InternatIonal envIronmental law

CommItteeSpecial Edition Newsletter No. 3, Summer 2015

A joint newsletter with the International Environmental & Resources Law Committee and the Water Resources Committee of the Section of Environment, Energy & Resources and the Europe Committee of the Section of International Law

WATERIMPACTS OF CLIMATE CHANGE

Courtesy of the 2009 UNCCD Photo Contest and Chetan Soni

Editor’s Letter

“Water, water, everywhere; Nor any drop to drink.” -Samuel Taylor Coleridge, the Rime of the Ancient Mariner, 1798

“All good writing is swimming under water and holding your breath.”

-F. Scott Fitzgerald, undated letter to his daughter

Throughout time, writers and philosophers have expounded upon our vital dependency on fresh water and our admiration for the might of the ocean. How astonishing, then, for our generation to observe anthropogenic climate change and to predict catastroph-ic changes to the hydrologic cycle and increased coastal flooding due to storms and sea level rise within our lifetime.

In September 2014, at the same time that we issued the Call for Articles for this third edition of our ABA Section of Internation-al Law and Section of Environment, Energy, and Resources joint newsletter series on international environmental law and water, hundreds of thousands gathered in New York to demand that the United Nations take strong action on climate change and close the emissions gap, which is the difference between actions being taken to mitigate climate change and the actions that are needed to keep global temperatures from rising more than an average of 2 degrees Celsius.

An impressively large number of people expressed interest in con-tributing their thoughts on water issues, and throughout the fall and winter our Editorial Team selected the topics to be featured and worked with the authors to refine and clarify their articles. As the United Nations Framework Convention on Climate Change (UNFCCC) parties prepare to meet in Paris at the end of this year to negotiate a “protocol, another legal instrument, or an agreed outcome with legal force under the Convention applicable to all Parties” as anticipated in Durban in 2011, we hope that this news-letter will be read widely and will influence citizen support for strong policies.

At this very moment, UNFCCC parties are submitting their Intend-ed Nationally Determined Contributions (INDCs) to the Secretar-iat, outlining the potential scope of their post-2020 mitigation pledges. The impact on water resources of the actions or fail-ures to act will be profound. Our newsletter clearly demonstrates the nexus between climate change and water, underscoring how broadly and deeply water resources are affected by the status quo. In these six articles, we focus on the newest developments and provide historic context and analysis.

Alf Brandt explores the nexus between climate change and the reliability of California’s water supply, including such issues as levee vulnerability and declining snow in the Sierra Nevada, and he provides an accessible overview of recent California efforts to adapt to climate change. Alf focuses on the 2014 California water bond and describes the initiatives it funds to mitigate drought, such as water storage management and local strategies like recy-cled water, stormwater capture, and groundwater cleanup.

Index

Alf BrandtCalifornia Water Leaders Respond to Climate Change

Aakruti Shah, Roya Vasseghi & Shannon BeebeRain Dance of the Eagle, Tiger, and Dragon: Comparing Strategies for Improved Water Quality and Access

Charles E. Di Leva, Bastián Pastén Delich and Beth Anne HoffmanSome Insights on the Role of the World Bank in Water and Agriculture Against the Backdrop of Climate Change

Ambereen ShaffieArab Spring to Arab Drought: Securing International Cooperation Over theNile River Basin

Daniel Magraw, Andrea Martinez & Elodie ManuelClimate Change and Regional and Basin Agreements

Barbara Cosens, Lance Gunderson & Brian ChaffinAssessing Law, Resilience and Governance in Basin Scale Water Systems Facing Changing Climate:The Adaptive Water Governance Project

EditorFatima Maria Ahmad

Editorial TeamMichael Balistreri, Alicia Cate, Shannon Dilley, Guillermo Malm Green, David Johnson, Anna Mance, Renee Martin-Nagle, Jonathan Nwagbaraocha, Kim Smaczniak

Cover PhotoCourtesy of the 2009 UN Convention to Combat Desertification Photo Contest and Photo Contest Winner Chetan Soni

Layout & DesignRaj Patel & Stephen Goldberg

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Aakruti Shah, Roya Vasseghi, and Shannon Beebe con-tributed a broad summary of selected water policies of the US, India, and China to underscore the variety of responses that can be adopted to address similar water supply crises across the globe. They begin by compar-ing national responses to the 2010 UN General Assem-bly Resolution declaring a human right to water and sanitation and then continue by contrasting major in-frastructure investments and innovative market-based programs that seek to improve access to water under current political administrations in all three nations.

Charles E. Di Leva, Bastián Pastén Delich, and Beth Anne Hoffman generously contributed the centerpiece article of this edition which outlines the evolution of World Bank policy on water and irrigation, a highly rel-evant issue as the demand for water by the agriculture sector continues to grow while supplies dwindle due to climate change. The authors describe how the wa-ter global practice has moved from focusing primari-ly on investing in water infrastructure projects to also investing in improved agricultural management prac-tices. The authors note the research the World Bank has done on the impact of climate change on water re-sources with the Turn Down the Heat series, and they provide a status update on the revision of the safe-guards policies.

Ambereen Shaffie provides an insightful analysis of how the Arab Spring has affected Egypt’s openness to shared management of and access to the precious and dwindling resources of the Nile, highlighting Egypt’s negotiation of a new Declaration of Principles with Ethiopia governing the construction of the multi-bil-lion dollar Grand Ethiopia Renaissance Dam. She also outlines possibilities for next steps for international management of the Nile, an issue of growing urgency in the region.

Daniel Magraw, Andrea Martinez, and Elodie Manuel shared some of the highlights of their remarkable re-port to the UN Environment Programme analyzing how regional and basin agreements all over the world can play a significant role in mitigating climate change. In addition, recently ratified agreements account for cli-mate change, e.g., the Volta River Convention. Areas of focus in the report include the Amazon and the Guarani aquifer in South America, the Volta River basin in West Africa, the Danube in Europe, the Mekong in Southeast Asia, the US - Canada border waterways, and the Mur-ray-Darling basin in Australia.

Finally, Barbara Cosens, Lance Gunderson, and Brian Chaffin provide highlights from their innovative aca-demic project which explores how the law is both an obstacle to and a tool for climate change adaptation in six North American basins: Anacostia, Columbia, Ever-glades, Klamath, Middle Rio Grande, and Platte. This comparative view provides key insights into the role of

law in adaptation. Our attorney contributors follow in the great tradition of writers who preceded them with reflections on the importance of water to society. In our current times, the need for a call to action on climate change and wa-ter is great, and these legal experts provide road maps for understanding the challenges posed to this timeless and critical resource all over the world as they outline possibilities for addressing these challenges.

Rivers and oceans have long held the power to inspire and move us. It is no easy thing to describe science, policy, and law in a way that is accessible to a general-ist and conveys the urgent need for action on climate change. These authors dove into the challenge and worked tirelessly with our Editorial Team, and we are deeply grateful for their time and efforts. It is now up to the reader to continue the conversation. Review this newsletter, consider climate change impacts on water resources in your community, and reach out to us. Just as all rivers reach the sea, all of our efforts on climate change, access to water, and sustainable development must converge.

Warm regards,

Fatima Maria AhmadEditor

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Water SyStem DemanDS Contribute to Climate Change

A decade ago, a clear connection between climate change and California’s water resources began to emerge. In light of the world’s scientists’ focus on energy and car-bon emissions, the California Energy Commission stud-ied how the state’s water system depended on energy. Its 2005 Climate Change and Water Supply Reliability report1 showed that Californians’ use of water depended on 19% of the state’s electricity and 38% of its natural gas. The state’s sophisticated system of water storage, long-dis-tance conveyance, treatment, heating, and discharge re-quired substantial amounts of energy. The water system’s energy use therefore contributed to California’s carbon emissions and affected the rate of climate change.

Climate Change threatenS the Water SyStem

In the years that followed, the reverse effect became ap-parent; climate change as a threat to the water system, which has its facilities concentrated in the Central Valley. Hurricane Katrina’s destruction of New Orleans’ levees drew attention to California’s dependence on levees in the Central Valley. Sacramento, its state capital, became the city most at risk for flooding, due to its deteriorating levees. California’s Central Valley has long suffered flood risks. Even before Americans arrived in the 1840s, Indi-ans referred to the area as the Inland Sea because, in the winter and spring, the Valley would be covered by flood-waters from melting snow coming off the Sierra Nevada. A century ago, after hydraulic mining filled Central Valley rivers with debris, the state and federal governments cre-ated a plan to build levees to narrow the rivers and scour the debris downstream. In the last 30 years, California has built its communities right up to the levees. With cli-mate change bringing the threat of more rain, less snow, and earlier peak streamflow, those levees suffer a greater risk of failure, flooding the communities behind the le-vees.

The threat to the water system appeared in the Sacra-mento-San Joaquin Delta, where levees create the chan-nels that move water from Northern California (where 2/3 of California’s water supply falls), to the San Francisco Bay Area, the San Joaquin Valley and Southern California (which uses 2/3 of the state’s developed water supply). Delta farmers obtained their property rights by building their own private levees that would keep their land dry year-round. Since farmers drained these islands a centu-ry ago, farming practices have led to oxidation of the rich, carbon-laden peat that developed over the last 10,000 years when the Delta was a shallow wetland. Now, that subsidence has led some islands to be as much as 30 feet below the adjacent water levels, putting intense strain on these deteriorating, private levees. The state has no le-

gal responsibility to maintain these private Delta levees. The U.S. Geological Survey estimates a 62% chance of a major earthquake in the next 25-30 years near the Delta, which could lead to multiple levee failures. The resulting deep-water body would draw seawater toward the water export pumps and preclude water exports due to high sa-linity levels.

The nation’s leading scientists identified a more substan-tial climate risk to California’s water supply, the declining Sierra Nevada snowpack. The Sierra had long given Cali-fornia its most valuable water resources, capturing snow from Pacific winter storms and holding that snow into the summer, when California’s farmers needed the water for irrigation. Daniel Cayan (Scripps Institution), Michael Hanemann (UC Berkeley), Phillip Duffy (Lawrence Liver-more National Laboratory) and other scientists provided water policymakers with graphs showing warming win-ter weather and projecting substantial loss of the Sier-ra snowpack – as much as 89% loss by the end of the century.2 Warmer winters, more rain, and less snow also threaten greater risk of catastrophic floods; a risk height-ened by the Central Valley levee system’s deterioration. Scientists project more “extreme weather events” in the years ahead, due to climate change.

Warmer, drier weather also threatens the health and wa-ter-producing capacity of California’s Sierra watersheds. Enduring droughts exacerbate the threat of pine beetles to Sierra forests, which produce and retain much of Cali-fornia’s water supply.3 California recently has seen some of its worst forest wildfires, further contributing to the deterioration of the Sierra watersheds. With less tree cover, runoff of water and soil increases, creating greater flood risk and less water storage. Recurring, record-set-ting warm and dry weather has brought these threats to the California water system to the forefront of water managers’ attention -- as well as to the attention of Cali-fornia voters. In November 2014, 67% of California voters approved a $7.5 billion water bond intended to increase water supply reliability.4

California aDaptS

The broad voter support for the 2014 water bond reflects intense public concern about California’s enduring and serious drought, but also the work of water managers to prepare for droughts and adapt to a changing climate and hydrology. The water bond allocates funding to a range of water programs that address the many changes in water management that California has adopted in recent years, including integrated regional water management, recy-cled water, groundwater cleanup, and water storage.5

Integrated Regional Water Management. The most crit-ical adaptation tool for California water managers was

California Water Leaders Respond to Climate ChangeAlf Brandt

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developed before climate change took center stage. Cal-ifornia spent the 20th Century building the most sophis-ticated statewide water system in the world. The State Water Project (SWP) and the federal Central Valley Proj-ect (CVP), allowed water users to depend on one water project, such as the SWP or CVP, for their water supply. There was little effort to integrate the management of the different surface and underground water supplies avail-able to users. The CVP, for example, sought to reduce groundwater depletion by Central Valley agriculture, but CVP and groundwater supplies were not managed together. When the CVP delivered full contract supply, farmers could stop using their groundwater and allow the aquifer to recover. In drought years, when the CVP re-duced its deliveries, then farmers would return to their groundwater supplies. Farmers drilled their own wells and did not report groundwater use.

The integrated nature of the California water system and growing demand eventually led to California adopting “integrated regional water management” (IRWM) as a tool to manage fluctuating supplies from individual sources.6 Multiple water agencies within a region collaborate to create an IRWM group and set joint priorities for water infrastructure to improve water supply reliability. The agencies may create cross-connections between their systems, so if one water source runs short, the agencies can share the available resources. According to a 2014 study, 85% of water infrastructure funding comes from local agencies, but the State funds some of the regional water infrastructure through IRWM.7 By supporting re-gional water management, the State helps improve state-wide water supply reliability. Statewide water systems, in combination with IRWM, help make California more resilient to water supply fluctuations, such as the cur-rent serious drought California now suffers. This resilien-cy, in turn, may help the water system withstand climate change impacts to water supply.

Urban Water Conservation. In the last few decades, Cal-ifornia water use has become much more efficient, es-pecially in urban areas. Southern California’s population has grown by about one-third, but continues to use the same amount of water that it did in the 1980s. Recurring droughts since the 1990s have led to enduring conserva-tion in good water years, and continued conservation in dry years. Urban landscaping, which accounts for more than half of residential water use, has received increased attention from homeowners. Water agencies have ad-opted water rates encouraging water conservation and increasing costs have increased the public’s perception of the value of water. With a growing public consciousness of the value of water, homeowners use better judgment in how they landscape and use water, especially in drought years. Efforts to reduce demand are an important tool to respond to the pressures climate change will have on the water system.

Flood Management. Warmer winters caused by climate change increase the risk of flooding downstream of the

Sierra Nevada, in the Central Valley, which has a long his-tory of flooding. Before Europeans arrived in California, Indians called the Central Valley the Inland Sea because it would flood during the winter and spring, spreading up to 200 miles long and 40 miles wide. A century ago, California adopted a strategy of narrowing river channels with levees, to move flood waters and sediment down-stream quickly.

With more winter precipitation falling as rain instead of snow, the risk of flood increases. A warm winter Pacific storm, commonly called a “Pineapple Express,” can lead to rapid snowmelt and sudden floods, as occurred on New Year’s Day 1997. Increased flood risk has led to new strategies to reduce flood damage in the Central Valley Flood Protection Plan.8 These strategies include divert-ing floodwaters to adjacent agricultural lands, to reduce impacts on downstream cities, such as Sacramento. This strategy may benefit water supply by recharging Cen-tral Valley groundwater aquifers. Integrated flood man-agement can make California more resilient to climate change and the increased risks of Central Valley flooding.

Water Storage Management. With warmer winters po-tentially reducing water storage in the Sierra snowpack, California has taken a number of steps to make its storage system resilient to climate change. Southern California built a reservoir to store imported water for drier years, and used it in 2013-14 to help meet water demand in the face of the worsening drought. The 2014 water bond in-cluded $2.7 billion for the “public benefits” of water stor-age projects, such as increased availability of water for instream flow and fishery needs. Water users pay the costs of their private benefits, such as irrigation water.

California also adopted a framework for groundwater management in 2014, after groundwater supplies de-clined substantially during the drought. The Sustain-able Groundwater Management Act of 20149 requires the formation of local agencies to assess the sustainability of groundwater extraction, providing them authority to, inter alia, ensure wells are registered, measure ground-water extraction, and assess fees for extraction. Howev-er, the Act is to be implemented over a twenty-year time frame, allowing a substantial lag before sustainable use of these water resources is to be attained.

California additionally has worked to increase its re-al-time monitoring and management of water storage and develop water storage strategies to respond to climate change. A recent NASA/Jet Propulsion Laboratory Soil Moisture Active Passive satellite successfully launched to space in January 2015, designed to map the moisture lev-els in topsoil around the world to help scientists better predict droughts, floods and other weather factors that should help to reduce uncertainties in our understanding of Earth’s water, energy and carbon cycles.10

The Sacramento-San Joaquin Delta is ground-zero for climate change issues in the California water sector. It serves as both the heart of the California water plumb-

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ing system and the most valuable estuary ecosystem on the West Coast of North or South America. Water from Northern California moves through the Delta’s existing channels to the water export pumps that move water to the San Francisco Bay Area, the San Joaquin Valley and Southern California. Oxidation of the Delta’s peat soils emits carbon that contributes to climate change, while restoring Delta wetlands recaptures carbon.11 Sea level rise increases the risk of Delta levee failure and seawater intrusion into the fresher parts of the Delta. While Cali-fornia has long worked to protect the Delta for its many uses, it has enhanced its efforts in response to climate change: improving levees; developing a tunnel to move fresh water from the Sacramento River to the export pumps; restoring wetlands to increase the elevation of Delta islands.

Delta wetland restoration offers a prime example of how California is preparing for and responding to climate change as it adapts its management of its environment. Restoring Delta wetlands can reverse Delta subsidence by wetland vegetation decaying and rebuilding the peat. Sea level rise affects where the state can establish and maintain wetlands. Wetlands lying far below sea level on subsided Delta islands will not survive a levee failure and deep-water inundation. Wetland restoration there-fore focuses upstream where some elevation will allow a wetland to survive sea level rise. The Suisun Marsh, on the downstream end of the Delta, has been managed as a freshwater wetland for hunting ducks for more than a century. Sea level rise and record-high tides have led to failure of some of the Marsh’s external levees that have kept out salty water. This is one of the factors leading to a shift in policy to manage part of the Marsh as a tid-al marsh, while trying to retain some upland freshwater marsh.

Local Water Supply Options. After focusing on moving water hundreds of miles throughout the 20th Century, California water agencies increasingly turn to develop-ment of local water supplies to meet water demand. In the last 20 years, the cost of imported water in Southern California has doubled, to almost $1,000 per acre-foot (enough water for 2 families for a year). The combina-tion of higher imported water costs and reduced reliabil-ity have led water agencies across Southern California to look more carefully at water in their region. The 2014 wa-ter bond includes funding for water infrastructure that relies on local water supply, including:

• Recycled Water. Many California water agencies clean their wastewater to a high standard and then release it to rivers to flow to the ocean. In the last 25 years, California has debated the value and risks of reusing that “recycled water” for non-po-table purposes. The state has adopted ambitious statewide goals for recycled water use, but some water quality regulators have limited the oppor-tunities for re-use. While agencies throughout the state have built recycled water projects, Or-

ange County operates the leading “indirect” recy-cled water program to recharge its groundwater aquifer, which water agencies use for drinking water. The Legislature has begun discussing the possibility of direct re-use, possibly even direct potable re-use, under certain conditions. With decreased reliability of the large imported water projects, due in part to climate change, recycled water has become an increasingly important tool to assure water supplies in urban areas. The 2014 water bond included $725 million for recycled water projects.

• Stormwater Capture. Since floods in the 1930s, Los Angeles’ primary effort to control flooding is to push floodwater out to the ocean as quickly as possible, including by lining the Los Angeles River with concrete. As a result, beaches polluted by fast-moving run-off close to the public after each storm. As stormwater regulation has advanced in the last 20 years, agencies have increasingly sought ways to reduce stormwater runoff into the rivers. That effort has led to increasing public attention to capturing rainwater or stormwater for other beneficial uses, especially groundwater recharge.12 The 2014 water bond included $200 million for multi-benefit stormwater projects, making stormwater capture a tool to increase water supply in a hotter or drier climate.

• Desalination. California has discussed ocean desalination projects for decades, with San-ta Barbara building a small one for emergencies during the drought of the early 1990s. When the drought ended, Santa Barbara put the plant into mothballs. In recent years, however, desalina-tion has received increased attention as a small but continuous part of the water supply portfolio. San Diego County has contracted with a desali-nation plant developer that is building a desalina-tion plant in Carlsbad, which is projected to start delivering drinking water in 2016. While the 2014 water bond does not allocate funding specifical-ly to desalination, both the water recycling and regional water management chapters allow that funding to be used for desalination, if a region chooses. Like the other local projects, desalina-tion has become a potential tool for building a re-gion’s water supply portfolio, in light of climate change.

• Groundwater Cleanup. Many regions – urban and rural – rely on groundwater for their drinking wa-ter. Unfortunately, agricultural and industrial de-velopment over past decades has contaminated key groundwater aquifers. In order to recover those local water supplies for drinking and wa-ter storage, some regions have begun large-scale groundwater cleanup efforts. The 2014 water bond allocated $900 million to address ground-

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water cleanup and sustainability, including imple-mentation of the recent requirement for ground-water sustainability plans.

Water Rights. California’s recent drought has raised the issue of how water users share shortages in a drought, but debate about how to adapt water rights to climate change will continue for many years. The water rights doctrine of “prior appropriation” requires all those with junior water rights (i.e. obtained later in time) to stop using water until the more senior water rights are sat-isfied. Many of California’s most senior water rights are held by farmers in the Central Valley, while the statewide water projects and cities established their water rights later in the 20th Century. But other water law doctrines may affect how the Prior Appropriation Doctrine applies in a drought or in enduring conditions of shortage due to climate change. Those legal doctrines include:

1) Reasonable Use. The California Constitution requires that all water diversion and use be “reason-able” in the circumstances. As the circumstances of that use changes, the judgment as to what’s reasonable can change.13 The State Water Resources Control Board (SWRCB) applied that doctrine to protect instream flows from drying up due to adjacent overpumping of ground-water for frost protection of wine grapes.14

2) Domestic Use Preference. Section 106 of the California Water Code gives a preference to domestic water use over irrigation use, which accounts for about three-quarters of California’s developed water use. In the 1920s, court decisions subordinated certain irrigation rights to rights for domestic use, but the State Board has not had reason to apply this doctrine broadly.

3) Human Right to Water. In 2012, the California Legislature added Section 106.3 to the California Water Code to create a “Human Right to Water” for “safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes.” State and local agencies have only just begun to determine how best to implement this “human right,” in wet or dry years.

In 2014, SWRCB took several actions to respond to the enduring and serious drought:

• Adjusted the water right conditions of the state and federal water projects in the Delta;

• Required greater conservation and water agency reporting on water conservation; and

• Ordered junior water right holders to curtail water use in favor of senior water right hold-ers.

These actions reflect just the beginning of how California may adapt the water rights system to respond to climate change. Just as the drought orders have drawn contro-versy, any attempt to alter water rights due to climate

change effects are likely to result in intense conflict.

looking to a Water future With Climate Change

California has started its journey toward a water future with climate change. California’s early efforts to increase the resilience of its water system have, in large part, been possible because of its need to respond to serious drought. California water leaders gained from the 10-year drought experience of Australia, in thinking about how climate change may affect California. In response to its own prolonged drought, Australia established a com-prehensive system of water use metering and reporting, changed its water rights system, and created a robust water marketing and trading system.

Similar to Australia’s experience, the recent serious drought has thrust adaptation of the water system to the front of the public agenda. An October 2014 statewide poll showed water as Californians’ number one concern – a first in history. That concern led to overwhelming support for the 2014 water bond, which framed some of the water challenges as well as funded new programs to respond to drought and climate change. The Legislature has now incorporated climate change into most of the state’s water planning programs. Governor Brown issued a “Water Action Plan” that responds to climate change. State and local water agencies have made serious ef-forts to make the water system more resilient to climate change challenges.

The drought continues into 2015, with January being the driest since California started keeping weather records in the 1850s. The State Water Resources Control Board has adopted strict water conservation requirements for wa-ter agencies, leading to controversy over how to respond to the immediate climate crisis. The current restrictions, however, do not provide a long-term answer to Califor-nia’s water use practices. This drought nevertheless may keep climate change at the forefront of public attention and provide an opportunity for California to continue taking the necessary steps to adapt to a changing climate.

Alf W. Brandt currently serves as an expert on water and environmental law for the California State Assembly. He previously served as a water lawyer for the U.S. Depart-ment of the Interior and on the Board of Directors for the Metropolitan Water District of Southern California.

1 University of California, Berkeley, California energy Commission, Climate Change and Water sUpply reliaBility (2005), available at http://www.ener-gy.ca.gov/2005publications/CEC-500-2005-053/CEC-500-2005-053.PDF (last visited Apr. 26, 2015).2 California State Assembly, Committee on Water, Parks, and Wildlife, 2007 Informational and Joint Hearings, available at http://awpw.assem-bly.ca.gov/2007informationalandjointhearings (last visited May 8, 2015).3 U.S. Forest Service, Black Beetles in California Conifers: Are Your Trees Susceptible?, available at http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5384837.pdf (last visited May 8, 2015).4 Thirsty Californians Approve $7.5 Billion Water Bond, reUters, Nov. 5, 2014, available at http://www.reuters.com/article/2014/11/05/

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us-usa-elections-waterbond-idUSKBN0IP0MD20141105 (last visited Apr. XX, 2015).5 State of California Department of Water Resources, Climate Change Program, http://www.water.ca.gov/climatechange/ (last visited Apr. 26, 2015).6 See State of California Department of Water Resources, Integrated Re-gional Water Management Program, http://www.water.ca.gov/irwm/ (last visited Apr. 26, 2015).7 ellen hanak et al., paying for Water in California (2014), available at http://www.ppic.org/main/publication.asp?i=1086 (last visited Apr. 26, 2015).8 State of California Central Valley Flood Protection Board, Central Val-ley Flood Protection Plan, http://www.cvfpb.ca.gov/CVFPP/index.cfm (last visited Apr. 26, 2015).9 State of California Department of Water Resources, Key Legislation: New Groundwater Legislation, Sustainable Groundwater Management Act, http://water.ca.gov/groundwater/groundwater_management/legislation.cfm (last visited Apr. 27, 2015).

10 U.S. National Aeronautics and Space Administration, Soil Moisture Ac-tive Passive Observatory Program, http://smap.jpl.nasa.gov (last visited Apr. 26, 2015).11 U.S. Geological Survey, Sacramento – San Joaquin Delta, available at http://pubs.usgs.gov/circ/circ1182/pdf/11Delta.pdf (last visited Apr. 26, 2015).12 The California Water Code distinguishes between rainwater and stormwater based on whether it has entered an off-site storm drain or other channel. See Cal. Water Code § 10573.13 U.S. v. State Water Res. Control Bd., 182 Cal. App. 3d 82 (Cal. Ct. App. 1986).14 Light v. State Water Res. Control Bd., 226 Cal. App. 4th 1463 (Cal. Ct. App. 2014).

Rain Dance of the Eagle, Tiger, and Dragon: Comparing Strategies for Improved Water Quality and AccessAakruti Shah, Roya Vasseghi, and Shannon Beebe

i. introDuCtion

On July 28, 2010, the United Nations General Assembly (“U.N.” or “Assembly”) explicitly recognized a “human right to water and sanitation” with a Resolution that “calls upon States and international organisations to . . . help countries, in particular developing countries, to provide safe, clean, accessible and affordable drinking water and sanitation for all.” 1 When the votes were cast, 122 nations were in favor of the Resolution and zero were against it; there were 41 abstentions.2

Notwithstanding these good intentions, we are in the midst of a global freshwater crisis arising from uneven distribution, pollution, and overuse - all of which are worsened by population growth. Worldwide, over 700 million people lack “ready access to improved sources of drinking water.”3 Further, the widespread effects of cli-mate change “from accelerated glacier melt, altered pre-cipitation, runoff, and groundwater recharge patterns, to extreme droughts and floods, water quality changes, [and] saltwater intrusion in coastal aquifers” will “make water security even more difficult and costly to achieve” and will reintroduce challenges in countries that have previously enjoyed reliable water supplies.4

Despite the recognition by many countries of a right to water and sanitation, controversies around the scope, meaning, and consequences of the right abound. Critics

of the Resolution worry that governments cannot afford to shoulder the cost of providing water. However, the As-sembly specified that water be “affordable,” which they defined as “not exceed[ing] 3 per cent of household in-come,”5 thus anticipating that water cannot be free. Oth-ers argue that it would be more productive to give peo-ple a property right in water because property rights are alienable and “could enrich the poor, increase the effi-cient use of water, and improve water supply reliability in countries with poor governance.”6 However, this raises another question: if water becomes a commodity, will it become a privileged service accessible only to those who can afford it?7

Three global superpowers – the United States, India, and China – come to the issue of a right to water from funda-mentally different and culturally informed perspectives. However, all three have attempted similar approaches to managing this important resource. Specifically, all have implemented large-scale water diversion projects to al-leviate water shortages. Each nation has also harnessed market systems to address quality and access issues, us-ing either regulatory compliance schemes or partner-ships with private entities.

a. the uniteD StateS: Water aS a property right

In the United States (“U.S.”), water rights are character-

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ized as property rights and there are two primary water rights systems: riparian and prior appropriation. Each state has its own variation on these basic principles. At their most basic, riparian rights derive from land owner-ship and they grant to owners of land along a body of wa-ter “the right to make reasonable use of the water so long as the water use does not interfere with the reasonable use of water by other riparian users” and as long as the water remains in its natural state, i.e. no storage.8 There-fore, shortages are shared. In contrast, prior appropria-tion rights are use-based, and therefore, “the first in time of use is first in right.”9 The U.S. does not characterize a right to water has a human right and abstained in the U.N. Assembly’s vote. The U.S. representative was described as stating that the Resolution:

attempted to take a short cut around the serious work of formulating, articulating and upholding universal rights. It had not been drafted in a transparent, inclusive manner, and neither the Assembly, nor the Geneva process had yet considered fully the legal implications of a declared right to water.10

However, there has been speculation that the U.S. ab-stained so that U.S. governmental entities could preserve their ability to take and allocate water as they see fit.11 In this context, the U.S. continues to focus on water quality. On April 27, 2011, the Obama Administration released a national Clean Water Framework which “recognizes the importance of clean water and healthy watersheds to our economy, environment and communities, and emphasiz-es the importance of partnerships and coordination with states, local communities, stakeholders, and the public to protect public health and water quality . . .”12

Despite the focus on water quality, the U.S. faces access problems. For example, in April 2015, California’s Gov. Jerry Brown “ordered mandatory water use reductions for the first time in California’s history, saying the state’s four-year drought had reached near-crisis proportions after a winter of record-low snowfalls.”13 The executive order directed an imposition of a “25 percent reduction on the state’s 400 local water supply agencies, which serve 90 percent of California residents” over the next year.14

b. inDia: Water aS a human right

In India, while no water right is written into the Constitu-tion, courts have interpreted the right to life contained in Article 21 of the Constitution15 as including a right to safe and sufficient water.16 India is a Federal Union, but wa-ter law is mostly state based since the states were given power to legislate in this area.17 Nevertheless, there are “restrictions with regard to the use of inter-state rivers. Further, the Union is entitled to legislate on certain is-sues,” including the adjudication of inter-state water dis-putes.18

India was in favor of the Resolution.19 Even though Na-rendra Modi was not yet Prime Minister when the Res-olution was adopted, it seems his views align with the Resolution. Even prior to becoming Prime Minister, when Modi was Chief Minister of Gujarat, rather than focus-ing on technical water quality statistics like many devel-oped countries, he took the approach of placing a strong emphasis on human welfare, values, and duty to future generations to persuade Indians of the importance of re-sponsible water use.20 On his first day as Prime Minister, he named Uma Bharti as the Minister for Water Resourc-es, River Development, and Ganga Rejuvenation,21 which suggested to some that he is “placing clean water at the heart of good governance”22 by creating a special minis-try for rejuvenating the holy river. Bharti was appointed to this position because she had been a vocal champion of the “Save Ganga” campaign to clean the river for many years.23 Consistent with Prime Minister Modi’s message, when he addressed the U.N. Assembly in September 2014, he acknowledged that many in India still lack basic ne-cessities and that “comprehensive and concerted direct international action” is needed.24 Further, in January 2015, Prime Minister Modi and President Obama agreed to combat climate change and “work together to adjust to the adverse effects of climate change such as variations in rainfall pattern, rising sea levels and falling water ta-bles.”25 In this meeting, Prime Minister Modi again em-phasized how this is an ethical issue, stating “…whoever worries about the future generations has a responsibili-ty to be conscious about climate change; [and to] adopt practices and policies which will ensure a good life and good environment for future generations.”26

C. China: Water aS a State-oWneD reSourCe

In contrast to the U.S. and India, water law in China pri-marily concerns resource utilization – it establishes who may use water and how it may be used.27 This use is not a property right per se. The 2002 Water Law of the People’s Republic of China establishes that “the State Council, on behalf of the State, exercises the right of ownership of water resources.”28 Further, “the State Council under the “Three Red Lines” policy determines each province’s wa-ter quota. Then, provincial water use is delegated to local governments, who own the province’s water use rights.”29

China has an abundant supply of water, but resources are concentrated in the south and west, leaving the north-ern provinces with shortages that are now reaching crisis levels as a result of the nation’s fast growing economy.30 To alleviate this shortage (and after unsuccessful con-servation efforts), China has been working towards in-creasing the quantity of water available to northern areas through massive infrastructure projects.31 President Xi Jinping drew attention to the newly opened South-North Water Transfer Project (“SNWTP”) in his 2015 New Year address.32 However, this costly solution can only provide water supply for so long. As journalists have noted: “Bei-jing cannot keep increasing supplies of water indefinite-ly. Already, the southern regions slated to pump water

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northward are facing water shortages themselves.” This approach “puts China’s economic and ecological future at risk.”33 On November 12, 2014, the U.S. and China re-leased a joint announcement on climate change, observ-ing that, “[h]igher temperatures and extreme weather events are damaging food production, rising sea levels and more damaging storms are putting our coastal cities increasingly at risk and the impacts of climate change are already harming economies around the world, including those of the United States and China” and concluding that “smart action on climate change”34 will bring broad benefits, such as “improved public health and a better quality of life.”35

ii. reDiStributing abunDanCe

Despite differing characterizations of water rights, these three countries have developed similar projects for mov-ing water from areas of abundance to scarcity. The Chi-cago Area Waterway System (“CAWS”) in the U.S., India’s National River Linking Plan (“NRLP”), and China’s South–North Water Transfer Project (“SNWTP”) all rely on a complex system of tunnels, canals, and dams to redistrib-ute water and address shortages.

a. the uniteD StateS

The CAWS constitutes one of the oldest, largest, and most controversial water diversion projects in the U.S. It consists of over 100 miles of canals and waterways and connects the Mississippi River with Lake Michigan (and therefore the rest of the Great Lakes) through the Illinois and Lower Des Plaines rivers. It also includes the Chica-go River, the Calumet Rivers, the Cal-Sag Channel, and the Chicago Sanitary and Ship Canal.36 The project began in 1890’s to stop the flow of Chicago’s sewage through the city and into Lake Michigan, which supplied the City’s drinking water.37 A key feature of the project was the construction of several locks that divert water from Lake Michigan into the Chicago River.38 Although the project greatly increased the flow of rivers downstream, the ca-nal raised concerns about water levels in Lake Michigan, an issue that plagued navigators of the Great Lakes’ ship-ping lanes. The Supreme Court addressed flow levels of the Chicago River in Wisconsin v. Illinois, issuing a decree to Illinois to maintain specific flow levels in its locks, so as to deprive neither the navigators of the Great Lakes nor the millions of Illinois residents who benefit from the increased water supply downstream.39

The diversion of the Chicago River faces numerous chal-lenges, such as climate change-induced reductions in precipitation and increasingly frequent heavy down-pours with water shortage or droughts in the warmer months, which threaten the water quality of the CAWS and the volume of fresh water that flows into the Chicago River.40 It is clear that water diversion alone will not be sufficient to solve Chicago’s water needs and that addi-tional management is necessary. In a major step to in-crease the City’s control over water quality in the CAWS, in June 2013, the U.S. Department of Justice, on behalf of

the U.S. Environmental Protection Agency and the State of Illinois, moved the federal district court in Chicago to approve a December 2011 consent decree with the Met-ropolitan Water Reclamation District of Greater Chicago (“MWRD”).41 “The decree requires MWRD to . . . complete a tunnel and reservoir plan (known as the Deep Tunnel or TARP) . . . [and to] add 8.3 billion gallons of storage ca-pacity – more than quadrupling its current capacity and significantly reducing combined sewer overflows” during heavy rainfall events, which degrade water quality in the CAWS. 42

b. inDia

India’s shortage of fresh water can be attributed to a num-ber of factors including pollution, booming population growth, over-extraction of ground water, and an increase in frequency of climate-induced floods and droughts.43 In line with his objective to make water quality and supply a priority, in 2014 Prime Minister Modi’s cabinet approved the first portion of the NRLP, which attempts to revive a 30-year-old plan to link over 30 rivers using 3,000 storage structures and a canal network stretching over 10,000 miles.44 The NRLP promises to generate 34GW of hydropower, which journalists have noted is “enough to power three cities the size of New York,” and to provide irrigation to agricultural land and transfer 1745 billion cu-bic meters of water annually.45 The NRLP also includes a plan to clean up the Ganga River within three years.46

While India has many rivers, many are heavily polluted and are largely unfit for drinking.47 In light of this, India heavily relies on percolating groundwater as its main source of fresh water.48 “India’s agricultural boom since the mid-1980s has been sustained by groundwater.”49 Yet, India has a severe deficit of groundwater in the face of its booming population, and is currently the world’s largest user of the resource.50 Supplies continue to diminish and farmers cannot afford to periodically dig deeper wells to access the plummeting water table.51

While the NLRP is in line with the new government’s wa-ter policy, the project raises ecological,52 transportation,53 and population displacement54 concerns. Additionally, critics argue that the NLRP will result in decreased sur-face water levels, defeating India’s declared objective to rejuvenate its rivers and ignoring that many of India’s riv-er basins are facing severe drought.55

C. China

Mao Zedong first envisioned China’s SNWTP in the 1950s as a plan to “borrow a little water from the south.”56 The SNWTP aims to direct water from China’s southern prov-inces to drought-plagued areas of high urban density in the northern provinces, where scarce water supplies are being strained by heavy pollution and a booming popu-lation.57 Climate change is contributing to extreme rains and flooding as well as warmer temperatures and water shortages affecting the agricultural sector.58 The goal of the SNWTP is to reduce the “over-withdrawal of ground-

9

water and supply more water to industry, cities, and Chi-na’s breadbasket in the north.”59

Although the project originated with Mao Zedong in the 1950s, “[s]erious planning for the project . . . didn’t start until the droughts in the 1990s.”60 The plan largely con-sists of new dams and water diversions and “will reroute roughly 45 billion cubic meters of water annually across the country.”61 President Xi Jinping has made the SN-WTP a priority for his administration.62 The middle leg of the project opened on December 12, 2014, piping water through a series of canals to transport water from cen-tral China to major cities in the north, such as Beijing and Tianjin.63

China’s SNWTP raises some of the same issues as India’s NRLP, including population displacement64 and trans-portation difficulties.65 The SNWTP also threatens to contaminate clean bodies of water with already-pollut-ed rivers.66 Further, the SNWTP could lead to increased desalination costs due to saltwater from the sea filtering into the Yangtze’s estuary and higher wastewater man-agement costs.67

iii. maximizing Clean Water reSourCeS through marketS

Like infrastructure projects, water markets can act as powerful tools for nations and communities to improve water quality and access. Over the past two decades, the U.S., India, and China have developed localized water markets in historically neglected water bodies: the Ches-apeake Bay in the U.S., the Ganga River and tributaries in India, and the Yellow River in China. The water quality of each suffers from a combination of agricultural and in-dustrial pollution, reduced flow due to overuse, and cli-mate-change induced sea level rise.68

Water markets are primarily powered by government-im-posed compliance schemes, by private profit incentives, or by a combination of the two. These strategies can also be thought of as Payments for Watershed Services (“PWS”): heavy polluters or downstream residents pay lighter users or upstream residents, either for pollution credits or improvements in water quality that are oth-erwise available only at greater expense.69 Each of these market systems depends upon strong data collection and education to create consistent demand for high quality water at a low financial and environmental cost.70

a. marketS CreateD by government regulation: the uniteD StateS

The most common type of PWS in the U.S. relies on a federal regulatory scheme requiring polluters to meet water quality standards by reducing pollution through, among other means, pollution offsets such as payments for pollution “credits.”71 Braced against enforceable limits under the U.S. Clean Water Act,72 the U.S. Environmen-tal Protection Agency (“EPA”) sets Total Maximum Daily Loads for pollution received by water bodies,73 and works in partnership with states to create Watershed Imple-

mentation Plans that ensure local discharges comply with federal standards.74 States can then regulate individual entities and set up markets for trading pollution credits, as Virginia has done to reduce nutrient discharge to the Chesapeake Bay, an important natural resource on the Atlantic coast.75

For decades the Bay has struggled with nutrient pollu-tion, leading to algal blooms, dead spots, and reductions in biodiversity.76 In 2005, Virginia implemented a credit market to manage pollution discharges from point source wastewater treatment plants and industrial facilities,77 and expanded the program between 2009 and 2012 to in-clude municipal storm sewer systems, construction sites, and some agricultural operations, including some non-point sources.78 The Nutrient Credit Exchange Program allows those permitted entities that not only comply with their permits but also realize discharge reductions to certify the reductions as credits and sell them to other dischargers that are unable to reduce effluent levels be-low permitted amounts.79

A 2014 EPA evaluation of Virginia’s water quality program found that the 2012-2103 “Offsets and Trading” section of the regulations achieved all permitting milestones, a reg-ulatory achievement.80 And without indicating causation, the Virginia Department of Environmental Quality’s an-nual Nutrient Loads summary from 2014 indicates that net phosphorus and nitrogen loads fell below permitted amounts across all river basins,81 ostensibly an improve-ment over 2007 levels, when only two basins managed a net reduction in one nutrient.82

While farmers, sewage treatment plants and other enti-ties in the Chesapeake Bay region say they are success-fully implementing reductions in a variety of programs similar to Virginia’s, critics argue that “pay to pollute” schemes will result in greater, not fewer, discharges because of difficulty in measuring discharge from non-point sources like farms.83 Experts suggest that stronger monitoring and verification, reporting based on numer-ical rather than narrative data, and equal incentives for participating localities will be critical tools for improving the effectiveness these programs.84 They likewise recom-mend that trading ratios be kept higher than one-to-one, i.e., that dischargers be forced to realize more reduc-tions than the amount for which they are permitted to sell credits, to offset measurement uncertainty and foster strong credit value.85

b. marketS Driven by private profit

In contrast to the U.S. system, another category of PWS involves profit-driven transactions outside a regulatory scheme, in which private entities voluntarily pay upstream landowners for forest conservation, water saving install-ments, or other water quality improvements.86 There are many systems for accomplishing this type of transaction, including direct payments, market exchanges built on water credits, or person-to-person businesses supported by corporations.87

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However, the creation and evolution of a national legal framework are positive steps.100 And individual cities are moving forward independently with traditional PWS regulatory systems. Shanghai, for example, increasingly prone to flooding due to sea level rise,101 has earmarked funds for sanitation, monitoring and discharge control investments.102 New projects, such as a reservoir and pipeline along the Huangpu River to serve Shanghai’s suburbs, began in earnest earlier this year103 under a dis-charge permitting program administered by the Shang-hai Environmental Protection Bureau.104

iv. ConCluSion

Driven by expanding populations and climate change, the current global freshwater crisis is spurring governments to reassess their management of water resources, both internationally and domestically. Fundamental differ-ences exist in the way water rights are characterized in different countries - whether they are a property right, human right, or a state-owned resource - which im-pacts management of this precious resource. While Chi-na and India have joined the U.N. Resolution to declare a human right to water, the U.S. has abstained, indicating that further consideration and international coopera-tion are needed. Though they differ on their approach-es to water as a human right, each nation is building a system that balances written or unwritten commitments to “safe, clean, accessible, and affordable drinking water and sanitation for all”105 against commercial water uses. In California, for example, new across-the-board restric-tions on non-essential applications, such as lawn and golf course watering, are balancing citizens’ basic water needs against commercial interests as the State faces drought conditions, increasing population pressure, and resulting overuse of the region’s limited resources.106

Governments often look to infrastructure projects to im-prove water quality and accessibility. For example, Chi-na has been working on its SNWTP project to supply the arid northern regions with water from the water-rich south, while the CAWS project in Chicago, Illinois and the NLRP in India serve similar functions.107 But strained as they are by growing economies, governments cannot af-ford to shoulder the full cost of providing access to high quality water. Although infrastructure projects address immediate needs, based on current trends and given the unpredictable effects of climate change, they may not be sufficient to address the freshwater shortage long-term. Each project brings with it ecological, transportation, population displacement, and other concerns, adding to the overall strain on freshwater supplies, even in those areas where water is currently abundant.108

Longer-term solutions may include public-private part-nerships and small-scale PWS systems in which govern-ments maintain a strong enforcement role while private entities fuel innovation, such as the nutrient pollution trading program in Virginia’s Chesapeake Bay region, the stream siltation reduction project in Kuhan, India, and

1. inDia

India has successfully experimented with several PWS projects. In one example of community-level coopera-tion, two village governments in the 210-hectare catch-ment area of Himachal Pradesh collaborated to address stream siltation caused by livestock eroding stream banks.88 Beginning in 2003, the cattle-breeding village of Ooch, upstream from the crop-growing village of Kuhan, signed an eight-year agreement whereby Kuhan villagers paid cash and provided saplings to Ooch, whose mem-bers agreed to graze their animals away from riparian ar-eas, to plant trees and grasses, and to build brushwood dams for trapping silt.89 With the resulting improvements in irrigation flows, Kuhan villagers saw their crop yields grow sixfold within two years, a strong return on their PWS investment.90

India has also developed water markets outside the usu-al PWS framework. A micro-financed, person-to-person water market along the Ganga River presents an exam-ple of how public-private cooperation can alleviate lack of access to potable water. Since at least 2012, for-profit companies have worked in remote villages to fund start-up costs for water vending entrepreneurs, who sell water purified by solar-powered reverse-osmosis.91 Charitable and public groups work alongside commercial companies and water-vending entrepreneurs to spread awareness of the link between contaminated water and water-borne illness.92 This system creates business opportunities for villagers, improves access to high quality water, and in-creases demand for that water. Within two years of the project’s start, the region experienced decreased medi-cine use and school absenteeism.93 The human angle of this example demonstrates an important point common to all water market systems: solid data and public aware-ness of the hidden costs of polluted water are key to cre-ating demand for clean and abundant water, the first es-sential component of a sustainable water market.94

2. China

China is developing government-moderated programs for both water use permitting and PWS systems. With the Three Red Lines Policy set up in 2010, China cre-ated a national program to manage water accessibility and quality.95 In 2014, the Ministry of Water Resources announced that seven provinces along the Yellow River would begin hosting pilot markets for water rights trad-ing, likely in early 2016.96 Smaller scale water projects are already operating in agricultural areas along the Yellow River under the auspices of the Yellow River Conservancy Commission.97 For example, the Conservancy successful-ly transferred the costs of water-saving canal linings and expensive canal repairs needed in Hangjin’s agricultur-al districts to downstream industrial beneficiaries of the stronger flow.98

Anecdotal evidence indicates that voluntary farmer in-volvement in the Yellow River programs has been low.99

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the canal improvement project in Hangjin, China. In ex-amining the United States, India, and China’s responses to growing water scarcity, these examples of water man-agement strategies demonstrate that “an integrated ap-proach will be critical to mitigate social, economic, and environmental impacts” of growing populations and cli-mate change.109

Aakruti Shah works in the Office of Pollution Prevention and Toxics, U.S. Environmental Protection Agency, holds a J.D. from IIT Chicago-Kent College of Law, and is a member of the Illinois and Washington D.C. Bars. This work is not a product of the U.S. Government or the U.S. Environmental Protection Agency, and the author is not doing this work in any governmental capacity. The views expressed are those of the author only and do not nec-essarily represent those of the United States or the U.S. Environ-mental Protection Agency.

Roya Vasseghi is an associate with Wilson, Elser, Moskowitz, Edelman & Dicker, LLP’s Virginia office. She holds a J.D. from the Maurice A. Deane School of Law at Hofstra University and is a member of the District of Columbia, New York, and Virginia Bars. This work is not a product of Wilson, Elser, Moskowitz, Edelman & Dicker, LLP. The views expressed are those of the au-thors only and do not represent those of the Firm.

Shannon Beebe is a litigation staff attorney in the Washington, D.C. office of Simpson Thacher & Bartlett LLP. She holds a J.D. from IIT Chicago-Kent College of Law and is a member of the District of Columbia, Virginia, and Illinois Bars. This work is not a product of Simpson Thacher & Bartlett LLP. The views ex-pressed are those of the authors only and do not represent those of the Firm.

1 The United Nations, International Decade for Action ‘WATER FOR LIFE’ 2005-2015, available at http://www.un.org/waterforlifedecade/hu-man_right_to_water.shtml (last updated May 29, 2014).2 The United Nations, General Assembly Adopts Resolution Recognizing Access to Clean Water, Sanitation as Human Right, by Recorded Vote of 122 in Favour, None against, 41 Abstentions (Jul. 28, 2010), available at http://www.un.org/press/en/2010/ga10967.doc.htm3 World Health Organization, Progress on Drinking Water and Sanitation, available at: http://apps.who.int/iris/bitstream/10665/112727/1/9789241507240_eng.pdf (last visited Apr. 14, 2015).4 World Bank Group, Water and Climate Change, available at http://water.worldbank.org/topics/water-resources-management/water-and-climate-change (last visited Mar. 28, 2015).5 The United Nations, Global Issues Water, available at: http://www.un.org/en/globalissues/water/ (last visited Apr. 14, 2015). 6 David Zetland, Opinion: Water Rights and Human Rights: The Poor Will Not Need Our Charity if We Need Their Water, Johns hopkins Uni-versity Water institUte magazine (Jul. 25, 2010), available at http://water.jhu.edu/magazine/water-rights-and-human-rights-the-poor-will-not-need-our-charity-if-we-need/7 Anup Shah, Water and Development, Global Issues, available at http://www.globalissues.org/article/601/water-and-development (last updated June 6, 2010).8 U.S. Fish and Wildlife Service, Mountain-Prairie Region, Water Re-sources Division, Water Rights Definitions, available at http://www.fws.gov/mountain-prairie/wtr/water_rights_def.htm#RIPARIAN (last visited Mar. 28, 2015).9 Id.10 The United Nations, General Assembly Adopts Resolution Recognizing Access to Clean Water, Sanitation as Human Right, by Recorded Vote of 122 in Favour, None against, 41 Abstentions (Jul. 28, 2010), available at http://www.un.org/press/en/2010/ga10967.doc.htm 11 Kevin Mathews, United States Afraid of Clean Water Becoming a Hu-man Right, Care2 (Dec. 18, 2013), available at http://www.care2.com/

causes/united-states-afraid-of-clean-water-becoming-a-human-right.html#ixzz3Q9H0CSqC12 U.S. Council on Environmental Quality, Commitment to Clean Water, available at https://www.whitehouse.gov/administration/eop/ceq/initiatives/clean-water (last visited Mar. 28, 2015).13 Adam Nagourney, California Imposes First Mandatory Water Restric-tions to Deal With Drought, the neW york times (Apr. 1, 2015), available at http://www.nytimes.com/2015/04/02/us/california-impos-es-first-ever-water-restrictions-to-deal-with-drought.html?_r=114 Id.15 Indian Constitution, art. 21 “Protection of Life and Personal Liber-ty,” available at http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock%202Pg.Rom8Fsss(6).pdf (last visited Mar. 28, 2015).16 Amy Hardberger, Life, Liberty, and the Pursuit of Water: Evaluating Water as a Human Right and the Duties and Obligations it Creates, 4 nW. J. int’l hUm. rts. 352 (2005), available at http://scholarlycommons.law.northwestern.edu/njihr/vol4/iss2/3 17 Philippe Cullet, Water Law in India: Overview of Existing Framework and Proposed Reforms, international environmental laW researCh Centre (2007), available at http://www.ielrc.org/content/w0701.pdf 18 Id.19 See The United Nations, supra, at note 2.20 Narendra Modi, CM Blogs on World Water Day- Conserve Water, Give Future Generations Their Right!, narendra modi (Mar. 22, 2012), available at http://www.narendramodi.in/cm-blogs-on-word-water-day-let-us-conserve-water-let-us-give-future-generations-their-right/. Prime Minister Modi also states, “Water is God’s gift. What is our duty towards future generations? Augmenting water, conserving it, storing it and using it judicially has been the mantra for Gujarat’s phenomenal growth in this decade. Let us conserve water! Let us give the future generations their right.”21 Archana Chaudhary & Rakteem Katakey, Narendra Modi Invokes Mahatma Gandhi to Clean ‘Mother Ganga’, live mint (May 28, 2014), available at http://www.livemint.com/Politics/5lfZLShbmZpYvuh-V54c0JM/Narendra-Modi-invokes-Mahatma-Gandhi-to-clean-Moth-er-Ganga.html.22 Pallava Bagla, Placing Clean Water at the Heart of Good Governance in India, Indian Ministry of External Affairs (Aug. 15, 2014), available at http://www.mea.gov.in/in-focus-article.htm?23928/Placing+-Clean+Water+at+the+Heart+of+Good+Governance+in+India.23 Johnlee Varghese, Uma Bharti Wants to Restore Ganga’s Piousness, international BUsiness times (May 28, 2014), available at http://www.ibtimes.co.in/uma-bharti-wants-restore-gangas-piousness-60117924 Indian Ministry of External Affairs, English Rendering of Prime Min-ister’s Statement at the General Debate of the 69th Session of the UNGA (Sept. 27, 2014), available at http://www.mea.gov.in/outoging-vis-it-detail.htm?24041/English+rendering+of+Prime+Ministers+State-ment+at+the+General+Debate+of+the+69th+Session+of+the+UNGA.25 Economic Times Bureau, Obama in India: PM Narendra Modi, Barack Obama Strike Alliance on Climate change; Air Pollution, Renew-able Energy Focus Areas, the eConomiC times (Jan. 26, 2015), avail-able at http://articles.economictimes.indiatimes.com/2015-01-26/news/58470064_1_climate-change-navroz-dubash-climate-talks26 Id.27 China Water Risk, Water Rights in China: Interview with Professor Jia Shaofeng (Nov. 17, 2014), available at http://chinawaterrisk.org/inter-views/water-rights-in-china/28 People’s Republic of China Water Law, Ch. 1, art. 3, Ministry of Water Resources, available at http://www.mwr.gov.cn/english/laws.html (last visited March 28, 2015). This is an unofficial translation. 29 See China Water Risk, supra, at note 27.30 Scott Moore, China’s Massive Water Problem, n. y. times (Mar. 28, 2013), available at http://www.nytimes.com/2013/03/29/opinion/global/chinas-massive-water-problem.html?_r=031 Id.32 OP Rana, South-North Water Canal a Double-Edged Sword, China daily (Jan. 10, 2015), available at http://usa.chinadaily.com.cn/opin-ion/2015-01/10/content_19287666.htm33 See Moore, supra, at note 30.34 U.S. White House, Office of the Press Secretary, U.S.-China Joint Announcement on Climate Change, (Nov. 11, 2014), available at https://www.whitehouse.gov/the-press-office/2014/11/11/us-china-joint-announcement-climate-change35 Id.36 U.S. Environmental Protection Agency Region 5, Chicago Area Water-

12

way System, available at http://www.epa.gov/Region5/chicagoriver/ (last updated Jun. 10, 2013). 37 Robert Loerzel, Waterways Have Their Time in Court, ChiCago laWyer magazine (Apr. 2010), available at http://www.chicagolawyermagazine.com/Archives/2010/05/01/6587.aspx.38 Heather Garrison, The Cause for the CAWS Part I: The Illinois & Michigan Canal, available at http://www.fws.gov/midwest/fisheries/fishlines-2014-01-16/feature5.html (last updated January 16, 2014).39 Wisconsin v. Illinois, 281 U.S. 696, 697 (1930).40 U.S. Environmental Protection Agency, Climate Impacts in the Mid-west, available at http://www.epa.gov/climatechange/impacts-adap-tation/midwest.html (last updated Sept. 9, 2013).41 United States v. Metro. Water Reclamation Dist. of Greater Chi., No. 11 C 8859 (N.D. Ill. Op. filed Jan. 6, 2014). 42 U.S. Environmental Protection Agency, Chicago Area Waterway System, available at http://www.epa.gov/region5/chicagoriver (last updated Jun. 10, 2013).43 Nita Bhalla, World Has Not Woken Up to Water Crisis Caused by Cli-mate Change, sCientifiC ameriCan (Feb. 3, 2015), available at http://www.scientificamerican.com/article/world-has-not-woken-up-to-water-crisis-caused-by-climate-change/44 Jaideep Prabhu, Is the National River Linking Project worth the Rs 5.6 Lakh Crores Narendra Modi Government Plans to Spend on It?, dna india, (Jun. 7, 2014), available at http://www.dnaindia.com/analysis/standpoint-is-the-national-river-linking-project-worth-the-rs-56-lakh-crores-narendra-modi-government-plans-to-spend-on-it-1994066.45 Id.46 Press Trust of India, Will Clean up Ganga in Three Years: Uma Bharti, the eConomiC times (Dec. 14, 2014), available at http://articles.eco-nomictimes.indiatimes.com/2014-12-14/news/57034580_1_water-re-sources-river-development-affidavit.47 Sonia Luthra and Amrita Kundu, India’s Water Crisis: Causes and Cures, An Interview with Kirit S. Parikh, the national BUreaU of asian researCh (Aug. 13, 2013), available at http://www.nbr.org/downloads/pdfs/outreach/NBR_IndiaCaucus_August 2013.pdf. 48 World Bank, Deep Wells and Prudence: Towards Pragmatic Action for Addressing Groundwater Overexploitation in India, at 1 (January 29, 2010), available at http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2010/03/04/000333037_20100304230610/Rendered/PDF/516760ESW0P0951round0Water129101110.pdf.49 Prabhu, supra, at note 44.50 World Bank, India Groundwater: a Valuable but Diminishing Resource (Mar. 6, 2012), available at http://www.worldbank.org/en/news/fea-ture/2012/03/06/india-groundwater-critical-diminishing.51 World Bank, Deep Wells and Prudence: Towards Pragmatic Action for Addressing Groundwater Overexploitation in India, at 1 (January 29, 2010), available at http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2010/03/04/000333037_20100304230610/Rendered/PDF/516760ESW0P0951round0Water129101110.pdf.52 Prabhu, supra, at note 44. Transferring large amounts of water to India’s drier regions annually has ecological implications including oxygen depletion, altering pH levels, increased salinity, disease vectors, the spread of pollution from pesticides and fertilizer leaching into the water remains, and even seismic implications. Interrupting the existing water flows may be damaging as well. Varying water flows necessary for channel maintenance of riparian vegetation, bird breeding, wetland flooding, cycling of organic matter from river banks and fish migra-tion, algae control and water quality maintenance, the NRLP may not address these issues.53 Id. While the NLRP would result in a waterway grid connecting the Brahmaputra to the Vaippar, linking canals and potentially providing an alternate means of transporting goods within India, reducing pressure on roads and railways, critics question whether the canals would have sufficient water to maintain a water way. 54 Id. The NLPR is estimated to displace 600,000 people by the conclu-sion of the project. India has been slow to compensate displaced peo-ple in the past, taking up to ten years to compensate person displaced due to large scale infrastructure projects. 55 See id.; see also Chaudhary, supra, at note 21. 56 See Lily Kuo, China Has Launched the Largest Water-Pipeline Project in History, the atlantiC (Mar. 7, 2014), available at http://www.theat-lantic.com/international/archive/2014/03/china-has-launched-the-largest-water-pipeline-project-in-history/284300.57 See Christina Larson, World’s Largest River Diversion Project Now

Pipes Water to Beijing, BloomBerg (Dec. 15, 2014), available at http://www.businessweek.com/articles/2014-12-15/world-s-largest-riv-er-diversion-project-now-pipes-water-to-beijing. Larson notes that China has twenty percent of the planet’s population, but only seven percent of its freshwater resources. See also Stuart Leaven-worth, Questions Arise about Wisdom of Huge China Water Project, mCClatChy dC (May 12, 2014), available at http://www.mcclatchydc.com/2014/05/12/227204/questions-arise-about-wisdom-of.html.58 Shannon Tiezzi, In China, Climate Change is Already Here, the dip-lomat (Aug. 14, 2014), available at http://thediplomat.com/2014/08/in-china-climate-change-is-already-here/.59 International Rivers, South-North Water Transfer Project, available at http://www.internationalrivers.org/campaigns/south-north-water-transfer-project (last visited March 28, 2015).60 See Lily Kuo, supra at note 56; see also Leavenworth supra, at note 57.61 See Larson, supra, at note 57.62 See Rana, supra, at note 32. See also Press Times of India, China Commissions its $80 Billion Water Diversion Project, the eConomiC times (Dec. 16, 2014), available at http://articles.economictimes.indiatimes.com/2014-12-16/news/57112541_1_yangtze-danjiangkou-reser-voir-water-quality.63 See Larson, supra, at note 57. 64 See International Rivers, supra, at note 59. 65 See Kuo, supra, at note 56. Similar to India, potential shortages in the Yangtze River could have negative impacts on Yangtze River Transpor-tation.66 Id. 67 See Kuo, supra, at note 56. 68 See Victor Mallet, The Ganges: Holy, Deadly River, finanCial times (Feb. 13, 2015, 12:35 PM), available at http://www.ft.com/cms/s/2/dad-fae24-b23e-11e4-b380-00144feab7de.html#slide0;.69 Craig Hanson et al., Forests for Water: Exploring Payments for Wa-tershed Services in the U.S. South, World resoUrCes institUte issUe Brief 2, 4 (Feb. 2011), available at http://pdf.wri.org/forests_for_water.pdf. Hanson et al. also introduce a third category of PWS: payments by gov-ernments for public goods, see id. at 7. We limit our scope to the first two categories in this discussion.70 See, e.g., Rebecca Bundhun, Pure Water Demand in Rural India Creates a Growing Industry, the national, 1 (Feb. 23, 2014), available at http://www.thenational.ae/business/industry-insights/technolo-gy/pure-water-demand-in-rural-india-creates-a-growing-industry (quoting a Forbes executive, “[w]hen people [become] aware there is the need for safe drinking water, their health is better, productivity is better, then the answer of providing water purifiers in the houses comes. We work on advocacy to create the understanding and mind-set.”) See also, Zhu Lixin, Experts Look to Clean Up Chaohu Lake, China daily, 1 (Feb. 28, 2014), available at http://www.chinadaily.com.cn/china/2014-02/28/content_17314244.htm (quoting a UK expert, “poor understanding at all levels - lack of coordinated data, no long term monitoring program and not knowing where to target efforts - present major problems for pollution-curbing endeavors worldwide”). 71 See Hanson, supra note 69, at 6. 72 33 U.S.C. §§1251 et seq.73 U.S. Environmental Protection Agency, Impaired Waters and Total Maximum Daily Loads, available at http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/ (last visited Apr. 12, 2015).74 U.S. Environmental Protection Agency, How Does It Work? Ensuring Results, available at http://www.epa.gov/reg3wapd/tmdl/Chesa-peakeBay/EnsuringResults.html (last visited Mar. 28, 2015).75 Allan Brockenbrough, Existing Nutrient Trading Program: Nutrient Trading in the Chesapeake Bay Watershed of Virginia, 3 (Apr. 13, 2011), Virginia Department of Environmental Quality, available at http://www.deq.virginia.gov/Programs/Water/PermittingCompliance/Pol-lutionDischargeElimination/NutrientTrading.aspx. 76 Chesapeake Bay Program, Nutrients: How Do Excess Nutrients Enter the Chesapeake Bay?, available at http://www.chesapeakebay.net/issues/issue/nutrients#inline (last visited Mar. 29, 2015).77 9 Va. Admin. Code 25-40, Regulation for Nutrient Enriched Waters and Dischargers Within the Chesapeake Bay Watershed (effective Nov. 16, 2005), available at http://leg1.state.va.us/000/reg/TOC09025.HTM#C0040.78 2012 Va. Gen. Assembly, S. 77 (Va. Apr. 18, 2012), available at http://leg1.state.va.us/cgi-bin/legp504.exe?121+ful+CHAP0808+pdf. See Brockenbrough, supra note 75, at 9. 79 Adrienne Kotula & Peggy Sanner, Nutrient Pollution Trading, Virginia

13

Conservation Network, available at http://www.vcnva.org/index.php/our-work/healthy-rivers/nutrient-pollution-trading (last visited Mar. 29, 2015).80 U.S. Environmental Protection Agency, EPA Evaluation of Virginia’s 2012-2013 and 2014-2015 Milestones, available at http://www.epa.gov/reg3wapd/tmdl/2014Evaluations/VA.pdf.81 Virginia Department of Environmental Quality, 2014 Nutrient Load Analysis, available at http://www.deq.virginia.gov/Portals/0/DEQ/Water/PollutionDischargeElimination/PublishedLoads2014.pdf (last visited Apr. 13, 2015). See also, Virginia Nutrient Credit Exchange Association, Exchange Compliance Plan 2015 Annual Update (Feb. 1, 2015) (further annual data collected voluntarily by the 73 members of the Association), available at http://www.deq.virginia.gov/Portals/0/DEQ/Water/PollutionDischargeElimination/ExchangeComplian-cePlan-2015AnnualUpdate.pdf.82 Virginia Department of Environmental Quality, 2007 Nutrient Load Analysis, 9, 13 (York and James River Basin phosphorus discharges), available at http://www.deq.virginia.gov/Portals/0/DEQ/Water/PollutionDischargeElimination/PublishedLoads2007.pdf (last visited Apr. 13, 2015). See also, Virginia Department of Environmental Qual-ity, VPDES Watershed General Permit for Nutrient Discharges to the Chesapeake Bay (linking Data Summaries for years 2007 through 2014), available at http://www.deq.virginia.gov/Programs/Water/Permit-tingCompliance/PollutionDischargeElimination/NutrientTrading.aspx (last visited Apr. 14, 2015). Year-over-year data comparisons from DEQ’s annual reports, cross-referenced with changes in permit caps, would be useful for assessing the program’s success. Though beyond the scope of this paper, further research here could be useful for informing similar programs.83 Ad Crable, Nutrient Trading Program Challenged, lanCaster online (Sep. 12, 2013), available at http://lancasteronline.com/news/nutri-ent-trading-program-challenged/article_663a402e-e3de-5e92-b0a2-eb738bb974ab.html. See also Oliver A. Houck, The Clean Water Act Returns (Again): Part I, TMDLs and the Chesapeake Bay, 41 Envtl. L. Rep. News & Analysis, 10208, 10225 (March, 2011). 84 Rena Steinzor et al., Water Quality Trading in the Chesapeake Bay, Center for progressive reform, Briefing paper no. 1205, 7, 11 (May 2012), available at http://www.progressivereform.org/articles/WQT_1205.pdf.85 Id. at 15.86 See Hanson, supra note 69, at 4. 87 Id., inset at 7, discussing successful PWS programs improving water quality in Central and South America.88 Chetan Agarwal et al., Fair Deals for Watershed Services in India, 2-3 (International Institute for Environment and Development 2007), avail-able at http://www.pubs.iied.org/pdfs/13538IIED.pdf.89 Supriya Singh, No Freeloaders (Nov. 15, 2008), doWn to earth, avail-able at http://www.downtoearth.org.in/node/5246.90 Id. Although the external factor of road construction frustrated the efforts of the villagers by causing bank erosion and heavy siltation by 2007, the inter-village agreement stands as a successful, if short-term, example of PWS.91 See Bundhun, supra note 70, at 2. See also, Vibha Tripathi, Business Model for Clean Drinking Water using Solar RO in Indian Industrial Belt, reneWaBle energy and energy effiCienCy partnership, available at http://www.reeep.org/projects/business-model-clean-drinking-wa-ter-using-solar-ro-indian-industrial-belt (last visited Mar. 29, 2015).92 See Bundhun, supra note 70, at 2.93 Id. 94 Ben Dziegielewski, Management of Water Demand: Unresolved Issues, 114 J. Contemp. Water researCh & edUC. 1, 3-4 (1999) (noting that efficient water pricing is impossible until environmental and external costs are

accounted for, and that “true markets for water cannot be established within the existing complex system of water laws and water rights” as long as water is “perceived [as a] human entitlement” (emphasis in original)), available at opensiuc.lib.siu.edu/cgi/viewcontent.cgi?arti-cle=1217&context=jcwre.95 Scott Moore, The Politics of Thirst: Managing Water Resources Under Scarcity in the Yellow River Basin, People’s Republic of China, disCUssion paper 2013-08, Belfer Center for sCienCe and international affairs and sUstainaBility sCienCe program, harvard Univ., 18 (Dec. 2013).96 See China Water Risk, supra note 27. See also, Carla Freeman, Quenching the Dragon’s Thirst: The South-North Water Transfer Proj-ect – Old Plumbing for New China?, 7 (2011), available at http://www.wilsoncenter.org/sites/default/files/Quenching%20the%20Drag-on%25E2%2580%2599s%20Thirst.pdf (last visited Apr. 14, 2015).97 Hang Zheng, et al., Water Rights Allocation, Management and Trading in an Irrigation District: A Case Study of Northwestern China, in Prob-lems, Perspectives and Challenges of Agricultural Water Management (Ed. Manish Kumar), 65-66 (2012), available at http://cdn.intechopen.com/pdfs-wm/31497.pdf.98 Id.99 See Moore, supra note 95, at 13-14.100 Brooke Barton, Tools and Policies for Understanding Water Risks in China, greenBiz.Com (Apr. 23, 2013), available at http://www.green-biz.com/blog/2013/04/23/tool-and-policies-understanding-wa-ter-risks-china.101 Coco Liu & ClimateWire, Shanghai Struggles to Save Itself from the Sea, sCientifiC ameriCan (Sep. 27, 2011), available at http://www.scientifi-camerican.com/article/shanghai-struggles-to-save-itself-from-east-china-sea/.102 Yang Jian, Shanghai to Reinforce Strictest Water Management System, shanghai daily (Oct. 17, 2012), available at http://en.people.cn/90882/7980947.html. See also, CleanBiz.Asia, Shanghai to Spend $16 Bln on Strictest Water Management System (Oct. 18, 2012), available at http://www.cleanbiz.asia/news/shanghai-spend-16-bln-strictest-wa-ter-management-system#.VQe3WWYWsrg. 103 Qian Ruisha, Work Starts On Cleaner Water for Shanghai Sub-urbs (Mar. 23, 2015, 8:52 A.M.), shanghai daily, http://www.ecns.cn/2015/03-23/158994.shtml.104 Peter Abelson, Economic and Environmental Sustainability in Shang-hai, in sUstainaBle Cities in developing CoUntries, 185, 195 (Cedric Pugh, ed., 2000).105 See United Nations, supra, at note 1.106 See Nagourney, supra, at note 13.107 See Moore, supra, at note 30.108 Prabhu, supra, at note 44; see also Chaudhary, supra, at note 21; International Rivers, supra, at note 59; Kuo, supra, at note 56; U.S. Environmental Protection Agency, Climate Impacts in the Midwest, available at http://www.epa.gov/climatechange/impacts-adaptation/midwest.html (last updated Sept. 9, 2013). 109 World Bank Group, supra, at note 4.

14

introDuCtion

The demand for water by agriculture is ever-growing. World Bank data indicates that irrigation accounts for more than twice the combined water use by municipal and industrial purposes.1 Food and Agriculture Organiza-tion data show that agriculture is responsible for 70% of global freshwater withdrawals and about 90% of water consumptive use.2 These numbers resonate even more as water consumption for agriculture is expected to in-crease about 11% by 2050 in comparison to 2005 levels.3

Agriculture is essential to fight poverty and achieve food security, particularly for developing countries, where economic growth from agriculture has been two to four times more effective at reducing poverty than growth originating in other sectors.4 The outlook to 2050 antic-ipates that in order to support a world population that could reach 9 billion, agriculture will have to produce 50% more food to satisfy the nutritional necessities of this population.5 Climate change will hinder the world’s capacity to respond to these challenges, potentially ex-acerbating water scarcity and curtailing crop yield. Each degree Celsius increase in global temperature may po-tentially reduce grain crop yield by 5%.6 There is growing evidence that warming close to 1.5°C is already locked-in the atmosphere due to past and predicted greenhouse gas emissions.7

Against this backdrop, it is important for countries to build climate resilience as well as implement policies des-tined to avoid and manage conflicts that unfold as water resources become scarcer. The World Bank has increased its financing for climate change activities and pioneering approaches to deal with various water activities while ad-hering to the Bank’s safeguard policies. This article briefly addresses some of the major issues arising from climate change and its effect on water resources and agricul-ture laying out the Bank’s involvement in these sectors. It starts by briefly discussing the evolution of the World Bank’s policies for water and irrigation. It later describes some of the impacts of climate change, particularly for water and agriculture. It then addresses the Bank’s agen-da on climate change and the directions adopted for the agricultural sector as it pertains to water resources. The paper also provides some examples of the measures for agricultural water management being implemented at the project level. Finally, it briefly addresses the World Bank environmental and social safeguard policies and

their relevance in dealing with project impacts, along with some of the major features in the ongoing safeguard review process.

brief overvieW of the Water SeCtor at the WorlD bank

While most of the planet is covered with water, only a minimal portion is available to satisfy human needs. Just 3% of the world’s supply is freshwater and of that per-centage two-thirds is locked in glaciers or buried in deep underground aquifers, meaning that only 1% is readily available for human use.8 Available freshwater is uneven-ly distributed throughout the globe and is required for diverse uses, including human consumption, sanitation, industrial purposes, agriculture, and environmental con-servation, among others. Agricultural usage is particularly intensive, as crops require large quantities of water to be produced. When water is used for irrigation, it produces a loss on the hydrological cycle, compromising its avail-ability for other uses.9 These circumstances place water resources as a potential source of conflict over compet-ing uses across the regions of the world.

The World Bank has financed projects in the water sector almost since its creation, although its approach towards the sector has evolved over time. During the 1980s, wa-ter infrastructure projects were prevalent in the Bank’s overall water portfolio; this focus on infrastructure would present important challenges for the Bank in relation to environmental, social, and financial sustainability.10 The Bank shifted to a more comprehensive approach with its 1993 Water Resources Management Policy Paper, which marked a shift away from purely water infrastructure and toward management of water utilities, irrigation, rural water systems, water resources, and land use.11 In 2001, the World Bank committed to helping partner countries achieve the Millennium Development Goals, a number of which are related to water usage or have a water com-ponent, such as the eradication of extreme poverty and hunger and environmental sustainability.

In 2004, the Bank published its Water Resources Sector Strategy (hereinafter the “Strategy”), aimed at continuing on the major ideas introduced in 1993 Policy Paper. The Strategy builds upon three principles:12

• Ecological principle: The river basin is the unit of analysis, and water needs to be managed con-

Some Insights on the Role of the World Bank in Water and Agriculture Against the Backdrop of Climate Change

Charles E. Di Leva, Bastián Pastén Delich and Beth Anne Hoffman

15

junctively with more attention paid to environ-mental concerns.

• Institutional principle: Participation of every stakeholder, including the State, the private sec-tor and civil society is necessary. Additionally, it argues for the implementation of the principle of subsidiarity, which promotes the decentraliza-tion of water resources management.

• Instrument principle: Efficiency is recognized as a key to improve water allocation and enhanc-ing quality due to the water resources scarcity.

The Strategy was one of the first to highlight the impact of climate change on water availability.13 It also recog-nized that many water conflicts occur due to the pressure that agriculture exerts on water resources, particularly irrigation.14 The Strategy proposed several “on the farm” measures to better manage water resources in agricul-ture, including increasing the productivity of water and infrastructure, scaling up user associations and ensuring that they are representative of all farmers, modernizing formal irrigation institutions and the framework in which they operate, and explicitly addressing the political econ-omy of reforms, among others.15

All of these measures reflect an understanding of the above-cited principles, however, there are two import-ant aspects that are worthy of further acknowledgement, namely: (i) the focus on institutional capacity-building that allows farmers to participate in water management and decision-making, and (ii) the necessity of viewing agricultural water management as one aspect of a larger issue of ecological equilibrium.

In 2010, the World Bank’s Independent Evaluation Group (“IEG”) conducted an evaluation of the World Bank’s water portfolio between the years 1997 and 2007. Overall, IEG recognized a positive evolution in the portfolio, though it also found some shortcomings. There were increasing efforts to advance water efficiency in agriculture, orient-ed toward improving the value of agriculture production per unit of water consumed through increasing yields and reducing non-beneficial water use as well as through the promotion of alternative crops that reduce demand on the irrigation system.16 IEG found that ninety-seven projects had some water efficiency component, such as improving the efficiency of irrigation systems through rehabilitation and better management systems for water delivery, the adoption of specific irrigation techniques, increasing canal flow capacity to reduce water lost through evaporation, and training in equipment mainte-nance, among others. However, success was seen as vari-able and efficiency improvements were not necessarily found to decrease water consumption.17

IEG also found increased support for the creation of Wa-ter User Associations (“WUAs”) within Bank operations, which relates to the issue of institutional capacity. Gen-erally speaking, WUAs are organizations managed by wa-ter users (including farmers and other stakeholders), and

are aimed at decentralizing the water management pro-cess by involving water users in administering the proper use of water resources. Sixty-two Bank-financed projects created or supported WUAs during the assessed period, of which three-quarters were reported to be working ef-ficiently at the project closure.18 Some of the problems encountered in WUAs were lack of technical capacity and insufficient training, which led to a lack of willingness by farmers to participate and uncertainty over rights and obligations of WUA members.19 An important lesson drawn for WUAs is their potential to decentralize water management, thereby providing water users with a sense of empowerment that might benefit efficiency, house-hold income, and enterprise-creating investment.20

Following on IEG’s evaluation, the Bank focus in the water sector shifted toward improving agricultural water man-agement. The World Bank unit for water policy and tech-nical oversight conducted an annual review of the World Bank’s water portfolio in FY2013. A total of 521 water-re-lated projects were active during FY2013 with US$50 bil-lion in net project commitments.21 The Bank approved 423 new projects in FY2013 of which 22% were water-related projects. The total lending for these new projects was US$7.8 billion. In the irrigation and drainage sector, there were 125 active projects with a total lending of US$12.1 billion in 2013. Of the 27 new approved projects, 64% in-tended to take action on climate change.22

As of July 2014, the World Bank began operation under a new management structure focused on fourteen global practices, which includes a water global practice and an agriculture global practice. The structure aims to bring together Bank expertise and developing new and innova-tive solutions for these areas. It also introduces climate change as a cross-cutting solution area within this new structure.

impaCtS of Climate Change in Water anD agriCulture

The Fifth Report from the Intergovernmental Panel on Climate Change (hereinafter “IPCC”) reinforced the long-standing scientific consensus on the imminent threat of climate change. The IPCC affirmed that “[h]uman influence on the climate system is clear and re-cent anthropogenic emissions of greenhouse gases are the highest in history.”23 The Panel anticipated major im-pacts on rural areas, particularly “on water availability and supply, food security, infrastructure, and agricultural incomes, including shifts in the production areas of food and non-food crops around the world”.24

Similarly, the World Bank’s “Agriculture Action Plan” (hereinafter “AAP”) notes that climate change will ex-acerbate drought, water scarcity and extreme weather events, which are already responsible for making it hard-er to produce food, increased food prices and volatility in the food market.25 Moreover, there is growing evidence that climate change is already disrupting rainfall pat-terns, feeding powerful windstorms and generating lon-ger and more severe droughts.26 In 2010, approximately

16

700 million people in 43 countries were found to be un-der water-related stress.27

The World Bank’s Turn Down the Heat report series28 has projected some of the impacts that climate change will have on water and agriculture in different regions of the world. The latest report found that water evaporation is expected to bring an increase in global arid land. Drying trends may also likely increase the duration and inten-sity of droughts by the end of the century.29 An increase of 2 degrees Celsius in global temperature might bring changes in river runoffs. A projected reduction of 15% to 45% of water discharges in sub-tropical regions may threaten water availability in those regions.30

There is also reported uncertainty over the impacts on crop yield in agriculture for this century, although it is clear that warming and droughts are major threats. Some studies have projected an increase in agricultural yields in high latitudes, while substantial losses were project-ed for tropical and subtropical regions in all major crops. This includes possible losses for wheat and maize that may exceed 50% on average for large parts of tropical areas.31 Anticipated social impacts of climate change for food security come from the reduction in the affordabili-ty of food and/or variability of food prices. These chang-es are projected to impact low income and food import-ing countries in Africa, Latin America and the Caribbean (specifically Northeastern Brazil and parts of the Andean region), Central Asia and the Middle East and North Afri-ca region.32

South Asia is another region that will be significantly im-pacted. Water in the region comes mainly from the mon-soon precipitations and the Hindu Kush and Himalayan mountain complex which are covered by glaciers.33 To-gether, they are the primary sources of upstream fresh-water for many of the river basins of South Asia. The Indus, the Ganges, and the Brahmaputra basins alone provide water resources for close to 750 million people.34 Regrettably, there is already evidence that the Himalayan glaciers are retreating which might substantially affect water availability in the region. Additionally, population growth in India is projected to reduce gross per capita water availability from 1,820m³ per year in 2001 to about 1,140m³ per year in 2050.35 This is a significant drop con-sidering that agriculture accounts for almost 18% of the region’s GDP; 50% of the region’s population depend di-rectly on agriculture for work and food purposes.36 With regional freshwater withdrawal rates reaching above 90% for agriculture, food production will remain wa-ter-intensive even with better water management and usage,37 which makes South Asia particularly vulnerable to the effects of climate change.

the WorlD bank’S involvement in Climate Change, agriCul-ture anD Water management

The previous section provided examples of the poten-tially disruptive effects of climate change and the mag-nitude of the challenges further ahead. The World Bank

has been mindful of these challenges and has supported the international community’s efforts since the adoption of the United Nations Framework Convention on Climate Change (hereinafter “UNFCCC”) in 1992, when the Bank became the Trustee of the Convention’s Financial Mech-anism. In 2000, the World Bank became the trustee and manager of the Prototype Carbon Fund, the first fund destined to pilot the mechanisms developed under the Kyoto Protocol. Currently, the Bank assumes the man-agement of more than ten climate funds, providing its expertise and enabling mobilization of climate finance to developing countries for different sectors, including wa-ter and agriculture.38

Last year, the World Bank augmented its involvement in climate-related issues at the international level. Echo-ing on the IPCC’s latest report, the Bank led a process in which 73 countries and more than 1,000 businesses called for a set price on carbon during the September 2014 UN Climate Summit in New York. While the climate nego-tiations were being held in Lima last December, World Bank President Dr. Jim Yong Kim called on world leaders to set an ambitious goal toward the 2015 Paris Climate Conference where a new international climate regime will be negotiated.39 He put forward that the Paris agree-ment should be binding for countries and should provide a clear pathway to zero net emissions before 2100.40 The Bank was also at the forefront of the green bonds mar-ket, achieving the sum of US$7 billion in issued bonds in 2014. The proceeds of these bonds go to finance projects that are selected by environmental specialists following the Bank’s eligibility criteria for low carbon and climate resilient development, including food security programs and stress-resilient agricultural systems.41 In November 2014, the Climate Investment Funds, for which the Bank acts as Trustee and implementing agency along with oth-er Multilateral Development Banks, extended their oper-ations for two more years and accumulated pledges for over US$8 billion, making it the largest active climate fi-nance mechanism.42 The Green Climate Fund (GCF) re-cently surpassed this target, with US$10 billion in capital; the GCF, for which the Bank hopes to be an implementing entity, should become operational during 2015.

Many of the climate-related challenges that are specif-ic to agriculture are identified and incorporated in the latest World Bank’s “Agriculture Action Plan” (hereinafter “AAP”) for the years 2013 - 2015. The Plan provides more emphasis on improving resilience in agriculture and rural livelihoods through climate-smart agriculture.43 The AAP details the lessons learned from previous years which, in turn, inform the actions proposed in the AAP. The AAP also includes many of the recommendations of the IEG report on the water portfolio referenced above. In partic-ular, improved irrigation performance is recommended with regard to agricultural water resource management. This recommendation includes groundwater,44 which has been increasingly used for irrigation purposes.

For the current period, the projected investment in the

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sector across the World Bank Group is expected to reach around US$8 to US$10 billion. A focus on long-term ac-tion is to be encouraged in five thematic areas: (i) rais-ing agricultural productivity and its resilience through support for better land and water management in irri-gated and rainfed areas; (ii) linking farmers to markets and strengthening value chains to improve market access and trade; (iii) facilitating rural non-farm income through improving the rural investment climate and soil develop-ment; (iv) reducing risk, vulnerability and gender inequal-ity through support for risk management mechanisms, greater transparency in food markets, and improving women’s access to services, resources and opportunities; and (v) enhancing environmental services and sustain-ability.45

These areas are aligned with the World Bank strategy on water management and irrigation discussed above. Fur-thermore, these thematic areas respond to the pressures arising from climate change. Climate-smart agriculture will promote better land and water management as well as the development and adoption of more drought and flood tolerant plant varieties. Additionally, more use of landscape approaches will be encouraged in Bank opera-tions, including projects that combine agriculture, water, forestry, and biodiversity.46

Under the plan, two million hectares in new and im-proved irrigation and drainage services are expected. The key climate resilience actions are to increase the share of World Bank agriculture lending supporting climate change adaptation. As of FY2011-12, climate resilience activities comprised 31% of total agricultural lending, including improved agricultural management practices, and the development and adoption of more drought and flood-tolerant varieties. Similarly, the percentage of ag-ricultural lending that supports climate change mitiga-tion reached 20% in FY2011-2012.47

Among the type of measures proposed by the Bank to support improved agricultural water management are:48

• Strengthening water management in rainfed ar-eas through a combination of measures ranging from technological interventions, such as water harvesting and other water control and water capture infrastructure, to the provision of better climatic information and innovative approaches that allow farmers to better cope with the risks posed by climate variability.

• Improving watershed management practices, in particular in rainfed areas, and reforestation in upper watersheds to reduce soil erosion and en-hance water capture.

• Expanding new irrigated areas, especially in the Africa region, with a focus on viable smallholder and small-scale, community-managed irrigation as well as public-private partnerships.

• Rehabilitating and modernizing existing irrigated

areas, including large-scale systems.

• Strengthening irrigation services, including for women, as well as supporting water user associ-ations and the decentralization of management functions, and more sustainable operation and maintenance of irrigation systems.

• Strengthening systems for water rights alloca-tion and improving water pricing.

• Putting a stronger focus on assessing water re-source availability in the longer-term and pro-moting irrigation water conservation, including through better monitoring and modeling.

• Improving river basin and groundwater man-agement through institutional development and a move toward more integrated water manage-ment.

In the next section we will examine some specific exam-ples where some of these measures have translated into specific projects. Finally, it is important to mention that some of the Bank-financed projects also receive finance from initiatives where the Bank provides fiduciary, man-aging, and/or technical capacity. This includes the Global Agriculture and Food Security Program Trust Fund (GAF-SP), a multilateral mechanism that has received pledges for US$1.35 billion to work in sustainable agriculture and which helps reinforce the goals of the AAP.49

Some exampleS of meaSureS propoSeD for Water manage-ment anD agriCulture

In 2006, the North China Plain Water Conservation Proj-ect was successfully closed.50 This project followed on the Irrigated Agriculture Water Saving Program, an earli-er Bank-financed project that focused largely on invest-ment in irrigation infrastructure, but did not succeed in reducing the pace of groundwater overdraft. The Chinese Government requested Bank assistance for a water con-servation project that could test and demonstrate ways to achieve the country’s policy goals. The Project’s devel-opment objectives were to: (a) increase farmer incomes, enhancing beneficial use of water resources and agricul-ture production capacity, (b) increase the value of agri-culture production per unit of consumed water through increasing yields and reducing non-beneficial water loss-es, and (c) establishing mechanisms for sustainable use and management of water resources in irrigation areas.51 Additionally, the Project aimed at returning groundwa-ter use to sustainable levels through a combination of planning, investment and incentives. Finally, the Project pursued the introduction of WUAs, marking the first time in China that these types of institutions assumed respon-sibility over parts of the irrigation system.52 The Project supported “integrated improvements to over 100,000 hectares of irrigated land worked by 257,000 farm house-holds in the provinces of Hebei and Liaoning and in the municipalities of Beijing and Qingdao”.53 Agricultural pro-duction per unit of water consumed increased by 60% to 80%, and non-beneficial water use was reduced by

18

a sixth. Groundwater overdraft was reduced by 30 per-cent.54 WUA-managed areas covered 62,800 hectares, which accounted for about two-thirds of the project area and included over 500 established WUAs.55

More recently, the Framework for Adaptation to Climate Change in the Water Sector project in Mexico also suc-cessfully closed in 2013.56 Finance was provided through a development policy loan, which are governed under Operational Policy 8.60 on Development Policy Financ-ing. Development Policy Financing supports a Country’s program of policy and institutional actions that promote growth and sustainable poverty reduction. The Mexico case is an excellent example of how Development Policy Loans can help countries build institutional capacity and policies to support climate-smart agriculture.

The Mexico project’s development objectives were to: (a) strengthen the institutional framework and monitor-ing capacity in integrated water resources management, and (b) mainstream adaptation to climate change in water programs.57At the time the project closed, both objectives were reported to have been largely achieved. Among the key results of the project were the transfer of functions and responsibilities from Mexico’s National Water Com-mission to river basin organizations, which are able to participate in the formulation of regional policy and pro-grams. A total of 26 River Basin Councils were established with representation from key stakeholders in the sector, including state and municipal governments, water us-ers, civil society and non-governmental organizations.58 Support was provided to increase water availability infor-mation, with information published for 627 river basins, which increased the number of covered river basins from 91 to 722.59 A program for modernization and technology upgrades for irrigation incorporated new criteria allow-ing the improvement of productivity of irrigation districts which increased from 1.41 to 1.86 kg per m3 between 2007 and 2012, compared to the original target of 1.66 kg per m³.60 The project also piloted a program to use treated water for irrigation, resulting in a total of 7,807 hectares being irrigated only with treated water.61 Finally, new reg-ulations were promoted for the conservation of ground-water resources through artificial recharge of aquifers. The water authority now publishes water availability for 653 aquifers, tripling the amount of covered aquifers for which it provides information.62

Another good example is the ongoing Land Husband-ry, Water Harvesting, and Hillside Irrigation Program in Rwanda, which was approved in 2009.63 The project re-ceives finance from several sources, including an Inter-national Development Association Grant from the World Bank and co-finance from the U.S. Agency for Interna-tional Development and the Canadian International De-velopment Agency. According to the Project Appraisal Document, agriculture is at the core of Rwanda’s econ-omy, as it provided 80% of employment, 63% of foreign exchange earnings and accounted for about 39% of the country’s GDP.64 The Project aims at introducing sustain-

able land husbandry measures for hillside agriculture by transforming hillside intensification with a view to in-creasing productivity in an environmentally sustainable manner. The Project seeks to focus on high-valued horti-cultural crops with the strongest marketing potential on irrigated portions of hillsides. The Project also sets par-ticipation and ownership by women and men as a goal, which is consistent with the AAP goal of reducing gender inequality. Finally, it aims to strengthen farmer organi-zations and cooperatives for sustainable hillside inten-sification and marketing by improving their governance, management and market.65

hoW the WorlD bank aDDreSSeS Water iSSueS in itS Spon-SoreD projeCtS

The World Bank addresses water issues that arise at the project level, in part, through its environmental and so-cial safeguard policies. One of the issues the Bank has to deal with is the possibility that a riparian state may raise an objection when a project has a potential impact on an international waterway in which they have an in-terest. The World Bank first faced this issue around sixty years ago, when Turkey objected to an irrigation project on the Orontes River (shared with Syria and Lebanon) in Syria, which was going to receive financial support from the Bank. Turkey’s argument was that the project would reduce the river’s flow thus harming its interests.66

Following this objection, the Bank developed its policy for Projects on International Inland Waterways, which would later evolve into Operational Policy 7.50 for Projects on In-ternational Waterways (“OP 7.50”).67 OP 7.50 establishes a procedure that requires borrowers to notify other ripar-ian States when a project on international waterways is proposed aiming at addressing this aspect at the earlier stage of the process. The Policy has the following relevant features:

• Applies to hydroelectric, irrigation, flood control, navigation, drainage, water and sewerage, indus-trial, and similar projects that involve the use or potential pollution of international waterways, thus encompassing water availability and quality.

• Rests on the principles of cooperation and good-will of riparian States as essential principles to address water issues at the international level.

• It applies to upstream and downstream ripari-ans.68

• Includes surface water and groundwater re-sources. Initially, the policy did not apply to groundwater and it does not list groundwater as an international waterway; however, the Bank has consistently applied the Policy to projects in international groundwater resources since 1990.69

The Policy allows other riparians to provide their views

19

on the project during project preparation. In case they have objections, the Bank may appoint one or more inde-pendent experts to examine the issue, although it retains authority on whether to proceed with financing for the project. This mechanism is used rarely. In the 1980s, Ethi-opia objected to the Bank providing finance for a mul-tipurpose dam in Somalia (the Baardhere Dam Project), which included the construction of irrigation and drain-age systems. Independent experts concluded that the project’s impacts were properly addressed and the Bank decided to proceed with financing the project. Howev-er, shortly afterwards, the political situation in Soma-lia worsened and the Bank subsequently suspended the project.70 Finally, the Policy establishes some exceptions in cases where there is no foreseeable impact on other States’ interests.

There are many potential environmental problems that can exert a negative effect on water resources, including deforestation, watershed degradation, encroachment on recharge areas, pollution from point and nonpoint sourc-es, inadequate environmental flows, droughts and floods, among others.71 Although OP 7.50 covers projects that involve the potential pollution of an international water-way, it does not provide a framework to address these other impacts. To deal with these and other issues, the World Bank has a set of environmental and social safe-guards, which are briefly presented below.

Operational Policy 4.01 on Environmental Assessment (hereinafter “OP 4.01”) requires Bank-financed projects to be executed in an environmentally sound and sustainable manner. It contains a series of environmental manage-ment tools including environmental assessment. OP 4.01 is very comprehensive, encompassing every environmen-tal component (e.g., air, water, and land), human health and safety, social aspects (involuntary resettlement, in-digenous peoples, and physical cultural resources), and transboundary and global environmental aspects.

OP 4.01 is the umbrella policy of the Bank’s safeguards and a key instrument to assess and manage a project’s impacts, including those that might be produced by ag-riculture on water resources. It requires countries to account for environmental and social issues in an inte-grated way, to analyze project alternatives, and to take into account a country’s national legislation and its agreed-upon international environmental commitments, among other considerations. The Bank may require pub-lic consultation and disclosure of a project’s implications. Toward this end, the “borrower provides relevant materi-al in a timely manner prior to consultation and in a form and language that are understandable and accessible to the groups being consulted”. Additionally, the Bank may also trigger Operational Policy 4.04 on Natural Habitats and Operational Policy 4.36 on Forests, which specifically guard against impacts on those resources.

In terms of social safeguards, besides OP 4.01, the Bank requires application of its Operational Policy 4.10 on In-

digenous People, for those projects proposed for Bank financing which might affect indigenous communities. Borrowers are required to engage in a process of “free, prior, and informed consultation”, with the aim of attain-ing broad community support and, when impacts cannot be avoided, borrowers are required to minimize, mitigate or compensate the communities for the adverse effects of the projects. The Policy facilitates meaningful consul-tations with indigenous communities, including those that might rely upon agriculture, in a culturally-adequate manner.

It is also important to mention Operational Policy 4.12 on Involuntary Resettlement, which acknowledges the disruptive effect that a project might have not just with respect to physical relocation of people, but also regard-ing economic and social impacts that might occur due to restrictions on access to resources. This is very relevant for water projects as they might have negative effects on people living in the project area. The Policy requires bor-rowers to avoid or minimize involuntary resettlements if feasible, exploring all viable alternative project designs. If it is not feasible to avoid resettlement, resettlement activities should be executed as sustainable develop-ment programs, with the aim of allowing communities to receive sufficient resources to enable them to share in project benefits. Resettlement planning has to involve people throughout the consultation process and provide them with opportunities to participate in planning and implementing resettlement programs.

The Bank also has Operational Policy 4.07 on Water Re-sources Management, which provides priority areas for the Bank in assisting borrowers to achieve water re-sources management in a manner that is economically viable, environmentally sustainable, and socially equita-ble. Among the priority areas defined in the policy are: (i) developing a comprehensive framework for designing water resource investments, policies, and institutions; (ii) decentralizing water service delivery, involving users in planning and managing water projects, and encour-aging stakeholders to contribute to policy formulation; (iii) avoiding the waterlogging and salinity problems as-sociated with irrigation investments; and (iv) establishing strong legal and regulatory frameworks to ensure that social concerns are addressed, environmental resources are protected, and monopoly pricing is prevented.

In 2012, the Bank adopted Operational Policy 9.00 on Program-for-Results Financing (hereinafter “OP 9.00”). OP 9.00 introduces a new finance product aimed at pro-moting sustainable development and improving the effi-ciency and effectiveness of Bank-financed development activities. Under this policy, Bank-financed projects dis-burse against the achievements of verified results spec-ified as disbursement-linked indicators. Prior to Project approval, the Program is fully assessed; this assessment includes an environmental and social system assessment of the country as may be applicable or relevant in a par-ticular country, sector, or Program circumstances. The

20

Bank utilizes this type of financing to support countries’ initiatives and improve the sustainability of their policies, and towards that end, it has been instrumental in financ-ing water projects and climate-smart agriculture.

Since October 2012, the World Bank has been reviewing its environmental and social safeguards. This review, which is still ongoing, is being undertaken by the World Bank to respond to the need to better address the envi-ronmental and social issues of its country partners, “(…) to deliver better environmental and social outcomes in the projects and programs the Bank supports, to ensure treatment and coverage of environmental and social im-pacts and risks, to strengthen the ability to monitor and supervise actual impacts on people and the environment, and to better meet the varied needs of borrowers, and help strengthen country frameworks and institutions to deliver sustainable results on the ground”.72

In July 2014, the World Bank Board’s Executive Commit-tee on Development Effectiveness allowed the release of a first draft proposal for consultation, without endorse-ment.73 The consultations have taken place throughout the world and have involved States, civil society organiza-tions, and other international organizations, among dif-ferent stakeholders. Some features of the draft include, as follows:

• It provides a coherent and systematic environmen-tal and social framework, which includes a Vision Statement, the World Bank Environmental and Social Policy, Environmental and Social Standards (which replace safeguards), Environmental and So-cial Procedures (under preparation), and non-man-datory guidance and information tools.

• It requires the inclusion into environmental and so-cial assessments of those risks and impacts related to climate change and other global threats to the environment; any material threat to the protec-tion, conservation, maintenance and rehabilitation of natural habitats and biodiversity; risks of proj-ect impacts falling disproportionately on disad-vantaged or vulnerable groups; and any prejudice or discrimination toward individuals or groups in providing access to development resources and project benefits, particularly in the case of disad-vantaged or vulnerable groups.

• It introduces a standard on resource efficiency and pollution prevention, with specific actions to address water consumption for projects with high water demand, including detailed water balance, identification of opportunities to improve water use efficiency, and benchmarking operations to available industry standards on water use efficien-cy, among other actions.

• It introduces a standard on biodiversity to better address the interrelations between the different components of the environment.

• It introduces a specific standard for information disclosure and stakeholder engagement, aiming at establishing clearer rules and engaging communi-ties at the earlier stage of the projects.

The new draft for an environmental and social frame-work raises the bar and can increase the sustainability of Bank-financed projects. In terms of agricultural water management, it has the potential to set a stronger fo-cus on climate change at the project level, with the as-sessment of the potential for mitigation and adaptation within the project helping to build climate-resilient agri-culture. Improved focus on biodiversity will allow better integration of landscape approaches (integrated consid-eration of agriculture, land, forest, and water) into proj-ects. Finally, the enhanced approach toward social issues in the new draft should allow for improved inclusion of all people that might be affected by the project, including vulnerable groups.

The safeguard policies review is an ongoing process, and final versions have yet to be agreed upon by the World Bank Board of Executive Directors. Finally, it is important to note that the revision process excludes OP 7.50 which will remain as it is currently designed at this time.

ConCluSion

Climate change has potentially disruptive effects on the world that cannot be underestimated. Negative effects will be stronger in those countries that lack the capacity to respond adequately to changing circumstances. Ag-riculture could be massively impacted as crop produc-tion requires extensive use of water, which is already a scarce resource and might become even more scarce as the global temperature continues to rise. These causal chains might end up bringing about dire consequences, considering population growth and the essential role of agriculture in providing growth, jobs and food security around the globe.

In the last few years, the World Bank has been identifying, proposing and encouraging countries to adopt new poli-cies to build into their projects with the aim of better ad-dressing the relationship between agriculture and water resources. Integration of environmental concerns, land-scape approaches, and improved governance through the creation of WUAs are measures that merge institutional and technical responses to build climate-smart agricul-ture. The projects in China and Mexico provide examples of the type of results the Bank is trying to help countries obtain.

With regard to the impact of agriculture at the project level, the Bank’s safeguard policies provide an adequate framework to integrate the interests of other States as well as stakeholders in relation to the legal, environmen-tal and social effects of agriculture. The safeguard pol-icies require compliance with countries’ national legal frameworks and observance of their ratified international environmental treaties. The ongoing policy review prom-

21

ises to do more, by providing a systematic and socially inclusive framework to address project impacts, while incorporating specific requirements to assess the poten-tial of projects to support climate change mitigation and adaptation.

The World Bank’s efforts alone will not lead the world onto a climate-resilient path. It is important for the UN-FCCC process to be successful and produce an ambitious agreement by the end of 2015 that guides the world in keeping the global temperature increase under two de-grees Celsius. The private sector has to increase its in-vestments in sustainable agriculture, along with civil so-ciety. In the end, addressing climate change requires a global effort in which everyone has to be involved.

Charles E. Di Leva is the Chief Counsel of the Environ-mental and International Law Unit within the Legal Vice Presidency of the World Bank. Bastián Pastén Delich is the Associate Counsel of the Environmental and Interna-tional Law Unit within the Legal Vice Presidency of the World Bank. Beth Anne Hoffman is an Operations Analyst in the Environmental and International Law Unit within the Legal Vice Presidency of the World Bank.

1 World Bank, Irrigation and Drainage, http://www.worldbank.org/en/topic/irrigationdrainage/overview (last updated June 12, 2013).2 food and agriCUltUre organization, fao Water reports no. 38, Coping With Water sCarCity: an aCtion frameWork for agriCUltUre and food seCUrity 1-2 (2013) [hereinafter FAO].3 World Bank groUp, agriCUltUre aCtion plan: 2013- 2015 1 (2013).4 Id. at xv.5 Id. 6 Id. 7 World Bank groUp, tUrn doWn the heat report, Confronting the neW Climate normal xiii (2014). The World Bank published a series of three reports entitled tUrn doWn the heat beginning in 2012. The series was prepared by the Postdam Institute for Climate Impact Research and Climate Analytics for the World Bank and provides information re-garding the latest climate science. The first report (2012), looks at the risks of a world 4°C or even 2°C warmer. The second (2013) examines the impact on Africa, South Asia, and South East Asia. The third (2014) explores the impact on Latin America and the Caribbean, the Middle East and North Africa, and Eastern Europe and Central Asia.8 the World Bank, independent evalUation groUp, an evalUation of World Bank sUpport, 1997-2007, Water and development 2 (2010).9 FAO, supra note 2, at 2. 10 the World Bank, supra note 8, at 3. 11 Id.12 the World Bank, Water resoUrCes seCtor strategy, strategiC direCtions for World Bank engagement 1 (2004)13 the World Bank, supra note 8, at 4. 14 the World Bank, supra note 12, at 13.15 Id. at 13-14.16 the World Bank, supra note 8, at 32. 17 Id. 18 Id. at 50. 19 Id. at 50 – 51. 20 Id. at 51. 21 the World Bank, annUal in-depth revieW of the World Bank Water port-folio fy2013 9 (2013).22 Id. at 57.23 intergovernmental panel on Climate Change: Climate Change 2014: syn-thesis report 2. ContriBUtion of Working groUps i, ii, and iii to the fifth assessment report of the intergovernmental panel on Climate Change (Core Writing Team, R.K. Pachauri and L.A. Meyer, eds. 2014). 24 Id. at 16.25 the World Bank, supra note 3, at xv.

26 the World Bank, supra note 8, at x.27 Id.28 World Bank groUp, supra note 7.29 World Bank groUp, supra note 7, at 15.30 Id. at 14. 31 Id. at 16.32 Id. at 27.33 World Bank groUp, tUrn doWn the heat report: Climate extremes, re-gional impaCts, and the Case for resilienCe 118 (2013).34 Id.35 Id. at 119.36 Id. at 125. 37 Id. at 127.38 For more information on the carbon funds, see The World Bank, Carbon Funds and Facilities, http://www.worldbank.org/en/topic/cli-matechange/brief/world-bank-carbon-funds-facilities (last updated March 19, 2014).39 Jim yong kim, A Conversation with World Bank Group President Jim Yong Kim, CoUnCil on foreign relations (Dec. 8 2014), avail-able at http://www.cfr.org/climate-change/world-bank-presi-dent-jim-yong-kim-economic-development-paris-climate-agree-ment/p33913 40 Id. 41 For more information on the green bonds market, see The World Bank, Green Bonds, http://treasury.worldbank.org/cmd/htm/World-BankGreenBonds.html (last visited Apr. 26, 2015). 42 For more information on the Climate Investment Funds, see Climate investment fUnds, https://www.climateinvestmentfunds.org/cif/ (last visited Apr. 26, 2015).43 World Bank groUp, supra, note 3, at xvi. 44 Id. at 11. 45 Id. at xvii. 46 Id. 47 Id. at 19.48 These measures are reproduced from the Bank’s Agriculture Action Plan, id. at 28-29. 49 For more information on the Global Agriculture and Food Security Program (GAFSP), see gafsp, http://www.gafspfund.org/ (last visited Apr. 26, 2015).50 the World Bank, Water Conservation Project, http://www.worldbank.org/projects/P056516/water-conservation-project?lang=en (last visited Apr. 26, 2015).51 the World Bank, China’s Water Conservation proJeCt, implementation Completion and resUlts report 2 (March 27, 2007), available at http://documents.worldbank.org/curated/en/2007/03/7582543/china-wa-ter-conservation-project 52 Id. at 3.53 the World Bank, supra note 8, at 33.54 Id.55 the World Bank, supra note 50, at 4.56 the World Bank, MX DPL Adaptation to Climate Change in the Water Sector, http://www.worldbank.org/projects/P120134/adaptation-cli-mate-change-water-sector-development-policy-loan?lang=en (last visited Apr. 26, 2015)57 the World Bank, frameWork for adaptation to Climate Change in the Water seCtor development poliCy, implementation Completion and resUlts report 2 (June 27, 2013), available at http://documents.worldbank.org/curat-ed/en/2013/06/17997013/mexico-adaptation-climate-change-wa-ter-sector-development-policy-loan-project (last visited Apr. 26, 2015).58 Id. at 9. 59 Id. at 10. 60 Id. at 12.61 Id. at 11.62 Id. 63 the World Bank, Land Husbandry, Water Harvesting, and Hillside Irrigation, http://www.worldbank.org/projects/P114931/land-hus-bandry-water-harvesting-hillside-irrigation?lang=en (last visited Apr. 26, 2015).64 the World Bank, proJeCt appraisal doCUment on a proposed Credit in the amoUnt of sdr 21.4 million (Us$34 million eqUivalent) to the repUBliC of rWanda for a land hUsBandry, Water harvesting and hillside irrigation proJeCt 1 (Nov. 23, 2009), available at http://documents.worldbank.org/curated/en/2009/11/11448844/rwanda-land-husbandry-water-har-vesting-hillside-irrigation-project (last visited Apr. 26, 2015).65 Id.

22

66 Salman M.A. Salman, The World Bank Policy and Practice for Projects Affecting Shared Aquifers, 36:5 Water international 595 (2011).67 Id. at 595-596. 68 For an explanation of impacts for upstream riparians, see Salman M.A. Salman, Downstream Riparians Can Also Harm Upstream Ripari-ans: The Concept of Foreclosure of Future Uses, 35:4 Water international 350 (2010).69 See, supra, note 66, at 603. 70 For a detailed account on the application of O.P 7.50 to Baardhere

Dam, see Salman M.A. Salman, The Baardhere Dam and Water Infra-structure Project in Somalia – Ethiopia’s Objection and the World Bank Response, 56:4 hydrologiCal sCienCe JoUrnal 630 (2011). 71 the World Bank, supra note 8, at 3.72 the World Bank, Review and Update of the World Bank Safeguard Policies, https://consultations.worldbank.org/consultation/review-and-update-world-bank-safeguard-policies (last visited Apr. 26, 2015)73 Id.

Arab Spring to Arab Drought: Securing International Cooperation Over the Nile River Basin Ambereen Shaffie

i. introDuCtion

The Nile River Basin lies in one of the driest and least economically developed regions on earth.1 The river is the primary source of water for eleven countries.2 There is no doubt that the Nile is under threat from overuse, climate change, pollution, and poor water resource man-agement and efficiency.3 The nations that share the Nile’s limited freshwater supply have yet to sign a binding trea-ty addressing basin-wide water management. However, several states have signed two important sub-regional documents, the 2010 Cooperative Framework Agreement (CFA, or the Entebbe), and the 2015 Declaration of Princi-ples on the Grand Ethiopian Renaissance Dam (GERDP, or GERD Principles).4 Neither text proposes a comprehen-sive water regime,5 partially because each stakeholder presents varied capabilities, needs, and interests. So why are these two documents significant? They represent an important phase of a process to develop a basin-wide treaty and secure regional cooperation. The effectiveness of these treaties (and of all future cooperative efforts) is contingent on understanding and influencing the domi-nant riparian nation – Egypt – and its interests, motiva-tions and capabilities.6

As the most powerful country in the region both militarily and economically, Egypt has long argued that controlling the Nile is essential to its national security. In fact it has frequently threatened war to coerce states into accepting the status quo. It also claims a historical right to monop-olize the Nile based on two twentieth-century treaties. The remaining basin states view these treaties as “colo-nial relics” that ignore the contemporary river basin prin-ciples of equitable use and allocation. For instance, they allocate nearly all of the Nile’s water to two downstream nations, Egypt and Sudan, while excluding the other ba-sin countries as signatories. Egypt recently used its sta-tus to try to stymie the CFA. Treaty negotiations stalled when Egypt refused to compromise on language in the CFA limiting its own usage, and therefore did not ratify it.7

However the riparian nations now appear to be challeng-

ing Egypt’s hegemony. Six upstream states have ratified the CFA already. Against this backdrop of decades-old conflict, this March, Egypt, Ethiopia, and Sudan reached an agreement on the GERD Principles. The Principles rep-resent a promise to secure mutual cooperation and gains from the construction of a multi-billion dollar dam that Egypt staunchly opposed until this year. Furthermore, Uganda and Tanzania are also planning or constructing large water projects. Tanzania is planning to build a 105-mile pipeline that will draw water from one of the Nile’s main sources, Lake Victoria.8 Make no mistake, Egypt fears yet another potential coup in the Arab Spring – this time a coup of its water monopoly.

This paper contends that internal and external forces in the region once again present Egypt with a choice be-tween conflict and cooperation, but that Egypt is at last willing to sacrifice some control over the Nile. If this is indeed true, then global actors, particularly the World Bank, should seize the opportunity to use soft power to encourage Egypt to ratify and implement the CFA.9

ii. ChallengeS to the Cfa: the nile’S Water Supply iS SCarCe anD in high DemanD

a. nile Supply

At 6,695 kilometers, the Nile is generally considered the longest river in the world. It flows through eleven coun-tries – Rwanda, Burundi, the Democratic Republic of the Congo, Tanzania, Kenya, Uganda, Eritrea, Ethiopia, South Sudan, Sudan, and Egypt. The total area of the Nile Basin is 3.18 million square kilometers, approximately 10% of the African continent.10 The two main tributaries of the Nile are the Blue Nile and the White Nile, and approxi-mately 85% of the Nile’s water originates in the Ethiopian Highlands and the plains of Eastern Sudan.

Despite its length, the Nile carries less water than other major rivers, such as the Congo, Amazon and Yangtze.11 The volume of water in the Nile varies across seasons and

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locations, with an annual flow at the Aswan Dam of ap-proximately 84 billion cubic meters (BCM).12 One factor that accounts for variable water supply is evaporation, which is generally high compared to other river and lake

basins.13 For example, Ethiopia experiences evaporation of about 500 BCM annually.14 This combined with variable rainfall across seasons and years contributes to the high risk of drought in the entire region.15 Climate change will likely accelerate this process, leaving the Nile countries more vulnerable to an already uneven water flow. Climate change contributes to a diminishing water supply,16 and without immediate action its effects cannot be mitigat-ed.17 Projects involving man-made reservoirs could help maintain a more consistent water supply. In fact, there could be significant opportunity for state and interna-tional initiatives to incentivize the creation of reservoirs. However, the viability of these projects is limited by the cost, particularly for just the initial environmental impact assessments.18 Experts have presented various solutions to improve water use efficiency (WUE) in the context of increased competition for water. These solutions draw upon economic, engineering, and technical fields.19 As it stands, the Nile’s water supply is at best fixed and at worst decreasing.20

b. nile DemanD

The Nile’s 84 BCM is being withdrawn to the maximum

extent possible.21 Demand above capacity is an immediate problem some basin countries will face by 2050, includ-ing Burundi, Kenya, Rwanda, Egypt, Ethiopia, Tanzania and Uganda.22 By 2025, almost all of the basin countries will face a significant water shortage.23 Although Su-dan’s limited population and plentiful rainfall protects it from scarcity in the near future,24 it will still have to deal with the practical reality of sharing the river with its wa-ter-scarce neighbors.

Egypt uses the most water from the Nile by far, with-drawing 68.3 BCM per year.25 Sudan and South Sudan withdraw a combined 37.1 BCM per year.26 No other coun-try withdraws even 6 BCM per year, and five countries in the basin withdraw less than one BCM.27 This does not mean that other countries do not need the water, sim-ply that prior treaties unfairly blocked their claim to rea-sonable usage. In fact, “demands for access to the Nile’s water resources from upper riparian states have been in-creasing.”28 Ethiopia uses under one percent of the water although the Nile accounts for sixty-eight percent of its available water resources within the country.29 While ap-proximately 200 million people directly rely on the Nile for water, domestic and industrial use accounts for just two BCM per year.30

Instead, the vast majority of water withdrawn from the Nile is used in agriculture. About 80% of all water use in the basin is for agricultural production, while 86% of the water Egypt withdraws is diverted to agricultural usage.31 Therefore, water quality is crucial to these countries, and especially to Egypt.32 The Nile’s water quality is generally poor, with the lack of basin-wide environmental regula-tion resulting in widespread nutrient pollution and bac-teriological contamination.33 As a result, extensive treat-ment is necessary to make the water safe for human use.34

Water scarcity has made food shortages increasingly common in the region, which could further cause insta-bility and conflict.35 The Egyptian government has esti-mated that by 2017, it will need 15 BCM of water more than its existing water resources can supply.36

Furthermore, the demand for water is increasing due to population growth and economic development. The pop-ulation of the basin countries is expected to double in the next forty years from 429 million in 2012, to approximate-ly 945 million people, which will drive a corresponding in-crease in agricultural and industrial demands for water.37 In Egypt, 95% of the population live in the Nile Valley, and that population is growing at a rate of approximately one million every nine months.38

In addition, while the upstream basin countries previ-ously minimally used the river, primarily due to pressure from Egypt, they are now beginning to plan development projects – most notably the major dams – that could re-duce downstream flows.39 Ethiopia and Uganda are plan-ning to construct new hydropower stations, and Tanza-nia has begun a massive multi-billion dollar pipeline that would extract drinking water from the Nile.40

This map was produced by the Map Design Unit of the World Bank. The boundaries, colors, denominations, and any other information shown on this map do not imply, on the part of the World Bank Group, any judgment on the legal status of any territory, or any endorsement or acceptance of such boundaries.

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i. the Current treatieS at iSSue that govern the nile

a. the nile WaterS agreement of 1929

The Nile Waters Agreement of 1929 resulted from Britain’s desire to reserve the Nile for Egypt’s use.41 The agreement was negotiated between Egypt and Britain, with Britain nominally representing Sudan, Kenya, Uganda, and Tan-ganyika (now Tanzania).42 Under the agreement, Egypt agreed to allow Sudan to utilize the Nile in an amount that would “not infringe Egypt’s natural and historical rights in the waters of the Nile and its requirements of agricultural extension . . . .”43 As a practical matter, this agreement allocated Egypt 48 BCM and Sudan 4 BCM of water. No other basin state was allocated a share, and renegotiation required Egypt and Sudan’s joint permis-sion.44 Furthermore, the agreement conferred on Egypt both an unrestricted right to withdraw water from the Nile and the authority to prevent all other countries from engaging in any activity that would “reduce the quantity of water arriving in Egypt, or modify the date of its ar-rival, or lower its level.” 45 Despite its obvious inadequa-cies, Egypt continues to rely on this agreement, including its purported veto power, which remains a controversial component of Nile management.46 Egypt claims because the 1929 Agreement has risen to the level of international customary law, it binds all non-party states.47 However, the CFA unfortunately makes no mention of overriding this agreement.

b. 1959 agreement on the full utilization of the nile Wa-terS

In 1959, Egypt and Sudan reached another agreement, which gave Egypt 55 BCM and Sudan 18 BCM of the Nile’s annual 84 BCM flow.48 The agreement stated that in the event the Nile’s supply was greater than 84 BCM in a given year, the surplus would be split equally.49 Once again, no other country in the basin was allocated a share, although Egypt and Sudan did agree to consider sharing water on a case-by-case basis.50 As with the 1929 agreement, Egypt continues to use the agreement to support its claim to a monopoly over the Nile’s water.51 This prompted an Ethi-opian water minister to declare that, “[u]ntil the agree-ment of 1959 is null and void, cooperation will be unsus-tainable.”52

C. the nile baSin initiative anD the Cooperative frameWork agreement

Created in 1999, the Nile Basin Initiative (NBI, or the Ini-tiative) was formed to negotiate a comprehensive Nile treaty that addressed the water needs of all riparian states. The NBI is an example of a sustained collabora-tion among technical and scientific experts to build a basin-wide regime. The Initiative members drafted the CFA in 2010.53 As a result, the NBI is deservedly viewed as a major diplomatic breakthrough in the region.54 In the CFA, NBI members expressed their agreed-upon intent “to achieve sustainable socio-economic development through the equitable utilization of, and benefit from, the

common Nile Basin water resources.”55 This marked a sig-nificant shift in rhetoric on the part of Egypt and Sudan,56 and another step toward cooperation. The Initiative also set up the Nile Council of Ministers (Nile-COM), made up of a group of water ministers from all the basin states, as its highest decision-making body.

The NBI institutionalized regional cooperation in vari-ous ways. First, it drafted the CFA to incorporate modern principles of water law, and to welcome all basin states (particularly upstream countries) as signatories.57 Second, the NBI’s expressed vision of sustainable and equitable water management represented a rhetorical shift from Egypt’s saber-rattling.58 Third, it increased cooperation on mutually beneficial infrastructure projects between Egypt and others on a bilateral basis, such as projects re-lated to flood preparedness, irrigation and drainage, wa-tershed management, desertification control, and energy transmission.59 Finally, by promoting trust and speaking to uniform, common regional interests, it laid a founda-tion for further cooperation.

Yet some still view the CFA as a “transitional arrangement designed to foster communication until a permanent framework is in place.”60 Currently, only six upstream states are signatories. In 2010, Ethiopia, Uganda, Tan-zania, Rwanda, and Kenya signed the CFA, under which they agreed, “not to significantly affect the water secu-rity of any other Nile Basin State.”61 In 2011, Burundi also signed.62 Additionally the CFA did not specify water allo-cation, the biggest issue at the heart of conflict for the Basin.

As previously mentioned, Egypt and Sudan attempted to block negotiations. They conditioned ratification of the CFA on changing a provision to require basin states, “not to adversely affect the water security and current uses and rights of any other Nile Basin State” [emphasis added].63 The proposed change was not included; and Egypt and Sudan did not sign onto the treaty. At the time, Egyptian Minister of Water, Mohamed Bahaa El-Din also cited two other sticking points: (1) Egypt wanted deci-sion-making status in the Nile River Basin Commission, and (2) it wanted to be notified immediately of any Nile projects prior to construction.64 At the same time, El-Din almost comically noted Egypt’s cooperative streak, using the example of Egypt approving the Bujagali Hydroelec-tric Power Station in Uganda.65 Ultimately, Egypt contin-ues to maintain that the CFA simply does not trump the 1929 and 1959 Agreements.66

D. the agreement on DeClaration of prinCipleS on the gerD (gerD prinCipleS)

In April 2011, Ethiopia began construction of what will likely be Africa’s largest dam on the Blue Nile, the GERD.67 The nearly $5 billion hydroelectric dam will flood 1700 square kilometers of area bordering Sudan, and will em-ploy about 8,000 Ethiopian workers.68 Ethiopia maintains high hopes that the GERD will break its cycle of pover-ty and famine. Although the dam could generate up to

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an estimated 6,000 megawatts of power, outside experts believe the varied flow of the river will prevent consis-tent power production.69 However, not all elements of local society laud the project. In response to both do-mestic and international criticism, Ethiopia agreed to an international “Panel of Experts” to assess environmental impacts of the large-scale dam. The ten-member tripar-tite-appointed panel produced a secret report, a copy of which was leaked in 2013 to the nonprofit Internation-al Rivers. To its credit, the report highlighted some po-tential negative consequences raised by outside experts, and called for “a full transboundary environmental and social impact assessment (TESIA)…conducted jointly by the three countries.”70

Internally, the dam’s potential negative effects have not been extensively evaluated. While much attention is giv-en to the dam’s impact upon Egypt’s economy, few ar-ticles highlight the impact upon Ethiopia’s farming and mining communities, which depend on access to the river for their livelihood.71 One report estimates that the dam would “displace approximately 20,000 people in Ethio-pia,”72 although it does not specify the demographics of the displaced population. Financing of the dam has also been controversial. The government boosted nationalist pride by campaigning to build the dam largely without foreign assistance. Accordingly, a state-owned utili-ty Ethiopian Electric Power oversees the construction. Aside from a $1 billion loan from China, the government has raised about $357 million from Ethiopians.73 It aggres-sively marketed “patriotic” bonds to Ethiopians abroad, government employees, and local citizens. About 8,500 workers live at the project site and work almost seven days a week, making approximately $32.68 per month.74 Some were pushed to buy bonds “through a system that deducts straight from their [already meager] paychecks.”75 The government also campaigned Ethiopians living do-mestically and abroad to donate to the cause. Whether local Ethiopians who subsist on meager salaries will see a return on their investment remains to be seen. Further-more, while Ethiopia will be able to profit from exporting energy (under Principle 6) and recoup its costs, it may not be able to fully exploit that energy for its own purposes.

Externally, the dam presents water security issues. Tech-nical experts and Egypt’s leaders expressed alarm that the GERD would cut off flow for an entire year while the dam is filled, allowing Sudan to irrigate more water and thus impacting Egypt’s supply.76 The dam primarily draws on the Nile’s flow for its power, except when the res-ervoir must be filled immediately after the dam is built. That process could take five to seven years. The reservoir holds 63 BCM, approximately as much as Egypt typically uses in a year, and filling it too rapidly or during a year of low rainfall could cut Egypt’s supply drastically.77 It is im-portant to understand that the same phenomenon took place when Egypt built the Aswan Dam, and it took addi-tional time to eventually see the dividends.

Ethiopia has arguably addressed Egypt’s concerns in sev-

eral ways. Ethiopian leaders offered to cover most of the dam’s costs while allowing Egypt still to benefit towards a vision of comparative advantage. Ethiopia has publicly advocated and presented the mutual benefits and eco-nomic gains from the GERD, only to be met largely with silence from Egyptian leaders. Finally, it agreed to the GERD Principles, which defer to an international team of experts to make recommendations on the best way to proceed in filling the reservoir and administering the dam, while still balancing the needs of each country.

Despite initial hesitation, in January 2015, Egyptian Pres-ident el-Sisi met with Ethiopian Prime Minister Haile-mariam Desalegn to establish a joint commission to over-see the implementation of the GERD.78 The commission was set up to examine the GERD’s impact upon Sudan, and Egypt’s allocation and water rights. President El-Sisi was “intent on reaching an accommodation with Ethi-opia over the Nile.” On March 23, 2015, water ministers from Egypt, Ethiopia, and Sudan reached an agreement on the GERD,79 which outlines the core principles of mu-tual cooperation.80 Most of the aspirational principles are theoretically excellent, and closely follow portions of the United Nations Watercourses Convention, which came into force just last year.

But Ethiopians take issue with language in the GERD Principles that seems conciliatory. In particular, Princi-ple 1 calls for “cooperation in understanding the water needs of upstream and downstream countries.” Principle 5 dictates that with respect to the filling of the reservoir and dam operation policies, the three countries must rely upon the findings of a Tripartite National Technical Com-mittee “[t]o inform [the] downstream countries, Egypt and Sudan, on any urgent circumstances that would call for a change in the operations of the dam, in order to en-sure coordination with downstream countries’ water res-ervoirs.” Principle 6 gives downstream countries priority to purchase the GERD-generated energy. Critics claim that Ethiopia too readily accepted language preserving the colonial status of the downstream nations, which undermined its own sovereignty.81 The language is sim-ilar to the controversial proposed CFA provisions refer-enced above. Ultimately there is an unanswered question (among many others): will Ethiopia will be able to exploit the GERD for its own irrigation and power production, or will it be exploited as a labor force for a new source of cheap energy for the downstream nations?

It is as yet unclear whether the GERD Principles fully ac-count for either country’s concerns.82 What is clear is that we will see “key negotiations” – and key intergovernmen-tal research – regarding the reservoir and the dam’s im-pact upon the Nile River Basin.83 What is also clear is that the GERD Dam will take compromise on the part of all countries involved, and particularly Egypt and Ethiopia.

The GERD Principles also have implications for Egypt with respect to the CFA. The Principles arguably hold “great significance for future agreements to be reached on the Nile,” 84 and signal that future cooperation on the

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CFA is possible. At the same time, “[t]he possibility for Egypt and Sudan to sign the CFA is wide, but this doesn’t mean the process is simple.”85

iv. the opportunity

a. a paraDigm Shift: ConfliCt to Cooperation

The question remains: if Egypt does not sign the CFA, is a water war looming? Many commentators have theo-rized that competition for the Nile will drive Egypt to war with one or more basin states. This claim is not without good reason. In 1979 Anwar Sadat said, “The only matter that could take Egypt to war again is water.”86 In 2007, the Egyptian military reportedly created a “standing Nile force” and developed contingency plans to intervene if any basin country threatened to reduce Egypt’s water supply.87 So it was no surprise to see Egypt’s aggressive rhetoric resurface with the building of the GERD. In 2010, WikiLeaks published emails from an Egyptian official dis-cussing plans with Sudan to bomb and attack the dam.88 In June 2013, Egypt’s then-President Mohammed Morsi stated that “all options are open” with respect to defend-ing Egypt’s water security, and that every drop of water taken from the Nile “would be defended by a drop of Egyptian blood.”89

However, to date there has been no armed conflict over water in the Nile River Basin, and after resisting the CFA, Egypt has changed its tack, most recently by signing the GERD Principles. Particularly in the wake of the Arab Spring that began in 2011, there is evidence that Egypt is ready to bargain albeit grudgingly, particularly on water allocation.

In fact, the effects of the Arab Spring still reverberate in Egypt and in the region. The recent political upheaval in-cludes the fall of President Hosni Mubarak’s decades-long rule, the Muslim Brotherhood’s brief reign, frequent tense military clashes with the public throughout, the military coup of President Mohammed Morsi, and the eventual election of current President Abdel Fattah el-Sisi. Presi-dent el-Sisi rose in political ranks first as a military chief during the Arab Spring. While in that role, he led the mil-itary in overthrowing and jailing then-President Morsi. In November 2013, Mr. Morsi and other senior Muslim Brotherhood officials were tried for their actions during the 2012 protests. On April 21, 2015, Mr. Morsi was con-victed of the detention and torture of protestors, and was sentenced to 20 years in prison. Protests still occur over his imprisonment, and the imprisonment of numer-ous protestors. In short, the Arab Spring has destabilized Egypt and weakened its position as a military and diplo-matic power.

Egypt is now in a position to see the wisdom – and neces-sity – of cooperating over its most vital natural resource. The Arab Spring “made it unclear if Egypt is willing or able to enforce its long-held dominance of the region.”90 While Egypt was “preoccupied with its own survival” during that time period, Ethiopia unilaterally began construction of

the GERD.

President El-Sisi then continued a momentum to en-gender better relations with the riparian states that was building even throughout the Arab Spring: in 2013, for-mer Vice President of Egypt Mohamed ElBaradei held talks with Sudan and Ethiopia, concluding that the only way forward was to cooperate on the basis of building dams up to global high-tech standards.91 During Mr. Mor-si’s brief rule, he traveled to Ethiopia in 2012, reversing a long-standing ban former President Hosni Mubarak had maintained against traveling to other riparian nations.92

This momentum, combined with President el-Sisi’s prag-matism and desire to remain in power, is a sign that Egypt may be able to muster the political will to sign the CFA. However, skepticism surrounding Egypt’s “cooperation” is warranted.93 It is no secret that Egypt previously ex-pressed its interest in regional efforts and then failed to substantiate its rhetoric with action, such as when it refused to compromise on the CFA.94 And, “there is no binding principle of international law that compels”95 the parties to cooperate.

b. eConomiC analySiS of the paraDigm Shift

An economic approach to international law may addi-tionally bolster arguments for Egypt’s cooperation and compliance with the CFA. From an international law or doctrinal perspective, Egypt stands to gain nothing by re-linquishing its claim to power under the old treaties. Sim-ilarly, in the context of the GERD Principles, Ethiopia will continue to work with Egypt on the downstream effects of the dam as long as Egypt can threaten military retal-iation. From an economic perspective, “[t]he more de-pendent states are on their international river, the more interest they have in cooperation.”96 The caveat is that “[b]eneficial international cooperation…will only happen if there are [actual] costs for violating international law.”97 The costs could include retaliation (institutional or po-litical), reputational costs, or sanctions. Institutional re-taliation may include a state’s refusal to work with Egypt in a multilateral setting, while political retaliation could take the form of economic sanctions or restructuring of foreign aid requirements.98 The latter could prove very powerful, given that Egypt receives significant foreign aid from the United States and other international insti-tutions. With respect to multilateral settings, the basin nations will likely continue to sign sub-regional agree-ments, which are often easier to broker and govern. This may create smaller upstream blocs of power to counter-balance Egypt’s power. These sub-regional agreements will likely center around a proliferation of new water projects, when the upstream countries finally seize the opportunity to overcome poverty by harnessing the pow-er of the Nile.

In summary, pure unilateral action does not benefit Egypt, and that is why it continues to cooperate despite its past rhetoric to the contrary. The benefits that Egypt could gain from the CFA outweigh the costs of maintaining the

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status quo.99 Keeping this in mind, the international com-munity can increase the likelihood of a successful out-come by exploiting current events to encourage it to sign onto the CFA.

C. an opportunity for the WorlD bank

One cannot influence large-scale change solely by im-plementing new laws.100 Similarly, “[t]here is no reason to believe that the introduction of the Nile Basin CFA could single-handedly change the dynamics of the Nile hydro-politics.”101 However multilateral institutions can enhance cooperation, and facilitate the CFA. The World Bank (the Bank) has an opportunity encourage Egypt to ratify the CFA.

Most success stories for basin-wide agreements boast-ed significant third-party or NGO involvement, including the NBI.102 In addition to technical experts, third-party mediators can help to incentivize cooperation and the conflict-resolution process, and find a middle ground be-tween seemingly disparate positions.103 A third party such as the World Bank can level the playing field for the weak-er basin countries, yet speak to the common interests, needs, and motivations that Egypt shares with the region. The Bank is a strong candidate to facilitate interest in the CFA for several reasons.

First, the Bank has negotiated transnational water trea-ties in the past, including one related to the Indus Riv-er. India (similar to Egypt) had asserted total sovereign-ty over the Indus River while Pakistan sought equitable use for many years. The Bank successfully mediated the 1960 Indus Waters Treaty, which allowed both countries to use the waters. To spark negotiations, a senior Bank official invited the Prime Ministers of both countries to sit down and agree to a set of principles as the basis for a future agreement. The Bank proposed the principle “that problems of the basin should be solved on a functional and not on a political plane, without relation to past ne-gotiations and past claims.”104 Once the countries agreed to this foundational principle, they were able to proceed. The Bank then required that each country appoint a se-nior engineer to set forth plans for development of the Indus River. It organized a “consortium of donors to sup-port development in the Indus basin, which raised close to $900 million, in addition to India’s commitment of $174 million.”105 As a result of the Bank’s role as an active medi-ator between India and Pakistan, the two nations agreed to and signed a bilateral agreement resolving the dispute. While the circumstances and countries involved in ne-gotiating the Indus River treaty are different than those governing the Nile, it is worth it to consider asking the Bank to mediate discussions between Egypt and the cur-rent signatories to the CFA. The Bank can also play a role in mediating talks over appropriate amendments to the CFA, to make the treaty more palatable to Egypt.

Second, the Bank has standing in the region and a history of supporting the NBI. The World Bank has a mandate to support the work of the NBI since the initiative’s incep-

tion, as lead development partner and as administrator of the multi-donor Nile Basin Trust Fund (NBT). The NBI established the NBT, which the World Bank manages. The NBT is the main funding source of basin countries hop-ing to develop water and infrastructure projects.106 Fi-nally, the Bank funds several of its own water initiatives, which are carried out in equal partnership with the NBI. It is an ideal time for the Bank to establish an exploratory committee regarding how to help Egypt sign onto CFA, or whether amendments are necessary, appropriate, and realistic. Where negotiations break down, as in the past, the Bank can act as a neutral yet informed party. Additionally, the Bank could establish a presence at the Nile-2002 Conference Series, which are annual meetings where experts from each basin state gather to present research and papers. The Conference is a rich environ-ment that attracts key scholars and researchers to share data on the Nile River Basin. Unfortunately, the findings are not widely disseminated, nor are they exchanged in an organized manner. Opening the Conference to the World Bank might spur collaborative research efforts and perhaps, with time, viable water project proposals.

A discussion of the World Bank must account for the viewpoint that such first-world institutions are “obso-lete.”107 The traditional “North-South” divide, or the gap between developed and lesser-developed countries, has narrowed. Lesser-developed countries have more eco-nomic power and diplomatic clout – and that trend will continue, as evidenced by the recent China-backed Asian Infrastructure Investment Bank, a “competitor to the Western-dominated World Bank and Asian Development Bank.”108 Whatever the form or composition of this “new world order,” the relevant global actors should seek to create incentives for cooperation over the Nile River, for the sake of all countries concerned.

iv. ConCluSion

One way to fairly allocate the Nile water and protect it from environmental degradation is a more comprehen-sive legal framework that includes all riparian states as signatories. This does not mean that sub-regional agree-ments or specialized river basin organizations are super-fluous. While all the Nile Basin nations seem to support a comprehensive treaty, efforts to have all countries sign onto the CFA have proven unsuccessful, primarily be-cause “Egypt has dug in its heels” regarding key provi-sions.109 The GERD Principles affirmed sub-regional co-operation, and perhaps paved the way to Egypt becoming a signatory to the CFA.

While Egypt has enjoyed an unchallenged property right without having to pay for the privilege, its sociopolitical landscape has evolved since the Arab Spring began in 2011. Riparian states have challenged Egypt’s hegemony in the form of various hydroprojects, notably the GERD. Furthermore, climate change and environmental factors provide internal pressure by reducing water supply, just as population and external factors drive water demand higher. In this context, it seems that given the pressure to

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choose between war and cooperation, Egypt may final-ly choose the latter and ratify the CFA. The World Bank could play a decisive role in moving Egypt toward this outcome.

Perhaps then the vision of “Africa rising on the strength of its own abundant resources”110 can be blended with the vision that, “[w]e drink from the same Nile River water, which makes us live in harmony and cohesion.”111 The CFA is no silver bullet, and neither is the GERD Declaration. However, both documents serve as proof of the paradigm shift from conflict to cooperation. This paradigm shift, if supported, can and will pave the way for greater stabili-ty, economic prosperity, and environmental sustainability for all the Nile Basin countries.

Ambereen Shaffie is an environmental attorney based in Washington, D.C. She holds both a J.D. from the University of Kansas, and an LL.M. in International and Comparative Law from the American University in Cairo. She holds an Executive Director position with a nonprofit while also maintaining her law practice, and is active in local bar associations.

1 Jutta Brunée and Stephen J. Toope, The Changing Nile Basin Regime: Does Law Matter? 43 harv. int’l. l. J. 105, 235-241 (2002).2 Jack Di Nunzio, Conflict on the Nile: The Future of Transboundary Water Disputes Over the World’s Longest River, fUtUre direCtions inter-nationals (Nov. 25, 2013), http://goo.gl/lzGKvA; The Basin countries do have limited groundwater resources – which, outside of Egypt, serve as the main sources of drinking water in rural areas. Mohamed Sham-rukh and Ahmed Abdel-Wahab, Riverbank Filtration for Water Security in Desert Countries (1st Ed. 2011). Egypt’s two main aquifers are in the Nile Basin and the Western Desert. The latter’s water is not renew-able, and the high cost of extraction has prevented Egypt from taking full advantage of this sources of freshwater. Jeffrey D. Azarva, Conflict on the Nile: International Watercourse Law and the Elusive Effort to Create a Transboundary Water Regime in the Nile Basin, 25 temp. in’l & Comp. l.J. 457, 462 (2011).3 Water resource management is the coordinated development and management of water resources in a sustainable, optimal, and equita-ble way.4 Although the GERDP is not a legal agreement per se, it is sometimes referred to as the “Agreement on the Declaration of GERDP”.5 Brunée and Toope define regime as a “constellation of patterned activity that comes to induce expectations as to appropriate behavior among actors with a given identity.” Brunée and Toope, supra note 1, at 109. This paper defines “regime” as a governing system consisting of international laws (both written and customary), and the international institutions that cooperate to implement those laws. The system is shaped by the “constellation” of activities performed by transnational organizations, customs, and laws, as well as individual states.6 The classic frustration with international law is a lack of enforcement mechanisms. As a result, “[r]esearch questions about the efficacy of international law, the operation of international institutions, the pref-erences of states, and the motivations for state behavior – questions often foreclosed by a narrow focus on international law doctrine – are now being increasingly asked and answered.” Daniel Abebe, Egypt, Ethiopia, and the Nile: The Economics of International Water Law, 15 Chi. J. in’l l. 27, 29 (2014).7 Sudan, another downstream country, also refused to sign.8 Florian Kaijage, Dar’s New Water Project Risks Yet Another Diplomatic Row with Egypt, the east afriCan (Apr. 4, 2011), http://www.theeastafri-can.co.ke/news/-/2558/1137844/-/o4e9cvz/-/index.html.9 Joseph Nye defines soft power as “the ability to shape others pref-erences.” In contrast, hard power is the ability to get what one wants from another. In international relations, soft power is to diplomacy as hard power is to the use of force.10 State of the Nile River Basin Report, nile information system (2012), at 27, http://goo.gl/T5YEHp;11 Id. at 55.12 Id. at 37; Note that some estimates range as low as 74 BCM.

13 Id. at 34; Some sources claim that “the loss of water through evap-oration from the various reservoirs in the Nile system (such as lakes Nasser, Merowe, Jebel Aulia, Kashm el Girba, and Roseires) is very sig-nificant.” Id. However, it is important to understand that evaporation is not a permanent “loss” of water, but rather a part of the hydrological cycle. 14 William Davison, Will Ethiopia’s ‘Grand’ New Dam Steal the Nile Wa-ters from Egypt?, Christian sCienCe monitor (June 25, 2013), http://www.csmonitor.com/World/Africa/2013/0625/Will-Ethiopia-s-grand-new-dam-steal-Nile-waters-from-Egypt.15 State of the Nile River Basin Report, supra note 10, at 35.16 Fred Pearce, On the River Nile, a Move to Avert a Conflict Over Water, Yale Environment 360 (March 12, 2015), http://e360.yale.edu/feature/on_the_river_nile_a_move_to_avert_a_conflict_over_wa-ter/2855/.17 Any Freitas, Water Politics in the Nile Basin, European Union Institute for Security Studies (May 2013), http://www.iss.europa.eu/uploads/media/Alert_Nile.pdf.18 State of the Nile River Basin Report, supra note 10 at 52.19 For a useful discussion on WUE, see Dirgha Tiwari and Ariel Dinar, “Role and Use of Economic Incentives in Irrigated Agriculture” Working paper for the World Bank (2000), https://goo.gl/xqOKRn.20 Id. 21 State of the Nile River Basin Report, supra note 10, at 55.22 Brunée and Toope, supra note 1, at 118-119.23 Abadir M. Ibrahim, The Nile Basin Cooperative Framework Agreement: The Begin of the End of Egyptian Hydro-Political Hegemony,18 mo. en-vtl. l. & pol’y rev. 282, 286 (2011).24 Brunée and Toope, supra note 1, at 119.25 Id.26 Id. 27 Id. 28 Abebe, supra note 6, at 31.29 Id.30 Di Nunzio, supra note 2.31 Id.32 Brunée and Toope, supra note 1, at 120 (stating that “Water quality is especially important to Egypt because it is so dependent upon the Nile for agricultural production”).33 Brunée and Toope, supra note 1, at 45.34 Mohamed Shamrukh and Ahmed Abdel-Wahab, Riverbank Filtration for Water Security in Desert Countries (1st Ed. 2011), at 13-16. 35 In Egypt, “urban riots and other domestic tensions in the 1980’s were directly linked to inadequate food and drinking water.” Kristin Wiebe, The Nile River: Potential for Conflict and Cooperation in the Face of Water Degradation, 41 nat. resoUrCes J. 731, 742 (2001); See also, Jeffrey D. Azarva, Conflict on the Nile: International Watercourse Law and the Elusive Effort to Create a Transboundary Water Regime in the Nile Basin, 25 temp. in’l & Comp. l.J. 457, 462 (2011) (stating that “The country’s agricultural sector…is a major contributor to food security and domestic employment.”).36 Jeffrey D. Azarva, Conflict on the Nile: International Watercourse Law and the Elusive Effort to Create a Transboundary Water Regime in the Nile Basin, 25 temp. in’l & Comp. l.J. 457, 459.37 Carolyn Lamere, Nile Basin at a Turning Point as Political Changes Roil, neW seCUrity Beat (Sept. 4, 2012). More agriculture and industry will also mean more pollution entering the Nile. 38 Brunée and Toope, supra note 1, at 119.39 State of the Nile River Basin Report, supra note 10, at 52.40 Lee A. Laudicina, International Water Disputes: How to Prevent a War Over the Nile River, 4 loy. U. Chi. in’l. l. rev. 235, 242 (2007). 41 Azarva, supra note 36, at 466.42 Id. 43 Id.44 Id. 45 Id. 46 Id. 47 Brunée and Toope, supra note 1, at 242-243.48 Azarva, supra note 36, at 468.49 Id. 50 Id. at 466. 51 Id. 52 Laudicinia, supra note 40, at 243.53 Azarva, supra note 36, at 486.54 Id.

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55 Id. 56 Id. 57 Id. 58 Id.59 Id. 60 Brunée and Toope, supra note 1, at 243.61 Azarva, supra note 36, at 489.62 Id.63 Azarva, supra note 36, at 488.64 Entebbe Agreement Not Binding on Egypt: Minister of Irrigation, ahram online and mena (June 16, 2013), http://english.ahram.org.eg/NewsContent/1/64/74134/Egypt/Politics-/CFA-Agreement-not-binding-on-Egypt-Minister-of.aspx65 Id.66 “A half-century later, Egypt continues to rely on the 1929 and 1959 agreements in laying claim” to the majority of the Nile.” Azarva, supra note 36, at 468.67 Pearce, supra note 16, at 2. The GERD was formerly known as the Millennium Dam, and it also sometimes referred to as the Hidase Dam.68 Id.69 Id.70 A copy of the report can be viewed here: http://www.international-rivers.org/files/attached-files/international_panel_of_experts_for_ethiopian_renaissance_dam-_final_report_1.pdf. 71 Gregory Warner, Don’t Torpedo the Dam, Full Speed Ahead for Ethio-pia’s Nile Project, npr (March 26, 2015),http://www.npr.org/blogs/goatsandsoda/2015/03/26/395321624/dont-torpedo-the-dam-full-speed-ahead-for-ethiopias-nile-project.72 See The Grand Ethiopian Renaissance Dam Fact Sheet, international rivers (Jan. 24, 2014), available at http://www.internationalrivers.org/gerd-panel-of-experts-report-big-questions-remain.73 Jacey Fortin, Dam Rising in Ethiopia Stirs Hope and Tension, n.y. times, Oct. 12, 2014, at A14.74 Id.75 Id. 76 Pearce, supra note 16 at 2.77 See The Grand Ethiopian Renaissance Dam Fact Sheet, internation-al rivers (January 24, 2014), http://www.internationalrivers.org/resources/the-grand-ethiopian-renaissance-dam-fact-sheet-8213. International Rivers, a global non-profit dedicated to protecting rivers, reports that data on the Nile river is “inadequate.” 78 Al-Sisi, Ethiopia’s PM agree on Further Renaissance Dam Coordi-nation, daily neWs egypt (Jan. 31, 2015), http://www.dailynewsegypt.com/2015/01/31/al-sisi-ethiopias-pm-agree-renaissance-dam-co-ordination. Al-Sisi also held bilateral talks with the leaders of Tunisia, Uganda, and South Sudan of the Nile Basin states. The move can be characterized as a “concession” on Egypt’s part, but in reality, Ethiopia agreed to the terms without pausing its construction for a moment, which reveals much about changing power dynamics.79 Pearce, supra note 16, at 2. See also The NBI’s statement, http://www.nilebasin.org/index.php/news/192-nbi-congratulates-egypt-ethiopia-and-sudan-on-signing-the-agreement-on-declaration-of-principles-on-the-gerd-project.80 The Agreement was signed by Prime Minister Hailemariam De-salegn of Ethiopia, President el-Sisi of Egypt, and President Omar Hassan Ahmed al-Bashir of Sudan. For a full text of the Principles translated into English, see http://english.ahram.org.eg/NewsCon-tent/1/64/125941/Egypt/Politics-/Full-text-of-Declaration-of-Prin-ciples-signed-by-E.aspx.

81 Aklog Birara, Nile Dam Tripartite Agreement: Who Loses and Who Benefits? ethiomedia (Mar. 25, 2015), http://ecadforum.com/2015/03/25/nile-dam-tripartite-agreement/.82 Pearce, supra note 16, at 2.83 Warner, supra note 71.84 GERD Agreement result of Ethiopia’s firm position on mutual benefit, (Mar. 28, 2015), http://www.welkessa.com/gerd-agreement-re-sult-of-ethiopias-firm-position-on-mutual-benefit/.85 Id.86 Azarva, supra note 36, at 462.87 Id. at 497.88 Abebe, supra note 6, at 38.89 Warner, supra note 71.90 Lamere, supra note 37.91 Abdelrahman Youssef and Ayah Aman, Egypt’s New Rulers Face Crisis with Ethiopia Over Nile, al-monitor (July 24, 2013), http://www.al-monitor.com/pulse/originals/2013/07/egypt-nile-ethiopia-sisi.html#.92 For a more comprehensive discussion of “[t]he story of change” in Egypt and the Basin, see Brunée and Toope, supra note 1, at 132-37.93 Scott O. McKenzie, Egypt’s Choice: From the Nile Basin Treaty to the Cooperative Framework Agreement, an International Legal Analysis, 21 transnat’l l. & Contemporary proBlems 571, 595 (2012). McKenzie notes that Egypt “publicly states its desire to work with other Member States, but its actions indicate indifference in furthering the goals of the CFA.”94 Id. 95 Abebe, supra note 6, at 39.96 Sara McLaughlin Mitchell and Neda A. Zawahri, The Effectiveness of Treaty Design in Addressing Water Disputes, 52 J. of peaCe researCh 187, 191 (March 2015).97 Abebe, supra note 6, at 41.98 Id.99 State of the Nile River Basin Report, supra, note 10. In fact, “[t]here is ample scientific evidence showing that the lower riparian states would benefit from a basin-wide cooperative framework.” Ibrahim supra, note 23, at 310. This report discusses numerous ways in which Egypt would benefit from a comprehensive Nile treaty.100 Brunée and Toope, supra note 1, at 105.101 Ibrahim, supra note 23, at 307. 102 Wiebe, supra note 35, at 753. 103 For a longer discussion of the role of mediators in managing trans-boundary water resources, see Ariel Dinar, Cooperation in Managing Transboundary Water Resources: Evaluation Approaches and Experienc-es (Paper presented at the 4th Rosenberg International Forum on Water Policy, Ankara, Turkey), (Sept. 3-9, 2004), http://goo.gl/ahvavc.104 Aaron T. Wolf and Joshua T. Newton, Case Study of Transboundary Dispute Resolution: The Indus Water Treaty, CamBridge University press (2008), available at http://www.transboundarywaters.orst.edu/re-search/case_studies/Indus_New.htm.105 Id. 106 Freitas, supra note 17, at 2.107 Eveline Danubrata and Charlotte Greenfield, Asian, African Na-tions Challenge ‘Obsolete’ World Order, reUters (April 22 2015), http://www.reuters.com/article/2015/04/22/us-asia-africa-idUSKBN-0ND09820150422.108 Id.109 Azarva, supra note 36, at 459.110 Warner, supra note 71. 111 Aya Nader, Egypt Should be at Ease with the GERD: Ethiopian Pa-triarch, the daily neWs egypt (Jan. 11, 2015), available at http://www.thedailynewsegypt.com/?p=249223.

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Climate Change and Regional and Basin AgreementsDaniel Magraw, Andrea Martinez & Elodie Manuel

Roughly 400 water agreements exist around the world at the basin and regional (multi-basin) level. These agree-ments are managed and implemented by executive au-thorities known as regional and basin authorities (RBAs). In general, regional and basin agreements historically have tended to focus on the transboundary issues relat-ing to the watercourse they pertain to, rather than on global issues.1 Moreover, these agreements do this with specific attention to local conditions, values and politi-cal realities. This focus is understandable and indeed is one of the values of regional and basin approaches. At the same time, global climate change has important implica-tions for the availability, quality, and access to fresh water on a local level. For example, climate change is likely to affect the availability of fresh water as the amount and timing patterns of precipitation are disrupted and the strength and duration of storms intensify; these could affect river flows, sediment in lakes and rivers, and re-charge of aquifers. In addition, climate change will lead to migration, consisting of both internally displaced persons and international refugees; and these migrants will likely create additional demand for water in some places and stress existing water governance structures. Because cli-mate change has impacts on fresh water availability, qual-ity and access at the basin level, it is both natural and es-sential that attention to climate change is growing on the part of the managing bodies of these basin and regional agreements, particularly as recognition of the time-sen-sitive imperative to protect the environment of the basin increases.

To understand this situation, we recently completed a study of regional and basin agreements and international law, including the United Nations Framework Convention on Climate Change (UNFCCC),2 for the United Nations Environment Programme (UNEP).3 We presented our re-port in November 2014 to the first International Environ-ment Forum for Basin Organizations in Nairobi, Kenya, which was organized by the International Network of Basin Organizations (INBO). We found that water agree-ments at the basin and regional level are beginning to ad-dress climate change mitigation and adaptation through the activities of their managing bodies. We are pleased to provide the following introduction to our report, with a sampling of some of our findings. We invite you to review the full report, which is available on the UNEP website.4

As background, our study examined seven regional and basin water agreements: the Amazon Cooperation Trea-ty,5 the Danube River Convention,6 the Guaraní Aquifer Agreement,7 the Mekong River Agreement,8 the Mur-ray-Darling Basin Agreement,9 the Volta River Conven-tion,10 and the 1909 Canada-United States Boundary Wa-ters Treaty.11 We examined how these agreements address

selected international water law principles and how that treatment relates to the implementation of the UNFCCC and seven other global multilateral environmental agree-ments, which are the following: the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes,12 the Convention on Biological Diversity,13 the Convention on Migratory Species,14 the Ramsar Conven-tion on Wetlands,15 the Stockholm Convention on Per-sistent Organic Pollutants,16 the UN Convention on Com-bating Desertification,17 and the UN Convention on the Non-Navigational Uses of International Watercourses.18

For context, it is helpful to examine the nature of the re-gional and basin agreements we studied. In terms of geo-graphic scope, the Guaraní Aquifer Agreement underlies parts of more than one basin, the 1909 Boundary Waters Treaty is a regional watercourse agreement, and the other five agreements examined in the study are basin-specif-ic. In terms of levels of government, the Murray-Darling Basin Agreement is entirely within one country (Austra-lia), the 1909 Boundary Waters Treaty is bilateral, and the rest are multilateral. In terms of hydrographic focus, the Guaraní Aquifer Agreement relates to an aquifer and the others pertain to both surface water and groundwater. In terms of geographic location, the agreements are from every continent except Antarctica. The temporal range is vast, ranging from an agreement that is more than 100 years old, i.e., 1909 Boundary Waters Treaty, to one that was negotiated in 2010 and is not yet in force, i.e., the Guaraní Aquifer Agreement. The Volta River Convention focuses primarily on the establishment and structure of an institutional authority, whereas the Amazon Coopera-tion Treaty is more multi-faceted, and the 1909 Boundary Waters Treaty has become much more comprehensive over the last 106 years of its existence.

What follows is a sampling of some of the findings of our report.

amazon Cooperation treaty

The eight Amazonian countries that are Parties to the Amazon Cooperation Treaty, i.e., Bolivia, Brazil, Colom-bia, Ecuador, Guiana, Peru, Suriname, and Venezuela, in 1995, established the Amazon Cooperation Treaty Orga-nization (ACTO), which was implemented in 1998. Pursu-ant to its constitutive document ACTO through its sec-retariat may participate as an observer in meetings of UNFCCC bodies.19 ACTO’s relationship with the UNFCCC secretariat relates to capacity building, technical cooper-ation, identification of connected activities, and studies.

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guaraní aquifer agreement

All the Signatories to the Guaraní Agreement, i.e., Ar-gentina, Brazil, Paraguay, and Uruguay, are Parties to the Kyoto Protocol and are committed to using alternative sources of energy that do not emit high levels of GHGs.20 The Guaraní Aquifer Agreement is not yet in force. Two of the primary drivers behind the agreement were to map and develop the Guaraní aquifer and reduce green-house gas (GHG) emissions in light of climate change. In particular, adequate access to and conservation of un-derground water is of even greater value under climate change conditions because underground water does not evaporate as atmospheric temperature rises. Further-more, it was thought that the countries could generate geothermal energy from the Guaraní aquifer. The efforts made to reach the Guaraní Aquifer Agreement also set the groundwork for the joint Global Environment Fund (GEF)-UNEP Plata Basin Project. It is the first GEF inter-national watercourse project that is specifically meant to address climate adaptation, in addition to other trans-boundary issues.21 It is clear that climate change and the Guaraní Aquifer Agreement are inherently interconnect-ed.

murray-Darling agreement

In 2008, Australia established the Murray-Darling Basin Authority (MDBA) to manage the Murray-Darling Agree-ment. As provided in the Australian Water Act of 2007 in which the agreement is embedded, the MDBA developed a Basin Plan for managing the basin. The purpose of the Basin Plan includes giving effect to the UNFCCC to the extent it relates to the use and management of water re-sources in the basin.22 For example, the management ob-jectives outlined in Chapter 5 of the Basin Plan include ensuring “that water-dependent ecosystems are resilient to climate change and other risks and threats”. Chapter 4 of the plan describes measures to be taken in order to ad-dress risks to the availability of water resources, includ-ing risks related to climate change and its effects. MDBA does not formally deal directly with the UNFCCC secre-tariat, however. That is done by the relevant officials in the Australian government. MDBA officials interact infor-mally with relevant MEA secretariat officials in the con-text of international conferences and other international meetings.

volta river Convention

The Parties to the Volta River Convention, i.e., Benin, Burkina Faso, Cote d’Ivoire, Ghana, Mali and Togo, estab-lished the Volta Basin Authority (VBA) as the managing authority. The VBA is engaged in several efforts related to climate change. In 2013, a Transboundary Diagnos-tic Analysis undertaken by the UNEP-GEF Volta Project with respect to the Volta basin identified climate change as one of the main factors contributing to transbound-ary problems in the region. Consequently, the VBA es-tablished an Observatory for Water Resources and As-

sociated Ecosystems for the purpose of determining the current state of the basin through monitoring climate change, amongst other conditions. As part of the Obser-vatory, the VBA reached out to a variety of stakeholders and identified approximately 45 national NGOs as poten-tial participants. Another ongoing initiative that the VBA is involved with is the West African Science Service Cen-tre on Climate Change and Adapted Land Use (WASCAL). The German Federal Ministry of Education and Research initiated this program in order to establish, in collabora-tion with its West African partners, a hub of knowledge on “climate change and adapted land use in West Afri-ca.” By training graduate students, undertaking research, and setting up a competence center, the program is gen-erating knowledge and building capacity in the region to address present and future land management issues brought on by climate change and weather conditions.

Like many other managing authorities of regional and ba-sin agreements, the VBA does not interact directly with the UNFCCC secretariat. Its partners and the govern-ments of the Parties are in direct contact with that secre-tariat. Other regional and basin authorities such as those related to the Aral Sea, Mekong River, Nile River and Lake Titicaca participated in an October 2014 workshop in Ge-neva on climate change and water. In that same vein, the VBA participates in international conferences on climate change, such as the 2014 Fourth Annual Conference on Climate Change and Development in Africa (organized by the UN Economic Commission for Africa), which author-ities from other basins also attended.

1909 bounDary WaterS treaty

The 1909 Boundary Waters Treaty between Canada and the United States established the International Joint Commission (IJC) as the managing authority of the treaty. The treaty only contains one paragraph on pollution and, being over a century old, is understandably silent on cli-mate change. Notwithstanding this spare foundation, the IJC is involved in a number of forward-looking programs, including the International Water Initiative (IWI). In 2009, the IJC identified climate change and vulnerability as an “emerging issue” that requires attention through the IWI. The IJC directed that IWI boards include climate change in their strategic planning process. Some IWI boards reported that they were observing “climate variability” while others reported “noticeable trends.”23 The Interna-tional Upper Great Lakes Study prepared under the IWI reviewed climate trends (including modeling of climate scenarios on levels and outflows) and concluded that sci-entific consensus appears to indicate that “the border area may experience significant climatic changes in the coming decades.”24 Moreover, the environmental focus of the IJC has been significantly strengthened by subse-quent agreements, the most recent of which is the 2012 Protocol to the Great Lakes Water Quality Agreement, which specifically references climate change.25 It con-tains the goal of “coordinating efforts to identify, quanti-fy, understand and predict the climate change impacts on

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the quality of the Waters of the Great Lakes, and sharing information that Great Lakes resource managers need to proactively address these impacts.”26 These activities are nascent. Regarding the UNFCCC, as with many manag-ing authorities of regional and basin authorities, the IJC has not directly engaged with the UNFCCC secretariat. Rather, the governments of Canada and the United States deal formally with the secretariat and other aspects of the UNFCCC. The 1909 Boundary Waters Treaty is an ex-ample of a regional and basin agreement that has evolved to address threats posed by climate change.

ConCluSionS

Our study revealed an increasing appreciation of the need to protect watercourses and their ecosystems in order to achieve a broad range of goals, such as meeting basic hu-man needs and achieving economic and social progress. RBAs are paying increasing attention to the need to mit-igate climate change and to manage its impacts although activities related to this vary widely. By and large, the RBAs do not deal directly with UNFCCC bodies, leaving that to the governments of the Parties to their respective treaties. RBA officials and staff do participate in interna-tional workshops regarding climate change, however, and seem aware of the importance of climate change to their mandates. The breadth and variety of water agreements at the basin and regional level reflect their potential for playing a significant role in dealing with climate change. We examine the agreements in more detail in our full re-port, which is available for public review.

Daniel Magraw is a Senior Fellow with the Johns Hopkins Uni-versity School of Advanced International Studies. Andrea Mar-tinez is an Associate with the International Justice Initiative at the Johns Hopkins University School of Advanced International Studies. Elodie Emanuel is an Analyst with the International Justice Initiative at the Johns Hopkins University School of Ad-vanced International Studies.

1 Edith Brown Weiss, International Law for a Water-Scarce World 168 (Martinus Nijhoff Publishers 2013).2 United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 107 (entered into force Mar. 21, 1994), http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf. 3 The study was sponsored by the United Nations Environment Pro-gramme (UNEP) and was conducted from May to September 2014.4 daniel B. magraW et al., Unep, freshWater laW and governanCe: gloB-al and regional perspeCtives for sUstainaBility (2014), http://www.unep.org/delc/Portals/119/ForumBasinOrganization/water-law-gover-nance-study.pdf.5 Tratado de Cooperación Amazónica [Amazon Cooperation Treaty], July 3, 1978, Bol.-Braz.-Colom.-Ecuador-Guy.-Peru-Surin.-Venez., 1202 U.N.T.S. 70, http://otca.info/portal/admin/_upload/tratado/The_Amazon_Cooperation_Treaty.pdf. 6 Convention on Cooperation for the Protection and Sustainable Use of the Danube, June 29, 1994, O.J.L. 342, http://www.icpdr.org/main/icpdr/danube-river-protection-convention. 7 Acuerdo Sobre el Acuífero Guaraní [Guarani Aquifer Agreement], Arg.-Braz.-Para.-Uru., Aug. 2, 2010, Ministerio de Relaciones Exteriores [Uru-guayan Ministry of Foreign Affairs], http://www.internationalwaterlaw.org/documents/regionaldocs/Guarani_Aquifer_Agreement-Spanish.pdf. There is no official English-language version of this agreement. An unofficial translation can be found at http://www.internationalwater-law.org/documents/regionaldocs/Guarani_Aquifer_Agreement-En-

glish.pdf (Luiz Amore, trans. Aug. 2, 2010). 8 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin, Apr. 5, 1995, 2069 U.N.T.S. 3, http://ocid.nacse.org/tfdd/tfdddocs/546ENG.pdf. 9 The Murray-Darling Basin Agreement, Jun. 24, 1992, Water Act 2007, Schedule 1 (Austl.), http://www.comlaw.gov.au/Details/C2014C00194/Html/Text#_Toc390870752. 10 Convention on the Status of the Volta River and the Establishment of the Volta River Basin Authority, Jan. 19, 2007. This treaty has not yet been published in a traditional treaty source, but it is available on the Volta Basin Authority website, http://www.abv-volta.org:10000/abv2/about/mandats-et-objectifs/convention-en-version.11 Treaty Between the United States and Great Britain Relating to Bound-ary Waters, and Questions Arising Between the United States and Can-ada, Jan. 11, 1909, U.S.-Can., 36 Stat. 2448, T.S. 548, http://www.ijc.org/files/tinymce/uploaded/Boundary%20Waters%20Treaty%20of%201909.pdf. 12 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 1673 U.N.T.S. 57, 28 I.L.M. 657 (entered into force May 5, 1992), http://www.basel.int/Por-tals/4/Basel%20Convention/docs/text/BaselConventionText-e.pdf. 13 Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, 31 I.L.M. 818 (entered into force Dec. 29, 1993), http://www.cbd.int/doc/legal/cbd-en.pdf. 14 Convention on the Conservation of Migratory Species of Wild Ani-mals, June 23, 1979, 1651 U.N.T.S. 333, 19 I.L.M. 15 (entered into force Nov. 1, 1983), https://treaties.un.org/doc/Publication/UNTS/Volume%201651/v1651.pdf. 15 Convention on Wetlands of International Importance especial-ly as Waterfowl Habitat, Feb. 2, 1971, T.I.A.S. 11084, 996 U.N.T.S. 245 (entered into force Dec. 21, 1975), http://ramsar.rgis.ch/cda/en/ramsar-documents-texts-convention-on/main/ram-sar/1-31-38^20671_4000_0__. 16 Stockholm Convention on Persistent Organic Pollutants, May 22, 2001, 2256 U.N.T.S. 119, 40 ILM 532 (entered into force May 17, 2004), http://chm.pops.int/Portals/0/download.aspx?d=UNEP-POPS-COP-CONV-TEXT.En.pdf. 17 United Nations Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, June 17, 1994, 1954 U.N.T.S. 3, 33 I.L.M. 1328 (entered into force Dec. 26, 1996, http://www.unccd.int/Lists/SiteDocumentLibrary/conventionText/conv-eng.pdf. 18 Convention on the Law of the Non-navigational Uses of International Watercourses, May 21, 1997, G.A. Res. 51/229, U.N. Doc. A/RES/51/229 (1997), 36 I.L.M. 700 (entered into force Aug. 17, 2014), http://legal.un-.org/ilc/texts/instruments/english/conventions/8_3_1997.pdf. 19 amazon Cooperation treaty organization, strategiC aCtion plan 2004-2012, at 13-18 (2004), http://iwlearn.net/iw-projects/2364/reports/sap-document/view. 20 roBerto e. kirChheim, apliCaCión del enfoqUe eCosistémiCo en la gestión de los reCUrsos hídriCos – estUdio de Caso soBre la proteCCión amBiental y desarrollo sosteniBle del sistema aCUífero gUaraní 2 (Griselda Castagnino, n.d.).21 gloBal environmental faCility, from CommUnity to CaBinet: tWo deCades of gef aCtion to seCUre transBoUndary river Basins and aqUifers 38-39 (2012).22 The Murray-Darling Basin Agreement, supra note 9, at pt. 1, § 4 (“rele-vant international agreement”).23 international Joint Commission, the international Watersheds initiative: implementing a neW paradigm for transBoUndary Basins 11 (2009), http://www.ijc.org/files/tinymce/uploaded/ID1627.pdf.24 Id. 25 Protocol Amending the Agreement Between the United States of America and Canada on Great Lakes Water Quality, 1978, as Amended on October 16, 1983 and on November 18, 1987 (Sept. 7, 2012), http://www.epa.gov/glnpo/glwqa/20120907-Canada-USA_GLWQA_FINAL.pdf.26 Id. at annex 9, pt. A.

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Assessing Law, Resilience and Governance in Basin Scale Water Systems Facing Changing Climate: The Adaptive Water Governance Project

Barbara Cosens, Lance Gunderson, and Brian Chaffin

Legal systems, while establishing boundaries and foster-ing economic and social goals, are nevertheless inher-ently adaptable and responsive to new challenges. In the context of climate change, law provides a pragmatic per-spective on how we might alter water governance to bet-ter prepare for accelerated rates of change and surprise as the water-related impacts of climate change unfold. The Adaptive Water Governance Project (AWG Project)1 is a synthesis project with the National Socio-Environ-mental Synthesis Center under funding from the National Science Foundation that was borne out of the first con-ference bringing together legal and resilience scholars in November 2010.2 The AWG Project explores the role of law in achieving water governance that is capable of fa-cilitating management, adaptation and transformation in the face of climate change. It builds on the work of resil-ience scholars, proponents of adaptive governance and climate scientists, by asking four questions concerning the role of law in adaptive water governance: (1) What is the role of law in setting boundaries by identifying ap-proaching thresholds or tipping points in a resource sys-tem? (2) What is the role of law in creating either a distur-bance or window of opportunity in which adaptive forms of governance may emerge? (3) What is the role of law in presenting barriers to adaptive forms of governance? And (4) what is the role of law in actively facilitating adaptive forms of governance?

To answer these questions, the AWG Project assessed the resilience of six North American water basins (Figure 1); Anacostia,3 Columbia,4 Klamath,5 Everglades,6 Middle Rio Grande,7 and Platte.8 The results of these six assessments and an introductory article were published in January 20159 in the first Natural Resources & Environmental Law Edition of the Idaho Law Review. This article provides a brief summary of the initial AWG project findings.

reSilienCe anD aDaptive governanCe: DefinitionS

A major challenge of interdisciplinary research is to de-velop a common language and understanding of concepts to facilitate communication in a collaborative project.10 The following paragraphs describe the understanding of resilience and of adaptive governance used by the AWG team.

Resilience: Resilience is a property of complex systems such as ecosystems or even human brains. Rather than displaying a continuous interaction of structure and function around one particular configuration or state, complex systems can organize into discrete stable states or regimes, each with inherent range of variability. Mul-tiple alternative regimes are possible for systems,11 and, in the case of ecosystems, each ecological regime provides different ecosystem services. Once a regime shift oc-curs, it may be difficult to recover (or restore) the original structure and function (e.g. eutrophication of a lake may lead to persistent hypoxic zones).12 Environmental gov-ernance undertaken with an understanding of resilience must, therefore, account for non-linear, abrupt change as well as obstinacy and inertia to change.

Adaptive Governance: Governance refers to the means through which political actors choose goals and make decisions and the means through which they take action to achieve those goals; thus, governance includes not only the laws, regulations, policies, and processes of gov-ernment, but the formal and informal institutional frame-works in which government acts and private actors take a role in the political process as well as the societal norms that influence policy decisions.13 Adaptive Governance is simply governance that allows adaptive processes to emerge.14 Adaptive Governance is appropriate when the system is complex (e.g. lies within multiple jurisdictions), the system faces change with a degree of uncertainty (e.g. climate change) and the system is approaching a poten-tial threshold or regime shift as evidenced by increasing conflict over resources (e.g. litigation), increasing scarci-

Figure 1: North American study basins.

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ty, or actual identification of an approaching threshold by law or science (e.g. listing of species).

The AWG project in general assessed governance needs in six North American river basins within the context of three potential governance trajectories: (1) maintenance of the current benefits of the system; (2) adaptation to reduce vulnerability resulting from loss of system resil-ience; and (3) navigation of transformation in the face of either an inevitable or desired regime shift. We found that most of our North American basins fall into the sec-ond category except for the Middle Rio Grande which may be undergoing an ecological transition in the face of extended drought and the Anacostia which has already transitioned to an urban basin and efforts to restore wa-ter quality and aesthetic amenities must take place within an engineered system.

the role of laW in the governanCe of Water baSinS in a Changing Climate

Considerable scholarship has developed through empir-ical observation of the emergence of adaptive forms of governance to solve common pool problems in the face of uncertainty. Rather than reproduce or critique those frameworks, the AWG Project sought to extract those as-pects relevant to legal systems by asking: what role may the law play in either preparing a system for adaptive governance or facilitating the adaptive governance pro-cess? For further exploration of our basin assessments in the context of the three governance regimes, we refer the reader to the Spring 2015 NREL Edition of the Idaho Law Review. The following paragraphs discuss key aspects of our findings in the context of each of the six basins.

anaCoStia river WaterSheD

The Anacostia River runs through Washington, D.C. be-fore entering the Potomac River.15 The watershed, which extends into Maryland, is largely urban and is home to a million or so residents. As a result of extensive water pol-lution from land use changes and other sources, the wa-ters of the river are highly degraded. Thus, the Anacostia has transitioned from a natural to an urban watershed in which restoration efforts will require intensive human intervention. One adaptive response has been efforts at restoring water quality under the Clean Water Act. Im-plementation of this act and subsequent litigation has led to the emergence of local, watershed organizations, thus law has played the role of a disturbance in this watershed with adaptive efforts arising in response to litigation. The Anacostia governance structures are multi-scalar across space (i.e. federalist), and are embedded in larger scale restoration programs (Chesapeake Bay). This provides much of the knowledge and funding necessary for local capacity building and response. Increased resources for the emerging local organizations will be necessary to enhance adaptive capacity as the watershed responds to climate change.

Columbia river baSin

The might of the Columbia River in the Pacific Northwest was tamed during the first half of the 20th century by large federal investments in dam infrastructure to achieve the social objectives of flood control, navigation, irrigation and hydropower.16 Thus, regional investment by larg-er scale levels of government has led to enhanced social benefits. By the later half of the century, the assertion of rights by Native American tribes led to their engagement in governance of fisheries. This major capacity building by formerly marginalized communities was made possible by the recognition of rights in federal court and funding for salmon recovery as a result of the Endangered Species Act. However, there has been a lag in change in dam op-erations to reflect the new voice at the table. Economic and social development has been largely successful, but its achievement through optimization renders the basin vulnerable to changing climate. While the Endangered Species Act has led to capacity building and influenced governance, it has also constrained the flexibility of man-agers to meet recovery goals of salmonid populations. In the Columbia River, the scale of governance extends to the international level. Current renegotiations of the treaty with Canada may be an opportunity for increasing management flexibility.

floriDa everglaDeS

The Florida Everglades is a biologically rich, subtropical wetland social-ecological system that supplies water to about 8 million people, a multi-billion dollar agriculture enterprise, and the conservation of biodiversity.17 Over the past century, the system has successfully promoted economic and social development. But like the Columbia River, this has come at an environmental cost measured in the listing of a dozen endangered species and the imper-iled Everglades National Park. As a result, the Everglades Restoration Act of 2000 calls for an adaptive manage-ment approach to recovering this vast ecosystem. The Everglades system has many of attributes necessary for adaptive governance such as identified thresholds, the authority to experiment (e.g. adaptive management), and a diversity of institutions. Implementation of adaptive governance, however, is hindered by overly prescribed planning and litigation – leaving the social-ecological system of the Florida Everglades very constrained in its capacity to adapt to climate change. In both the Columbia River Basin and the Florida Everglades, rigid management at higher levels and failure to balance stability of eco-nomic investment with flexibility to adjust management measures have formed impediments to implementation of a more flexible adaptive governance.

klamath river baSin

The Klamath River Basin in south central Oregon and Northern California has been the stage for a classic western water conflict between Native American Tribes, commercial and recreational fishing interests, and envi-ronmental groups on one side, and irrigators relying on a

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federal reclamation project on the other.18 The basin’s ge-ography consists of an arid upper basin with rivers, lakes and marshes supporting irrigated agriculture and a lower basin that drains mountainous, forested terrain and pro-vides significant salmon spawning habitat. Between the upper and lower basin, the drainage necks down to pass through the Cascade Mountain Range, while crossing the state line between Oregon and California and providing ideal sites for the development of hydroelectric dams—four of which were developed in the mid-20th century, completely blocking fish passage to the upper basin. Al-though conflict over water and fish management in the Klamath Basin reached a stage of public protest in 2001, the continued role of law, in particular the Endangered Species Act and the assertion of Native American re-served water rights, has since served as the catalyst for emergence of local adaptive solutions. In a “window of opportunity” created by legal triggers such as relicens-ing of the Klamath hydropower projects and resolution of Native American water rights, basin communities began to shape a new direction based on collaboration and oth-er aspects of adaptive governance. These solutions, how-ever, remain vulnerable if not institutionalized formally through the legal process.

miDDle rio granDe WaterSheD

The Middle Rio Grande in central New Mexico runs from Cochiti Dam near Santa Fe to Elephant Butte Reservoir south of Albuquerque.19 Irrigation water rights are held by Native American Pueblos, communities that date to Spanish settlement and current Anglo-Americans. The water is regulated to provide water downstream to both Texas and Mexico, but past management has been mod-ified to protect endangered aquatic species in the river. The interaction of changing social and ecological condi-tions including: over-allocation of water pursuant to the prior appropriation doctrine; lax management including lack of adjudication to determine relative water rights; development of groundwater hydrologically connect-ed to the river to serve growing urban populations with a lag time yet to be fully felt in the surface flows; sep-aration of the river from the floodplain; and extended drought due to climate change that is not only reducing water supply but altering the upland forest ecosystem and fire regime—have all combined to place the Middle Rio Grande system very close to a threshold. Rigid polit-ical adherence and economic dependency on the existing development places the watershed’s society in a vulner-able position. Transition without economic dislocation will require local leadership and capacity building as well as federal investment to restore some of the watershed’s ecologic capacity to adapt and to reduce the degree of water dependency.

platte river baSin

The central Platte River basin in south-central Nebraska has evolved since pre-European settlement, to a system of water laws, policies, and infrastructure designed to meet social needs of irrigation and flood control.20 The

post-European development has come at a high eco-logical cost to the system including aquatic and riverine habitat degradation and the listing of several endangered species. Recent responses to ecological degradation in-clude a tri-state and federal collaborative Platte River Recovery and Implementation Program with the capacity to coordinate an adaptive approach to system-wide eco-logical restoration. The Platte River Recovery Program is a first step towards applying an adaptive management approach to restoration at the social-ecological system scale. Implementation of adaptive management can be operationalized through nesting policy in a resilience framework coordinated across scales and different juris-dictions.

All of the basin assessments illustrate an increasing at-tention to public input and participation in resource de-cision making. The recognition of treaty-based water and fishing rights of Native Americans in both the Klamath and Columbia Rivers have led to increased participato-ry capacity from formerly marginalized populations. The emergent collaborative process among irrigators and Na-tive American tribes in the Klamath basin illustrates both the change in power distribution and participatory ca-pacity resulting from litigation and thus its role in open-ing a window to collaborative processes. This, in turn, has led to consideration of changes in basin management that may enhance general resilience in the face of climate change by focusing attention on the restoration of im-paired ecosystem services.

SyntheSiS

Through assessment of these six river basins, the AWG Project has developed an approach to inquiry into the role of law focused on three aspects of governance: structure, capacity, and process.

Structure: Structure refers to the multi-level, multi-sca-lar response needed in the face of uncertainty and re-quires attention to polycentricity (i.e. overlapping au-thorities), 21 nesting across spatial scales (e.g. federalism);

22 subsidiarity (used in its original meaning to further in-dividual empowerment within the context of a govern-ment that plays “a significant role in fostering the condi-tions for its implementation”23), and integration (referring to both the concept of integrating water resources man-agement across sectors that influence water allocation, quality and land development, and to integration of reg-ulation of physically connected resources such as ground and surface water)24.

The relation among federal, state, tribal and local govern-ments in the United States lends itself to a structure that is conducive to this type of multi-level, multi-scalar re-sponse. Thus we see the results of federalism with strong investment of federal dollars in water development, and a regulatory role in both water quality in all of our basins, and a major influence on water management from federal species protection in the Columbia, Klamath, Middle Rio Grande, Platte and Everglades. We also see that elevating

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all issues to the federal level can create a rigidity trap. The attempts at restoration of the Everglades system in-cluding implementation through adaptive management illustrates that rigid attention to hierarchy and control at a higher, external level, may present a barrier to adapt-ability. In contrast, the Klamath basin regionally-based collaboration among tribal and irrigation interests illus-trates the federal role in providing both a forum for rec-ognition of formerly marginalized rights as well as facili-tation and resources for local resolution of water scarcity issues.

Capacity: Capacity encompasses both the resources and authority to respond to change (adaptive capacity),25 and the right and resources to have a role in decision mak-ing (participatory capacity).26 While attempts have been made to implement adaptive management in both the Co-lumbia River Basin and the Florida Everglades, rigid man-agement at higher levels and failure to balance stability for economic investment with flexibility for adjustment of management measures have formed impediments to implementation.

All of the basin assessments illustrate an increasing atten-tion to public input and participation in resource decision making. The recognition of treaty-based water and fish-ing rights of Native Americans in both the Klamath and Columbia River assessments have led to increased partic-ipatory capacity from formerly marginalized populations. The emergent collaborative process among irrigators and Native American tribes in the Klamath basin illustrates both the change in power distribution and participatory capacity resulting from litigation and its role in opening a window to collaborative processes. This in turn has led to consideration of changes in basin management that may enhance general resilience in the face of climate change by focusing attention on the restoration of impaired eco-system services.

Process: The basin assessments suggest that the tension between the need for flexibility in the face of change and the need for economic stability presents a major barrier to adaptive governance. The AWG Project explores pro-cess elements in administrative law as a means to resolve this tension relying primarily on elements of good gover-nance as an essential factor of societal resilience.27 So-cial resilience requires that the processes used to achieve adaptive governance incorporate elements of “good gov-ernance” focused on equity and justice, captured through the lens of legitimacy and inclusiveness.28 Inclusiveness is addressed by participatory capacity discussed above. Legitimacy is addressed through processes that place bounds on the exercise of discretion in implementation of flexible management; that consider both biophysical and socio-economic timeframes in setting periods for adjustment; that establish processes to ensure account-ability in adjustment of goals; and that provide an avenue for broad, inclusive public input.29

These process elements of “good governance” in associ-ation with adaptive governance are the least well-devel-

oped in our study basins. The origin of adaptive man-agement in scientific literature has led to less attention to the impact of flexibility and adjustment on society. Nevertheless, collaborative processes emerging through settlement of Native American water rights in the Klam-ath, international treaty review in the Columbia, and wa-tershed organizations in the Anacostia shed some light on both the value and pitfalls associated with inclusive collaboration. The development of tools for integrating processes of good governance into adaptive governance is one of the recommendations the Adaptive Water Gov-ernance project will contribute.

ConCluSion

The assessments of six North American water basins il-lustrate that with the onset of climate change some of the water supplies relied on in North America are close to irreversible thresholds that, once crossed, will alter availability of natural ecosystem services and the ade-quacy of engineered infrastructure, potentially impair-ing existing water-based economies. The AWG project goal is to identify the legal tools necessary for adaptive governance, but it is also clear from the basin assess-ments that major investment in conservation, green in-frastructure, ecological restoration, and re-operation of dams and flood control infrastructure,30 will be necessary to increase the adaptability of water-based economies in the face of climate change. Once major investment occurs in water infrastructure, it tends to be highly re-sistant to change. Such inertia is due in part to strong incentives to tinker rather than transform infrastructure, and economic and cultural dependency on extant laws and institutions. Thus, while the massive investment in water infrastructure of the 20th Century vastly improved the lives of several generations of North Americans, the legacy effect is to lock in future generations to infra-structure that is obsolete in terms of the water supply and demand of the coming century, the values of the peo-ple who live in these basins, and thus the future econom-ic stability of water dependent communities. In this call for investment, we echo the recent recommendations from the Johnson Foundation in its report on a six-year study of U.S. water systems.31 It is clear that the ability of those benefiting from the status quo to stall change through litigation and political channels and to obtain federal level subsidies for continued optimization may be moving some basins perilously close to a threshold (e.g. Everglades). Re-analysis of the role of federal investment in water development away from human designed opti-mization and toward flexibility and experimentation will be key factors in developing adaptive capacity. Nothing short of major investment in re-engineering these sys-tems to modernize them for the 21st Century and a pro-cess that recognizes the ongoing need for innovation and investment will suffice.

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Barbara Cosens holds an MS in Geology from the University of Washington, a JD from UC Hastings and an LLM in Environ-mental Law from Lewis and Clark Law School. She is a Professor with the College of Law and interdisciplinary Waters of the West Program at the University of Idaho. Please direct all questions or comments about this article to bcosens@uidaho.edu.

Lance Gunderson holds a Ph. D. in Environmental Engineering Sciences from the University of Florida. He is a Professor with the Department of Environmental Sciences at Emory University and is Chairman of the Board of the Resilience Alliance.

Brian Chaffin holds a Ph.D. in Geography from Oregon State University. He is a National Academies-NRC Postdoctoral Asso-ciate at the National Risk Management Research Laboratory of the United States Environmental Protection Agency in Cincin-nati, Ohio. He also recently accepted a faculty position in water policy with the College of Forestry and Conservation at the Uni-versity of Montana.

1 The Adaptive Water Governance Project is a synthesis project on So-cial-ecological System Resilience, Climate Change, & Adaptive Water Governance, co-chairs Cosens, B. and Gunderson, L., with the National Socio-Environmental Synthesis Center (SESYNC) under funding from the National Science Foundation DBI-1052875, see http://www.sesync.org/project/water-people-ecosystems/adaptive-water-governance. The authors would like to thank the people at SESYNC for their support and encouragement through this project.2 The Law for Social-Ecological Resilience Conference at Stockholm University, Stockholm (Nov. 17-19, 2010), information available at http://www.stockholmresilience.org/21/news--events/general-news/11-1-2010-the-law-for-social-ecological-resilience.html.3 Craig Anthony (Tony) Arnold et al., The Social-Ecological Resilience of an Easter Urban-Suburban Watershed: the Anacostia River Basin, 51 idaho l. rev. 29 (2014). 4 Barbara Cosens & Alexander Fremier, Assessing System Resilience and Ecosystem Services in Large River Basins: A Case Study of the Columbia River Basin, 51 idaho l. 91 (2014)5 Brian Chaffin et al., Resilience, Adaptation, and Transformation in the Klamath River Basin Social-Ecological System, 51 Idaho L. Rev. 157 (2014)6 Lance Gunderson et al., Escaping a Rigidity Trap: Governance and Adaptive Capacity to Climate Change in the Everglades Social Ecologi-cal System, 51 idaho l. rev. 127 (2014).7 Melinda Harm Benson et al., Water Governance Challenges in New Mexico’s Middle Rio Grande River Valley: A Resilience Assessment, 51 idaho l. rev. 195 (2014).8 Hannah Birge et al., Social-Ecological Resilience and Law in the Platte River Basin Platte River, 51 idaho l. rev. 229 (2014).9 The Natural Resources & Environmental Law Edition of the Idaho Law Review is a peer reviewed law journal that welcomes interdisciplinary articles and encourages submission of articles of 10,000 words or less.10 allen f. repko, interdisCiplinary researCh: proCess and theory (2d ed. 2011).11. Note, we also use the term regime shift in the context of social sys-tems, and although collapse and transformation of social systems is documented, there is not (at least at this point) a clearly defined finite set of alternative states.12. See generally C. S. Holling, Resilience and Stability of Ecological Sys-tems, 4 Annual Review of Ecology and Systematics 1 (1973); panarChy: Understanding transformations in systems of hUmans and natUre (Lance H Gunderson & C.S. Holling, eds., 2002); Brian Walker & David Salt, re-silienCe thinking: sUstaining eCosystems and people in a Changing World (2006). 13 Dave Huitema, et al., Adaptive Water Governance: Assessing the In-stitutional Prescriptions of Adaptive (Co-) Management from a Gover-nance Perspective and Defining a Research Agenda, 14(1) Ecology and

Society 26 (2009), available at http://www.ecologyandsociety.org/vol14/iss1/art26/ (citing Jon Pierre & B. Guy Peters, governanCe, politiCs and the state (2000); Patsy Healey, Transforming Governance: Challeng-es of Institutional Adaptation and A New Politics of Space, 14 European Planning Studies 299-320 (2006).14 See generally, Brian Chaffin, et al., A Decade of Adaptive Governance Scholarship: Synthesis and Future Directions, 19(3) Ecology and Society 56 (2014).15 See Arnold et al., supra, note 3. 16 See Cosens & Fremier, supra, note 4.17 See Gunderson et al., supra, note 6.18 See Chaffin et al., supra, note 5. 19 See Harm Benson et al., supra, note 7.20 See Birge et al., supra, note 8.21 Huitema, et al., supra, note 13.22 Vincent Ostrom, et al., The Organization of Government in Metropol-itan Areas: A Theoretical Inquiry, 55 American Political Science Review 831-842 (1961); polyCentriC governanCe and development: readings from the Workshop in politiCal theory and poliCy analysis (Michael D. McGinnis ed., 1999); Huitema, et al., supra, note 13.23 Robert K. Vischer, Subsidiarity as a Principle of Governance: Beyond Devolution, 35 ind. l. rev. 103, 110 (2001).24 Barbara Cosens & Craig Stow, Resilience and Water Governance: Ad-dressing Fragmentation and Uncertainty in Water Allocation and Water Quality Law, soCial-eCologiCal resilienCe and laW (Ahjond Garmestani & Craig Allen eds. 2014).25 Claudia Pahl-Wostl, A Conceptual Framework for Analyzing Adaptive Capacity and Multi-level Learning Processes in Resource Governance Regimes, 19 gloBal environmental Change 354-365 (2009).26 Huitema, et al supra note 13; G.T. (Tom) Raadgever et al., Assessing Management Regimes In Transboundary River Basins: Do They Support Adaptive Management?, 13(1) eCology and soCiety 14 (2008), available at http://www.ecologyandsociety.org/vol13/iss1/art14/; Susan S. Hanna, Institutions for Managing Resilient Salmon (Oncorhynchus Spp.) Eco-systems: the Role of Incentives and Transaction Costs, 13(2) eCology and soCiety 35 (2008), available at http://www.ecologyandsociety.org/vol13/iss2/art35/27 Our initial thoughts on these areas of inquiry for analyzing legal sys-tems are published at Barbara Cosens, et al., Identifying Legal, Eco-logical and Governance Obstacles, and Opportunities for Adapting to Climate Change, 6(4) sUstainaBility 2338-2356 (2014), available at http://www.mdpi.com/2071-1050/6/4/2338. This article continues the de-velopment of this approach.28 Thomas M. Franck, Legitimacy in the International System, 82 am. J. int’l l. 705 (1988); Daniel Bodansky, The Legitimacy of Internation-al Governance: A Coming Challenge for International Environmen-tal Law? 93 am. J. int’l l. 596-624 (1999), available at http://dx.doi.org/10.2307/2555262; Daniel C. Esty, Good Governance at the Supra-national Scale: Globalizing Administrative Law, 115 yale l.J. 1490 (2006); Un World Water assessment program, Water for people, Water for life: the United nations World Water development report 370 - 384 (2003), avail-able at http://unesdoc.unesco.org/images/0012/001295/129556e.pdf; Barbara Cosens, Legitimacy, Adaptation, and Resilience in Ecosys-tem Management, 18(1) eCology and soCiety article 3 (2013), available at http://www.ecologyandsociety.org/vol18/iss1/art3/ 29 Barbara Cosens, Legitimacy, Adaptation, and Resilience in Ecosystem Management, 18(1) eCology and soCiety 3 (2013), available at http://www.ecologyandsociety.org/vol18/iss1/art3/30 Brian D. Richter and Gregory A. Thomas, Restoring Environmental Flows by Modifying Dam Operations, 12(1) eCology and soCiety 12 (2007), available at http://www.ecologyandsociety.org/vol12/iss1/art12/31 the Johnson foUndation at Wingspread, navigating to neW shores: seizing the fUtUre for sUstainaBle and resilient U.s. freshWater resoUrCes (2014), available at http://www.johnsonfdn.org/sites/default/files/reports_publications/CNW_NavigatingToNewShoresFullReport.pdf

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NOTES & ACKNOWLEDGEMENTS

This third volume of the Special Edition Newsletter Series on Water was a joint effort between the ABA Section of International Law (SIL) and the ABA Section of Environment, Energy, and Resources (SEER) through their four constituent committees: the SIL International Environmental Law Committee (IELC), SEER International Environmental and Resources Law Committee (IERLC), SEER Water Resources Committee, and SIL Europe Committee. Volunteers from each of these committees served as the Editorial Team for this newsletter and provided invaluable expertise during the editing process. Special thanks to Anna Mance, Editor of the previous two publications—Volume 1: Water: Global Perspectives (Summer 2014) and Volume 2: Water: Regional Perspectives (Fall/Winter 2014). SIL IELC Co-Chairs Kim Smaczniak and Renee Martin-Nagle also went above and beyond in reviewing each article and providing feedback in the editing process.

As an introduction for new readers, the SIL IELC serves as a forum for lawyers from private practice, industry, non-profits, academia and government to explore developments in international environmental law and their implications for law, diplomacy, scholarship, and legal education. We also coordinate with other SIL committees to explore the relationship between our field and other legal specialties such as international human rights law and international energy and natural resources law. We also partner with rele-vant committees in other ABA Sections, particularly the SEER IERLC. Special thanks to the SEER Water Resources Committee and the SIL Europe Committee for being new co-sponsors for this third volume.

Reflecting the growing importance of water in a changing world, the Winter 2015 Issue of the SIL International Law News will have a theme of “Water and Climate Change.” Proposals will be accepted until October 1, 2015. For more information, please contact lisa.comforty@americanbar.org.

We encourage you to get involved with the ABA and join us. For more information, please contact the 2014-15 Co-Chairs of our committees:

SIL IELC: Kim Smaczniak - kimsmaczniak@gmail.com Renee Martin-Nagle - martin-nagle@eli.org

SEER IERLC: Andrew Schatz - andrew.schatz@gmail.comR. Juge Gregg - jugegregg@gmail.com

SEER Water Resources Committee:David Johnson - djohnson@cap-az.comJonathan Schutz - jschutz@mwjlaw.com

SIL Europe Committee:Elena Bojilova - edbojilova@jonesday.comMattia Colonnelli de Gasperis - mcolonnelli@colonnellilaw.comPat English - pat.english@mop.ie

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