Regulatory Frameworks for Water Resources … – World Bank Group
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The United Nations Conference on Environment and Development (UNCED) has addressed the concept, stating that
the holistic management of freshwater as a finite and vulnerable resource, and the integration of sectoral water plans and programs within the framework of national economic and social policy, are of paramount importance. . . . Integrated water resources management is based on the perception of water as an integral part of the ecosystem, a natural resource and social and economic good.293
IWRM aims to ensure the coordinated development and management of water, land, and related resources by maximizing economic and social welfare without compromising the sustainability of vital environmental systems.294
Sustainable and efficient water management requires good planning. This suggests that each jurisdiction needs to develop plans for how it will manage and regulate its water resources. Consequently, water legislation could stipulate the types of plans—national, regional, basin plans—the authorities are required to develop, and the issues that they should address. The legislation could also stip- ulate how the information needed to develop these plans should be collected.
As a public trustee of the nation’s water, the State is entrusted with responsibil- ity for ensuring that water is allocated equitably and beneficially, as well as with authority for regulating the use, flow, and control of all types of water in the State. A general rule in most statutes relates to the requirement for a permit or license to be issued by the government in accordance with clear and transparent criteria and procedures before a person can use water or construct water infra- structure. In essence, the permit grants a water right to this person.
Such a permit would describe the types of water uses allowed, the quantity of water that can be used, the water standards with which the permit holder must comply, the duration of the permit,297 the process for its renewal, and the water permit fees. In relation to groundwater, well spacing and the current amount of water being drawn from the aquifer in question can be other factors to be con- sidered in deciding whether to award a permit. However, in some countries per- mits are not required if the depth of the well does not exceed a specified limit. In addition, most legislation exempts domestic uses, up to a specified amount per day, from the requirement for a permit.298 Other issues to be addressed include procedures for challenging unfavorable decisions on water rights.
One issue facing most countries preparing water legislation is how to verify and regularize water uses that existed before the legislation is adopted.
Groundwater needs stricter and more detailed rules for its protection because it is more vulnerable than surface water to pollution and other forms of contam- ination. This is due to the fact that groundwater “flows at much slower rates than surface water, which causes contamination and other problems to manifest at slower rates and reduces aquifers’ natural reclamation abilities.”306 Moreover, pollution of groundwater is usually irreversible.307 It is further argued that non- replenishable groundwater (fossil aquifers) requires more stringent protection rules.308 Some legislation addresses the environmental sustainability of the water source, requiring that part of the water be left as a “reserve” to maintain the ecosystem of the river.309 These developments indicate clearly that the stan- dards for protecting water resources are evolving; therefore the legislation should be flexible enough to accommodate such evolving standards.
Two concepts that have been evolving and are now receiving increasing atten- tion in water legislation are the precautionary principle and the polluter-pays principle. The precautionary principle has been given wide recognition by the Rio Declaration, where it is included as principle 15. That principle states: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of seri- ous or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degra- dation.”310 The main rationale for the precautionary principle is the often irre- versible character of damage to the environment and the limitations inherent in the very mechanisms for reparation of this type of damage.
306 See Gabriel Eckstein, Protecting a Hidden Treasure: The U.N. International Law Com- mission and the International Law of Transboundary Ground Water Resources, 5 Sust. Dev. L. & Policy 5 (2004).
307 See Stephen Foster, Essential Concepts for Groundwater Regulators, in Salman (ed.), supra n. 163, at 15. See also Stephen Foster, Adrian Lawrence & Brian Morris, Ground- water in Urban Development—Assessing Management Needs and Formulating Policy Strategies, World Bank Technical Paper No. 390, 11 (World Bank 1998); and Stephen Foster, John Chilton, Marcus Moench, Franklin Cardy & Manuel Schiffler, Groundwater in Rural Development—Facing the Challenges of Supply and Resources Sustainability, World Bank Technical Paper No. 463 (World Bank 2000).
308 See Guidelines for Development and Management of Groundwater Resources in Arid and Semi-Arid Regions, 8 Intl. J. Water Resources Dev. 145 (1992).
309 See supra, section 220.127.116.11, on the concept of the Reserve in South Africa.
310 For the Rio Declaration see supra n. 277. The precautionary principle is now recog- nized as a general principle of international environmental law;see The Precautionary Principle in International Law—The Challenge of Implementation (David Freestone & Ellen Hey, eds., Kluwer Law Intl. 1996).See, for example, Preamble to the Convention on Biodiversity, 31 ILM 818 (1992) (entered into force December 29, 1993); article 3.3 of the United Nations Framework Convention on Climate Change, 31 ILM 818 (1992) (entered into force December 29, 1993); and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, supra n. 122.
Regulation of the works that are needed to provide adequate water services is not purely an issue of water law. The construction and operation of such works raises legal issues related to construction, land acquisition, environmental, and zoning law, and, in the case of public works, government procurement law. The water statute needs to address this because these works affect the quality, quantity, and flow of water. Consequently, it is important that water legislation stipulate who can operate such works and the procedures for getting permission to undertake them. This issue may be addressed, inter alia, through a requirement for a per- mit from the relevant government authority if the works are to be carried out by a private party. Both public and private entities would need to adhere to laws and regulations in this regard.
The legislation would endow the government with responsibility for the use, protection, capital investment, and safety of all state-owned water infrastruc- tures, while making private owners responsible for their infrastructure. Private owners include water users’ associations, which are allowed in some countries to build and operate their own water infrastructure. Some statutes require that water infrastructures that have special strategic importance be owned only by the state. The government has the authority to inspect privately owned water infra- structure and ensure its compliance with standards, permits, and registration requirements, including any requirements for an environmental impact assess- ment, as well as its proper functioning and safety.317
It is worth noting that the issues related to water infrastructure are quite com- plex and are usually covered in a large number of legal instruments. The World Bank Policy Paper on Water Resources Management refers to the World Bank policies that are related to water resources. They include the policies on envi- ronmental assessment, environmental action plans, involuntary resettlement, projects on international waterways, indigenous peoples, physical and cultural resources, safety of dams, how to involve nongovernmental organizations, poverty reduction, and disclosure of information.318
4.7 Institutional Arrangements
Institutional arrangements for dealing with water resources are covered widely in water legislation. Such arrangements designate one or more government agencies with ultimate responsibility over water resources, including allocation and supervision of water rights and the preparation of plans, programs, and poli- cies, as well as enforcement provisions. The previous part of this study noted the variety of those agencies: ministries, national councils, agencies, and commis- sions. Whatever choice is made, the line of responsibility should be made clear to avoid duplication and overlapping of responsibilities, and the entity should be provided with financial and administrative autonomy. As noted in the World Bank Water Policy: “The lessons of experience suggest that an important prin- ciple in restructuring public service agencies is their conversion into financially autonomous entities, with effective authority to charge and collect fees, and with freedom to manage without political interference.”
The institutional arrangements should also reflect decentralization of deci- sion making and public participation. Decentralization is based on the principle that “nothing should be done at a higher level of government that can be done satisfactorily at a lower level.”320 This is reflected in the establishment of basin management authorities that are responsible for developing water management plans for a specific basin.321 The legislation should clearly define the watershed limits, composition, and responsibilities of the basin authority. Public represent tation in such agencies would strengthen their role and provide a base for sup- port of their decisions. The responsibilities of such entities could extend to both management and protection of the basin. This approach of decentralization and public participation in water management would incorporate two of the Dublin Principles.
Water users’ associations are established under most legislation as legal enti- ties with responsibility over the operation and maintenance of the irrigation facilities in their district and for collection of water charges.322 Furthermore the authority of those associations is extended in some countries to water supply as well. It is widely argued that participation of users “increases the likelihood that the system under their responsibility will be well maintained and contributes to community cohesion and empowerment in ways that can spread to other development activities.”323 Moreover, because association-managed systems have a consumer orientation, they are likely to provide better service and improve willingness to pay for such service.324 (See page 154 of this document)
*****Some legislation provides for the establishment of “advisory boards”, where all the entities and organizations concerned with water would be represented, including civil society organizations and academic institutions. Such advisory bodies would assist the government in preparing water policies, programs, and plans, and in coordinating their implementation. Indeed, public participation in the design and implementation of water policy and legislation is now considered an important element in ensuring the success of the policies and the legislation.329 **********
4.8 Financial Arrangements
One of the complex issues, and a major challenge in water resources manage- ment, is water charges.330 Charging fees is intended to recognize water as an eco- nomic good,331 manage demand, encourage rationalization of water use, and raise revenues for operation and maintenance of the system.332 Most of the statutes state that charges for water must be set at a level that is adequate to cover the costs associated with operation and maintenance of the water infrastruc- ture.333 Because some cultures perceive water as a God-given gift for which no charges should be imposed, such charges can be presented as fees for delivery of the service, not necessarily for the water itself.334
One of the elements taken into account in setting charges for water is the vol- ume of water used, sometimes with progressive increases in prices for water usage exceeding certain amounts. This approach is being applied for domestic, industrial, and irrigation uses, though for irrigation uses approaches other than volume of water delivered have been used. Such approaches include the size of the area irrigated, the kind of crop irrigated, and the season for irrigation (the wet or the dry season, with higher charges during the dry season).335 Some laws use the source of water as a factor, charging more for groundwater than for surface water. Other laws include location of the area of delivery, the furthest points pay- ing the highest fees. In many countries water charges are set out in a separate regulation rather than in the water law itself, since updating a regulation is less cumbersome than amending a law.
Water pricing has been one of the most difficult issues faced in the water sec- tor, particularly charges for irrigation.336 Irrigation is the largest single user of water, accounting for about 73 percent of global water use, with the figure exceeding 80 percent for developing countries.337 Irrigation water in most countries is heavily subsidized,338 with no more than 10 percent of operating costs being paid by the users.339 This is notwithstanding water law in many of those countries that would call for full cost recovery for water services.340 The vicious cycle of farmers not paying because water is not being delivered, and water not being delivered because the system is in disrepair and cannot be fixed because of lack of funds, is often quoted as one reason for this state of affairs.
Partly because of this reasoning, some countries have followed the approach of charging a flat rate for water, whether for irrigation or domestic use, with all users or consumers paying the same rate regardless of the amount used. This approach does not create any incentives for managing demand or using water efficiently. Indeed, it creates perverse incentives for exactly the opposite, thus exacerbating an already difficult situation. The vicious cycle applies more vividly to water utilities where supply, demand, and pricing keep hopelessly chasing each other because of the flat rate approach. The problem of unac- counted-for water exacerbates this situation.341One reason for promoting the use of water users’ associations in both irrigation and rural water supply is the expectation that they can play a major role in water management, including operation and maintenance and collection of water charges.342
In the cited case, the applicant had failed to pay for water in excess of the free six kilo- litres per month provided by the Durban Transitional Metropolitan Council (DTMC). The DTMC, invoking its bylaws, gave the applicant written notice and allowed for represen- tations to be made before disconnecting her water supply. The applicant argued that the bylaws were inconsistent with the Water Services Act because the disconnection resulted in her being denied access to basic water services while she was unable to pay for basic provisions in its water law.357 Chile has implemented a water stamps system for the needy in its population who live below a certain level of income.358 Con- sequently, there is increasing pressure on governments from international and civil society organizations to guarantee such a right to the poor and vulnerable segments of society through incorporation of this right into water statutes, as well as through specific action and procedures to implement the provisions of the statutes.
The credibility of any legislation, including water legislation, depends on its enforcement provisions and how to get the different parties to comply with them. Such provisions need to enumerate acts that are considered violations of the law and specify sanctions. The tools that authorities can use in enforc- ing the requirements of the statute and identifying violations are limited to monitoring and inspections. To facilitate enforcement, most water law statutes give employees of the water agency the authority necessary to monitor com- pliance with the law, and some even create a special category of employees for that purpose.
Violations would include diverting or using water for any purpose without having been awarded the right to use water for that purpose; in contravention of the permit, actions that alter the flow rate, quality, or quantity of water without prior authorization; construction of unauthorized works; or committing fraud in measuring the volume of water used. Such violations can result in sanctions that include temporary or permanent revocations of the permit, fines, or even jail sentences for acts that involve criminal activity,359 though such sanctions are subject to appeal. Violators may even be liable to pay damages to any person harmed by their acts, as prescribed by the statutes of Armenia and South Africa. On the other hand, the statutes of China and Vietnam, as discussed earlier, provide incentives for compliance.
4.12 Dispute Settlement
Given the increasing scarcity of water resources and the rising quality problems, disputes between different users, or between a user and the government, are bound to arise. Water legislation therefore needs to address the issue of how to deal with those disputes. Furthermore, the legislation may also need to address situations where the dispute is between two government agencies.
Water disputes can be dealt with in widely varying ways. Initial authority to resolve disputes between users may be granted to the water agency established and operating under the water law. Special commissions are established in some jurisdictions to mediate or arbitrate water disputes between users that do not involve the government. Water users’ associations are also given powers in some countries to resolve disputes among members. A special water tribunal is estab- lished in some jurisdictions to deal with water disputes.360 The rationale for those less formal mechanisms is to avoid cost and delays. However, in most cases, appeals are allowed to the court system. Cases against the government, in most jurisdictions, can only be dealt with by the court system.
Disputes between different government agencies or basin authorities may be referred to the regulatory authority. Disputes between different water users’ associations are referred, as mentioned earlier, to the federation of water users’ associations, if such a federation exists.361
Clearly, a wide array of key and emerging issues has to be addressed in water legislation. Those issues include ownership of the water resources, underlying principles and priorities, regulation of water uses and water infrastructure, pro- tection of water resources, institutional and financial arrangements, enforce- ment of regulations, and dispute settlement. Some of the components of those issues are still evolving. Decentralization and participation, including broad par- ticipation in the preparation of water legislation, are gaining wide recognition and are becoming overarching principles for the regulatory framework for water resources management.362
CHAPTER 5 Conclusion
Water resources globally are facing tremendous and ever-increasing pressures. The population of the world has more than tripled in the last century, presenting a major challenge, particularly in the water sector, to governments around the world. Environmental degradation and hydrological variability, urbanization and industrialization, have compounded the challenges. Disputes resulting from com- peting demands between different uses and users at the local, district, provincial, national, and international levels keep multiplying. Issues related to international waters are now becoming increasingly apparent, and indeed are intertwined with domestic uses. Utilization of shared waters by one country is, more than ever before, having direct effects on other countries sharing the same watercourse.
All those challenges have pushed the need to rethink water resources manage- ment to the top of national as well as regional and global agendas.363 The search for solutions has extended across various paths, including the managerial, tech- nological, financial, social, economic, political, institutional, and legal, confirm- ing the multidisciplinary, or transdisciplinary, nature of water. The Marrakech Declaration recognized the urgent need for a better understanding of all those complex issues, including the legal ones, as a prerequisite for shaping a water policy for this millennium.
The relevance and importance of water legislation to the proper management and protection of water resources was recognized a long time ago. This recogni- tion has been underscored by more recent international conferences on water, starting with the Mar del Plata United Nations Water Conference in 1977. Indeed, that conference went beyond urging States to adopt water legislation and issued a detailed road map highlighting the basic elements to be included in water leg- islation, as well as in the national water plan, policy, or strategy. The road map also included the process for preparing water legislation.
That road map is still valid and relevant, almost thirty years after its adoption. Moreover, the road map undoubtedly paved the way for the Dublin which we termed the magna carta for water resources management and develop- ment. The four Dublin Principles continue to guide policies, strategies, and leg- islation around the globe and without a doubt have had major influence on our thinking about how water should be used, managed, and developed. Chapter 18 of the United Nations Conference on Environment and Development on Fresh- water Resources and the declarations of the three world water forums, as well as other international water conferences, have incorporated and emphasized those principles and underscored the importance of water legislation. Indeed, the only effective way for recognizing and giving effect to the Dublin Principles is through their incorporation in water legislation.
Some thirty years after Mar del Plata, the overall picture around the world with regard to water legislation is quite mixed. While a number of countries have adopted comprehensive water statutes, others are still struggling to agree on one. Countries in a third group have addressed water issues in scattered provisions in a number of laws and regulations. Some of the countries with a federal system of government have assigned authority over water to their states or provinces, with little responsibility left for the central government.
As stated earlier, the purpose of this study is to provide policy makers and technical experts with a toolkit of issues to be considered in water legislation. Based on the survey and analysis of the regulatory frameworks for water resources management in sixteen jurisdictions, the study has identified key elements that for the most part have been addressed, in varying ways, by the coun- tries surveyed. The study has also identified what we have referred to as emerg- ing trends in water legislation.
However, as the previous chapters indicate, the jurisdictions whose regula- tory frameworks for water resources management are examined in this study have addressed the various basic issues in ways that are influenced largely by their legal history and their socioeconomic, political, and cultural milieu. State ownership or custodianship of water resources is gradually emerging as the rule. Yet exceptions are allowed in some countries for some form of private ownership; and traditional and customary rights are still gaining recognition. Private ownership of rainwater harvested in private lands for domestic use is explicitly allowed in a number of countries. Groundwater continues to present special challenges because a number of countries still allow the ownership of land to carry with it ownership of the water beneath it. Moreover, even in coun- tries that have claimed custodianship over such groundwater, effective meas- ures for exercising such custodianship responsibilities are still lacking. The fact that groundwater is highly susceptible to externalities364poses additional
364 For discussion of such externalities, see World Bank, supra n. 4, at 83.
problems, particularly when the aquifer in question is a fossil, nonreplenish- able one.365
Variations in the incorporation of the four Dublin Principles in water legisla- tion are quite evident. Financial arrangements are given wide coverage in some legal frameworks, underscoring the belief that treating water as a socioeconomic good will assist in demand management as well as in rationalizing water use. Yet a few countries have missed or ignored this principle, thereby compounding the challenges to the sustainability of their water resources. However, even in some countries that have adopted provisions for cost recovery, enforcement of those provisions has proven quite difficult.
Decentralization of decision making at the basin level and participation of users in the planning and management of water resources are the rule in some countries, the exception in a second group, and absent in others. Indeed, some countries have gone a long way towards incorporating public participation, not just users’ participation, into decision making over water resources management issues. As discussed in the previous chapters, such participation includes public notice of water use permits, inviting public comments on proposed regulations to be issued by the executive authority, the establishing or disestablishing of a water institution, and water pricing strategies. As the discussion in the previous chap- ters indicates, decentralization and users’ participation are the pillars of any water legislation.
Similarly, variations in institutional arrangements for the water resources sec- tor in the countries surveyed are quite apparent. They include oversight by one or more ministries, councils, commissions, or simply administrative agencies or water utilities. However, it is the authority and independence of such entities that should actually matter, not whether they are ministries with multiple responsibil- ities or separate water agencies. Legal and financial autonomy is particularly important for public water utilities.366 Where there are multiple entities, the need for coordination and avoidance of overlapping responsibilities is necessary. But in a number of countries this need may not be that clear, in theory, in practice, or in both.
With the challenges to the quality of water resources multiplying by the day, compounded by environmental degradation and industrialization, the need for an elaborate protective framework is evident. Yet a number of countries still fail this test. Decisions on water rights—how to allocate them, using what criteria, and how to verify existing ones—and how to administer them will only be accepted as legitimate when they are made in a transparent, equitable, and fair manner, accompanied by mechanisms to redress grievances. Some legislation does pro- vide for public participation in such decisions. Yet those elements, and the details elaborating them, are missed in a number of water laws.
As the previous chapters indicate, water resources management is clearly a dynamic and evolving concept and should be dealt with accordingly.367 Our understanding of the elements that need to be addressed in water legislation is constantly evolving. It is also noteworthy that “water legislation is rapidly evolv- ing towards integrated water planning to satisfy environmental objectives, eco- nomic requirements and social concerns.”368 This fact is further buttressed by some emerging trends in water legislation. The underlying purposes for legisla- tion now include new elements, such as the sustainable utilization of water resources to protect future generations. Such sustainable utilization is also needed to enable states to meet their international obligations with regard to shared water resources.
Integrated water resources management is increasingly finding a place in water legislation and policies. As discussed earlier, IWRM aims to ensure the coordinated development and management of water, land, and related resources by maximizing economic and social welfare without compromising the sustain- ability of vital environmental systems.
Closely related to the concept of IWRM is the need for protection of the water source ecosystem, which is broad and includes the flora, fauna, and land con- tiguous to the water source.369 Similarly, the notion of the “reserve” is becoming increasingly relevant for water legislation. Furthermore, concepts that have been reserved to international environmental law, such as the precautionary and polluter-pays principles, are gradually being incorporated as rules in domestic water legislation.
The human right to water for the needy and vulnerable groups of the society is being debated, and as discussed earlier, it is widely agued that such a right does indeed exist under international law, buttressing the emerging calls to recognize this right.