Transboundary Water Issues: Challenges and Opportunities

Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon        March 2–5, 2017

Transboundary Water Issues: Challenges and Opportunities

Presented by: Eric Benjaminson, former United States Ambassador; Todd Jarvis, Oregon State University; Austen Parrish, Indiana University School of Law; Fatima Taha, Oregon State University.

This panel consisted of four panelists who discussed separate challenges that attorneys and other professionals face when solving transboundary water issues.

Todd Jarvis, a hydrologist and professor at Oregon State University, began the discussion by outlining six issues anyone working in transboundary water agreements should be ready to face. Jarvis began by explaining the issue of conceptual models, which can be important—especially for groundwater—as they help fill in the gaps for our imperfect knowledge of groundwater formations. The problem, he noted, is that professionals working in different countries often use incompatible conceptual models and thus cannot even come to a basic mutual understanding. Second, Jarvis addressed the scope of regional authority. Some countries allow local management, whereas others use national legal frameworks, and while transboundary issues suffer from political tensions, local management can be particularly political. Third, a lack of data can prevent countries from wanting to agree to solutions. Fourth, boundaries can change, which can compound other issues associated with transboundary water agreements. Fifth, Jarvis discussed how “dueling experts” can hold back transboundary water agreements. He noted that hydrologists in particular can often come to different results depending on who is asking them to make a specific finding. When experts fail to come to a consensus, politicians and other stakeholders can cherry pick data and use it to their advantage indefinitely. Sixth, Jarvis stated that transboundary water agreements are expensive to reach. Small issues can delay agreements by decades and cost millions of dollars.

Next, Eric Benjaminson, a former United States Ambassador to Gabon and to São Tomé and Príncipe and former United States Economic Minister Counselor in Canada, discussed how international disputes over Devils Lake in North Dakota reflect the challenges that professionals working in transboundary water disputes must face. Following a local plan to allow a spillway to help drain the lake during times of high water, an international fight began. The plan for Devils Lake would have had a negative impact in Canada, notably on Lake Winnipeg, the eleventh largest freshwater lake on Earth. The Canadian government opposed the plan for decades and believed that it violated the international Boundary Waters Treaty. In 2005, North Dakota constructed the spillway. To protect their interests, Canadian diplomats requested, among other things, that the United States submit the case to the International Joint Commission. The United States refused to do so, but it agreed to conduct some studies on invasive species that could spread as a result of the spillway. But for the United States, the fact that the federal government largely lacks jurisdiction over the lake making it more difficult fto intervene than would be the case with other lakes. Despite Devils Lake being relatively small, it has exhausted a massive amount of diplomatic energy between the United States and Canada.

Austen Parrish, dean of Indiana University’s Maurer School of Law, presented next, arguing that one way to solve transboundary water issues is to shy away from a model that encourages local authorities. He stated that small scale attempts to fix transboundary water issues invariably fail, and such challenges require large-scale and complex solutions. Local authorities can be hyper-political, and lose perspective of the end goal. To show how localized solutions are ineffective, Parrish discussed difficulties that the Confederated Tribes of the Colville Reservation faced when a Canadian mining company, Teck, polluted the tribe’s water supply. Teck intentionally discharged more than ten million gallons of slag and effluent into the Columbia River.

The tribe sued Teck under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) more than ten years ago. It is uncertain how CERCLA will apply across an international border. Despite Teck’s admission that it intentionally dumped slag and effluent, the tribe has yet to receive any payments or other remedy. The Confederated Tribes of the Colville Reservation won an award in federal district court last year, but the case is currently under appeal. The appeal will further delay any chance the tribe has at remedy. There are likely two ways that this litigation could conclude: the court could find Teck liable and impose massive fines under American domestic law, or there may be a diplomatic resolution between the two countries before the court reaches a decision. Regardless, what is evident is that old treaties and strategies to solve transboundary issues may no longer work. Without a transboundary agreement over actions such as Teck’s, it is much harder for United States citizens to seek justice. Parrish used this example to show how vital it is to have transboundary agreements that are respected at a high level of international policy. Without such an agreement, citizens are left to fight under domestic laws and uncertain precedents.

Fatima Taha, a graduate student at Oregon State University, concluded the presentation by discussing her research into resolving transboundary water issues. Taha has developed a live-action “serious game,” designed to encourage effective transboundary negotiations. In this game, players participate on teams of three. Each team represents a country and its three players participate as a head of state, an agriculturalist, and an environmentalist. Each country must work with other countries to coordinate the development of food grains, meat, dairy, and a healthy environment. This development is symbolized by each team’s accumulation of “notes,” which can represent water and commodities. Negotiations between teams can quickly fall apart through news of extreme drought or war. Overall, Taha’s game helps participants de-politicize issues and seek an equitable solution that makes sense for all parties involved. Taha believes the game’s simplicity and practical use—as well as the enjoyment its players report—add to the growing understanding that “serious games” can develop critical thinking among participants in ways that other experiences cannot.

Matthew Kilby

 

Image: Sunset at Devil’s Lake in North Dakota. Flickr user Jimmy Emerson, DVM, Creative Commons.

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