Chapter 3 Transforming Policy into Law


3.1 Features of water law

Water law provides clear rules and procedures to transform policy into action. Good water law combines precision with flexibility. Coherent and concise laws should avoid ambiguity in interpretation and application, but they should be flexible enough to fit within a range of national contexts and adapt to evolving social, economic and ecological circumstances. However, before exploring the specific issues that surround water law, it is important to consider that water law serves a higher purpose within the overall governance system of a country, which is Environmental Justice. This is defined as ‘An existing condition where environmental risks and hazards and investments and benefits are equally distributed with a lack of discrimination, whether direct or indirect, at any jurisdictional level; and when access to environmental investments, benefits, and natural resources are equally distributed; and when access to information, participation in decision making, and access to justice in environment-related matters are enjoyed by all.’18

“WATER LAW PROVIDES CLEAR RULES AND PROCEDURES TO TRANSFORM POLICY INTO ACTION”

Box 3.1 Water law and environmental justice

Environmental justice is the overarching most important outcome of an effective water governance system in which the law plays a central role. In the water context, environmental justice claims usually involve allegations that the use of water, often by new multi-purpose infrastructure, will harm the water-use rights of marginal social groups, or that pollution laws are enforced less stringently in poor areas. The extent to which these environmental justice claims will succeed is dependent on the availability of affordable processes to litigate or defend them.

Although a water law may provide a scheme of secure water rights (and may include equity considerations), it may not always promote social and environmental justice or adequate environmental protection. Good laws are not just those that define rights and obligations, create effective institutions, and a system of incentives and penalties for the protection of the environment and the sustainable use of natural resources, but those in which risks and hazards and investments and benefits are equally distributed without discrimination at any level, and when access to resources and the benefits derived thereof are equally distributed. Finally, good laws that promote environmental justice are those in which access to information, public participation in decision making and access to justice are enjoyed by all the citizens of a State.

Contemporary water law addresses three focal areas:

  1. Allocation of water resources and pollution control, usually by requiring permits for water withdrawals or waste disposal.

  2. Water law must be consistent with broader societal goals for sustainable development and protection of the environment. The preamble of national water laws usually contains statements of principles relating to social equity, conservation, protection of water sources and ecosystems, and sustainable development that reflect the idea that good water management practices are underpinned by a sound balance of developmental, environmental and conservation policies and practices. Within the past decade, there has been a proliferation of amendments to the statutory framework in many states because of growing recognition of the importance of the environmental dimension of water management. Water law therefore increasingly reflects the fundamental relationship of water to life, the vulnerability of water resources to human and natural influences, and the importance of securing a safe and adequate water supply for current and future generations. Water laws should also be synchronized with other natural resource laws and, when possible, with customary and traditional laws.

  3. Water law must establish the institutional machinery needed to facilitate its application. The powers and mechanisms of these institutions must be prescribed. For example, administrative bodies must be tasked in law with granting licences and monitoring compliance with regulations. Laws should also consider how state institutions should work with non-governmental water organizations and private companies that are often contracted to offer water supply services.

“WATER LAWS SHOULD ALSO BE SYNCHRONIZED WITH OTHER NATURAL RESOURCE LAWS”

3.2 The context, role and reach of water resources legislation

Water law does not exist in isolation; it is shaped by, and must conform to, the requirements of the legal system in which it operates. It may also be shaped by the customary laws that preceded it. Thus, to understand or reform water law, it is important to be aware of and recognize how the specific characteristics of different countries affect water law.

3.2.1 Legal context

Civil versus Common law

There are two major types of legal systems in operation around the world: civil law and common law. In countries with civil law traditions – such as most of continental Europe, francophone and northern Africa, and Latin America – the law is laid down in exhaustive codes according to subject matter and is applied and interpreted by judges. Legal reasoning is used in formulating the stated principles of the codes, which is then the basis for applying and adjudicating the rules. Common law countries, such as the United States, the United Kingdom and Commonwealth countries, may sometimes develop comprehensive codes, but traditionally there are numerous statutes relating to any particular subject area and judges use legal reasoning to extract principles of law from previous decisions. These principles are then applied to new scenarios and cases. New laws that override these precedents can be established by the legislative branch of government. However, the courts can overturn new laws that it deems unconstitutional.

In civil law countries, waters are classified as public or private. In most of these countries, a concession or permit is required to use public water. Over time, the concept of private waters (as absolute right to use water) has been losing force19 in favour of the concept of water as being controlled by the State for the common good.

In common law countries, there are no private waters. All flowing waters are considered a resource common to all (following old Roman law principles) and the State, as the public trustee, must ensure that the water is protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner for the benefit of all persons.

Unitary versus Federal systems of government

Countries with a unitary structure centre their law and policy at the national level. The federal structure of countries such as Canada, the United States, Mexico, Argentina, Brazil, Germany, India, Malaysia and Australia, creates an interface between the subnational (state or provincial) and national levels of executive and law-making authority. The nature of this interface depends on the distribution of power between the federation and its constituent states or provinces, which is generally stated in the national constitution. In these countries, the division of authority between levels of government is an important influence on water laws and their administration.

In all the federal countries listed above, except Mexico, each state or province has authority to legislate in regard to water resources and to administer its own legislation, independently of its fellow states. The role of the federal government is thus residual but not insignificant, as it can include legislation on matters ‘neglected’ by the states. This is the case for control of water pollution, for example, in the United States, Germany and India. The federal level also often plays a key role in ensuring consistency of approach in legislation at the state level. In India, for example, this can be seen with regard to ground water and in Australia with regard to a broad spectrum of water policies including provisions for trading water abstraction permits and prioritizing environmental water allocations. In Argentina, the federal government ensures consistency in minimum standards of environmental water management.

“THE DIVISION OF AUTHORITY BETWEEN LEVELS OF GOVERNMENT IS AN IMPORTANT INFLUENCE ON WATER LAWS”

The relative independence of states and provinces in water resource matters in most federal countries generates interplays over rivers, lakes and ground water that cross subnational boundaries. Friction, and eventually conflict, may arise because of the effects of one state's action on its neighbours. Pre-conflict situations are handled through negotiation and agreement, often brokered by the federal government. Interstate agreements addressing specific water bodies or issues are on record among the states and provinces of virtually all federal countries. Where negotiations have failed, overt conflicts have been adjudicated by the supreme judicial body of the country. The U.S. Supreme Court has been particularly active in this regard. Cases are similarly on record in the Supreme Courts of Argentina, India and Germany.

3.2.2 The role of customary law and practices

Customary water rights and practices add further to the typology of water rights in countries where custom, as distinct from written law, is a significant source of law in general, and of water law in particular.

Customary law refers to un-codified, long-standing customs and practices of traditional or religious groups. Customary water rights are often derived from customary law that governs access to land tenure. Legislation must seek to establish a workable equilibrium between water rights of commercial water users and water allocation for traditional livelihoods underpinned by customary practices. Failure to account for customary rights not only creates social conflict and tension, but may undermine the law.

“FAILURE TO ACCOUNT FOR CUSTOMARY RIGHTS CREATES SOCIAL CONFLICT AND TENSION“

In countries where customary rights are common, they may be safeguarded either through recognition as water rights in formal statutes or by administrative mechanisms for recording and registering them. Law makers need to devise acceptable solutions through research and consultation during the drafting or preparation stages to avoid the potential for confrontations and disputes during the implementation and administration of new water laws. The law may also stipulate to what extent government water administrators should factor customary water rights over abstraction permits or licensing into decision making, even to the extent of including fulfilment of customary water rights among licensing criteria (see Case 3.1).

Case 3.1 The Chagga furrow committees20

In the Pangani basin, Tanzania, the Chaggas have lived on Mt Kilimanjaro's slopes for 300–450 years. The Chagga are a high intensity farming community, which developed a system of irrigation furrows to deliver water from natural watercourses to their crops. The first furrows on Mt Kilimanjaro were dug in the 18th century.

Traditionally, a furrow committee chairman (always male, drawn from the lineage of the person who originally dug the furrow) managed irrigation furrows. A furrow passes through or along the land of various potential water users, many of whom wish to use the water for irrigation. To qualify for an allocation, a Chagga had to be a member of the furrow board and comply with the chairman's instructions. Members help maintain the furrows. Punishment for non-compliance included fines and prohibitions on water use.

People alongside furrows may need more or less water than others. The chair has the flexibility to make exceptions to the formal allocation system, a flexibility that is crucial to the allocative efficiency and sustainability of the irrigation system. This complementary relationship between formal rules and working rules developed over hundreds of years in the highlands. In lowland areas, where settlement is more recent, the climate drier, the population more scattered and social diversity much higher, the cohesion between formal and working rules is not so great.

These traditional rules emphasize social equity and conflict minimization. They sit uneasily alongside new, externally imposed, rules that demand efficient water use. In addition, the new rules seek the establishment of Water Users' Associations (WUAs), which are not the same as Furrow Committees. In a culture where water is perceived to be a ‘gift from God’, the notion that it must be paid for is simply illogical. In addition, externally imposed sets of rules are far less likely to succeed than internally generated ones that have been altered and moulded to local cultural and environmental peculiarities over long periods of time.

3.2.3 Relation to other laws on natural resources

Integrated Water Resources Management (IWRM) requires that water legislation be compatible with laws related to other natural resources, such as land laws or those for environmental management and protection. For example, plans for buildings or roads, or intentions for agricultural land use are subject to land development legislation, but they may also require separate permit requirements under water law relating to their effects on water quality or quantity (see Case 3.2). Similarly, environmental laws may require conservation of natural habitats for animal and plant species along or within a watercourse, creating obligations for the way water resources are managed within a river basin.

Case 3.2 Water law reaches into building codes and agricultural land use in Andhra Pradesh, India21

In the Indian state of Andhra Pradesh, management of land and water resources are regulated by the 2002 Water, Land and Trees Act, which enabled integration of a range of regulations. For example, to enhance the recharge of ground water, fitting rainwater harvesting equipment to the rooftops of buildings is mandatory as part of the building construction approval by the local government authorities. The approval is needed in order to connect to water and power utilities. The same law also stipulates that local authorities may formulate guidelines for landscaping and tree planting along canal banks and water bodies, but that they must ensure tree planting along the ‘foreshore area of open water bodies’. Tree felling or pruning is subject to permit conditions. Agricultural land owners have a duty to plant up to 5 percent of their holdings with trees, but small-scale farmers and wetland owners are exempt from these obligations.

“IWRM REQUIRES THAT WATER LEGISLATION BE COMPATIBLE WITH LAWS RELATED TO OTHER NATURAL RESOURCES”

International treaties and agreements

National water legislation must reflect the commitments made by States under international agreements on rivers, lakes and ground waters. Such agreements may apply on a generic regional basis, such as in the Water Framework Directive of the European Union, or in relation to transboundary agreements on specific rivers, lakes or ground waters.

International water resource treaties often specify approaches such as requiring the use of ‘best available technology’ for pollution control. Conversely, some treaty obligations are cast in generic language, leaving to State parties the choice of regulatory and other instruments to be adopted through national legislation. International agreements may also commit countries to working together to establish bilateral or multilateral river, lake (or, more rarely, ground water) basin institutions, which must then be facilitated through national legislation.

“NATIONAL WATER LEGISLATION MUST REFLECT THE COMMITMENTS MADE BY STATES UNDER INTERNATIONAL AGREEMENTS”

3.2.4 Water law reforms

As discussed in Chapters 1 and 2, a movement to review existing water laws and enact comprehensive new legislation has gained momentum since the early 1990s in reaction to global concern over scarcity of water and growing concerns over climate change. International insistence on the application of the IWRM concept and goals is an important driver of this change. Demand for broadening the scope of water law has grown to encompass goals relating to distributional equity, environmental protection, efficiency of allocation, and security of legal tenure in the face of a volatile and shrinking resource base.

Codification of new policy objectives into legislation tends to involve a lengthy consultative process in which the legal implications of policy issues are thoroughly assessed and analyzed. These processes typically entail review of the strengths and weaknesses of existing legislation, administrative practice and planning instruments, as well as the functions and structures of relevant institutions. Consultation of stakeholders and interested parties should take account of vulnerable groups.

Review processes should be supported by water audits that survey existing water uses and provide scientific assessments of the environmental capacity of available water resources to, for example, support abstraction or receive waste.

“CODIFICATION OF NEW POLICY OBJECTIVES INTO LEGISLATION INVOLVES A LENGTHY CONSULTATIVE PROCESS”

There is a well established trend toward consolidation and harmonization of previously fragmented laws into a single comprehensive text. Consolidation avoids the trouble of issues being overlooked and the complications of having to navigate through numerous and often inconsistent pieces of legislation. Fragmentation has widely led to secondary legislation on provisions that are not included in the main Water Code or Water Act and this new legislation is sometimes considered to have inferior authority. A unified code for water also expresses a decisive political commitment. However, the stability of the way water resources are managed is vulnerable to election cycles that transform governing structures. Complete overhauls of government, such as have occurred in transitions from communist to market economies, for example, have had significant impacts on water management. Even on a less drastic scale, policy reversals – for example, moves towards privatization or changes in conservation priorities – and new budgets put forward by the government of the day necessarily impact the regulatory system for water.

“A UNIFIED CODE FOR WATER EXPRESSES A DECISIVE POLITICAL COMMITMENT”

A unified code of water law must establish water rights and fair allocations, protect water quality for human and ecosystem uses as defined by water policy, and set up an institutional water management structure.

3.3 Water allocation

3.3.1 Who owns water and who has water rights?

Because of water's fundamental role in sustaining life, new or reformed water policy and law should keep water rights within the public domain. The concept of private water and absolute riparian rights over surface water and ground water has been eroded in the modern era, giving way to concepts of water being in some degree of public ‘ownership’. These concepts range from ownership of water by the state to the state holding water ‘in trust’ for the public. In certain cases, the state has been recognized as having possession of ‘superior use’ rights. Regardless of the concept chosen, the concept of public waters makes the government the custodian of water resources and gives it both the authority to allocate water and the responsibility to protect it.

In line with public ownership, the private rights of individuals have been relegated to being usufructuary in character. Usufruct rights are rights to the use of water resources without ownership. Replacement of the concept of private water rights with water rights conferred by government permit has produced an interface with property law, which is particularly poignant at two junctures: (a) when a reform is legislated for the first time, and (b) after the reform, if a permit-based right must be sacrificed in whole or in part to accommodate another use for water or for conservation. In both cases, the law must stipulate compensatory measures, but the situation is not always clear-cut.

Generally, new laws are designed with mechanisms to bring pre-reform water rights, including customary rights, within the fold of new regulations as painlessly as possible to minimize the exposure of the reforms to judicial claims of expropriation of constitutionally protected private property rights. This reassignment of rights is generally pursued, though not always achieved, by granting varying degrees of statutory recognition to pre-reform water rights. Such recognition may be automatic for ‘small’ domestic and household abstractions, but larger new abstractions may be made subject to registration of a claim with the government within a set deadline. The law may grant the government discretion in accepting such claims, or may direct it to accept claims at face value, albeit with the risk of over-allocating the resource. Draconian deadlines, and penalties of forfeiture of unclaimed rights, can result in water users ignoring the law and the eventual neglect of the legislation. For example, in Mexico, the water rights part of a package of extensive water law reforms enacted in 1992 had to be scrapped two years later. It was replaced by a successful package of user-friendly inducements, financial and otherwise, to entice holders of pre-1992 water rights to register claims.

“THE CONCEPT OF PUBLIC WATERS MAKES THE GOVERNMENT THE CUSTODIAN OF WATER RESOURCES”

Provisions to convert water rights within reform processes are found at the end of water statutes, under the label ‘transitional’ provisions because they are to have effect for a limited period of time. After expiration of this period, it is presumed that all pre-reform water rights will have been claimed and registered. However generous, these transitional packages are no guarantee that the reforms will be shielded from claims in the courts, of expropriation of constitutionally protected private property rights by dissatisfied water users. The record on this score is mixed: the abolition of riparian rights in England, Australian states, South Africa and many US states was spared legal challenges of unconstitutionality, but similar reforms in Spain, Italy and the State of Arizona were challenged on these grounds. The relevant case law from these three jurisdictions, however, has been consistent in rejecting the claims and upholding the reforms. The essential concern is balancing water availability and the guarantee of tenancy rights in abstraction licences and permits.

3.3.2 Allocating water to users

A fundamental role of water law is to allocate available water resources to competing uses, whether in-stream or off-stream. In-stream uses include activities such as hydropower generation, timber floating and recreation, as well as conservation of river and lake habitats and preservation of scenic, cultural and religious values and practices. Off-stream uses include domestic, agricultural and industrial uses of water.

“A FUNDAMENTAL ROLE OF WATER LAW IS TO ALLOCATE AVAILABLE WATER RESOURCES TO COMPETING USES”

A transparent permit system enables the orderly allocation of a scarce resource, and provides checks and balances between the profit, or other, motivation of the permit seeker and the interest of the general public that the resource base is not depleted or contaminated beyond acceptable levels.

Water resource abstraction permits and licences

Licensing is the predominant tool by which water abstraction and wastewater disposal are regulated and monitored by state authorities. Permit systems contribute to the conservation and protection of waters by preventing over-allocation and pollution, while pursuing equity, fairness and transparency (see Case 3.3). Market-based mechanisms for allocation, intended to support efficiency goals, are also predicated on government permits. Allocation decisions are enforced through regular monitoring of users' withdrawals and the condition of the resource. Penalties for breach of allocation agreements and dispute-resolution mechanisms are important parts of a comprehensive water law.

“A TRANSPARENT PERMIT SYSTEM ENABLES THE ALLOCATION OF A SCARCE RESOURCE”

Case 3.3 Applying for a water abstraction licence in Namibia22

The 2004 Water Resources Management Act in Namibia specifies the steps needed and the criteria for granting a licence to abstract and use water. The application form must be submitted to the Minister and include the name of the applicant, the relevant water resource and location, the type and location of use, the name of the landowner, and the rate, volume and time of abstraction. The application must be accompanied by proof of publication of the notice, the prescribed fee, and an environmental impact analysis of the proposed water use. The applicant must, 60 days prior to submission of form, issue a notice in the State Gazette inviting interested persons to object in writing, indicating the place and period to make the objections. After receiving an application, the Minister must refer it to the basin management committee concerned with investigation and recommendations. The basin management committee or the Minister must investigate all matters pertaining to the application, consider any objections, and in this case grant the applicant the opportunity to make additional supporting representations. Basin committees must then make their recommendations to the Minister. Additionally the Minister must consider any further objections, the representations of the applicant, the environmental impact analysis and determine whether the requirements of conditions of licences have been met. An appeal against the Minister's decision may be filed with the Water Tribunal within 14 days.

Criteria to be considered in granting licences to abstract and use water include: consistency of the proposed abstraction and use with the Master Plan and the provision of the national reserve; impact of the proposed abstraction on existing water users including the environment; general principles of efficient water management practices; redressing past racial and gender discrimination; likely impact on water quality, aquatic ecosystems and Namibia's international obligations; and extent of customary rights and practices in, or dependent upon, the water resource.

The detailed criteria used to evaluate applications should be specified in the water laws and subject to refinement in administrative rules.

Identify the water uses needing permits. These uses can be, for example, abstraction for dam storage, use of stored water for any economic activity, or any alteration of water flows or river banks, such as canal construction. For reasons of administrative expediency, small abstractions for domestic water use do not require a permit. The law must detail the standard conditions of permits and licences, and itemize their standard contents. Decisions by governments to grant a permit or licence should be based on a range of considerations which can be spelled out in legislation. Such considerations might include:

3.3.3. Water rights trading

Trading of water rights is the transfer or exchange of permits or licences for water extraction granted by government. Water rights may be traded for monetary compensation, the right to another type of water use, or a donation. The bulk of water trades tend to occur from low-value subsistence to high-value commercial irrigation and from irrigation to municipal or industrial use. Provisions for trading water rights are increasingly being made in contemporary water legislation with the aim of achieving more efficient allocation and use of water. However, trading empowers water users rather than the government to make decisions about water allocation. Thus, governments may want to impose restrictions on trades such as:

A strong regulatory and fiscal framework is a prerequisite for effective trading, including suitable consultation processes, management structures, clear property and tenure rights, penalties for rule infractions and mechanisms for the enforcement of contracts and redress. Regulation of trading must ensure protection against environmental degradation, undesirable effects on cultural values, loss of potential to satisfy priority needs for water and harm to marginal groups. Legislation should include provisions for independent monitoring of the trades.

Chile, South Africa, Australia, several western states of the United States, and Spain's Canary Islands have water trading schemes, all of them examples of sophisticated and efficient schemes around the world (see Case 3.4). Some other countries, especially in South Asia, also have informal water trading schemes.

Case 3.4 The Chilean water market23

The Chilean Water Code (1981) establishes that water rights are separated from land ownership and can be freely bought, sold, mortgaged and transferred like other forms of real property. Water rights may be obtained only by permit from the Dirección General del Agua (DGA), which also plays a leading role in the resolution of conflicts in water trading. DGA entitles consumptive and non-consumptive rights. Non-consumptive rights are bound to return a certain amount of water. The DGA grants rights free of charge and taxes. The Code establishes two types of transactions: selling and renting. In the Limari and Digullin basins, there is a basic irrigation infrastructure that facilitates reallocation between users through renting. When a transaction is agreed, it is communicated to the authority of the reservoir, which then allows a user to withdraw extra water for a specific time. The flexibility of the ability to rent water has brought efficiency to the irrigation sector. In another example, irrigators sometimes rent wells to water treatment companies to supply the population during a drought. Even during non-drought times, the option of selling water gives the irrigation companies an incentive to conserve their water by maintaining a good infrastructure (reducing the loss of water through filtration) instead of building expensive new infrastructure.

There are some criticisms of the system. First, because the Water Code does not require putting the water to a beneficial use, it is possible for companies to acquire water rights but not use them, limiting the country's productive capacity by limiting the availability of water. Conflicts have broken out between energy companies, who have bought water rights to hold, and irrigators, who claim that the water that energy companies retain is affecting their right to irrigate, especially in the summer season, and that non-consumptive rights do not authorize the holder to affect the natural course of the resource. A second issue is pollution. Despite the fact that the Water Code states that non-consumptive users cannot return water in a way that affects other users, the discharge of effluents and the deviation of water upstream causes pollution downstream. Third, the DGA is in charge of establishing minimum flows for each basin, but since considerable water rights have been granted in many basins, the DGA may have to buy water rights to comply with those minimums.

“WATER SERVICE LAWS REGULATE THE QUALITY, DEPENDABILITY AND AFFORDABILITY OF THE SERVICE”

3.3.4 Providing water services

Another part of a comprehensive Water Code or Water law deals with the provision and regulation of the service of supplying water for consumption and use. Water service laws regulate the quality, dependability and affordability of the service, and seek to strike a balance between the profit motivation of private water providers and the interests of customers and of civil society in upholding public service standards. Public and private water suppliers are subject to laws and regulations regarding delivery of services, quality of water provided, and general water resource management legislation. Each player in the water service industry – whether a commercial, para-statal or state company – must secure the abstraction or extraction permits required of all users and, in general, comply with the relevant water resource legislation. The Water Code should specify what types of providers are allowed and spell out how the State and private providers should interact (see also Chapter 4).

3.4 Water quality protection

3.4.1 Water pollution control

Protection of water quality is vital, not only for sustainable development and conservation of water sources, but also for the safety of water supplies and therefore in meeting basic human needs. Water law must address regulation of both point sources and diffuse sources of pollution.

Water pollution from point sources

Point sources of water pollution are discharge pipes such as industrial outfalls and municipal sewers. Both regulatory and economic mechanisms are used to prevent and reduce water pollution from point sources. Examples are:

Historically, point sources of pollution were tackled first in water quality legislation because they were easier than non-point sources to identify and regulate. Substantial water pollution can come from water that runs off farmland and urban areas, but it is much more difficult to identify the precise sources of pollution and therefore appropriate regulatory measures.

“WATER LAW MUST ADDRESS REGULATION OF BOTH POINT SOURCES AND DIFFUSE SOURCES OF POLLUTION”

Water pollution from diffuse sources

Recent generations of water laws have addressed water pollution from diffuse sources, notably run-off from farmland and urban areas. From farmland, excess fertilizers and pesticides, as well as eroded soil, pollute streams and rivers. From urban areas, oil and other chemicals from city streets, sewage overflows and excess run-off from paved areas also cause water pollution. There has been a shift from trying to control this diffuse discharge at the point it enters the water towards promoting best practices on the land. Legal provisions need to take account of the specific activities that can cause or exacerbate pollution. For example, regulatory restrictions may be developed for the application of fertilizers that lead to nitrate pollution of surface waters or ground water. Good practice guidelines such as planting green belts along waterways, and limiting the amount and timing of fertilizer and pesticide applications, are common in many countries. Provisions can be included in legislation to support adoption of these practices with the option of making them mandatory. Fining farmers for run-off pollution is also an option, but can be unpopular.

3.4.2 Monitoring, compliance and enforcement

Chapter 5 goes into more depth on these topics, but they are introduced here as they require legal provisions in the Water Code to make them possible.

Monitoring

To support compliance and enforcement, governments must establish, by legislation, systems for monitoring users' performance and the changing condition of the water resources. Quality standards should be established that adhere to accepted methods of scientific measurement, data processing, and analysis. Data from monitoring is often used to support the protection and management of water resources, and in the development of water resource plans. Data should be available for use by state agencies, water users and the general public.

“TO SUPPORT COMPLIANCE AND ENFORCEMENT, GOVERNMENTS MUST ESTABLISH SYSTEMS FOR MONITORING”

Enforcement

Provisions must be made in law for enforcement mechanisms, such as requirements for notification of a violation, and the ability of enforcement officials to enter and search a premises.

Penalties

Legislation must set out the penalties for the failure to comply with the requirements of the law in general and of the conditions of licences or permits. A range of penalties is possible but should include suspension and cancellation of the permit or licence. As stated by the EU Water Framework Directive, enforcement of penalty provisions arising from statutory offences should aim to be ‘effective, proportionate and dissuasive’.

“LEGISLATION MUST SET OUT THE PENALTIES FOR THE FAILURE TO COMPLY WITH THE REQUIREMENTS OF THE LAW”

Dispute resolution

Provisions should be made in legislation for measures to prevent and resolve conflicts, such as mediation, arbitration, or court proceedings to support resolution of cases between water users and utility companies, or between users and regulatory state bodies. The law may accommodate the involvement of individuals, local community organizations, government agents or the courts. Hearings may be required before dispute-resolution commissions authorized to mediate issues. Failure to comply with or to reach a decision can then result in referral to a judicial body. Decisions and case law from such bodies are important sources of law because they clarify and interpret statutory provisions and establish precedents.

It is important that citizens know they have the option of legal redress against the State, private companies, or individuals who fail to uphold the law. For example, under the 2004 Water Resources Management Act in Namibia, a Water Tribunal was established with jurisdiction over any water-related issues in the country, including appeals. It has the power to summon any person as a party to the case to acquire necessary information. The law sets out the requisite composition of the Tribunal and procedures for the appointment of members, their necessary qualifications, and their remuneration. Budgetary and expenditure matters are also addressed under these provisions. In addition, the Tribunal has, under certain conditions, the authority to mediate and arbitrate water issues.

“IT IS IMPORTANT THAT CITIZENS KNOW THEY HAVE THE OPTION OF LEGAL REDRESS”

3.5 Incorporating conservation into water law

Water laws often contain environmental provisions that emphasize specific environmental objectives with only generic guidance on how to go about achieving them. These provisions, found in the opening sections of water laws, may seem aspirational, but they are in fact binding obligations. For example, an opening provision may state that the rules and regulations should be interpreted according to the principles of sustainability, conservation, protection, preservation or enhancement of water bodies, their dependent ecosystems, and their water quantity and quality. The articulation of increasingly environmentally conscious guiding principles paves the way for interpretation of the rest of the statute with these priorities in mind. For example, the 2004 Namibian Water Resources Management Act calls for water use for human needs to conform to requirements for protecting ecosystems and the environment to the maximum extent, and advocates holistic planning and management that encompasses environmental considerations. An example of ecological priorities in a law on water management can be found in Case 3.5. Some mechanisms for addressing environmental objectives include: incorporating the concept of ‘environmental flows’ into legislation, requiring environmental impact assessments and requiring protection measures for water bodies in certain circumstances.

Case 3.5 Ecological elements of water law, New South Wales, Australia24

The Water Management Act in New South Wales, Australia establishes a number of fundamental principles that emphasize the environmental dimension of water management. According to these principles:

3.5.1 Environmental flows

The IUCN toolkit FLOW 25 defines an ‘environmental flow’ as the water regime provided within a river, wetland, or coastal zone to maintain ecosystems and their benefits when flows are regulated and when there are competing water uses. Environmental flows are usually different from natural flows, but they vary seasonally in volume according to the needs of ecosystems. They are determined through assessment of the impacts of changes in the volume and timing of flow on both the condition of ecosystems and river and water users. Flow regimes can then be agreed by weighing up environmental, economic and social trade-offs between possible flow regimes. As outlined in FLOW, such agreement can emerge through negotiation among stakeholders. Application of environmental flows is facilitated by clearly specifying mechanisms for assessment and implementation in water law.

Environmental flows are a scientific advance over the concept of ‘minimum flows’, which also appear in water law. The minimum flow is the least quantity of water required to maintain water quality and support the aquatic environment. Minimum flows can be maintained by modification of infrastructure or changes in water allocation policies and entitlements. Minimum flow requirements mandate a certain volume to be maintained in streams. Such requirements are often the basis of water allocation plans. Some laws have stipulated the actual percentage of minimum flow requirements, which can be helpful in a dry period when allocations for other uses may take an unusually high percentage of the water resource. Another delicate legal issue is whether minimum flow requirements should only affect permits granted after the establishment of such requirements (see Case 3.6).

Case 3.6 Environmental flows in Costa Rica and Chile

Environmental flow in Costa Rican law is defined in the last draft of the nation's Water Law as the ‘quantity of water required for guaranteeing the sustainability of each ecosystem’. The National Water Resources Directorate – a technical entity for institutional management within the Ministry of Environment and Energy – is in charge of establishing the means for calculating this flow, paying special attention to the different uses and its hydrological location.

The Hydrological Unit Water Plans will be the body that determines the required environmental flow for each body of water. If a permit affects the established environmental flows, it will not be authorized or renewed, with the exception of those required for supply of the human population. The Costa Rican Water Law draft is still under parliamentary debate for approval.

In Chile, Law 20017 of 16 June 2005 which reforms the Water Code, establishes that the water administration must determine the minimum ecological flow requirements of surface watercourses. It stipulates that the required minimum flow should not exceed 20 percent of the average annual flow or, in exceptional cases, as set by the President, 40 percent of the average annual flow. Existing rights are not affected, and the proposed impact will be solely on rights of use issued after the date of the law.

3.5.2 National water reserves and protected areas

Many water laws contain provisions obligating the State to set aside national water reserves. A useful definition of ‘national reserve’ is ‘the quality and quantity of water that is required to satisfy present and future basic human needs, as well as to protect aquatic ecosystems and to secure sustainable development and use of that water resource’. Therefore water should not be extracted or used in a manner that will deplete the national reserve. Reserves are usually incorporated into water resource master plans or river/lake basin water resource plans and used in setting conditions for granting water licences.

Photo 3.1 Water rules and regulations through signs indicating nature and water protection areas (Germany). Rules should be clear, provide certainty but also flexibility to address a wide range of water related issues.

The South African Reserve Law pioneered the establishment of national water reserves. It has two components, ‘basic human needs reserve’ and an ‘ecological reserve’. These are granted precedence in water allocation. Generally however, reserves may be used for domestic and urban needs, power generation, and meeting the flow requirements for ecosystem and wetland protection (see Case 3.7).

Case 3.7 National water reserves in the South African Water Law

A ‘reserve’ is defined as: ‘...the quantity and quality of water required to satisfy basic human needs by securing a basic water supply, as prescribed under the Water Services Act 108 of 1997 (WSA), for people who are now or who will, in the reasonably near future, be relying upon; taking water from; or being supplied from the relevant water resource; and to protect aquatic ecosystems in order to secure ecologically sustainable development and use of the relevant water resource (chapter 1).’ Measures provided for by the NWA to protect the quantity and quality of the reserve include: water management strategies (chapter 2); a classification system for water resources; determination of resource quality objectives; determination of the reserve; strategies for water pollution prevention, remediation and emergency incidents (chapter 3); an elaborate water use licensing system (chapter 4); a pricing strategy for water use including charges for waste discharge and pollution (chapter 5); establishment of agencies to regulate water resources at catchment level (catchment management agencies) (chapter 7); establishment of water user associations (chapter 8) and advisory committees (chapter 9); provisions on international water management (chapter 10); access to and rights over land necessary to protect water resources (chapter 13); establishment of monitoring, assessment and information systems (chapter 14); and criminal offences and remedies (chapter 16).

“RESERVES ARE USUALLY INCORPORATED INTO WATER RESOURCE MASTER PLANS”

The concept of a ‘protected area’ is frequently found in water law and national water plans. For example, the 2005 Water Resource Management Act in Namibia provides for establishment of protected areas to safeguard ‘any water resource, riverine habitat, watershed, wetland, environment or ecosystem at risk of depletion, contamination, extinction or disturbance from any source, including aquatic and terrestrial weeds’. These provisions include the duty to publicize the purposes of declaring such an area, its geographic boundaries, and the activities that are prohibited within it. Declaration of a protected area can trigger restrictions on water abstraction, application of pesticides or fertilizers, road construction, or crop cultivation that modifies land contours, tree felling, mining, and effluent discharge. The impacts of these restrictions on affected permits must be assessed and distributed proportionately across the licensee population in the area. An example of using the protected area approach to conservation of amenity values in river basins is described in Case 3.8.

Case 3.8 Protected water landscapes26

Areas of scenic beauty or recreational values can be subject to special protection. The U. S. Wild and Scenic Rivers Act of 1968 declares that certain selected rivers that have remarkable scenic, recreational, geological, fish and wildlife, historic, cultural or similar values, should be preserved in free-flowing condition, and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. This law designates prohibited development areas, forbidding building and any type of construction (such as dams), which would affect other parts of the water resource and includes guidelines on the determination of such a protected area.

A similar approach is the establishment of ‘protection zones’ such as zones of sanitary protection, stock formation, ground water protection, water protection, and zones of ecological disasters. For example, the 2005 Water Code in Kyrgyzstan includes provision for protection zones for the purposes of protecting aquatic ecosystems, flow, ground water and environmental health. Once protection zones are created, the government must establish procedures for regulation of land use and forest use within them, of construction of pipelines and communication infrastructure, and for extraction of biological resources and materials. Monitoring programmes and cataloguing protection zones in a register are needed to support enforcement.

3.5.3 Ground water protection

Specific provisions for protection of aquifers are common in water laws. They typically define particular licensing requirements for activities such as drilling bore holes or constructing wells. Laws contain especially stringent controls to safeguard against overexploitation or depletion of ground waters. This concern reflects the need for water policy and law to preserve the natural interconnection between ground water and stream water because of the severity of damage to the environment that can result from overexploitation and pollution of aquifers. Ground water protection laws commonly contain rules on ground water abstraction that cover well testing and casing, records submission, inspection rights of authorities, and penalties for non-compliance. The high degree of regulation is also reflected in qualification and record-keeping requirements for professional drilling personnel.

“SPECIFIC PROVISIONS FOR PROTECTION OF AQUIFERS ARE COMMON IN WATER LAWS”

3.5.4 Environmental water trades and water trusts

Trading of water rights has gained currency as a market-based device for safeguarding or restoring aquatic ecosystems. Water rights are purchased on behalf of the environment and used to set up ‘water trusts’. For example, the pioneering Oregon Trust in the United States purchased rights for ‘off-stream’ water uses in the market and converted them to ‘in-stream’ rights. They then used these rights to reinstate stream flows.27 Following this model, legislation governing water trusts in Washington State stipulates that the State may acquire all or portions of existing water rights, by purchase, gift or other appropriate means other than by condemnation, from any person or entity or combination of persons or entities. Once acquired, such rights are trust water rights. A water right acquired by the State that is expressly conditioned to limit its use to in-stream purposes shall be administered as a trust water right in compliance with that condition.28

The 2003 Catchment Management Authorities Act in New South Wales, Australia demonstrates the workings of a slightly different type of trust fund. Under this Act, a trust fund is operated using capital acquired from the state budget, gifts or bequests, water licence proceeds, and investment profits from the trust money. These funds are available under prescribed conditions for investment in ‘adaptive environmental water’ (water designated for environmental uses according to the terms of water licences), upgrades to water quality, water conservation works, and any environmentally-related functions under the law.

“TRADING OF WATER RIGHTS HAS GAINED CURRENCY AS A MARKET-BASED DEVICE”

3.5.5 Environmental impact assessments

Laws often incorporate the use of environmental impact assessments (EIAs) in a number of areas including abstraction licensing, waste disposal permitting, and planning. EIAs are surveys that assess how, for example, changes in land use, site development or water management will impact the environment including watercourses and aquatic ecosystems. EIAs are commonly required in statutes as part of the process for granting permits or licences for discharge of wastewater or water abstraction. Often the review procedures of such studies allow for consultation and analysis by a competent environmental body.

“LAWS OFTEN INCORPORATE THE USE OF ENVIRONMENTAL IMPACT ASSESSMENTS”

3.6 Prescribing institutional functions

Chapter 4 is devoted to a discussion of effective institutional arrangements. But most government institutions must be established by legislation, and laws may also be needed to determine how governments work with non-governmental or private organizations active in water-related issues.

3.6.1 Governmental institutions

Policy and law are the platform for the establishment of an institutional framework that will manage water resources. Ultimately, water law should not only allow for the establishment of water institutions at various levels, but also for their effective functioning and their capacity to realize national or regional objectives. The principal functions of water law with regard to state water institutions are to:

“POLICY AND LAW ARE THE PLATFORM FOR THE ESTABLISHMENT OF AN INSTITUTIONAL FRAMEWORK THAT WILL MANAGE WATER RESOURCES”

Case 3.9 China's water code assigns responsibilities to the ministry29

China's water policy code of 2002 assigns the following responsibilities to the Ministry of Water Resources:

Water-related institutions should be established at the local, state/provincial, watershed and national levels. Provisions should also be made for participating in transboundary watershed management commissions.

3.6.2 Non-governmental organizations and the private sector

Devolution of authority and decentralization of management of water resources to the basin or catchment level, with various forms of involvement by community groups and the private sector, is increasingly common practice. It not only encourages awareness of, and responsibility for, water resources but also facilitates acceptance of the legal regime and thus enhances its enforceability and ultimately its societal value. Water laws should also encourage public participation and set rules for working with NGOs and with contracting private organizations, who may be vendors or partners in various efforts.

“WATER LAWS SHOULD ALSO ENCOURAGE PUBLIC PARTICIPATION”

The participation of a wide range of actors in the management process also enhances the stability of institutional arrangements. For example, when reversal of policies accompanies changes of government, with attendant staff changes and modifications to budgets, impacts on the water management framework can be attenuated if stakeholders have been empowered to share responsibilities, especially at the grassroots level.

Decentralized management is reflected in legislation through concepts such as ‘catchment management area agencies’ and ‘water user associations’ (WUAs). WUAs have minimal state input and are primarily cooperative entities that undertake water-related activities for mutual benefit at local level. They are subject to national policies and plans, and laws frequently confer WUAs with legal personality for ease of operation, although some smaller associations can function without it (usually where monetary transactions are not involved). As ‘legal persons’, WUAs have the right to enter into contracts, hold bank accounts, employ staff and participate in legal proceedings in their own names. Constituent members cannot be held liable as individuals. It is useful to state explicitly in legislation the degree, if any, of liability, how surplus income may be retained or distributed, and how their independence from the state is managed in their role as public service providers.30

3.7 Weaknesses of existing legal systems

The preparation of new water legislation should capitalize on the strengths of existing legal systems and avoid their weaknesses. In the context of increasing competition for ever scarcer water resources, government-administered permit systems hold the best promise across the spectrum of legal systems for the orderly arbitration of conflicting interests, and for legitimizing the environment as a ‘user’ of the resource. Their distinctive strength, valid across legal systems, is the security of tenure afforded by government grants of licences for water use. This security is very important to prospective investors, but it is never absolute, as security is invariably qualified by the flexibility sought by government administrators to adjust allocation patterns to changing policy, hydrological, social, economic and technological circumstances. The environment, and the ecological value and function of surface and groundwater systems, rank prominently in recent water legislation among the variables that attenuate the security of legal title to water sought by investors. The strength of a permit system, however, can be all too easily imperilled by the weakness of the machinery that administers the system. A permit system in the hands of a malfunctioning, slow, arbitrary and opaque administration will quickly become irrelevant at best, and an instrument of oppression and corruption at worst.

“GOVERNMENT-ADMINISTERED PERMIT SYSTEMS HOLD THE BEST PROMISE FOR THE ARBITRATION OF CONFLICTING INTERESTS”

A weakness running across all legal systems and most national water laws is ignorance of customary practices, whose significance and resilience in most rural areas are a factor to be reckoned with in legislation and in its administration by government bureaucrats and technocrats. The risk is that both the legislation and its administrators multiply opportunities for conflict on the ground, thus defeating the very purpose of a regulatory approach to managing and developing water resources. An overarching problem is the transition from the old to a new concept of water ownership and allocation, with its panoply of property-related issues. Another weakness is inadequate outreach to the established water-using population. Transition is a very delicate aspect of water law reform; inadequate attention at the drafting stage, and inadequate preparation at the implementation stage may delay and jeopardize the reforms.

“A WEAKNESS RUNNING ACROSS LEGAL SYSTEMS AND NATIONAL WATER LAWS IS IGNORANCE OF CUSTOMARY PRACTICES”

3.8 Reforming water law: practical steps

Because legislative reform must be informed by policy, the steps described below presuppose interaction between the stages of forming the policies and writing the laws. Opportunities for public debate during both stages are also assumed. The steps below are given in a logical sequential order, although some may be carried out in parallel.

Step 1. Conceptualize the legal framework

At the national normative level

At the national constitutional level

Regarding national and subnational laws on water and natural resources

Regional environmental agreements

Step 2. Document customary practices

Step 3. Analyze existing legislation

Step 4. Identify needed reforms

Step 5. Include environmental provisions

Step 6. Separate laws from regulations

Step 7. Prepare regulations to implement the law

Step 8. Gauge governmental capacity

Step 9. Inform and prepare water users

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