Daylighting La Bievre River in Paris, France

By VVVCFFrance [CC BY-SA 4.0 (https://creativecommons.org/licenses/by-sa/4.0)], from Wikimedia Commons

Earth Law Center partners with Notre Affaire à Tous to seek rights recognition to continue the daylighting of La Bievre River in Paris, France.

Meet the Bievre River

Starting thirty-three kilometers (20 miles) away from Paris in the Yvelines and feeding into the Seine at Gare d’Austerlitz, the Bièvre once flourished as a vibrant river and has supported humans since the Neolithic period. The river was named after the beavers that lived on its banks (derived from the Gaul bèbros).[i]

Since the 11th century, the River Bièvre and its catchment area has been very heavily modified. Numerous mills were built along its course, which led to the straightening of the river. Increasing urbanisation and the establishment of industrial and craft activities along the Bièvre transformed it into an "open sewer". Starting in the 18th century, the river was gradually culverted. Today, the Bièvre forms a rainwater system. It has become an alternative means of transportation for wastewater when the sewers are out of action.[ii]

Centuries of overuse and abuse, from the businesses that depended on the Bièvre, polluted it so badly that it became a health hazard for Parisians. By 1912, the Parisian half of the river was completely concealed. Today it is a sad part of the Parisian sewage systems.[iii]

"Earth Law Center is proud to work with Valerie Cabanes, Notre Affaire à Tous (NAAT), and other leaders in France to daylight the Bievre River in enforcement of its right to be free" says Grant Wilson, Directing Attorney of Earth Law Center. "We also hope that daylighting the Bievre will inspire other communities to restore their entombed rivers," he adds.

Daylighting Hidden Rivers

Many towns and cities around the world have unseen flows of water which snake underneath concrete streets: ‘lost’ rivers which have been rerouted into sewers, drains and culverts as urban areas have grown.[iv]

River restoration – the restoration of water flows and aquatic life to a largely ‘natural’ state – has been a topic of increasing interest over recent years, and organizations such as the River Restoration Centre and the European Centre for River Restoration have formed to promote restoration work.

Deculverting or ‘daylighting’ is the process of uncovering buried urban rivers and streams, and restoring them to more natural conditions. Daylighting can create new habitat for plants and animals, potentially reduce flood risks, and create new ‘green corridors’ through urban areas. A good example is the highly successful restoration of the Cheonggyecheon stream in Seoul, South Korea.

Benefits of Daylighting Rivers

According to Adam Broadhead, who has created a daylighting website to map deculverting projects around the world, “Buried watercourses receive no sunlight, and so can be ecological deserts to life in the water and around the river banks (fish, birds, insects, plants, mammals). The darkness and other modifications to the channel often prevent passage of fish just like weirs do. Opening them back up can bring back all of this ecology, when done properly.

“Daylighted watercourses also have less of a flood risk due to underground blockages or collapse and it is easier to spot and tackle sources of pollution when you can see the water.  People can see and enjoy the wildlife that daylighted streams support, with knock-on positive effects for health and well-being, education and recreation.  Open watercourses can help to reduce the urban heat island effect and can (and are) being used to drive regeneration in downtown areas.”[v]

Freed River Case Studies

In Zurich, daylighting is actually enshrined in law. Known as the “Bachkonzept” or the “stream concept”, urban river restoration has been common practice in Switzerland’s largest city for 30 years. Urban rivers have been daylighted and integrated into Zurich in all manner of ways, such as complementing the local architecture. [vi]

By Smiley.toerist [CCBY-SA 4.0 (lhttps://creative commons.org/licenses/by-sa/4.0)] from Wikimedia Commons

The poster child of all daylighting projects is Seoul’s Cheonggyecheon River, completed in 2005. A brainwave of then-mayor and future president Lee Myung-bak, the project removed roads, buildings and virtually anything in its path to create an artificial waterway that joined up with the underground river at a cost of $900m (£615m). The 3.6 mile-long water corridor now acts as a major flood-relief channel and draws more than 60,000 visitors each day, transforming an area of Seoul previously renowned for crime. [vii]

In Auckland, more than 180 metres of underground piping and 5,000 cubic metres of natural clay were removed to daylight the Fairburn and Parahiku reserve streams in 2014. It was part of an ambitious scheme to provide both better flood water protections and restore the rivers to a more natural state to support the many migratory fish species in New Zealand. “We have these seasonal species which need these pockets of upstream habitat to live in, and then they go back out to sea and spawn,” says Tom Mansell, stormwater project engineer at Auckland council.[viii]

More recently in the US, $19m was invested to daylight the Saw Mill river in downtown Yonkers, New York. The aim was to regenerate the area and bring back habitat for a range of species including muskrats and snapping turtles.[ix]

Pilot Project for Daylighting La Bievre

Today, the Bievre forms a rainwater system, becoming an alternative means of transportation for wastewater when the sewers are out of action.

Figure 3 By Meg Stewart [CC BY-SA 2.0 (https://creativecommons.org/licesnes/by-sa/2.0)] via Wikimedia Commons

Studies in the 2000s were undertake to identify opportunities to daylight portions of the Bievre.

In 2002, the Communaut d’agglomeration du Val de Bievre (Val de Bievre Combined District Council) carried out a pilot project in the Parc des Paris in Fresnes, a three-hectare area that remained undeveloped. Retaining the former riverbed, a meandering stretch of water was created to encourage the development of aquatic life. Aquatic and semi-aquatic species were introduced in several areas. At the same time, over twenty direct wastewater connections to the Bievre were eliminated.[x]

The resulting enriched biodiversity — from ducks and other species of birds, to fish, amphibians and several aquatic insect species — has been very encouraging. Given the small stretch of daylighting, the ecosystem recovery is limited. Although improved, the water quality remains mediocre, however local residents can now enjoy the newly rediscovered riverside.

How can Earth Law Help

Through this initiative and others, Earth Law Center intends to lay the groundwork for a significant shift in how the law addresses questions of natural resources and environmental integrity. Changes that recognize the inherent rights of species and ecosystems will create more effective and durable mechanisms for protecting the natural world.

Beginning with one river and extending locally creates both community commitment to the environment and governmental protections that span jurisdictions and support a cleaner and healthier environment.

Victories at the local level also build interest and a sense of momentum about our work. As time goes by and more local governments grant rights to local ecosystems, the idea gains political credibility and a groundswell of support that can translate into motion at regional and national levels.

Victories everywhere help build international norms, and the political will for collective solutions to global problems. Personhood for rivers has already been recognized in New Zealand, India, and Colombia. Nature’s inherent rights are recognized in the countries of Bolivia and Ecuador as well as Mexico City and over 30 municipalities in the US.

Now, imagine how it would be if La Bievre had rights. What would be different if it could stand up for its legal rights in a court of law? Rights would include the right to flow; the right to perform essential functions within its ecosystem; the right to be free from pollution; the right to feed and be fed by sustainable aquifers; the right to native biodiversity; and the right to restoration.[xi]

If La Bievre had full legal rights, then any unsustainable exploitation that would impair those rights could be challenged. The river itself would have standing in a court of law. With recognition of its rights in the courts, the river would be considered a legal entity, with the ability to defend those rights. In practice, humans would have to stand in a court of law to enforce such rights on behalf of the river, acting as legal guardians – a model that is already familiar to lawyers who represent children, some disabled persons, and so forth. This model would in turn empower local communities, environmental groups, and others seeking to support the rights of La Bievre.

Take Action Today to Help Restore La Bievre

Act today and join the growing global movement of Earth Law by:

• Staying informed of Earth Law Center and also Notre Affaire à Tous

• Volunteering with ELC or join a work group

• Sign the petition here

• Supporting ELC and Notre Affaire à Tous

• Contact ELC if you want to work on your own river rights campaign

More about Notre Affaire à Tous

Anchored in the struggle for the preservation of nature, the association works to establish climate justice. Its actions must be able to cope with climate change, nuclear disaster, disappearance of resources, etc. To achieve our goals, we chose to act in the legal field, which allows to influence lifestyles and government. The main objective of Our affair for all is to enforce and improve the existing law , especially that of the environment. We thus seek to establish, through case law and citizen mobilization, an effective and objective responsibility of the human being vis-à-vis nature.

---

[i] http://www.messynessychic.com/2013/12/09/hunting-the-lost-river-of-paris/

[ii] https://restorerivers.eu/wiki/index.php?title=Case_study%3AReopening_of_a_section_of_the_River_Bi%C3%A8vre_in_an_urban_environment

[iii] http://www.messynessychic.com/2013/12/09/hunting-the-lost-river-of-paris/

[iv] https://freshwaterblog.net/2014/07/08/daylighting-urban-rivers/

[v] https://freshwaterblog.net/2014/07/08/daylighting-urban-rivers/

[vi] https://www.theguardian.com/cities/2017/aug/29/river-runs-global-movement-daylight-urban-rivers

[vii] https://www.theguardian.com/cities/2017/aug/29/river-runs-global-movement-daylight-urban-rivers

[viii] https://www.theguardian.com/cities/2017/aug/29/river-runs-global-movement-daylight-urban-rivers

[ix] https://www.theguardian.com/cities/2017/aug/29/river-runs-global-movement-daylight-urban-rivers

[x] http://www.onema.fr/EN/EV/publication/rex_r9_bievre_vbatGB.pdf

[xi] Universal Declaration of River Rights at https://www.earthlawcenter.org/river-rights/

Rights for the Boulder Creek Watershed

Carol Jacobs-Carre @ Creative Commons

By Corey Todd and Earth Law Center team

Earth Law Center has partnered with Boulder Rights of Nature (BRON) and other local partners to establish the Boulder Creek Watershed as a legal entity possessing rights. Although ecologically and culturally important to the region, Boulder Creek and its watershed face many water quality and flow threats.

To address these challenges, a local rights of nature law would permanently protect the Boulder Creek Watershed by establishing its fundamental rights, including a legal right to flow, to be free from pollution, to restoration, and others. It would also appoint legal guardians to enforce these rights. With Boulder’s long history of cutting-edge environmental protections, this new legal paradigm could serve as a model for other U.S. communities.

What is a Watershed and Why is it Important?

A watershed is a geographic area in which water flows across the land and drains into a common outlet – such as a stream, river, lake, or ocean. Its area is defined by the continuous ridgelines that form its boundaries.[i]  If you place a drop of water anywhere within a watershed, it will follow gravity downhill towards the same main body of water. A watershed includes all waterways, groundwater, land, and ecosystems therein.

Protecting watersheds is important because they provide water for ecosystem and human needs. Clean, bountiful water with natural flow regimes is essential to thriving plant and animal communities.[ii]  And humans rely upon healthy watersheds for drinking water, agriculture, recreation, and other uses. Without a healthy watershed, all of its inhabitants suffer.

About the Boulder Creek Watershed

The Boulder Creek Watershed is located in Colorado’s Front Range and is approximately 1,447 square miles in size. The watershed encompasses all of the land that drains into Boulder Creek.[iii] In addition to the Town of Boulder, which shares the Creek’s namesake, the other towns located in the watershed are Nederland, Louisville, Lafayette, Erie, Superior, and portions of Arvada, Broomfield, and Frederick .[iv]

Creeks and streams in the Boulder Creek Watershed generally flow from the west (where the Rocky Mountains are located) to the east. Boulder Creek itself flows northeast into Weld County, where it joins St. Vrain Creek and later confluences with the Platt River.[v] The Platt is a tributary of the Mississippi River, which empties into the Gulf of Mexico.[vi]

Map source: http://czo.colorado.edu/html/sites.shtml

Boulder Creek Watershed Biological and Ecological Importance

The Boulder Creek Watershed provides important habitat to numerous native fish species. These include creek chub, fathead minnows, green sunfish, longnose dace, longnose suckers and white suckers. However, many non-native species have also become established within the Boulder Creek Watershed, including a large population of brown trout.

A broad range of other species live in the Boulder Creek Watershed, as well. Local mammal species include mule deer, coyotes, red foxes, yellow-bellied marmots, bobcats, and others. Boulder has a thriving bird population, as well, including the great horned owl and black-billed magpie, as well as warblers, tanagers, and towhees in the summertime. These are only a few examples this region’s incredibly diverse wildlife.

For local communities, Boulder Creek and its tributaries are used for drinking water, irrigation, electricity generation, and recreation.[vii] As to the latter, hundreds of locals descend upon the Creek in July for “Tube To Work Day” – which is just one example of the community’s close connection to its waterways. Local residents frequently fish, hike, swim, and otherwise enjoy Boulder Creek and other local waters.

By kevin [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], from Wikimedia Commons

What Threats Does the Boulder Creek Watershed Face?

As the population has grown in the Boulder Creek Watershed, potential water-quality effects from urbanization have increased.[viii] Conversion of forest and agricultural land to urban land use has resulted in an increased impervious surface area, which causes rain and melted snow to travel quickly to streams as surface-water runoff, carrying sediment and accumulated contaminants.[ix] Construction also contributes sediment to streams if the runoff is not controlled.[x]

Increased population also means more wastewater, which contributes nutrients and organic contaminants to streams.[xi] Impacts of wastewater in the Boulder Creek Watershed include:

• Increased algae blooms, which take up all the oxygen in the water leaving none left for other life in the water – called eutrophication.[xii]

• The presence of organic wastewater contaminants, such as pharmaceutical drugs, hormones, and cleaning products, which are generally not regulated. Unfortunately, all of these have been found in Boulder Creek.[xiii]

• Elevated levels of Escherichia coli (E. coli), a fecal indicator bacteria, which are present in portions of both the urban and agricultural areas of the watershed.[xiv]

Other threats to local waterways include low flows, high temperature, channelization, harmful dams, an altered flow regime, siltation, and more. While the Boulder Creek Watershed and its waters may appear pristine to visitors, they face many challenges – and these could become even worse as the population continues to grow.

Background on Earth Law: What is it and Why is it Desirable?

Earth Law, including Rights of Nature, is an ethical framework that recognizes nature’s right to exist, thrive and evolve – enabling nature to defend these rights in court, just like humans and corporations can. Earth Law also recognizes that humans and nature are co-members of a larger Earth Community, whose overarching well-being must be paramount.

The Rights of Nature movement embodies the principle that natural communities and species are not merely property to be owned. Instead, they are living entities with certain inalienable legal rights. These rights are not “given” by humans, but rather are inherent to nature’s existence – just as humans possess inherent rights to life, liberty and the pursuit of happiness.

Four rivers now enjoy rights recognition: the Whanganui River in New Zealand, the Atrato River in Colombia, the Villacabamba River in Ecuador and now the Colombian portion of the Amazon. Earth Law Center is firming up half-a-dozen new river initiatives to launch this year.

In support of our campaign to establish rights for all rivers, ELC along with experts worldwide have developed a draft Universal Declaration of River Rights. The Declaration draws from victories for the rights of rivers worldwide, as well as scientific understandings of healthy river systems.

Rights of the Boulder Creek Watershed Campaign

Boulder Rights of Nature (BRON) in partnership with Earth Law Center and other local partners seeks legal rights for the Boulder Creek Watershed through a new local law. This would make it the first watershed in the United States to be recognized as a living entity possessing legal rights.

The fundamental rights that would be possessed by the Boulder Creek Watershed and all waters therein would include, at minimum:

(1) The right to flow,

(2) The right to perform essential functions within its ecosystem,

(3) The right to be free from pollution,

(4) The right to feed and be fed by sustainable aquifers,

(5) The right to native biodiversity, and

(6) The right to restoration.[xv]

Through this new legal paradigm, the Boulder Creek Watershed could be restored to health and permanently protected as a right, rather than its protection being dependent on the political and economic tides. Giving the watershed legal rights would not only benefit local ecosystems, but also humans that rely upon and enjoy Boulder Creek and its watershed.

The law would also call for the appointment of one or more legal guardians of the Boulder Creek Watershed to oversee its rights and interests. These legal guardians would act on the watershed’s behalf in legal proceedings and ensure that it is fairly represented in the local democratic process.

Boulder County and its residents understand the importance of protecting nature. After all, it has protected some 45,000 acres of open space. And with some 151 public trails, the local community has a very strong connection to its natural splendor.

So will Boulder take the next step in its environmental protections by recognizing the rights of the Boulder Creek Watershed?  If so, Boulder could become a model for other communities that wish to create new laws that protect nature as a partner on our shared planet, not as mere property. We look forward to seeing the benefits of this emerging paradigm in Boulder and across the world.

Join the Global movement

• Stay informed of Earth Law Center

• Volunteer with ELC

• Support ELC

• Contact ELC if you want to work on your own river rights campaign

More on Earth Law Center

Earth Law Center works to transform the law to recognize, honor, and protect nature’s inherent rights to exist, thrive and evolve.

We do this by building a force of advocates for nature's rights at local and international levels. We partner with local organizations create new laws that recognize rights of rivers, oceans, coastal and land ecosystems. www.earthlawcenter.org

More on Boulder Rights of Nature

Boulder Creek Rights of Nature is a leading advocate for nature’s rights in Boulder County. While successfully advocating for stronger environmental policies in Boulder County, BRON also launched a successful documentary series and host regular talks on local rights of nature issues. Earth Law Center is a member of BRON.

Boulder Rights of Nature is working to get rights of nature established as law in one or more jurisdictions in Boulder County and elsewhere.[xvi] In this work, they are aligned with hundreds of community organizations across the country. (To see a draft of their ordinance, click here.) For example, BRON is researching legal frameworks to protect Boulder Creek and Coal Creek with their naturally occurring species.

In addition to BRON’s noble cause of establishing Rights of Nature within the Boulder Creek Watershed and establishing a precedent for water rights around the country, they are active members of the Boulder community. For Example, BRON has established a film series entitled “Plights of Grassland Birds – Boulder Rights of Nature Film Series.”[xvii] The PLIGHT of GRASSLAND BIRDS follows the migratory path of these birds across the Americas to explore why these species are declining faster than any other group of birds, and what’s being done to reverse the trend.[xviii] Additionally, BRON routinely holds public speaking events that are open to the public. For a list of upcoming events, signing up to action alerts and event notifications, and additional information on BRON, visit http://boulderrightsofnature.org/

---

[i] Watershed Management.” Water Quality Monitoring Efforts, dep.wv.gov/WWE/watershed/Pages/watershed_management.aspx.

[ii] “Watersheds 101.” The Nature Conservancy, May 2018, www.nature.org/ourinitiatives/regions/northamerica/unitedstates/indiana/journeywithnature/watersheds-101.xml.

[iii] Id

[iv] Id

[v] Id

[vi] Id

[vii] Id at 30

[viii] Id at 29

[ix] Id

[x] Id

[xi] Id

[xii] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4997450/

[xiii] Id

[xiv] https://www.natureindex.com/institution-outputs/united-states-of-america-usa/usgc-water-quality-of-the-boulder-creek-watershed-colorado/58d49127140ba00a3f8b456a

[xv] https://www.earthlawcenter.org/blog-entries/2017/9/zbqocjwq4cd3htclznxw1gmxf291ic

[xvi] “Boulder Rights of Nature - Establishing Legal Rights for Naturally Functioning Ecosystems and Native Species.” Boulder Rights of Nature, 2018, boulderrightsofnature.org/.

[xvii] “Grassland Birds – Boulder Rights of Nature Film Series.” Boulder Dot Earth, “Watersheds 101.” The Nature Conservancy, May 2018, www.nature.org/ourinitiatives/regions/northamerica/unitedstates/indiana/journeywithnature/watersheds-101.xml.

[xviii] Id

Earth Law for the Indus River

River Indus near Skardu (Pakistan) By Kogo - photo taken by Kogo, GFDL, https://commons.wikimedia.org/w/index.php?curid=421282

By Francesca Sparaco and Earth Law Center staff

Earth Law Center and our partner Pakistan Fisherfolk Forum are seeking legal rights for the Pakistani portion of the Indus River.

Humans have depended on the Indus River for millennia

The longest river in Pakistan, the Indus River also ranks as one of the largest in Asia. It originates in Tibet at the junction of the Sengge Zangbo River and the Gar Tsangpo River and flows from Mount Kailash in the Himalayas. Springs from melting glaciers feed the river.[i]

Civilizations have thrived near the Indus River for nearly 8,000. There is evidence of religious practices dating back to about 5500 BCE (“before the common era”) in the Indus Valley. Farming practices began in the area at about 4000 BCE, and uban development one thousand years later at about 3000 BCE. Known as the “Indus Valley Civilization,” these people may have numbered over 5 million people at their peak. 

Ten Indus Signs, dubbed Dholavira. Reproduced under Creative Commons 3.0

Although they left a system of writing, it remains undeciphered – accounting for the little knowledge we have about the Indus Valley Civilization.
Today, the Indus provides water needed by Pakistan to thrive, including by supporting agriculture in the Punjab province – known as the breadbasket of Pakistan – and supplying drinking water to much of the country. The Indus also supports diverse aquatic ecosystems that include some 150 fish species and 25 amphibian species, including 22 that are endemic to the area.

Threats to the Indus River 

The Indus River and the Indus Delta are under threat from reduced flows, dam and canal construction, mangrove clearing and other habitat destruction, reduced sediment load, and severe pollution. Together, these impacts are severely degrading the health of this crucial river system.

Another negative impact comes from climate change. Rising temperatures and changes in weather patterns result in lost snowpack in the Himalayas, where most of the Indus’ water originates. [ii] Dwindling snowpacks affect rivers around the world; read more here in ELC’s blog about snowpacks.

As the Indus River’s 17 major creeks start to dry out, [iii] a recent study also noted that intrusion of seawater is salinizing drinking water for people living in the delta, also harming riparian plants and aquatic organisms that prefer freshwater.[iv]

Massive dams also present an existential threat to the river and riverside communities. The largest dam on the Indus, the Tarbela Dam, exists upstream of these provinces in the Khyber Pakhtunkhwa region, therefore disrupting the natural cycles of this ancient river. Additionally, as noted by organizations such as the Pakistan Fisherfolk Forum, rural residents that live off of the fish populations of the Indus River have been negatively impacted by dam construction.[v]

A note about Mangroves 

The Indus delta supports the largest arid climate mangroves in the world. Mangroves are evergreen forests between land and sea, occupying large tracts in shallow coasts, estuaries, and deltas. These forests form the backbone of the Indus delta’s delicate ecosystem, providing a breeding ground and food for various species of fish and shrimp.

The survival of Indus delta mangroves is dependent on adequate flows of freshwater from the Indus River as it flows through the delta and into the Arabian Sea.[vi] But dwindling Indus River water flow has led to the loss of about 86% of the mangrove forest cover over the last 30 years.
Other threats to these mangroves include excessive pollution, navigational activities, livestock grazing, erosion, and sea level rise. If action is not taken soon to protect and restore these mangroves, this crucial ecosystem may reach a breaking point.

Meet the Indus River Dolphin

The Indus river dolphin is an endangered species that calls this ecosystem home. It is only one of four river dolphin species worldwide that lives only in freshwater sources.

Today just over 1,000 Indus River Dolphins exist. Their population has declined in large part due to the construction of irrigation canals, which confine them to a 750 mile stretch of the river (an 80% decline from their original range[vii]) and divide the dolphins into isolated populations.[viii] The canals degrade their habitat, impede migration, and strand dolphins.[ix] The muddiness of the river renders the dolphins practically blind, so they can only communicate and find food through echolocation.[x]

An innovative solution: Earth Law

Source: WWF Pakistan https://www.worldwildlife.org/species/indus-river-dolphin

Despite decades of environmental laws and treaties, our planet’s health continues to decline. One fundamental flaw is that under the present system, the environment has no voice in decision-making and cannot bring issues to court.[xi]

Our current laws protect nature only for the benefit of people and corporations, which means that economic outcomes typically overshadow environmental consequences. Even when environmental issues are brought to court, people have to prove that the damage infringes on their own rights, since the environment has no rights itself.

Earth Law presents a solution to this flawed system. Earth Law is an ethical framework that recognizes nature’s right to exist, thrive and evolve – enabling nature to defend these rights in court, just like corporations can. [xii]

What does this mean in practice? Earth Law will enable people to defend nature in the courts for the sake of nature itself. Earth Law also aims to protect the environment for all creatures. And it ensures true environmental protection via proactive action and effective restoration projects. 

Nature’s rights also benefit human rights.  Where the environment is harmed, people suffer from disease, violence, and land loss. Therefore, in many situations, both human and environmental rights are supportable without conflict, and indeed would support each other.  ELC has published two reports highlighting the connections between natural and human rights violations. 

How Can Earth Law Help the Indus River?

The Indus River has suffered from severe declines and continues to face severe threats. So long as the law treats the Indus River as mere property to be exploited for profit, this waterway will continue to be over-diverted, dammed, and polluted.

To address this threat, Earth Law Center is working with the Pakistan Fisherfolk Forum and partners to give legal rights to the Indus River. Already, we have written a draft “Indus River Rights Act” that is under review by thought leaders in Pakistan.

This draft law recognizes the inherent rights of nature in the River Indus, and recognizes their need to be protected. These fundamental rights of the Indus River include:

• The right to flow;

• The right to perform essential functions within its ecosystem;

• The right to be free from pollution;

• The right to feed and be fed by sustainable aquifers;

• The right to native biodiversity;

• The right to restoration.

When enforced, these rights would prevent the construction of misguided dams on the river. They would shift the public view of the river from property to be divided up to life-giving partner. And they would give the river an opportunity to rebuild its biodiversity.

Earth Law places guardianship over the river in the hands of local community members in partnership with government. These guardians will be able to represent the Indus River in legal proceedings, enter into contracts on behalf of the Indus River, and take other actions necessary to protect the river.

Earth Law already exists

Two countries, Ecuador and Bolivia, are leading the way in Earth Law, where ecosystems have rights just as people and corporations do.

In Ecuador, the Quechua hold a united worldview of humans and nature, where both belong to an interdependent global community. This perspective inspired the 2008 revised Ecuadorian constitution, which reads: "We ... hereby decide to build a new form of public coexistence, in diversity and in harmony with nature, to achieve the good way of living." Similarly, Bolivia grants Mother Earth the right to life and regeneration, biodiversity, clean water and air, and restoration, among others.

Local governments have also stepped up legal protections for their environments. The Whanganui River in New Zealand has appointed guardians who have a responsibility to protect the River and act as its voice. The Atrato River in Columbia has legally been granted rights to “protection, conservation, maintenance and restoration.” Numerous municipalities in the United States have enacted environmental legislation, including Santa Monica, CA, with the help of ELC.

From an international perspective, the United Nations General Assembly adopted its first resolution on Harmony with Nature in 2009.  Harmony with Nature works to construct a new paradigm of our relationship with Nature in a non-anthropocentric way. It catalogs member states’ law and policies securing Rights of Nature.
 
If enough people support Earth Law, change will happen quickly.  ELC is part of a growing group of concerned citizens who are committed to making Earth Law the next movement for change.

Act today and join the growing global movement of Earth Law:

• Stay informed

• Volunteer

• Donate

Visit www.earthlawcenter.org for more details.

---

[i] http://www.newworldencyclopedia.org/entry/Indus_River.

[ii] http://wwf.panda.org/our_work/water/freshwater_problems/river_decline/10_rivers_risk/indus/indus_threats/

[iii] https://qz.com/india/448049/the-slow-and-dangerous-death-of-pakistans-indus-river-delta/

[iv] https://tribune.com.pk/story/995886/water-matters-threats-to-indus-delta-have-wider-implications-says-experts/

[v] http://pff.org.pk/

[vi] http://www.naun.org/main/NAUN/geology/ijgeo-06.pdf

[vii] https://www.sciencedirect.com/science/article/pii/S0006320715300999

[viii] https://www.worldwildlife.org/species/indus-river-dolphin

[ix] http://wwf.panda.org/knowledge_hub/endangered_species/cetaceans/about/river_dolphins/indus_river_dolphin/irdolphin_threats/

[x] http://www.discoverwildlife.com/animals/what-echolocation

[xi] https://www.earthlawcenter.org/faq/

[xii] https://www.earthlawcenter.org/

Rights for the Anchicayá River in Colombia

The Anchicayá River before it joins with the Digua River by Mateo Gable Wikimedia Commons

By Earth Law Center

In June 2018, Earth Law Center (ELC) and partners submitted an amicus brief to the Inter-American Commission of Human Rights and Colombia’s Consejo de Estado , two judicial bodies who are considering the case involving a dam on the Anchicayá River. ELC is proud to have worked with International Rivers and the human rights group Réseau International des Droits Humains (RIDH) on this campaign. 

Meet the Anchicayá River

This Anchicayá River watershed is known for its vibrant biodiversity, featuring diverse and rare birds, amphibians and butterflies. It is also famous for being one of the best birdwatching areas in South America. [1] While incredible in its beauty and vibrant ecosystems, the Anchicayá River is also impaired by damming and other sources of degradation, which also plagues many other rivers in Colombia. 

Threats to the Anchicayá River and communities who live nearby

The primary inhabitants of this Anchicayá River region are Afro-descendant communities who are directly dependent on the surrounding natural environment. On July 21st, 2001 there was an illegal discharge of approximately 500,000 m3 of accumulated sediment from a hydroelectric dam on the Anchicaya River, which gravely affected those inhabiting the region downstream of the dam. [2]

The discharge also devastated vulnerable ecosystems, including aquatic species that live in the River. In addition, there was a scarcity of potable water, crop damage, and harm to riverine and coastal mangroves. [3]

Local Communities Sue

In response, the communities of the Lower Anchicaya region began a lawsuit in 2002 against the energy company in charge of the dam. After years of deliberations favoring the downstream communities, in April of 2012 the Constitutional Court of Colombia ruled in favor of the energy company in charge of the dam, overruling 10 years of deliberations. Through Judgment T-274, the Constitutional Court of Colombia declared that the direct valuation studies that had been made in 2002, shortly after the spill, were inadmissible due to lack of objectivity and rigor and ordered that the studies be repeated. [4]

The dozens of communities along the coast of the Anchicayá River then filed a class action lawsuit, led by lawyer German Ospina, which resulted in a decision in 2015 by the Constitutional Court of Colombia. The court ruled in favor of the Anchicayá community and ordered that the communities be indemnified. [5] However, subsequent legal proceedings have once again put into question how much the community will be paid, and when.

The current court case

Afro-Colombian communities impacted by the Anchicayá River disaster continue to seek compensation, which has not been made despite over 17 years of courtroom battles. The communities, represented by attorney German Ospina, most recently sought justice from both the “Consejo de Estado” – Colombia’s highest administrative court – and the International Commission on Human Rights.

While the final outcome of this legal battle remains unclear, the communities remain committed to seeking justice for themselves and the river ecosystem upon which they depend.

What is an Amicus Brief?

Amicus curiae, from Latin, means "friend of the court." [6] An amicus curiae brief (or “amicus brief” for short) offers an opportunity for groups and individuals to submit relevant information to a case to inform the court – without having to be a party to the lawsuit.

In most countries, judges can choose whether or not to read or consider an amicus brief, but either way, it becomes part of the record of that case. In countries like Brazil, the law requires judges and both parties in a case to consider any amicus briefs submitted.

The Process

In Colombia, ELC and partners International Rivers and RIDH submitted an amicus brief to both the Consejo de Estado and the International Commission on Human Rights. In addition to supporting the claims of the impacted Afro-Colombian communities, the amicus brief calls for recognition of the inherent rights of the Anchicayá River in order to ensure its protection and restoration as a right.

 These amicus briefs build from emerging legal precedent in Colombia, where courts have recognized the rights of the Atrato River and the entire Colombian Amazon. It also draws from a recent opinion of the Inter-American Court of Human Rights that highlights the movement to establish legal rights for nature. 

As this ongoing legal saga reaches its final stages, ELC is committed to supporting the impacted Afro-Colombian communities until the very end. Therefore, we plan to submit additional amicus briefs to all future courts that consider this case.

How Can Earth Law Help?

Imagine how it would be if The Anchicaya River had rights. What would be different if local communities could defend their rights along with the rights of the river? These rights could include the right to flow; the right to perform essential functions within its ecosystem; the right to be free from pollution; the right to feed and be fed by sustainable aquifers; the right to native biodiversity; and the right to restoration. [7]

Personhood for rivers has already been recognized in New Zealand, India, 43 and Colombia, and nature’s inherent rights are recognized in the countries of Bolivia and Ecuador as well as Mexico City and over 30 municipalities in the US.

Through our amicus brief campaign, we hope that the Anchicayá River is recognized as a legal entity possessing rights. But this is just the beginning, as ELC and partners plan to submit amicus briefs in support of nature’s rights in courtrooms in Latin America, USA, Europe, and elsewhere. 

Take Action Today to Help Save the Anchicayá River

Act today and join the growing global movement of Earth Law by:

• Staying informed of Earth Law Center 
• Volunteering with ELC 
• Supporting ELC 
• Contact ELC if you want to work on your own river rights campaign

---

1.  https://en.wikipedia.org/wiki/Anchicay%C3%A1_River
2.  https://www.researchgate.net/publication/297735896_Ecosystem_service_valuation_framework_applied_to_a_legal_case_in_the_Anchicaya_region_of_Colombia
3.  https://drreade.ml/shares/read-online-evaluacion-economico-ecologica-de-los-impactos-ambientales-en-la-cuenca-del-bajo-anchicaya-por-vertimiento-de-lodos-de-la-central-hidroelectrica-anchicaya-spanish-edition-1496049519-epub-by-lola-floresdavid-batkermaya-kocian.html
4.  https://www.researchgate.net/publication/297735896_Ecosystem_service_valuation_framework_applied_to_a_legal_case_in_the_Anchicaya_region_of_Colombia
5.  https://m.facebook.com/EarthEconomics/posts/10153269431573841
6.  https://en.wikipedia.org/wiki/Amicus_curiae
7.  Universal Declaration of River Rights at https://www.earthlawcenter.org/river-rights/

River Protection: Crucial in an Age of Dwindling Snowpack

Rocky Mountain High by Peter Stabolepszy Creative Commons

By Kristina Cowell

Introduction

In cold weather climates, layers of snow accumulate at high altitudes. When this snow melts it feeds into streams and rivers, hydrating fresh water ecosystems and supplying communities with drinking water.[i]

This “snowpack” serves another important function. It keeps the ground and soil moist by covering it into spring and summer. Plentiful snow delays the onset of the fire season and reduces the prevalence and severity of wildfires.[ii]

As the planet warms, snowpacks are melting and evaporation rates increasing. Precipitation that would have fallen as snow instead comes as rain. Scientists from Stanford University and Columbia University's Earth Institute have studied global snowpack declines, finding that it will impact drinking water for nearly 2 billion people.[iii]

The areas projected to be worst hit by dwindling snowpack are the San Joaquin basin in Western United States, the Colorado River basin that spans several US states and Mexico, and the Syr Darya basin of Central Asia. [iv]

Over the last 60 years, Western US states have seen reduced snowpack, with the largest reductions occurring in lower elevation mountains in the Northwest and California. From 1955 to 2015, April snowpack declined at over 90 percent of the sites measured.[v]

Rocky Mountain snowpack also on the wane

As much as 75 percent of water supplies in the Western states are derived from snowmelt.[vi] So less snowpack means potential water shortages, for rivers and humans alike.

The Central and Southern Rockies recorded snowpacks of as low as 50 percent of normal in April 2018.[vii] A continued dry spell risks setting a new historic low for the current snowpack of 2017-2018.[viii]

Not only do the central and southern Rockies have less snowpack than they used to, but this snowpack melts earlier, too.[ix] Early snowmelt seasons happen with overall warmer seasonal temperatures and smaller snowpack conditions.

Like clockwork, snowpack throughout the West builds up during the winter months then melts and fills streams in the summer – just when it’s needed the most. When the snowmelt season shifts even by a few weeks, this can significantly disrupt nature’s cycles, as well as the work of water planners to meet human needs.

How does water law work in the West?

The prior appropriation doctrine dominates water governance in the Western States (with the exception of California, Oregon and Washington, which combine prior appropriation with the riparian system found on the East Coast of the US).

The prior appropriation doctrine first emerged to help settle the West with a “first in time, first in right” approach to water rights. These original delegations of water rights still hold true to this day. Miners during the Gold Rush received many of the first water rights, which they’ve since passed down or sold for municipal, agriculture and a number of other “beneficial uses.”

Historically, such beneficial uses only included agricultural and municipal uses. Any water left in streams was considered a waste, since the law did not consider instream flows and ecological preservation.

However, in the latter half of the 20th century, citizens and lawmakers began pushing for ecological habitats and recreational uses to be considered beneficial uses. This has since been added into many jurisdictions.

The hardest working river in the West US: The Colorado River

Wikimedia Commons

The Colorado River is the country’s sixth largest river, running for 1,450 miles. It flows through 11 national parks, seven states and two countries (USA and Mexico), supporting diverse ecosystems, fish species and communities along the way. It also supplies water for major industries, supporting a $1.4 trillion annual economy and 16 million jobs. A few of these industries are agriculture, fishing and recreation.

Unfortunately, this also means the Colorado River is allocated as property down to its very last drop, and then some. For every primary water right, there are secondary, tertiary, and so on water rights waiting to use any leftover water not initially diverted and put to use. This overindulgence of water rights leaves scant flows for the river itself.

Wanting to tame the reliability of available flows to fulfill these water rights, governments have built fifteen dams on the main stem of the Colorado and hundreds more on its tributaries.[x] This “reliable” water supply has been the wholesale devastation of freshwater ecosystems. Dams are now known to block fish migration, disrupt natural flow processes, and dry up waterways, to name a few impacts.[xi] With many fish species on the brink of extinction, many have asked: can’t we just use less water and restore our precious rivers to health?

This year’s low snowpack is bad news for rivers

The National Resource Conservation Service reports on flows and projections for Western water.[xii] According to their latest outlook published on April 6, 2018, the hardest hit areas will be Colorado, Utah, Arizona and New Mexico. These states will see less than half of normal streamflow. Known for their desert landscapes and aridity, these states also serve as epicenters of recreation and biodiversity within their aquatic landscapes and extensive river networks. [xiii]

Arizona’s snowpack, which is already less than 25% of normal, began to melt much earlier in April than usual, leaving ecosystems parched. In Colorado, a major headwater state, the snowpack began to dwindle before it even had a chance to grow. The statewide snowpack of Colorado sits at just over 65% of normal with the Southern regions hurting disproportionately more. It is estimated that the Southern rivers like the Animas, Dolores and San Juan will only see around 30% of normal flow this summer.[xiv]

How to protect rivers in an age of dwindling snowpacks

The majority of the Colorado River basin is used for agriculture. In the arid Western climate it is a vital source of water. On average from 1971 - 2005, agriculture consumed 5,507,780 acre feet annually while municipal and industrial thermoelectric power combined only used 1,872,633 acre feet annually on average.[xv]

The best way to help the Colorado River is to buy products that were farmed in the West by using more sustainable methods. Drip irrigation is an extremely efficient form of irrigating crops and can reduce water consumption by 25%, yet is not widely used because it is also one of the most initially expensive ways to irrigate massive plots.[xvi]

Certain states, such as Oregon, have adopted laws to help keep instream flows. The Instream Water Right Act was adopted in 1987, and has issued more than 900 state agency-applied instream water rights. In order to put water instream, they have transferred water from time-limited transfers, permanent instream transfers and allocation of conserved water.[xvii] 

Each of our actions makes a difference

While the challenges are great, there are practical and immediate steps everyone can take to protect and restore streamflow in our rivers. Here are a few ideas:

• Take action as a water user. As a concerned citizen you can avoid water intensive produce like almonds, alfalfa and rice. Much of the winter produce is grown in the Yuma Valley and Imperial Valley, both of these valleys sit in what would be a desert with limited water supply, but still consume a vast majority of diverted water in the area.
• Call for cutting-edge water conservation measures. The Colorado River Basin water supply forecasts look grim for this summer, with much of the river basin under 50% of average. This summer will need to see a number of combined conservation efforts from users and planners.[xviii] You can help by calling upon the authorities to take action.
• Modernize our water governance to meet modern water challenges. The prior appropriation water law must be changed to allow for more flexibility within water rights holders’ areas for conservation and collaboration. Outdated laws from initial settlement of the West should no longer apply to current issues.
• Recognize the legal rights of rivers to flow. Rivers are the backbone of the Western US, and without them we would not survive. The rights to a river’s flows should not be owned by only humans or corporations, but also by the river itself.

Earth Law principles for rivers

Earth Law recognizes rivers as living entities with legal rights to exist, thrive and evolve. Adopting legal principles to protect rivers will help us to reconfigure our relationship with river ecosystems. After all, rivers underpin much of our ability to thrive in otherwise inhospitable environments.

Earth Law legal principles for rivers include:

Wikimedia Commons

1. Requiring the most efficient water use technologies in order to restore flows to waterways
2. Taking action as a water user
3. Requiring cutting-edge water conservation measures
4. Modernizing our water governance to meet modern water challenges
5. Recognizing the legal rights of rivers to flow

To put such theories into effect, a new rights of rivers campaign has been launched for the Boulder Creek Watershed in Colorado. Boulder Rights of Nature, of which Earth Law Center is a member, is developing a plan to give this Watershed legal rights. One of these rights will be a legal right to flow. Enforcing this right will require ensuring minimum “lifeline” flows for Boulder Creek. And Boulder Creek itself will own those flows as a legal entity. If successful, Boulder Creek can be a model for many other watersheds in the United States and worldwide.

Join the global movement to restore rivers

• Stay informed of Earth Law Center
• Volunteer with ELC
• Sign the petition here
• Support ELC

Contact ELC if you want to work on your own river rights campaign

[i] https://en.wikipedia.org/wiki/Snowpack

[ii] https://blog.epa.gov/blog/2015/06/the-importance-of-snowpack/

[iii] https://news.vice.com/article/dwindling-snowpack-around-the-world-threatens-the-water-supply-for-2-billion-people

[iv] https://news.vice.com/article/dwindling-snowpack-around-the-world-threatens-the-water-supply-for-2-billion-people

[v] https://blog.epa.gov/blog/2015/06/the-importance-of-snowpack/

[vi] https://water.usgs.gov/edu/watercyclesnowmelt.html

[vii] https://www.wcc.nrcs.usda.gov/ftpref/support/drought/dmrpt-20180308.pdf

[viii] https://www.wcc.nrcs.usda.gov/basin.html

[ix] https://archive.epa.gov/climatechange/kids/impacts/signs/snowpack.html

[x] https://en.wikipedia.org/wiki/List_of_dams_in_the_Colorado_River_system

[xi] https://www.internationalrivers.org/environmental-impacts-of-dams

[xii] https://www.wcc.nrcs.usda.gov/basin.html

[xiii] https://www.wcc.nrcs.usda.gov/ftpref/support/drought/dmrpt-20180308.pdf

[xiv] https://www.wcc.nrcs.usda.gov/ftpref/support/drought/dmrpt-20180308.pdf

[xv] http://web.mit.edu/12.000/www/m2012/finalwebsite/problem/coloradoriver.shtml

[xvi] https://www.coloradocollege.edu/other/stateoftherockies/2017-state-of-the-rockies-report/2013rc/Agriculture.pdf

[xvii] http://www.oregon.gov/owrd/pages/mgmt_instream.aspx

[xviii] https://www.cbrfc.noaa.gov/

ELC to Attend Puebla’s Living Rivers Forum and Festival

Puebla, Mexico. Photo (unedited) by Russ Bowling; available at: https://www.flickr.com/photos/robphoto/2606385574

By Helen Louise George

Rios Vivos

Rios Vivos has two parts: a conference of speakers (called the Forum) and a multi-day display of arts and music (called the Festival). The first will emphasize education and collaboration, while the second will be a celebration of the local Atoyac River and other waterways.

The Forum (March 19-20): This event will feature prominent voices, from Mexico and abroad, speaking on new approaches to restoring rivers to health. One of these approaches is establishing legal rights for rivers. Featured speakers include former Minister of the Environment of Mexico City Martha Delgado, seasoned Pueblan rivers defender Veronica Mastretta, and the Governor of the State of Puebla, José Antonio Gali Fayad (Tony Gali), amongst many others. ELC’s close partner Cuatro al Cubo will speak on their initiatives, including  the plan to bring back to life those “invisible rivers” that have been built over by the megalopolis of Mexico City.

There will be international speakers, too. The incredible Tierra Digna – who won legal rights for Colombia’s Atrato River in the country’s Constitutional Court – will speak about their own experiences of protecting rivers. And the lead negotiator on behalf of securing legal rights for the Whanganui River in New Zealand, Gerrard Albert, will have a prerecorded speech, as well.

Last but not least, Directing Attorney Grant Wilson will also speak (in Spanish!) at the event to discuss ELC’s work on the Universal Declaration of the Rights of Rivers – an effort to define the rights to which all rivers are entitled. The goal of this initiative is to establish robust legal rights for every major river in the world within 20 years. Mr. Wilson will also update attendees on ELC’s collaboration with groups in Mexico working to establish legal rights for its waterways, as well as our rights of rivers projects in Nigeria, Brazil, the United States, and many other locations.

Great Pyramid of Cholula, outside of the City of Puebla. Photo (unedited) by André Vasconcelos; available at: https://www.flickr.com/photos/andrellv/4152386111

The Festival (March 17-22): The Festival will celebrate the sacred Atoyac River and also pay tribute to the environmental movement that seeks to protect and restore nature in Mexico. Activities include water singing on the banks of the Atoyac River (during World Water Day on March 22), dance, music, art, ceremony, sound healing, and more. The event will feature prominent artists and spiritual leaders from Mexico and worldwide – including ELC’s partner Danielea Castell of Water Harmony, who will travel from Canada. “Guardians of the water” will also lead ceremonies honoring the Atoyac and other precious rivers.

From left to right: Abuela Tonalmitl, Ehekamitl, Coyote Alberto Ruz.

From left to right: Alyosha Barreiro, Beleni Kumara, Cynthia Valenzuela, Grace Terry

Protecting the Atoyac

The Atoyac is one of the most polluted rivers in Mexico. Some have declared the river to be dead – although its supporters believe it can thrive once again. The Atoyac flows through the states of Puebla and Tlaxcala. Every day, almost 150 tonnes (over 32,1875 pounds) of organic waste is dumped into the river. It is also polluted by over 50 pollutants – including suspended solids, heavy metals, volatile organic compounds, and other contaminants from petrochemical, textile, and other industries.

Not only are its aquatic ecosystems devastated, the contaminated river raises health concerns for many of the 2.3 million people in the surrounding area. Serious disease risks include hemolytic anemia, kidney failure, and many others. And despite the severe pollution, farms rely upon the Atoyac to grow food for local communities.

However, local and national groups in Mexico are determined to restore the Atoyac to health. A diverse group of environmental leaders, local communities, governmental officials, businesses, and others are uniting to achieve this shared goal. Many of them will participate at the Living Rivers Forum and Festival.

In particular, ELC and our partners believe that securing fundamental legal rights for the Atoyac is a necessary step towards its recovery. What would this mean in practice? It would mean that the Atoyac has a legal right to, at minimum, enough flows to meet its basic ecological needs. It would mean that the government, local companies, and communities would create enforceable plans to stop polluting the Atoyac – and to clean up the pollution that has already occurred.  And it would mean that the Atoyac would have a seat at the table for any decisions affecting its well being, and be represented by one or more legal guardians. These are only a few examples of many.

The Atoyac River. Photo by Arnold Ricalde.

Protecting the Magdalena and Other Rivers in Mexico

During its trip to Mexico, ELC will also meet with environmental leaders, politicians, and stakeholders in Mexico City to advance the local rights of rivers movement. Recently, Cuatro al Cubo, with legal support from ELC, led an effort to secure legal rights for waterways in Mexico City. As a result of this joint effort, the Legislative Assembly of the Federal District (Asamblea Legislativa del Distrito Federal) included the rights of waterways within the recently approved Water Sustainability Law of Mexico City (Ley de Sustentabilidad Hídrica de la Ciudad de México).

While the law is still pending final publication, once implemented, it will be a landmark victory for waterways in Mexico City. This law can help restore to health the Magdalena River, which is the city’s last free-flowing river, as some 45 others are constrained in underground pipes and buried under layers of concrete.

Eventually, our partners believe, the rights of rivers can be recognized nationwide, such as through recognition in the General Water Law in Mexico (Ley General de Aguas en México). By doing so, Mexico can be a global leader in the movement to establish legal rights for rivers, creating a model for all other countries to follow. Having worked with many of the amazing environmental defenders in Mexico, I am confident that this dream will come true.

Horses by the Magdalena River. Photo by Luc Forsyth.

Next Steps

As we continue to fight for the rights of rivers across the globe, we must look to evolve our legal system into something better. We created our laws, and we can change them, too.  We should not feel restricted by what we have done, but rather empowered by what we can do. And giving legal rights to rivers – including the Atoyac, Magdalena, and others in Mexico – is the blueprint for restoring these precious waterways to health. We look forward to continuing this work with our partners in Mexico.

Rights for the River Ethiope, Nigeria

By Timothy W. Collins

I.  Introduction

Earth Law Center recently partnered with the River Ethiope Trust Foundation (“RETFON”) to secure rights recognition for the River Ethiope in Nigeria, to assist with RETFON’s current efforts and to work towards establishing the River as a legal entity possessing rights. As a result, the River would have a broad suite of recognized legal rights that would set it on a path to permanent restoration. It would also have standing to utilize the court system as a plaintiff in search of injunctive relief or damages, as necessary.[1] The River Ethiope would be the first waterway in Africa to possess legal rights.  

II.  The River Ethiope

The River Ethiope is located in the Delta State of Nigeria (“DSN”). The DSN is a geographic component of the South-South geo-political zone, and yields oil and agriculture. The River runs from the Umuaja community in the Ukwuani Local Government Area (“LGA”) and meets the sea at the Sapele LGA. The River flows for approximately 70km through four LGAs: Ukwuani, Ethiope East, Okpe and Sapele. These LGAs combine for an estimated population of 1.7 million people as of 2013.[2]

The River is a place of worship for adherents to the traditional Olokun and Igbe religions. It famously originates at the base of a giant cottonwood tree.[3] The area surrounding the source is a specific concern; human visitation over time has destroyed precious root systems that filter groundwater and prevent erosion. A concentration of vehicular traffic creates high levels of airborne pollutants as well. In the now familiar environmental irony human interest and appreciation endangers the object(s) humanity seeks to see and appreciate.

Nigeria is the third most biologically diverse country in Africa with regards to flora and fauna, a ranking that is currently endangered due to largely unregulated deforestation, farming, spreading urban communities and industrialization.[4]

III. The River Ethiope Trust Foundation

RETFON’s mission is to protect the River Ethiope and to defend the rights of the communities that depend on it. RETFON opposes development projects that degrade water quality, and encourages sustainable innovation to meet needs for water, energy, and protection from destructive floods and coastal erosions. To achieve this mission, RETFON collaborates with local, regional, national and international network of grassroots movements, communities, individuals, social clubs, Non-Governmental Organizations and corporate partners. Through research, education, advocacy and legal action RETFON works to halt destructive activities, to address the legacies of sustainable activities, to improve development policies and practices of government and to promote water and energy solutions for a just and amicable society. RETFON’s activities are planned to serve as a model for all rivers in Nigeria.[5]

IV. Threats to the River

Nigeria has one of the worst river degradation conditions of any country in the world. To date, dedicated deliberate efforts to reverse this growing problem have proven inadequate, for reasons addressed below.  Climate change, uninhibited industrial/urban development combine to measurably worsen the condition as time passes.[6]

Historically, the River Ethiope has been used extensively for occupational and recreational activities: fishing, swimming, clothes washing and bathing. These activities have no measurable environmental impact on their own merits. The River has been used as a source of disposal for industrial waste and consumer products, as well, and is subject to further contamination during the rainy season when it typically overflows its banks.[7] When the floodwaters recede they carry runoff in the form of additional domestic waste and agricultural by-products like chemical fertilizers and pesticides. As noted, tourism and religious activities pose additional threats due to the significant amount of visitors in sensitive areas.

River Ethiope currently fails to meet the water quality standard set by the World Health Organization (“WHO”), a failing that is shared by every river in Nigeria.[8] This failure to meet WHO standards renders the waters of the River at best useless and at worst dangerous for human interaction. The pollution and continued degradation also pose a threat to entire inland ecosystems and ultimately to coastal regions of the Atlantic Ocean.

V.  RETFON’S Approach

RETFON has displayed uncommon patience and determination over the past twenty-six years. President and Founder Irekefe V. Dafe identifies partnership building, resource mobilization, flexibility and leadership as key components of the learning process. Mr. Dafe describes RETFON’s approach as focusing on (1) partnership and collaboration, (2) community mobilization, (3) holistic emphasis, (4) planning, evaluation and monitoring, and (5) long-term sustainability, all practiced under the principles of Eco-hydrology and Integrated Water Resource Management (“IWRM”). RETFON plans to proceed towards its goals of full implementation of IWRM principles, developing and maintaining proper legal and institutional frameworks and the establishment of either an Inter-Local Government Commission for the preservation of the River or a River Ethiope Watershed Development Authority by the four above-referenced LGAs. To achieve these goals RETFON must overcome funding challenges to remedy a lack of scientific data, poverty and ignorance, the lack of an institutional framework, and inadequate government policies and programs, and the failure to enforce existing laws and regulations.  

VI.  Timeline: A Condensed History of RETFON’s Activities to Date

Since 1992, RETFON has worked to protect the River Ethiope by building relationships with both local civilians and businesses (“stakeholders”) and DSN and Federal governments, reaching out in both directions simultaneously. Governmental recognition and assistance legitimizes the Trust in the eyes the stakeholders; stakeholder perception creates reciprocal awareness by the governments. This symbiosis extrapolates to a model of an as yet aspirational relationship between the community and the River, i.e., two concerned parties acting in concert for mutual benefit.            

RETFON recent activities to protect the River Ethiope include the following:

• In February of 1999, RETFON organized the first official joint inspection of the River by DSN and Federal Government of Nigeria (“FGN”) officials. The result was the immediate closure of several industrial facilities whose practices were identified as harmful to the River. In one instance the inspection discovered a rubber processing plant directly discharging untreated rubber waste into the River, not far upstream from communities who routinely use the River for bathing and as a source of drinking water. These closures significantly disrupted what had been a steady source of pollution and acted as a deterrent for future violators who chose to operate without an approved Environmental Impact Assessment (“EIA”).
• Building on this momentum, RETFON petitioned the Federal Government through FEPA to intervene in the development of a tourism facility by the hospitality company Hotel and Catering Services Ltd. in April of 1999. The company was engaged in a development effort on the banks of the River without the required EIA, seemingly oblivious to the idea that their actions were harming the source of their potential commercial success. FEPA issued a directive to halt further development until the EIA had been made and approved. When village leaders questioned why RETFON would oppose local development, RETFON highlighted its commitment to preserving and restoring the environment, which benefits both ecosystems and local communities that rely upon healthy waterways.
• RETFON organized a second joint inspection inspection of the River in February 2001. The inspection team was made up of DSN government executives and members of the DSN House of Assembly, led by a member of the DSN Commission for Special Duties the group focused on gully erosion near the heavily trafficked source of the River. The inspection efforts yielded the immediate award of a contract for the control of gully erosion in the Ebede community, approximately five kilometers from the River source. Controlling gully erosion is crucial to reducing the amount of contaminated storm water runoff. This type of husbandry further demonstrates RETFON’s approach of simultaneously solving a pressing issue while building public interest and support—in this case stakeholders were inspired by the idea of two arms of their state government working together to perform actions popularly viewed as restrictive towards industry and commerce.
• In June 2012 RETFON was awarded a United Nations Development Plan-Global Environment Facility grant (UNDP-GEF).[9] The UNDP-GEF grant supported a project to restore and conserve the source of the River. The tangible efforts were afforestation and the development of a plant nursery. Less visible but equally important results were leading by example, the fostering of environmental awareness, policy reform advocacy, emphasis on environmental monitoring and evaluation, and the opportunity for the DSN government and stakeholders to work together towards a mutually beneficial cause.

RETFON has continued to work with local stakeholders and government to defend the health of the River Ethiope and surrounding communities. RETFON offers workshops and educational opportunities, including outreach to University students. Student involvement is understated in its importance; RETFON offers students what is often their first application of theory to practice. Furthermore, the introduction of students to environmental awareness helps to create a generation that considers such awareness normal as opposed to radical.

VII.  The Rights of Nature Approach

Earth Law Center (ELC) is proud to support RETFON on a new campaign to seek legal rights for the River Ethiope. To date, RETFON and other leaders have made remarkable progress in protecting the River Ethiope by working with local stakeholders, enforcing current environmental laws and calling for policy change where necessary. However, RETFON recognizes that the only permanent method to restore this river to health is to give it legal rights that are equivalent to those enjoyed by humans and other entities. And considering the immense ecological, religious and cultural significance of the river, it is a prime candidate to be the first river in Africa to have its inherent rights recognized.

Although achieving a substantial paradigm shift like legal rights of rivers is always difficult, RETFON enjoys support from community leaders, governmental departments, and national and international actors. In particular, the younger generation is deeply inspired to protect the environment in Nigeria. Therefore we are confident that the campaign will be a success.

What are the rights to which the River Ethiope might be entitled? Earth Law Center (“ELC”) enumerated the basic rights to which all rivers are entitled in the Universal Declaration of the Rights of Rivers. At baseline, they consist of (1) the right to flow, (2) the rights to perform essential functions within its ecosystem, (3) the right to be free from pollution, (4) the right to be fed from sustainable aquifers, (5) the rights to biodiversity and (6) the right to restoration.[10]

These rights are intentionally drafted broadly to give stakeholders and government the opportunity to adapt them to local needs. Under RETFON’s leadership, and considering the wisdom and input of local communities, ELC’s legal experts will provide counsel on how to define and implement the rights of the River Ethiope. And in the meanwhile, RETFON’s bilateral efforts will continue to build precedent until a valid argument can be made that the River Ethiope is exercising its legal rights in every capacity, and all that remains is formal recognition.

VIII.  Next Steps

ELC has partnered with RETFON in our shared goal of establishing rights of nature, including rights of waterways. The next step is for ELC to develop a full awareness and understanding of DSN and FNG structures and procedures to plan and communicate intelligently. We will then begin discussions with RETFON on how to best provide legal rights for the River Ethiope, drawing from ELC’s international experience and RETFON’s decades of local success. RETFON will then work with local communities to ensure that rights for the River maximize human and environmental well-being. We are extremely excited for the months to come.

IX.  How to Help

To assist our efforts either with this specific partnership or in general please look at the following options:

1.  Donate to ELC

2.  Volunteer with ELC

3.  Contact ELC if you want to work on your own river rights campaign

4.  Have your organization sign the Declaration of River Rights document

5.  Connect with us on social media and sign up for our newsletter

X.  Conclusion

RETFON’s efforts have gone a long way at the “ground level” by securing and performing manual project designed for immediate impact. They can be viewed as individual bricks in a foundation upon which to construct RETFON’s long-term goals of legitimacy and awareness, both by stakeholders and the State and Federal governments. And while these victories are necessary and inspiring, they can only be made permanent by establishing legal rights for rivers.

Ideally this one instance will be the first domino to fall in the extended effort to address and reverse the degradation of all Nigerian rivers. While at present difficult to fathom, it is important to remember that sweeping changes of this kind are preceded by the suffragette and Civil Rights movements in the United States, and were met by a range of oppositional tactic while the voting public struggled with the introduction of groundbreaking departures from tradition.[11] By establishing legal rights for the River Ethiope, we hope to create a replicable model for all – to usher in a new era of living in harmony with the waterways upon which we rely.

XI. Afterword

My thanks go to Mr. Irekefe V. Dafe, President and Founder of the River Ethiope Trust Foundation for his valuable assistance in providing background material and educating ELC on RETFON’s impressive efforts and history. It is safe to assume that any missing citations are the problem children of unpublished documents sent to ELC by Mr. Dafe, and equally safe to assume that, as such, the facts are trustworthy. Although I have done my best to paraphrase rather than simply copying and pasting there is a fine line between the two results, made finer by my fear of distorting the meaning and emphasis. Please forgive me if such a misrepresentation has occurred, and I look forward to assisting in the development of this partnership.

---

[1] Author’s note: as yet unexplored and without precedent, that same standard exposes the river to liability as a defendant; it is difficult to imagine a set of circumstances giving rise to litigation of this kind, and the issue is academic at the moment and of course dependent on future events.

[2] https://www.internationalrivers.org/resources/irikkefe-v-dafe-river-ethiope-7850

[3] https:en.wikipedia.org/wiki/Delta_State

[4] F.O. Arimoro, E.A. Kaine, B.O. Krumale, & S. Obiegba, "Ecological Observations, Preliminary Checklist and Conservation of Mammals Occurring Within the Eastern Boundaries of Ethiope River, Niger Delta Area of Nigeria," J Biodivers Biopros Dev 1: 104 (2014) at: https://www.omicsonline.org/open-access/ecological-observations-preliminary-checklist-and-conservation-of-mammals-occurring-within-the-eastern-boundaries-of-ethiope-river-niger-2376- 0214.1000104.php?aid=26278

[5] https://www.facebook.com/retfon/

[6] Dafe V. Irikefe and Irwin A. Akpoborie, "Implementing IWRM in the Ethiope River Watershed: The Role of Advocacy," Kaduna NIGERIA Workshop Paperat: http://mucp-mfit.org/wp-content/uploads/Dafe-and-Akpoborie-_-IWRM-at-ERC-Compatibility-Mode.pdf

[7] S.A. Osakwe and B.O. Peretiemo-Clarke, "Evaluation of Heavy Metals in Sediments of River Ethiope, Delta State, Nigeria," 31st CSN Conference paper 611-613 (2008) at: https://pdfs.semanticscholar.org/a2b1/5047a38c416e5b5b798ddb1b55d2e8a7c81c.pdf

[8] http://www.environewsnigeria.com/wrd-nigeria- rivers-fall- standards/

[9] http://www.undp.org/content/undp/en/home/funding/funding-channels.html

[10] https://www.earthlawcenter.org/river-rights/

[11] Pecharroman, Lidia Cano, Rights of Nature: Rivers That Can Stand in Court.  AC4, Columbia University 2018, 2; citing Stone, C.D. Should Trees Have Standing?⎯Towards Legal Rights for Natural Objects.  South. Calif. Law Rev. 1972, 45, 450-501.

The Amazon River Needs Rights Recognition Now

Photo credit: Yann Arthus Bertrand

By Raquel Hiebra

The River

The Amazon River, with an average flow rate of 215 million liters per second, wins the title of world’s largest river in terms of water volume.[1] In one single day, the Amazon discharges more water into the ocean than the Thames River does during the whole year.[2] This volume of water is equivalent to 20% of the world's river waters.[3] Moreover, at 6,868 km. (4,267.5773 mi.),[4] the Amazon competes with the Nile for the title of world’s biggest river in terms of surface area.[5]

The Amazon starts in Peru, at the Andes Mountains, and flows through Brazil before meeting the Atlantic Ocean. In Brazil, the river arrives as the Solimões and becomes the Amazon when it meets with the Negro River.[6] At this meeting, Solimões’ clear waters do not mix with the Negro’s dark waters, the result is a beautiful natural phenomenon.[7] Pororoca is another unique natural phenomenon which is best observed in September and March, during the biannual equinoxes. On higher ocean tides (new and full moons), water flows in from the Atlantic to the river, causing a reverse flow in which waters run upstream with great force, forming a tidal bore with an audible noise.[8]

The Amazon river basin covers an area of more than 7,000,000 square kilometers (2,702,715 square miles), and has more than 1,000 tributaries.[9] It is the largest basin in the world and runs through Peru, Colombia, Ecuador, Venezuela, Guyana, Bolivia and Brazil.[10]

Francisco de Orellana was the first European to travel from the source to the mouth of the Amazon, and he was the one that named the river as Amazon, because female warriors holding bows and arrows constantly attacked his expedition, reminding Orellana of the Amazon warriors from Greek myth.[11]

Archaeologists estimate that more than 3 million indigenous people lived in the Amazonian basin in the pre-Columbian period. These civilizations were highly developed due to selective cultivation, and use of fire to grow crops in a more fertile land.[12] Reports from the first Europeans to explore the basin, during the 16th and 17th centuries, mention the abundance of food, and the high population density of numerous "nations" that inhabited the region.[13]

However, rapid depopulation occurred during the colonization period due to war, slavery, and the spread of new viruses. Furthermore, the Catholic Church, responsible for converting indigenous peoples to Christianity, did not contribute to keeping their culture and values alive. Between 1750 and 1850, the indigenous Amazon population became the minority in the region.[14]

Regardless of all threats, the Amazon’s indigenous population managed to survive. In Brazil, there are around 180 Tribes with almost 208,000 people living in the Amazon region.[15] Currently, most of the Tribes do not rely entirely on their traditions to survive, however, growing of crops, hunting, and fishing are still crucial to them.[16]

There are also a lot of small communities that live across the Amazonian basin. In Amazonas, a Brazilian state crossed by the Amazon River, there are around 350 small communities that live on the river’s banks with approximately 37,000 people. Most of the communities were formed at the end of the 19th century due to rubber exploitation. Although the rubber cycle has declined, small groups remained in the region, forming small communities.[17]

The population of the riverbank communities faces the lack of crucial public services such as basic sanitation. Most of them do not have any medical support, and it may take two hours for a student to commute to the nearest school.[18] In practice, the Amazon supports the basic needs of such communities by providing water, fish, and transportation. Moreover, besides governmental support, any fish surplus is the main source of their low income[19].

Regarding its biodiversity, the Amazon’s basin encompasses a variety of landscapes and ecosystems, including the biggest rainforest on the planet, other rainforests, floodplain forests, and savannas[20]. It has the world’s greatest diversity of fish, with more than 3,000 species.[21] Moreover, its forest possesses a huge amount of stored carbon (90-140 billion metric tons of carbon), which has the potential to accelerate global warming if not stewarded properly.[22]

This description of the Amazon River’s characteristics helps to show the river’s importance, not only for the local people, but also for the planet’s entire ecosystem.

Threats to the Amazon River

Considering its great importance, it is natural to think that such a river should be protected and not jeopardized in any way, correct? However, unfortunately it is not a reality. The Amazon has to fight daily threats in order to follow its flow.

The Amazon rainforest is being cut down to free land for raising crops and cattle farming, affecting the river, which in some areas is presenting a higher level of pollutants such as phosphorus, carbon, and nitrogen. Studies from 2002 performed at Ji-Paraná River, an Amazonian basin river, revealed that in deforested areas elements such as carbon, phosphorus and nitrogen that would normally be absorbed by the forest and its soil are being carried into the rivers due to rains and the erosion of the rivers’ banks. The electric conductivity[23] found on tributaries of Ji-Paraná (Rolim de Moura, Urupá, and Jaru) showed a rate of 50 to 100 μS/cm, values that are 20 times higher than those found in preserved areas of the basin.[24]

Moreover, frequent forest burnings, aiming to open space to grow cattle and crops, decrease fauna diversity. After a burning, 78% of animals and plants are reduced[25]. Such burnings also affect the surrounding fauna of the Amazon river, changing the species that live in the river, its biodiversity, and the river’s own metabolism[26].

When the river crosses Macapá, a Brazilian city which concentrates most of the population of Amapá, it suffers with the discharge of untreated sewage. On average, each of Macapá’s citizens produces half a liter of sewage per day which goes directly into the Amazon river and its tributaries.[27]

The Amazon river is also impacted due to damming. There are 140 hydroelectric dams in operation or under construction along the river, and there are proposals for another 428 dams. Considering these projects, scientists argue that even if only a fraction of such dams are implemented, impacts on the river will be disastrous. The huge number of dams will retain most of the river’s sediments and nutrients, stifling life for species from the river. A broad study involving ecologists, engineers, economists, and geologists from universities around the world concluded that no river in the world, not even the huge Amazon, could survive 568 dams.[28]

In addition, activities such as commercial fishing, bio-piracy, poaching, logging, and mining[29] do not contribute to improving the odds of the Amazon river.

Selling Off Amazon’s Biodiversity

A bid promoted by the Brazilian government in 2013 sold the rights of oil exploration in the Amazon’s estuary, which was acquired by a consortium of companies, among them, the French Total, and the British BP (responsible for the largest marine oil spill in the history of petroleum, in the Gulf of Mexico in 2010). Currently, Total, BP, and another 3 companies have opened environmental processes within IBAMA (Brazilian Environmental Agency) seeking environmental licenses to start off their activities in the Amazon’s estuary.

Oil Spills in the Amazon’s Fragile Ecosystem

Another of the daily threats faced by the Amazon is the risk of oil spills in its estuary. A problem that if it occurs, besides the devastation of the river and the sea’s ecosystems, would also threaten one of the largest reef systems in the world.

The reef was revealed to the world in 2016. It presents a unique ecosystem with a rare and, so far, unknown diversity of species. Researchers estimate the reef covers an area of 50,000 km² (19305.11 mi²). Scientists have already recognized 40 species of corals, 60 species of sponges (29 previously unknown), and 73 species of fish.[30]

At least, among other elements, the new reef helped IBAMA to delay the issuance of their licenses until the completion of environmental studies. In August 2017, IBAMA required additional information related to Total’s license process, due to the discovery of the coral reef. In December 2017, IBAMA also did not issue the license to BP, and required additional information related to its process. Such requirements of additional information are a signal that the licenses will not be issued at the present moment, but it does not mean that a license will not be issued once Total and BP complete their process.[31] Moreover, the Brazilian government suspended any new bid processes to exploit oil in the area until 2019.[32]

Environmental groups are watching such processes closely. Greenpeace, which helped to release information about the reef, supports the campaign “Defend Amazon reef”, and fights to pressure oil companies to not exploit oil in Amazon’s estuary. There is an online petition urging Total and BP to cancel their plans to drill oil near Amazon’s reef.[33] 

Although oil exploitation in Amazon’s estuary has not yet begun, it is an activity that has been developed in the Peruvian Amazonian basin for more than 40 years, and its negative impact in the Western Amazon is a sad reality for the environment. More than 190 oil spills have been recorded in Peru since 1997, according to Peru's energy and mining agency. [34] In 2016 alone, 7 oil spills, representing an amount of almost 10,000 barrels, happened in the Peruvian Amazon. [35]

Scientists still do not know the real impacts of such spills in the long-term in the Peruvian Amazon. However, a study from January 2016, by Peru's National Institute of Health, pointed out that the levels of lead, cadmium and mercury in the blood of Amazonian children who live in affected areas were higher than those allowed in adults — and that it could affect their cognitive and motor development. [36] Another study from 2014, conducted by Rosell-Melé, an environmental chemist at the Autonomous University of Barcelona, showed tapirs and other species of mammals ingesting soils contaminated with oil compounds in the damaged areas of the Peruvian Amazon. [37] The point is, indigenous communities, which depend on the river for fresh water and fish, also hunt such animals. In the oil damaged region of Loreto alone, there are 500 indigenous territories, and five reserves for people in voluntary isolation. [38]

Oil exploitation is also a reality in the Amazonian basin of Ecuador. Chevron has exploited oil in this region for more than 30 years, and its activities caused widespread devastation of the ecosystem, and severely affected indigenous communities. To name a few examples, such exploitation resulted in 18 billion gallons of wastewater being dumped into rivers and streams; the construction of more than 900 open-air, unlined toxic waste pits that leach toxins into the soil and groundwater; release of contaminants through spills, spreading oil on roads, gas flaring, and burning of crude; and the creation of a pipeline and road system that has opened pristine rainforest to uncontrolled and widespread clearing, resulting in more than a million acres of deforestation. [39] At the height of its operations, Chevron was dumping an estimated 4 million gallons of oil per day. [40] 

Currently, more than 30,000 people are in a class action lawsuit in Ecuador fighting to hold Chevron accountable for the damage. The contamination of the waters directly impaired the lives of tens of thousands who relied on the waters for their daily activities. Scientific surveys pointed out that the rates of cancer are elevated in areas of oil contamination. Studies have also found high rates of childhood leukemia, and an atypical number of miscarriages. Moreover, children have been born with birth defects. [41]

What Rights of Rivers Would Look Like for the Amazon

Now, imagine how it would be if the Amazon River had rights, how it would be if it could stand up for its legal rights in a court of law. Rights that would include the right to flow; the right to perform essential functions within its ecosystem; the right to be free from pollution; the right to feed and be fed by sustainable aquifers; the right to native biodiversity; and the right to restoration[42].

Personhood for rivers has already been recognized in New Zealand, India,[43] and Colombia, and nature’s inherent rights are recognized in the Amazonian basin bathed countries of Bolivia and Ecuador. Thus, why not apply the same rights to the biggest river on the planet? Why not give the Amazon the chance to stand for its rights and fight against unsustainable exploitation?

If the Amazon had full legal rights, then any unsustainable exploitation that would impair those rights could be challenged, with the river itself having standing in a court of law. When making such a claim, the river would be considered a legal entity, fighting for its own legal rights. In practice, humans would have to stand in a court of law to enforce such rights on behalf of the river, acting as legal guardians – a model that is already familiar to lawyers who represent children, disabled persons, and so forth. This model would in turn empower local communities, environmental groups, and others seeking to support the river’s rights.

Why not take the example of Vilcabamba River, a successful example of a river that enforced its rights, and let the Amazon fight for justice against whoever threatens its rights? As background, in the Vilcabamba River case, a construction project aiming to widen the Vilcabamba-Quinara road was depositing large quantities of rock and excavation material in the Vilcabamba River, increasing the river’s flow and the risk of flood disasters during the rainy  season.[44] The Ecuadorian Appeal Court granted a constitutional injunction in favor of the fundamental rights of the Vilcabamba River, ruling that the Provincial Government was responsible for causing significant damage to the Vilcabamba River, and ordering the restoration of the affected river corridor.[45] In other words, the government had to make the rights-bearing Vilcabamba River whole again.

Now, based only on the threats briefly mentioned above, imagine all of the reparations orders and rulings against future and imminent threats that could favor the Amazon River if it had rights. Rights for nature, including rights for our most precious and important rivers, seems to be the next logical step in our environmental governance, especially if we believe in a sustainable planet for future generations.

After all, economic benefits from the environment will not exist without an environment to support it!

---

[1] https://super.abril.com.br/ideias/rio-amazonas-agua-agua/

[2] Id.

[3] Id.

[4] http://mundoeducacao.bol.uol.com.br/geografia/o-rio-amazonas.htm

[5] https://pt.wikipedia.org/wiki/Rio_Amazonas#Extens%C3%A3o

[6] Id.

[7] Id.

[8] https://en.wikipedia.org/wiki/Pororoca

[9] https://pt.wikipedia.org/wiki/Rio_Amazonas

[10] http://ambientes.ambientebrasil.com.br/amazonia/bacia_do_rio_amazonas/bacia_do_rio_amazonas.html

[11] http://riosdelplaneta.com/rio-amazonas/

[12] Id.

[13] http://www.scielo.br/scielo.php?script=sci_arttext&pid=S0103-40142005000100015

[14] Id.

[15] Id.

[16] https://es.mongabay.com/2007/11/habitantes-del-amazonas/

[17] https://oglobo.globo.com/sociedade/nas-vilas-ribeirinhas-do-amazonas-37-mil-pessoas-carecem-de-medicos-saneamento-14635488

[18] Id.

[19] Id.

[20] http://wwf.panda.org/what_we_do/where_we_work/amazon/about_the_amazon/

[21] https://www.todamateria.com.br/bacia-amazonica/

[22] http://wwf.panda.org/what_we_do/where_we_work/amazon/about_the_amazon/

[23] a measurement used to determine water quality

[24] http://revistapesquisa.fapesp.br/2002/04/01/o-alerta-da-poluicao-nos-rios-da-amazonia/

[25] http://amazoniareal.com.br/queimadas-destroem-78-da-biodiversidade-da-amazonia/

[26] https://pib.socioambiental.org/pt/noticias?id=39091

[27] http://g1.globo.com/ap/amapa/noticia/2013/11/rio-amazonas-e-tao-poluido-quanto-o-rio-tiete-diz-ambientalista-no-amapa.html

[28] https://brasil.elpais.com/brasil/2017/06/14/economia/1497430161_506854.html

[29] https://www.rainforestcruises.com/jungle-blog/threats-facing-the-amazon-rainforest

[30] https://www.uol/noticias/especiais/corais-da-amazonia.htm#novos-leiloes-estao-previstos-para-2019

[31] http://epbr.com.br/foz-do-amazonas-bp-tambem-vai-complementar-estudos/

[32] https://www.uol/noticias/especiais/corais-da-amazonia.htm#tematico-1

[33] https://amazonreefs.org/

[34] http://www.dw.com/en/repeated-oil-spills-threaten-perus-amazon/a-35934538

[35] Id.

[36] http://www.dw.com/en/repeated-oil-spills-threaten-perus-amazon/a-35934538

[37] https://www.scientificamerican.com/article/oil-spills-stain-peruvian-amazon/

[38] Id.

[39] http://amazonwatch.org/work/chevron

[40] Id.

[41] Id.

[42] Universal Declaration of River Rights at https://www.earthlawcenter.org/river-rights/

[43] Unfortunately, the Supreme Court of India stayed the decision of the Uttarakhand High Court to recognize the rights of the Yamuna and Ganga Rivers, although efforts continue to permanently recognize the rights of these and other waterways in India.

[44] https://therightsofnature.org/first-ron-case-ecuador/

[45] http://www.gardenofparadise.net/Garden_of_Paradise/Rights_of_Nature_Lawsuit.html  and https://www.theguardian.com/global-development-professionals-network/2017/apr/21/rivers-legal-human-rights-ganges-whanganui

How Can Earth Law Save Florida?

By Liz Drayer, Clearwater, Florida

STATE OF THE STATE – UH OH

Our state of sunshine nurtures an abundance of plants and animals, wetlands and prairie, rivers and white sandy beach. Owls nest in pine trees and panthers still prowl the cypress swamp. But this subtropical Eden faces threats from concrete canyons and strip mall sprawl. We pave over tortoise burrows, raze palmettos to make way for chemical-fed par four playgrounds. More bodies crowd in every day, demanding condos and diesel to power their toys.

PAVING HAPPENS

During the last century, Florida lost millions of acres of forest and wetlands to development. As a result, today dozens of mammals, birds, reptiles, fish, coral and other creatures crowd the state’s list of endangered species.

Florida’s crystal-clear springs once drew dignitaries and day trippers seeking cures for their ailments. But the once boiling waters now stagnate, polluted by salt and nitrates, fueling toxic blooms that threaten our health, instead of protecting it.

From the Panhandle to the Keys, growth and booming tourism continue to claim natural areas. Estimates predict the state’s population will double during the next fifty years, putting millions more rural acres at risk. Wildlife and humans will compete for shrinking land and water, and the wildlife will surely lose out. Across the state, lagoons, bays and estuaries are collapsing from chronic pollution and crippled drainage, made worse by alternating drought and El Nino downpours. Ecosystem decline threatens sea grass, fisheries, recreation and local economies. Experts estimate wading birds in the Everglades have declined by 90 percent. Invasive plants and animals have forced out native species. Oil companies threaten to drill in the Gulf on a regular basis. So far public outcry and leadership has thwarted their plans, but for how long?

EARTH LAW TO THE RESCUE

How can we save the nature we have left and revive what we’ve lost? Enter Earth Law, granting legal rights to the Everglades, sea oats and sparrows. No less than the Supreme Court’s Justice William O. Douglas proposed giving rights to nature over forty years ago. Earth Law can help us save crocodiles from extinction, reduce disease, buy time for sinking coastal communities. It can help tourism grow when we beautify beaches and parks, fueling the economy for future generations. How can Earth Law transform Florida?

Jenny From the Block Representing Flipper. Earth Law gives nature the right to flourish and lets citizens enforce that right in court. Imagine sea turtle nests threatened by a new high-rise hotel. A turtle lover could petition the court to stop hotel construction. To persuade the judge, the turtle lover could show that the hotel’s artificial lighting will make it hard for hatchlings leaving the nest to find the sea. She can show how seawalls and sandbags that protect upland construction will degrade turtle habitat. She could argue the litter and tar from hotel operations will pollute frontal zones where baby sea turtles live. Top that off with some photos (courtesy of the Sea Turtle Conservation League of Singer Island) showing the threat simple lounge chairs pose to our native reptiles, and she’s built a strong case. Does all this involve time and effort on her part? Sure, but many facts she needs to argue her case appear online, published by government agencies who should be protecting these creatures in the first place.

Take the case of a new subdivision in East Palatka which brings Hummers and Harleys demanding more parking. Let Palatkans stand up for the live oaks in the bulldozer’s path. Who better to speak for those stately emblems of the south, hardy in hurricanes, granting sweet shade through the sweaty summer? Natives know some of these trees are so large you can see them from space, and the USS Constitution was nicknamed “Old Ironsides” because her live oak hull survived cannon fire.

Neighbors of the oaks can describe their joy watching sapsuckers, turkeys and bears feasting on the trees’ sweet acorns. Just what would those creatures eat in the new parking lot, inquiring minds will demand. They’ll fret for the threatened scrub jay which nests in live oaks, and for the birds which use the moss to build their nests. Why, people will ask, should we trade these delights for more traffic and exhaust fumes?

SLAPP Them Back. What if meanie developers punish citizen advocates with baseless lawsuits meant to silence them? Strategic Lawsuits Against Public Participation (SLAPPS) have defanged community rights in the past. Earth Law can make them illegal, as many jurisdictions already have done. Over half of US states have enacted anti-SLAPP statutes, including California and Texas, and an effort to pass federal anti-SLAPP legislation is underway.

Show Me the Money. Few average Joes have the cash for lawyers and litigation. To encourage citizens to speak up for nature in court, Earth Law can shift the burden of proving a project won’t do any harm onto those proposing it. Make phosphate mine owners pay for consultants to prove their runoff won’t turn Tampa Bay to green slime. If costs are still too high for individual litigants, they can band together or partner with nonprofits, aided by leverage gained when industry shoulders its share of the costs. At least one US crowdfunding site supports environmental lawsuits, and more are sure to pop up as this method of financing citizen rights grows in popularity.

Oh No You Didn’t. Ideally, granting nature’s rights to ecosystems can help protect them before they’re imperiled. Say your local Earth Law ordinance guarantees residents rights to clean water, clean air and sustainable food. Use this guarantee to prod the city council to plant urban forests. Join with your neighborhood association, and show that trees clean the air by absorbing carbon dioxide and producing oxygen, filter pollutants from water and recharge underground aquifers. Trees that produce fruit and nuts can provide food to the community. 

What if your best efforts can’t protect the eagles and armadillos? Earth Law can empower courts to enjoin harmful acts and order restoration. Boneheaded boaters keep mowing down manatees in the Gulf? Ban motorized vehicles from the creatures’ favorite hangouts, and designate safe zones for boating that won’t harm wildlife. Don’t let developers foul the state’s irreplaceable springs, then cut and run. Make them clean up the mess.

Special Victim Earth. Many polluters treat fines they incur for harming ecosystems as a cost of doing business. To get their attention, Earth Law can expand criminal penalties for the worst wrongs, and make corporate officials think twice before pumping carcinogens through your faucet. The US EPA does impose criminal penalties for certain violations, taking into consideration the defendant’s knowledge and negligence. Still, civil actions are far more common than criminal ones. Earth Law can stiffen the penalties and increase prosecutions. A growing number of countries, including Australia and Canada, impose long prison terms for abusing animals. The case for criminalizing nature abuse may be even stronger; we depend on a clean and healthy environment for our own survival.

YOU CAN MAKE EARTH LAW HAPPEN

But it Won’t Be a Walk in Suwannee State Park. Florida’s still a long way from giving rights to rivers and reptiles. Several countries have tried it, as have dozens of US communities, including Pittsburgh, Pennsylvania and Santa Monica, California. Efforts are ongoing to enshrine nature rights in the constitutions of Colorado, New Hampshire, Oregon, and Ohio. Still, nature rights laws have been challenged in court, and thorny issues still need sorting out. Where do rights of whooping cranes end and rights of orange growers begin? How will rights for nature fit in with the maze of laws on the books? There’s little doubt these new rights will be used in ways we don’t foresee. But none of these hurdles should stop us. If we need to amend the US constitution to safeguard natural systems once and for all, we’ll make it happen. When millions of us demand change, once-distant goals move ever closer.

No Pain, No Green. We won’t escape short-term dislocations as we replace dirty businesses with sustainable ones. But we can weather them. Remember the industry doomsayers back in the seventies when we passed clean air and water laws. Business adapted, and will adapt again.

EARTH LAW MUST RULE

Status Quo Equals Suicide. Runaway population growth, overconsumption, and a host of human bad habits threaten not just Florida, but the planet we depend on to survive. Either we save the earth now, or our species is doomed. But if we force a sea change, benefits abound. It’s not too late to fix the damage we’ve done, but we’ve got to get going. What sounds like mission impossible now needs strong leaders and grass roots support. We can win rights for nature, and someday they’ll seem as normal as women voting in elections. Can it be we’ve enjoyed this right for less than a century? Yes, it can. What’s radical one day becomes the routine and we don’t question it. Someday, Floridians will look back at how we abused our great state, and wonder what their clueless ancestors could have been thinking.

Evolving California’s Water Governance

By Earth Law Center

History of Water in California

For millennia, California’s native peoples understood that the environment had intrinsic value – even that it possessed thoughts and feelings. “Nature was neither the enemy nor simply a means to an end or a commodity to be exploited for wealth or power.”[1] In particular, native Californians deeply respected the health of rivers and streams, often considering them sacred. It was particularly unthinkable that water – essential to all life – could be bought or sold.

But things began to change in the 1700s as the Spanish introduced to California the perspective that nature – including water – was “property” to be subdued. According to historic Spanish law, “Man has the power to do as he sees fit with those things that belong to him according to the laws of God and man.”[2] But even Spanish law respected environmental limits, and no person was given a superior right to water that was to the detriment of another.

When the 1849 Gold Rush began, emerging state water laws all but eliminated environmental considerations. With gold mining requiring vast amounts of water, the massive influx of settlers turned to a “first in time, first in right” rule to allocate it.  This is called the “appropriative” doctrine. The “riparian” water rights doctrine also emerged around the same time, allowing a landowner to use a portion of the water that flows adjacent to his or her land. The appropriative and riparian water rights doctrines make up the “dual water rights system” of California.

Contrary to native Californian custom, the new legal system encouraged waste and permitted ecological degradation. And contrary to Spanish legal traditions, equity and justice were no longer primary considerations. Above all, the idea of water as a private “good” or “resource” became engrained into law and culture.

The Result of Flawed Water Governance

Flashing forward to modern times, California’s water laws have remained stagnant, and the same flawed legal principles subsist today as then – including the steadfast notion of water as property rather than a shared necessity for all. And while there are new legal protections for waterways, such as the Clean Water Act, they have failed to reverse the tide of environmental degradation. A primary reason is that such laws still operate within the same flawed paradigm of waterways as economic engines.

The result of this system has been the vast over-allocation of water across California – with very little (or sometimes none) left for waterways themselves. In fact, the amount of surface water allocations on paper exceeds California’s actual freshwater supply by about fivefold.[3] Although not all of these water rights are utilized, there is a clear imbalance between the amount of water allocated for human uses – those that are wasteful and unnecessary – and waterway needs.

Reduced freshwater flows to California’s inland waterways, estuaries and coastal habitats have resulted in serious ecological impacts. In fact, over 70% of California-native freshwater fish species are threatened or endangered mainly due to flow changes caused by over-diversions.[4]  For example, reduced freshwater flows to California’s inland waterways, estuaries and coastal habitats have contributed to reductions in population of five steelhead and five salmon species now listed as threatened or endangered.[5]  Moreover, marine predators such as the Southern Resident killer whale and the Southern DPS (Distinct Population Segment) green sturgeon are also endangered due to reduced populations of the California-native freshwater fish they depend on for food. 

Report on 21st-Century Water Governance

Considering many of these challenges, in February 2017, Earth Law Center (and collaborators at Stanford) released a report on evolving California’s water governance, titled “Re-Envisioning California Water Law and Policy for the 21st Century” (available at: https://www.earthlawcenter.org/california-waterways/). The report offers a blueprint for a sustainable water future. Specifically, it addresses California’s flawed water allocation and management system and presents alternatives that would maximize the social and environmental well-being of both humans and nature.

The report addresses many of the flaws in California’s water governance. For example, the state of California often touts water markets as a potential solution to water overuse. However, this approach will only further entrench our dysfunctional water system by directing water towards the most profitable use – i.e., the use with the highest bidder – rather than the most socially and ecologically beneficial use. A market approach treats water as "property" to be bought, sold, and profited from. Water should instead be treated a life-sustaining and inherently public entity.

Rather than a goal of selling water to the highest bidder, California’s approach to water governance must answer the question: “how should our state share something that is fundamentally essential to the life and vitality of all Californians and California’s ecosystems and species?” The answer requires holistically transforming our relationship with water based on a new water ethic – one that takes a holistic view of water as life sustaining and a public and environmental good. And we must implement this ethic through new water governance.

Next Steps

The report describes several approaches that can be taken to evolve water law in policy in California. These include the following:

• Applying readily available but vastly under-utilized protective legal doctrines, such as the waste and unreasonable use and public trust doctrines;
• Developing and prioritizing instream water rights, to ensure that waterways’ needs are highlighted in decision making;
• Funding comprehensive data-gathering efforts on surface flows, groundwater levels, and water withdrawals and uses;
• Enforcing water use rights violations, including allowing for direct penalties for violating water right permits, and creating a streamlined process to act on violations of the waste and unreasonable use doctrine; and
• Simultaneously increasing agricultural and urban water efficiency and reducing demand, so that efficiency savings are not simply translated into more use.

As described above, until only very recently, California embraced a water ethic that respected and shared rivers and streams. This ethic can be met once again if we evolve our laws and choose to create a water future in California that works for all – beginning with the above recommendations. Together, we can transform our current governance system into one that embraces the values of environmental stewardship and harmony with nature, to the benefit of everyone.

---

[1] Norris Hundley Jr., The Great Thirst: Californians and Water—A History, Revised Edition (2001).

[2] Las Siete Partidas (1265 codification of Spanish Law).

[3] Kat Kerlin, "California Has Given Away Rights to Far More Water than it Has," UCDavis (Aut. 19, 2014), at: https://www.ucdavis.edu/news/california-has-given-away-rights-far-more-water-it-has.

[4] Johnson, James, “Imperiled Freshwater Fishes,” National Biological Service; referenced in Pacific Rivers Council Report, supra.

[5] See California Department of Fish and Wildlife, "Threatened and Endangered Fish," at: www.dfg.ca.gov/wildlife/nongame/t_e_spp/fish.html.

Dams + Climate Change = Bad News

By Samantha Stahl

The United States has 9,265 dams, second only to China which has a staggering 23,842.[i]  With climate change causing water shortages and storm surges, this might seem like good news. Dams store water, provide renewable energy and prevent floods. Unfortunately, they also worsen the impact of climate change. They release greenhouse gases, destroy carbon sinks in wetlands and oceans, deprive ecosystems of nutrients, destroy habitats, increase sea levels, waste water and displace poor communities.

Crumbling, badly maintained dams also create a flood risk; endangering lives and putting significant financial strain on local governments and industry.

Dams = water loss

Our systematic overuse of fresh water, in addition to the already worsening effects of climate change, creates a need for artificial reserves. According to the American Water Works Association, in 2010 Americans withdrew 355 billion gallons per day (BGD) from the nation’s water systems; 12 percent for public water supply, 32 percent for irrigation and 45 percent for thermoelectric power.[ii]  The average American uses around 2,000 gallons of water per day.[iii] 

Dams would appear to conserve water by storing it, but the bigger picture shows this is not true.

Generally, reservoirs and artificial lakes have a larger surface area than the rivers and channels that feed them. Larger surface areas expose more water to the sun, which speeds up evaporation. And due to the nutrient rich water from trapped sediment, dams and reservoirs also promote aquatic plant growth. The plants’ transpiration contributes to the already heightened evaporation rate.  Every year, about 170 cubic kilometers of water evaporates from the world’s reservoirs. This accounts for roughly 7 percent of all fresh water consumed by human activities![iv]

A study conducted by the European Water Association on the evaporation rate from artificial and municipal lakes and reservoirs in Istanbul concluded that the amount of evaporation per year was equal to the city’s water needs for about 26 days.[v]

The evaporation also affects the microclimates of the surrounding areas, disrupting natural temperature fluctuations, ecosystems and habitats.  For example, increased evaporation in the region of a large dam changes the moisture concentration of the air, leading to increased heavy rainfall.[vi]  This deprives the surrounding areas of their traditional rainfall patterns, placing stress on ecosystems and municipalities that depend on those patterns. And it leads to an increased rate of storm surges, which can create more frequent and intense flooding than the dam was designed to handle. 

Additionally, dams disturb the flow and composition of the water within rivers and channels. Water released downstream from dams has unnaturally high energy and very little sediment, which causes “hungry water” to run forcefully, eroding the riverbeds, without sufficient sediment concentration to slow it down.[vii]  This deepens the riverbed compared to the surrounding water table, which causes the ground water to rush into the channel and become surface water – a process known as incision.[viii] 

Incision is a natural process in the life of rivers and channels, but exacerbated incision, caused by rapid erosion, results in the draining of surrounding groundwater.  The USGS has reported that between 2000 and 2008 the US depleted enough groundwater reserves to contribute 2 percent of the global sea level rise during that time.[ix]

As of 2012, 40 percent of the world’s major river basins’ renewable water supply had been depleted.[x]  This creates a vicious cycle, where growing demand requires more dams to keep up with fresh water usage. Surface and ground water depletion then accelerates too quickly for natural replenishment to be possible. 

Dams = Habitat destruction

Any dramatic change in river composition stresses both up- and downstream habitats. Habitat loss is the leading cause of extinction. 

Dams disrupt fish and bird migration. The change in the composition of the river interferes with the chemical signals guiding species through their biological processes. And the physical barrier of the dam blocks species from their traditional spawning and rearing locations. As a result of this, pollution, and the effects of climate change, fresh water species have lost 76 percent of their populations since 1970.[xi]  The Snake River running through the Northwestern United States, for example, has 15 dams!  Since the completion of the Lower Granite Dam in 1975, the population of Sockeye Salmon in the region has severely declined; between 1985 and 2007, only about 18 Sockeye Salmon return to Idaho each year.[xii]

Additionally, changes in the timing and flow of the rivers can create conditions which threaten the survival of the species that have evolved to live there.  Any alteration in the structure and composition of the river can have disastrous effects on the surrounding species, in many cases leading to extinction.[xiii]       

Downstream ecosystems suffer from the lack of sedimentation in the water that flows over the dam. Normally, nutrient rich sediment regulates and provides nourishment to downstream habitats.  But reduced sedimentation creates less fertile soil, stunting the growth of dependent species.  The lack of vegetative growth can lead to erosion and to the destabilization of the surrounding areas.[xiv] 

Downstream habitats are also severely impacted by changes in salinity and oxygen levels.  Due to the high rate of evaporation and growth of aquatic vegetation within the reservoir itself, water that travels downstream from a dam usually has a higher salinity content and a lower oxygen concentration than normal.[xv]  This change in the chemical makeup of the water creates detrimental conditions for species that previously thrived in those areas.

Dams also negatively impact ecosystems and habitats upstream.  Trapped river borne nutrients can facilitate the growth of toxic algae blooms.  Communities around the world from South Africa to California have had to impose drinking and swimming bans to protect people from water-borne illnesses. Some dams have killed off fisheries and entire aquatic ecosystems.[xvi] 

Even in less devastating circumstances, the new stagnant water environments created in the reservoir damage the conditions of the existing habitat. They also host non-native and invasive species that further undermine the integrity of the surrounding ecosystems.  

Dams = Greenhouse gases

A recent study found that reservoirs account for about 4 percent of human-made climate change.[xvii]

Most reservoirs, especially those in tropical regions, emit significant amounts of greenhouse gases because of anaerobic bacteria that break down the vegetation at the base of the reservoir, giving off carbon dioxide and methane. 

Additionally, the changes to rivers’ timing, chemical and sediment composition, and flow lead to dramatic variations in floodplains and wetlands, which can cause the destruction of surrounding forests.[xviii]  Deforestation contributes significantly to climate change because the trees no longer store additional carbon dioxide and their previously absorbed carbon is released into the atmosphere. And the drying out of wetlands destroys another valuable carbon sink.

Dams are detrimental to carbon sinks in the ocean as well.  Studies of the Congo River reveal that nutrient- and sediment-rich water from the river drives biological processes deep into the Atlantic Ocean, contributing to algae growth.[xix]  When those sediments and nutrients disappear, the conditions that support carbon dioxide-storing algae break down, destroying the carbon sink along with it.  

Additionally, blocking the sediments traveling downstream can have devastating effects when river deltas are deprived of the silt they need to defend against damage from the ocean.  Without the shoring up of river deltas and wetlands, inland ecosystems and human communities become even more vulnerable against the storm surges and sea level rises caused by climate change.[xx] 

Dams = Earthquakes            

Scientists have attributed over 100 earthquakes around the world to dams and reservoirs,[xxi]  a phenomenon known as Reservoir Induced Seismicity.[xxii]  This happens when extra water seeps into the micro-cracks and fissures under the reservoir and surrounding areas and lubricates faults already under tectonic strain.  The 7.9 Sichuan Earthquake in China in 2008, killed 80,000 people and has been linked to the construction of the Zipingpu Dam.[xxiii]    

Dams = Trouble for people already affected by climate change

Dams displace around 80 million people worldwide.[xxiv]  From the people removed from dam building sites to the people who lose their homes to failing dams, most of the displaced communities come from impoverished areas already affected by climate change.

Dams that displace large populations often cause human rights violations. Authoritarian governments in Burma, China, Colombia, Ethiopia, Guatemala, Sudan and other countries have responded to dam opposition with violence, intimidation and threats. In the worst dam-related incident, more than 440 indigenous people died in the suppression of opposition to Guatemala's Chixoy Dam in 1982.[xxv] 

Additionally, old and failing dams generate both dangers and costs. According to the American Society of Civil Engineers, by 2020, 70 percent of the United States’ dams will be more than 50 years old.[xxvi]  And according to ICOLD, 2.2 percent of dams built before 1950 failed before 1995.[xxvii] 

In 2017 nearly 2,000 state-regulated “high hazard” dams need repair. These are dams that could result in a high loss of life if they fail.  While dam construction technology has advanced and dams built today have improved, it would still cost an estimated $300 billion to secure the world’s dams.[xxviii]  And this is in addition to the $2 trillion that has already been spent constructing dams globally since 1950.[xxix] 

Due to the high cost of maintenance and safety, many of the world’s dams get more dangerous as they age. The Mosul dam in Iraq and the Kariba dam in Zambia rank among the world’s most dangerous.[xxx]  Should the Mosul dam fail, it could result in the death of 500,000 people and deprive millions more of power and water.  The 58 year old Kariba dam could result in 3.5 million dead, leave 40 percent of South Africa without power and cause untold damage to surrounding wildlife, plus the destruction of another nearby dam, the Cahora Bassa.[xxxi] 

The US also hosts several dams close to failure. Earlier this year, fear of the collapse of the Oroville Dam Spillway[xxxii]  resulted in the evacuation of 200,000 people in northern California. While the dam is still intact, the eroding spillway, which is a critical piece of California’s flood control network, will make it difficult for the dam to manage heavy flows and rainfall.  And, in February, the Twentyone Mile Dam in Nevada burst, causing massive damage to private property and local infrastructure.[xxxiii] 

Growing recognition that old and eroding dams pose too high a risk have resulted in a growing number of dam removals. The United States has taken down 1,384 dams since 1912, with a majority of those dams removed in the last two decades, and 72 in 2016.[xxxiv]  Removing damaged and aging dams protects the surrounding population from disaster and allows the rivers to restore their natural and biological integrity.         

Rights of Nature = Healthy waterways + Sustainable relationship  

Fresh water is vital to the functioning of Earth’s hydrologic cycle, the maintenance of aquatic and surrounding ecosystems, and the support of human life.  Preserving healthy and high functioning waterways contributes to controlling global temperatures and sustaining fresh water reserves, among countless other benefits. 

Rivers are important in their own right, but also matter for their ability to maintain the health of surrounding river catchments, floodplains, and wetlands.  If we continue to build dams that destroy our waterways’ ability to support vital ecosystems, we continue a historical paradigm that values short-term progress and developmental achievement over the sustainable health and integrity of Earth’s systems.

We will be on the path to a sustainable relationship with a healthier environment when we recognize that Earth has intrinsic rights to thrive, evolve and flourish. Earth law recognizes that Earth’s inherent rights are separate and distinct from property and ownership rights bestowed by humans. By actively promoting this new paradigm, we can forge a more balanced and reciprocal relationship between human activities and Earth’s natural systems. 

Addressing the flaws in the traditional approach to development and acknowledging the rights and interests of waterways will enable us to better care for the planet and its resources. This will benefit humans too.  By understanding sustainable water management and implementing those principles into our industry and governmental systems, we can better address the causes of waterway degradation.  Through understanding what waterways need to function properly, we can create laws and regulations that can better outline the parameters of human activity. 

Protecting waterway health must be one of the highest priorities when determining how water is used.  If it is not, our waterways will continue to degrade and will be unable to provide the basic functions on which both nature and humankind depend. 

To read about the Universal Declaration for Rights of Rivers, click here.

Consider staying informed and volunteering to support Earth Law Center’s work to protect our planet’s waterways. And if you benefitted from this article, please offer your support ELC continue creating content like this that helps shift the paradigm of environmental law and understanding.

---

[i] http://www.icold-cigb.net/article/GB/world_register/general_synthesis/number-of-dams-by-country-members

[ii] https://www.awwa.org/Portals/0/files/resources/water%20utility%20management/sotwi/2015-AWWA-State-of-the-Water-Industry-Report.pdf

[iii] http://voices.nationalgeographic.org/2010/08/18/american_lifestyle_costs_nearl/

[iv] https://www.internationalrivers.org/resources/how-dams-affect-water-supply-1727

[v] http://www.ewa-online.eu/tl_files/_media/content/documents_pdf/Publications/E-WAter/documents/40_2006_07.pdf

[vi] http://onlinelibrary.wiley.com/doi/10.1029/2009EO480001/pdf

[vii] https://www.wou.edu/las/physci/taylor/g407/kondolf_97.pdf

[viii] https://definedterm.com/incised_river_channel

[ix] https://pubs.usgs.gov/sir/2013/5079/SIR2013-5079.pdf

[x] https://voices.nationalgeographic.org/2012/03/14/are-we-running-out-of-water/

[xi] https://www.internationalrivers.org/node/8326

[xii] https://www.earthlawcenter.org/new-blog-1/2017/11/dam-removal-to-restore-snake-river-to-health

[xiii]file:///C:/Users/Samantha/Google%20Drive/MY%20JOBS/Earth%20Law%20Center/Blogs/Dam%20Blog/Research/Water_Storage_Paper_21.pdf

[xiv]file:///C:/Users/Samantha/Google%20Drive/MY%20JOBS/Earth%20Law%20Center/Blogs/Dam%20Blog/Research/Water_Storage_Paper_21.pdf

[xv] https://www.internationalrivers.org/environmental-impacts-of-dams

[xvi] https://www.internationalrivers.org/resources/how-dams-affect-water-supply-1727

[xvii] https://link.springer.com/article/10.1007%2Fs11027-007-9086-5

[xviii] https://www.internationalrivers.org/resources/how-dams-affect-water-supply-1727

[xix] https://www.internationalrivers.org/environmental-impacts-of-dams

[xx] http://probeinternational.org/library/wp-content/uploads/2011/10/sedimentation.pdf

[xxi] http://www.sciencedirect.com/science/article/pii/S0012825202000636

[xxii] https://www.internationalrivers.org/sites/default/files/attached-files/ris_final_lorez2.pdf

[xxiii] https://www.internationalrivers.org/sites/default/files/attached-files/ris_final_lorez2.pdf

[xxiv] https://www.internationalrivers.org/sites/default/files/attached-files/world_commission_on_dams_final_report.pdf

[xxv] https://www.internationalrivers.org/campaigns/chixoy-dam

[xxvi] https://www.nytimes.com/interactive/2017/02/23/us/americas-aging-dams-are-in-need-of-repair.html

[xxvii] https://www.internationalrivers.org/and-the-walls-came-tumbling-down

[xxviii] https://www.internationalrivers.org/and-the-walls-came-tumbling-down

[xxix] http://www.hydrocoop.org/the-role-of-dams-in-the-xxi-century/

[xxx] https://oilprice.com/Alternative-Energy/Hydroelectric/The-Worlds-Most-Dangerous-Dams.html

[xxxi] https://oilprice.com/Alternative-Energy/Hydroelectric/The-Worlds-Most-Dangerous-Dams.html

[xxxii] https://www.rt.com/usa/377210-dam-disasters-in-america/

[xxxiii] https://www.nytimes.com/interactive/2017/02/23/us/americas-aging-dams-are-in-need-of-repair.html

[xxxiv] https://s3.amazonaws.com/american-rivers-website/wp-content/uploads/2017/02/15104536/DamsRemoved_1999-2016.pdf

Rights of Nature for the Great Lakes

Sunrise on Lake Michigan

By Melannie Levine

The Great Lakes are the largest surface freshwater system on Earth. Few people realize that the Great Lakes hold 84 percent of North America's surface freshwater.[1] Only the polar ice caps contain more.[2] From west to east, spanning over 750 miles (1,200 kilometers), the lakes are: Superior, Michigan, Huron, Erie and Ontario.[3] Each comprise their own unique ecosystems and together form a larger, integrated whole.

The Great Lakes Basin is rich in biodiversity as well, with over 3,500 species of plants and animals. This includes an array of rare, threatened, and endangered animals, including aquatic species such as lake sturgeon.

Despite the Great Lakes being an area of vast biodiversity and rich habitat, its natural ecosystems are being diminished. Threats include pollution, over 180 non-native and invasive species, human alteration of water flows, and more.

To address these and other threats, Earth Law Center (ELC) seeks U.S. and Canadian recognition of the Great Lakes as a legal entity possessing rights. Legal status would ensure permanent and rights-based protections for the Great Lakes, creating legal structures that require that these ecosystems be restored to health. By contrast, our current legal structure treats the Great Lakes and its nonhuman inhabitants as property, incentivizing its destruction.

The Great Lakes touch eight states (Michigan, Wisconsin, Minnesota, Illinois, Indiana, Ohio, Pennsylvania, and New York) and the Canadian province of Ontario. When taking the watershed into consideration, over 30 million people rely upon the water from the five lakes, equating to “10 percent of the U.S. population and more than 30 percent of the Canadian population.”

Climate Change Hurts the Great Lakes

Climate change is having significant negative impacts on the Great Lakes and worsening the impact of other longstanding environmental harms. The situation highlights the need to establish a new legal and cultural relationship with this watershed.

One climate change-driven harm comes from rainfall patterns. Higher-than-average rainfall accumulation in the region over the previous summer season[4] is part of a growing trend. The Great Lakes have seen a 10.8 percent annual increase in precipitation from 1900 until 2012, with a 37 percent increase of heavy storm precipitation over the last half century.[5] While replenishing water levels, the high rainfall also causes flash floods, destroys shorelines, boosts toxic algal bloom, increases sewage overflows, and washes chemicals and agricultural waste residing on topsoil into lake water.[6] This adversely affects ecosystems at both the lakes’ edge and water basin.

The average temperatures along the lakes also have increased. From 1900, the annual average temperature in the Great Lakes region has gone up by 2 degrees Fahrenheit, and this is projected to increase to 11.2 degrees Fahrenheit by 2100. This increase brings about several concerns, including the 71 percent reduction of annual average ice coverage between 1973 and 2010, more algae growth, additional dead zones lacking oxygen, and wildlife species continuing to go extinct.[7] In fact, out of approximately 250 fish species residing in the Great Lakes[8], more than 13 wildlife species have gone extinct since the Europeans first started settling the region.[9]

While temperatures increase, so too does usage of electricity, creating a destructive feedback loop for climate change. Daily water extraction from the lakes to generate electricity went from about half of all water extraction, or 240 million cubic meters, to 95 percent of all daily water extraction, or over 3 billion cubic meters, between 1985 and 2002. “Power plants in the Great Lakes basin [in 2002] withdrew more water for hydroelectricity generation in an hour than was withdrawn in a day in 1985.”[10] This heavy reliance upon electricity only furthers warming air and water temperatures, making the issue worse.[11]

Great Lakes Health Declines Despite 2012 Bilateral Agreement

A recent commission found that the U.S. and Canada have a long way to go toward ridding the Great Lakes of pollution. Inadequately-treated sewage, industrial chemicals and farm runoff still flow into the five lakes, the International Joint Commission said in its first checkup report since both nations last updated the Great Lakes Water Quality Agreement in 2012.

"While significant progress has been made to restore and protect the lakes, the governments of Canada and the United States and Great Lakes civil society as a whole are living with the costly consequences of past failures to anticipate and prevent environmental problems," the report says. "By now, it should be clear that prevention makes environmental, economic and common sense.”[12]

As more people depend on the Great Lakes, the less likely it is that the lakes will replenish.  Human uses of the Great Lakes are many, including  “drinking, cleaning, flushing, crop irrigation, creating electricity, refining, bleaching, distilling, and cooling.”[13]

University of Michigan researchers published a report detailing the greatest stressors found on and around the Great Lakes in the Great Lakes Environmental Assessment and Mapping (GLEAM) project in 2013. These stressors are caused by manmade interventions or activities for either recreational or commercial purposes, also known as ecosystem services. As seen in Figure 1, a map of stressed locations, the harms to these lakes are pervasive and severe.[14]

Figure 1

Pollution Worsens in the Great Lakes

Lake Erie suffers from toxic algae, fed by phosphorus from fertilized farms, cattle feedlots and leaky septic systems. The algae’s toxin, called microcystin, causes diarrhea, vomiting and liver-function problems, and readily kills dogs and other small animals that drink contaminated water. A small bloom of toxic algae even formed directly over Toledo’s water-intake pipe in Lake Erie, miles offshore. Beyond the dangers to people and animals, the algae cause tens of billions of dollars of damage to commercial fishing and to the recreational and vacation trades.[15]

The Great Lakes don’t just have algae to contend with. Legacy contamination plagues the Great Lakes since it can take the lakes decades to rid themselves of toxins.[16] Most of the commonly found pollutants result from improper disposal over decades.[17] The contamination also increases with shoreline construction, erosion and digging (to accommodate larger vessels).

Mercury levels in some species of Great Lakes fish are stable but are increasing in others. Chemicals like the fire retardant polybrominated diphenyl ethers (PBDE) have been found  in the water, air and sediment and also in the wildlife and people who live near the Great Lakes. Exposure to PBDEs has been linked to thyroid disorders, birth defects, infertility, cancer, and neurobehavioral disorders.[18]

Canada’s government promised to spend nearly CAN$9 million to upgrade, renovate and improve the water plant in Neskantaga First Nation, a northern Ontario community that has been without safe tap water since 1995. "For more than 20 years we haven't been able to drink water from our taps or bathe without getting rashes," says Neskantaga Chief Wayne Moonias. Nearly 40 other First Nations in northern Ontario are also without safe drinking water.[19]

These threats to communities underscore the inescapable reality that degrading our ecosystems undermines our own wellbeing. Humans are part of nature and cannot survive without its nourishment. Until we modernize our legal and cultural relationship with nature, our own health will continue to suffer alongside the health of all species.

The Great Lakes Drown in Plastic Pollution

The U.S. and Canada together discard 22 million pounds of plastic into the waters of the Great Lakes each year, according to a new Rochester Institute of Technology (RIT) study. Most of it washes up along the shores, accounting for 80 percent of the litter found there.[20]

Plastic pollution in Lake Michigan equals 100 Olympic-sized pools full of plastic bottles dumped into the lake every year. "Every piece of plastic entering our watersheds is an example of a serious design flaw: we are manufacturing products that have no recovery plan or value after they leave consumer's hands," said Anna Cummins, co-founder and global strategy director of 5 Gyres Institute. "Just as we demand that people dispose of their trash properly, we must also demand that companies take responsibility for the end life of their products."[21]

Unfortunately, the plastic doesn’t go away, but rather gets broken down into microplastic particles of less than one millimeter in diameter, creating a Garbage Patch of microplastic in the Great Lakes. Testing suggests that in terms of concentration there are twice as much microplastic particles in the Great Lakes as there are in oceans across the globe.[22] Rivers flowing into the Great Lakes also contain high levels of microplastics.[23]

Efforts Made to Halt the Decline of the Great Lakes

Many international agreements, like the Great Lakes Water Quality Agreement[24] between the U.S. and Canada, and federal regulations, like the Clean Water Act,[25] as well as state and local water quality standards, now exist.

Other examples of initiatives related to the wellbeing of the Great Lakes include:

• The Remedial Action Plan, which works to reverse the downward trend the Great Lakes have been facing by forming regional partnerships to identify “Beneficial Use Impairments” (BUI) that are causing sections of the lakes to be listed as “Areas of Concern” (AOC)[26]
• The Great Lakes Restoration Initiative, a federal effort initiated in 2009 that funds hundreds of projects at high ecosystem stress sites, representing the largest investment in the Great Lakes over the past two decades[27]
• The Great Lakes National Program Office (GLNPO), which coordinates U.S. efforts with Canada under the Great Lakes Water Quality Agreement (GLWQA) to restore and maintain the chemical, physical and biological integrity of the Great Lakes Basin Ecosystem[28]

Despite the good intentions of these efforts, we must realize that they have yet to restore the Great Lakes to health. ELC argues that such programs do slow down the degradation of Great Lakes ecosystems, and that without such efforts the rate of environmental degradation would have been much worse. However, a new approach recognizing the rights of nature is necessary to restore the Great Lakes to health and ensure their long-lasting protection.

Rights of Nature for the Great Lakes

A growing movement in the U.S. and worldwide seeks to recognize and enforce fundamental rights for nature. Like other rights-based movements before (e.g. women’s rights, anti-slavery, and so forth), the movement to establish rights for nature seeks to ensure that the rights of ecosystems are both recognized and enforced in a court of law.

Establishing legal rights for the Great Lakes would provide long-lasting protection for this unique, important ecosystem. It would also ensure that nature’s needs are always met rather than only when it is convenient. An entity that is treated as mere property lacking rights, as nature is now, will never have its interests fully represented. ELC seeks to change this dynamic for the Great Lakes in partnership with Sacred Land Sacred Water.

“The Great Lakes ecosystem is globally imperiled by pollution, water withdrawal, invasive species, agricultural runoff and the nuclear industry. The Great Lakes holds one fifth of the world's fresh water...ONE FIFTH. Initiating Rights of Nature legal structures is the best way to work within a legal/regulatory system that sees fresh water only as a commodity and not a commons” nots Juliee de la Terre, from Sacred Land Sacred Water.

Legal rights for the Great Lakes will allow local communities and indigenous tribes to serve as guardians of nature to enforce the inherent rights of the ecosystem. So, for example, if pollution is destroying a local waterway, a member of the community can sue the polluter on behalf of the waterway and seek a court order calling for its restoration to health (and an end to the excessive pollution) as a legal right. 

Universal Declaration of the Rights of the Great Lakes

To advance this campaign, ELC has worked with environmental leaders throughout the Great Lakes Region to uphold its rights. This document describes the fundamental rights to which all waterways in the Great Lakes Region are entitled. The document, once finalized (feedback is still welcome), will serve as a blueprint for local communities, tribes, regional and state governments, and, eventually, national governments (i.e. USA and Canada) as they work to recognize and implement the rights of nature within the Great Lakes Basin. We encourage you to review, give feedback on and support us to protect this essential ecosystem!

As the next step, ELC and partners are asking for feedback from interested communities, tribes, and other entities about putting the rights of the Great Lakes into law.

As with any rights-based movement, early adopters are essential to giving momentum to the movement. We are confident that these rights will begin to be put into law in 2018, and that the entire Great Lakes Basin will have legal rights in the near future – to the benefit of humans and nature. 

Does your community want to establish legal rights for the Great Lakes? Contact gwilson@earthlaw.org to learn more.

Want to get more involved?

• Read about ELC’s  online
• Give feedback on the Universal Declaration of the Rights of the Great Lakes
• Volunteer for the Rights of Nature for the Great Lakes Campaign
• Stay informed
• Support Rights of Nature for the Great Lakes

---

[1] https://www.epa.gov/greatlakes/great-lakes-facts-and-figures

[2] https://www.epa.gov/greatlakes/great-lakes-facts-and-figures

[3] https://en.wikipedia.org/wiki/Great_Lakes

[4] https://binational.net/wp-content/uploads/2017/10/GL-Summer2017_Final.pdf

[5] http://glisa.umich.edu/media/files/GLISA_climate_change_summary.pdf

[6] https://binational.net/wp-content/uploads/2017/10/GL-Summer2017_Final.pdf

[7] http://glisa.umich.edu/media/files/GLISA_climate_change_summary.pdf

[8] https://www.glerl.noaa.gov/education/ourlakes/facts.html

[9] https://books.google.com/books?id=g1u9BwAAQBAJ&pg=PP5&lpg=PP5&dq=978-1-55365-197-0&source=bl&ots=jhAuBHfCWK&sig=OWi7OcRiKo3P0wY-4ses2CUbq7k&hl=en&sa=X&ved=0ahUKEwiFkdqKw6_XAhUCxYMKHdcnC10Q6AEIKDAB#v=onepage&q=978-1-55365-197-0&f=false

[10] https://books.google.com/books?id=g1u9BwAAQBAJ&pg=PP5&lpg=PP5&dq=978-1-55365-197-0&source=bl&ots=jhAuBHfCWK&sig=OWi7OcRiKo3P0wY-4ses2CUbq7k&hl=en&sa=X&ved=0ahUKEwiFkdqKw6_XAhUCxYMKHdcnC10Q6AEIKDAB#v=onepage&q=978-1-55365-197-0&f=false

[11] https://books.google.com/books?id=g1u9BwAAQBAJ&pg=PP5&lpg=PP5&dq=978-1-55365-197-0&source=bl&ots=jhAuBHfCWK&sig=OWi7OcRiKo3P0wY-4ses2CUbq7k&hl=en&sa=X&ved=0ahUKEwiFkdqKw6_XAhUCxYMKHdcnC10Q6AEIKDAB#v=onepage&q=978-1-55365-197-0&f=false

[12] http://www.chicagotribune.com/news/nationworld/midwest/ct-great-lakes-pollution-20171128-story.html

[13] https://books.google.com/books?id=g1u9BwAAQBAJ&pg=PP5&lpg=PP5&dq=978-1-55365-197-0&source=bl&ots=jhAuBHfCWK&sig=OWi7OcRiKo3P0wY-4ses2CUbq7k&hl=en&sa=X&ved=0ahUKEwiFkdqKw6_XAhUCxYMKHdcnC10Q6AEIKDAB#v=onepage&q=978-1-55365-197-0&f=false]

[14] https://www.canadiangeographic.ca/article/pollution-great-lakes

[15] https://www.nytimes.com/2014/08/05/us/lifting-ban-toledo-says-its-water-is-safe-to-drink-again.html

[16] https://www.glerl.noaa.gov/education/ourlakes/facts.html

[17] http://www.regions.noaa.gov/great-lakes/index.php/great_lakes-restoration-initiative/toxics/].

[18] https://response.restoration.noaa.gov/about/media/chemical-pollution-great-lakes.html

[19] http://www.cbc.ca/news/canada/thunder-bay/neskantaga-water-plan-1.4225889

[20] https://www.ecowatch.com/plastic-great-lakes-2157466316.html

[21] Plastic pollution in Lake Michigan is approximately the equivalent of 100 Olympic-sized pools full of plastic bottles dumped into the lake every year.

[22] http://voices.nationalgeographic.org/2013/04/12/new-concerns-about-plastic-pollution-in-great-lakes-garbage-patch/].

[23] https://www.usgs.gov/news/widespread-plastic-pollution-found-great-lakes-tributaries

[24] www.on.ec.gc.ca/glwqa/facts-e.html

[25] www.epa.gov/watertrain/cwa/

[26] https://www.epa.gov/great-lakes-aocs/restoring-great-lakes-aocs

[27] http://www.ns.umich.edu/new/releases/21040-environmental-threat-map-highlights-great-lakes-restoration-challenges

[28] https://www.epa.gov/aboutepa/about-great-lakes-national-program-office-glnpo

Mexico on the Vanguard for Rights of Nature

Rio Magdelena

By Darlene Lee

In January 2017, Mexico City changed its constitution to include rights of nature.[i] The amendment states in part that “the right to the preservation and protection of nature will be guaranteed by Mexico City authorities in the scope of their competence, always promoting citizen participation in this subject.”[ii]

The amendment, promoted by a citizen initiative that included nearly 150 civil society organizations, was officially launched at the first Forum on the Rights of Nature in 2016.[iii]  Here, stakeholders and environmental thinkers from throughout Mexico declared their support for harmonizing governance with nature. (The amendment was passed shortly before the 100th anniversary of the 1917 Mexican Constitution, which was established by President Venustiano Carranza during the Mexican Revolution.[iv])

Mexico City follows in the progressive footsteps of Ecuador and Bolivia. Ecuador amended its constitution to uphold the inherent rights of nature, while Bolivia also recognizes nature’s rights through two national laws. Mexico City’s deadline for implementing its new constitution is December 31st, 2020, but it’s thought it will be in effect by 2019.[v]

Building from this momentum, work to firmly establish rights of nature in Mexico continues. Earth Law Center (ELC) is partnering with local environmental and social organizations to win legal rights for the Magdalena, Atoyac and San Pedro Mezquital rivers. All three rivers face significant threats, including pollution and altered flows. And a proposed dam project will seriously damage the San Pedro Mezquital if it goes ahead.

In 2017, the Whanganui River in New Zealand was the first river in the world to secure legal rights recognition. And soon thereafter, a constitutional court in Colombia released its decision to establish legal rights for the Atrato River. ELC is honored to work with local advocates to bring the same change to Mexico.  

What are Rights of Nature?

A primary purpose of our legal system is to stop humans from violating the rights of other humans. Now laws are beginning to prohibit humans from violation the rights of nature, as well. When the law recognizes ecosystems as right-bearing entities, ecosystems – represented in court by local people – will be able to seek legal recourse against anyone who harms their rights. ELC seeks to establish this new paradigm.

The rights of nature has several advantages over our current legal paradigm:

• Advancing nature’s rights will correct the gaps in our legal structures that allow natural systems to be abused for profit.
• A rights of nature approach promotes the idea that humans must respect the Earth’s systems, which would benefit the natural world and humanity as a whole.
• Legally recognizing that nature has an inherent right to thrive will promote whole ecosystem health, rather than allowing nature to teeter on the brink of extinction.

Finally, in regards to waterways, by recognizing the inherent rights of rivers and streams, we can begin to repair the damage caused by institutionalized water overuse. We can also ensure clean and abundant fresh water for future generations.

What are the Rights of Rivers in Particular?

To define the rights to which all waterways are entitled, ELC analyzed the ecological principles of river health and the legal precedent for recognizing the rights of rivers worldwide. We concluded that a river or waterway possesses, at minimum:

1. the right to flow;
2. the right to perform essential functions within its ecosystem;
3. the right to be free from pollution;
4. the right to feed and be fed by sustainable aquifers;
5. the right to native biodiversity; and
6. the right to restoration.
7. These are the rights enshrined in ELC’s Universal Declaration of the Rights of Rivers. It is our hope that this document will serve as a baseline for governments to protect the rights of rivers worldwide.

Why Doesn’t the Current System Protect Rivers?

Market theory dictates how water is allocated, resulting in a system where those with the means to buy more water have a greater share of the rights to that water.  This system creates several problems:

• Allocating water, a non-substitutable resource, based on an individual’s wealth necessarily leads to an unfair outcome.  Wealthy citizens, corporations and municipalities have the power to demand more water for less essential purposes. Meanwhile, poorer populations, who rely primarily on local infrastructure to provide basic essentials like clean drinking water, do not receive their fair share. 
• In a system that forces different parties to compete against each other for rights to water, integral groups are excluded from the water allocation process – namely, the waterways themselves. This is because our legal systems generally classify rivers and other waterways as property. As property they have no recourse when confronting infringement of their fundamental rights. 

Because natural waterways are not yet rights-holding entities, they have no legal recourse to claim a stake in the outcome of water rights distribution. The rivers keep the freshwater that maintain healthy ecosystems and essential functions, but they have no say in how humans use their waters. Thus rivers are without the ability to claim a reasonable and sustainable share of the water for themselves. 

Mexico City’s Last Free Flowing River: The Magdalena Seeks Legal Rights

Metro Mexico City has an estimated population of 21.2 million – the most populated city in the Western Hemisphere.[i] And only one free-flowing river remains in Mexico City: the fragile Magdalena.[ii]

Mexico City used to be the Aztec city of Tenochtitlan. It was originally built on a network of lakes and floating islands. Centuries of population growth have resulted in a sinking city, extensive flooding and almost 20 percent of residents being unable to get water from their taps each day.[iii]

The Magdalena faces threats from altered flows, chemical and pathogenic contaminants, and hydraulic infrastructure (dams, diversion channels, pipelining of springs). The health of the Magdalena impacts local fragile ecosystems, including the Mexico City aquifer and forests in the Valley of Mexico.

A group of local environmental and social leaders have fought passionately for the restoration of the Magdalena River for decades. While they have made commendable progress, many of them believe that legal rights for the Magdalena River will provide the legal incentive necessary to see this river restored to health.

Upholding Legal Rights for the Atoyac River

This river, also known as the Balsas River, flows through the states of Puebla and Tlaxcala and has been ranked as one of the three most polluted rivers in Mexico. In the state of Puebla, 2.3 million people are directly affected by the contamination of the river. Each day, 146 tonnes of organic waste are dumped into it, along with 62.8 tonnes of suspended solids and 14 kilograms of heavy metals.

Pollution in Rio Atoyac, Foto: Eslmage

Threats to the river include the textile, metalworking and petrochemical industries, as well as over-diversion and dams. The restoration of this river will restore fish populations, wildlife habitat and clean water over a vast area, including within the Sierra Madre del Sur.

Environmental leaders have drawn attention to the impairment of the Atoyac River, and several positive developments have resulted. For example, Conagua (the National Water Commission) has sanctioned 34 companies for uncontrolled effluent dumping into the river. Additionally, the Council of Puebla, headed by Mayor Luis Banck, established the commitment "Vive Atoyac," which aims to recover and clean up the Atoyac River Basin in the stretch of the Municipality of Puebla over the next 15 years.

Despite these gains, the river continues to suffer from poor health. Local advocates believe that establishing rights for the Atoyac will modernize the legal dynamic between human and waterways and provide the permanent protections that this river needs.

Securing Legal Rights Recognition for the San Pedro Mezquital River

The San Pedro Mezquital River is the seventh largest river in Mexico, flowing through the western Sierra Madre into the Marismas Nacionales (the National Wetlands) Biosphere Reserve, on the coast of the state of Nayarit. As a function of its relatively pristine state, the San Pedro Mezquital crosses and nurtures the unique ecosystems of rare species, as well as unique indigenous cultures, including the Huichol People in the high sierras and the Meztitlán swamp fishermen in the mangroves of Marismas. Because of its inaccessible location, the San Pedro Mezquital has received relative protection from the anthropogenic threats experienced by other river ecosystems in Mexico.

Este vídeo es sobre Proyecto sin título

However, the proposed Las Cruces Dam threatens to fundamentally impair the San Pedro Mezquital. The dam would adversely affect fish species and agricultural needs depended upon by 12,000 families, and also destroy an indigenous ceremonial center and 14 sacred sites. The dam would also restrict the water and nutrients flow that the river carries to Marismas Nacionales, home of one of the largest mangrove forests in Mexico.

Dams alter a river’s ecosystem from one that’s cold, flowing and connected, to one that’s warm, stagnant and fragmented – with devastating consequences for wildlife. Globally, dams have been the single largest factor in plummeting freshwater fish populations, which have declined by 80 percent since 1970. Dams have also been linked directly to soil erosion, water-logging, salinization and new disease vectors.

Rights-based protections for the San Pedro Mezquital River could mean that the river has a right to flow – which may be incompatible with dam construction. Further, establishing rights for the San Pedro Mezquital River will bolster indigenous and community rights by giving local river guardians a robust ability to demand that their  free, prior and informed consent is given.

Mexican Environmentalists Hard at Work

Cuatro al Cubo ("Four to the Cube"), Organi - K, Dale la Cara al Atoyac A.C., Nuiwari, A.C., Rights of Mother Earth Mexico and many others work to advance a variety of social, environmental and urban design solutions to Mexico’s challenges, including ailing waterways. Additional groups have adjacent aims, with a focus on community health, plastic and chemical pollution, recreation, indigenous rights, urban design and many other areas.

ELC is proud to partner with these and other organizations to establish legal rights for rivers. Many of these groups were directly responsible for achieving rights of nature within Mexico City’s new constitution, and they are determined to continue the expansion of protections for Mexican ecosystems and communities. Together, we are confident that we can create an international model of success for humans and nature thriving together in harmony.

About the author: Earth Law Center (ELC) works to transform the law to recognize and protect nature’s inherent rights to exist, thrive and evolve. Earth Law Center does this by partnering with local organizations to catalyze the paradigm shift to one in which nature has a say in decisions which impact ecosystems, species and overall health and well-being.

Strengthening and Enhancing Mexican River Protection

We need your help to secure rights for these rivers in Mexico! Here is how you can help today:

1.  Donate to ELC
2.  Volunteer with ELC
3.  Contact ELC if you want to work on your own river rights campaign
4.  Have your organization sign the Declaration of River Rights document
5.  Connect with us on social media and sign up for our newsletter

---

[i] https://www.facebook.com/notes/paxamama-news/la-constituci%C3%B3n-de-la-cdmx-reconoce-que-la-tierra-est%C3%A1-viva-y-tiene-derechos/366806370372202

[ii] http://www.cdmx.gob.mx/storage/app/uploads/public/59a/588/5d9/59a5885d9b2c7133832865.pdf

[iii] https://www.facebook.com/notes/paxamama-news/la-constituci%C3%B3n-de-la-cdmx-reconoce-que-la-tierra-est%C3%A1-viva-y-tiene-derechos/366806370372202

[iv] https://blogs.loc.gov/law/2011/02/the-history-of-the-mexican-constitution/

[v] http://worldconsciouspact.org/featured-2/rights-nature-mexico-city-constitution/

[vi] http://worldpopulationreview.com/world-cities/mexico-city-population/

[vii] http://foreignpolicy.com/2017/05/31/mexico-city-last-living-river-pollution-water/

[viii] http://worldpopulationreview.com/world-cities/mexico-city-population/

Dam Removal to Restore Snake River to Health

By Darlene Lee

The indigenous Nez Perce, or “Niimíipu,” live by the Snake, Salmon and Clearwater Rivers in the Pacific Northwest plateau region. They govern their tribe from Idaho (USA), where they are one of five federally recognized tribes in the state.[1] Environmental leaders within the tribe and their allies are fighting for the removal of four dams on the Lower Snake River, which help restore salmon populations and enhance ecosystem health. After decades of determined efforts, dam removal may be closer than ever.

History of the Nez Perce Nation

According to tribal legend, Nimiipúu, “the people,” were created in north central Idaho at the dawn of time. Evidence indicates the Nez Perce inhabited the Clearwater and Snake River Valleys over 11,000 years ago. In 1800, the Nez Perce had more than 100 permanent villages, ranging from 50 to 600 individuals.

The Nez Perce homeland once covered roughly 16 million acres in parts of what are now Idaho, Oregon and Washington. An 1855 treaty reduced their land to 7.5 million acres. When white settlers discovered gold in the Nez Perce homeland, the US government pushed for a new treaty slashing the reservation to 770,000 acres.

Although some Nez Perce members signed the treaty, others vehemently refused – including Chief Joseph, a renowned voice against the injustices towards the Nez Perce. After a series of battles against the US government, the Nez Perce conceded and this land has become the modern Nez Perce Reservation.

At its peak in 1805, the Nez Perce numbered about 12,000.[2] This fell by half to 6,000 in the 1830s. Today, about 4,000 Nez Perce live in the United States.[3]

The Nez Perce Way: Harmony with Nature

“The Earth is part of my body... I belong to the land out of which I came... The earth is my mother...” Too-Hool-Hool-Zute[4]

The land and its waters define the Nez Perce way. Like many indigenous nations in the US, the Nez Perce traditionally value the Earth not for what it represents in goods or money, but for it being the source of life. Historically, the people did not own land, but rather belonged to a particular part of the Earth, and owed a responsibility to their place of birth. The Earth was the mother of all life, and the mother of the people.[5]

Over thousands of years nature taught the Nez Perce how to live with her. According to tribal leaders, “This intimate and sacred relationship unifies us, stabilizes us, humbles us. It is what makes us a distinct people and what gives us our identity. We cannot be separated from the land or our rights without losing what makes us Nez Perce. We defend our rights to preserve who we are and what we hold sacred.”[6]

Horses dramatically changed life for the Nez Perce early in the 18th century, both increasing and enhancing hunting and war expeditions. The Nez Perce built up one of the largest horse herds on the continent, selectively breeding for speed and creating the Appaloosa breed.[7] Reservation life and assimilationist pressures destroyed their horse culture in the 19th century.

The Importance of Snake River to the Nez Perce and the Decline of Salmon in Snake River

The Snake River is the thirteenth longest river in the United States. At 1,078 miles (1,735 km) long, it is the largest tributary of the Columbia River – North America’s largest river emptying into the Pacific Ocean. The Snake River arises in western Wyoming then flows through southern Idaho, Oregon, and Washington, where it converges with the Columbia River.

The Snake River has long been imperative to the culture and well-being of the Nez Perce. In particular, the tribe shares a deep connection with the river’s salmon. Salmon once spawned by the millions in the Snake River and were central to the Nez Perce’s way of life.[8] Even the Nez Perce’s creation story involves salmon offering themselves to feed the people.[9] And in modern times, salmon are both a way of life and a treaty right for the Nez Perce.

Widespread damming of the Snake River now threatens the very existence of its salmon. There are 15 dams in total on the river, including Hell’s Canyon Dam, which blocks fish passage to the entire upper Snake River. The Grand Coulee Dam also blocks spawning grounds to the famous "June Hogs" – the legendary Chinook salmon that have weighed over 100 pounds [45 kg] in the past. [10]

Between 1985 and 2007, only an average of 18 sockeye salmon returned to Idaho each year. Conservation projects run by wildlife biologists have spawned eggs, incubated salmon fry and then transported the young fish by ship to bypass the dams. The dams can injure and kill juvenile sockeye salmon with their powerful tides and currents, which suck the salmon fry down. Although successful at raising salmon numbers, this method costs upwards of $15 million.

Realizing these threats, for decades, river advocates have been tied up in court, demanding the federal government restore the threatened and endangered salmon and steelhead populations that migrate through the Columbia and Snake Rivers. Since 1975, when Lower Granite Dam was completed, salmon in the Snake River basin have faced the obstacle of eight massive concrete dams before making it out to the ocean. Then they do it all over again when they come back home to spawn. Running that gauntlet of concrete and warm water puts a major strain on the fish and is considered perhaps the single greatest reason for their precipitous decline.[11]

Nez Perce support removal of dams from Snake River

Ecologists, conservation groups and many others are beginning to realize that widespread dams are incompatible with healthy river ecosystems. Therefore, there is a growing movement to remove the most destructive, ineffective and outdated dams as a first step towards restoring rivers, including salmon populations.

Nez Perce tribe members believe the best way to restore salmon and steelhead to their Idaho communities is by breaching the four Lower Snake River dams.[12] And there is strong precedent to support this claim. For example, the removal of the Lewiston Dam on the Clearwater River, a tributary of the Snake, resulted in a dramatic recovery of salmon populations. And elsewhere in the Pacific Northwest, the removal of the Glines Canyon Dam on the Elwha River resulted in the return of over 4,000 Chinook salmon to spawn upstream of the dam the very next year – the first time they had been seen there in over 100 years.

Another reason to advocate for dam removal is simply that other methods have failed. "All of these other methods and alternatives have been tried to date, and the fish are not returning,” said Elliott Moffett, President of Nimiipuu Protecting the Environment, a nonprofit that defends the treaty rights and lands of the Nez Perce Tribe. "So as tribal members we cannot exercise our treaty rights to fish, for an example, and utilize the salmon as we have in our past, in our culture and tradition."
 

Elliot Moffett also recognized the connection between the well-being of humans and nature with regards to river health. “[Salmon] need that clear, cold, swift running water. And they don’t have that because the dams have impounded their rivers,” he said. “[W]hen the river’s not doing well, we’re not doing well, we’re that connected with our environment in the natural world.”[13]

The proposed removal of four Lower Snake River dams has been the subject of legal battles since 1991. Most recently, in May 2016, a federal district judge ordered dam operators to put all options on the table to save threatened and endangered salmon and steelhead – including dam removal on the Snake River. The judge’s order led to federal hearings throughout the region, ending earlier this year.[14] Meanwhile, the Nez Perce and those that care about a thriving Snake River continue to wait for meaningful action before Snake River salmon runs become extinct.

The Rights of Rivers

ELC believes that all rivers have inherent rights, whether or not governments recognize them. There is a growing movement to recognize these rights worldwide, with four rivers gaining legal rights recognition in 2017. These were waterways in New Zealand, India and Columbia. In New Zealand, a treaty was the source of rights for the Whanganui River. And in India and Columbia, court decisions established rights for three rivers.

Recognizing the rights of rivers would promote the removal of dams, which may violate a river’s inherent “right to flow” as well as other related rights. It also would ensure that river health is no longer compromised for short-lived economic benefits. The rights of rivers movement also explicitly acknowledges and honors the crucial role that indigenous groups have in protecting rivers and utilizing them sustainably for their well-being, as the Nez Perce did for generations before the US government intervened.

ELC believes that until rivers have legal rights, destructive dam projects and other harms will continue to destroy ecosystems, including salmon runs. This right would be enforced by legal guardians, particularly indigenous peoples for those rivers upon which they historically depend. And it would support Native American treaty rights for fishing, since tribes have long honored and depended upon salmon and other fish species.

Tribal Environmental Summit

ELC attended the October 28 Nez Perce Tribal Environmental Summit to present on the rights of rivers and how it supports dam removal. The Nez Perce has long-recognized many rights of nature concepts at the deepest level. The rights of nature movement relies heavily upon indigenous wisdom.

At the Summit, ELC began by discussing the flaws in our current environmental laws. For example, the Endangered Species Act kicks in only once species are on the brink of extinction, rather than setting a positive goal of ensuring that all species thrive. Due to these negative goals, many fish species teeter on the brink of extinction – including Snake River salmon, which have plummeted in population since damming the river.

ELC then discussed solutions, including reforming our governance to recognize the rights of rivers. As one example, ELC discussed our Universal Declaration of the Rights of Rivers, which provides a template that can be implemented at all levels of governance. The Declaration requires that governments “consider for decommission all dams that lack a compelling social and ecological purpose.” Under this framework, many harmful dams in the western United States would be candidates for prompt removal.

In addition to speaking, ELC listened. We learned of the impassioned efforts to protect the Snake River and surrounding ecosystems that have been going on for years. This includes the “Free the Snake Flotilla,” where hundreds of supporters take to the water to demand removal of the Lower Snake River dams. And it also includes efforts to oppose nearby oil trains that can blow up on a whim, contaminating ecosystems and killing anyone in the blast radius. The Columbia River watershed is home to many great environmental leaders with whom ELC is proud to work.

How you can get involved in a rights-based approach to protecting rivers                                                      

We need your help to secure rights for all rivers worldwide. This will promote dam removal as a legal right for waterways. Here is how you can help today:

• Connect with us on social media and sign up for our newsletter
• Sign the Universal Declaration of River Rights as an individual or organization
• Volunteer with ELC
• Contact ELC if you want to work on your own river rights campaign, including efforts to oppose dam construction and remove existing dams
• Donate to ELC

Grant Wilson, Directing Attorney, speaking at the Nez Perce Tribal Environmental Summit

---

[1] https://en.wikipedia.org/wiki/Nez_Perce_people

[2] https://en.wikipedia.org/wiki/Nez_Perce_people

[3] http://www.nationalgeographic.com/lewisandclark/record_tribes_013_12_17.html

[4] http://www.nezperce.org/erwm/Welcome.html

[5] http://www.webpages.uidaho.edu/isem101-26/PDFs/NezPerceLand.pdf

[6] http://www.nptfishpermits.com/NezPerce

[7] https://www.britannica.com/topic/Nez-Perce-people

[8] https://en.wikipedia.org/wiki/Snake_River

[9] http://damsense.org/history/

[10] http://www.nezperce.org/~srcurrents/srcurrents/AugustPublication.htm

[11] http://news.streetroots.org/2017/09/15/nez-perce-activists-fight-save-snake-river

[12] http://www.publicnewsservice.org/2016-11-15/endangered-species-and-wildlife/lower-snake-river-dams-nez-perce-treaty-rights-at-issue/a54959-1

[13] http://news.streetroots.org/2017/09/15/nez-perce-activists-fight-save-snake-river

[14] http://news.streetroots.org/2017/09/15/nez-perce-activists-fight-save-snake-river

Do Dams Violate a River’s Right to Flow?

Removal of Veazie Dam on Penobscot River, Maine, by Penobscot River Restoration Trust.

By Darlene Lee

The world’s first great civilizations emerged near rivers such as the Tigris, the Euphrates, the Nile, the Indus and the Yellow River.[1] Rivers have always supported human life, but now their health is suffering because of our dams.

Once a symbol of ingenuity and engineering prowess,[2] the latest research[3] shows that dams destroy river ecosystems and adversely affect human health and well-being. Is further dam development such a good idea after all?

How did dams go from engineering wonder to environmental pariah?

The world has an estimated 800,000 dams,[4] built both for hydroelectric power and to store water. Concerns have mounted over the negative impacts of large dams on both people and the environment.[5] Dams alter a river’s ecosystem from one that’s cold, flowing and connected, to one that’s warm, stagnant and fragmented – with devastating consequences for wildlife. Dams have largely caused freshwater fish numbers to plummet[6] – the world has lost 80 percent of freshwater fish populations since 1970.[7]

Many countries have seen the error of their ways and have started to decommission dams. According to the non-profit American Rivers, over 1,000 dams across the U.S. have been removed to date.[8] Where dams are removed, river ecosystems begin healing right away. On the Elwha River in Washington State, in the very first season after taking down the massive Glines Canyon Dam, over 4,000 Chinook salmon returned to spawn – the first time Chinook have been seen there in more than 100 years.[9]  And in New York State, the Saint Regis Mohawk Tribe recently became the first US tribe to remove a federal dam when it took down the Hogansburg dam on the St Regis River, opening up 275 miles of stream habitat to migratory fish.[10]

Internationally, there is a growing movement to oppose destructive dam projects, and the message is getting through. In April 2016, Brazil’s environmental agency, Ibama, suspended the licensing process for the São Luiz do Tapajós dam because of concerns for indigenous peoples.[11] In July 2016, the World Bank suspended financial support for the Inga 3 dam on the Congo River.[12] In the following month, Endesa Chile, Chile’s largest power generator, dropped six hydroelectric projects.[13] The Chinese government has also halted plans to construct a series of dams on one of China’s last free-flowing rivers, the Nujiang.[14] In October, the Peruvian government announced that several dams proposed for the Marañón River, a major tributary of the Amazon, are now off the table during the current administration.[15]

Unfortunately, these are the exceptions rather than the norm. New dams continue to be built and expanded across the world, with relatively few being decommissioned. As one example in the U.S., the United States Army Corps of Engineers has given the green light to build the massive $400 million Chimney Hollow dam and reservoir, which involves diverting huge amounts of water from the Colorado River and pumping it underneath the Rocky Mountains.[16] At the global level, more than 1,400 new dams or water diversion projects are planned or already under construction. In addition to vast ecological harms, many of them are on rivers flowing through multiple nations, fueling the potential for increased water conflict between some countries.[17] 

Eight ways dams harm river ecosystems[18]

i.  Soil Erosion

Dams hold back the sediment load normally found in a river flow, resulting in the downstream water eroding its channels and banks. This lowers the downstream riverbed and threatens vegetation and river wildlife.

Often cited as a benefit of dams, flooding prevention actually disrupts human and animal systems that have adapted to regular flooding. Annual floods also deposit nutrients and replenish wetlands.

ii.  Species Extinction

Changes in temperature and chemical composition, dissolved oxygen levels, and the physical properties of a reservoir are not often suitable for the aquatic plants and animals that have evolved within a given river system. Migratory and breeding activities are among those affected. Indeed, reservoirs often host non-native and invasive species (e.g. snails, algae, predatory fish) that further undermine the river's natural communities of plants and animals. 

iii.  Spread of Disease

Dam reservoirs can serve as perfect breeding grounds for mosquitoes, snails and flies – the vectors for diseases such as malaria, schistosomiasis and river blindness. Dams have long been associated with elevated burdens of human schistosomiasis, an acute and chronic disease caused by parasitic worms found within snails.[19]

iv.  Changes to Earth’s Rotation

NASA geophysicist Dr. Benjamin Fong Chao found evidence that large dams cause changes to the Earth’s rotation, because of the shift of water weight from oceans to reservoirs. Because of the number of dams, Earth’s daily rotation has apparently sped up eight-millionths of a second since the 1950s. Chao said it is the first time human activity has been shown to have a measurable effect on the Earth’s motion.

v.  Sedimentation & Siltation

Sediments in water entering a reservoir are deposited at its upper end, forming a delta and steadily raising the level of the upper reaches of the reservoir. This causes flooding due to its bank water effect and shortens the utility of the dam. Silt deposited at the bottom of the reservoir also reduces dam utility. Siltation reduces the water storage capacity of the reservoir and undermines its effectiveness for power generation, irrigation and flood control.

vi.  Water logging

Previous rich soils lose their ability to support plant growth when saturated with water, where the water is trapped under the surface but can’t percolate downwards. Dam seepage often causes waterlogging. The Indian Institute of Science estimates that 40 percent of the command area[20] for Sardar Sarovar Dam will become waterlogged.

vii.  Salinization

Irrigation water has higher saline content, leading to salinization of natural systems. Changes in the salt regime can affect the entire ecosystem and disrupt fish breeding. Large riverbank areas are likely to be affected by increased salinity after dam construction.

Dams harm humans too

The world’s dams have allowed cities to sprout in dry lands, but at a steep cost to hundreds of millions of already impoverished people, according to a new report. Lead author Brian Richter, co-director of The Nature Conservancy’s Global Freshwater Program, notes, “Our conservative estimate of 472 million suggests that the number of people [adversely affected by dams] . . . exceeds by six to twelve times the number directly displaced by these structures.”[21]

Those affected include downstream fishermen and farmers. They have their lives and livelihoods altered or even destroyed by dams. Many of them are poor people who may find it hard to adapt. For example, when the Maga Dam and a water diversion scheme went in on Cameroon’s Logone River in 1979, combined hits to floodplain agriculture, fisheries, and other downstream attributes reduced the regional economy by $2.4 million per year, according to the International Union for Conservation of Nature.[22]

Finally, indigenous peoples are particularly hard-hit by destructive dam projects. Many mega-dams are built without the free, prior and informed consent of affected indigenous groups. The flooding from such dams can displace entire communities and inundate their homes, food sources and sacred areas. There have also been many instances of violence directed against protestors of dam projects.

What can I possibly do about a dam?

Until rivers have legal rights that protect them from harmful water projects, we will continue to see dams built for economic gains regardless of environmental impacts. Therefore, Earth Law Center seeks to establish legal rights for all rivers, building off recent victories in New Zealand (Whanganui River), India (Ganges and Yamuna Rivers), and Colombia (Atrato River).

To help achieve this goal, ELC drafted a Universal Declaration of River Rights (“Declaration”), which describes those fundamental rights to which all rivers are entitled. This document is based on existing river rights precedent as well as general principles of river health.

With regard to dams, the Declaration first recognizes the right of all rivers to flow. Additionally, the Declaration calls for governments to “decommission all dams that lack a compelling social and ecological purpose, and that new dam construction shall only occur in exceptional circumstances….” Finally, the Declaration calls for “full free, prior, and informed consent of indigenous and other impacted communities” for any dam projects that do proceed. With these protections implemented in law, we believe that rivers can be restored to health – to the mutual benefit of humans and nature.

Now we need your support to advance the movement to establish legal rights for rivers worldwide! Here is what you can do:

(1) Please sign the Universal Declaration of River Rights and provide feedback, if any, through the online form, available in English and Spanish. You can also visit ELC’s “Rights of Rivers” page for more information.

(2) To start your own river rights initiative, contact gwilson@earthlaw.org. You can join the movement to restore the health and beauty of our rivers by preventing new dams from being built, or getting old ones decommissioned.

(3) Join your local Earth Law Club, volunteer or donate to Earth Law Center.

For more information, email us at info@earthlaw.org.

---

[1] https://en.wikipedia.org/wiki/River_valley_civilization

[2] https://www.scientificamerican.com/article/how-do-dams-hurt-rivers/

[3] https://file.scirp.org/pdf/JWARP20110100006_91619646.pdf

[4] https://www.internationalrivers.org/damming-statistics

[5] https://en.wikipedia.org/wiki/Environmental_impact_of_reservoirs

[6] Freshwater fish are those that spend some or all of their lives in fresh water, such as rivers and lakes, with a salinity of less than 0.05%. https://en.wikipedia.org/wiki/Freshwater_fish

[7] https://www.theguardian.com/global-development-professionals-network/2017/jan/09/dams-building-let-rivers-flow

[8] https://www.scientificamerican.com/article/how-do-dams-hurt-rivers/

[9] http://projects.seattletimes.com/2016/elwha/

[10] http://www.newyorkupstate.com/northern-ny/2016/12/mohawks_become_first_tribe_to_take_down_a_federal_dam.html

[11] https://www.theguardian.com/world/2016/apr/22/brazil-amazon-dam-project-suspended-indigenous-munduruku-sao-luiz-do-tapajos

[12] http://www.worldbank.org/en/news/press-release/2016/07/25/world-bank-group-suspends-financing-to-the-inga-3-basse-chute-technical-assistance-project

[13] http://www.reuters.com/article/us-enersis-chile-hydro/endesa-chile-gives-up-water-rights-to-hydroelectric-projects-idUSKCN1152UR

[14] https://www.theguardian.com/world/2016/dec/02/joy-as-china-shelves-plans-to-dam-angry-river

[15] http://proactivo.com.pe/grandes-hidroelectricas-en-las-selva-no-estan-en-agenda-del-gobierno/

[16] https://www.newsdeeply.com/water/articles/2017/05/31/feds-issue-permit-for-large-dam-on-colorado-river-headwaters

[17] https://www.sciencedaily.com/releases/2017/07/170717160048.htm

[18] http://www.yourarticlelibrary.com/essay/environmental-problems-caused-by-dams/42623/

[19] http://rstb.royalsocietypublishing.org/content/372/1722/20160127

[20] The command area is the area around the dam, where the benefits of the dam, such as irrigation water, electricity, etc., reach. https://www.proz.com/kudoz/English/agriculture/1308588-command_area.html

[21] http://news.nationalgeographic.com/news/2010/06/100604-dams-economic-impact/

[22] http://news.nationalgeographic.com/news/2010/06/100604-dams-economic-impact/

Building Momentum: Earth Law Center’s Universal Declaration of River Rights

Horses drink from the Río Magdalena, Mexico. Image: Luc Forsyth

By Darlene Lee

A Legal Movement to Save Our Planet

Laws safeguarding the environment have not kept apace with rapidly expanding human activity. Earth has lost more than half its trees since humans first learned to wield an axe. According to the WWF, roughly one-quarter of coral reefs worldwide are considered damaged beyond repair, with another two-thirds under serious threat. The good news is that a solution has appeared, in the form of Earth Law.

Earth Law is the growing body of law recognizing that the Earth has inherent rights, and that humans and nature are co-members of a larger Earth Community whose well-being is guaranteed. Rather than treating nature as “property” for human consumption, Earth Law recognizes that nature is an entity with its own rights. Nature's rights are not “given” by humans, but rather are inherent to nature’s existence – just as humans possess inherent rights to life, liberty and the pursuit of happiness. 

In the 1970s in the United States, legal scholar Christopher Stone first proposed a well thought out argument on how to give rights to nature.[1] It took a while, but in 2006, Tamaqua Borough in Pennsylvania became the first US community to recognize the rights of nature within municipal territory.[2] Since then dozens of communities have adopted similar local ordinances, including Santa Monica in 2013 – the first West Coast city to adopt a rights of nature law.

Globally, Ecuador became the first nation to amend its constitution to include rights of nature in 2008. In 2012, Bolivia passed the first of two national rights of nature laws, and Mexico City followed in 2017 by including rights of nature within its new constitution. Rights of nature has already won in the courts, too, beginning with a 2011 case in which Ecuador’s Provincial Court of Loja ruled in favor of nature (calling for restoration of the Vilcabamba River, which was harmed by a road-widening project).[3]                                                                                    

Rivers Win Rights in 2017

This year four rivers gained legal rights recognition. New Zealand’s Parliament formally enacted a treaty in March that recognized the Whanganui as a legal person with fundamental rights, including the right to sue. This made it the first river in the world to gain recognized legal rights. Just five days later, the Uttarakhand High Court in India recognized two rivers (the Ganga and Yamuna) as “living entities” with fundamental rights, also allowing designated humans to represent the rivers in court and file complaints on the rivers’ behalf. And most recently, in May 2017, Colombia’s Constitutional Court granted rights to the Atrato River[4] and ordered the government to clean up its waters.

In each of the instances where the rights of rivers were recognized, a dedicated and passionate local group worked with government officials and judges to achieve the positive outcome. In the case of the Whanganui, the question was less about environmental sustainability and more about spiritual and cultural values. “The reason we have taken this approach is because we consider the river an ancestor and always have,” said Gerrard Albert, the lead negotiator for the Whanganui iwi [tribe]. “We have fought to find an approximation in law so that all others can understand that from our perspective treating the river as a living entity is the correct way to approach it, as an indivisible whole, instead of the traditional model for the last 100 years of treating it from a perspective of ownership and management.”[5]

The Whanganui decision also set an important precedent by addressing critical questions of restoration, with a NZ$30 million budget towards improving the river’s health included in the settlement. This will serve as an important model for future legislation since adequate funding to implement nature’s rights is a necessity.

With the Te Awa Tupa Bill setting the stage, two court rulings soon followed that established legal rights for additional rivers. In India, in addition to recognizing the essential protections for rivers arising from recognition of its rights, the case also arose from the traditional Hindu view that regards the universe as a manifestation of the divine. This means that rivers, plants, animals and even the Earth are considered sentient divinities with particular forms, qualities and characteristics.                                                      

The second court ruling was in Colombia, where the Colombian Constitutional Court addressed the severe pollution of the Atrato River, located on the country’s northwest coast. This case was brought to the court’s attention thank to the efforts of Colombian NGO Tierra Digna, Afro-Colombian organizations and other indigenous groups, who highlighted extensive negative health impacts both to riverine communities and the aquatic ecosystem itself.[6]

In a major victory for waterways in the Americas, the Court found that the Atrato River is “subject to the rights that implicate its protection, conservation, maintenance and in this specific case, restoration.” The suit also specifically called out the state for its neglectful behavior and ordered that the river be restored to health.

“[T]he human species is only one more event within a long evolutionary chain that has lasted for billions of years and we [humans] therefore, in no way, are the owner of other species, biodiversity or natural resources, or the fate of the planet,” stated the Court, “Consequently, this theory conceives nature as a true subject of rights that must be recognized by states and exercised under the tutelage of their legal representatives, for example, by the communities that inhabit it or have a special relationship with it.”[7]

Universal Declaration of River Rights

ELC has been working to integrate these global victories for river rights, as well as ecological principles of river health, into a common set of rights that are universal for all rivers. Working with river and nature’s rights experts from across the globe, ELC drafted a Universal Declaration of the Rights of Rivers (“Declaration”), which defines the minimum fundamental rights to which all rivers are entitled. These fundamental rights include:

(1) The right to flow,[8]

(2) The right to perform essential functions within its ecosystem,[9]

(3) The right to be free from pollution,

(4) The right to feed and be fed by sustainable aquifers,

(5) The right to native biodiversity, and

(6) The right to restoration.

Recognizing that rivers are part of a larger system, the Declaration asserts that these rights are also intended to ensure “the health of the river basins of which rivers are a part.” Additionally, it calls for appointment of one or more legal guardians to act on behalf of rivers’ rights, with at least one such guardian being an indigenous representative for those rivers upon which indigenous communities depend.

ELC believes that these key provisions, amongst the others included in the Declaration, will set a standard for establishing rights for rivers that can be drawn on by governments across the globe, much like the Universal Declaration of Human Rights and the Universal Declaration of the Rights of Mother Earth. And more broadly, implementing these rights will mean that society can begin to protect rivers for reasons aside from their utility to humans, to the mutual benefit of us all.

While setting a positive vision for the future, the Declaration also recognizes the devastation faced by rivers and river basins worldwide – such as the 57,000 dams choking and drying two-thirds of all major rivers – and pays tribute to those rivers that have already died due to human activities, including “those so over-diverted as to no longer flow, those enclosed within pipes and buried under layers of concrete, and those so polluted as to no longer sustain life.” In recognizing these tragedies and defining a new rights-based path forward, we hope to protect other rivers from similar fates.

What’s Next?

Parallel to its Universal Declaration of River Rights, ELC is launching several related initiatives, including working with local partners to secure legal rights for three rivers in Mexico, starting with the Magdalena River in Mexico City. The Magdalena River is Mexico City’s last and only free-flowing river. This is only astounding against the context that Mexico City once had 45 living rivers – now confined to underground pipes and buried under concrete.

To understand what happened to the other rivers, and why the Magdalena River needs recognition of its fundamental rights, it’s important to briefly review history. Almost 700 years ago, the Aztecs founded the city-state of Tenochtitlan in the middle of Lake Texcoco. Here they created effective civil engineering works – including both causeways and aqueducts connecting their island capital to the mainland, as well as lengthy dikes separating the fresh water lakes from the brackish Lake Texcoco, which surrounded the city. The Spaniards, however, let those works fall into ruin while deforesting the surrounding hillsides and filling Lake Texcoco. This contributed to major flooding in 1555, 1580, and 1604. The city was actually underwater (continuously!) from 1629 to 1634.

After several unsuccessful flood control efforts, they started building a massive canal in 1788, which provided some flood relief but did not solve the problem.[10] Although a major engineering feat and symbol of civic pride, part of the reason the 29-mile-long Grand Canal didn’t work is because it was based on gravity. And Mexico City, a mile-and-a-half above sea level, was sinking.[11] Home to 21 million people, who together consume nearly 287 billion gallons of water each year, the city has sunk more than 32 feet in the last 60 years because 70 percent of the city’s water is extracted from its underlying aquifer.[12] Mexico City continues to sink at a rate of 3 feet per year.[13]

Which brings us back to the Magdalena River. While for hundreds of years Mexico (and all other nations) have tried to engineer and control its waterways, these efforts have failed to fulfill their goals of thriving communities. Instead, human and natural communities suffer from water pollution, reduced flows and other negative impacts. We must instead return to our roots and begin to live in harmony with our rivers, restoring them to health. Establishing rights for Mexico’s rivers – including those rights contained within the Universal Declaration of River Rights – is the first step to doing so.  

(Click here to read more about our efforts to establish legal rights for the Magdalena River and two other waterways in Mexico, the Atoyac and San Pedro Mezquital.)

Join the Movement

We need your help to secure rights for all rivers worldwide! Here is how you can help today:

1.     Donate to ELC

2.     Volunteer with ELC

3.     Contact ELC if you want to work on your own river rights campaign

4.     Have your organization sign the Declaration of River Rights document

5.     Connect with us on social media and sign up for our newsletter

Update: Please also consider donating to earthquake recovery efforts in Mexico, where ELC’s partners are fighting for the rights of nature and many other social causes.

---

[1] https://books.google.be/books/about/Should_Trees_Have_Standing.html?id=0aZoAgAAQBAJ&source=kp_cover&redir_esc=y

[2] https://celebratewcffg.files.wordpress.com/2013/09/rights-of-nature-for-wcffg.pdf

[3] https://celebratewcffg.files.wordpress.com/2013/09/rights-of-nature-for-wcffg.pdf

[4] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[5] https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being

[6] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[7] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[8] Flows must, at minimum, be sufficient to maintain the ecosystem health of the entire river system. In addition, rivers – not people – own the water that flows within them.

[9] These include flooding, moving and depositing sediment, recharging groundwater, providing adequate habitat for native flora and fauna, and other essential functions.

[10] http://geo-mexico.com/?p=3890

[11] https://www.bostonglobe.com/news/world/2017/02/18/climate-change-turns-mexico-city-into-parched-and-sinking-capital/LE5UvEifMiECWPea2JKm8M/story.html

[12] https://www.ecowatch.com/why-this-city-of-21-million-people-is-sinking-3-feet-every-year-1882187727.html

[13] http://geo-mexico.com/?p=6229

How Rights of Nature Will Help Restore Mexico City’s Rivers

Image:  Global Water Dances

By Darlene Lee

What is Earth Law?

A growing body of law called Earth Law is emerging as a solution to today’s environmental crisis. Earth Law represents a move from a human-centered legal system to one that serves all life on Earth. Achieving this paradigm shift requires securing fundamental rights for nature. To give a few examples, securing rights for nature would mean that rivers have a right to clean water and adequate flows, and ecosystems have a right to integral health free from pollution. This paradigm shift would also grant nature standing to defend its rights in court, just like humans and corporations.

“In the face of climate change and other enormous environmental challenges, our future as a species depends on those people who are creating the legal and political spaces within which our connection to the rest of our community here on Earth is recognized,” notes Cormac Cullinan in his article “If Nature Had Rights.”

Mexico City creates a new constitution recognizing Earth Law

In January 2017, Mexico City adopted rights of nature language into its new constitution. Article 13 of the constitution, called the Carta Magna, proclaims: “The right to the preservation and protection of nature will be guaranteed by Mexico City authorities in the scope of their competence, always promoting citizen participation in this subject.” In preparation for the inclusion of such language, Mexico hosted the First Forum on the Rights of Nature in the summer of 2016, a large event that welcomed 150 international activists, artists and organizations all focused on achieving environmental justice. Among these organizations were the World Conscious Pact, Derechos de la Madre Tierra (Rights of Mother Earth) of Mexico and Organi-K.

The push to preserve the integrity of ecosystems comes not just from the people of Mexico’s 165 million hectares of farm and forest land, but from its urban centers as well. Much like Washington, D.C., Mexico City is a progressive hot spot where citizens advocate for continued evolution of governing laws. For decades Mexico City, like Washington, enjoyed the unique status of a Federal District — not just a city, but not exactly a state either. While D.C. gained the right to control many of its own affairs via a mayor and city council in 1964, Mexico City did not elect a mayor until 1997.[1] Even more recent is the city’s ability to draft its own constitution, an opportunity that sprung from the push to make Mexico City a “federal entity” rather than a district. Unlike Washington, D.C., Mexico City essentially won statehood in 2013.

With Mexico City’s newfound autonomy came a chance to put the power in the hands of the nearly 9 million people who call “la Ciudad de Mexico” home. In an unprecedented move, Mexico City’s mayor, Miguel Ángel Mancera, opened the floor to ideas from the public via a simple Change.Org petition format. Environmental action gained a prominent seat at the constitutional drafting table, amongst other progressive causes such as LGBT and animal rights. One participant saw his petition for green space per capita requirements go from 600 to 10,000 signatures nearly overnight, earning his ideas an official place in the constitutional text. The crowd-sourced ideas were reviewed by a diverse panel of legal experts, policy advisors and even artists and activists. This panel drafted the Carta Magna based on these ideas.

The Campesino Movement gave these goals added momentum. The Campesinos are a collective of family-based farmers worldwide who advocate for sustainable efforts to curb the destruction of the land from activities such as fracking and mining. The Campesinos (taken from the Spanish word for “peasants” or “oppressed farmers”) have grown quickly by combining deep-rooted values of indigenous peoples and rural farmers with modern outreach techniques, such as social media and online press. Though largely ignored by government and corporations, the Campesino movement has helped popularize the nature’s rights and community rights movements. They have also connected famers with environmental allies across Mexico and Latin America to seek action beyond their national borders – for example, by appealing to the U.N. to support farmers against businesses, governments and cartels that threaten their health and livelihoods.

With the territory being home to an estimated 12 percent of the planet’s biodiversity,[2] most of Mexico’s population remains closely connected with nature, helping fuel the development of a fervent environmental movement. While subsistence farmers and indigenous people are often amongst the most economically disadvantaged in the nation, it is the encroachment of modern monoculture farming and big agri-business that threatens to truly strip them of their limited wealth. Earth Law becomes a way in which their voices can be heard and accounted for, and a way to codify and safeguard natures’ best interests – and as a result, theirs as well.

Mexico City is not the first to include rights of nature in its constitution. In 2008 Ecuador approved a new constitution that featured articles granting rights to nature and setting a precedent for their defense.[3] Ecuador’s constitution states that nature “has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.” In 2012, Bolivia followed suit by passing a national law recognizing the rights of nature. The legislation states: “Mother Earth has the following rights: to life, to the diversity of life, to water, to clean air, to equilibrium, to restoration, and to pollution-free living.”[4]

Recognizing the rights of rivers

The year 2017 has been marked by new legal rights for rivers. New Zealand’s parliament formally enacted a treaty in March that recognized the Whanganui as a legal person with fundamental rights, including the right to sue, making it the first river in the world to gain recognized legal rights.[5] Just five days later, the Uttarakhand high court in India recognized two rivers (the Ganga and Yamuna) as “living entities” with fundamental rights, also allowing designated humans to represent the rivers in court and file complaints on the rivers’ behalf.[6] And most recently, in May 2017, Colombia’s Constitutional Court granted rights to the Atrato River[7] and ordered the government to clean up its waters.

To continue the momentum of new rivers gaining legal rights, ELC is developing a Universal Declaration of River Rights. This document recognizes that legal rights for rivers can mean a broad range of things, but at its core includes:

·      the right to flow,

·      the right to perform essential functions within its ecosystem,

·      the right to be free from pollution,

·      the right to feed and be fed by sustainable aquifers,

·      the right to native biodiversity, and

·      the right to restoration.

Legally, implementing these rights means that rivers will be protected aside from their utility to humans. It will also mean that the rights of a river – those necessary to achieve healthy waterways – will be enforceable by courts on behalf of the river itself. And these rights would apply not only to a river, but also to the river basin of which a river is a part.

Parallel to the Declaration, ELC launched a campaign to secure legal rights for the Magdalena River (or “rio Magdalena”) in Mexico City. This campaign draws from the rights of nature provision in Mexico City’s new constitution. It also builds off the efforts of those organizations tirelessly working to protect Mexico’s waterways and environment. Already, ELC is partnering with many of these groups, including Cuatro al Cubo, Organi-K, Dale la Cara al Atoyac, Nuiwari, A.C. and a myriad of others.

How did the Rio Magdalena come to be Mexico City’s last free-flowing river? 

The Rio Magdalena is Mexico City’s last and only free-flowing river, from an original host of 45 living rivers. The Aztec capital of Tenochtitlan was built in 1325 on a network of islands, sitting on Lake Texcoco. There were dikes and canals, and the Aztecs planted crops on man-made floating gardens called chinampas. The lake provided the Aztecs with a line of defense, and the chinampas provided sustenance. The central idea revolved around living with nature.

Then the conquering Spaniards waged war against water, determined to subdue it. They replaced the Aztec systems with streets and squares. They drained the lakes and cleared forest land. Soon, the city suffered from flood after flood, including one that flooded the city for five straight years.[8]

The Grand Canal, finished in 1894, was supposed to fix all the flooding. And until 1910, it worked as designed – purely by gravity. Over the next five decades, however, its inclination declined to 10 centimeters per kilometer due to land subsidence of seven meters. Several large pumps were installed in an attempt to maintain its capacity. Due to further land settlement, the inclination in the Grand Canal became zero by 1990 and negative by 2000.[9]

One of the most serious problems resulting from subsidence is the lowering of the elevation of Mexico City relative to Texcoco Lake – the natural low point of the southern portion of the basin. In 1900, the bottom of the lake was three meters lower than the median level of the city center. By 1974, the lake bottom was two meters higher than the city. These changes have aggravated the flooding problem and are reflected in the evolution of the complex drainage system to control flooding.[10]

In what was once a water-rich valley, Mexico City now must import over a third of its water from increasingly remote sources. Due to leaks and pilfering another 40 percent is lost when the water runs through 8,000 miles of pipes. Pumping all that water more than one mile uphill consumes roughly as much energy as does the entire metropolis of Puebla, a Mexican state capital with a population akin to Philadelphia’s. [11] Despite this, over a third of residents must hire water trucks or “pipas” to deliver drinking water since it’s not available through their taps.[12]

What’s next for the Magdalena and other rivers?

ELC wants to reverse the narrative of Mexico City’s waterways from one of degradation and loss to one of restoration, harmony with nature and thriving community life. We believe that establishing legal rights for the Magdalena is the first step towards achieving that vision. Success means the Magdalena can also serve as a model for additional campaigns to establish legal rights for rivers in Mexico, North America and worldwide.

Here is what’s in the pipeline for ELC to achieve legal rights for the Magdalena and other waterways:

·      Forum on river rights: A Forum on the Rights of Rivers is being held in Puebla, Mexico (a few hours from Mexico City) from November 11-13, 2017. Here experts, activists, government and community members will explore global trends in legal rights for rivers and outline a future in which Mexico’s rivers have rights as well. Earth Law Center will be in attendance speaking on its Universal Declaration of the Rights of Rivers and the Magdalena River. Email gwilson@earthlaw.org if you are interested in attending.

·      Rights for two other rivers: In addition to the Magdalena, ELC and partners are seeking fundamental rights for two other rivers in Mexico: the Atoyac and the San Pedro Mezquital. The Atoyac is one of the most polluted rivers in Mexico, while the San Pedro Mezquital is sacred to the Wixárika people and is being threatened by a destructive dam project. Stay tuned for details about public events in support of these campaigns.

·      Building the river rights movement: There are many ways that you can support ELC and help us achieve rights for rivers in Mexico and worldwide.

1.     Donate to ELC

2.     Volunteer with ELC

3.     Connect with us on social media and sign up for our newsletter

4.     Contact ELC if you want to work on your own river rights campaign

---

[1] https://en.wikipedia.org/wiki/History_of_Mexico_City

[2] http://geo-mexico.com/?p=2765

[3] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[4] http://www.huffingtonpost.com/peter-neill/law-of-mother-earth-a-vis_b_6180446.html

[5] https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being

[6] http://www.smithsonianmag.com/smart-news/ganges-and-yamuna-rivers-given-rights-people-india-180962639/

[7] https://news.mongabay.com/2017/05/colombias-constitutional-court-grants-rights-to-the-atrato-river-and-orders-the-government-to-clean-up-its-waters/

[8] https://www.nytimes.com/interactive/2017/02/17/world/americas/mexico-city-sinking.html?_r=0

[9] https://en.wikipedia.org/wiki/Water_management_in_Greater_Mexico_City

[10] https://www.nap.edu/read/4937/chapter/4#14

[11] https://www.nytimes.com/interactive/2017/02/17/world/americas/mexico-city-sinking.html?_r=0

[12] http://www.hiddenhydrology.org/category/city/mexico-city/

The Importance of the Atrato River in Colombia Gaining Legal Rights

Photo courtesy of Laura Villa

May 5th, 2017
Guest Blogger Laura Villa from Innove [i] goes behind the scenes to give us the scoop on the latest river to gain legal personhood rights.

The Atrato River has been granted legal personhood rights by the Constitutional Court in Colombia, through a partnership of many organizations including CELDF[ii]. Just a month ago, the third largest river in New Zealand (the Whanganui) and the Ganges were recognized as having legal personhood. The High Court in Colombia recognizes for the first time in its jurisprudence that a natural resource, in this case a river and its watershed, are subjects and holders of rights alone, and it is the State's responsibility to protect it.[iii]

This is so exciting for those of us working in the field. Each milestone helps pave the way for other rivers to get legal personhood, including in the United States. Earth Law seems to be an idea whose time has come. Earth Law Center[iv] defines Earth Law as “a growing body of law recognizing that the Earth has inherent rights, and that humans and nature are co-members of a larger Earth Community whose well-being is guaranteed. Rather than treating nature as “property” for human consumption, Earth Law recognizes that nature is an entity with its own rights. Nature's rights are not “given” by humans, but rather are inherent to nature’s existence – just as humans possess inherent rights to life, liberty and the pursuit of happiness.”

In his groundbreaking work, Should Trees Have Standing, Christopher Stone observes that the history of law suggests a parallel development with that of human moral development – and further, that each successive extension of rights to some entity has been “unthinkable”. He cites children, slaves, women and ethnic minorities as examples.[v]  With three different nations coming to the same conclusion about a key river in their jurisdiction, the notion of Earth Law no longer seems to be as unthinkable as it once was.

Think of when corporate personhoods, like these rivers gaining legal standing, were also considered unthinkable before it happened. Corporate entities date back to medieval times, observes Colombia law professor John Coffee, an authority on corporate law. "You could think of the Catholic Church as probably the first entity that could buy and sell property in its own name," he says.[vi]

In the case of the Atrato River, the High Court asserts that "the defendant state authorities are responsible for violating fundamental rights to life, health, water, food security, the healthy environment, culture and territory of the local ethnic communities."[vii] The Atrato River cuts through the Darien Gap, the rugged tropical jungle that straddles the border between Panama and Colombia.[viii]

The Atrato River ecosystem represents the only break in the Pan-American highway, which intended to connect Canada with Argentina but hasn´t been completed yet due to ecological concerns. Before the Atrato River flows into the Caribbean sea, it creates a swampy delta which is one of the most biodiverse wildlife ecosystems in the world. This ecosystem is also home to afro and indigenous groups and other minorities and happens to be one of Colombia´s poorest and most forgotten areas, thus rife with drug trafficking. The Atrato River has also been decimated by gold mining since Spanish colonial times.

Today, the degradation of the river and its ecosystem expands to almost 650.000 hectares and approximately 800 dredges. According to Mercury Watch, Colombia is the country with the highest rate of mercury and cyanide contamination in America, and a third of its total 180 tons per year are poured into the Atrato River.

Although water isn’t a fundamental right considered in the National Constitution of Colombia, in this case the Constitutional Court has considered it indispensable for guaranteeing the right to life, as well as essential for the environment and the life of multiple species that inhabit the planet.  The judgement said that “only an attitude of profound respect and humility with nature and its beings makes it possible for us to relate with them in just and equitable terms, leaving aside every utilitary, economic or efficient concept”.

To guarantee this historic judgement, the claiming communities represented by the Tierra Digna organization will have to create a commission of guardians with two delegates to follow up on the protection and restoration that the State must provide for the river. The Humboldt Institute and the WWF will advise this commission.

The Colombian public opinion has been favorable to the judgement of the Constitutional Court, but skeptical about its accomplishment. The reason for doubt is human rights legislation. Albeit the constitution and laws aim to protect human rights and individual freedom, indigenous leaders and journalists are still targets of killings and death threats. Colombia still appears in the top of International Amnesty and Human Rights Watch indexes. If the state cannot guarantee the traditional law in cities and municipalities where the is institutional presence, how will it fare in guaranteeing the protection and restoration of the Atrato River, located in a jungle - where the minimum living standards such as food security, fresh water, energy, health and education are not available? How will the thousands of people that depend on illegal mining in the Atrato River replace their livelihoods?

As with the Ganges and Yamuna Rivers in India, the Atrato rights declaration is a big step forward towards an earth-centered law and a sustainable planet. Nevertheless, the mechanisms for guaranteeing the implementation of this judgment presents a challenge for third world countries with more urgent issues to attend to, with very limited capacities and resources to spare. Do we need the creation of an International Earth Law Court to intervene in the ecocides that affect not only a country, but the entire planet? The consequences of the degradation and destruction of major river ecosystems around the world affect the whole world – and the biosphere we call home.

---

[i] Innove is a Colombian think& do tank that promotes the social and economic transition to sustainable models through publications and projects such as “Sustainable Antioquia” a regional initiative to address the SDGs that interacts with partners at a global scale. More info:  http://innove.com.co/english/  or contact laura.villa@innove.com.co

[ii]  https://intercontinentalcry.org/colombia-constitutional-court-finds-atrato-river-possesses-rights-protection-conservation-maintenance-restoration/

[iii] http://www.elnuevosiglo.com.co/articulos/05-2017-los-derechos-del-rio-atrato

[iv] www.earthlawcenter.org

[v] https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have-standing.pdf

[vi] http://www.npr.org/2014/07/28/335288388/when-did-companies-become-people-excavating-the-legal-evolution

[vii] https://www.google.com/search?q=google+translate&rlz=1C5CHFA_enHK547HK547&oq=google+&aqs=chrome.0.69i59j69i60l3j69i65l2.1232j0j4&sourceid=chrome&ie=UTF-8

[viii] http://www.atratoadvisors.com/atrato-river/