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Catarina de Albuquerque, UN Independent Expert on the right to water and sanitation: Mission to the United States of America from 22 February to 4 March 2011

On 4 March 2011, she conveyed to the U.S. Government her preliminary reflections on her visit. Later that day, she held a press conference in Washington, DC at the United Nations Information Center. She opened the press conference with some preliminary remarks on the visit. The press statement is set out below.

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“The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.” (Franklin Delano Roosevelt)

I. Introduction

I undertook an official mission to the United States, at the invitation of the Government, from 22 February to 4 March 2011. The purpose of the mission was to examine the way in which the human right to water and sanitation is being realized in the United States. I wish to thank the U.S. Department of State for coordinating the visit. Additionally, I wish to thank the representatives of the following federal government agencies, who met with me: the Department of Justice; the Department of Interior; the Environmental Protection Agency (EPA); the U.S. Agency for International Development (USAID); the Department of Health and Human Services, including the Center for Disease Control (CDC); the White House Council on Environmental Quality; the Department of Agriculture; and the Interagency Council on Homelessness. I had the honour to participate in a hearing convened by the U.S. Congressional Tom Lantos Human Rights Commission on the right to water.

During my mission I visited Washington, DC; Boston and Falmouth, Massachusetts; Sacramento, Redding, including the Winnemen Wintu tribe, Seville, California and other communities in the San Joaquin Valley; and Edmonston, Maryland. In each of these locations, I had the occasion to meet with state and local authorities. I wish to thank them also for their time and engagement with me.

I convened seven public hearings in the various locations I visited and I had the honour of receiving personal testimony from all across the United States – including from West Virginia, Alabama, Puerto Rico, Michigan and Alaska. I especially wish to thank all those individuals who travelled long distances to share their stories with me. Numerous other testimonies were submitted to me in writing reflecting the experiences of other individuals and communities from other regions of the U.S.

I was particularly struck by the vibrant and active engagement by civil society working on human rights, water and sanitation issues during the mission. I am especially grateful for their initiative to connect me with affected communities and victims. I wish to extend a special word of thanks to all those who shared their personal, and sometime tragic, stories with me.

II. General Remarks

On 28 July 2010, the United Nations General Assembly recognized the right to water and sanitation. On 30 September 2010, the United Nations Human Rights Council affirmed, by consensus, the right and further specified that the right is derived from the right to an adequate standard of living. I wish to acknowledge that the United States joined this global consensus, which represents a political commitment to the realization of the right to water and sanitation. I am encouraged by this, and call on the U.S. to ratify the international human rights treaties that consecrate this right (International Covenant on Economic, Social and Cultural Rights; Convention on the Elimination of all forms of Discrimination against Women; Convention on the Rights of the Child; Convention on the Rights of Persons with Disabilities; and the Optional Protocols thereto).

The human right to water and sanitation entitles everyone to water and sanitation that is available, accessible, affordable, acceptable and safe without discrimination. The legal framework governing access to water and sanitation in the United States is a complex amalgam of federal and state statutes and common law principles. This multi-tiered system coupled with an array of variances available to states and private actors make generalizations about the U.S. legal framework’s capacity to reflect access to safe drinking water and sanitation as a human right particularly difficult. Nevertheless, in the absence of a federally recognized right to safe drinking water and sanitation, there are no legal barriers preventing individual states from adopting their own legislation recognizing such a right. The states of Massachusetts and Pennsylvania have already recognized a right to water (though not to sanitation) in their constitutions. I also learned that in California a bill package has just been introduced in the state Assembly that recognizes the human right to water. I welcome such initiatives and call on other states to do likewise.

With the introduction of centralized water and sanitation systems in the 19th century, the U.S. achieved enormous public health gains through the 20th century, resulting in the vast majority of people living in the United States acquiring access to clean and safe drinking water and sanitation. Additionally a robust set of regulations on water, wastewater and the environment have added to these gains.

III. Challenges to realizing the right to water and sanitation

In the U.S., roughly 85 per cent of the population receives water from a utility and 15 per cent rely on private water systems. There are over 53,000 rural water utilities, 90 per cent of which serve communities of 10,000 people or less. There are also nationwide an estimated 154,000 drinking water systems. These figures highlight the fragmentation of the sector, which presents enormous challenges when trying to regulate, monitor and find solutions for universal access. Nevertheless, the decentralization of the system reflects not only the U.S. constitutional framework, but also allows for responsiveness to local conditions, accountability, flexibility and local control.

There are ever increasing demands for water: for agriculture, for industry, for recreation, as well as for the realization of the human right to water and sanitation. The effects of climate change exacerbate these competing demands. I call on the Government to adopt clear legal standards to give priority to water for personal and domestic uses to enable the realization of the human right to water and sanitation for all.

Annually, an estimated $50 billon goes into maintaining water and sanitation infrastructure, of which consumers finance 90 per cent and state and federal resources finance 10 per cent. This notwithstanding, the Environmental Protection Agency estimates that over the next 20 years $200 to $400 billion dollars will be required to ensure the sustainability of water and wastewater systems. In a time of scarce financial resources, the U.S. needs to ensure that available funding, including the loans and grants provided through the Safe Water and Clean Water State Revolving Funds, are not just used to subsidize systems but in the first instance benefits individuals, who are in the most precarious situations.

I will now address five issues that I focused on during the mission, namely: 1) non-discrimination, 2) affordability, 3) quality/safety, 4) indigenous peoples and 5) official development assistance.

1. Non-discrimination

Human rights require a focus on the most vulnerable, those who are most often excluded from progress. Often, these people are the most difficult to reach, but this cannot be a justification for neglecting them – on the contrary. Human rights require that there be universal access. Hence, merely addressing formal or direct discrimination will not ensure substantive equality. To eliminate discrimination in practice, special attention must be paid to groups of individuals, who suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations. 

The International Covenant on Civil and Political Rights, to which the U.S. is a State Party, determines that all persons are equal before the law and that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

From my observations, the U.S. has achieved significant gains in eliminating formal or direct discrimination in law. Nevertheless, I am concerned that several laws, policies and practices, while appearing neutral at face value, have a disproportionate impact on the enjoyment of human rights by certain groups. For example, a study by Massachusetts Global Action examined the racial impact of water pricing and shut-off policies of the Boston Water and Sewer Commission and found that for every 1 per cent increase in the city ward’s percentage of people of colour, the number of threatened cut offs increases by 4 per cent. I was happy to learn that the Boston Water and Sewer Commission has a “right of service” policy, aimed to assist low-income households to maintain water and sanitation services even during financial difficulties. Moreover, Massachusetts has enacted a law that prohibits water shut-offs during the winter and in certain circumstances, such as a household with an infant under 12 months.

I met Catherine from Alabama, who described a situation of an African-American woman, with a disabled child, who was threatened with arrest for not maintaining her septic systems according to relevant standards. The cost to replace the septic system was higher than her annual income of $12,000, and she did not have any possibilities to access funding. Furthermore, poor, disadvantaged, minority and indigenous communities are often unable to access federal, state and local funding sources due to technical, managerial and financial capacity requirements, among others. This is the case for communities from the rural South to the San Joaquin Valley to the Appalachian region.

The U.S. has made important strides in eliminating many forms of discrimination. It must, however, do more to ensure that not only de jure but also de facto discrimination is eliminated regarding access to water and sanitation.

2. Affordability

Another element of the human right to water and sanitation is affordability, meaning that access to water and sanitation must not compromise the ability to pay for other essential needs guaranteed by other human rights such as the rights to food, housing, education and health.

The EPA has elaborated voluntary affordability guidelines, suggesting that a maximum of 2 per cent of household income should be allocated to water services. I visited Tulare County, the poorest in California and where the majority of the population are people of colour. Here I met Gloria, who explained that her community suffers from drinking water contaminated by nitrates and arsenic. This means that besides paying for the regular water bill, families are forced to purchase bottled water to ensure safe and clean water for drinking and cooking. Hence, in total, households like Gloria’s are devoting approximately 18 per cent of their income to water and sanitation. Those households either unable to afford alternative solutions or forced to make difficult trade offs fall into a protection gap. From my observations, the EPA guidelines are not being adhered to and I call on the Government to adopt a mandatory federal standard on affordability in conformity with human rights.

I had the opportunity to meet people and visit sites where water and sewer services are inadequate and where the costs of traditional infrastructure solutions of public water and sewer pipes and treatment plants are increasingly expensive. I met with 93-year-old Francis in Falmouth, Massachusetts on Cape Cod, who has lived there since 1962. The surrounding bays and estuaries in Falmouth are increasingly contaminated with nitrates, and a centralized sewage system is being proposed as a solution. Should a centralized system be put in place, Francis as well as other individuals would be required to pay an estimated $50,000 to $60,000 out-of-pocket to connect. In Falmouth, however, the median annual income for over 60 per cent of the residents is approximately $20,000 a year. Falmouth is emblematic of situations occurring all around the country. Repairing aging infrastructure in cities and building new water and sewer systems in rural areas in traditional ways is increasingly untenable. It is incumbent upon federal, state and local governments to consider innovative solutions being promoted by many experts and organizations in the country in order to ensure sustainable systems that are affordable for the community.

3. Quality / Safety

Water and sanitation have to be safe. Water must not pose a threat to human health. Sanitation facilities must be hygienically and technically safe to use, namely preventing human, animal and insect contact with human excreta. Sanitation facilities must further ensure access to safe water for hand washing.

As a part of the mission, I examined the situation of the homeless with regard to access to water and sanitation. Up to 3.5 million people experience homelessness in the United States every year. In some U.S. cities, homelessness is being increasingly criminalized. Local statutes prohibiting public urination and defecation, while facially constitutional are often discriminatory in their effects. Such discrimination often occurs because such statutes are enforced against homeless individuals, who often have no access to public restrooms and are given no alternatives.

In Sacramento, California I visited a community of homeless people. I met Tim, who called himself the “sanitation technician” for this community. He engineered a sanitation system that consists of a seat with a two-layered plastic bag underneath. Every week Tim collects the bags full of human waste, which vary in weight between 130 to 230 pounds, and hauls them on his bicycle a few miles to a local public restroom. Once a toilet becomes available, he empties the bags’ contents; packs the plastic bags with leftover residue inside a third plastic bag; ties it securely and disposes of them in the garbage; and then he sanitizes his hands with water and lemon. Tim has said that even though this job is difficult, he does it for the community, especially the women. The fact that Tim is left to do this is unacceptable, an affront to human dignity and a violation of human rights that may amount to cruel, inhuman or degrading treatment. An immediate, interim solution is to ensure access to restrooms facilities in public places, including during the night.

Tulare County in California faces many drinking water quality violations. I met Simona from Seville, California, who has been drinking water from her private well for the past 38 years. Only two years ago when the University of California at Davis offered free water quality testing of the well, did she discover that the water was contaminated with nitrates and bacteria, and was advised to stop drinking and cooking with the water. It is unclear when the well became contaminated, but Simona expressed serious concerns about the health impacts of drinking this water for so many decades. The Safe Drinking Water Act sets maximum levels for contaminants in drinking water and its sources. These standards apply to every public water system in the United States, which is monitored by the EPA. Private wells, however, fall outside the scope of the existing regulations and 46 million people rely upon water whose quality is unknown. As a first step, a proposal for consideration by the Government is to provide public education and information about water quality in the languages spoken by the local community – particularly in areas vulnerable to water contamination – and make water quality testing available at affordable prices.

In addition, I received worrying testimony regarding lead contamination of water in Washington, DC as well as concerns from local communities regarding Nestlé water bottling operations threatening the future availability and quality of groundwater from communities in Mecosta, Michigan to Fryeburg, Maine to McCloud, California. I call on the Government to ensure proper regulation of bottled water quality.

4. Indigenous Peoples

There are roughly 2.7 million American Indians, including Alaskan and Hawaiian Natives, living in the U.S. The vast majority of these belong to one of 565 recognized tribes. Nevertheless, many more belong to federally unrecognized tribes. In California alone there are over 300,000 American Indians that are federally unrecognized as members tribes. Many American Indian communities lack access to safe drinking water and basic sanitation in disproportionate numbers. Thirteen per cent of American Indian households do not have access to safe water and/or wastewater disposal. In non-native households, this number is 0.6 per cent. I understand that EPA has programmes to promote access to water and sanitation by American Indians.

Like others, I welcome the decision by the United States to lend its support for the UN Declaration on the Rights of Indigenous Peoples. This is a positive step, whereby the U.S. joined global consensus. In this context I recall that in human rights terms, tribal existence and identity do not depend on federal recognition or acknowledgment of the tribe.

I visited the Winnemen Wintu in Redding, California, where this federally unrecognized tribe faces challenges in accessing safe drinking water and sanitation. Furthermore, they have been unable to exercise the right to maintain their distinctive spiritual relationship with their traditionally used waters. Legal action to change the status of unrecognized and terminated tribes is necessary to enable all American Indians to gain the respect, privileges, religious freedom, and land and water rights to which they are entitled.

5. Official Development Assistance

The Senator Paul Simon Water for the Poor Act sets U.S. foreign appropriations policy for the water sector. This Act reflects U.S. commitment to incorporate the normative content of the human right to water, which I welcome. The Act establishes as the policy of the United States that foreign aid for water and sanitation will “further ensure affordability and equity in the provision of access to safe water and sanitation for the very poor.”

I am concerned about the implementation of the Act, particularly regarding criteria used to identify recipient countries, to target poor communities, and to decide on funding envelopes. USAID acknowledged difficulties in reaching the poorest of the poor, and the need for greater policy guidance for field staff. I note that USAID is in the process of developing a strategy and criteria to target countries and communities in greatest need. In this context, I call on the Department of State/USAID to ensure that funding of water and sanitation projects reaches those most in need, is guided by the normative content of the right to water and sanitation, and I draw attention to my recent report on the Millennium Development Goals (UN Doc. A/65/254).

IV. Conclusions

As I mentioned previously, through improvements in the water and sanitation sector beginning in the 19th century, the U.S. achieved enormous public health gains and allowed the great majority of people living in the U.S. to access clean and safe drinking water and sanitation. However, aging and deteriorating water and sanitation infrastructure forces the question of whether 19th and 20th century technology – appropriate at the time – will carry the U.S. into the 21st century. Estimates indicate an annual $4 to $6 billion funding gap for infrastructure in the sector. Funding is a critical element, but is insufficient. The United States needs to develop a national water policy and plan of action guided by the normative content of the right to water and sanitation.

In September 2010, a Cabinet-level meeting decided to reconvene the interagency working group on environmental justice. Furthermore, in December 2010, the White House Forum on environmental justice took place, focusing, inter alia, on access to water and sanitation for low-income minorities and indigenous peoples. Nevertheless, in the United States more concerted efforts are required to ensure targeting of policies and programmes to reach the hidden and poorest segments of the population.

Problems of discrimination in U.S. water and sanitation services may intensify in the coming years with climate change and competing demands for ever scarce water resources. Ensuring the right to water and sanitation for all requires a paradigm shift – new designs and approaches that promote human rights, that are affordable and that create more value in terms of public health improvements, community development, and global ecosystem protection. A holistic, systems approach is required, whereby the water sector is not viewed in isolation from the agricultural, chemical, industrial and energy sectors. Accordingly, a stronger regulatory system should be put in place to prevent pollution of surface water and groundwater, and to ensure affordability. Already communities such as the one in Edmonston, Maryland, are undertaking low-cost and innovative initiatives (“green streets”) to address challenges in the area of water and sanitation. I welcome these and hope they can be further replicated across the country.

Such a paradigm shift for the water and sanitation sector entails policy changes, including support for research, pilot projects and incentives; changes in engineering practices, such as integrated water management (e.g., wastewater, storm water, recycled water) and decentralized systems; and community education and empowerment.

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Catarina de Albuquerque is a Portuguese lawyer currently working as a senior legal adviser at the Office for Documentation and Comparative Law (an independent institution under the Portuguese Prosecutor General’s Office) in the area of human rights. She holds a DES in international relations with a specialization in international law from the Graduate Institute of International Studies in Geneva. She was appointed as Independent Expert in September 2008 and took up her functions in November 2008.

Learn more about the Independent Expert’s mandate and work, log on to: http://www2.ohchr.org/english/issues/water/iexpert/index.htm

For more information and media requests, please contact Yoonie Kim (Tel.: 011 41 79 752 0483 / e-mail: ykim@ohchr.org) or write to iewater@ohchr.org

The average income for a family of four in Tulare County is $16,000 a year. The yearly water bill is around $960 and households are spending an additional $1000 a year on bottled water. Furthermore, the sewage bill also represents roughly between $800 to $1000 a year.

U.S. Tribal Water Access Partnership, Infrastructure Task Force Access Subgroup, “Meeting the Access Goal: Strategies for Increasing Access to Safe Drinking Water and Wastewater Treatment to American Indian and Alaska Native Homes” (2008): www.ncai.org/ncai