Letter from the Chair
Robert F. Kennedy, Jr.

The Grand Canyon

FifteeIn 1967 my father took me and eight of my brothers and sisters on a Colorado River white water trip through the Grand Canyon. Just above our put-in, Glen Canyon Dam had been completed three years before and Lake Powell was still filling. The new dam complemented the Hoover Dam nearly 300 miles downstream at the other end of the Grand Canyon. Together, they promised to irrigate a thirsty west, generate hydropower and create great lakes with recreational opportunities for millions. But critics thought Glen Canyon Dam a wasteful and reckless boondoggle to corporate agriculture and greedy developers. Environmentalists said the dam would destroy the Grand Canyon National Park’s unique ecology and that the lakes would lose horrendous amounts of water to evaporation and seepage and would soon fill with sediment.

That year we camped on the Colorado’s massive sandbars. In 2006, I returned to paddle the Grand Canyon with my daughter Kick, my life-long hero and Harvard classmate Wade Davis and his daughter Tara. I was sad to see that the spacious sandy beaches and massive driftwood piles where I camped with my father were gone; the sands that once fed them are now trapped above the dam. The river, which should be warm and muddy is clear and a frigid 46 degrees. Four of her eight native fish species are extinct, with two others headed there soon. The canyon’s beaver, otter and muskrat populations have disappeared, as have its indigenous insect species. Sediment has already flat-lined hydropower and nearly choked the upper reaches of Lake Powell, which is in severe decline as a tourist destination. The Colorado River no longer reaches the sea or feeds the great estuaries in the Gulf of California that once teemed with life. Instead, it ignominiously dies in the Sonoran desert. What was once a dynamic and specialized ecosystem cutting through the greatest monument to America’s national heritage has been transformed into a cold water plumbing conduit between the two largest reservoirs in the United States—monuments to greed, short-sightedness and corporate power.
All the grave prophecies of scientists and environmentalists have come true. The reservoirs are emptying because of human consumption and evaporation, a situation now exasperated by climate change. Lake Powell is nearly 100 feet below its capacity level. Hydropower revenues have been at a standstill for six years. Recreation access at the upper reaches of Lake Mead and Lake Powell are now obstructed by savannahs of sedimentary mud. Water quality is dropping precipitously and farmers need more water to flush the dissolved solids from their fields. Yet the sprawl development and agribusiness consumption triggered by the dam’s original promise continue their ferocious pace.
The Colorado River is the poster-child for bad river management. Water and power agencies obstruct and control her waters to favor hydropower production over the river’s management as a national park. The federal government provides oceans of money to corporate agribusiness to raise wasteful water-dependent crops like rice and alfalfa in the desert. Meanwhile, local and state governments encourage sprawling and water-hungry commercial and residential developments by offering tax breaks and by subsidizing infrastructure including roads, sewer lines and electricity. With such inducements developers are building golf courses and swimming pools in the Arizona desert. They have drained the Colorado River dry and are now depleting the 112-million-acre, ten million-year-old Ogallala Aquifer under the Great Plains states, which has dropped several hundred feet since modern irrigation practices surged following World War II.

It’s not too late to implement rational water policy that serves America’s citizens. If the grotesque handouts ceased, we could easily meet today’s needs, while protecting the rights of our children. We must adopt healthy legal and economic rules that reward the efficient use of water and punish misuse.

The struggle for control of water is intertwined with the fight to preserve democracy from the corrosive impacts of expanding corporate power. The best measure of how a democracy functions is how it distributes the goods of the land; the air, waters, wandering animals, the fisheries and public lands, otherwise known as the “public trust,” or the “commons.” By their nature these resources cannot be reduced to private property but are the shared assets of all the people held in trust for future generations. Since ancient times, the law of all just and equitable nations has protected these public trust assets as the property of all citizens be they humble or noble, rich or poor.

Roman law, our most ancient legal heritage, held that the most fundamental “natural” or God-given law required that the “air, running water, the sea, and consequently the sea shore” could not be owned as private property but were “common to all” Roman citizens. The Romans vigorously protected the waterways and the resources of the sea, seashore, estuaries, wetlands and fisheries from control by private individuals. Everyone has the right to use the commons, but only in a way that does not diminish its use by others.

The first acts of a tyranny invariably include efforts to privatize the commons. Despotic governments typically allow favored persons or powerful entities to capture and consolidate the public trust and steal the commonwealth from the public.

Following Rome’s collapse, Europe’s kings and feudal lords appropriated public trust assets, including rivers and streams, and dispensed them without regard to public rights. In the early years of the 13th century, Britain’s King John fenced in England’s forests and streams, erected navigational tolls and placed weirs in the rivers in order to sell private monopolies to the fisheries. The exclusion of the public from the rivers and waterways, and the stifling of commerce that ensued, helped prompt a citizens’ revolt. In 1215 angry armed Brits confronted King John at Runnymede, forcing him to sign the Magna Carta, which laid the foundation for constitutional democracy by guaranteeing the personal liberties of the people of England. Centuries later it served as the blueprint for the Bill of Rights in the U.S. Constitution.

Among the rights reaffirmed by the Magna Carta were “liberty of navigation” and a “free fishery” so that, according to Britain’s seminal legal authority, Blackstone, “the rivers that were fenced [by the King] were directed to be laid open.” Subsequent court decisions interpreted that document to mean that “the King was trustee” holding public waters “as protector of public and common rights” and “he could not appropriate them to his own use.” Eleventh-century French law provided that “the running water and springs… are not to be held by lords… nor are they to be maintained… in any other way than that their people may always be able to use them.” Thirteenth-century Spanish law likewise ensured the public inalienable rights in rivers, springs and shores.

Neither could the King sell public trust assets to a private party. The nineteenth-century legal scholar Schultes described public trust rights as “unalienable.” He explained that “things which relate to the public good cannot be given, sold, or transferred by the King to another person.” Woolrych, another leading legal scholar of the period, added that “notwithstanding such a grant, if the public interest be invaded, or the privileges of the people narrowed, the grant, pro tanto is void.”

Following the American Revolution, each state became sovereign, inheriting from King George III the trusteeship of public lands and waters and wildlife within its borders. Both the federal government and the individual states recognized the public trust in their statutes and ordinances. For instance, Massachusetts’ Great Pond Ordinance of 1641 assured public access to all consequential water bodies. The federal government’s Northwest Ordinance of 1787 gave all U.S. citizens unrestrained access to all the tributaries of the St. Lawrence and the Mississippi and proclaimed that those waters and “the carrying places between shall be common highways and forever free… .”

The struggle over the world’s water resources will be the defining struggle of the 21st Century. In 1999, following the advice of the World Bank, the Bolivian government allowed the city of Cochabamba, Bolivia, to contract with a subsidiary of the Bechtel Company to take over the city’s public water supply. The company immediately raised water rates, causing profound hardship for all but the city’s wealthiest citizens. The public revolted against the rising rates. Massive street protests pitted rock-throwing mobs of Cochabamba’s poor against riot police who killed and maimed them. This mini-revolution caused Bolivia’s government to collapse and rescind the privatization of the city’s water. This was no communist mob bent on nationalizing legitimate private property. Cochabamba’s citizens were engaged in the most fundamental fight for democratic rights.

Like the citizens of Great Britain in 1215, Cochabamba’s citizens saw the privatization of the commons as a threat to their democracy and their lives. While privatization controversies in this country have not yet provoked hot confrontations like Cochabamba’s, public utilities across North America are conveying water supplies to private companies, often at fire-sale prices. In recent years, only vigorous protests by citizens have kept corporations from privatizing the water supplies in places like Lexington, Kentucky and Stockton, California
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In the Grand Canyon and elsewhere, a more subtle but equally effective privatization of public trust waters is occurring as governments subsidize reckless and unsustainable water use that favors greedy developers, powerful utilities and agribusiness barons over the American public. Destructive government policies are draining our nation’s rivers and aquifers and trampling our democratic rights. It’s time for another kind of Battle of Runnymede — a peaceful uprising that will return to Americans their fundamental rights to their waterways.