Chapter 2 Linking Policies to Realities


2.1 The role of water policy

Theoretically, policy and law can easily be distinguished from each other. However, in reality they are inter-related like two sides of a coin in an ongoing process that builds water governance structures.

Policy is a blueprint for drafting and amending laws, as well as an opportunity for meaningful public consultation in the reform and development of new laws. Because a policy document is usually a ‘living document’ it can easily be revised to cater for developing international and national environmental norms and values.

“POLICY IS A BLUEPRINT FOR DRAFTING AND AMENDING LAWS”

The role of policy is to facilitate institutional and legislative reform. It also promotes the coordination of actions and activities of other government agencies regulating issues that are relevant to water management and water protection. Policy can also facilitate a smooth transition during times of legal and regulatory reform by indicating expected changes in law, and allows for implementation planning and capacity building to commence.

Policy provides guidelines:

Legislation is distinct from, but complementary to, policy. It establishes and clarifies rights and obligations. It creates legal certainty thereby facilitating orderly compliance and enforcement of laws. Greater legal certainty facilitates more efficient economic (for example, budget allocations) and financial planning (for example, financial provision made in the private sector to meet new compliance requirements), and thereby contributes to market stability and potential growth.

Legislation protects against capricious administrative decision making and ensures a rights-and-risk-based approach that provides a more effective framework for integrating the economic, social and environmental dimensions of decision making. It defines complex technical, scientific and economic terms; defines roles and responsibilities of regulatory agencies and civil society and establishes rules for accountability; and creates binding rules for dispute resolution.

Policy provides a set of guidelines for how an issue is to be handled by the government but it is ordinarily non-binding on the State and members of civil society (unless it is given the force of law through legislation). Conversely, legislation is binding on members of civil society and usually the State, and creates positive and negative rights and corresponding obligations.

“LEGISLATION ESTABLISHES AND CLARIFIES RIGHTS AND OBLIGATIONS”

Policy development should ideally be the first step on the path to regulatory reform. The policy development process provides an opportunity to engage experts and research in order to ensure the effectiveness and efficiency of the water statute/act/regulation that will ultimately be enacted. This process affords an important opportunity for considering how to integrate laws in order to avoid conflicts, contradictions and duplications in administrative requirements (for example, double-permitting). A well conducted and highly participatory process of policy development has the advantage of building public awareness and building capacity at an early stage.

A well drafted policy becomes an instruction manual for the drafters of the new legislation. Because it is non-binding, it is more easily changed and can inform changes to draft legislation at an early stage and prior to enactment (when it becomes more time-consuming to change).

Potential water policy reformers must have a good understanding of how to structure a water policy reform process. Because more stakeholders are becoming involved in governmental processes, water reformers need to create a widely shared understanding of what water policy is and how it can be used in water governance. Understanding of the components of water policy is needed to support use of policy to make water reform processes effective.

“POLICY DEVELOPMENT SHOULD BE THE FIRST STEP ON THE PATH TO REGULATORY REFORM”

A water policy is a country's strategy to deal with water-related issues. Water policies are often prepared by governments to guide governance, management and investments in the water sector or in relation to water resources. A policy can be the culmination of a long period of public involvement (see Section 2.4). Preferably the policy is straightforward and understandable and formulates a clear vision of the country's priorities. A water policy is a country's plan to attain its vision for water outcomes consistent with broader policy objectives on, for example, economic development, health, security and the environment. Water policy usually defines the key water issues the country is facing or will be facing in the near future. It further outlines a number of principles that provide strategic guidance to the nation and local government on how its institutions will develop, govern and manage water resources and provide water services.

Photo 2.1 Women using water resources at an outflow point (Tanzania). Water policies can affect people's livelihoods, and should introduce proactive, sustainable and equitable measures that encourage efficiency.

“A WATER POLICY IS A COUNTRY'S PLAN TO ATTAIN ITS VISION FOR WATER OUTCOMES”

Water policy needs to address basic questions such as:

2.2 Vision for the future

A vision describes the state that we hope to reach through policy, law and implementation. To take a simple example, the County of Fairfax, Virginia, United States, states the following vision in regard to its wastewater treatment:

‘To achieve a pure and natural state of air and water quality by providing superior wastewater utility service in a spirit of teamwork and excellent customer service.’

South Africa frames a vision for water management in the slogan of the Department of Water Affairs and Forestry, ‘Some, For All, Forever’, which sums up its goals of access to a limited resource on an equitable basis, in a sustainable manner.

A vision may be followed by a core set of principles that should be followed to achieve the ideal model of future water management.

2.3 Water policy principles

Ideally, the set of principles will aim to drive progress towards environmentally and economically sound practices under an effective water governance scheme. As mentioned in Chapter 1, good water management is efficient, equitable and sustainable. Some ideas on how to incorporate these principles into policy are given below.

2.3.1 Efficiency

Water has an economic value in all its competing uses and should be recognized as an economic good. Water allocation and use should strive to make the most efficient use of the resource, reduce wastage, and optimize the benefits derived. Water policy can promote efficiency by incorporating these ideas:

“WATER HAS AN ECONOMIC VALUE IN ALL ITS COMPETING USES AND SHOULD BE RECOGNIZED AS AN ECONOMIC GOOD”

2.3.2 Equity

Water management and allocation should promote more equitable access to, and use of, water to benefit all parts of society. Particular attention should be paid to addressing the needs of the poor and the vulnerable. Equity can be incorporated into policy by incorporating the following:

2.3.3 Sustainability

Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment. Water management must find a balance between environmental, social and economic needs. Sustainability can be incorporated into water policy by some of the following steps:

“WATER MANAGEMENT MUST FIND A BALANCE BETWEEN ENVIRONMENTAL, SOCIAL AND ECONOMIC NEEDS”

2.3.4 Setting out policy goals and principles

It can be helpful to write out goals or principles for water policy in advance of actually determining the policy. For example before drafting its policy statement on water management, the Government of South Africa developed a set of 28 principles in different categories that the policy would address. These Fundamental Principles and Objectives for a New Water Law for South Africa12 incorporate the principles of efficiency, equity and sustainability (see Case 2.1).

With regard to the implementation of the principle of efficiency, South Africa's Fundamental Principles provide that the Government will make sure that the development, allocation and management of water is done in an efficient manner reflecting its public trust obligation and the value of water to society, while ensuring that domestic, environmental and international obligations and needs are met. Also, water services shall be regulated in a manner which is consistent with the aim and approaches of local governments or, when giving authorization to use water, the Government shall take into account the investment made by the user in developing the infrastructure to use that water.

“IT CAN BE HELPFUL TO WRITE OUT GOALS OR PRINCIPLES FOR WATER POLICY IN ADVANCE”

As far as equity is concerned, the Fundamental Principles establish that beneficiaries of a water management system shall contribute to its costs on an equitable basis, and that the water that is required to ensure that all people have sufficient water, shall be reserved.

The principle of sustainability is endorsed in different ways in the South African Fundamental Principles; for instance, water resource development and supply shall be managed in a way that is consistent with broader approaches to environmental management; water quality and quantity are interdependent and shall be managed in an integrated way consistent with broader environmental approaches; and water required to maintain ecological functions on which humans depend shall be reserved so that human use of water does not compromise the long-term sustainability of aquatic ecosystems.

2.3.5 Forging policy

Once there is some clarity and agreement on a vision and policy principles, tasks preferably done in a highly participatory setting, there is often a period of research and development of ‘white papers’ or documents that examine current conditions and propose policy solutions. Eventually, the discussion papers may evolve into policy statements and ultimately into legislation. This may happen through a ‘strategic planning process’ or more haphazardly. Although these elements can be easily separated for analytical purposes, in reality they can become intertwined.

The case of South Africa is relevant to understanding how a policy and legal reform process contributed to the progressive development of a country's water governance capacity. From the very start of the water reform process, issues related to equal access to safe drinking water and sanitation were part of a national concern. Under the apartheid regime, access to and distribution of water rights were determined on a racially discriminatory basis. Oppressive programmes of land dispossession which linked water rights to land rights characterized the colonial and apartheid eras. No account was taken of the basic human needs of South African people as a whole.

Case 2.1 Water reform in South Africa

The success of the South African reform process can be attributed to the importance of strong political will. In 1994, the Minister of Water Affairs and Forestry appointed a Policy and Strategy Team – an advisory team made up of persons of different genders and from different racial, political and cultural backgrounds. Through the Minister, the Policy and Strategy Team gave direction to a Drafting Team constituted by the Minister and made up of legal and technical specialists.

The process commenced with a detailed review of all South African water laws. In March 1995 a document entitled You and Your Water Rights was published by the Department of Water Affairs and Forestry. This document sought to assist the public in making meaningful contributions to policy development, and set out the main principles and provisions of the then existing legal structure and also contextualized these against their origin and historical development.

As a result of the call for a public response to the review of South Africa's water law, in April 1996 the Fundamental Principles and Objectives for a New Water Law in South Africa was published for comment. These principles were designed to focus attention on the primary areas of water management requiring urgent transformation. The principles were simple and concise statements which would constitute a framework for the development of a new detailed policy and a new national law. They were developed, through consultation, by having regard to, for example, constitutional shortcomings noted in the existing law; the urgent need for a modern and more appropriate approach to water resource management in South Africa; and an acknowledgement of the need to establish founding principles and objectives for the development of new policy and law that would be accessible to everyone. After undergoing a number of revisions following widespread formal consultative meetings, these principles were approved by Cabinet in November 1996.

Parallel to this, the constitutional reform process strengthened the political momentum for a water policy reform. The new Constitution of South Africa adopted in December 1996 addresses water issues in different ways. Within a context of social justice, equality and human dignity, it recognizes a series of individual rights directly related to water, such as the right of life or the right to an environment not harmful to one's health and wellbeing. At the same time, it contains the country's commitment to land reform, with a view to ensuring equal access to natural resources, and recognizes the progressive realization of this right. The same principle applies to the right to health care, food, water and social security.

In April 1997, the South African Cabinet approved the White Paper on a National Water Policy of South Africa, a comprehensive and detailed document addressing resource management and water supply. The White Paper identified key proposals to guide management of water in South Africa and to serve as an official democratically developed and approved guideline for the drafting of a new water law.

Under the slogan ‘Some, For All. Forever’, the White Paper confirmed that water is an indivisible resource and a national asset, and abolished the system of riparian rights through which water ownership was tied to land ownership along rivers. It recognized water to meet basic human needs and maintain ecosystems as a right. It recognized the authority of the country to prioritize water uses to meet the requirements of neighbouring countries and promoted an integrated system of managing water quality, quantity and supply.

With the approval of a new national Constitution, the adoption of policy principles within a consultative pro cess, the logical next stage in the reform process was the codification of these principles in a law.

In 1997, the Government adopted the Water Services Act, and a year later the National Water Act.

The National Water Act includes the following instruments:

The new policy deriving from the South African water reform process provides the country and all its citizens with a series of constitutionally guaranteed individual rights relating to water, and, as a result of this, a starting point to correct existing inequities, and mechanisms to exercise their rights, and a series of rules that envision water management according to standards of democracy, transparency and sustainability. Far from being perfect, the system is not only the result of a consultative process of water reform but provides an enabling environment for further development of the water governance capacity in the country.

2.4 Process principles for water policy

For water management to be effective over time, policy must also incorporate certain process elements. These elements are found in any type of effective governance and can be adapted to centralized or decentralized forms of governance. They are discussed in more detail in Chapter 5, on implementation, but are outlined here because they must be thoroughly incorporated into policy, laws and institutions. These process principles are transparency, certainty and accountability as well as creating mechanisms for and encouraging public participation. By following these principles a government or agency can avoid bureaucratic inefficiencies and the temptations of corruption that are responsible for the demise of so many well laid plans.

“FOR WATER MANAGEMENT TO BE EFFECTIVE OVER TIME, POLICY MUST ALSO INCORPORATE CERTAIN PROCESS ELEMENTS”

The process principles are interrelated, mutually reinforcing, and interdependent. For example, accountability means more transparency, broader participation and more effective decision making. Broad participation contributes both to the exchange of information needed for effective decision making and for the legitimacy of those decisions. Legitimacy, in turn, means effective implementation and encourages further participation. Responsive institutions must be transparent and function according to the rule of law if they are to be equitable.

2.4.1 Transparency

Transparency means that business is done in the open rather than in secret. Documents are available to the public, meetings are open, public input is sought and considered. By opening proceedings to the light of day, especially to the inspection of a free press, a loyal opposition party, and public interest groups, corruption will be discouraged or at least discovered.

Transparency can be incorporated into water policy for instance by:

“TRANSPARENCY MEANS THAT BUSINESS IS DONE IN THE OPEN RATHER THAN IN SECRET”

2.4.2 Certainty

Certainty is an intangible that is crucial to attracting non-governmental and private organizations to help with the work of water management. The higher the level of certainty for any given transaction, the greater the willingness of stakeholders to participate. Without a clear sense of the rules and the expected outcomes, stakeholders are unlikely to commit their resources to working with government agencies. Governmental corruption destroys certainty on a broad scale because it allows favours to be bestowed on some stakeholders in return for money or other services. Certainty exists only when all the rules are stated and followed, and all the consequences of not following the rules are known and enforced. Certainty can be for example incorporated into policy by:

2.4.3 Accountability

Water managers and decision makers should be accountable for the consequences of their actions. Transparency in decision making and contracting is vital to ensure accountability. The steps listed below could promote better accountability:

2.4.4 Public participation

Water development and management should be based on a participatory approach, involving users, planners and policy makers at all levels. In many parts of the world, women play a major role in providing, managing and safeguarding water, and should always be involved at all levels of decision making. Decision making and management should be done at the lowest appropriate level of government. The following actions will help ensure participatory decision making:

“DECISION MAKING AND MANAGEMENT SHOULD BE DONE AT THE LOWEST APPROPRIATE LEVEL OF GOVERNMENT”

2.5 Context of water policy reform

Different countries are in different phases of water policy development and reform. Some have water policies and plans that are 50 or more years old while others have only recently adopted new IWRM policies. It is therefore essential to define the context within which a new policy is developed to understand what types of new policies are appropriate for a particular context. If there is an ongoing reform process, as in many countries, the reform paradigms should be clearly reflected in the water policy.

2.5.1 Historical context

Water policy should be updated regularly to respond to changing values and to address emerging water issues. Water management and governance are constantly evolving, both in terms of the prevailing discourse and in actual practice. In evolving societies, water policy is changing from an exploitative approach with a focus on nation building and economic development, to an approach that is oriented towards serving a wider set of needs, including social and environmental demands. Therefore in most countries, updating water policy means incorporating more encompassing social and environmental goals.

“UPDATING WATER POLICY MEANS INCORPORATING MORE ENCOMPASSING SOCIAL AND ENVIRONMENTAL GOALS”

2.5.2 Political context

Political priorities adapt with new governments and changing public opinion. They shape the priorities for public investments and the focus of the development or enforcement of new policies or legislation. In many OECD and non-OECD countries, state modernization is following key principles of the New Public Management (NPM) model, which applies private-sector management principles to the public sector. This promotes efficiency, effectiveness, delivery, flexibility, measurement and outputs. NPM argues for cost reduction in public policy implementation. The ten principles of NPM are given in Table 2.1.

Table 2.1 Ten principles of new public management13

“WATER POLICY REFORM CAN BE MATCHED WITH VARIOUS MODELS OF GOVERNANCE”

2.6 Typology of water policy and planning reforms

Within a theoretical framework known as the Policy Arrangement Approach (PAA), water policy reform can be matched with various models of governance.

2.6.1 Three models of governance14

Three general models of governance can be defined as: Authoritative governance. A system with (de facto) one party within which decision making takes place under specific rules and in coordination with elected officials.

Liberal or representative democracy. A system of rules embracing elected ‘officers’ who undertake to ‘represent’ the interests or views of citizens within the framework of ‘rule of law’ and whereby implementation is done through partnerships.

Direct or participatory democracy. A system of decision making about public affairs in which citizens are directly involved and actively engaged in policy formulation and implementation.

This typology has been furthered developed and adapted to water governance in Table 2.2.15

This table shows that in an authoritative arrangement, much emphasis is placed on hierarchy and state power dominates. In this model, water policy development and implementation is led by the State and its vast number of organizations and bodies. In a pluralistic-liberal type of policy arrangement, water policy development and implementation involve negotiation and perhaps power-plays among many actors that must arrive at an agreement to move forward. A key aspect of this type of arrangement is that negotiations take place between actors as if they were in a ‘marketplace’. Under a decentralized-communitarian scheme, the participation of all stakeholders is needed to develop and implement water policy. Management of actors' networks, and/or re-valuating traditional community mechanisms of water governance are seen as key mechanisms for successfully implementing this type of policy arrangement (see Case 2.2).

Table 2.2 Overview of types of water policy arrangements

Case 2.2 Water for El Chaco: a model of decentralized water management16

Paraguay has substantial freshwater supplies in surface and ground water. It depends on four major trans-boundary rivers – the Paraguay, Parana, Pilcomayo and Apa – and many other national ones and counts on one of the world's biggest aquifers – the Guarani.

The Chaco region covers 60 percent of Paraguay. However, only some areas are abundant in water while others (such as Chaco Central and Bajo Chaco) suffer from droughts and water shortages. In the drier region the population is dramatically increasing and needs new water sources.

In 2003 the governors of the El Chaco region agreed on a new development action plan for the area. A wide range of stakeholders, including members of both the public and private sector, participated in a series of meetings to seek solutions bringing more water to the region and providing new sources of income.

A water council was established to oversee the water projects outlined in the governors' action plan. The water council appointed a statutory body called ‘Water for El Chaco’ to coordinate stakeholders' interests, programmes and projects. ‘Water for El Chaco’ sets a precedent for integrated water governance. It is a modern decentralized institution that represents both public and private sectors including municipal forces as well as associations of farmers, cattle ranchers, foresters, merchants, fishermen and indigenous communities.

Different types of policy arrangements can coexist within one State. Some policy arrangements are better suited to certain water management situations than others. Understanding which water issue can best be solved with which type of policy arrangement is key to successful water reform.

“DIFFERENT TYPES OF POLICY ARRANGEMENTS CAN COEXIST WITHIN ONE STATE”

2.6.2 Three models in four dimensions

Table 2.3 shows how the three models can play out along four dimensions: discourse, coalitions, resource distribution and rule making. When and where each model is best used depends on the nature of the political system in which water governance reform takes place. Identifying which model is most suited to a given context increases the chances that reform processes will be successful and lead to more effective water governance.

Authoritative water policy
Water policy --> Strategy --> Design --> A plan

Authoritative water policy is based on an intervention discourse with top-down principles and planning. Policy is formulated through a very formal process aimed at producing a policy document that is used to develop clear objectives, operating plans and budgets. It is mostly implemented by governmental coalitions aimed at resolving specific water issues. Legitimized state regulatory power is used as the main resource for strategic planning. The rules are supported by legislation and strict working procedures.

Table 2.3 Typology for water policy arrangements17

Authoritative water policies and their arrangements are usually linked to large water infrastructure works regarded as of interest to national security or economic development. The construction of large dams is typically carried out under this kind of policy arrangement. Often one ministry leads the development of the policy in cooperation with other ministries.

Pluralistic-liberal water policy
Water policy --> Strategy --> Negotiations --> A deal

The pluralistic-liberal policy arrangement is based on a balanced approach to policy making, including societal negotiations and partnership coalitions between governmental bodies and stakeholders that aim to integrate different interests. A state budget is the main resource for coordinated policy implementation. The rules are laid down in covenants that take current legislation and policies for granted.

This type of policy arrangement requires that the parties involved have the skills and willingness to negotiate. Someone must take the lead in bringing the actors together and creating common understandings on different management issues. It works best with parties that are closely linked to a geographic area such as a watershed or river basin.

Decentralized-communitarian water policy
Water policy --> Strategy --> Joint action --> Learning by doing

A decentralized-communitarian policy arrangement is based on local initiatives, including local participation in cooperative settings with governmental bodies and other stakeholders that aim to develop and execute specific goals in a region. Social capital is the main resource for grassroots projects. The agreements often go beyond legislation in order to facilitate tailor-made solutions.

The challenge of this approach is that the ‘extra-legal’ status of the parties can make an agreement vulnerable. However, a series of projects using this approach can have a profound effect on the development of a country's water policy and future investments in countries such as in India, Guatemala, Mexico and China.

A learning approach to water policy development becomes institutionalized only when the actions become collective. This happens when the new patterns of water management proliferate to pervade the behaviour of a large part of the population. This process of proliferation may be conscious and deliberate, but doesn't need to be. Patterns may simply spread through social absorption as they become recognized as valuable.

The decentralized-communitarian approach is particularly suited to periods of change and innovation. For this approach to succeed, it is critical that leaders recognize the emergence of new ideas and intervene only when appropriate, mostly in an enabling and facilitating way. Once some useful ways of working emerge, one can start formalizing the best of them.

2.7 Linking policies to realities: general principles

Policy development is a crucial first step in regulatory reform, serving as a recipe for drafting binding legislation. Ideally, water policy should provide a clear, systematic outline for the country's overall strategy on water and the entire range of issues related to its use.

Before reforming a country's water policy, planners should evaluate the existing system. Thus, the first list of factors below offers a preliminary policy evaluation framework that policy planners and decision makers should bear in mind before revising their water policy.

1. Consider the capacity of existing actors for water policy reform

2. Analyze national, regional and international policies

3. Determine the scope of the country's water institution(s)

4. Assess the extent of public participation in decision making

5. Evaluate the country's decentralization scheme

6. Consider ease of access to information relevant to water policy design

7. Analyze whether economic-based instruments are being used successfully

8. Consider the extent and functionality of private - sector participation

9. Evaluate corruption levels in the country

10. Assess the current model of governance

2.8 Reforming water policy: practical steps

Following this preliminary assessment, planners can begin the work of actual policy reform. Given the enormous breadth of individual considerations involved and the need for specific tailoring to a given country's situation to ensure a water policy is comprehensive, no one set of practical steps can provide a solution for every country. However, there is a list of practical steps that should be kept in mind where starting any policy reform.

Step 1: Consider context of water policy reform

Step 2: Assess what type of water policy reform will work best given the existing government structure

Step 3: Clearly allocate water rights among users and uses

Step 4: Introduce proactive, sustainable and just measures that encourage efficiency

Step 5: Apply the right technologies

Step 6: Apply the principle of recovery of costs for water services

Step 7: Enable sharing and trading of water rights

Step 8: Ensure support from enabling institutions

Step 9: Ensure effective governance principles of transparency, certainty and accountability

Step 10: Guarantee international cooperation

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