Chapter 1 Creating Water Governance Capacity


1.1 Managing water effectively

How a country manages its water resources determines the health of its people, the success of its economy, the sustainability of its natural environment, and its relations with its neighbours. Good water management can provide clean drinking water and sanitation, the basics of good health, while poor water management can increase disease and suffering. Good water management can bring hydroelectric power to homes and industry, irrigation for agriculture, and improve the economy, while poor management can mean lack of power, desiccated crops, floods and famine. Good water management allows water for wildlife to maintain biodiversity, and provides opportunities for recreation and tourism, while poor management can result in parched ground, dried-up lakes and silted harbours. Good water management can result in harmonious and mutually beneficial water agreements with neighbouring countries, while bad management can trigger tensions and conflict.

In short, good water management brings tangible benefits to a country. Case 1.1 demonstrates an example of the benefits brought by improved management of water, whilst Case 1.2 shows the detrimental consequences of poor water management.

Case 1.1 Benefits of good water management in Dar es Salaam1

In the Kitunda Settlement of Dar es Salaam's Ilala District, in Tanzania, a community-managed water supply system changed the lives and work of the Kitunda community.

Apart from providing water to the surrounding four schools and a local health centre, the project has led to a dramatic improvement in hygiene, virtually eliminated waterborne diseases, and made it possible for people who previously spent time and energy looking for water to engage in more constructive economic activities. Before the project's implementation, the people of Kitunda had to buy water from mostly shallow, privately-owned boreholes and from private vendors, which was of poor quality and a high price. Before the project started, private vendors sold water at prices upwards of TSh500 or US$0.40 cents for 20 litres, a prohibitive amount for much of the population.

Today, everyone in this community enjoys reliable, affordable clean water paying only Tsh20 or about US$0.02 cents for 20 litres of water, according to the Chairman of the Biblia Relini Water Users' Association, commonly known as JUWABERI, the group that manages the project. JUWABERI manages the water supply project on behalf of the state-owned water utility, the Dar es Salaam Water and Sewage Authority (DAWASA). The association, which boasts 340 members, employs 20 people who manage the revenues and administer the public standpipes. The project is a successful example of a community managing its own water provision and subsequent income. Members of the community contributed TSh2.5 million (about US$2,000), about 5 percent of the total cost of the project.

Case 1.2 Detrimental consequences of poor water management2

The costs of environmental and health degradation due to inadequate water and sanitation services have been estimated at more than 1 percent of GDP in Colombia, 0.6 percent in Tunisia, and 1.4 percent in Bangladesh. According to the World Bank Water and Sanitation Program (WSP), poor sanitation is responsible for at least US$9 billion in economic losses per year in Cambodia, Indonesia, the Philippines and Viet Nam combined. Sanitation is a neglected aspect of development in countries where spending is limited which has severe social consequences on their populations. The most devastating impact of poor sanitation is an increased risk of infectious disease and premature death, accounting for more than US$4.8 billion, or US$12 per capita annually, according to WSP.

Poor sanitation also contributes significantly to water pollution – adding to the cost of safe fresh water for households, and reducing the production of fish in rivers and lakes.

Water managers understand the increasing stress placed on fresh water sources by growing populations, growing demands of industry and agriculture, and the uncertain effects of climate change. Innovative water managers, from professionals with a national water authority to local managers who oversee dams or hydro plants, can do much to ensure that water is carefully managed. However, even their best efforts can be thwarted by the lack of a comprehensive legal and policy framework that levels the playing field, clarifies the rules, and sets a country on the route to good management.

RULE focuses on the importance of national policy and laws in effective water management. Policy and law, although usually in the background of development, and not always directly discussed in the context of good management practices, provide the skeleton that is fleshed out by institutions and management practices. Policy and law, when combined with institutions, implementation, and enforcement mechanisms, constitute a country's ‘water governance capacity’.

Photo 1.1 Women collecting water from a canal (Tanzania). Water governance capacity is about building a management system that delivers tangible results for ecosystems and human wellbeing.

RULE provides practical guidance on how to create a system of effective water governance at the national level. It seeks to serve as a guide on how to shift away from often fractured and uncoordinated approaches by establishing a central role for policy and the rule of law. With coordinated laws, policies and institutions, many issues that are presently problematic for local managers can be addressed.

Laws, policies, institutional arrangements, and implementation and enforcement methods from many countries are analyzed and guidelines developed for reforming water governance structure. Of course, there are many varieties of successful laws and policies that suit countries with different traditions and forms of government. Thus, an attempt is made to match policies to certain governmental situations (see Chapter 2).

Water governance is a means to an end, which is good water management. Good water management can be characterized as:

Efficient: It maximizes the use of water resources under rational patterns of consumption that can benefit most consumers, taking into account not only the water, but also other resources, including social and human capital.

Equitable: Both benefits and costs are shared and a transparent process is used to arrive at societal decisions applied to water management.

Sustainable: Water management supports the ability of a society to endure over time without undermining the integrity of the hydrological cycle or the ecosystems that depend on it.

1.1.1 Brief history of water management

Water management dates to ancient times when stone rows and ditches were used for irrigation and later aqueducts were built to carry water to cities. For most of human history, the purpose of water management was to bring water to where it could be used for drinking, washing, power and irrigation. Water management was also used to even out the fluctuations of flood and drought by storing water and to carry away waste. However, as human numbers grew and as society developed ever more water-demanding forms of industry and agriculture, users began competing for water with each other and with the natural world. Today, water management means not only delivering water services, but doing so in a way that balances the competing interests of individuals, industry, agriculture and wildlife. It also maintains good relations between all the users who share water resources and develops systems that will accommodate future generations.

Large-scale industrial-age water projects like the Tennessee Valley Authority in the United States, the Aswan Dam in Egypt and the Ilisu Dam in Turkey produced astounding economic development in the areas they served. Such development of water resources has also had negative effects including flooding of populated, productive valleys and forcing the relocation of thousands of people. Reservoirs became silted up with the result that natural replenishment of soil fertility was withheld from downstream crops.

Since the early 1990s, triggered by the growing scarcity of clean water and the significant alteration of habitat, international bodies have been urging reform in national water policies and laws. The current international discourse is captured in a series of statements and documents such as the World Water Vision,3 the World Commission on Dams Report,4 the Millennium Development Goals (MDGs),5 and the outcome of the United Nations Commission on Sustainable Development (CSD), as well as the Dublin Statement on Water and Sustainable Development6 (see Box 1.1), the Paris Declaration on Water and Sustainable Development International Conference,7 and the Ministerial Declaration of the World Water Forum.8

Box 1.1 The Dublin Statement on Water and Sustainable Development

Guiding principles:

1. Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment. Since water sustains life, effective management of water resources demands a holistic approach, linking social and economic development with protection of natural ecosystems. Effective management links land and water uses across the whole of a catchment area or groundwater aquifer.

2. Water development and management should be based on a participatory approach, involving users, planners and policy makers at all levels. The participatory approach involves raising awareness of the importance of water among policy makers and the general public. It means that decisions are taken at the lowest appropriate level, with full public consultation and involvement of users in the planning and implementation of water projects.

3. Women play a central part in the provision, management and safeguarding of water. This pivotal role of women as providers and users of water and guardians of the living environment has seldom been reflected in institutional arrangements for the development and management of water resources. Acceptance and implementation of this principle requires positive policies to address women's specific needs and to equip and empower women to participate at all levels in water resources programmes, including decision making and implementation, in ways defined by them.

4. Water has an economic value in all its competing uses and should be recognized as an economic good. Within this principle, it is vital to recognize first the basic right of all human beings to have access to clean water and sanitation at an affordable price. Past failure to recognize the economic value of water has led to wasteful and environmentally damaging uses of the resource. Managing water as an economic good is an important way of achieving efficient and equitable use, and of encouraging conservation and protection of water resources.

This international discourse provides ideas and guidelines that can be adapted and further developed by national policy and legislation. It often provides the ‘lingua franca’ with which to engage with other states to synchronize policies over shared resources. It is also linked to international norms and standards to which many countries have agreed to abide. When developing a new water policy it is therefore essential to be aware of the international discourse.

The discourse has generally incorporated the ideas of sustainability and human rights into water management. Sustainability and social welfare are incorporated into Integrated Water Resources Management (IWRM, see Box 1.2), which is defined as:

‘A process that promotes the coordinated development and management of water, land and related resources to maximize economic and social welfare in an equitable manner without compromising the sustainability of vital ecosystems.’ 9

“IWRM IS A COMPLEX UNDERTAKING THAT PRESENTS MAJOR CHALLENGES FOR NATIONAL WATER GOVERNANCE SYSTEMS”

Most of the recent water reform processes focus on IWRM, which has been promoted internationally in various fora, and has been the objective of national plans in Nicaragua, Ecuador and South Africa, to mention but a few countries. However, the implementation of IWRM is a complex undertaking that presents major challenges for national water governance systems. By definition, IWRM perceives water governance as a multi-stakeholder process in which social, political and economic institutions and their relationships are regarded as important for water development and management. IWRM has not yet been implemented successfully in many places and it might be argued that its lack of focus on developing suitable legal and policy mechanisms to support it has slowed its adoption.

Box 1.2 IWRM in international policy

Excerpts from international policy documents on the concept of Integrated Water Resources Management

1. Integrated water resources management is based on the perception of water as an integral part of the ecosystem, a natural resource, and a social and economic good, whose quantity and quality determine the nature of its utilization. To this end, water resources have to be protected, taking into account the functioning of aquatic ecosystems and the perenniality of the resource, in order to satisfy and reconcile needs for water in human activities. In developing and using water resources, priority has to be given to the satisfaction of basic needs and the safeguarding of ecosystems. Beyond these requirements, however, water users should be charged appropriately.

Source: Agenda 21. Chapter 18. Protection of the quality and supply of freshwater resources: application of integrated approaches to the development, management and use of water resources.

2. Halve, by 2015, the proportion of the population without sustainable access to safe drinking water and basic sanitation.

Source: Millennium Development Goals, Goal 7, Target 3.

3. The provision of clean drinking water and adequate sanitation is necessary to protect human health and the environment. In this respect, we agree to halve, by the year 2015, the proportion of people who are unable to reach or to afford safe drinking water (as outlined in the Millennium Declaration) and the proportion of people who do not have access to basic sanitation).

Source: Johannesburg Plan of Implementation of the World Summit on Sustainable Development, Johannesburg, South Africa, 2002.

“THE RIGHTS-BASED APPROACH HAS GAINED SOME RECOGNITION AT THE INTERNATIONAL LEVEL”

More recently, international discourse has promoted another line of reform – a rights-based approach (RBA) to water management, which asserts that humans have a right to clean water (see Box 1.3). Thus RBA combines human development with human rights. It deals not only with human needs and development requirements, but also proposes a societal obligation to guarantee and protect inalienable rights of individuals. It empowers people to demand water access as a right, and gives communities a moral basis from which to claim international assistance.

Although a human right to water may ‘entitle everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses’,10 significant economic resources are needed to deliver clean water to every individual. While the rights-based approach has gained some recognition at the international level, there are still uncertainties about its meaning and practical implications.

Box 1.3 The Right to Water

On 12 November, 2002, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) adopted General Comment Number 15 (GC15), ‘The Right to Water’. Under this policy framework, national governments would have six explicit obligations:

1. Realize that people have a right to lead a life with human dignity.

2. Recognize the entitlement of everyone to sufficient, safe, acceptable, physically accessible, and affordable water for personal and domestic uses.

3. Guarantee that the right to water is enjoyed without discrimination.

4. Recognize citizens' right to seek, receive and impart information concerning water issues.

5. Agree to the government's obligation to respect, protect and fulfil its citizens' rights to water.

6. Refrain from interference and sanction, and prevent violations by organizations of which the state is a member or which it administers.

The right to water has impacts at the national, community and individual levels.

The national level

The community level

The individual level

Table 1.1 Components of a national legal framework

At least one national court has recognized the right to water. In India, the Kerala High Court established that the ‘right to sweet water and the right to free air, are attributes of the right to life, for these are the basic elements which sustain life itself’. The Indian Supreme Court has interpreted the fundamental right to life under the Constitution to include the right of enjoyment of pollution-free water. It ruled that if anything endangers or impairs this right, a citizen might directly approach the Supreme Court under Article 32 of the Constitution.

Of course, IWRM and RBA are not mutually exclusive. In fact, there are opportunities to build bridges between them, allowing a stronger vision of a path towards effective water management. For instance a constitutional guarantee of a human right to water through IWRM principles would enhance water security for more people, especially the most vulnerable and marginalized (see Table 1.1).

“IWRM AND RBA ARE NOT MUTUALLY EXCLUSIVE AND THERE ARE OPPORTUNITIES TO BUILD BRIDGES BETWEEN THEM”

1.2 Importance of policy and law

It is at the national policy level that elements from the international discourse can be translated into actual practice. National policy sets out the philosophy and goals of water management. Policies determine whether a country will focus on using its water resources for industrial development or provide a sustainable long-term infrastructure to deliver clean water to all citizens. In theory, policies set a clear direction, which is then codified into law and implemented in practice. However, in many countries, policies formed at different times by different administrations and interest groups are in conflict and can cause stalemate or confusion among managers. Reforming national water policies allows for discussion and debate on the merits of various directions and engages different interest groups and stakeholders in crafting documents that set the direction for a country's water management. Policies can encourage transparency and citizen involvement in water planning and they can provide incentives for the private sector to engage in contracts with governments to deliver water services. Policies can set priorities for water use and they can declare that every citizen has a right to clean water.

“NATIONAL POLICY SETS OUT THE PHILOSOPHY AND GOALS OF WATER MANAGEMENT”

Laws codify public policies. The certainty of law allows businesses and local authorities such as municipalities to plan ahead and invest knowing that water will be provided according to a certain structure. Laws determine who has the right to use water from different sources. Laws can give citizens the right to potable water, and thus the right to seek redress if they do not receive it. They can set up mechanisms for government to form partnerships with private industry. Finally, they can influence how a government negotiates with neighbouring states over water issues, or they can be passed in response to international negotiations. Clear, secure and well drafted laws reduce transaction costs, clarify property rights, and allow citizens to get involved and understand the economic and legal process related to water management. Corruption can be reduced when the laws ensure transparency and accountability.

Most countries have policies and laws related to water management. However, in most cases, these policies and laws have accumulated over time, spawned from different philosophies and approaches, and have never been reconciled. Reforming national policies and laws into a cohesive package is a difficult and time-consuming task, but countries that have tackled it have found that their ‘downstream’ implementation plans go more smoothly (see Case 1.3).

Case 1.3 Development of a coherent water management plan in Brazil 11

Water law in Brazil is a complex mosaic. First regulated in the Código de Águas de 1934 (Water Code of 1934), water was later incorporated into general environmental law in 1988 and made subject to public domain in the Federal Constitution of the same year. General norms regarding water governance introduced in the 1988 Constitution allowed state and municipal legislation to supplement water law wherever federal laws did not control the field.

The legal reform process was the result of a progressive decentralization of its water governance. Following the development of hydroelectric infrastructure in the 1960s, relevant powers were shifted to the Energy and Mines Ministry, and since 1995 such authority rests within the Environment Ministry. In the second half of the 1990s, the government underwent significant shifts in its conceptions of water management, recognizing the finite nature of water resources in the country and regarding water management as an environmental and sustainability issue that requires a fully integrated, participatory approach for success.

In 2000, the Agência Nacional de Águas (National Agency of Waters) was created, with autonomy and special responsibilities for implementing national water policy and coordinating the national water management system. Additionally, Comitês de Bacia (Basin Committees) are federal boards responsible for regional and local water resource decisions. Finally, state water agencies oversee state and local water management decisions to the extent their jurisdiction is not superseded by higher agencies.

As a result of a comprehensive system of policy, laws and institutions, Brazil has been able to substantially improve its water management structure.

1.3 Water governance capacity

Water governance capacity is a society's level of competence to implement effective water arrangements through policies, laws, institutions, regulations and compliance mechanisms.

Figure 1.1 illustrates the concept of water governance capacity as it relates to the establishment of a system for effective water governance. At the core is the concept of water governance capacity, followed (in concentric circles) by policy, law, institutions and compliance. Each outer circle builds on the inner circles. Thus without a clear policy, it is difficult to develop a coherent system of laws. Without a clear established legal structure, it is difficult for institutions to know how to operate. Without effective institutions, compliance and enforcement are likely to be lax.

“WITHOUT A CLEAR ESTABLISHED LEGAL STRUCTURE, IT IS DIFFICULT FOR INSTITUTIONS TO KNOW HOW TO OPERATE”

Whatever its policies toward water management, a country needs to develop each of these areas – policy, law, institutions, regulations, contracts and compliance – in order to have effective water governance. Achieving a balance of capacity (rather than areas of strengths and weaknesses) is best. RULE offers advice on how to identify weaknesses, strengthen each area, and keep them in balance to achieve good water governance. Each chapter of RULE deals with one of the areas depicted as rings in Figure 1.1.

The establishment of water governance capacity may follow different patterns in different countries. Not every country pursues the same sequence in terms of adopting policies on water, enacting the laws to realize the policies, and establishing the institutions to implement the law. However, it is possible to offer guidelines that might help policy makers think through the issues and elements necessary to achieve water governance capacity and show examples of how this capacity has been achieved in some places.

Figure 1.1 Components that are integral to Water Governance Capacity (WGC)

“THE ESTABLISHMENT OF WATER GOVERNANCE CAPACITY MAY FOLLOW DIFFERENT PATTERNS IN DIFFERENT COUNTRIES”

1.4. Organization of RULE

RULE has a chapter on each of the components of water governance capacity: policy, law, institutions and implementation.

1.4.1 Policy

Policy is a government's plan and strategy on how to address an issue. As the international discourse on water management has shifted from using water purely for economic development to incorporating community and environmental concerns to develop water use in a more sustainable way, national policies are being reformed to reflect the new thinking. Policies are made through legislation and executive orders and they can be created by decree from above or pressure from below.

Chapter 2 identifies elements of a sustainable water policy and looks at questions that should be addressed in building a good policy. Recognizing that governments have different orientations – from authoritative, to liberal democracy, to participatory – and that within each form of government there may be elements of other forms, the chapter looks at how elements of water management can be approached differently under the different forms of government. Finally, it looks at how ten principles of New Public Management (NPA) can be incorporated into national water policy,

1.4.2 Law

One of the reasons why effective water governance has not been achieved in many countries is that concrete legal reform is needed in relation to water. Effective water governance must be supported by a coherent legal system that formalizes the reform processes through law.

Chapter 3 examines different types of legal systems (civil law and common law) that define water rights and allocation and looks at how various countries have dealt with the three broad areas usually regulated by water law: allocation of water resources and pollution control; consistency of water law with other laws regarding natural resources and sustainable development; and setting up the institutional machinery needed to enforce the laws.

A coherent legal system for water management should:

The chapter looks into the weaknesses of existing legal systems and offers practical steps for reforming water law at the national level.

1.4.3 Institutions

Appropriate institutions need to be established to carry out the mandates of the laws. These institutions can include basin commissions within a country and membership on international basin commissions, national water authorities, municipal water and sewer authorities, farmers' cooperatives and associations, and local water boards. Chapter 4 examines institutions at the local, national and regional water basin level, and government relations with the private sector and civil society through non-governmental organizations (NGOs). It argues that good institutional structures must also have clear direction, mandates, honesty, openness to stakeholder participation and transparency.

1.4.4 Implementation

Policies, laws and institutions set up an enabling environment for the implementation of water governance. Chapter 5 explores the required elements for setting up that enabling environment. It examines the broad notion of regulations as tools for carrying the intent of policy and law into practical rules. It also analyzes negotiations and the emerging concept of using covenants as alternative or complementary implementation mechanisms to command and control management.

The chapter looks at the important issue of compliance with established laws, contracts and partnerships developed to manage water. Compliance mechanisms must be built into the laws, institutions and contracts and then followed up with monitoring and enforcement devices. This chapter offers suggestions for setting up a clear compliance apparatus and/or how to improve it.

1.5 The water governance capacity checklist

Since every country already has some form of water governance structure, it is useful for water managers to compare their structure and rules with a set of norms that reflect the current state of the art in order to highlight areas in need of improvement. Therefore, a series of fixed criteria and relevant issues must be considered in order to make rational decisions on priorities for improving water management. Within that context, the following checklist provides a guideline for water managers to reflect on the strengths and weaknesses of their current capacity for policies, laws, institutions, regulations, implementation and enforcement.

This is an indicative list of issues that must be considered when assessing water governance capacity. The list is not exhaustive but can be used as a set of guidelines to help water managers and policy makers understand where to focus their efforts to improve their water governance capacity.

Overall direction of water management

Policy. How well do your national water policies:

Law. How well do your national water laws:

Institution. How well do your national water-related institutions:

Implementation. How well do your regulatory agencies:

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