INTRODUCTION

Water is emerging as the “new oil.” Water has always been a precious commodity, particularly in arid climates and underdeveloped nations. Access to potable water is a fundamental right. As such, disputes over access to water have become increasingly common. In regions with growing populations these disputes have become volatile. The Middle East is no exception, and the water disputes in that region are further complicated by longstanding geopolitical tensions.

The history of water-related conflicts in the Middle East stretches over the past 5,000 years. Currently, the Israeli-Palestinian water dispute is center-stage in the international arena. Israelis and Palestinians coexist in a small region with a large population density.  The physical proximity of the two populations necessitates close collaboration with respect to use and allocation of scarce natural resources. Specifically, the Israeli-Palestinian conflict can be attributed, in part, to a dispute over the two major shared water sources: the surface water that originates in the Jordan River Basin and the mountain aquifers that extend from the West Bank into Israel.  The Palestinians believe that the Israelis wield their power to impede the flow of water to Palestinian communities.  In contrast, Israelis allege that Palestinians grossly mismanage their limited water supply to the detriment of all users.

The shortage of surface water and groundwater resources in the region inevitably exacerbates the already explosive conflict between the two communities. This makes finding a resolution to the on-going water shortage, which is now elevated to a crisis level, even more pressing.  Rather than permitting this shortage of water to add to the mounting tension in the region, this dispute over a scarce resource should be viewed as an opportunity to cooperate and find a solution that benefits both parties and helps establish the foundation of trust necessary to facilitate legitimate peace negotiations.  Though the security of Israel, maintenance of human rights and the Israeli settlement policies are each legitimate political concerns, the serious health dangers associated with open sewage, lack of water, and empty or polluted wells should be considered of equal importance by the actors in the region and the international community.

DISPARATE PERSPECTIVES

High-tech irrigation systems and public awareness aid Israelis in achieving more efficient water use than their Palestinian neighbors. Israel has a high per capita water use and has taken a firm stance on its unwillingness to reduce the water supply for urban or agricultural use. Most importantly, the Israelis view water as a security issue. Water is a political vehicle wielded to gain a stronger footing in the disputed territories. Furthermore, the Israelis believe the Palestinians misuse and mismanage their shared water supplies, thereby posing a direct threat to Israel.

The Palestinians believe water use is a right, which they are continually denied.  Palestinians view the denial of water rights as a major impediment to the Palestinian economy. A 2009 report by the World Bank asserted that the Palestinian economy endured substantial costs due to lost opportunities in irrigated agriculture as a result of water limitations. The study estimated the loss as 10% of GDP and 110,000 jobs. Moreover, health concerns also exist. According to UNICEF, over 90% of the water taken from Gaza Coastal Aquifer (“GCA”), Gaza’s sole aquifer, is insufficient for human consumption. Furthermore, the Palestinians believe that they are unjustly burdened by having to purchase their water from overpriced and unregulated sources. More than 80% of the people in Gaza purchase drinking water from unregulated, private vendors, despite the water’s likely contamination. This imposes an additional financial and health burden on the people of Gaza.

UNICEF officials assert that some families are paying as much as a third of their household income for water. The World Bank determined that Israel consumes 80% of the water available in the mountain aquifer which runs the length of the occupied West Bank  and is shared with other occupants of the West Bank.  According to the World Bank, Israelis use 240 cubic meters of water per person each year; West Bank Palestinians use 75 cubic meters, and residents of Gaza use 125 cubic meters. However, it is noteworthy that in some areas of the West Bank, Palestinians report living on as little as 6 cubic meters of water per person per year.

Historically, Gaza has been dependent upon its coastal aquifer because there are no streams or rivers.  However, due to water mining—where water is pumped out of the aquifer at a higher rate than replenished—seawater from the Mediterranean has permeated into the groundwater. As a result, the water salinity has reached undrinkable levels.  Moreover, this water is also contaminated by raw and partially treated sewage coming from Gaza every day and flowing into the shallow coastal waters. One recent United Nations report predicted that the aquifer will be inoperative by 2016 because of overuse and contamination.

While some politicians attempt to divert attention to other issues, 1.7 million Palestinians are running out of fresh drinking water in the Gaza Strip. Although the Oslo Peace Accords of 1993 ostensibly alleviated much of the tension between the nations over water allotment and sewage infrastructure, the fundamental dilemma remains that both sides have differing viewpoints of what should be achieved through a policy of water sharing. The Israeli government believes it has satisfied its obligations under international law. The Palestinians’ focus is on their desperate situation with respect to water rights. The disparate perspectives make collaboration very difficult The Joint Water Committee, established in accordance with the Oslo Peace Accords, has failed thus far to produce effective results and reform.

POLITICS STYMIE IMPROVEMENT

Environmental improvements in the region are stymied by political disputes. These disputes occur not only between the Israelis and Palestinians, but also among internal Palestinian political factions.  One example of the political impediment on the issue of water rights is illustrated by the completion of a wastewater treatment plant in November, 2013 to alleviate pollution of the GCA, which serves 400,000 people in the northern Gaza Strip. Gaza is reliant on Israel for its electricity supply. However, Israel is refusing to provide the additional three megawatts required to power the treatment plant until Gaza’s current electricity bills are paid. Hamas and the Palestinian Authority disagree over who should pay the debt. Until this debt is paid, or an alternative electricity source emerges, untreated sewage will continue to pollute the coastal aquifer. As a result, the contamination threatens not only the individuals in the Gaza Strip, but an Israeli desalination plant in Ashkelon.

STEPS TO MITIGATE THE WATER CRISIS

Although there have been valiant efforts by a number of non-governmental organizations (“NGOs”) to ameliorate this water crisis, the efforts are piecemeal and have largely had a minimal effect. Now, the involvement of the Friends of the Earth organization (“FoE”), has the potential to make a significant impact. This group has extensive financial resources and has identified the water conflict between Israel and Palestine as its first priority. As a result, it has begun to attract the international political attention necessary to alleviate this crisis.

The FoE campaign “Water Can’t Wait” is aimed at drawing global attention to the water crisis facing Gaza. FoE placed an hourglass full of polluted water in Tel Aviv’s central Rabin Square. This effort was a visual representation on display of the tainted water both Israelis and Palestinians encounter.   Other organizations, such as UNICEF, have facilitated the construction and implementation of eighteen small neighborhood desalination plants, providing free drinking water to 95,000 people. These grassroots efforts have had some tangible positive impact.  However, these small NGO organizations will only be able to make small improvements absent a monumental shift in government policy. Nevertheless, there is some hope emerging from even these incremental measures.

Cooperative work on water issues has also led to greater collaboration on other aspects of the Israeli occupation. For example, the Palestinian village of Wadi Fuqin and the Israeli community of Tzur Hassadeh united to tackle water issues in 2010 and also came together to block construction of a separation wall, designed to separate the two communities by a physical barrier. The previous collective effort between these two communities to solve their mutual water issues built a foundation of trust. Working together to block the wall can serve as a model where everyone benefits.

POSSIBLE SOLUTIONS

Israel has a larger water supply due to large-scale desalination. Moreover, both sides need to deal with untreated sewage. Reigniting negotiations over water as a chief priority is logical from an economic, environmental, and partisan perspective. Both peoples could improve their living conditions. Palestinians would not have to purchase water from private companies. Furthermore, pollutants from rivers and streams would no longer affect the Israelis. A final agreement regarding water will provide the necessary foundation of trust required to put the political process between Israel and the Palestinians back on track.

Incremental problem solving between the two peoples, beginning with water and sanitation, can advance the overall peace effort by reaching a resolution on one of the issues that detrimentally affects both sides. The first step to finding a solution to shared water is to acknowledge that there is a water crisis and water disparities exist between Israelis and Palestinians. Next, Palestine will need independent water rights, which will require a proper infrastructure and enough water to manage. One potential avenue to accomplish this would require Israel to recognize Palestinian water rights to the Jordan River. Moreover, the Israeli government can provide the Palestinian Water Authority with water, free from charge. This can all be done without discussing more political and philosophical disputes, such as settlements or the sharing the sovereignty in Jerusalem.

The Palestinian Authority would then distribute the water to Bethlehem, Hebron, and Yatta, in the West Bank, where the need for water is greatest. This action would bolster the Palestinian public support for the more moderate Palestinian Authority, demonstrating that tangible concessions can stem from negotiation, rather than violence.  The Palestinian Authority, in turn, could make a goodwill gesture and declare that the sewage treatment plant, piloted by the World Bank in Hebron, will expand to include the treatment of all Palestinian domestic and industrial sewage that currently permeates into Israel vis-à-vis the Hebron Stream. The United States could lend financial support to this effort, which is estimated to require an additional $30 million contribution. Israel would likely garner wide support, particularly in Beersheba, where the people are inundated with untreated sewage. There is potential for change. Water can be the key to facilitating this change.

CONCLUSION

Environmental problems transcend ethnic, tribal, or sectarian boundaries. Given the geopolitical significance of the Middle East, it is imperative to resolve a dispute that has significant ecosystem repercussions within the greater region. It is evident that fair, sustainable, and equitable relations between Israel and Palestine cannot occur without agreed upon arrangements for water sharing. While the insatiable need for fresh water in an arid climate is currently wielded as a political tool, cooperation in the reallocation and innovation of water and water-related technology has the capacity to unite the nations.  The thirst for adequate supplies of potable water is a common denominator. With courage and foresight the leadership of both the Palestinians and Israelis can use the region’s water crisis as a bridge to further collaboration and an easing of tensions.

 

The title picture is of the Jordan River in Israel. This file is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license and the owner does not endorse this blog.


Sources:

Arwa Aburawa, Can water end the Arab-Israeli conflict? Aljazeera http://www.aljazeera.com/indepth/features/2011/07/20117278519784574.html. (last visited Feb. 15, 2014).

Schein, Jonah, The Role of NGOs in Addressing Water Access in Israel and the Palestinian Authority, 5 Sustainable Development Law & Policy 19 (2005). http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1405&context=sdlp (last visited Feb. 15, 2014).

Matthew Kalman, Gaza warned of looming water crisis: Friends of the Earth Campaign highlights problem which it says is being exacerbated by hold-ups in Middle East peace process, The Guardian, Jan. 30, 2014 http://www.theguardian.com/environment/2014/jan/30/gaza-looming-water-crisis-friends-earth  (last visited Feb. 15, 2014).

Rory McCarthy, Israelis get four-fifths of scarce West Bank water, says World Bank: Palestinians losing out in access to vital shared aquifer in the occupied territories, The Guardian, May 27, 2009. http://www.theguardian.com/world/2009/may/27/israel-palestinian-water-dispute (last visited Feb.15, 2014).

Catherine Weibel and Sajy Elmughanni, A fresh solution to Gaza’s water crisis, UNICEF, Jan. 14, 2014, http://www.unicef.org/infobycountry/oPt_71763.html (last visited Feb. 8, 2014).

Thomas L. Friedman, Whose Garbage is this anyway? The New York Times, Feb. 8, 2014 http://www.nytimes.com/2014/02/09/opinion/sunday/friedman-whose-garbage-is-this-anyway.html (last visited Feb. 13, 2014).

Hilal Elver, Celebrating water cooperation: Red Sea to Dead Sea: Israel-Palestine Joint Water Committees work has been referred to as ‘water apartheid,’ and ‘pretence of cooperation.’ Aljazeera  http://www.aljazeera.com/indepth/opinion/2014/01/celebrating-water-cooperation-r-201412072619203800.html (last visited Feb. 15, 2014).

The Palestinians’ West Bank: Squeeze them out, The Economist May 4, 2013, http://www.economist.com/news/middle-east-and-africa/21577111-jewish-settlements-expand-palestinians-are-being-driven-away-squeeze-them (last visited Feb. 15, 2014).Oded Eran & Gidon Bromberg, A New Road Map to Middle East Peace: Start with Water, Friends of the Earth Middle East. http://foeme.org/www/?module=projects&record_id=54 (last visited Feb. 20, 2014).

Martin Asser, Obstacles to Arab-Israeli peace: Water, BBC News, http://www.bbc.co.uk/news/world-middle-east-11101797 (last visited Feb. 20, 2014).

 


Reep v. State

Reep v. State, 2013 WL 6835003 (N.D. 2013) (holding the anti-gift clause of North Dakota’s constitution precludes construing a state statute as a grant of the State’s equal footing mineral interests under the shore zone to private upland landowners).

Eleven named owners of land next to navigable waters in North Dakota (“upland owners”) sued the State of North Dakota (“State”), seeking declaratory judgment that they, not the State, owned the minerals under the shore zone.  The landowners appealed to the Supreme Court of North Dakota (“Court”) from the district court’s grant of summary judgment in favor of the State.

When North Dakota joined the Union in 1889, the equal footing conferred onto the State constitutional rights to the land and mineral interests under its navigable waters from high watermark to high watermark.  Although this conferral included the right to allocate its property interests, the equal footing doctrine required North Dakota, by virtue of its sovereignty, to hold its shore zone interests in trust for the public.  The anti-gift clause found in N.D. Const. art. X, § 18 further protected the public trust by precluding the State from gifting its mineral interests to any private entity.

At issue in this case was N.D.C.C. § 47-01-15, which provides that private landowners next to navigable waters “take to the edge of the lake or stream at low watermark.”

The upland owners argued the district court’s holding was contrary to the Court’s decision in State ex rel. Sprynczynatyk v. Mills which they construed as holding that upland owners next to navigable waters have full interests in the shore zone under N.D.C.C. § 47-01-15.  The upland owners further contended that the State’s public trust and equal footing obligations did not relate to the proprietary privileges of ownership of subsurface mineral interests under the shore zone.  The upland owners further contended that the statute did not violate the anti-gift clause.

Conversely, the State argued that its rights to shore zone mineral interests extended from high watermark to high watermark under the equal footing doctrine.  The State claimed N.D.C.C. § 47-01-15 was a rule for construction, clarifying the extent of a grantor’s conveyance to the grantee, rather than granting public mineral interests to private entities.  The State further contended that a construction of the statute as a grant of the mineral interests to private entities would violate the equal footing doctrine and the anti-gift clause of N.D. Const. art. X, § 18.

The Court first examined Mills to determine whether N.D.C.C. § 47-01-15 is, as the upland owners contended, an absolute grant of shore zone interests to private landowners next to navigable waters.  In so doing, it reiterated the statutory interpretation in Mills, wherein the Court determined the word “takes” in N.D.C.C. § 47-01-15 was ambiguous statutory language for a rule of construction, and not a grant of ownership.  Examining the more specific use of the word “ownership” in Champlain v. Valentine, coupled with the introductory clause in N.D.C.C. § 47-01-15, the Court found a legislative intent that the statute does not grant a riparian landowner absolute ownership of the shore zone.  Rather, the Court agreed with the district court that N.D.C.C. § 47-01-15 is a rule of construction for determining the boundary for grants of riparian land.  The Court emphasized that its construction avoided an interpretation that would grant a private party a gift in violation of the state constitution’s anti-gift clause.

Having concluded that the upland owners’ reliance on Mills was misplaced, the Court turned to the law governing the State’s ownership of mineral interests under the shore zone.  Examining the public trust doctrine, the Court acknowledged a newly admitted state’s power to allocate its mineral interests but emphasized that power as subject to the public trust doctrine.  The Court discussed some states’ allocation of ownership of the shore zone to the upland owner to the ordinary low watermark, and other states’ decisions to extend an upland owner’s title only to the ordinary high watermark.  The State in this case claimed its mineral interests extended to the ordinary high watermark under the equal footing doctrine and that its ownership was thereafter governed by State law, including the anti-gift clause of N.D. Const. art. X, § 18.

The Court turned next to the adoption of the anti-gift clause in 1889 and its development through subsequent case law.  It determined that unlike previous cases, this case did not raise an issue about the State engaging in an industry, enterprise, or business.  It proceeded to examine a holding in Arizona Ctr. For Law v. Hassell, which determined statutory provisions substantially relinquishing Arizona’s equal footing interest in navigable riverbeds violated Arizona’s anti-gift clause.  It also cited Solberg v. State Treasurer, which held that a statute directing the State to release a reserved mineral interest to a prior owner violated the anti-gift clause because the statute had the effect of transferring State property as a gift.

The Court found that the precedent in Hassell and Solberg favors a determination that N.D.C.C. § 47-01-15 did not allocate the State’s equal footing mineral interests in the shore zone to upland owners.  The Court noted that this construction was in keeping with the Court’s presumption that statutes are written in compliance with state constitutions and in favor of public interests over private interests.  However, the Court further concluded that N.D.C.C. § 47-01-15 would allow an upland owner to take the State’s full interest to the low watermark if the State contractually grants or conveys parts of its equal footing interests to upland owners by deed.  The Court underscored that receipt of grants or conveyances from the State is subject to the restrictions of the public trust doctrine and is invalid where the deed provides otherwise.

The Court finally examined whether the upland landowners presented any factual support to show a grant of mineral interests by the State or a successor to the State, and found that they had not.  It therefore concluded the district court did not err in concluding the State owns the mineral interests under the shore zone.

Consequently, the Court affirmed summary judgment for the State, but stressed that its decision does not preclude an upland owner from taking to the low watermark if it can establish a chain of title wherein the State granted its equal footing interest to the upland owner.

 

The title picture is of Wild Rice River in North Dakota licensed under the Creative Commons Attribution-Share Alike 2.5 Generic License to Tim Kiser, who in no way endorses this blog.

 


Colorado Supreme Court Justice Hobbs has written a series of Colorado Water Law updates, published in the University of Denver Water Law Review. The first article was published in Volume 1, Issue 1, in 1997. To provide our readers with the most up-to-date water law information, the editors have periodically updated works previously published in the Water Law Review. The following is an update to Colorado Water Law: An Historical Overview, Appendix – Colorado Water Law: A Synopsis of Statutes and Case Law and was published in the Water Law Review, Volume 6 in 2001. 

Park County Water Pres. Coalition v. Columbine Assoc.

“Subject-matter jurisdiction concerns ‘the court’s authority to deal with the class of cases in which it renders judgment.’. . . [W]e have held that subject-matter jurisdiction vests in the water court upon the timely filing of the application and publication of the resume notice.” Park County Water Pres. Coalition v. Columbine Assoc., 993 P.2d 483, 488 (Colo. 2002) (citations omitted).

“The reasonableness of the notice is determined by applying an inquiry standard-whether the notice is sufficient to reveal to potential parties the nature of the claim being made, so that such parties can determine whether to conduct further inquiry into the full extent of those claims so a determination can be made whether to participate in the proceedings.” Id. at 489-90 (citation omitted).

“‘Consequently, alleged deficiencies invalidate the resume only if the resume taken as a whole is insufficient to inform or put the reader on inquiry of the nature, scope, and impact of the proposed diversion.”‘ Id. at 490 (citation omitted).

 

Click here for a PDF of the entire article: 6 U. Denv. Water L. Rev. 116 2002-2003.

 

View the first article by Justice Hobbs here: 1 U. Denv. Water L. Rev. 1 1997-1998.

View the first update to Colorado Water Law:  2 U. Denv. Water L. Rev. 223, 1998-1999.

View the second update to Colorado Water Law: 4 U. Denv. Water L. Rev. 111 2000-2001.


WATER WARS ALONG THE SOUTH PLATTE RIVER: FEW PRISONERS LEFT TO TAKE

University Club Luncheon Series
Denver, Colorado    March 14, 2013

Tom Cech is the current Director of One World One Water (“OWOW”) Center for Urban Water Education and Stewardship at Metropolitan State University of Denver (“MSU”) in Denver, Colorado. Originally from Nebraska, Cech received his B.S. in Math Education and went on to receive his Masters in Community and Regional Planning from University of Nebraska.  Highlights in his accomplished career include serving as Executive Director of the Central Colorado Water Conservancy District and educating future water experts at the University of Northern Colorado and Colorado State University in various water resources courses.  Cech has also published articles and textbooks on water resource issues that have been translated into Portuguese, and he is in the process of completing a history of the Colorado Water Conservation Board and the Colorado State Engineer’s Office.

Cech’s presentation at the University Club Lecture Series included discussion of (i) the OWOW Center, (ii) water resource course offerings at MSU, (iii) historical cultural water issues, (iv) historical issues of Colorado water, and (v) potential water supply issues for Colorado in the future.

The OWOW Center and Water Resource Course Offerings

OWOW is a new program at MSU designed to educate students on how to protect and preserve limited water resources.  MSU undergraduates have the option of completing a minor in Water Studies  (known as the Pilot Water Studies Minor) by taking at least 21 credit hours of course work in water resources and stewardship.  Classes offered include: Water Essentials, Introduction to Water Law and Administration, Water Conflict Resolution, Limnology, Multicultural Water Issues, as well as other elective courses, internships, and capstone projects.

Historical Cultural Water Issues

After providing a brief introduction to the OWOW Center, Cech continued his presentation by discussing significant historical water issues.  Resolution of water disputes has been around since the beginning of time.  Some notable moments in cultural water appropriation began in Babylon when King Hammurabi created the “Code of Hammurabi.” These laws, created between 1795 B.C. and 1750 B.C., are the first examples of prior appropriation.  The Stele of Hammurabi, a large stone statute the size of an adult human with the Code of Hammurabi etched into it, tells us the law that, “if a man has released waters and so has let the water carry away the works on his neighbor’s field, he shall pay 10 gur of corn for every bur (of land) flooded.”  Many years after Hammurabi, farmers and villages in Iran and Iraq developed Qanats, whereby a massive aqueduct system was excavated underground to bring water from the mountainous regions to irrigate the farmland.

Cech further discussed resolution of historical water disputes in the years of Anno Domini, when Moorish farmers established the Water Court at the Cathedral of Valencia in Spain to settle disputes between local farmers.  Since its inception in 961 A.D., seven elected members have met every Thursday at eleven o’clock in the morning to render judgment.  The court is not a traditional western court, but holds hearing without oaths of affirmation, written records, or even lawyers.

In 1300 A.D., with the development of tin mining, England began using canals to divert water for mining operations.  This process would become very important more than 500 years later when the Gold Rush brought settlers to Colorado.

Historical Issues of Colorado Water and Supply

In 1876, Colorado became a state and adopted the Doctrine of Prior Appropriation to ease the burden of the limited supply of water.  In nineteenth century Colorado, miners constructed hundreds of canals along the South Platte River and throughout Colorado.  The Doctrine of Prior Appropriation gave priority dates for irrigation ditches, but set no dates for wells.  This doctrine plays a very important role in establishing water rights in Colorado and continues to evolve and be a source of guidance for the growing disputes.  Cech also briefly discussed Theodore C. Henry who was responsible for constructing numerous irrigation canals throughout Colorado in the 1880s and was appointed by the Colorado governor to review irrigation laws and recommend changes.

Colorado has a rich history involving water law, as the oldest operational ditch in Colorado, the San Luis People’s Ditch, was built in 1852. While the last 161 years of Colorado water law pales next to Hammurabi’s water laws, Coloradans have also developed their own water courts for dealing with quarrels over water rights.  Greeley, Colorado houses one of the many water courts have expanding throughout the United States.

Potential Water Supply Issues for Colorado in the Future

The common consensus in arid regions is that there is growing need with a limited supply of water.  With continued drought conditions and increasing population, water experts are working to find ways to prioritize various uses.  Without more quantities of water, supplying every growing need will not be possible.  There are an estimated 5 million people in Colorado with a 2030-projected growth to 7.1 million.  The Denver metropolitan area is home to approximately 2.4 million people and is estimatee to expand to 3.9 million by 2030.

While the South Platte River Basin supplies most of the water to the Front Range population, many communities have been forced to develop pipelines to bring much needed water to citizens.  Yet transportation of water is not enough, the effects of global warming have created conditions that require water users to adapt and reevaluate water uses in order to be more efficient.

Conclusion

Cech’s brief overview of the history of various water laws around the world and the development of Colorado’s water law was informative and well presented.  While there is constant controversy about where the water is going to come from and who gets to use it, if history dictates truth, then humanity will find the best possible outcome, even if it means sacrificing a lawn or two.

 

Cech can be reached at tchech@msudenver.edu.  For more information on OWOW please visit, http://www.msudenver.edu/owow/.