Legal Rights for Rivers In 2017 four rivers in Aotearoa New Zealand, India, and Colombia were given the status of legal persons, and there was a recent attempt to extend these rights to the Colorado River in the USA. Understanding the implications of creating legal rights for rivers is an urgent challenge for both water resource management and environ- mental law. Giving rivers legal rights means the law can see rivers as legal persons, thus creating new legal rights which can then be enforced. When rivers are legally people, does that encourage collaboration and partnership between humans and rivers, or establish rivers as another competitor for scarce resources? To assess what it means to give rivers legal rights and legal personality, this book examines the form and function of environmental water managers (EWMs). These organisations have legal personality, and have been active in water resource management for over two decades. EWMs operate by acquiring water rights from irrigators in rivers where there is insufficient water to maintain ecological health. EWMs can compete with farmers for access to water, but they can also strengthen collaboration between traditionally divergent users of the aquatic environment, such as environmentalists, recreational fishers, hunters, farmers, and hydropower. This book explores how EWMs use the opportunities created by giving nature legal rights, such as the ability to participate in markets, enter into contracts, hold prop- erty, and enforce those rights in court. However, examination of the EWMs unearths a crucial and unexpected paradox: giving legal rights to nature may increase its legal power, but in doing so it can weaken community support for pro- tecting the environment in the first place. The book develops a new conceptual framework to identify the multiple constructions of the environment in law, and how these constructions can interact to generate these unexpected outcomes. It explores EWMs in the USA and Australia as examples, and assesses the implica- tions of creating legal rights for rivers for water governance. Lessons from the EWMs, as well as early lessons from the new ‘river persons’, show how to use the law to improve river protection and how to begin to mitigate the problems of the paradox. Erin O’Donnell is a Senior Fellow and sessional lecturer at the University of Mel- bourne Law School, Australia. She is also an independent consultant on water markets to the World Bank and has worked on water governance in the public and private sectors for more than 15 years. Earthscan Studies in Water Resource Management China’s International Transboundary Rivers Politics, Security and Diplomacy of Shared Water Resources Lei Xie and Jia Shaofeng Urban Water Sustainability Constructing Infrastructure for Cities and Nature Sarah Bell The Biopolitics of Water Governance, Scarcity and Populations Sofie Hellberg Water, Technology and the Nation- State Edited by Filippo Menga and Erik Swyngedouw Revitalizing Urban Waterway Communities Streams of Environmental Justice Richard Smardon, Sharon Moran and April Baptiste Water, Creativity and Meaning Multidisciplinary Understandings of Human–Water Relationships Edited by Liz Roberts and Katherine Phillips Water, Climate Change and the Boomerang Effect Unintentional Consequences for Resource Insecurity Edited by Larry Swatuk and Lars Wirkus Legal Rights for Rivers Competition, Collaboration and Water Governance Erin O’Donnell For more information and to view forthcoming titles in this series, please visit the Routledge website: www.routledge.com/books/series/ECWRM/ Legal Rights for Rivers Competition, Collaboration and Water Governance Erin O’Donnell First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2018 Erin O’Donnell The right of Erin O’Donnell to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing- in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging- in-Publication Data Names: O’Donnell, Erin, 1979- author. Title: Legal rights for rivers : competition, collaboration and water governance / Erin O’Donnell. Description: Abingdon, Oxon ; New York, NY : Routledge, 2019. | Series: Earthscan studies in water resource management | Based on author’s thesis (doctoral - Melbourne Law School, University of Melbourne, 2017) issued under title: Constructing the aquatic environment as a legal subject : legal rights, market participation, and the power of narrative. Identifiers: LCCN 2018030343 (print) | LCCN 2018032404 (ebook) | ISBN 9780429469053 (eBook) | ISBN 9781138603257 (hardback) Subjects: LCSH: RiversLaw and legislation. | Water resources development–Law and legislation. | Locus standi. Classification: LCC K3496 (ebook) | LCC K3496 .O326 2019 (print) | DDC 346.04/69162–dc23 LC record available at https://lccn.loc.gov/2018030343 ISBN: 978-1-138-60325-7 (hbk) ISBN: 978-0-429-46905-3 (ebk) Typeset in Sabon by Wearset Ltd, Boldon, Tyne and Wear To my husband Rob, who celebrated all the tiny victories with me, and made me laugh Contents List of figures viii List of tables ix List of acronyms and abbreviations x 1 Introduction 1 2 Constructing the environment in law: making it count 15 3 Environmental water managers: examples of indirect legal personhood for rivers 37 4 Just another user: environmental water managers in Australia 61 5 Partnership as success: the environmental water managers of the western USA 92 6 Competing narratives and the paradox of the environmental water managers 128 7 Rivers as legal persons: competition and collaboration 158 8 Legal rights for rivers: a cause for celebration or concern? 183 Index 199 Figures 2.1 Constructing the environment in law 31 4.1 Murray- Darling Basin, Australia 62 5.1 Columbia River Basin, USA 94 5.2 Colorado River Basin, USA 95 6.1 Construction of personhood, narrative, and regulatory response for environmental water managers of Australia and the USA 148 7.1 Whanganui River, Aotearoa New Zealand 162 7.2 Ganga and Yamuna Rivers, India 166 7.3 Río Atrato, Colombia 171 8.1 The paradox of legal rights 189 Tables 3.1 Jurisdictions where environmental water managers are operating (2013) 47 3.2 Governmental environmental water managers 51 3.3 Non- governmental environmental water managers 52 3.4 Environmental water manager staff interviewed in each case study jurisdiction 56 4.1 Legal form of the environmental water managers of south-e astern Australia 71 4.2 Objectives of south- eastern Australian environmental water managers 78 5.1 Constructing the environment in western US water law: recognition, translation, and personification 103 5.2 Environmental water managers of the Columbia Basin and the state of Colorado 107 5.3 Objectives of the environmental water managers of the Columbia Basin and the state of Colorado 112 6.1 Activities undertaken by the environmental water managers in the two case study locations 137 7.1 Legal rights for rivers in Aotearoa New Zealand, India, and Colombia 175 8.1 Constructions of the environment in law: processes and narratives 187