Effective water governance depends in large part on achieving an overall balance among the components of water governance capacity - policy, law and institutions. Combining water governance capacity with a strong enabling environment and basing both on a respect for traditional norms and values can produce effective governance outcomes (see Figure 5.1).
An enabling environment is characterized by transparency, certainty, accountability and a lack of corruption. Such an environment is needed for successful implementation. Implementation needs to be enabled by designing effective regulations and negotiations to achieve compliance with water management goals, as well as applying incentives and monitoring progress. Finally, implementation needs to be backed by enforcement mechanisms, through both dispute-resolution systems and the courts.
“DEVELOPING POLICIES, LAWS AND INSTITUTIONS IS A PRELUDE TO GOVERNING”
Developing policies, laws and institutions is a prelude to governing. All manner of social water arrangements must be accommodated when governing, including laws, regulations, deals, contracts, verbal agreements, and any kind of agreement between parties over issues related to water management. For individuals, agencies, organizations or corporations to feel comfortable making these social arrangements, they need three things: transparency, certainty and accountability – in brief, honest governance that abides by the rule of law. If these intangible necessities are present, corruption can be held at bay. If the system of governance is corrupt, the types of regulations and negotiations needed for effective implementation will be very difficult to achieve. Conversely, improving transparency, certainty and accountability will hinder corruption. Chapter 2 described how these elements can be woven into policy. Here they are followed in implementation.
Corruption is ‘the misuse of the office for private gain. The office is a position of trust in which one receives authority in order to act on behalf of an institution, be it private or public, or nonprofit’.35 Misuse and misallocation of resources negatively affects water governance because actors will not engage if they cannot trust in law, contracts and enforcement mechanisms.
Transparency ‘allows stakeholders to gather information that may be critical to uncovering abuses and defending their interests. Transparent systems have clear procedures for public decision making and open channels of communication between stakeholders and officials, and make a wide range of information available’.36 Transparency is achieved by:
A system that promotes public participation and a free press.
An effective information flow.
Free or low-cost access to information.
Readily available, pertinent and accurate information.
Open channels of communication between all the stakeholders involved in water manage-ment.
Transparency can be fostered by public participation, by involving the public in the decision making process, and in the monitoring stages of any water arrangement schemes (Box 5.1). A free press will shine a light on any dubious practices carried out by institutions. Transparency is reinforced by a proactive investigative media, which itself hinders corruption.
Figure 5.1 Combining water governance capacity with a strong enabling environment contributes towards achieving effective water governance
The higher the level of certainty for any given transaction, the greater is the willingness of stakeholders to participate. Under doubtful circumstances, stakeholders are not motivated to participate because they cannot predict the outcome. Certainty is fostered by rule of law, access to redress in courts and the absence of corruption. Certainty is achieved by:
Effective implementation of the law.
A process to amend the law.
A system of regulations to order specific transactions.
A strong judicial system.
Ability to seek recourse for damages.
Alternative dispute-resolution mechanisms.
“CERTAINTY IS FOSTERED BY RULE OF LAW, ACCESS TO REDRESS IN COURTS AND THE ABSENCE OF CORRUPTION”
Officials must be held accountable for their actions according to the rules of their office. Private water users should be held accountable for their water use, and industrialists for their water use and pollution. Those who violate the laws and regulations must be brought to justice.
Accountability is increased by effective supervision and monitoring both of data and information on water resources and contracts. Low levels of corruption are also critical, meaning that the rule of law treats everyone the same without favour. Steps to promote accountability include:
Ensure public trust and confidence through meeting commitments for planning and managing water resources and addressing social and environmental issues.
Secure compliance with all laws and regulations, general or project-specific, at all stages of the water resources development and management.
Establish an appropriate ‘mix’ of regulatory and non-regulatory measures, including incentives and sanctions.
Establish and abide by strict anti-corruption policies and regulations.
Implement any agreed plan to compensate for loss of income or property due to water devel-opment in a timely and correct manner.
Establish independent review panels to safeguard outstanding social and environmental matters.
“THOSE WHO VIOLATE THE LAWS AND REGULATIONS MUST BE BROUGHT TO JUSTICE”
Regulations (in some cases called bylaws or guidelines) are specific rules, derived from laws. They are the means by which laws are implemented in daily life. Regulations are the ‘rules of the game’ and must be clear to all if the system is to function smoothly. Whereas a constitution gives a country or a state (in a federation) an overall structure to its legal system, and its laws describe the rights and duties of the government and citizens in general terms, regulations give specific practical and technical detail to the law. In some countries, regulations contain specific instructions for the application and enforcement of law, which are enacted by the executive. If these regulations are not enacted, the effectiveness and practical implementation of law can be compromised.
In the case of framework or umbrella laws, regulations in the form of bylaws are also needed, as is also the case with framework treaties, where detailed provisions are defined via protocols. Framework or umbrella laws are a recent legislative technique used in environmental management, which are designed to cover a wide spectrum of cross-sectoral issues, and facilitate a more coordinated approach on environmental management issues. This type of legislation lays down the basic legal principles without attempting to codify, and generally includes a declaration of the main objectives and policies to be established and defined. It delineates the main bodies and institutions and the establishment of decision making procedures applicable to a variety of sectors. There is no clear-cut division between framework laws and comprehensive laws, as some laws have elements of both types of legislative techniques. An important feature and advantage of framework laws is that details can be left to be determined when regulations are set, avoiding longer legislative processes.
“REGULATIONS ARE THE RULES OF THE GAME”
All regulations are tied inextricably to the laws enabling them and are more easily changed or revoked than the laws themselves. Administrative agencies, with a mandate to regulate in a given area from a specific law passed by the legislative branch, may propose a new regulation or modification or elimination of an existing regulation. While legal systems differ procedurally, generally notice is given of a proposed new regulation and a period for public comment is set during which affected groups may voice concerns or support for the new regulation, followed by the agency's responses and promulgation of the final regulation. In their regulatory proposal and response to public comments, agencies are tasked with providing factual justification for the regulation. Affected individuals or groups may bring a lawsuit challenging the rule in either an administrative court or a judicial court, generally depending on the language in the law enabling the regulation. In case of regulatory challenges, courts will generally give wide discretion to agencies in their decision making powers.
Case 5.1 U.S. Environmental Protection Agency Water Pollution Regulations Pursuant to the Clean Water Act
In 1972, the U.S. Congress passed the Clean Water Act (CWA), which had among its various goals to make US waters ‘fishable and swimmable by July 1, 1983’, the ‘total elimination of discharges by 1985’, and stated that ‘No person may discharge any pollutant into waters of the U.S. without a permit’. The CWA created a two-tier pollution regulatory system in which the federal government promulgates technology-based standards and state governments set water quality standards, subject to federal approval. In dealing with point-source pollution, the federal Environmental Protection Agency (EPA) sets pollutant level regulations and permit guidelines as well as delegates authority to certain states to issue permits, and the EPA issues specifications for control technology standards outlined by Congress in the CWA. Regarding non-point sources, state environmental agencies set ‘total maximum daily load’ regulations as well as comprehensive management and evaluation programmes, all of which are then subject to EPA approval.
In a federal context, complex political, legal, institutional and administrative structures create further challenges. Case 5.2 exemplifies different legal instruments that must be put into place in a national context, including a call for regulations, in order to provide effective water management.
Case 5.2 Applying water governance in a federal context: the case of Argentina38
The National Constitution of Argentina establishes a division of powers between different government levels: the federation (nation), the provinces (or federated States), the autonomous city of Buenos Aires, and the municipalities.
According to the constitution, provinces have all the powers not delegated to the Federation, meaning by that, the powers of the federation are higher than that of the small provinces, but exceptional in character. And this also applies to water, bearing in mind that according to the constitution, each province owns the natural resources located within its territory and, as a result, adopts its own water laws and water codes which regulate water management, water quantity and quality. There are certain powers, however, that are shared between the provinces and the federation. This is the case with navigable waterways, for which the federation regulates issues relating to navigation, but the provinces regulate water quality and quantity in those rivers located within their boundaries.
An area of power delegated by the provinces to the federation is the establishment of minimum standards for the environmental protection, including for waters. The exercise of this power by the federation is limited by the provincial power over the natural resources located within their territories. provinces can then adopt complementary rules that are stricter than the minimum protection standards, but never less strict. Finally, within the institutional legal structure, there are the municipalities. Municipalities are below the provinces in terms of powers, but have a certain level of autonomy. Some water issues can be regulated via municipal ordinances, such as drinking water services, or waste management.
Law 25688 (Environmental Management Regime of Waters) adopted in 2002 establishes minimum protection standards for the rational use and protection of water. As a law on minimum standards, it applies at the federal level, and the provinces are obliged to follow its provisions. Law 25688 regulates management of river basins, stating that their management should not be subject to territorial division (i.e provincial), and that over-arching basin committees should be established for those basins located within the territory of more than one province (inter-jurisdictional basins). This has raised particular concerns for example among the provinces, which see it as their responsibility to establish those committees (and not the federation's).
In addition to such difficulties in interpretation, there are problems with implementation. For example, a permit is needed to use those waters regulated by Law 25688. The authorities need to establish water quality and effluent standards, and prepare and update a National Water Plan (which needs the approval of Parliament) to coordinate different basin committees. However, Law 25688 has not yet been regulated. As a result the law has not been applied and put into effect. The application of Law 25688 is therefore seriously compromised, and the Ombudsman has already enacted a resolution requesting the Chief of Cabinet to adopt the necessary provisions for the application of this law and other similar ones establishing minimum environmental protection standards for the whole country.
Regulations need not always prohibit actions. They can instead provide incentives for people or organizations to behave in ways that benefit good water management. In recent years, a number of countries have turned their attention to economic instruments to create incentives for effective compliance and enforcement. These instruments are not limited to taxation and subsidies but include a variety of types of payment schemes for watershed services. Some of these schemes are described in Chapter 3 and in the IUCN-WANI toolkit PAY which provides guidance on how payment schemes can be used to create incentives for sustainable management of watersheds.
Case 5.3 “Cánon ambiental de vertidos”
In recent years, Costa Rica has been working on the design and implementation of a new regulatory instrument called Cánon Ambiental de Vertidos geared towards a significant reduction in pollution of surface waters through economic incentives. Based on the ‘polluter-pays principle’, it will charge those organizations/bodies that, through transportation or waste discharge, have a negative impact on water resources, associated ecosystems and human health. The cánon is not based on a fixed payment, but is proportional to the intensity of the water use. Starting from a pollution baseline in a river basin, (and with the aim of lowering pollution), the cánon is imposed so that users do not exceed a pollution target, or so that pollution is gradually reduced. Funds collected through this system have to be re-invested within the basin: 60 percent in domestic sewage treatment, 15 percent in promoting the use of clean technologies and capacity building, 10 percent in monitoring pollution sources, 10 percent in managing the cánon system, and 5 percent in funding activities relating to environmental education.
Before good water governance systems create new incentives for efficient water usage, they should first remove any pre-existing ‘perverse incentives’ encouraging inefficient water usage. Many governments do not treat water as a scarce natural resource but subsidize both urban and rural water usage. Agricultural users are often not charged for irrigation water or they are subsidized in dry countries, resulting in water scarcities. The cost of water in cities is also often subsidized, as it typically does not include delivery costs. Money saved from eliminating wasteful subsidies could be converted into more useful subsidies for poor and disaffected groups. Incentives are an integral part of effective water policy reforms. For example, by allowing users to own and in some areas to trade such rights among individuals and water user groups, governments can encourage efficient water usage. Privatizing and regulating urban water services also improves efficiency and encourages conservation and investment in water conservation and recycling sectors. Finally, because market-based price incentives offer a dynamic means of valuing resources, rather than a static ‘one price for all you can use’ system, they can adapt to evolving circumstances.
Table 5.1 lists some of the current forms of economic incentives that have been successful in some places.
Table 5.1 Economic incentives for watershed service maintenance
Regulations must clearly state what comprises a violation of the law and the sanctions for noncompliance. Examples of violations may include:
Licence and permit contraventions.
Unauthorized use of water.
Tampering with the quality or quantity (including flow rates) of water resources.
Unlawful construction of water infrastructure (such as dam construction).
Failure or refusal to furnish data or information, or furnishing false or misleading data or information.
Obstructing a State agent or inspector in the exercise of any statutory power or duty.
Unlawfully and intentionally or negligently committing any act or omission which actually or potentially pollutes a water resource.
Corruption and fraud.
“REGULATIONS MUST CLEARLY STATE WHAT COMPRISES A VIOLATION OF THE LAW AND THE SANCTIONS FOR NON-COMPLIANCE”
Each violation should carry a penalty of a nature and gravity appropriate to the seriousness of the violation, the consequences, presence of hazardous or toxic substances in an unlawful discharge, monetary benefit to the non-complying party and duration of the violation. Penalties may include a range of administrative or criminal fines, imprisonment, or both. Personal liability on the part of company directors or managers may also be considered for inclusion in a new water law. Discharging pollution into a public water body is perhaps the most obvious case for imposing a fine (see Case 5.4).
Case 5.4 Wastewater discharge fees in Colombia
In Colombia, regulations impose discharge fees on any point of wastewater discharge that releases certain effluents into a water source. The objective is to reduce waterway pollution by imposing penalties (the discharge fee) on polluters.
The national system of discharge fees was created by Law 99 in 1993 and later implemented through Decree 901 (a regulation) in 1997. The decree granted certain water management duties to 33 regional environmental authorities called Corporaciónes Autónomas Regionales (CARs). The jurisdiction of each CAR was determined not by political boundaries, but rather by natural ecological delineations. By national decree, the CARs were to inventory all facilities discharging wastes that produce biological oxygen demand (BOD) and total suspended solids (TSS), and to map all key water basins so that five-year pollution reduction goals for aggregate discharges could be set and regulated.
Polluters who exceed set discharge limits are required to pay a per-unit excess discharge fee starting at a minimum rate that is adjusted upwards as pollution reduction targets are continually not attained. As pollution reduction targets are made more stringent over time, discharge fees can become increasingly harsh for sources that are unable or unwilling to implement technology that will allow them to meet the BOD/TSS standards. Revenues from collection of discharge fees are retained by the CARs, thus promoting local enforcement. The efficacy of the discharge fee programme has been questioned by some and lauded by others, but between 1997 and 2003, nationwide BOD discharges from point sources in Colombia decreased.
In order to mitigate any unnecessarily punitive effects, penalties may be capped at a given amount if the infraction is a minor violation or results from failing to report unknown spills. Similarly, reductions of a given percentage from the normal penalty are possible if the party committing the discharge undertakes good-faith mitigation efforts according to an environmental management system. Parties entering into settlement agreements (and possibly agreeing to environmental project investment) may have their penalties reduced in order to facilitate quick litigation and remediation of the area.
“PENALTIES MAY BE CAPPED AT A GIVEN AMOUNT IF THE INFRACTION IS A MINOR VIOLATION”
Case 5.5 Environmental penalty regulations help to protect Ontario's water sources39
Environmental regulations help to reduce industrial spills in Ontario by giving the Ministry of Environment the power to impose monetary penalties on companies that pollute land or water. Additional regulations require facilities subject to environmental penalties to prepare spill prevention and contingency plans and codify spill reporting requirements already in practice.
The Environmental Enforcement Statute Law Amendment Act, passed in June 2005, amended the Environmental Protection Act (EPA) and the Ontario Water Resources Act (OWRA). These amendments allow the Ministry of Environment to impose financial penalties in response to unlawful industrial spills, unlawful discharges and other related environmental contraventions. Environmental penalties give the Ministry a remedy that can be applied swiftly, to encourage quick and effective compliance with Ontario's environmental laws.
Environmental penalty regulations apply to 148 facilities in nine industrial sectors whose operations discharge directly into a surface water body. The nine sectors include petroleum, iron and steel, industrial minerals, inorganic chemicals, organic chemicals, and pulp and paper. They also include metal mining, metal casting, and electric power generation facilities. The facilities that are subject to environmental penalties account for a significant portion of reported industrial spills on land and water from year to year. In 2003, these operations accounted for 30 percent of reported industrial spills on land and 64 percent of reported industrial spills into water. In 2004, they accounted for 30 percent of reported industrial spills into water and 37 percent of reported industrial spills on land.
The fines against companies that violate the law will be based on a number of factors related to the type of violation and the seriousness of the violation. Types of violations include improper reporting and record-keeping, exceeding discharge limits of certain substances and unlawful spills. Average penalties are expected to be about CAD $1,000 for administrative violations and CAD $10,000–20,000 for unlawful spills and spill-related violations. The size of a penalty is determined by an assessment of:
The gravity or the seriousness of the violation and its consequences.
The monetary benefit, if any, that the facility has gained from non-compliance with Ontario's environmental laws.
The number of days the violation continues.
The presence of a toxic substance in an unlawful spill or unlawful discharge increases the gravity portion of the penalty by 35 percent. The “Environmental Penalties – Code of Toxic Substances” provides a list of 113 toxic substances that would result in such an increase.
Revenue collected from environmental penalties is deposited into a Special Purpose Account. All revenue collected will be made available to communities affected by spills for remediation, restoration and related purposes. Environmental proposals from community organizations will be accepted every year and will be assessed by technical experts to ensure they meet the criteria. As the Environmental Protection Act also requires polluters to compensate for losses or damages that result from spills, the fund is not required for compensation of the victims of spills and spill-related violations.
Regulations, whether they prohibit behaviours by imposing penalties or encourage them by offering incentives, are created in a hierarchical relationship in which governors direct the activities of the governed. In contrast, some organizations are considering the use of another type of power arrangement in which parties are equal partners in a negotiated agreement or covenant that benefits all involved.
In a negotiated agreement or contract, violation of the terms of the contract by one party usually releases the other parties from their obligations. A covenant, a concept with a long history, ‘is a mutual promise of two (or more) parties that is valid independently of whether the parties deliver on their promise or not. This gives a covenant a higher, more solemn validity than an ordinary contract, treaty or convention’.40
In the field of international law, the term ‘covenant’ refers to agreements in which one party's non-performance does not affect the other party's duty to perform, unlike in a classic contract, in which rights and duties are mutually linked. Declarations, charters, compacts, conventions, manifestos, constitutions, treaties and even contracts may carry forward disguised forms of covenants and aspirations. ‘Compacts’ share with covenant, for example, the expectation that parties are obligated to respond to each other beyond the letter of the law, and both require mutual consent to be abrogated, designed as they are to be perpetual.
It has been theorized that all forms of contract between citizen and state involve more than mere mutual self-interest in order to be binding, and that ‘social contracts’ were therefore deep, sacred agreements reflecting moral relationships believed to be inherent in reality itself. Indeed, no community can long be governed without some form of mutual trust or covenantal bond that provides identity and purpose to its members and that is judged a fair distribution of powers, benefits, rights and obligations. No covenant can be successfully formed and kept that does not provide for a constitution or other legal structure institutionalizing the norms and political processes (or government), by which decisions regarding the relationships between the parties to the covenant will be made and implemented.
In addition to formal written promises officially recognized by governments, compacts and covenants can also originate from systems of local community customs and unwritten agreements. Indeed, as a general rule, the more localized a system is, the less formally regulated is the system of water governance (see Case 5.6).
Case 5.6 Water governance by covenant in the community of Pijal, Ecuador41
The northern Ecuadorian indigenous community of Pijal, population 1,138, is organized communally and has an unofficial system of local governance that includes elements of parliamentary, judiciary and administrative branches. The community assembly (Asamblea de la Comunidad) is a parliamentary body with the highest level of decision making power and includes all members of the community government. Under the Asamblea is the Cabildo (a combined administrative-judicial branch), beneath which sits the powerful Juntas de Agua (Water Board), composed of the most honest citizens in Pijal. The Juntas de Agua convenes mandatory work parties of community members when needed to perform maintenance on canals and ditches in the area, and imposes fines or sanctions on members who do not participate.
Tensions over water in the community have risen in recent years due to the growing problem of drought in the area, and year-round reductions in water flow occurring simultaneously with a growing population. In order to control theft of water (i.e., taking more than the amount allotted each family for US$ 0.50 a month), the community has instituted a graduated system of penalties, which includes fines for one-time offenders and temporary or permanent suspensions of water access for repeat offenders. The Asamblea hears and adjudicates water access conflicts between members of a single community. In the case of conflicts between members of different communities, representatives of those communities who understand the problem are convened and allowed to propose solutions to the issue, which is decided by a vote. The system is not recognized by the Ecuadorian government, but community members maintain that Pijal's water governance mechanisms are accepted by the community, as the underlying concepts and values are understood by all, and punishments determined by the Asamblea General reflect this understanding.
The basis for agreement of covenants is negotiation. A negotiation requires a process in which the parties involved come together to bargain and trade off within their positions aiming to reach an agreement over a disputed or potentially disputed matter. As demonstrated in the IUCN toolkit NEGOTIATE, facilitated processes of negotiation can help to build consensus among parties. Negotiation is thus a means to an end, but in order to be fruitful, the parties involved must be autonomous, while recognizing that there are commonly imbalances in power among parties. Such imbalances can lead to manipulation of processes in favour of the stronger parties. Thus, capacity to negotiate as equal partners must be addressed particularly when civil society actors negotiate with stronger traditional players such as the government or the private sector.
“MONITORING AND INFORMATION MECHANISMS MUST BE COORDINATED BETWEEN NATIONAL AND RIVER-BASIN LEVELS”
Monitoring and information management mechanisms are essential tools for enforcement, as mentioned earlier in Chapter 3 on law and Chapter 4 on institutions. The extent to which this data is made publicly available may support compliance greatly by helping water users who are subject to the law's requirements verify that they are meeting their obligations and to understand the implications if they fail.
What should be monitored?
Physical parameters such as water quality, aquatic biodiversity and habitat must have a baseline established. Ongoing assessment must then be made using the same measurement to deter-mine if they are improving or deteriorating.
Health variables such as access to safe drinking water and sanitation, and incidence of water-borne diseases.
Economic variables such as costs to the government and consumers of providing water, sewer-age and hydropower.
Progress towards goals set in five-year plans or any other government water programmes. These might include the number of water user groups formed, number of additional homes served by sewerage, or agreements reached by various partners.
Compliance with pollution regulations such as discharge limits or fertilizer use near waterways.
Effectiveness of enforcement efforts in terms of fees collected, court cases won, or compliance negotiated.
Monitoring and information mechanisms must be coordinated between national and river basin levels. Given the highly technical nature of monitoring, the results should be expressed in terms that are understandable to lay people.
The costs of monitoring can be high as they are not limited to the installation, operation and maintenance of the necessary infrastructure to support monitoring mechanisms but also extend to training and administration.
“THE COSTS OF MONITORING CAN BE HIGH”
Compliance refers to the conformity of society to the obligations agreed to in water arrangements. When the parties involved are willing to meet their obligations, enforcement is not such an issue.
Enforcement, which is necessary when voluntary compliance fails, fosters security amongst stakeholders because each party knows that if the other party does not abide by the agreement, there are specific mechanisms to force compliance. The State may use police action to assure compliance with a specific law or act.
The incorporation of appropriate regulatory mechanisms to support compliance is accomplished in part by clearly and concisely defining the rights and obligations of all water users (public and private) as well as the State. As discussed in Chapter 3, this may be achieved through the creation of a system that secures ‘property rights’ to use water. Firm rights can also be established through permit or licensing systems, judicial procedures or customary practices. Clear rights and obligations may also arise indirectly under other legislation with implications for water resources, such as in the case of the Endangered Species Act in the United States.
“ENFORCEMENT, WHICH IS NECESSARY WHEN VOLUNTARY COMPLIANCE FAILS, FOSTERS SECURITY AMONGST STAKEHOLDERS”
The objective of incorporating appropriate compliance mechanisms in a water law is greatly enhanced by measures that ensure a high level of public participation prior to administrative decision making, as well as the right to be heard after decisions have been taken by the authorities. Compliance is also strengthened by incorporating transitional arrangements in legislation that provide opportunities for civil society to arrange their affairs before a new law takes full effect. Such arrangements are often overlooked, however, in the introduction of a new water law regime.
Case 5.7 India's 1974 Water Pollution Act: a failure of enforcement
India has a strong water law and judiciary. However, they have proved insufficient to address serious sources of pollution. In 1974, India enacted the Water (Prevention and Control) Pollution Act, which created the Central Board and State Boards for Pollution Control and contains specific provisions for restrictions on new outlets and new discharges, rules on existing discharge of domestic sewage or industrial waste waters and emergency measures for response to pollution of streams or wells. The Act also gives the Boards powers to apply to courts for orders to stop pollution of water in streams or wells. The state governments have no enforcement powers under the Act beyond the mere power to declare an area as a ‘water pollution, prevention and control area’. The Act licenses pollution by obliging anyone undertaking a potentially polluting activity to obtain permission before the discharge is allowed. Enforcement provisions enable punishment of a company or a government department committing an offence under the Act.
The implementation of the Water Act has been slow because of problems with compliance and enforcement. Laws and judicial decisions have not been supported by the appropriation of the public monies needed to reduce waste discharges and support compliance. Cities have spent millions on complying with court rulings by constructing new sewage treatment systems but continued population growth has rendered the expenditure ineffective. Enforcement under the Act has been seen critically as ‘policing society’. Low conviction rates together with the reluctance to prosecute have also led to questioning of the use of criminal law as a tool for preventing water pollution. It has been argued that criminal liability may not be an appropriate deterrent.
There is a view that the Act has been weakened because compliance and enforcement mechanisms under the Act predominantly use a command-and-control approach that has resulted in high-cost regulatory structures.
Enforcement mechanisms aim to ensure that justice can be efficiently attained when contravention of the law occurs. Whilst most often expressed as punitive sanctions, enforcement mechanisms may also include prior notice and abatement measures and, in appropriate circumstances, search and seizure powers. These mechanisms are not limited to State or administrative action, but may also enable enforcement actions by citizens, for example through civil actions in the judicial system and ‘whistle-blowing’ procedures.
In the context of water governance, international experience has demonstrated that the most effective enforcement is rendered by well funded and well resourced administrative systems overseen by accessible and affordable judicial systems.
Water law may be significantly enhanced by including detailed guidance for enforcement agents and prosecuting authorities on how violations of the law can be proved. These can be provided in practice notes or guideline documents, for example, that describe the scope of the investigation needed where there is a suspected violation and the evidence needed for prosecution.
Entry and inspection powers are proactive mechanisms for compliance and enforcement. It is important, however, that private property and privacy rights (as well as safety and security concerns) in addition to other relevant constitutional provisions are properly protected. It is essential, therefore, that entry and inspection powers are clearly described and limited to persons duly authorized to exercise such powers.
Consideration should be given to the circumstances in which prior notification and authorization of inspection by a court or other independent tribunal (for example, by way of a warrant) is required. This is particularly important when criminal prosecution may follow an inspection activity. In certain situations, an inspector may require the assistance of other persons or technical equipment – these should also be specified. In addition to gaining access to private property, an inspector may also require access to a particular infrastructure such as a dam, levee, weir or water piping. Specification of such detail in the law not only ensures certainty as to the powers of an inspector but also provides the necessary information to those required to comply with the law.
Often overlooked is the nature of the forensic, technical or other evidence that is necessary to prove guilt beyond reasonable doubt in the case of criminal violations of the law. Resources for gathering evidence are essential to enable prosecutions. The law should therefore support the use of expert witnesses to assist and guide the courts (or any other appropriate independent tribunal) in the course of the presentation of evidence, for example.
Administrative, judicial and alternative dispute-resolution systems, such as arbitration and mediation, provide access to justice and the information necessary to enable direct or indirect citizen enforcement claims as an alternative to adversarial court proceedings. Specifically for the water sector, such mechanisms have taken the form of special water tribunals or alternative independent tribunals to deal exclusively with water disputes.
Special water tribunals may be an adjunct to the official judicial system or may be established as a separate administrative tribunal. The viability of such jurisdictions will depend on the requirements of constitutional and legal circumstances. The affordability of public access to such a forum is a critical consideration in determining its effectiveness and viability.
In Valencia, Spain, a centuries-old water tribunal now operates within the modern administrative and legal framework and continues to be effective in settling disputes (see Case 5.8).
Case 5.8 “Tribunal de Aguas de Valencia”, Spain
The Tribunal de Aguas de Valencia is a long-standing, customary water institution that takes place at Valencia Cathedral every Thursday. It was established by Jaime I in the 13th century to regulate the distribution of irrigation water from the River Turia.
The water tribunal is recognized in Spanish law with full authority to decide on conflicts between users of the Valencian irrigation network and with full powers of enforcement. It has been criticized for disregarding the principle in Spanish Law of centralized jurisdiction, but the trust of water users in the tribunal and the application of principles and guaranties such as public appearance and speed and efficiency – have made it world-famous. The tribunal is independent but administered within the Ministry of Public Works.
The judges are eight ordinary workers representing a different irrigation network or Comunidades de Regantes who are elected to office for two years. They wear traditional smocks and hand down their sentences orally. It is a civil tribunal and its decisions can take the form of a fine or other sanction . If voluntary compliance does not occur then the tribunal can enforces its decision through the closure or confiscation of the water right. There is no right of appeal. This tribunal is seen as a model of efficiency, as cases are solved rapidly.
Customary water law, although often ignored, can be an effective means of enforcing environmental justice. Customary law can be successful in establishing water governance when formulated by users at the local level in the absence or inefficiency of a water law, and where respected among agreeing parties without the intervention of administrative authorities to enforce them. They are non-formal norms and behaviours that are accepted by the community and that have endured over time. The power of customary law normally derives from the community's beliefs and values.
These water arrangements can be either verbal or written, and they constitute a special legal category of so-called ‘soft law’. The term implies a quasi-legal status, meaning that they are not legally binding. Nevertheless, local, rural chiefs play an important role as quasi judges, and their rulings are complied with in the community.
“CUSTOMARY WATER LAW CAN BE AN EFFECTIVE MEANS OF ENFORCING ENVIRONMENTAL JUSTICE”
Customary water law is particularly effective because local people are informed about available water resources, their water needs, and the importance of managing their water. Monitoring processes are also more cost-efficient, due to the proximity between water users. Finally, the use of customary water management law is cost-effective. Evidence shows that the regulation of customary law does not need enforcement by external resources, which may be costly.
Customary water laws have most influence in many areas in the allocation of land and water, and in the settling of disputes. They are seen by some as more successful in managing rural water resources than imposing formal laws. This is the case where state-centred policies for managing natural resources have failed for several reasons, including faulty design for resource management programmes, inefficient implementation and corruption.
Case 5.9 Enforcement of customary water law42
Some indigenous communities of Guatemala have developed their own water governance mechanisms for water supply and other water priority uses, as well as for the protection of the resource. Human consumption has a priority over other uses, and communities restrict monopolies or individual uses. The main features of these governance arrangements, which are implemented through practices and customs inextricably linked to a particular world vision, include:
A system of values that integrates the management of water and forests.
A structure of authorities based on seniority, bringing together leadership and authority.
A legal system that emphasizes the protection of communal forests because these forests are directly linked to water supply sources.
A system of community management based on the voluntary service of the community members.
All community members are responsible for their actions and can be reprimanded by the Mayor, or the deputy Mayor. The deputy Mayor is responsible for overseeing the maintenance and distribution of water for human consumption. In cases of serious breaches of rules, the community in plenary, through an assembly, will legitimize actions to restore any damage.
“CUSTOMARY WATER LAWS ARE THE MOST INFLUENTIAL IN LAND AND WATER ALLOCATION AND SETTLING DISPUTES”
Court cases can be expensive and time-consuming, but they are established to provide justice. Ideally, any person or group afflicted by a water administration decision or action of another citizen or group should be able to make a claim against such a decision or action. Such claims should be made to the water administration or a regular judicial court, respectively. The water administration should be able to adjudicate cases relating to individual water rights, but cases against citizens or groups alleging legal violations should have recourse that is more directed to regular courts of the country or state. In the case of claims made against the water administration, a right of appeal should be allowed, generally first to the administration chief on a technical or public interest basis, then to the water management minister, then to either a water court or a regular court (for cases involving alleged legal violations).
“IN THE CASE OF CLAIMS MADE AGAINST THE WATER ADMINISTRATION, A RIGHT OF APPEAL SHOULD BE ALLOWED”
With striking similarity to the centuries-old water tribunals of Valencia (Case 5.8), recent water laws in many countries of both common and civil law heritage have created specialized water courts operating within the regular court system although exclusively addressing water disputes. The competence of such courts may include:
Review and adjudication of water agency administrative decisions.
Conflicts between private water rights claimants and/or (public or private) water administra-tion agencies.
Penalties against water law violations.
Water courts generally include a judge serving as court president as well as two specialists in economic and technical issues, one of which could be appointed by the water administration (see Case 5.10).
Case 5.10 Water Court in the District Court of Montrose, Colorado, USA43
The Colorado Constitution provides that all water belongs to the People of the State, but that anyone may lay claim to a water use according to the common law doctrine of ‘First in time, first in right’. The Water Court of Montrose, Colorado, was established to determine, in cases of multiple claimants for identical water, who has first right of water use and what priority other users might claim. Upon filing of an application with the court, the water clerk publishes a summarized version of the application in a newspaper located within the county of the water claim. Interested parties then have two months from the application filing to enter the case by means of filing a statement of opposition. The court clerk also sends a copy of the application to the state engineer, division engineer and the water referee; the latter will visit the site to verify the application information. The referee makes a recommendation to the water judge of whether the applicant has met the law and, unless an interested party protests the decision within 20 days of the ruling, the judge signs the ruling and makes it the court decree. Such a decree holds that the applicant complied with the law and is entitled to use a certain amount of water for a given use within a defined priority. If an interested party protests, then the judge will hear the case and decide independently on the issues raised.
Regional integration has also influenced the way in which the courts are being used in a national context. In addition to the domestic courts of European countries, in 2000 the European Community instituted additional protections for water users by means of the European Water Framework Directive (WFD). The WFD provides a means of harmonization of water law in EU member states, as it mandates what minimum levels of water protection countries must adjust their laws to follow, common definitions of water quality and quantity status, and a timetable for legislation and entry into force of laws required to meet the minimum threshold levels. If EU member states do not fulfil the requirements under the WFD, they become liable to suit from the European Commission, which can bring the member state before the European Court of Justice, seeking penalties and injunctive measures requiring the member to act in accordance with the WFD.44
Court systems usually do not allow people to bring a case, or to have ‘standing’, unless they can demonstrate that they have been personally harmed by the actions of another. However, many legal systems allow indirect enforcement by citizens through filing of formal administrative complaints or lawsuits. For example, in the United States, the Clean Water Act allows citizens to bring lawsuits against polluters for on-going violations of effluent limitations. In Mexico, the denuncia popular found in Mexican law allows citizens to lodge complaints with the responsible agency and to obtain a formal response as to the status of enforcement. In China, direct political lobbying by NGOs has been demonstrated as an indirect or alternative means of ensuring proper enforcement. In the Hubei Province, the Green Han River NGO has mounted an aggressive campaign against water pollution allegedly caused by a paper manufacturing plant and the authorities have responded by starting to implement action to close down the factory.
The term Amicus curiae, or ‘friend of the court’, refers to someone – often an advocacy group – who is not a party in the litigation, but who believes that the court's decision may affect its interest and therefore volunteers information on a point of law or fact in the case to assist the court in deciding a matter before it. The information may be a legal opinion in the form of a brief, testimony or a learned treatise on a matter that bears on the case.
The decision whether to admit the information lies with the discretion of the court or tribunal. It is unquestionable that an amicus curiae brief that brings to the attention of the court a relevant matter not already brought to its attention by the parties may be of considerable help.
Case 5.11 The Biwater Tanzania case
Non-profit legal advocacy organizations frequently submit an amicus curiae brief to advocate for or against a particular legal change or interpretation. A coalition of NGOs recently filed such a brief in the Biwater Tanzania case pending before an ICSID Tribunal (an arbitration tribunal under the auspices of the World Bank). The dispute relates to the Tanzanian government and the British investor Biwater, concerning an agreement for the provision of water services in Dar es Salaam from 2003–2005. In May 2005, the Tanzanian government announced termination of the contract because Biwater had failed to provide clean drinking water to millions of people in Dar es Salaam. Biwater is demanding compensation under the UK-Tanzania Bilateral Investment Treaty.
The brief calls into question the responsibilities of foreign investors undertaking international investment agreements, particularly where investments might affect human rights or sustainable development objectives. This dispute shows how problematic foreign investment agreements are, particularly if they include investor-state provisions, which allow investors to sue host governments in international tribunals and in this way avoid submission to national law. It is argued in the brief that governments should be encouraged to refuse investor-state provisions or investment provisions more generally, because by accepting a foreign investment, governments accept that the investor will be allowed to operate under international law (and not necessarily national law), with rights of access to natural resources. There is therefore a risk that the investment will not meet local needs and compensation may be demanded under international law. The court has broad discretion to grant or to deny the NGOs permission to act as amicus curiae. In principle, an amicus curiae brief may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion, or at the request of the court. A motion of amicus curiae to participate in the oral argument is usually granted only for extraordinary reasons.
Criminal sanctions should not be the only means of law enforcement. There should also be provision for enforcement through civil actions, particularly in circumstances where third parties may have suffered harm or loss because of a violation. Appropriate compensation mechanisms then become relevant.
In South Africa, for example, the National Water Act authorizes a court, in the same proceedings where a person has been convicted of a criminal violation, to enquire into harm or loss allegedly suffered by a third party. Pleadings or the filing of additional and separate papers are not needed. The Act merely requires that a third party make written application for such an enquiry. The State, through the responsible Minister, may also make a similar written application. In both instances, the enquiry must take place in the presence of the convicted person. After making a determination, the Court is empowered to award civil damages – i.e., monetary compensation – for the harm or loss suffered. It may also order the convicted person to institute appropriate remedial measures or to pay the costs of measures that have been or will be implemented.
“CRIMINAL SANCTIONS SHOULD NOT BE THE ONLY MEANS OF LAW ENFORCEMENT”
‘Supportive’ enforcement mechanisms should be included in a new water law, in addition to criminal and civil sanctions. In some circumstances, rapid and highly efficient steps need to be taken by a State agency. The availability of interdictory (injunctive) measures in a water law may assist in achieving this goal. For example, a water law may provide an enforcement agency with powers to apply to a court for an interim order for the cessation of a particular activity that presents a threat to a water resource. Alternatively, in appropriate circumstances, an order may be sought compelling a particular action or activity to prevent such threat. In addition, a water law may include the powers needed to suspend or withdraw a permit or licence while further investigation is done or while waiting for a ruling by a court or any other appropriate independent tribunal.
“SUPPORTIVE ENFORCEMENT MECHANISMS SHOULD BE INCLUDED IN A NEW WATER LAW”
Case 5.12 Court injunction provides relief to community with contaminated water in Argentina
In 1987, the EDAR Bajo Grande municipally operated water treatment facility was opened on the banks of Argentina's Suquía River, 2km upstream from the Chacras de la Merced community. Because of the continued growth of the nearby city of Córdoba, additional sewage connections were authorized, increasing the volume of sewage going into the plant. Later, the plant began operating at approximately 70 percent of its original capacity, but was receiving 600,000–800,000 litres of sewage that it could not treat, resulting in daily spills of untreated sewage into the Suquía River.
The Centre for Human and Environmental Rights (Centro de Derechos Humanos y Ambiente, CEDHA) invited a scientist from the National University of Cordoba's laboratory to test the water quality around the facility. The test results demonstrated that the concentration of fecal coliform in the river was 40 percent higher downstream from the facility, compared with upstream. Furthermore, tests taken from family wells in the Chacras de la Merced community showed concentrations as high as 2,000 coliform bacteria per 100 millilitres of water, far exceeding World Health Organization recommendations that there should be no fecal coliform in water destined for human consumption.
To immediately secure safe drinking water for the community, CEDHA and community representatives presented the test results to the court and requested an injunction. The court ordered that ‘the municipality of Cordoba adopt all of the measures necessary relative to the function of the EDAR Bajo Grande, in order to minimize the environmental impact caused by it, until a permanent solution can be attained with respect to its functioning; and that the Provincial State assure the injunction filers a provision of 200 daily litres of safe drinking water, until public works be carried out to ensure the full access to the public water service.’ Thus through an injunction the court was able to provide some relief to the community while that legal matter was being addressed.
The workings of courts are just one component of the framework that water managers and policy makers need to develop to ensure effective water governance arrangements that are sustainable, equitable and efficient. The international discourse has set the tone for reform of water governance to become more mindful of environmental limits (and opportunities) and more focused on distributing the rights and benefits of water in an equitable fashion. Water resources that are developed in a way that is environmentally sustainable will outlast those that are depleted by overdevelopment or ruined by pollution. Widespread access to clean water and sanitation inevitably improves people's health and productivity and ultimately the economic success of a country.
Reform of water laws is often attempted piecemeal with sometimes discouraging results. Instead, a country needs to build a strong WGC as a means to achieving effective water governance. Water governance capacity requires development of a coherent set of policies and laws, and strong institutions to implement them through regulations, negotiations and incentives. Without the backbone of national policy and law, other elements of reform may not provide a coherent whole or be able to endure for long. Ideally a country goes through a process that moves from a vision of how water resources should be managed to serve national goals, to a policy or set of policies that can implement that vision. Thence, to laws that codify the policies and craft them in obligatory terms. This then provides continuity on down to negotiations, contracts, regulations and incentives that actually prohibit or promote institutional or individual behaviours that produce the results foreseen in the vision.
“A COUNTRY NEEDS TO BUILD A STRONG WATER GOVERNANCE CAPACITY AS A MEANS TO ACHIEVING EFFECTIVE WATER GOVERNANCE”
Governmental and non-governmental organizations, civil society and the private sector interact from the creation of the vision to the enforcement of regulations. Governments must always retain their public-interest stewardship function for guaranteeing that water resources are managed for the benefit of citizens and the national interest. Private companies may be contracted to provide delivery, clean-up or construction services, and can often do so more efficiently than government agencies, but they must be monitored by government agencies for cost, environmental and other parameters that affect the public. Likewise non-governmental civil organizations can be partners in delivering services. For example, many countries have committees of local farmers that maintain irrigation works and allocate water amongst themselves. Civil society organizations can also give meaningful input to every step of the WGC process from vision to enforcement. Citizen groups are even known to use the courts to force government agencies to fulfil commitments made in policies or laws.
Photo 5.1 Public protest over water issues (Nicaragua). Governments must always retain their stewardship role in guaranteeing that water is managed for the benefit of citizens and the national interest.
Good water governance must not only have the right content (such as the environmental and equity features described in the international discourse) and a strong capacity, but it must also have certain process-oriented characteristics such as transparency, certainty and accountability. These characteristics help reinforce the rule of law and fend off corruption. For regulations, contracts, negotiations and incentives – the management tools of government – to succeed, there must be a sense of trust among the actors that the rules will apply equally to everyone, that infractions will be punished, and that the government will uphold its end of the contract or deliver on the promised incentives. A corrupt government breaks this trust by using a shadow agenda of private gain rather than its stated agenda of public stewardship.
By establishing policies and laws that demand transparency in all its dealings, a government allows citizens, a loyal opposition and a free press to examine its actions and blow the whistle on corrupt practices. By establishing a strong independent judiciary, a government increases the certainty that those who violate the rules will be brought to justice and that individuals, organizations or corporations can settle disputes in an impartial forum. All actors can help hold each other accountable through the courts, other mechanisms of dispute resolution, and the ever-present tribunal of public opinion best expressed in free elections. Although governmental systems vary in their degree of centralization and democratic participation, all can find ways to promote transparency, certainty and accountability to create an enabling environment for reform of water governance.
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