By Patricia Leigh Brown
May 25, 2016
Original story: www.politico.com/agenda/story/2016/05/is-clean-drinking-water-a-right-000129
TULARE COUNTY, Calif. — Once a month, the residents of Matheny Tract, one of hundreds of poor and largely Latino enclaves tucked deep in California’s Central Valley, gather in the shade of a neighbor’s carport, chihuahuas dozing at their feet. The subject of their meetings is always the same: water. As long as they’ve lived here, the water that comes out of their taps has been contaminated with arsenic and other chemicals; they refuse to drink it, and the very act of taking a shower can make them feel unclean.
“It tastes like watered-down bleach,” says Reinelda Palma, a longtime community leader whose house hosts the gatherings. “I don’t even wash plates with it. My biggest worry is that kids drink it.”
The Flint lead crisis has made us think of tainted water as an urban problem, aging pipes slowly poisoning the children of poor communities. But a huge amount of America’s substandard drinking water is actually consumed in all but invisible rural areas like Matheny Tract. Roughly a third of the 1,200 or so people here live in poverty, some in tattered doublewides on the brink of collapse. Already in precarious financial circumstances, they find themselves paying twice for water—once for the tainted well water coming out of the tap, and then again for bottled water they can actually drink.
But after decades of political neglect, Matheny Tract and similar communities are now at the forefront of legislation built on a legal idea that has gained increasing attention in the past decade in the developing world: the “human right to water.”
In 2012, California became the first state in the U.S. to legally declare that every human being has the right to “safe, clean, affordable, and accessible water adequate for human consumption, cooking and sanitary purposes.” The bill, signed by Gov. Jerry Brown and similar to one vetoed by his Republican predecessor, Arnold Schwarzenegger, was largely symbolic, intended as a moral compass for future water policy. But it contained a key provision, requiring state agencies to consider the human right to water when establishing new regulations and grant programs.
Matheny Tract, an unincorporated community outside the city of Tulare (pop.: 61,000), is not a household word in California—or even Tulare, about two miles away. Yet Matheny is about to make history of a sort: It will be the first community to receive better water under SB88, the most significant piece of legislation thus far to be framed by the Human Right to Water bill.
Across California, small communities are struggling to deliver clean, safe drinking water to their residents. Natural chemicals and fertilizer runoff have contaminated water to the point that it's dangerous to drink or even use to shower, especially for young children, and low-income residents often don't have the resources to drill a new well. | Getty/Patricia Leigh Brown/AP
The new law gives the state authority to order cities to consolidate their water systems with poor unincorporated neighbors stuck with tainted water—in this case, meaning their water will soon be supplied by nearby Tulare. So in the next few weeks, the beleaguered residents of Matheney are due to receive the same clean water that people a couple of miles away for the most part have never had to think twice about.
An identical law has been introduced in Michigan, where class-action attorneys have descended on Flint—part of a 15-bill package of legislation that also deals with billing, service shut-offs and other affordability issues. But those bills are still stuck in committee. So, for now, California is the lone front in America where this radical expansion of human rights is advancing, albeit slowly, and raising the question of whether “rights” might someday improve communities in a way that their governments have failed to do.
IN AN ODDLY fortuitous way, it was the state’s record-breaking drought that threw water inequality in the state’s impoverished rural communities into high relief. After three consecutive years of low rainfall, a problem made worse by excessive pumping by desperate farmers, a small town in Tulare county called East Porterville became the poster child of the drought when roughly 860 domestic wells ran dry.
But East Porterville’s travails started long before the drought. Like Matheny Tract, it hadn’t had drinkable water for years and relied on antiquated private wells. “These low-income families can’t afford $20,000 to $30,000 to drill a well,” says Fred Beltran, a volunteer with nonprofit Porterville Area Coordinating Council, a social service organization in East Porterville. “Therefore, they’re dabbling in this contaminated water—giving it to their babies, their elderlies and what not.”
The two most common hazards in this part of the Central Valley are arsenic, which occurs naturally, and nitrates from fertilizers spread over vast fields and from animal wastes that leach into the groundwater. Nitrates and other contaminants are particularly dangerous for children, putting newborns at risk for deformities, serious illness and even death. Most of the nitrates lurking in drinking water wells today were applied to fields decades ago, so the contamination levels will likely get worse in coming years as the chemicals continue to filter into the groundwater, according to scientists at the University of California at Davis.
Unlike bigger, more prosperous cities, which have enough ratepayers to afford to treat piped-in surface and groundwater, small systems are at the mercy of groundwater pumped from shallow wells. Statewide, 400 small rural systems have contaminated water, with many schools among them. An estimated 160,000 Californians live in unincorporated communities with iffy drinking water, according to the Public Policy Institute of California’s Water Center.
The landscape of Matheny Tract is emblematic of these passed-over places: dirt paths instead of sidewalks, mudhole streets without curbs or gutters, a handful of broken streetlights and cars speeding past nonexistent stop signs. A dusty irrigation ditch, once swimmable, cleaves the community. Land values remain depressed and there is a lack of public investment. Most households rely on aging septic tanks that are beginning to fail, creating another imminent threat to the drinking water.
“Matheny Tract is a kin of Flint,” says Michelle Wilde Anderson, a Stanford law professor who has studied both places and has written extensively on infrastructure. “Both are older communities in which we’ve failed to invest in basic needs.”
Settled by white Okies fleeing the Dust Bowl and so-called black Okies fleeing the Jim Crow South, the Tract was developed in the 1940s by Edwin Matheny, a traveling salesman with a penchant for real estate who dispensed teat balm and other sundries from a retrofitted Plymouth. While some nearby towns had race restrictions written into real estate deeds, Matheny was happy to sell to African-Americans, some of whose descendants still reside in their original family homes.
“Somewhere along the way nobody bothered with Matheny, so poverty became a self-fulfilling prophecy,” says Laurel Firestone, an attorney and co-director of The Community Water Center, a sponsor of the Human Right to Water bill. “It remains poor because there was no investment in basic services to make it a nice place to live.”
Like hundreds of unincorporated communities nationally, the Tract has been “mapped out of democracy,” in Anderson’s words. Residents under county jurisdiction don’t vote in city elections; they don’t receive municipal services, and their low property tax base contributes to their being overlooked. Many of these communities lie just beyond, and some within, the boundaries of cities that are happy to provide safe drinking water to brand new subdivisions—even ones outside their jurisdiction that they plan to annex—while ignoring impoverished areas in their midst.
“Most counties are not in the water business,” observes Bill Chiat, dean of the California State Association of Counties Institute. “So you’ve got these disadvantaged communities, and no one is required to provide them water.”
The relationship between political disenfranchisement, poverty and tainted water is not lost on Leonard Ogans, part of a committee of Matheny residents who, with help from attorneys at the nonprofit Leadership Counsel for Justice and Accountability in Fresno, have battled for nine years for decent infrastructure. On Ogans’ front porch, a handmade protest sign hangs over a photograph of a black child. It reads: “JUST WATER BABY.”
THE RIGHT TO water concept is decades old. In South Africa and several other countries it is even enshrined in the national constitution. But it wasn’t until an international water and sanitation expert arrived in the Central Valley on a fact-finding mission that politicians in California began to take notice.
The right to water is rooted in the idea that clean water is fundamental to life and health, and foundational to human dignity. It ties into the concept of environmental justice, in which poor, politically isolated populations around the world are often most vulnerable to a lack of access to safe and affordable drinking water.
In California, the richest agricultural area of the richest country in the world, the impoverished farmworkers on whom the industry depends must also endure drinking water contaminated by agricultural chemicals. In this context, thinking about water as a right rather than as a mere utility or civic amenity makes compelling sense, says Colin Bailey, an attorney and executive director of the Environmental Justice Coalition for Water in Sacramento. “Democracy is about equal opportunity and equality before the law,” he says. “If people don’t have access to this basic necessity, there is no social contract.”
In 2011, Catarina de Albuquerque, from the United Nations, compared conditions in the tiny Central Valley community of Seville (about 25 miles northeast of Tulare) to the Third World. “She shamed us all,” recalls former State Assemblyman Mike Eng.
The shame continued when residents from affected communities and their supporters assembled on the steps of the State Capitol in Sacramento bearing plastic bottles of contaminated water—nitrates from Tooleville, arsenic from Alpaugh—which they mixed into a “Central Valley blend” as a mock gift to legislators.
An employee of AAA Mobile Solutions gets ready to hook up the hose to transfer potable water to a resident in East Porterville, Calif. Under California's new "right to water" law, potable water is delivered county-wide five days a week. | AP Photo
Eng, with backing from environmental and water justice advocates, citizen-activists and faith groups, especially the Unitarian Universalist Service Committee, which has been a strong voice in water justice issues, authored the right to water law, which passed in 2012. But the bill didn’t include an enforcement mechanism. That came later with SB88, which passed last June.
That law requires municipalities to supply drinking water to disadvantaged unincorporated communities in close proximity. If a city resists, or the two parties cannot figure out a way to merge voluntarily into one water system, the State Water Resources Control Board, part of the California Environmental Protection Agency, has the power to order consolidation.
In anticipation of consolidation, the state had already laid nearly $5 million worth of water lines beneath Matheny. But when Tulare changed its mind, a ping-pong match of litigation ensued that left Matheny residents with brand new pipes—but no water running through them. In March, the state EPA broke the logjam, invoking its new power for the first time, forcing a marriage between Tulare and Matheny Tract.
Nearby Farmersville (pop.: 11, 000) where the walnut dehydrator sits across from Family Dollar, took a slightly more generous approach toward a needy nearby community. The city successfully sought state and federal funds to voluntarily merge its system with impoverished Cameron Creek Colony when its wells dried up during the drought. “Any community can do it,” says the city’s Latino mayor, Gregorio Gomez. “It’s just the willingness has to be there.”
Had Matheny Tract been developed today, it is less likely that basic human needs would have been ignored in the first place. The state’s Right to Water bill presaged water as a burgeoning national civil rights issue led by the National Coalition for Legislation on Affordable Water, a group that started after thousands of Detroit residents had their water shut off in 2014.
In California, it has shifted the narrative and set the stage for a major water bond measure and a more transparent process, including a forthcoming publicly accessible human right to water database on every water system that’s out of compliance.
Spurred by public hearings and the prospect of legal action by the state, the city of Tulare agreed earlier this month to send clean water to Matheny, which is scheduled to arrive June 1. Residents will then become official city water customers.
In anticipation, new water meters are being installed and fire hydrants swaddled in plastic bags wait for what Leonard Ogans calls “turn-on day”— the moment when fresh, clean, genuinely healthy water starts flowing through the faucets of Matheny Tract for the first time in decades.
“We’re not looking for a handout,” Ogans’ truck driver neighbor Vance McKinney explains. “Help us help ourselves. That’s all we’ve been asking.”
Patricia Leigh Brown, a former staff writer for The New York Times, writes on culture and community in California.