Water quality and availability

PART III Water 14 WATER QUALITY AND AVAILABILITY Jeremy J. Schmidt Common sense once held that running water purified itself. That idea, like the notion that streams are nature’s sewers, was wrong. Yet, these types of ideas have often found their way into customary ways of sharing water and even into formalized legal traditions that affect water quality and availability (Benidickson 2007). Interestingly, responses to these faulty ideas frequently reveal a disjuncture between theories about why we need more carefully crafted water policies and the history of actual decisions. In theory, we might expect that, as pressure on water increases, policies would become more restrictive. Yet, history reveals the opposite: water policies often become less restrictive in precisely these circumstances (Rose 1990). Why is this? What norms, or rules of right conduct, support such a response to pressures on water? Further, what do these norms imply for moral goods or harms that result from decisions that affect who gets water, when, how much, and of what quality? This chapter examines ethical aspects of policies affecting water quality and availability. It begins by introducing key ideas that inform a growing literature on water ethics, a field that examines the ethical aspects of water management and policy while also examining what the practical demands of water management and policy imply for environmental ethics (see Schmidt and Peppard 2014). This chapter then considers how existing rights and practices for making water available reflect different ways of reasoning about the ends and aims of water use decisions. From there, it examines how decisions about water quantity intersect with considerations of water quality and the measurements and practices designed to help ensure the health of water for different purposes – from maintaining safe drinking water to ensuring sufficient oxygen content in rivers for fish and other aquatic species. One conclusion that will be drawn is that water policies often create ethical dilemmas in attempts to solve others. That is, policies that may be harmful for some individuals, groups, other species, or the environment may nevertheless be good for others. They may even create ethical obligations as the latter become accustomed to patterns of water use. As a consequence, understanding the ethical aspects of policies affecting water availability and quality requires close attention to the cultural norms and practices that different policies foster or proscribe, and not only an examination of the principles used to justify policy. Good Water, Now Many domains of public policy affect water, such as agriculture, energy, forestry, urban planning, and public health. One important interconnection that water policy has with other policy domains is that water quality is intractably linked to water availability. Which is to say, it is not DOI: 10.4324/9781315768090-18 157 Jeremy J. Schmidt sufficient to simply have water available if it is not useable. Many water injustices, such as those regarding lead poisoning in Flint, Michigan, are of this type (Pauli 2019). The same holds true in the other direction. Good water needs to be available at certain times and places because water requirements are often time-sensitive and vary according to specific needs: bodily maintenance, crop production, sanitation, ecosystem function, and so on. Further, there is often no substitute for water. In short, we need good water, now. Thinking about these interlinked domains requires thinking broadly about policy. In this regard, Mark Sagoff (2004, p. 14) has argued that the point of democratic, political deliberation is to “…figure out how to classify a problem and then on what principle society should respond to problems of that kind.” Often, however, water problems are of several kinds. For instance, pollution from synthetic estrogen in waterways – a consequence of pharmaceutical forms of birth control – affects the abundance and biomass of fish (Kidd et al. 2014). Addressing this form of pollution is not just an ecological problem. It is also one of respecting the rights of women to reproductive choice. What is required in such cases is an appreciation of the role of judgment in public policy. It is not simply a matter of applying general principles to specific problems, a model ethicists refer to as applied ethics but which is increasingly seen as inadequate because it does not account for how people actually reason in complex situations (Hoffmaster and Hooker 2009). Judgment, by contrast, is a skill that we learn through practice with others (Arendt 1982). Despite the fact that water challenges are perennial, Michael Nelson (2003) argues that water has persisted in a “metaphysical blindspot” in environmental ethics. Part of this was due, in Nelson’s view, to an imagination and subsequent ordering of nature that treated complex social and ecological relationships in discrete, atomistic terms. One implication of Nelson’s arguments is that an atomistic view of water presents problems both physically and socially – both materially and morally – because so many relationships among biological life forms and social forms of life are interdependent with water. For instance, water is critical to biogeochemical processes at scales from individual cells to global nutrient balances and atmospheric climate interactions that are often interlinked and not easily or accurately separated into discrete categories (Berner and Berner 1987). In other words, water is the “bloodstream of the biosphere” (Ripl 2003). Likewise, anthropologists argue that water is a “total social fact” because actions that affect water in one area of social life frequently affect many other domains – religious, economic, political, and institutional (Orlove and Caton 2010). For example, in 1992, water experts met in Dublin to draft recommendations for the 1992 Earth Summit in Rio de Janeiro. One of the Dublin Principles (1992) stated that water had an economic value in all of its competing uses. As this was applied to international development policies in the 1990s, many people objected to its total implications for other domains of social life, from religion to human rights (Sultana and Loftus 2012). Once we recognize water policy and management challenges as combinations of many kinds of problems, it becomes evident that the ethical implications of policies are also entangled with longer histories of social norms, institutions, laws, and policies that have co-evolved alongside the complex social and ecological relationships that affect hydrological systems (Whiteley et al. 2008). These contexts mean that issues of equity are tied to specific places and that ethical considerations should be understood through gaining insight into existing practices (Ingram et al. 1986). This often also requires philosophical investigation because “the rules and regulations governing the use of water stem from legal water doctrines which themselves stem from the philosophies of law, equity and justice” (Tisdell 2003, p. 415). This again reaffirms that water ethics are not primarily about applying general or abstract principles to specific cases, but of judging which principles are relevant to, and applicable within, which contexts (Schmidt and Shrubsole 2013). There are now several compendiums and reviews on examining the interplay between principles and practice in water ethics (Brown and Schmidt 2010, Ziegler and Groenfeldt 2017). 158 Water Quality and Availability Before considering ethical aspects of water availability and quality, it is important to remark on why water management and policy cannot be reduced to scientific or technical matters alone. There are many philosophical reasons to reject the divide between facts and values, not the least of which is that values permeate all areas of life, including scientific practices (Putnam 2002). In water policy, however, it has long been held that there are established matters of fact, such as the water’s molecular makeup as H2O. Yet, even this claim is not free of value judgments. For instance, water is not only H2O. In order for water to have the characteristics it does (i.e. its pH level), H2O must mix with other molecules, like H3O and OH-. Importantly, there is no “correct” microstructure to these mixtures (van Brakel 2000, VandeWall 2007). Some philosophers of science even argue that older and long-rejected views of water as an element (as opposed to a compound of hydrogen and oxygen) have important insights (Chang 2012). As a result, we cannot rely on science alone to fully answer even basic questions like what is water? This is because even basic facts about water are only made available within broader judgments about the nature of science itself. For example, competing views about stream restoration in the United States turn not only on different policy objectives, but on different scientific practices and commitments (Lave 2012). Since there are competing understandings of science, policy decisions must at the very least judge among them and those judgments are not value free. Further, linking science to policy is made more difficult due to human impacts on the Earth system. For instance, experts recently rejected the idea that the hydrological cycle varies from year to year within an overall envelope of stability. This was a key axiom of hydrological science but human perturbations to the climate have rendered it untenable (Milly et al. 2008). One consequence is that policy norms built on the idea that there is a “naturally” stable hydrological cycle must be rethought to the extent that they rely on this axiom (Schmidt 2013). Water Availability Although it is not universal, a common historical feature of many water policies is that water use decisions are fundamentally about the good of the community. In early 20th-century American water policy, the twin ideas of resource conservation and multi-purpose river basin planning were formed around a synonymy between “the People” and the nation-state, which formed the basis for treating water as a public good (Schmidt 2017a). In the U.S. case, as in many other nationalist projects, maintaining control over water became a defining feature of political identity (Blackbourn 2006, Solomon 2010, Wittfogel 1957). These projects, however, were not confined within state borders. In fact, the massive increase in water availability during the 20th century through large dam-building programs that took place in the name of “international development” was designed to promote Western ideals of liberal democracy (Conca 2006, Sneddon 2015). Of course, who or what is included in the “community” has important consequences for political participation, moral consideration, and norms regarding how and when water is made available (Chamberlain 2008, Shaw and Francis 2008). Indigenous communities in North America, for example, have been marginalized in water policy decisions because their status as part of the political and moral community – either their own or that of the state – has been denied under settler colonial rule (Curley 2019, Espeland 1998, Hoover 2017, LaDuke 1999, Phare 2009). These exclusionary practices often intersect with dimensions of oppression based on gender, class, or race (Gaard 2001, Green 2020, von Schnitzler 2016, Waldron 2018). A broad trend after WWII was that states gradually shifted from policies oriented to the “community” and toward polices based on meeting individual preferences (Norton 2005). In environmental ethics, this is frequently identified as a shift from bureaucratic utilitarianism to individual utilitarianism (Brown 2008, Feldman 1995, Norton 2005). Both versions seek the utilitarian aim of achieving the greatest good for the greatest number, but they do so through different means of government intervention versus individual transactions. But this shift can also be seen as a shift in ethical 159 Jeremy J. Schmidt reasoning, not just the means of governing. Under bureaucratic utilitarianism, for instance, the good of the “community” was the object of concern. Since the “community” was virtually synonymous with the state, the goal of water policy and management was to make water available in ways that would strengthen and support the state. In western North America in the late 19th century, for example, miners and agricultural settlers were worried that capitalists would seize upon the value of water and accumulate a monopoly through the speculative acquisition of rights (Schorr 2005). In response, they developed a doctrine known as prior appropriation, which gives priority to those first to use water over those who come later, with rights to water specifically designed to not function like property rights. In some versions of prior appropriation, such as in Western Canada, water rights were tied to land ownership (Percy 1977); this legal tie, known as appurtenance, functioned as a way of keeping water in communities, “as a community resource” (Sax 1994, p. 14). When water laws formalized these practices, they created rights and obligations with respect to the community as a whole, which came to rely on certain patterns of upstream-downstream relationships. Yet since the initial system of rights was designed with a certain community in mind – miners and agricultural settlers – it produced the types of exclusions identified earlier for those who did not count as part of the “community,” namely, Indigenous peoples (Schmidt 2017b). To continue with the example, the general rule for granting prior appropriation rights was based on a utilitarian formula where individual water rights should, on balance, benefit the community (Feldman 1995). Throughout the 20th century, the “greatest good” was sought by increasing water supply through dams and other infrastructures that characterize the “supply-side” era of North American water management. It was a simple solution: generating more goods was possible whenever there was more water available to generate those goods. But when new sources of increasing supply ran out, a dilemma arose: on the one hand, it was increasingly recognized that even if new sources of water supply were found, that path was not ecologically sustainable in the long run. On the other, if an absolute limit to water was incorporated into water policies, how could rights be reformed to protect existing obligations while not denying those presently without rights fair opportunity to obtain them? This dilemma belied a thorny ethical issue. If the supply side path of 20th-century water policy was acknowledged to not be sustainable, then the government could no longer claim to be discharging its duty to steward water in the public trust (Glenn 2010, Ingram and Oggins 1992, Sax 1969, Wilkinson 1989). But if the constitution of the community – the public – for whom the government was charged with stewarding water was opened up on ecological grounds, then this would also require revisiting policy norms that impacted everybody relying on shared waters, including Indigenous peoples in North America. And even though Indigenous peoples in the United States (though never in Canada) had been recognized as having prior rights to water since a 1908 Supreme Court decision in Winters v. United States, these rights were often not respected in material or cultural terms (Curley 2019, Wilkinson 2010). In retrospect, this dilemma was solved by not revisiting the constitution of the “community” but by adopting new forms of policy rationale based on the satisfaction of individual preferences. Part of this shift included assessing how new forms of transferring water rights may allow individuals to express their preferences via market mechanisms (see Natural Resources Council 1992). Alongside these arguments for economic rationality, several economists also retold the history of water rights, such as those of prior appropriation, as forerunners to market-oriented environmental policy (Anderson and Leal 2001). These historical claims do not, as we saw above, reflect or even approximate the original intent of water doctrines designed to stop water from being treated like private property. A second aspect of the shift to individual preference satisfaction was a growing emphasis on stakeholder participation in planning forums through decentralized policy planning and consensus-based decision-making (see generally Sabatier 2005). This reflected ideas about deliberative democracy and the need to have fair procedures for policy formation if decisions were to be normatively legitimate (Norton 2005, Priscoli 2004). Unfortunately, this 160 Water Quality and Availability “procedural turn” was often informal, and not matched with formal authority to make regulatory decisions, or with all parties included in the design of procedures or institutions, and this meant that those who started out in positions of power often retained an advantage (Schmidt 2014). The shift from bureaucratic to individual utilitarianism, and from state-led policies to procedural models of governing water, fits with a distinction that the philosopher Derek Parfit (2011, p. 45) makes between object-given versus subject-given forms of ethical reasoning. In an “object-given” view, our reasons for acting in one way and not another “are provided by the facts that make certain outcomes worth producing or preventing, or make certain things worth doing for their own sake.” Under state-led models, for instance, pursuing the good of the community (often conflated with a particular view of the state itself ) was an intrinsically desirable end. The alternate is a “subject-given” view where our reasons depend on how our preferences or desires affect our actions; or, more generally, on facts about us. In procedural water policies, whether through fair market transactions or stakeholder collaboration, reasons depend on how preferences or desires are pursued. The differences between these two styles of reasoning parallel the shifts in water policy that are based on facts about the water community (object-given) versus those based on enabling individual preference satisfaction (subject-given). When we move outside of the North American examples that have been used so far, these differences can help to understand ethical aspects of policy in some other contexts as well. Colonial experiences, and later post-colonial experiences under the guise of “international development,” often paralleled shifts between object-given versus subject-given forms of ethical reasoning. Under British colonial rule, for instance, sovereign Indigenous communities in New Zealand were denied rights to water as part of broader political and moral exclusions (Strang 2014). One reason for this concerns sovereignty, which in the imaginary of modern constitutional states arises through the self-constitution of individuals in a social contract (Taylor 2004). As such, states created through colonial rule and European settlement assumed that their own political communities had a sovereign right to water that others did not. In many Indigenous cosmologies, including those through which they entered into international treaties, sovereignty is based in alternate forms of relations between individuals and groups (Asch 2014, Simpson 2014). These challenges are not limited to British colonialism. The privatization of water rights in Chile in the 1980s, for instance, was based on faith in the ability of markets to satisfy individual preferences in a way that would increase the overall benefits derived from water. These reforms in Chile produced, at best, mixed results (see Bauer 2004). As later research would show, the places where water markets have been successful – like Spain and Peru – were places where they were designed to reflect communal norms regarding fairness. That is, the market was designed using principles that ensured facts about community relations and institutions, not individual preferences, provided the rationale (Trawick 2010). During the massive urbanization of many societies in the late 20th century, an important aspect of contemporary water challenges became the debate over public versus private water delivery. But it is also important to note that “public water” is a concept formed alongside certain forms of international development, particularly the finance and governance models needed to make water available through modern infrastructure (Bakker 2013). In theory, public water is a great idea. But it can also have a more covert dimension because the imagination of the “public” is cultural. As a result, for many non-Western people, becoming part of the “public” recognized by the state is a deeply unsatisfying option because it may require relinquishing cultural forms of life, their own systems of governance, and their own water use practices (Boelens et al. 2010). By contrast, many marginalized groups, such as those in informal settlements in Mumbai, actively pursue recognition as part of the “public” in order to secure the provision of water services from the state (Anand 2017). So, the ethics of “public” water run in multiple directions that require attention to the histories, contexts, and political contests affecting decisions. 161 Jeremy J. Schmidt Water Quality In many jurisdictions, the broadly shared and deeply worrisome prospect of degraded water quality has led either to the establishment of minimum standards for pollutant loads or to the prohibition of certain types of pollutants altogether. Some of the first whole-ecosystem experiments at the Experimental Lakes Area in Canada and the Hubbard Brook Experimental Forest in the United States targeted issues of water quality, notably acid rain and phosphate pollution in the North American Great Lakes. These experiments had direct impacts on policy – such as the banning of certain types of detergents – by establishing object-given reasons for policy, namely, the facts provided by the intrinsic good of having lakes that were not inundated with unserviceable pollutant loads. Despite some of the gains resulting from pollution standards – including environmental laws like the Clean Water Act in the United States (see Lazarus 2004) – significant water quality concerns persist in many jurisdictions. These arise through a combination of factors, such as the growing number of pollutants entering waterways from both point and non-point sources, the complex and unforeseen interactions of different pollutants, the increased human appropriation of freshwater resources, human changes to land uses that affect the timing and magnitude of runoff, and disruptions to precipitation regimes – timing, quantity, temperature – owing to climate change. One result of these converging concerns has been an attempt to approach the science of water quality from a perspective that treats social and ecological variables together. That is, in ethical terms, to move out of the “metaphysical blindspot” that treats complex relationships and processes in discrete terms. Treating social and ecological concerns together, however, raises questions of how to compare different goods that water provides, such as those for economies, biodiversity, public health, and recreation, to name a few (Acreman 2001). The difficulty of comparing different kinds of goods is not unique to water policy. Yet, water policy does have its own challenges, particularly those related to how different scientific categories are used to gather together social and ecological considerations. For instance, “environmental flows” or “instream flows” are categories designed to enable policy makers to identify the water required for healthy ecosystems – frequently measured through a combination of variables like oxygen content in water for fish, whether enough water is available to maintain riparian habitat, and so on (see Annear et al. 2002, Richter et al. 2012). Determining instream flow needs that would maintain adequate water quality for aquatic ecosystems is also an ethical issue because humans and non-humans are both dependent on water (Postel and Richter 2003). In addition, there are numerous practical challenges. One is the limited data available about water quality for many waterways. Another is that different measurement techniques make it difficult to compare data. In addition, measurements often begin after certain forms of pollution are recognized as harmful, which means that there is often no historical baseline data for waterways before certain types of pollution began (Acreman et al. 2008, Richter et al. 2003). But the selection of what to measure and the methods for assessing water quality are not just technical issues. Rather, the selection of which ecological indicators to measure is a social and political process (see Bouleau et al. 2009). During fieldwork in the Canadian province of Alberta, for instance, I was puzzled as to why certain types of ecological measurements were being used and others were not. As it turned out, a significant part of the reason was that, under Alberta’s newly created water governance format, the terms of financial agreements stipulated that no new studies could be commissioned when determining the state of a given river basin. As a result, decision-makers relied on existing data, most of which was collected for other purposes, such as recreational fishing. My findings in Alberta are similar to other research that has found that contests over who participates in choosing ecological indicators and the social processes and institutional arrangements used to achieve agreement are deeply political (Fernandez 2014). 162 Water Quality and Availability One increasingly prevalent way to establish water quality goals is through the concept of ecosystem services, where an economic value is placed on water by asking the question: what would it cost to do what a healthy ecosystem does for free? For instance, if we remove a wetland that is key to maintaining water quality and replace it with urban development, how much would it cost to use technology to maintain the same level of water quality? In this view, managing water quality is about trade-offs where the ethical obligation is to balance ecosystem health with the services they provide for human welfare (Falkenmark and Folke 2010). In the example above, we must trade off the value of a wetland with the value of urban development. This view faces at least three challenges in addition to those above regarding the selection and measurement of criteria. First, it requires that ecosystems be characterized in ways that allow different services to be “traded-off” against each other to best enhance human welfare. This requires that we take a view where all values are comparable with each other – that they are commensurable – and do not differ fundamentally. But whether values are commensurate depends on broader social considerations. For instance, in Chile, payments for ecosystem services do not fit well with, and actually undermine, the cultural practices and prevailing norms that Indigenous groups use to value water (Boelens et al. 2014). Second, “ecosystem services” are anthropocentric because entire ecosystems are valued only with respect to the services they provide for humans. We are not, for instance, valuing the services that a healthy ecosystem provides for aquatic species except insofar as those species are relevant to human welfare. Anthropocentrism (or variants of it) is a defensible view, but it requires adequate arguments and not just stipulation (see Norton 1984). Third, valuing ecosystem services in ways that fit with economic models requires that we use models of ecology that fit with models of economics (Norgaard 2010). This last challenge drives straight at the issue of the scientific practices of different private or public actors and the assumptions made about both what science is for, and how best to understand complex hydrological processes (Lave 2012). For instance, constraining science to models that fit with economic assumptions leaves out the numerous other ecological models and forms of knowledge that do not see nature in terms that fit economic ways of valuing natural goods. Complexity and Common Water This chapter started off with a disjuncture. In theory, water policies should become more restrictive as water comes under more pressure. Yet, actual decisions reveal a historical trend toward less restrictive policies. How did this come about? And how has this disjuncture been defended in normative terms? One explanation is that there has been a change in the style of ethical reasoning used in water policies from object-given to subject-given rationale. In that case, and without debating the merits of either, we can see how policies have combined ethical reasoning with political decision-making in subtle yet identifiable ways. The moral theory underlying these policies has been broadly utilitarian, but the connection of that theory to different policies has changed along with shifting political challenges. But a shift in style is not a shift in substance. Many pressing ethical challenges in water policy remain regarding both the challenges of selecting water quality indicators and of ensuring that the “community” sharing water is conceived of in ways that can remediate historical and contemporary harms. In short, my argument is that this disjuncture persists because of a refusal to incorporate others into the community just in case they challenge the existing imagination of moral and material orders of water. A second consideration the foregoing arguments leave us with is how we should reconnect politics and ethics. One touchstone I have been suggesting is that the concept of the public – or the community – presents an ongoing site of ethical and political contest. It is here that the water ethics literature is concerned with how alternate ways of imagining the political community, including the spaces, relationships, and sources of authority, it operates in reference to. Multiple 163 Jeremy J. Schmidt constituencies share water, particularly in those places where colonialism persists and where a “strange multiplicity” besets constitutional matters among Indigenous peoples and states (Tully 1995). These constituencies have legitimate political claims to water, and their water uses will affect others downstream. As a result, reconsidering the public “common sense” in ways that respect alternate forms and principles of decision-making will require forums in which different ways of reaching judgment are practiced and respected. In order to address historical inequities regarding the denial of the rights of these communities to water, a key moment of interruption will need to occur that revisits the notion of “community” in water policy. There are many potential models for the “community” but none, I would argue, that can be reached through philosophical reflection alone. Rather, the complex relationships and systems supported by water require both cultural and philosophical dimensions of water policies to be considered. This type of approach would seek appraisals of the ways that history, ecology, culture, and law have informed different iterations and reforms of water policy in particular places (Rademacher 2011, Rodriguez 2007). Social sciences have already shed light on key policy questions, like what the conditions are for effectively understanding the place of economic instruments in water policy decisions (Ballestero 2019, Trawick 2003, 2010). They have also helped to detail the ways that different spheres of cultural, religious, and legal values shape the political and moral norms that affect issues of gender equity (Mehta 2005, Zwarteveen and Meinzen-Dick 2001). The suggestion here, then, is that we connect the contextual richness of these types of studies with the styles of ethical reasoning that have been used to simplify complex systems and relationships into actionable policy items. This would allow us to see how the choice of a particular form of ethical reasoning in water policy is itself a choice made by those with standing in particular moral and political communities. AU: Please note the titles under “Related Topics” seems to be mismatched with chapter titles in this book. Please check and provide correct chapter titles. Related Topics 2. 8. 12. 14. 15. 16. 17. 38. 37. 38. 40. 48. 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