights trump subsequent appropriative rights. Therefore the Miller-Lux
company had the right to the use of the Kern River since it owned all the lands abutting
their reach of river. However, the ruling also clarified that appropriators have superior
rights if their diversions precede the purchase of riparian property. In other words, prior
appropriation doctrine could overcome riparian doctrine in a case where the prior
appropriator is using the water before the downstream riparian owner had acquired their
property title. Put simply, the court ruled that both doctrines were legitimate in
California, and order of claims determined which rights prevailed when in direct conflict.
Hundley writes that this decision perhaps more than any other in California’s history has
spawned chaos and recurrent judicial battles over water rights ever since this “State
Supreme Court ruling saddled California with a new system of water law but failed to
alter the pattern of land and water rights concentrated in relatively few hands.”21
Significant Additions to the California Hybrid Model
After the State Supreme Court’s Lux v. Haggin ruling, Central Valley farmers
were outraged that they now had to buy water in many instances from Henry Miller. One
of the ways irrigation advocates reacted was to try to limit riparian rights through
21
Hundley, The Great Thirst, 97.
33
legislation. The Wright Act of 1887 permitted farming regions to form and finance
irrigation districts through bond issuance, which allowed small farm owners to pool
resources in order to acquire irrigation water. This law provided for the creation of
irrigation districts under local public control. In 1887, Turlock Irrigation District became
the first irrigation district formed in California under the Wright Act, delivering its first
water in 1901. Modesto Irrigation District commenced deliveries in 1904.22 The Wright
Act enabled the diverting of waters from the Merced and San Joaquin rivers in the
Central Valley. These irrigation districts are public entities. As will become significant
later in Chapter Four of this thesis, urban water agencies procure water from major
California public water projects such as the State Water Project or the federal Central
Valley Project.
The Water Commission Act of 1913 created California’s first water rights
governing agency, the State Water Commission, and set forth an administrative
procedure for acquiring an appropriative right. The Act gave the State Water Commission
(later reorganized as the Division of Water Resources) authority to reject appropriative
rights applications that were not in the public interest. Further legislative amendments to
California Water Code in 1921 declared that the policy of the State held that “the use of
water for domestic purposes is the highest use of water.” Further sections of California
Water Code law of particular note for this thesis make it clear that “the protection of the
public interest in the development of water resources… is of vital concern… and that the
22
“Liquid Gold—California’s Water: An Exhibit by the Water Resources Center Archives”
(Berkeley: University of California, Berkeley Library, 1997).
http://www.lib.berkeley.edu/WRCA/exhibit.html. (accessed April 12, 2010).
34
State shall determine in what way the water of the State… should be developed for the
greatest public benefit.” Lastly, of particular importance: “It is hereby declared to be the
established policy of this State that the right of a municipality to acquire and hold rights
to the use of water should be protected to the fullest extent necessary for existing and
future uses, but that no municipality shall acquire or hold any right to waste water, or to
use water for other than municipal purposes.”23
Neither the decision in Lux v. Haggin, nor the Water Commission Act of 1913 yet
required California riparian landowners to make “reasonable” as well as “beneficial” use
of the acquired water. In the mid-1920s Southern California Edison proposed building a
dam on the San Joaquin River to produce hydropower. A landowner with affected
riparian water rights sued to block the construction, arguing she needed the entire flow to
irrigate her pastureland. The 1926 ruling in Herminghaus v. Southern California Edison
upheld the rights of the riparian user, consistent with the Lux v. Haggin ruling, and
therefore blocked construction of the dam. The court held that a riparian water user was
entitled to the full flow of a stream without regard to the reasonableness of the use.
However, vocal and influential members of the Los Angeles area were widely upset that
an individual landowner could block the electrification of their homes and business. This
outrage eventually led to a 1928 constitutional amendment to Article X, Section 2 of the
California Constitution requiring that all water uses be reasonable and beneficial and that
uses of water be evaluated for wastefulness.
23
California Water Code Sections 105 through 106.5 can be most conveniently found at:
http://www.leginfo.ca.gov/calaw.html.
35
There are many significant court cases in California, resulting from its rich history
of water conflict. The next major shift in California water policy for the purposes of this
study came in the early 1980s from the Mono Lake case. The next chapter will focus on
the public trust doctrine of water rights that grew out of that case, including new
requirements on the State requiring an affirmative duty to take the public trust into
account in planning and allocating water resources and, even more significantly, that the
state has a continuing duty of supervision over water rights even after the water has been
allocated.
36
Chapter 3
PUBLIC TRUST DOCTRINE AND THE MONO LAKE CASE
In California, state courts have established that the public trust doctrine can trump
both appropriative and riparian water rights. Like riparian rights, the public trust doctrine
has origins in ancient Roman law and came to the United States as a principle of English
common law.1 In its earliest forms, public trust doctrine asserted that the sovereign owns
all navigable waterways within state borders but manages them as trustee for benefit of
the people. Access rights are granted to citizens upon navigable waters for purposes of
transportation and fishing. Public uses of water resources were to be protected by the
state; the state, as trustee, could not legally grant exclusive rights to any single individual
or entity which would infringe on the public’s right to access and use the resource.
Although several important cases of the nineteenth and twentieth centuries made
reference to the public trust doctrine, it was not a prominent feature of water rights theory
until Joseph L. Sax introduced the concept into environmental and natural resources law
in his celebrated 1970 article in the Michigan Law Review. Professor Sax revived the
historical “public trust” doctrine by extending it from navigable waterways to natural
resources more generally, arguing that the public trust doctrine should be an effective
means of judicial intervention to protect and conserve the natural environment. His article
has been extensively analyzed and discussed in hundreds of law review articles since
1
Joseph L. Sax, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial
Intervention,” Michigan Law Review 68, no. 3 (January 1970): 471–566, 475.
37
1970, inspiring entire symposiums and issues of legal journals devoted to commentary on
and criticism of his article.2 A full examination of the public trust doctrine is beyond the
scope of this thesis, but there are two landmark cases that are very important for the
question of bottling municipal water resources: the US Supreme Court ruling on Illinois
Central Railroad Company v. Illinois in 1892, and the California Supreme Court ruling in
National Audubon Society vs. Superior Court of Alpine County from 1983.
In the early 1890s the Illinois Legislature granted title to the Illinois Central
Railroad for an enormous portion of valuable waterfront property on Lake Michigan
including sections of the Chicago harbor. After a subsequent election a newly constituted
Legislature sought to revoke the grant, and through appeals the case eventually landed in
the United States Supreme Court. The court upheld the Illinois Legislature’s revocation
of its grant to the Illinois Central Railroad, stating “The State can no more abdicate its
trust over property in which the whole people are interested, like navigable waters and
soils under them … than it can abdicate its police powers in the administration of
government and the preservation of the peace.”3 The court upheld the common law
principle of the public trust doctrine that prevents government from alienating the public
right to lands under navigable waters. The court struck down the notion that the state has
the ability to divest itself of authority over navigable waters for the gain of private
parties, and in fact tied this trustee responsibility to the very raison d’être of government.
Describing its importance as a legal foundation, Joseph Sax calls it simply “The lodestar
2
For example, Issues in Legal Scholarship, Issue 4, October 2003 on “Joseph Sax and the Public
Trust,” available at: http://www.bepress.com/ils/iss4/.
3
Illinois Central Railroad Company v. Illinois, 146 U.S. 387 (1892), 453-54.
38
in American public trust law.”4 Indeed, this case established one of the most important
tenets of the public trust doctrine for the purposes of this study: the state cannot abdicate
its responsibility to continually act on behalf of public interests in water resources, even
after transfer of ownership.
In National Audubon Society v. Superior Court of Alpine County, the California
judiciary for the first time considered the interplay and potential conflicts between the
public trust doctrine and the prior appropriation doctrine. The Court even cited Professor
Sax’s article as it applied the public trust doctrine to require the California State Water
Resources Control Board (SWRCB) to restrict the amount of water Los Angeles could
divert from tributaries of Mono Lake.5 It is difficult to overstate the importance of this
decision. Many legal scholars refer to it as one of the top ten environmental law cases in
United States history.6
In 1940 the California Division of Water Resources (a predecessor of today’s
California Water Resources Board) granted permission to the Los Angeles Department of
Water and Power (LADWP) to appropriate virtually the entire flow of four out of five
tributaries flowing into Mono Lake for municipal use and hydropower generation.
However, LADWP lacked adequate conveyance facilities at that time to divert and
transport the full appropriation. After receiving appropriative rights to the four streams,
LADWP built the necessary infrastructure to divert approximately half of the flow of the
four streams into the Owens Valley aqueduct.
Sax, “The Public Trust Doctrine,” 489.
National Audubon Society v. Superior Court of Alpine County, 658 P.2d (1983), 709, 719.
6
Michael C. Blumm and Thea Schwartz, "Mono Lake and the Evolving Public Trust in Western
Water," Arizona Law Review 37 (Fall 1995): 701.
4
5
39
In 1963, the City of Los Angeles authorized the construction of a second aqueduct
to transport the full allocation of water as promised by the 1940 permit. By the time the
new aqueduct was completed in 1970, LADWP was also faced with judicially mandated
limits on diversions from the Colorado River as a result of other litigation. Consequently,
between 1970 and 1980 LADWP increased the diversions from the Mono Lake
tributaries by approximately fifty percent, resulting in the diversion of almost all of the
flow of the four streams to which it had acquired appropriative rights. By 1979, these
four Mono Lake feeder streams had become very important to LADWP, supplying
almost twenty percent of Los Angeles’ urban water needs.
The diversions resulted in widespread ecological damage to the Mono Basin.
Between 1940 and 1970, LADWP diverted an average of 57,067 acre-feet of water per
year from the Mono Basin, resulting in the lake level dropping by an average of 1.1 feet
per year. But after the completion of the second aqueduct to increase flow, LADWP was
diverting 99,580 acre-feet on average per year from the Mono Basin. These diversions
lowered Mono Lake’s water level enough to reduce the lake’s entire surface area by
approximately one-third. All told, over the forty-year span between 1940 and 1980,
Mono Lake shrunk from a total area of eighty-five square miles to just over sixty square
miles. By 1983 when the National Audubon case was decided by the California Supreme
Court, lake levels had fallen nearly forty feet, from approximately 6,417 feet above mean
sea level to 6,378 feet above mean sea level.7
Mono Lake Committee, “Mono Lake Levels 1850–Present,”
http://www.monobasinresearch.org/data/levelyearly.htm. (accessed March 7, 2010).
7
40
In addition to the negative effects on the water volume of the lake, it is important
to note that lake water salinity significantly increased due to the LADWP diversions.
Mono Lake has no major outlet and is naturally very saline for an inland body of water.
While the amount of water was reduced by the diversion of the tributary streams, the
amount of salt in the lake basin was not, causing the salinity of the remaining water to
grow. Mono Lake was also discovered by wildlife biologists to be a major flyway stop
for migratory birds. The California Gull became endangered by the plummeting lake
level, as it uses one of two main islands in Mono Lake as a breeding ground. Because of
the drastic drop in lake level, eventually the water surface revealed a land bridge that
joined the island with the mainland shore, allowing predators access to the gulls’ nesting
area. Biologists discovered that coyotes had reached one of the popular breeding islands
by 1979 for the first known time, which of course caused a severe decline in breeding
nests. Therefore, an important question at stake in the case was whether or not LADWP
water rights had harmed not just the quantity of water in Mono Lake, but the quality as
well.
In 1979 the National Audubon Society led a coalition of interested parties
including four Mono Basin landowners to file a lawsuit seeking to enjoin the diversions,
and force LADWP to allow more water to flow into Mono Lake despite its legally
acquired right of prior appropriation. The plaintiffs argued that Mono Lake’s bed, waters,
and shores were all protected by the public trust doctrine. The court had to therefore
determine the relationship between the public trust doctrine and the appropriative water
rights system for the first time in California’s history.
41
As noted earlier, the doctrine of prior appropriation in water rights had dominated
the state’s water law since the gold rush. The court began its written decision by noting
that the public trust doctrine and the appropriative rights system represented a “clash of
values” and ideologies. The doctrine of prior appropriation was designed primarily to
serve the needs of economic development and land reclamation in a newly formed state
in an agrarian society consisting of a majority of rural citizens. However, in the Audubon
Society suit the court had to adjudicate conflicting interests involving needs from a very
different society in a new era, including the massive water needs of a world-class city.
Los Angeles’ water needs were for human domestic consumption and electricity
generation – two needs never anticipated by prior appropriation theory in nineteenth–
century California.
The California Supreme Court issued its decision on National Audubon Society v.
Alpine County Superior Court in 1983. Because the water law of California integrates
both the public trust doctrine and the appropriative rights system, the court mandated
reconsideration of LADWP’s water rights in Mono Basin. Importantly, the court
acknowledged the hybrid nature of the state’s water rights system, with the public trust
doctrine safeguarding important community values and access to community resources
and the prior appropriation doctrine helping to ensure the continued economic
development of the state.8
The court further ruled that Mono Lake is a scenic and ecological treasure of
national significance and the water rights enjoyed by LADWP were granted without any
8
National Audubon Society v. Superior Court of Alpine County, 658 P.2d (1983), 727-28.
42
consideration of the consequences to these public interests. Therefore the Court issued a
writ of mandate to essentially require the State Water Resources Control Board to
reconsider LADWP’s water rights in light of the public trust doctrine.9
The Water Board did not complete its decision on the matter until eleven years
after the California Supreme Court ruled. Eventually in 1994 the Water Board settled on
a lake level that would protect the public trust values of the lake while still allowing some
water to flow to Los Angeles.10 The Board eventually voted to require LADWP to
significantly reduce diversions until the Mono Lake water level rose sixteen feet, a level
that both sides predicted would take almost thirty years to reach.
The Evolving Public Trust Doctrine
The California Supreme Court stated that the “core of the public trust doctrine is
the state’s authority as sovereign to exercise a continuous supervision and control over
the navigable waters of the state and the lands underlying those waters.”11 This authority
is highly significant because the state maintains this duty of supervision even after
granting appropriative or riparian water rights to a user. In other words, the state has not
only a right but also a duty to revisit water rights in light of changing conditions. Another
significant factor in the ruling was that the court found that the State Water Resources
Control Board did not alone make water rights determinations. Rather, the state courts
9
National Audubon (1983), 709.
In the Matter of Amendment of the City of Los Angeles’ Water Right Licenses for Diversion of
Water From Streams Tributary to Mono Lake City of Los Angeles, Decision 1631. California State Water
Resources Control Board, September 28, 1994.
11
National Audubon (1983), 718.
10
43
had concurrent powers to undertake the reconsideration of water rights and judge them
against the standards of the public trust doctrine.
The court also pointed out that while the public trust doctrine’s origins had been
traditionally used only to protect the public interest in navigation, commerce, and fishing,
it had been already been extended to protect tideland and lakeshore waters in their natural
state for recreation, scientific study, and wildlife habitat in the 1971 Marks v. Whitney
decision.12 But in its National Audubon decision, the Court adapted the Marks v. Whitney
ruling to expand even further to flowing waters, declaring that the public trust doctrine
therefore protects the ecologically vital uses of waters subject to diversion. Finally, in
National Audubon the court extended the public trust doctrine to apply to non-navigable
waters. The four tributary streams in question were thereby protected to the extent that
appropriations of non-navigable waters harm navigable waters of Mono Lake itself.
However, the court in National Audubon did not decide that prior appropriation
rights were completely inferior whenever they were in conflict with public trust
principles. It noted that the continued economic growth of California and the ability of its
citizens to live in an arid environment require the state to have the power to allow water
to be diverted for private uses, and that appropriative rights could still be found superior
by the state in other cases:
In our opinion, both the public trust doctrine and the water rights system embody
important precepts which make the law more responsive to the diverse needs and
interests involved in the planning and allocation of water resources. To embrace
one system of thought and reject the other would lead to an unbalanced
structure.13
12
13
Marks v. Whitney, 491 P.2d 374 (Cal. 1971).
Marks v. Whitney (1971), 727.
44
The court indicated that California case law does not speak of protecting
possessory interests of water ownership. Instead, property rights in California water
allocations carry only the usufructuary right to use water subject to the ongoing interests
within the public trust.14 The state’s power to grant appropriative rights in water is
conditioned on the positive duty of the state to consider the public trust in water resource
allocations and to avoid or minimize harm to public trust interests to the extent feasible.
The key point that the court seems to value over all else is the flexibility of the
state to respond to changing water needs of its citizens. The previous water rights
doctrines of prior appropriation and riparian rights both presupposed goals other than
human consumption, but public trust theory reintroduces collective community needs for
the first time since California was settled by the United States. Quoting from the
decision:
[O]nce the state has approved an appropriation, the public trust imposes a duty of
continuing supervision over the taking and use of the appropriated water. In
exercising its sovereign power to allocate water resources in the public interest,
the state is not confined by past allocation decisions which may be incorrect in
light of current knowledge or inconsistent with current needs.15
It is important to note that the State Supreme Court already largely reshaped the
definition of “public trust needs” in the Mono Lake case. The needs of the public with
regard to water resources evolved from navigation and fishing in the 1800s and 1900s to
consumption and power needs in the twentieth century. Furthermore, the court
recognized that environmental and biological concerns had entered into the scope of the
14
15
Marks v. Whitney (1971), 724.
Marks v. Whitney (1971), 728 (emphasis added).
45
public trust in the late twentieth century. In Cadillac Desert Marc Reisner wrote that he
was stunned by how quickly California had changed its opinions about the ecological
value of water in the late twentieth century:
After damming the canyons and dewatering the rivers in order to spill wealth on
the land, we are going to take some of the water back, and put it where, one could
argue – as more and more Westerners now do – it really belongs. Law has been
the ignition, but a great, almost epochal shift in values has worked as the engine
of change.16
The public trust doctrine, applied more expansively, promises to be a useful tool
in the effort to better prioritize water uses. The public trust power implies the power not
only to reactively protect resources but also to also proactively respond to changing
societal conditions before crisis situations arise. Although the Mono Lake decision did
not specifically establish domestic consumption as the priority, surely it is not a stretch to
conclude that if the public trust extends to waters needed for the consumptive needs of
wildlife then it includes the interests of human consumption as well. It appears to be
sound legal reasoning as well that taxpayer investment in satisfying public consumptive
needs (via building the municipal water system) must be protected by the state. Water
rights scholar Joseph Sax admitted that “it is clear that the historical scope of public trust
law is quite narrow.…”17 Professor Sax further supports the potentially wide breadth
when he reviewed case law up until 1970: “Perhaps the most striking impression
produced by a review of public trust cases in various jurisdictions is the sense of
openness which the law provides; there is generally support for whatever decision a court
16
Marc Reisner, Cadillac Desert: The American West and Its Disappearing Water (New York:
Penguin Books, 1993), 513.
17
Sax, “The Public Trust,” 556.
46
might wish to adopt.”18 Finally Sax concluded, “Certainly the principle of the public trust
is broader than its traditional application indicates.”19
18
19
Sax, “The Public Trust,” 553.
Sax, “The Public Trust,” 557.
47
Chapter 4
BOTTLED MUNICIPAL WATER CASE STUDY: NESTLÉ IN SACRAMENTO
As mentioned earlier, there have been forms of bottled water for sale in America
for more than two centuries. However, only in the last decade has the bottled water
industry undergone unprecedented growth and become a stunningly profitable industry.
According to the Beverage Marketing Corporation, bottled water became the second
largest commercial beverage by volume in the United States in 2003, trailing only
carbonated soft drinks. In other words, Americans buy more bottled water than beer,
milk, or fruit juice.
From 2001 to 2006, bottled water consumption averaged ten percent annual
growth. Americans consumed 8.25 billion gallons of bottled water in 2006, equating to an
average of 27.6 gallons of bottled water per person per year. According to an industry
trade magazine report released in April of 2009, sales in the United States were more than
$4 billion in 2000; in 2008 total sales exceeded $11 billion, more than double in less than
a decade.1 Of the 8.8 billion gallons of bottled water consumed by Americans in 2007,
only 186 million gallons (just over 2 percent) were imported.2 The vast majority (over 95
1
John G. Rodwan, Jr., “Confronting Challenges: U.S. and International Bottled Water
Development and Statistics for 2008,” Bottled Water Reporter April 2009, International Bottled Water
Association, 13-15.
http://www.bottledwater.org/public/2008%20Market%20Report%20Findings%20reported%20in%20April
%202009.pdf.
2
International Bottled Water Association, “2006 Market Report Findings,” which provides a
summary from Beverage Marketing Corporation, “Bottled Water Continues as Number 2 in 2006.”
http://www.bottledwater.org/public/Stats_2006.doc. (accessed April 12, 2010).
48
percent in the last two years) of bottled water consumed in the United States is
domestically produced.
Sacramento Water Becomes Nestlé Waters North America
One of the largest companies in the world currently proposes to build a local
operation to bottle and resell the municipal water of the City of Sacramento. Nestlé
Waters North America, a subsidiary of the enormous Swiss multinational food
corporation Nestlé, is the largest producer of bottled water in the United States with a
2008 market share of 35 percent of all bottled water sales.3 Nestlé Waters North America
markets its bottled water under different brand names by U.S. region, including: “Poland
Spring” (Northeast), “Arrowhead” (West), “Deer Park” (Mid-Atlantic), “Ice Mountain”
(Midwest), “Ozarka” (Texas), and “Zephyrhills” (Florida), as well as the national brand
“Nestlé Pure Life.” 4
The project is currently suspended, but will be located in warehouse space at 8670
Younger Creek Drive located in the Florin Fruitridge Industrial Park in Sacramento
located near the corner of Fruitridge Road and Florin Perkins Road. Nestlé signed a lease
on an industrial building in July. The City of Sacramento and the Sacramento Area
Commerce and Trade Organization heralded the project, with the primary benefit being
the employment of about 40 people at the Sacramento plant.
3
Nestlé Waters North America:
http://www.nestle-watersna.com/Menu/AboutUs/Performance.htm.
4
Nestlé Waters North America: http://www.nestle-watersna.com/Menu/OurBrands.htm.
49
Nestlé estimates that its Sacramento plant would bottle about 50 million gallons
of water per year. Nestlé proposes to truck in about forty percent (20 of 50 million
gallons) of the water from outside the area to be bottled in this plant. But it would acquire
the other sixty percent directly from city of Sacramento pipes.5 Nestlé regional manager
Dave Palais estimated the plant is likely to draw 30 million gallons of water in 2010 from
the city water system. That includes water to be sold under Nestlé’s nationally-distributed
“Pure Life” brand, and Palais also said future consumption would depend on the market
for its product. But City of Sacramento Department of Utilities Director Marty
Hanneman wrote to the City Council that his department estimates the plant would
instead draw at least 80 million gallons a year from the municipal system, over 260
percent more than the Nestlé estimate.6 Either way, Nestlé would be one of the top ten
water users in Sacramento. In fact, although it is not clear, it appears that there is
currently no legal limit at all on the amount of water that the Nestlé plant would be
allowed to extract --other than, ironically, the capacity of the city’s pipes.
Nestlé has attempted, unsuccessfully thus far, to establish a bottling plant in the
Northern California town of McCloud for the last six years. Before plans were stalled
under pressure from the public and California Attorney General Edmund G. Brown, Jr.,
Nestlé planned to pump 520 million gallons of spring water a year and unlimited
groundwater from the aquifers of McCloud. The size of the proposed McCloud bottling
plant would have made it one of the largest in the United States. The California Attorney
5
Jim Downing and Ryan Lillis, “Sacramento Nestlé Waters Bottling Plant Draws Fire.” The
Sacramento Bee, October 5, 2009, p. 1B, http://www.sacbee.com/2009/10/05/2230936/sacramento-nestlewaters-bottling.html.
6
The Department of Utilities estimated water usage at 215 to 320 thousand gallons of water per
day, which could actually be as much as 116 million gallons per year.
50
General threatened legal action against Nestle in 2008 over inadequate environmental
review of its proposed bottling operation, based on fears that the McCloud operation
might permanently damage the local watershed.
Even if Nestlé only bottles 50 million gallons of water a year in Sacramento, that
would result in the creation of 800 million water bottles annually. The production of that
many bottles creates an enormous amount of non-biodegradable waste which frequently
ends up in local waterways. These are the same issues that the Attorney General raised in
a letter to Nestlé demanding that it perform an Environmental Impact Report for its
McCloud project.7 It is interesting to note that the City of Sacramento does not plan to
require Nestlé to perform an Environmental Impact Report for the Sacramento site.
Nestlé’s proposed Sacramento operation to bottle municipal water would certainly
not be unique in California. Another example of the resale of municipal water under
examination in this thesis has already been underway for over seven years in Merced.
The City of Merced has been selling its tap water since 2002 to a water bottling plant,
which then sells that water at rates far above what it costs the plant to buy it from the city.
The City of Merced sells 50,000 gallons a day to Safeway Incorporated, which bottles
and sells the water under its “Refreshe” brand label. Safeway’s water bottling plant in
Merced is one of the top five commercial water users in the city in terms of volume.
Safeway only pays the City of Merced about $1,000 per month for over one million
Gareth Lacy, “Attorney General Brown Warns Nestlé of Legal Challenge to Water Bottling
Plant,” press release, July 29, 2008. http://ag.ca.gov/newsalerts/release.php?id=1591&. (accessed April 12,
2010).
7
51
gallons of water. The retail value of a million gallons of water on their store shelves is
approximately $3 million.8
Prospects for Legal Action on Behalf of the Public Trust
As shown in Chapter Three, the California Supreme Court ruled in the Mono
Lake case that the state has an obligation to protect public interest “as far as feasible,”
even if this means reconsidering past water allocation decisions. In the Mono case, the
City of Los Angeles at least had needs that could also legitimately be argued to be in the
public interest, such as supplying electricity to homes and water to residents and
businesses. But a legitimate public interest in the bottling of water that already belongs to
the public is difficult to imagine. Joseph Sax may have given a hint about the possible
violation of public trust doctrine by bottled municipal water in his seminal article: “When
a state holds a resource which is available for the free use of the general public, a court
will look with considerable skepticism upon any governmental conduct which is
calculated either to reallocate that resource to more restricted uses or to subject public
uses to the self-interest of private parties.”9 Sacramento taxpayers have at least as much
of a public interest right in protecting the future viability in their municipal water supply,
as the citizens and the gulls of the Mono Lake basin do to their supply.
Sax also wrote that “Public trust problems … occur in a wide range of situations
in which diffuse public interests need protection against tightly organized groups with
8
Jonah Owen-Lamb, “Tap Water Worries Have You Buying Bottled? Safeway Loves You,” The
Merced Sun-Star, June 2, 2009.
9
Sax, “The Public Trust Doctrine,” 490.
52
clear and immediate goals.”10 Such is the case with the bottling and resale of municipal
water. The public’s interest in general health and oversight of its collective investment in
the water system is highly diffuse. No single citizen or even a group of citizens in
Sacramento can be held responsible for the protection of the municipal water system
despite how much money they have invested and the vital interest everyone has in good
public health resulting from adequate domestic water supplies. Nor can city or even
county budgets ever compare with the legal and marketing resources that a multi-national
corporation like Nestlé has. Only the principles of the public trust doctrine particularly as
articulated by the Mono Lake decision contain the potential to protect the public’s
profound interest in its municipal water systems from the threat of privatization.
It is not clear that the City of Sacramento has the right to re-allocate water out of
the Sacramento area watershed. The City of Sacramento may be in violation of California
water rights theory by re-allocating this water without the legal authority to do so. Recall
from the Mono Lake precedent that the State retains its continuing responsibility to look
after the public interests, even after it has granted usufructuary rights to another entity.
The water in the municipal system was already allocated by the State SWRCB once, for
the use of Sacramento citizens. The State did not grant title to the water to Sacramento;
the city cannot permanently transfer or sell the title to the water in question to a private
corporation. The City only has usufructuary rights to the water for civic reasons, such as
supplying citizens with a water source for domestic needs. A legal argument can be
mounted that the City of Sacramento would be passing possessory rights, or in effect
10
Sax, “The Public Trust Doctrine,” 556.
53
giving away the permanent interest in this water, by allowing it to be captured and
trucked into other cities, states, or jurisdictions.
The City is supposed to be a manager of water for citizen users. The public
interest demands that water through public pipes must stay in the local watershed. For
most other water users, even very large business firms that utilize huge volumes of water
as an industrial input, allocated water is eventually returned to the local sewer system and
waste treatment plant.11 It is a key point that the water in question in the Sacramento
Nestlé case would usually be shipped great distances outside of the local watershed.
Therefore the argument of this thesis is not entirely against Nestlé’s Sacramento
bottling plant. If Nestlé proposed only to acquire water elsewhere in California through a
valid appropriative water right and merely bottle it here, then that would be much more
consistent with California water rights theory. It is the municipal water that is the crux of
the argument in this thesis. The Cities of Merced and Sacramento hold the usufructuary
right from the state only on condition of beneficial and reasonable use, which in short is
feeding a city. Surely no public interest is upheld by allowing the water to be diverted all
over the country, or indeed other countries in some cases, for pennies on the dollar of the
water’s true worth.
According to Michael Blumm and Thea Schwartz, “Under Mono Lake, the state
water board shares concurrent jurisdiction over public trust issues. Moreover, the board
has an affirmative fiduciary duty to consider public trust values ‘and to preserve, so far as
11
It may be severely tainted and be very expensive to treat of course, but that is another issue.
54
consistent with the public interest, the uses protected by the trust.’”12 SWRCB revised
the terms and conditions of LADWP’s water right licenses to divert water for municipal
and power generation from four tributary streams of Mono Lake. Therefore, this thesis
suggests that a court case built on the legal foundation of public trust doctrine would
potentially settle crucial questions of water allocation equity that are currently being
ignored, such as the protection of the public’s financial investment in municipal water.
It is not clear how the court might rule in this case. The Coca-Cola bottling plant
in Sacramento draws about 55 million gallons of water a year. A line could potentially be
drawn separating these uses of municipal water, arguing that Coca-Cola’s water is an
input for production of a different product. One obvious and unavoidable difference is
that everyone agrees that what is for sale is still water. It is not a sugary beverage, or even
iced tea. It is merely water, fundamentally the same as it was when it was taken from City
of Merced or Sacramento pipes.
There are many questions to be potentially settled by a court case similar to the
Mono Lake effort, but one in which the public trust interest in municipal water is
addressed. Domestic water users in California are facing a growing number of
restrictions on their water use, such as potential fines for over watering home lawns. As
mentioned earlier, the amount of water that Nestlé can draw from the City of Sacramento
appears to be virtually unlimited. Currently, corporate bottlers are not even required to
disclose to the public the source of their bottled water products, making public oversight
very difficult. AB 301, currently languishing in the California Legislature, would at least
12
Michael C. Blumm and Thea Schwartz, "Mono Lake and the Evolving Public Trust in Western
Water," Arizona Law Review 37 (Fall 1995): 728; italics added for emphasis.
55
require for the first time the source of bottled water to appear on the label.13 Even without
restrictions on water volume, a new fee structure should be mandated which more
equitably reimburses municipalities for the benefits of their water system investments.
Water bottling can cause significant harm to local groundwater supplies.
Groundwater over-extraction affects both the quantity and quality of the local aquifer.
Lowering the underground water table, whether temporary or permanent, can increase the
concentration of contaminants, for example salt water intrusion into the freshwater
aquifer. This often affects other groundwater users running wells in the same area. So if
the operation is shown to be damaging local water tables, and thereby threatening the
whole public interest in municipal piped water, then the case would become much more
similar to the Mono Lake ruling. Other states, for example Michigan, have shown that
corporate water bottling operations do damage local aquifers. The Michigan Citizens for
Water Conservation sued Nestlé, and after reviewing the damage done to the watershed
and surrounding ecosystem by excessive withdrawals, a Mecosta County judge ordered
Nestlé to cease pumping immediately.14 Restrictions could be placed by the SWRCB or
the courts, or both under their concurrent jurisdiction, to mandate that bottled water from
municipal sources must be sold only within the boundaries of the local water district.
13
Current text of this 2009-2010 session bill available at: http://www.leginfo.ca.gov/cgibin/postquery?bill_number=ab_301&sess=CUR&house=B&author=fuentes
14
Jonah Owen-Lamb, “Tap Water Worries?” June 2, 2009.
56
The Bottling of Municipal Water Violates All California Water Rights Doctrines
The other water doctrines of California examined in Chapter Two, riparian rights
and prior appropriation, provide much in the way of justification for the large-scale
private bottling and resale of municipal water. Because Nestlé is pumping the municipal
water for bottling and eventual sale outside of the source watershed, Nestlé’s water use
would appear to violate riparian and public interest both. In the case of large-scale
bottling of water by multi-national corporations such as Nestlé, water is decidedly more
mobile than ever before, no longer simply flowing downhill but now trucked, flown, and
shipped to faraway places.
Regarding “reasonable and beneficial use” of the prior appropriation doctrine
established in California, there has historically been an extremely low standard of what is
considered “reasonable” and “beneficial” in regards to water uses. Nestlé North
American and other corporate bottlers can likely win that argument, though it does not
appear to have been thoroughly tested in court yet. However, the meaning of “beneficial
use” was historically intended for macroeconomic development purposes as was shown
in Chapter Two. This argument might fare better when applied to the aforementioned
case in McCloud, California, where Nestlé is hoping to acquire undeveloped spring water
by doing the extraction work itself. However, simply bottling municipal water clearly
fails even this minimal test. Furthermore, this water has already been appropriated to the
public for municipal use and was already paid for through myriad forms of local taxation,
bonds, and the like. Local officials are misappropriating the water again to the private
corporation without a valid right – at this volume, the State should do that and the State,
57
as shown previously, has other responsibilities in regards to water allocation, including
the protection of public interests.
Even if bottled water containers were to have no municipal water in them and
consumers simply purchased empty bottles, the negative environmental impact of the
bottled water industry might still be a significant public interest concern. The most
tangible environmental impacts from the bottled water industry relate to the plastic
bottles themselves, which are generally thrown out rather than recycled. At least 86
percent of plastic water bottles used in the United States become garbage or litter.15 They
release hazardous toxins into air and water when burned in waste incinerators. Plastic
bottle factories create and release toxic wastes, including benzine, xylene, and oxides of
ethylene into the environment, frequently polluting waterways and further reducing
supply.16
Regarding Nestlé and other corporate claims that the municipal water is improved
through so-called “re-mineralization” or extra filtration of various types, several studies
of bottled water quality have revealed no significant reason to filter or disinfect municipal
tap water in many US cities, but especially Sacramento. The City of Sacramento
Department of Utilities drinking water is ranked the number one city in California for Big
Cities Water Quality, according to a recent report released by the Environmental
Emily Arnold and Janet Larsen, “Bottled Water: Pouring Resources Down the Drain,” Earth
Policy Institute, February 2, 2006: http://www.earthpolicy.org/Updates/2006/Update51.htm.
16
Tony Clarke, Inside the Bottle: An Exposé of the Bottled Water Industry (Ottawa: The Polaris
Institute, 2005), 19.
15
58
Working Group. The City of Sacramento municipal water supply ranked eighteenth in the
nation in terms of quality.17
Furthermore, studies also reveal no health benefits from bottled water. The
National Resources Defense Council tested a wide array of bottled water and found the
majority contained industrial chemicals and other contaminants that were above levels set
by the state and the industry.18 The study included Safeway-brand bottled waters whose
labels claimed the contents had gone through reverse osmosis filtration like the purified
water in Safeway’s Merced plant.19 In California, the Environmental Working Group
tested for hundreds of different chemicals in ten major brands of California bottled water.
Bottled water was found to contain numerous pollutants, including disinfection
byproducts, fertilizer residue, and pain medication.20 Toxic and carcinogenic components
of the plastic bottles, such as the phthalates that are often used in production to make the
containers more flexible, can contaminate their contents during transportation or storage.
Environmental Working Group, “Big City Water Ratings.” National Drinking Water Database:
http://www.ewg.org/tap-water/rating-big-city-water
18
National Resources Defense Council, “Bottled Water: Pure Drink or Pure Hype?”
http://www.nrdc.org/Water/Drinking/bw/exesum.asp
19
Owen-Lamb, “Buying Bottled? Safeway Loves You,” June 2, 2009
20
Olga Naidenko, Nneka Leiba, Renee Sharp, and Jane Houlihan, “Bottled Water Quality
Investigation: 10 Major Brands, 38 Pollutants,” Environmental Working Group:
http://www.ewg.org/reports/BottledWater/Bottled-Water-Quality-Investigation
17
59
Chapter 5
CONCLUSION
Imagine a person purchases a single ticket to attend a performance of the Santa
Monica Symphony, a premier cultural asset since its 1945 debut and according to many
critics one of the leading community orchestras in the country. The Symphony consists of
some of the best Los Angeles-area musicians. It is funded by public funds including
grants from the National Endowment for the Arts, the American Reinvestment and
Recovery Act, the Los Angeles County Music and Performing Arts Commission, the City
of Santa Monica, and the County of Los Angeles.1 Next imagine the hypothetical person
captures this performance with a video camera and sound equipment, packages it in a
DVD case, affixes his own label upon it and sells it in other cities across the nation, or
perhaps other nations, at a stunning three or four-digit profit. Perhaps this person finetunes the sound quality on his recording, but many people disagree that the recording can
be considered better than the original performance. All the investment in the local arts
community, the training of the local musicians, the infrastructure that delivers the
performance, would be considered stolen from Santa Monica by most people in this
example. This is an apt analogy to the corporate bottling of municipal water.
California experienced three consecutive drought years and up until March, 2010,
was facing a fourth. In February of 2008 Governor Arnold Schwarzenegger wrote to
California State Senate leadership in regards to a potential solution to problems in the
1
Santa Monica Symphony Association: http://www.smsymphony.org/info.html.
60
Sacramento-San Joaquin Delta. His plan prominently included a 20 percent reduction in
per capita water use statewide by 2020.2 If the citizens of California continue to allow
the privatization of scarce freshwater supplies, it will exacerbate the coming difficult
decisions we will have to make as a result of the limits that nature and past human
activity have placed upon us. It is not too late to use collective ingenuity to avert the
looming water crisis, but allowing thoughtless commodification of water reduces the
capacity to deal with future crises in a humane way. Negligence of the public trust could
allow the entrenchment of a powerful elite that will determine California’s water future,
where water goes to whomever can afford it and it will be withheld from those who
cannot pay. The consequences would be staggering in terms of human life.
Fortunately, there are hopeful signs. After increasing rapidly for over a decade,
bottled water consumption in the United States suddenly stopped growing and instead
shrank by 1 percent in 2008.3 Marc Reisner wrote in the mid-1990s that “It’s only
recently – mainly in the years since this book first appeared – that Westerners have begun
to ask where their water goes, what it costs, and what it earns. That inquiry may produce
the most revolutionary results since the Reclamation Act.”4
If California water policy has maintained any consistent theme over the last 150
years, it has to be the recognition that water’s fluidity and migratory nature, as well as its
California State Water Resources Control Board, “20x2020 Agency Team on Water
Conservation.” http://www.swrcb.ca.gov/water_issues/hot_topics/20x2020/index.shtml.
3
John G. Rodwan, Jr. “Confronting Challenges: U.S. and International Bottled Water
Development and Statistics for 2008,” Bottled Water Reporter April 2009, International Bottled Water
Association, 14.
http://www.bottledwater.org/public/2008%20Market%20Report%20Findings%20reported%20in%20April
%202009.pdf.
4
Marc Reisner, Cadillac Desert: The American West and Its Disappearing Water (New York:
Penguin Books, 1993), 514. (emphasis added)
2
61
indispensability to societal growth, compels the rejection of the absolute and unfettered
ownership of private property model and favors a use model in which interested parties
enjoy only a usufructuary right over water diversions. As water conflicts become more
frequent and intense in the future, California must expand the protection of the public
trust upon this foundation of usufructuary rights in order to democratically resolve
allocation decisions.
Bottled water could be found to be in violation of all systems of water rights in
California. Bottled water appears to serve no public trust interest; it is not a production
input, does not serve societal goals of economic development, or agricultural
development. Instead it appears to be a direct example of injustice decried by the fiercest
critics of modern water privatization as the practice of forcing users to pay multinational
companies for water from sources from which they had been drawing water before the
company took over. Legal history reviewed in this thesis has demonstrated that the
potential threat posed specifically by corporations granted water rights by the government
can be neutralized by judicial invocation of the use requirement to preserve the prior
rights of those who developed the water resources.
Whether water should be bought and sold, or imported and exported across
political boundaries, is an important question that raises issues ranging from human rights
obligations and environmental ethics to economic theory. But meanwhile water markets
are now a reality in many places in the world, including California. This thesis has
accepted many aspects of water commodification as a fait accompli to a large extent and
in some cases as desirable. Commodification allows more accurate pricing, and many
62
aspects about pricing are positive, such as providing for fairer penalties and civil
judgments against polluters. Proper pricing, combined with metering, encourages
conservation. While scholars and activists from across the political spectrum debate water
as a human right or a commodity, bottling water already allocated to municipalities and
purchased by taxpayers is clearly a violation of existing California water rights theory.
Water packed for sale in a bottle and sitting on the store shelf is obviously a commodity.
If the bottling of municipal water is found by the courts to be appropriate and legal, then
surely a proper price should be paid for the true value of the water. In a time of
consistent budget crises and under-funding of public agencies in California, charging
corporate water bottlers a price more commensurate with the retail value of the water
could allow cities and towns need to make expensive repairs and upgrades to rejuvenate
their vital water infrastructure.
This thesis has not argued against bottled water in all forms. It has recognized
that water has been bottled for as long as there have been bottles, and that making water
more portable for human consumption is a valuable service. However, that does not
imply that it has to be bottled by a corporation at a tremendous increase in price instead
of bottled at home for free (or rather, the water already paid for by California citizens).
Nor does this mean that a corporate entity should be allowed to divert water from a public
entity’s legal allocation. This thesis has attempted to draw attention to a valid set of
concerns about bottled water in addition to environmental, which are social and political.
It is based on a view that water is a public good that should not be resold for profit
63
without first properly remunerating the prior appropriators, in the form of the local
municipal water district, for the accurate cost.
This thesis recognizes that no court has yet found that bottled water violates
public trust doctrine, but it is also a fact that there has yet to be a court case where this
question has been directly addressed. One of the purposes of this thesis has been to
elucidate that significant precedent exists for California courts to exercise their authority
over water rights in the service of the public trust doctrine. To quote Michael Blumm
and Thea Schwartz: “The public trust doctrine, as interpreted by the Mono Lake court,
means that the state has the ability and responsibility to supervise water uses according to
both yesterday’s traditions and today’s values.”5 Perhaps more than any other resource,
water has an inherently public essence due to its very nature. Essential to the life of the
individual as well as the general development of the community, water is a vital common
resource. Government intervention to protect its quality and quantity and to ensure its
most socially beneficial use is appropriate and crucial in a future of scarcity.
5
Michael C. Blumm and Thea Schwartz, "Mono Lake and the Evolving Public Trust in Western
Water." Issues in Legal Scholarship: Joseph Sax and the Public Trust. Arizona Law Review 37 (Fall 1995):
701.
64
BIBLIOGRAPHY
Arnold, Emily, and Janet Larson. Bottled Water: Pouring Resources Down the Drain.
Washington DC: Earth Policy Institute, February 2, 2006.
http://www.earthpolicy.org/Updates/2006/Update51.htm (accessed May 9, 2008).
Agarwal, A., J. Kimondo, G. Moreso, and J. Tinker. Water, Sanitation and Health – for
All? Prospects for the International Drinking Water Supply and Sanitation
Decade 1981-1990. New York: UN Environmental Program, 1981.
Barlow, Maude. Blue Covenant: The Global Water Crisis and the Coming Battle for the
Right to Water. New York: The New Press, 2008.
Barlow, Maude, and Tony Clarke. “Who Owns Water?” The Nation, September 2002.
http://www.thenation.com/doc/20020902/barlow (accessed October 29, 2004).
____________. Blue Gold: The Fight to Stop the Corporate Theft of the World’s Water.
New York: The New Press, 2005.
Blumm, Michael C., and Thea Schwartz. “Mono Lake and the Evolving Public Trust in
Western Water.” Arizona Law Review 37, (Fall 1995): 701-738.
Budds, Jessica, and Gordon McGranahan. “Are the Debates on Water Privatization
Missing the Point? Experiences from Africa, Asia and Latin America.”
Environment & Urbanization 15, no. 2 (2003): 87-113.
California. Department of Justice. Office of the Attorney General. “Attorney General
Brown Warns Nestle of Legal Challenge to Water Bottling Plant.” Press release
by Gareth Lacy, July 29, 2008.
http://ag.ca.gov/newsalerts/release.php?id=1591&. (accessed April 12, 2010).
California. Department of Water Resources. Progress on Incorporating Climate Change
into Planning and Management of California’s Water Resources, Technical
Memorandum Report. Sacramento: California Department of Water Resources,
July 2006.
http://baydeltaoffice.water.ca.gov/climatechange/DWRClimateChangeJuly06.pdf.
(accessed February 14, 2010).
California. State Water Resources Control Board. “20x2020 Agency Team on Water
Conservation.”
http://www.swrcb.ca.gov/water_issues/hot_topics/20x2020/index.shtml.
(accessed April 12, 2010).
65
Camdessus, Michel. Financing Water for All. Report of the World Panel on Financing
Water Infrastructure. World Water Council and Global Water Partnership, 2003.
www.worldwatercouncil.org/fileadmin/.../CamdessusReport.pdf (accessed April
30, 2010).
Cech, Thomas V. Principles of Water Resources: History, Development, Management,
and Policy. 3d ed. Hoboken: John Wiley & Sons Inc., 2003.
Clarke, Tony. Inside the Bottle: An Exposé of the Bottled Water Industry. Ottawa: The
Polaris Institute, 2005.
Downing, Jim and Ryan Lillis. “Sacramento Nestlé Waters Bottling Plant Draws Fire.”
The Sacramento Bee, October 5, 2009, p. 1B.
http://www.sacbee.com/2009/10/05/2230936/sacramento-nestle-watersbottling.html.
Didion, Joan. The White Album. New York: Farrar Straus Giroux, 1979.
Donahue, John M., and Barbara Rose Johnston, eds. Water, Culture, & Power: Local
Struggles in a Global Context. Washington DC: Island Press, 1998.
Environmental Working Group, “Big City Water Ratings.” National Drinking Water
Database: http://www.ewg.org/tap-water/rating-big-city-water. (accessed March
23, 2010).
Finger, Matthias, and Jeremy Allouche. Water Privatisation: Trans-National
Corporations and the Re-regulation of the Water Industry. New York: Spon
Press, 2002.
Food and Water Watch, “California Water,”
http://www.foodandwaterwatch.org/water/your-water/california/ (accessed
February 10, 2010).
Forero, Juan. “Who Will Bring Water to the Bolivian Poor?” The New York Times,
December 15, 2005. http://www.nytimes.com/2005/12/15/business/15water.html.
Gibler, John. Water Heist: How Corporations Are Cashing In on California’s Water.
Oakland: Public Citizen, 2003.
http://www.citizen.org/documents/Water_Heist_lo-res.pdf. (accessed February
25, 2004).
Glennon, Robert. Unquenchable: America’s Water Crisis and What to Do About It.
Washington DC: Island Press, 2009.
66
Godoy, Julio. “Water and Power: The French Connection.” The Water Barons Project.
Washington DC: The Center for Public Integrity, February 4, 2003.
http://projects.publicintegrity.org/water/report.aspx?aid=47. (accessed February
25, 2004).
Grubel, James. “Billions Face Water Shortages, Crisis Looms.” Reuters, August 16,
2006.
Haddad, Brent M. Rivers of Gold: Designing Markets to Allocate Water in California.
Washington DC: Island Press, 2000.
Hawthorne, Michael. “Leasing Water System Could Be a Risky Move for Chicago.” The
Chicago Tribune, November 16, 2009.
http://archives.chicagotribune.com/2009/nov/16/business/chi-chicago-water-16nov16.
Hobbs, Erika. “Low Rates, Needed Repairs Lure ‘Big Water’ to Uncle Sam’s Plumbing.”
The Water Barons Project. Washington DC: The Center for Public Integrity,
February 12, 2003. http://projects.publicintegrity.org/water/report.aspx?aid=54.
Hundley, Norris, Jr. The Great Thirst—Californians and Water: A History. Berkeley:
University of California Press, 2001.
International Bottled Water Association, “2006 Market Report Findings,” which provides
a summary from Beverage Marketing Corporation, “Bottled Water Continues as
Number 2 in 2006.” http://www.bottledwater.org/public/Stats_2006.doc.
(accessed April 12, 2010).
Kaufman, Deborah, and Alan Snitow. Thirst. DVD. Oley, Pennsylvania: Bullfrog Films,
2004.
Marsden, Bill. “Cholera and the Age of the Water Barons.” The Water Barons Project.
Washington DC: The Center for Public Integrity, February 3, 2003.
http://projects.publicintegrity.org/water/report.aspx?aid=44.
Mathiason, Nick. “Turning Off the Tap for Poor.” The Observer, August 18, 2002.
http://www.guardian.co.uk/business/2002/aug/18/theobserver.observerbusiness10.
McWilliams, Carey. California: The Great Exception. Berkeley: University of California
Press, 1949.
Mono Lake Committee. “Mono Lake Levels 1850–Present.”
http://www.monobasinresearch.org/data/levelyearly.htm. (accessed March 7,
2010).
67
Mowry, George E. The California Progressives. Chicago: Quadrangle Books, 1951.
Naidenko, Olga, Nneka Leiba, Renee Sharp, and Jane Houlihan. “Bottled Water Quality
Investigation: 10 Major Brands, 38 Pollutants.” Environmental Working Group:
http://www.ewg.org/reports/BottledWater/Bottled-Water-Quality-Investigation.
(accessed March 15, 2010).
Natural Resources Defense Council. “Alfalfa: The Thirstiest Crop.” June 7, 2001.
http://www.nrdc.org/water/conservation/fcawater.asp (accessed November 18,
2004).
National Resources Defense Council. “Bottled Water: Pure Drink or Pure Hype?”
http://www.nrdc.org/Water/Drinking/bw/exesum.asp (accessed December 14,
2009).
Nestlé Waters North America. Website. http://www.nestle-watersna.com/index.
(accessed April 12, 2010).
Olivera, Oscar, and Tom Lewis. Cochabamba! Water War in Bolivia. Cambridge: South
End Press, 2004.
Owen-Lamb, Jonah. “Tap Water Worries Have You Buying Bottled? Safeway Loves
You.” The Merced Sun-Star, June 2, 2009.
Pauw, Jacques. “Metered to Death.” The Water Barons Project. Washington DC: The
Center for Public Integrity, February 5, 2003.
http://projects.publicintegrity.org/water/report.aspx?aid=49.
Pearce, Fred. When the Rivers Run Dry: Water – The Defining Crisis of the Twenty-first
Century. Boston: Beacon Press, 2007.
Petrella, Riccardo. The Water Manifesto: Arguments for a World Water Contract. New
York: St. Martin’s Press, 2001.
Pincetl, Stephanie S. Transforming California: A Political History of Land Use and
Development. Baltimore: Johns Hopkins University Press, 1999.
Pisani, Donald J. Water, Land, & Law in the West: The Limits of Public Policy, 18501920. Lawrence: University Press of Kansas, 1996.
Polanyi, Karl. The Great Transformation: The Political and Economic Origins of Our
Time. Second Edition. Boston: Beacon Press, 1957.
68
Postel, Sandra. “Growing More Food with Less Water.” Scientific American 284, no. 2
(February 2001): 46-50.
Reisner, Marc. Cadillac Desert: The American West and Its Disappearing Water. New
York: Penguin Books, 1993.
Rodwan, John G., Jr. “Confronting Challenges: U.S. and International Bottled Water
Development and Statistics for 2008.” Bottled Water Reporter April 2009,
International Bottled Water Association.
http://www.bottledwater.org/public/2008%20Market%20Report%20Findings%20
reported%20in%20April%202009.pdf. (accessed March 1, 2010).
Russell, Ben, and Nigel Morris. “Armed Forces Are Put on Standby to Tackle Threat of
Wars Over Water.” The Independent, February 28, 2006.
Santa Monica Symphony Association. “Santa Monica Symphony History.”
http://www.smsymphony.org/info.html. (accessed March 27, 2010).
Sax, Joseph L. “The Public Trust Doctrine in Natural Resources Law: Effective Judicial
Intervention.” Michigan Law Review 68, no. 3 (January 1970): 471-566.
Schipke, Alfred. Why Do Governments Divest? The Macroeconomics of Privatization.
Berlin: Springer-Verlag Books, 2000.
Schorr, David B. “The First Water-Privatization Debate: Colorado Water Corporations in
the Gilded Age.” Ecology Law Quarterly 33, no. 2 (2006): 313-361.
Sclar, Elliott D. You Don’t Always Get What You Pay For: The Economics of
Privatization. Ithaca: Cornell University Press, 2000.
Shiva, Vandana. Water Wars: Privatization, Pollution, and Profit. Cambridge: South End
Press, 2002.
Slattery, Kathleen. “What Went Wrong? Lessons from Cochabamba, Manila, Buenos
Aires, and Atlanta.” Annual Privatization Report, 2003. Reason Foundation.
www.rppi.org/apr2003/whatwentwrong.html (accessed April 4, 2004).
United Nations Educational, Scientific and Cultural Organization. International Year of
Freshwater 2003. New York: United Nations.
http://www.unesco.org/water/iyfw2/water_use.shtml.
United States Environmental Protection Agency Office of Water, The Clean Water and
Drinking Water Infrastructure Gap Analysis. Washington DC: September 2002.
EPA-816-R-02-020. http://www.epa.gov/owm/gapreport.pdf.
69
University of California, Berkeley. “Liquid Gold—California’s Water: An Exhibit by the
Water Resources Center Archives.” Berkeley: University of California, Berkeley
Library, 1997. http://www.lib.berkeley.edu/WRCA/exhibit.html (accessed April
12, 2010).
Vidal, John. “Cost of Water Shortage: Civil Unrest, Mass Migration and Economic
Collapse.” The Guardian, August 17, 2006, p. 25.
Ward, Diane Raines. Water Wars: Drought, Flood, Folly, and the Politics of Thirst. New
York: Riverhead Books, 2002.
Public Citizen. Water Privatization Fiascos: Broken Promises and Social Turmoil.
Washington DC: Public Citizen, 2003.
http://www.citizen.org/documents/privatizationfiascos.pdf.
Watkins, Kevin, and Anders Berntell. “How to Avoid War Over Water.” The
International Herald Tribune, August 23, 2006.
http://www.nytimes.com/2006/08/23/opinion/23iht-edwatkins.2570814.html.
Wehr, Kevin. America’s Fight Over Water: The Environmental and Political Effects of
Large-Scale Water Systems. New York: Routledge, 2004.
Weiser, Matt. “Climate Report Sees a Thirsty Future.” The Sacramento Bee, July 11,
2006, p. A1.
World Bank. Water Resources Sector Strategy: Strategic Directions for World Bank
Engagement. Washington DC: World Bank, 2004.
World Health Organization. The Global Water Supply and Sanitation Assessment.
Geneva: United Nations, 2000.
World Health Organization. The Right to Water. Health and Human Rights Publication
Series, no. 3. Geneva: United Nations, 2003.
World Resources Institute. “Can the Private Sector Deliver Public Goods?” World
Resources 2002-2004: Decisions for the Earth: Balance, Voice, and Power,
United Nations Development Programme, United Nations Environment
Programme, World Bank, World Resources Institute: 2003.
http://pubs.wri.org/pubs_content_text.cfm?ContentID=1750.
World Wildlife Fund. Living Planet Report 2006. Geneva: World Wildlife Fund
International, London: Zoological Society of London; and Oakland: Global
Footprint Network. http://assets.panda.org/downloads/living_planet_report.pdf.
(accessed October 4, 2008).
70
Worster, Donald. Rivers of Empire: Water, Aridity, and the Growth of the American
West. New York: Pantheon Books, 1985.