Water Wars Go Underground

by Sharon Guynup, Blue Ridge (WV) Press, May 2009

Hiking in Maine’s Vernon Walker Wildlife Preserve in 2006, Ann Wentworth stumbled upon one of 16 test wells dug there without public knowledge by the Nestle Corporation. She alerted the two adjoining rural communities, Newfield and Shapleigh, where residents were inflamed by the company’s plans to pump away large quantities of local groundwater, bottling and selling it under the Poland Spring brand and other labels.

In March 2009, the towns blocked Nestle, passing ordinances granting citizens the right to protect their groundwater resources and prohibiting corporate water extraction. That same month, however, citizens in nearby Fryeburg, Maine lost a four-year fight against a Poland Spring pumping station that now will ship 50 truckloads of groundwater daily from their small, rural community.

Welcome to the groundwater wars, once fought only in the arid West. Today, water shortages are occurring nationwide. Even in traditionally water-rich regions, wells are running dry, under increasing pressure from surging population, sprawling suburbs, and demands from agribusiness, water bottling companies, mining operations, golf courses, and other water-intensive industries. Add recent record droughts brought by changing climate and we have a crisis in the making.

Across our blue planet, we are realizing that freshwater is finite. A recent World Economic Forum report warned that in 20 years, our civilization could face “water bankruptcy,” severe global shortfalls of freshwater that could crash food production — like that currently happening in Australia.

In the U.S, the Department of Agriculture reports that water tables in parts of Texas, Oklahoma and Kansas — three leading grain-producing states — have dropped by 100 feet. Meanwhile, the rocketing popularity of bottled water (Americans now drink more than 29 gallons per person, per year) has led to water shortages near bottling plants in Texas, Florida, and the Great Lakes region, said Harvard Law School’s Joyce Ahn.

In the past half-century, we’ve tripled the amount of water siphoned from the world’s rivers, lakes and aquifers. Much never returns to local watersheds, as it is bottled, piped, or trucked to far-off cities or regions, says a United Nations report. Maude Barlow, U.N. senior advisor on water, pinpoints the big questions: Who decides who owns a community’s water? Is it a private commodity to be bought and sold? Or is water a basic human right, belonging to all citizens, the ecosystem, and the future?

Most surface waters have been managed for centuries under the Public Trust Doctrine, a legal precedent forged in 530 AD by the Roman Emperor Justinian — and codified in U.S. state statutes. The Doctrine says that most surface waters belong equally to all citizens, and that it is government’s role as trustee to manage the resource for the public good. Historically, the Doctrine hasn’t protected groundwater, though 60 percent of U.S. freshwater comes from underground. Now with 36 states anticipating water shortages by 2013, there is a growing urgency to protect groundwater, and some, like Vermont, are doing so through the Doctrine.

Five New England states now require permits to withdraw large quantities of groundwater for commerce, industry or public water use. In Michigan, similar permits are issued only if the activity won’t impact surface water levels or fish populations. The Great Lakes Basin Compact, an alliance of lake-bordering U.S. states and Canadian provinces, regulates all surface and groundwater, blocking its removal from the watershed.

Under Vermont’s law, scientific evaluations of water resources determine what uses are in the public interest. Protecting the resource comes first, not development or business. Permits, issued on a temporary basis, can be withdrawn if they cause adverse affects.

Vermont lawyers were key advisors to Shapleigh residents, helping craft their ordinance with specifics that couldn’t be reversed by the courts. Their law, for instance, strips corporations of “personhood” status, an 1886 legal designation often used by companies to challenge environmental restrictions. As groundwater worries worsen, more states will need to adopt similar legislation. Citizens must have an equal place at the table with corporate interests, protecting against excessive “water mining” that could negatively impact generations to come. But with a booming, $500 billion global water industry, and investors calling water “the new oil” and “blue gold,” government will be increasingly challenged to balance corporate demands against drinking water and ecosystem needs.

Most policy makers agree that we can’t sustain current U.S. levels of use (and waste). We need a long-term, sustainable approach for the allocation, use and conservation of groundwater, based on scientific criteria. Now, in our rush to rebuild the economy, we mustn’t lose sight of the need for careful resource management. And we need to extend Public Trust Doctrine protection to U.S. groundwater, or it will be overexploited.

As Shapleigh, Maine activist Shelly Gobeille said, “Many states have water issues. Why should we sell our water to a multi-billion dollar company when our neighbors might need it down the road?”

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Sharon Guynup’s writing has been published by The New York Times Syndicate, Popular Science, The Boston Globe, nationalgeographic.com, and other publications.