Rule - Reforming Water Governance: About IUCN
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dionkantRule
Reforming water governance
Alejandro Iza and Robyn Stein
The designation of geographical entities in this book, and the presentation of the material, do not
imply the expression of any opinion whatsoever on the part of IUCN concerning the legal status of
any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or
boundaries.
The views expressed in this publication do not necessarily reflect those of IUCN.
Published by: IUCN, Gland, Switzerland
Copyright: © 2009 International Union for Conservation of Nature and Natural Resources
Reproduction of this publication for educational or other non-commercial purposes
is authorized without prior written permission from the copyright holder provided
the source is fully acknowledged.
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without prior written permission of the copyright holder.
Citation: Iza, A. and Stein, R. (Eds) (2009). RULE – Reforming water governance. Gland,
Switzerland: IUCN.
ISBN 978-2-8317-1027-3
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2
Contents
Key messages 7
Preface 11
Foreword 13
Editors and authors 14
Acknowledgements 15
Chapter 1. Creating Water Governance Capacity 17
1.1 Managing water effectively 17
1.2 Importance of policy and law 24
1.3 Water governance capacity 25
1.4 Organization of RULE 26
1.5 The water governance capacity checklist 28
Chapter 2. Linking Policies to Realities 31
2.1 The role of water policy 31
2.2 Vision for the future 33
2.3 Water policy principles 33
2.4 Process principles for water policy 37
2.5 Context of water policy reform 39
2.6 Typology of water policy and planning reforms 41
2.7 Linking policies to realities: general principles 44
2.8 Reforming water policy: practical steps 46
3
Chapter 3. Transforming Policy into Law 49
3.1 Features of water law 49
3.2 The context, role and reach of water resources legislation 50
3.3 Water allocation 54
3.4 Water quality protection 58
3.5 Incorporating conservation into water law 60
3.6 Prescribing institutional functions 65
3.7 Weaknesses of existing legal systems 67
3.8 Reforming water law: practical steps 68
Chapter 4. Building a Sound Institutional Mechanism 71
4.1 Building governmental water institutions 71
4.2 Types of water institutions 73
4.3 Four levels of water institutions 78
4.4 Designing institutions for IWRM 83
4.5 Funding water institutions 84
4.6 Public participation and civil society organizations 86
4.7 Private-sector roles in water management 88
4.8 Practical steps and indicative principles 93
Chapter 5. Implementing Water Governance Capacity 97
5.1 Enabling implementation 97
5.2 Regulations 100
5.3 Monitoring and information management mechanisms 107
5.4 Compliance and enforcement 107
5.5 RULE: A framework for effective water governance 114
4
Cases and boxes 117
Tables and figures 119
Glossary 120
Photo credits 125
References 126
5
6
Key messages
1. Creating Water Governance Capacity
Effective reform depends on water governance capacity
In most countries, policies and laws related to water management have accumulated over time deriv-
ing from different philosophies and approaches, and have never been reconciled. Reforming policies
and laws into a cohesive package is a difficult and time-consuming task, which depends on political
will and opportunities, on leadership, and on a country’s capacity to govern its waters.
Water governance capacity is a means to an end
Water governance capacity reflects a society’s level of competence to implement effective water
arrangements through policies, laws, institutions, regulations, and compliance mechanisms. Without
a clear policy, it is difficult to develop a coherent system of laws. Without a clear established legal
structure, it is difficult for institutions to know how to operate. Without effective institutions, com-
pliance and enforcement are likely to be lax.
Balanced water governance capacity is the key to providing effective water management
A country needs to develop each of the components of water governance capacity – policy, law,
institutions (and implement them) to achieve a system of effective water governance. There is no
blueprint solution. Achieving a balance of capacity (rather than areas of strengths and weaknesses)
through reform is a country-specific process.
2. Linking Policies to Realities
Water policy should be based on a vision and strategic planning
It can be helpful to set out goals or principles for water policy in advance of actually determining the
policy. A written water policy might contain a background section explaining the need for the policy,
a statement of purpose, a vision statement, a statement of scope, a set of definitions, an effective
date, one or more statements of policy, and a section on responsibilities regarding who will carry
out the policies.
Water policy framework is consolidated by water law
For water management to be compelling over time, it needs a policy that defines principles, actors
and processes. These can then be moved to an enforceable set of decision-making requirements
through the law.
Understanding water policy arrangements is essential for a successful reform
Not all policy arrangements are suited to every water management situation. Understanding which
water issue can be best solved with which type of policy arrangement is key for successful water
7
reform. An authoritative policy is usually linked to macro projects dealing with national security or
economic development. A pluralistic-liberal approach works best with parties that are closely linked
to a specific geographic area such as a river basin, whereas a decentralized-communitarian water
policy is suitable for periods of change and innovation.
3. Transforming Policy into Law
Good water laws provide a structure for effective water management
Laws should form the backbone of Integrated Water Resource Management (IWRM). Well drafted
laws offer predictability, and a precise yet flexible structure through which obligations are laid
down, with rights which can be enforced and protected.
The water legal system must be coherent at all levels
National water legislation must reflect national policy as well as the commitments made by States
under international agreements on rivers, lakes and ground waters. It must set out the coordination
mechanisms across sub-national boundaries and jurisdictions.
A modern legal regime for water is comprehensive and includes efficiency, equity and sustain-
ability considerations
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 manage-
ment structure.
Codification promotes legal certainty and increases efficiency
A unified code for water expresses a decisive political commitment. Consolidation promotes a more
effective legal structure by avoiding the trouble of issues being overlooked, and the complications
and confusions of having to navigate through numerous and often inconsistent pieces of legislation.
4. Building a Sound Institutional Mechanism
Well set-up river basin institutions are key for national water management
In order to coordinate upstream-downstream water allocations and uses, and to maintain healthy
ecosystems throughout the watershed, it is necessary to work at the river basin level. When setting up
a river basin institution, a clear mandate, a long-term strategy, and a clear organizational structure
must be established.
Coordination rather than merely decentralization
The critical issue is not to centralize or decentralize institutions, but to coordinate the work of a
multiplicity of them with jurisdiction over different water management sectors, following a common
vision and plan.
8
Public engagement in water management enhances water governance
Civil society participation helps to create networks of arrangements for water management, gener-
ate trust and empowerment among stakeholders, and create respect and support for water decision
making. Participation is the basis for commitment to, and coherence in, implementation of effective
water governance.
What cannot be privatized
The stewardship function of water management cannot be privatized. Thus, policy-making and bar-
gaining processes, legislation, decentralization, institutional management of government agencies
and regulatory functions must remain public responsibilities.
5. Implementing Water Governance Capacity
Water Governance Capacity must be enabled
A country’s Water Governance Capacity (WGC) can be properly displayed in an enabling environment
characterized by transparency, certainty, accountability and the lack of corruption.
Economic instruments provide an alternative mechanism for effective compliance
Compliance with, and enforcement of, water law can be enhanced using regulations to establish
appropriate incentive mechanisms that support and enable compliance by stakeholders. Incentive
mechanisms include taxation, subsidies, and payment schemes for watershed services.
Enforcement mechanisms ensure stakeholder security in cases of non-compliance
Inclusion of enforcement mechanisms in the water law (punitive sanctions, prior notice and abate-
ment measures, monitoring and inspection) ensures that justice can be reached when a contraven-
tion of the water law occurs.
An efficient judicial system is a key reinforcement for implementing water governance
Effective enforcement of water legislation is rendered by properly funded and resourced administra-
tive mechanisms overseen by accessible and affordable judicial systems.
Building Water Governance Capacity is an ongoing socio-political process
Improving a country’s water governance capacity does not end with the adoption of a new policy or
the enactment of a new law. Decision makers and water managers should assess the capacity of the
administration to internalize and to act to implement the reform, and plan the necessary upgrades
ahead of the adoption of new rules.
9
10
Preface
11
12
Foreword
13
Editors and authors
Edited by Alejandro Iza and Robyn Stein
Chapter 1 Dr Alejandro Iza, IUCN Environmental Law Centre (ELC), Robyn Stein, IUCN
Commission on Environmental Law and Juan Carlos Sánchez (ELC)
Chapter 2 Dr Ger Bergkamp, World Water Council (WWC), Gregory J. Hobbs, Jr (Justice,
Colorado Supreme Court) and Dr Alejandro Iza
Chapter 3 Stefano Burchi, former Legal Office, Food and Agriculture Organization of the
United Nations (FAO) and Robyn Stein; in collaboration with Olga Buendía (formerly
of ELC)
Chapter 4 Dr Alejandro Iza and Robyn Stein
Chapter 5 Dr Alejandro Iza and Robyn Stein
14
Acknowledgements
RULE was developed by IUCN’s Environmental Law Centre (ELC) under the IUCN Water and
Nature Initiative (WANI), with a view to improving water governance arrangements at the national
level by way of enhancing the capacities of water managers to deal with legal and policy issues.
Many individuals provided advice and help to the authors and editors of this book in the form
of feedback, case studies and personal experiences. We are grateful for their time and assistance. In
particular, we would like to thank Mark Smith, Head of the IUCN Water Programme for his invaluable
direction and guidance in the process of developing this publication.
Thanks are also due to Ger Bergkamp, former Head of the IUCN Water Programme, now Director
General of the World Water Council, as a continual source of inspiration during the development of
the book. We also wish to thank Juan Carlos Sánchez, Junior Legal Officer at the ELC, and Megan
Cartin, Monitoring and Evaluation Officer, IUCN Water Programme, for their unstinting assistance in
the editorial process, and the preparation of this book.
We are grateful to Olga Buendía, former ELC Water Governance and Research and Development
Officer for her contribution in coordinating this project in its initial stage, and assembling the first
draft. We also thank Mary Paden and Tiina Rajamets for editorial support. We also thank Markus
Kahlenberg of Magoodesign for work on figures 1.1 and 5.1.
Finally, the financial contribution of the Government of the Netherlands through the Water and
Nature Initiative is gratefully acknowledged.
15
16
Chapter 1
Creating Water Governance Capacity
1.1 Managing water effectively
How a country manages its water resources determines the health of its people, the success of
its economy, the sustainability of its natural environment, and its relations with its neighbours. Good
water management can provide clean drinking water and sanitation, the basics of good health, while
poor water management can increase disease and suffering. Good water management can bring
hydroelectric power to homes and industry, irrigation for agriculture, and improve the economy,
while poor management can mean lack of power, desiccated crops, floods and famine. Good water
management allows water for wildlife to maintain biodiversity, and provides opportunities for recre-
ation and tourism, while poor management can result in parched ground, dried-up lakes and silted
harbours. Good water management can result in harmonious and mutually beneficial water agree-
ments with neighbouring countries, while bad management can trigger tensions and conflict.
In short, good water management brings tangible benefits to a country. Case 1.1 demonstrates
an example of the benefits brought by improved management of water, whilst Case 1.2 shows the
detrimental consequences of poor water management.
Case 1.1 Benefits of good water management in Dar es Salaam1
In the Kitunda Settlement of Dar es Salaam’s Ilala District, in Tanzania, a community-managed water supply
system changed the lives and work of the Kitunda community.
Apart from providing water to the surrounding four schools and a local health centre, the project has led to
a dramatic improvement in hygiene, virtually eliminated waterborne diseases, and made it possible for people
who previously spent time and energy looking for water to engage in more constructive economic activities.
Before the project’s implementation, the people of Kitunda had to buy water from mostly shallow, privately-
owned boreholes and from private vendors, which was of poor quality and a high price. Before the project
started, private vendors sold water at prices upwards of TSh500 or US$0.40 cents for 20 litres, a prohibitive
amount for much of the population.
Today, everyone in this community enjoys reliable, affordable clean water paying only Tsh20 or about US$0.02
cents for 20 litres of water, according to the Chairman of the Biblia Relini Water Users’ Association, commonly
known as JUWABERI, the group that manages the project. JUWABERI manages the water supply project on
behalf of the state-owned water utility, the Dar es Salaam Water and Sewage Authority (DAWASA). The
association, which boasts 340 members, employs 20 people who manage the revenues and administer the
public standpipes. The project is a successful example of a community managing its own water provision and
subsequent income. Members of the community contributed TSh2.5 million (about US$2,000), about 5 percent
of the total cost of the project.
Case 1.2 Detrimental consequences of poor water management 2
The costs of environmental and health degradation due to inadequate water and sanitation services have been
estimated at more than 1 percent of GDP in Colombia, 0.6 percent in Tunisia, and 1.4 percent in Bangladesh.
According to the World Bank Water and Sanitation Program (WSP), poor sanitation is responsible for at least
17
US$9 billion in economic losses per year in Cambodia, Indonesia, the Philippines and Viet Nam combined.
Sanitation is a neglected aspect of development in countries where spending is limited which has severe social
consequences on their populations. The most devastating impact of poor sanitation is an increased risk of
infectious disease and premature death, accounting for more than US$4.8 billion, or US$12 per capita annu-
ally, according to WSP.
Poor sanitation also contributes significantly to water pollution – adding to the cost of safe fresh water for
households, and reducing the production of fish in rivers and lakes.
Water managers understand the increasing stress placed on fresh water sources by growing
populations, growing demands of industry and agriculture, and the uncertain effects of climate
change. Innovative water managers, from professionals with a national water authority to local
managers who oversee dams or hydro plants, can do much to ensure that water is carefully man-
aged. However, even their best efforts can be thwarted by the lack of a comprehensive legal and
policy framework that levels the playing field, clarifies the rules, and sets a country on the route to
good management.
RULE focuses on the importance of national policy and laws in effective water management. Policy
and law, although usually in the background of development, and not always directly discussed in
the context of good management practices, provide the skeleton that is fleshed out by institutions
and management practices. Policy and law, when combined with institutions, implementation, and
enforcement mechanisms, constitute a country’s ‘water governance capacity’.
Photo 1.1 Women collecting water from a canal (Tanzania). Water governance capacity is about building a
management system that delivers tangible results for ecosystems and human wellbeing.
18
RULE provides practical guidance on how to create a system of effective water governance at the
national level. It seeks to serve as a guide on how to shift away from often fractured and uncoor-
dinated approaches by establishing a central role for policy and the rule of law. With coordinated
laws, policies and institutions, many issues that are presently problematic for local managers can be
addressed.
Laws, policies, institutional arrangements, and implementation and enforcement methods from
many countries are analyzed and guidelines developed for reforming water governance structure.
Of course, there are many varieties of successful laws and policies that suit countries with different
traditions and forms of government. Thus, an attempt is made to match policies to certain govern-
mental situations (see Chapter 2).
Water governance is a means to an end, which is good water management. Good water manage-
ment can be characterized as:
Efficient: It maximizes the use of water resources under rational patterns of consumption that can
benefit most consumers, taking into account not only the water, but also other resources, including
social and human capital.
Equitable: Both benefits and costs are shared and a transparent process is used to arrive at societal
decisions applied to water management.
Sustainable: Water management supports the ability of a society to endure over time without
undermining the integrity of the hydrological cycle or the ecosystems that depend on it.
1.1.1 Brief history of water management
Water management dates to ancient times when stone rows and ditches were used for irrigation
and later aqueducts were built to carry water to cities. For most of human history, the purpose of
water management was to bring water to where it could be used for drinking, washing, power and
irrigation. Water management was also used to even out the fluctuations of flood and drought by
storing water and to carry away waste. However, as human numbers grew and as society developed
ever more water-demanding forms of industry and agriculture, users began competing for water
with each other and with the natural world. Today, water management means not only delivering
water services, but doing so in a way that balances the competing interests of individuals, industry,
agriculture and wildlife. It also maintains good relations between all the users who share water
resources and develops systems that will accommodate future generations.
Large-scale industrial-age water projects like the Tennessee Valley Authority in the United States,
the Aswan Dam in Egypt and the Ilisu Dam in Turkey produced astounding economic development
in the areas they served. Such development of water resources has also had negative effects includ-
ing flooding of populated, productive valleys and forcing the relocation of thousands of people.
Reservoirs became silted up with the result that natural replenishment of soil fertility was withheld
from downstream crops.
Since the early 1990s, triggered by the growing scarcity of clean water and the significant altera-
tion of habitat, international bodies have been urging reform in national water policies and laws.
The current international discourse is captured in a series of statements and documents such as the
World Water Vision,3 the World Commission on Dams Report,4 the Millennium Development Goals
(MDGs),5 and the outcome of the United Nations Commission on Sustainable Development (CSD),
19
as well as the Dublin Statement on Water and Sustainable Development6 (see Box 1.1), the Paris
Declaration on Water and Sustainable Development International Conference,7 and the Ministerial
Declaration of the World Water Forum.8
Box 1.1 The Dublin Statement on Water and Sustainable Development
Guiding principles:
1. Fresh water is a finite and vulnerable resource, essential to sustain life, development and the environment.
Since water sustains life, effective management of water resources demands a holistic approach, linking social
and economic development with protection of natural ecosystems. Effective management links land and water
uses across the whole of a catchment area or groundwater aquifer.
2. Water development and management should be based on a participatory approach, involving users, planners
and policy makers at all levels. The participatory approach involves raising awareness of the importance of water
among policy makers and the general public. It means that decisions are taken at the lowest appropriate level,
with full public consultation and involvement of users in the planning and implementation of water projects.
3. Women play a central part in the provision, management and safeguarding of water.
This pivotal role of women as providers and users of water and guardians of the living environment has sel-
dom been reflected in institutional arrangements for the development and management of water resources.
Acceptance and implementation of this principle requires positive policies to address women’s specific needs
and to equip and empower women to participate at all levels in water resources programmes, including decision
making and implementation, in ways defined by them.
4. Water has an economic value in all its competing uses and should be recognized as an economic good.
Within this principle, it is vital to recognize first the basic right of all human beings to have access to clean
water and sanitation at an affordable price. Past failure to recognize the economic value of water has led to
wasteful and environmentally damaging uses of the resource. Managing water as an economic good is an
important way of achieving efficient and equitable use, and of encouraging conservation and protection of
water resources.
This international discourse provides ideas and guidelines that can be adapted and further devel-
oped by national policy and legislation. It often provides the ‘lingua franca’ with which to engage
with other states to synchronize policies over shared resources. It is also linked to international norms
and standards to which many countries have agreed to abide. When developing a new water policy
it is therefore essential to be aware of the international discourse.
The discourse has generally incorporated the ideas of sustainability and human rights into water
management. Sustainability and social welfare are incorporated into Integrated Water Resources
Management (IWRM, see Box 1.2), which is defined as:
‘A process that promotes the coordinated development and management of water, land and
related resources to maximize economic and social welfare in an equitable manner without compro-
mising the sustainability of vital ecosystems.’9
20
“IWRM IS A COMPLEX UNDERTAKING THAT PRESENTS MAJOR
CHALLENGES FOR NATIONAL WATER GOVERNANCE SYSTEMS”
Most of the recent water reform processes focus on IWRM, which has been promoted inter-
nationally in various fora, and has been the objective of national plans in Nicaragua, Ecuador and
South Africa, to mention but a few countries. However, the implementation of IWRM is a complex
undertaking that presents major challenges for national water governance systems. By definition,
IWRM perceives water governance as a multi-stakeholder process in which social, political and eco-
nomic institutions and their relationships are regarded as important for water development and
management. IWRM has not yet been implemented successfully in many places and it might be
argued that its lack of focus on developing suitable legal and policy mechanisms to support it has
slowed its adoption.
Box 1.2 IWRM in international policy
Excerpts from international policy documents on the concept of Integrated Water Resources Management
1. Integrated water resources management is based on the perception of water as an integral part of the
ecosystem, a natural resource, and a social and economic good, whose quantity and quality determine the
nature of its utilization. To this end, water resources have to be protected, taking into account the functioning
of aquatic ecosystems and the perenniality of the resource, in order to satisfy and reconcile needs for water
in human activities. In developing and using water resources, priority has to be given to the satisfaction of
basic needs and the safeguarding of ecosystems. Beyond these requirements, however, water users should be
charged appropriately.
Source: Agenda 21. Chapter 18. Protection of the quality and supply of freshwater resources: application of
integrated approaches to the development, management and use of water resources.
2. Halve, by 2015, the proportion of the population without sustainable access to safe drinking water and
basic sanitation.
Source: Millennium Development Goals, Goal 7, Target 3.
3. The provision of clean drinking water and adequate sanitation is necessary to protect human health and the
environment. In this respect, we agree to halve, by the year 2015, the proportion of people who are unable to
reach or to afford safe drinking water (as outlined in the Millennium Declaration) and the proportion of people
who do not have access to basic sanitation).
Source: Johannesburg Plan of Implementation of the World Summit on Sustainable Development,
Johannesburg, South Africa, 2002.
“THE RIGHTS-BASED APPROACH HAS GAINED SOME RECOGNITION
AT THE INTERNATIONAL LEVEL”
More recently, international discourse has promoted another line of reform – a rights-based
approach (RBA) to water management, which asserts that humans have a right to clean water (see
Box 1.3). Thus RBA combines human development with human rights. It deals not only with human
needs and development requirements, but also proposes a societal obligation to guarantee and
protect inalienable rights of individuals. It empowers people to demand water access as a right, and
gives communities a moral basis from which to claim international assistance.
21
Although a human right to water may ‘entitle everyone to sufficient, safe, acceptable, physically
accessible and affordable water for personal and domestic uses’,10 significant economic resources are
needed to deliver clean water to every individual. While the rights-based approach has gained some
recognition at the international level, there are still uncertainties about its meaning and practical
implications.
Box 1.3 The Right to Water
On 12 November, 2002, the United Nations Committee on Economic, Social and Cultural Rights (CESCR)
adopted General Comment Number 15 (GC15), ‘The Right to Water’. Under this policy framework, national
governments would have six explicit obligations:
1. Realize that people have a right to lead a life with human dignity.
2. Recognize the entitlement of everyone to sufficient, safe, acceptable, physically accessible, and affordable
water for personal and domestic uses.
3. Guarantee that the right to water is enjoyed without discrimination.
4. Recognize citizens’ right to seek, receive and impart information concerning water issues.
5. Agree to the government’s obligation to respect, protect and fulfil its citizens’ rights to water.
6. Refrain from interference and sanction, and prevent violations by organizations of which the state is a
member or which it administers.
The right to water has impacts at the national, community and individual levels.
The national level
s !DOPT AND IMPLEMENT A NATIONAL WATER STRATEGY AND PLAN OF ACTION THAT INCLUDES THE RIGHT TO
water indicators and benchmarks.
s -ONITOR THE EXTENT OF THE REALIZATION OR THE NON REALIZATION OF THE RIGHT TO WATER
s !DOPT RELATIVELY LOW COST TARGETED WATER PROGRAMMES TO PROTECT VULNERABLE AND MARGINALIZED
groups.
The community level
s %NSURE THE RIGHT OF ACCESS TO WATER AND WATER FACILITIES AND SERVICES ON A NON DISCRIMINATORY
basis, especially for disadvantaged or marginalized groups.
s %NSURE PHYSICAL ACCESS TO WATER FACILITIES OR SERVICES THAT PROVIDE SUFFICIENT SAFE AND REGULAR
water; that have a sufficient number of water outlets to avoid prohibitive waiting times; and
that are at a reasonable distance from the household.
s %NSURE EQUITABLE DISTRIBUTION OF ALL AVAILABLE WATER FACILITIES AND SERVICES
The individual level
s %NSURE ACCESS TO THE MINIMUM ESSENTIAL AMOUNT OF WATER THAT IS SUFFICIENT AND SAFE FOR PERSONAL
and domestic uses to prevent disease.
s %NSURE THAT PERSONAL SECURITY IS NOT THREATENED WHEN PHYSICALLY ACCESSING WATER
s 4AKE MEASURES TO PREVENT TREAT AND CONTROL DISEASES LINKED TO WATER IN PARTICULAR ENSURING
access to adequate sanitation.
22
Table 1.1 Components of a national legal framework
Legal Scope Type of Regulation Purpose
Instrument
s .ATIONAL s &UNDAMENTAL AND ORGANIC LAW OF s 2IGHT TO WATER s 3TABLE
#ONSTITUTION A 3TATE )T CAN PROVIDE THE CON- s 2IGHTS CONNECTED TO WATER s %NSURES CLARITY AND COORDINATION
CEPTION PRINCIPLES AND GENERAL SUCH AS HEALTH AND SANITATION BETWEEN
FRAMEWORK OF THE WATER POLICY ENVIRONMENT FOOD AND SOCIAL DIFFERENT GOVERNANCE LEVELS
SECURITY s 2EGULATE THE INTERFACE BETWEEN
s %STABLISHMENT OF SPECIFIC FRAME- CUSTOMARY AND STATUTORY LAW
WORK PRINCIPLES
s )NTERNATIONAL s !GREEMENT FORMALLY SIGNED s 7ATER AND DIPLOMACY s #REATES OBLIGATIONS FOR THE SIGNING
4REATIE AND RATIFIED BETWEEN SOVEREIGN s 2EGULATION OF 3TATES RIGHTS AND PARTIES WHICH COMMONLY HAVE TO BE
3TATES DUTIES OVER SHARED FRESHWATER IMPLEMENTED THROUGH NATIONAL
RESOURCES LEGISLATION
s $EFINITION OF RIVER BASIN DEVELOP-
MENT OF INTERNATIONAL LAW PRINCIPLES
EG EQUITABLE UTILIZATION AND THE
DUTY NOT TO HARM OTHER 3TATES
s .ATIONAL s 3ET RULES AND PRINCIPLES CRAFT- s $EVELOPMENT OF PRINCIPLES FOR s 'ENERAL APPROACH AND COUNTRYSTATE
,AWS ING WATER POLICY AS MANDATORY )72- AND WATER MANAGEMENT FEDERAL SYSTEMS WIDE APPLICATION
OBLIGATORY TERMS s 2ULES ON POLLUTION PREVENTION s #AN SET A GENERAL FRAMEWORK TO BE
s 3ET OUT INSTITUTIONAL FRAMEWORK AND CONTROL COMPLETED AFTERWARDS OR BE ISSUE
FOR IMPLEMENTATION s 2ULES ON WATER CONSERVATION SPECIFIC WATER FORESTS COASTS RIVER
BASINS
s "YLAWS s 2ULES THAT FULFIL AND EXECUTE s %NVIRONMENTAL FLOWS s )SSUE SPECIFIC
AND PROVISIONS CONTAINED IN WATER s 'ROUNDWATER ABSTRACTION LIMITS s %ASIER TO ADOPTCHANGE THAN LAWS
2EGULATIONS AND RELATED LAWS s 0OLLUTION LIMITS
s )SSUED NORMALLY BY THE s )RRIGATION QUOTAS
%XECUTIVE REPRESENTED BY AN
ADMINISTRATIVE AGENCY
s #USTOMARY s 0RACTICES AND CUSTOMS ACCEPTED s .ON WRITTEN .OT AVAILABLE IN s 2ECOGNITION OF CUSTOMS AND TRADI-
,AW AS OBLIGATORY RULES EVERY COUNTRY TIONAL PRACTICES IN THE MANAGEMENT
s 2ULES ABOUT USE CONSERVATION USE AND CONSERVATION OF WATER
AND MANAGEMENT OF WATER BY RESOURCES
DIFFERENT USERS s 0RACTICES AND BELIEFS THAT ARE A VITAL
PART OF SOCIAL AND ECONOMIC SYSTEM
23
At least one national court has recognized the right to water. In India, the Kerala High Court
established that the ‘right to sweet water and the right to free air, are attributes of the right to life,
for these are the basic elements which sustain life itself’. The Indian Supreme Court has interpreted
the fundamental right to life under the Constitution to include the right of enjoyment of pollution-
free water. It ruled that if anything endangers or impairs this right, a citizen might directly approach
the Supreme Court under Article 32 of the Constitution.
Of course, IWRM and RBA are not mutually exclusive. In fact, there are opportunities to build
bridges between them, allowing a stronger vision of a path towards effective water management.
For instance a constitutional guarantee of a human right to water through IWRM principles would
enhance water security for more people, especially the most vulnerable and marginalized (see Table
1.1).
“IWRM AND RBA ARE NOT MUTUALLY EXCLUSIVE AND THERE ARE
OPPORTUNITIES TO BUILD BRIDGES BETWEEN THEM”
1.2 Importance of policy and law
It is at the national policy level that elements from the international discourse can be translated
into actual practice. National policy sets out the philosophy and goals of water management. Policies
determine whether a country will focus on using its water resources for industrial development or
provide a sustainable long-term infrastructure to deliver clean water to all citizens. In theory, poli-
cies set a clear direction, which is then codified into law and implemented in practice. However, in
many countries, policies formed at different times by different administrations and interest groups
are in conflict and can cause stalemate or confusion among managers. Reforming national water
policies allows for discussion and debate on the merits of various directions and engages different
interest groups and stakeholders in crafting documents that set the direction for a country’s water
management. Policies can encourage transparency and citizen involvement in water planning and
they can provide incentives for the private sector to engage in contracts with governments to deliver
water services. Policies can set priorities for water use and they can declare that every citizen has a
right to clean water.
“NATIONAL POLICY SETS OUT THE PHILOSOPHY AND GOALS OF
WATER MANAGEMENT”
Laws codify public policies. The certainty of law allows businesses and local authorities such as
municipalities to plan ahead and invest knowing that water will be provided according to a certain
structure. Laws determine who has the right to use water from different sources. Laws can give
citizens the right to potable water, and thus the right to seek redress if they do not receive it. They
can set up mechanisms for government to form partnerships with private industry. Finally, they can
influence how a government negotiates with neighbouring states over water issues, or they can be
passed in response to international negotiations. Clear, secure and well drafted laws reduce transac-
tion costs, clarify property rights, and allow citizens to get involved and understand the economic
and legal process related to water management. Corruption can be reduced when the laws ensure
transparency and accountability.
Most countries have policies and laws related to water management. However, in most cases,
these policies and laws have accumulated over time, spawned from different philosophies and
approaches, and have never been reconciled. Reforming national policies and laws into a cohesive
package is a difficult and time-consuming task, but countries that have tackled it have found that
their ‘downstream’ implementation plans go more smoothly (see Case 1.3).
24
Case 1.3 Development of a coherent water management plan in Brazil 11
Water law in Brazil is a complex mosaic. First regulated in the Código de Águas de 1934 (Water Code of 1934),
water was later incorporated into general environmental law in 1988 and made subject to public domain in
the Federal Constitution of the same year. General norms regarding water governance introduced in the 1988
Constitution allowed state and municipal legislation to supplement water law wherever federal laws did not
control the field.
The legal reform process was the result of a progressive decentralization of its water governance. Following
the development of hydroelectric infrastructure in the 1960s, relevant powers were shifted to the Energy and
Mines Ministry, and since 1995 such authority rests within the Environment Ministry. In the second half of the
1990s, the government underwent significant shifts in its conceptions of water management, recognizing the
finite nature of water resources in the country and regarding water management as an environmental and
sustainability issue that requires a fully integrated, participatory approach for success.
In 2000, the Agência Nacional de Águas (National Agency of Waters) was created, with autonomy and special
responsibilities for implementing national water policy and coordinating the national water management sys-
tem. Additionally, Comitês de Bacia (Basin Committees) are federal boards responsible for regional and local
water resource decisions. Finally, state water agencies oversee state and local water management decisions to
the extent their jurisdiction is not superseded by higher agencies.
As a result of a comprehensive system of policy, laws and institutions, Brazil has been able to substantially
improve its water management structure.
1.3 Water governance capacity
Water governance capacity is a society’s level of competence to implement effective water
arrangements through policies, laws, institutions, regulations and compliance mechanisms.
Figure 1.1 illustrates the concept of water governance capacity as it relates to the establishment
of a system for effective water governance. At the core is the concept of water governance capacity,
followed (in concentric circles) by policy, law, institutions and compliance. Each outer circle builds
on the inner circles. Thus without a clear policy, it is difficult to develop a coherent system of laws.
Without a clear established legal structure, it is difficult for institutions to know how to operate.
Without effective institutions, compliance and enforcement are likely to be lax.
“WITHOUT A CLEAR ESTABLISHED LEGAL STRUCTURE, IT IS
DIFFICULT FOR INSTITUTIONS TO KNOW HOW TO OPERATE”
Whatever its policies toward water management, a country needs to develop each of these areas
– policy, law, institutions, regulations, contracts and compliance – in order to have effective water
governance. Achieving a balance of capacity (rather than areas of strengths and weaknesses) is best.
RULE offers advice on how to identify weaknesses, strengthen each area, and keep them in balance
to achieve good water governance. Each chapter of RULE deals with one of the areas depicted as
rings in Figure 1.1.
The establishment of water governance capacity may follow different patterns in different coun-
tries. Not every country pursues the same sequence in terms of adopting policies on water, enacting
the laws to realize the policies, and establishing the institutions to implement the law. However, it
is possible to offer guidelines that might help policy makers think through the issues and elements
necessary to achieve water governance capacity and show examples of how this capacity has been
achieved in some places.
25
Figure 1.1 Components that are integral to Water Governance Capacity (WGC)
“THE ESTABLISHMENT OF WATER GOVERNANCE CAPACITY MAY
FOLLOW DIFFERENT PATTERNS IN DIFFERENT COUNTRIES”
1.4. Organization of RULE
RULE has a chapter on each of the components of water governance capacity: policy, law, institu-
tions and implementation.
1.4.1 Policy
Policy is a government’s plan and strategy on how to address an issue. As the international
discourse on water management has shifted from using water purely for economic development to
incorporating community and environmental concerns to develop water use in a more sustainable
way, national policies are being reformed to reflect the new thinking. Policies are made through
legislation and executive orders and they can be created by decree from above or pressure from
below.
Chapter 2 identifies elements of a sustainable water policy and looks at questions that should
be addressed in building a good policy. Recognizing that governments have different orientations –
26
from authoritative, to liberal democracy, to participatory – and that within each form of government
there may be elements of other forms, the chapter looks at how elements of water management
can be approached differently under the different forms of government. Finally, it looks at how ten
principles of New Public Management (NPA) can be incorporated into national water policy,
1.4.2 Law
One of the reasons why effective water governance has not been achieved in many countries is
that concrete legal reform is needed in relation to water. Effective water governance must be sup-
ported by a coherent legal system that formalizes the reform processes through law.
Chapter 3 examines different types of legal systems (civil law and common law) that define water
rights and allocation and looks at how various countries have dealt with the three broad areas usu-
ally regulated by water law: allocation of water resources and pollution control; consistency of water
law with other laws regarding natural resources and sustainable development; and setting up the
institutional machinery needed to enforce the laws.
A coherent legal system for water management should:
s $ETERMINE A SYSTEM OF WATER RIGHTS AND ESTABLISH RULES FOR WATER APPROPRIATION
s %STABLISH A RELATIONSHIP WITH OTHER LEGAL AREAS SUCH AS LAND OWNERSHIP AND LAND USES
s %STABLISH A FRAMEWORK UNDER WHICH RIVER BASIN AUTHORITIES CAN BE SET UP AND OPERATED
s 0ROMOTE CONSERVATION OF WATER RESOURCES THROUGH SYSTEMS OF COMMAND AND CONTROL AND
encourage market-based incentives.
The chapter looks into the weaknesses of existing legal systems and offers practical steps for
reforming water law at the national level.
1.4.3 Institutions
Appropriate institutions need to be established to carry out the mandates of the laws. These insti-
tutions can include basin commissions within a country and membership on international basin com-
missions, national water authorities, municipal water and sewer authorities, farmers’ cooperatives
and associations, and local water boards. Chapter 4 examines institutions at the local, national and
regional water basin level, and government relations with the private sector and civil society through
non-governmental organizations (NGOs). It argues that good institutional structures must also have
clear direction, mandates, honesty, openness to stakeholder participation and transparency.
1.4.4 Implementation
Policies, laws and institutions set up an enabling environment for the implementation of water
governance. Chapter 5 explores the required elements for setting up that enabling environment. It
examines the broad notion of regulations as tools for carrying the intent of policy and law into prac-
tical rules. It also analyzes negotiations and the emerging concept of using covenants as alternative
or complementary implementation mechanisms to command and control management.
The chapter looks at the important issue of compliance with established laws, contracts and
partnerships developed to manage water. Compliance mechanisms must be built into the laws, insti-
tutions and contracts and then followed up with monitoring and enforcement devices. This chapter
offers suggestions for setting up a clear compliance apparatus and/or how to improve it.
27
1.5 The water governance capacity checklist
Since every country already has some form of water governance structure, it is useful for water
managers to compare their structure and rules with a set of norms that reflect the current state of
the art in order to highlight areas in need of improvement. Therefore, a series of fixed criteria and
relevant issues must be considered in order to make rational decisions on priorities for improving
water management. Within that context, the following checklist provides a guideline for water
managers to reflect on the strengths and weaknesses of their current capacity for policies, laws,
institutions, regulations, implementation and enforcement.
This is an indicative list of issues that must be considered when assessing water governance
capacity. The list is not exhaustive but can be used as a set of guidelines to help water managers and
policy makers understand where to focus their efforts to improve their water governance capacity.
Overall direction of water management
s $OES YOUR WATER MANAGEMENT SYSTEM DELIVER ADEQUATE CLEAN WATER TO THE POPULATION AND TO
agriculture and industry?
s (OW CONFIDENT ARE YOU THAT YOU CAN DELIVER ADEQUATE WATER SUPPLIES TEN YEARS FROM NOW
given projections for population and economic growth?
s $OES YOUR WATER MANAGEMENT GOVERNANCE PROMOTE EFFICIENCY $OES IT MAXIMIZE THE USE OF
water resources under rational patterns of consumption that can benefit most consumers,
taking into account not only the water, but also other resources, including social and human
capital?
s $OES YOUR WATER GOVERNANCE PROMOTE EQUITY !RE BOTH BENEFITS AND COSTS SHARED AND A TRANS-
parent process used to arrive at societal decisions applied to water management?
s $OES YOUR WATER GOVERNANCE SYSTEM PROMOTE SUSTAINABILITY $OES WATER MANAGEMENT SUP-
port the ability of your society to endure over time without undermining the integrity of the
hydrological cycle or the ecosystems that depend on it?
Policy. How well do your national water policies:
s 3ET PRIORITIES FOR WATER USE AMONG THE NEEDS OF INDIVIDUALS AGRICULTURE POWER INDUSTRY AND
ecosystems?
s %STABLISH THE FRAMEWORK UNDER WHICH WATER MANAGEMENT INSTITUTIONS SUCH AS RIVER BASIN
authorities) can be established and operate?
s %STABLISH CLEAR ROLES AND RESPONSIBILITIES OF GOVERNMENT AGENCIES AND PRIVATE STAKEHOLDERS
s $ECENTRALIZE OR DEVOLVE AUTHORITY TO THE MOST APPROPRIATE LEVEL OF GOVERNANCE INCLUDING THE
deployment of as many water governance functions as possible to civil society)?
s &ACILITATE INTER RELATIONSHIPS WITH OTHER AREAS OF LAW SUCH AS LAND OWNERSHIP AND LAND USES
s /FFER TRANSPARENCY AND CITIZEN STAKEHOLDER INVOLVEMENT IN ALL ASPECTS OF WATER PLANNING
Law. How well do your national water laws:
s #ODIFY THE POLICIES DESCRIBED EARLIER
s $ETERMINE AN EFFECTIVE AND EFFICIENT SYSTEM OF WATER RIGHTS
s %STABLISH CLEAR AND SOUND RULES FOR WATER APPROPRIATION
s %STABLISH INSTITUTIONS AND MACHINERY TO ENFORCE THE LAWS
s 0ROMOTE CONSERVATION OF WATER RESOURCES THROUGH REGULATORY TECHNIQUES
s 0ROMOTE CONSERVATION OF WATER RESOURCES THROUGH MARKET MECHANISMS
28
s %NSURE THAT WATER LAW IS CONSISTENT WITH OTHER LAWS ESPECIALLY THOSE DEALING WITH SUSTAINABLE
development?
s %STABLISH A FRAMEWORK UNDER WHICH RIVER BASIN AUTHORITIES CAN FORM AND OPERATE
Institution. How well do your national water-related institutions:
s Ensure democratic representation and active participation of affected communities in all
planning and decision-making processes concerning water resources?
s )NTEGRATE WITH OTHER SOCIAL POLITICAL AND ECONOMIC SECTORS OF SOCIETY
s !DAPT TO CHANGING ENVIRONMENTAL SOCIAL AND ECONOMIC CONTEXTS
s /PERATE ON A TRANSPARENT BASIS IN THE INTERESTS OF ALL STAKEHOLDERS
s &OLLOW THE CUSTOMARY LAWS AND PRACTICES OF YOUR COUNTRY
s $ELINEATE RESPONSIBILITIES ACROSS MINISTRIES AND JURISDICTIONS AS WELL AS PROVIDE FOR COORDINATION
s %STABLISH AN OFFICE FOR WATER ABSTRACTION PERMITS
s 3ET UP EFFECTIVE 7ATER "OARDS
s 0ROVIDE A RELIABLE SYSTEM TO PAY WATER BILLS
s 0ROVIDE AN ANTI CORRUPTION COMMISSION TO INVESTIGATE WATER AND WATER INFRASTRUCTURE @DEALS
s 0ROVIDE A WATER RIGHTS REGISTRAR AND A SMOOTH MECHANISM TO REGISTER WATER RIGHTS
s )NCLUDE OFFICIALS WHO HAVE THE CAPACITY TO REVIEW ENVIRONMENTAL IMPACT STATEMENTS
Implementation. How well do your regulatory agencies:
s 7RITE AND PUBLICIZE CLEAR REGULATIONS REGARDING WATER USE AND CONSERVATION
s .EGOTIATE APPROPRIATE WATER SERVICES AND WATER RESOURCE
SHARING DEALS WITH CORPORATIONS OR
public groups?
s Encourage the formation of, and engagement with, farmers’ associations organized in irriga-
tion boards or water boards?
s #ONSIDER INNOVATIVE SCHEMES SUCH AS PAYMENT FOR ECOSYSTEM SERVICES UPSTREAM BY CUSTOMERS
downstream?
s )NSTITUTE MULTI
STAKEHOLDER MECHANISMS FOR WATER PLANNING AND DECISION MAKING
s (AVE THE CAPACITY FOR APPROPRIATE FACILITATION AROUND WATER NEGOTIATIONS
s 5NDERSTAND PARTICIPATORY PLANNING
s 3EEK LAWYERS AND NOTARIES WHO HAVE THE CAPACITY TO DRAFT AND REGISTER WATER CONTRACTS
s %NCOURAGE A FREE PRESS THAT REPORTS ON WATER POLLUTION SCANDALS
s 2ESIST AND REPORT BRIBERY IN THE WATER SECTOR
s Assign water and environmental police who check effluent pipes, water abstractions, metering
and payment?
s 0ROVIDE REGULAR WATER QUALITY SAMPLING TO CHECK COMPLIANCE AND STATUS
s %NCOURAGE WATER .'/S THAT CAN ADVOCATE FOR MONITORING AND COMBAT CORRUPTION
s )NCLUDE A WATER DISPUTE
RESOLUTION MECHANISM THAT IS ACCESSIBLE AND WORKS EFFECTIVELY IN
resolving conflicts over waters?
s 4RAIN LAWYERS IN THE CAPACITY TO DEAL WITH CASES OF WATER CONFLICTS
s 0ROVIDE A SOUND SET OF CASE LAW AVAILABLE TO RESOLVE WATER DISPUTE CASES
s )NCORPORATE MECHANISMS AND INCENTIVES TO ENFORCE ALL WATER LAWS
29
30
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 usu-
ally 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 co-
ordination 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 imple-
mentation planning and capacity building to commence.
Policy provides guidelines:
s 4O HELP INTERPRET ENVIRONMENTAL STATUTES BY DECISION MAKERS AND THE #OURTS
s &OR THE APPLICATION AND ENFORCEMENT OF ENVIRONMENTAL STATUTES
s &OR COMPLIANCE WITH ENVIRONMENTAL STATUTES FOR EXAMPLE ASSISTING IN THE DETAILED NATURE OF
information to be submitted for a particular environmental licence application).
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 eco-
nomic 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”
31
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 advan-
tage 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
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.
32
or in relation to water resources. A policy can be the culmination of a long period of public involve-
ment (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 man-
age water resources and provide water services.
“A WATER POLICY IS A COUNTRY’S PLAN TO ATTAIN ITS VISION
FOR WATER OUTCOMES”
Water policy needs to address basic questions such as:
s (OW MUCH WATER IS AVAILABLE FOR USE WHILE ALSO PROTECTING THE ENVIRONMENT
s 7HAT ARE THE PRIORITY USES FOR THIS WATER
s (OW MUCH WATER SHOULD BE ALLOWED FOR EACH USE
s 7HO DETERMINES THE PRIORITIES AND ALLOCATIONS
s (OW CAN THOSE WHO CANNOT EFFECTIVELY PARTICIPATE IN THE POLITICAL AND LEGAL SYSTEMS NEVERTHELESS
have their needs recognized and served?
s (OW SHOULD WATER BE ADMINISTERED TO AVOID CONFLICTS ACCOUNT FOR FLOOD AND DROUGHT AND
stretch the available water resource to serve as many purposes as possible?
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 economi-
cally 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
33
wastage, and optimize the benefits derived. Water policy can promote efficiency by incorporating
these ideas:
s $ETERMINE ALL VALUES OF WATER TO ENSURE THE RATIONAL ALLOCATION OF WATER AS A SCARCE RESOURCE
through regulation, economic instruments or other means.
s 5SE OF WATER CHARGES AS AN ECONOMIC INSTRUMENT TO ENCOURAGE CONSERVATION AND EFFICIENT
water usage.
s !TTEMPT TO RECOVER THE FULL COSTS OF ALL WATER USES AS FAR AS POSSIBLE TO HELP CREATE THE UNDER-
standing that water is not for ‘free’, while also providing economic assistance or lower rates
for those who cannot otherwise afford the basic necessity of adequate and safe drinking and
irrigation water.
s 4REAT WATER AS AN ECONOMIC GOOD TO HELP BALANCE THE SUPPLY AND DEMAND OF WATER AND SUSTAIN
the flow of goods and services from this natural asset.
s 0ROMOTE WATER DEMAND MANAGEMENT TO REDUCE OVEREXPLOITATION
s 5SE MODERN INSTRUMENTS SUCH AS @LIFE CYCLE ANALYSIS @DISTRIBUTIONAL ANALYSIS @STRATEGIC AND
project impact assessment’.
“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:
s %NSURE WATER ALLOCATIONS ARE BASED ON A SOUND TECHNICAL ANALYSIS
s 'IVE SPECIAL ATTENTION TO WATER ALLOCATIONS AND BASIC SERVICES TO THE POOR AND MARGINALIZED
communities, including indigenous groups.
s Consider the historically exercised water uses and rights in water planning and decision
making.
s %NSURE NO NEW WATER ALLOCATIONS ARE MADE THAT INFRINGE UPON EXISTING WATER RIGHTS AND USES
s !DDRESS OUTSTANDING WATER CONFLICTS AND COMPENSATIONS
s Clarify and recognize existing rights of stakeholders to access to, and use of, water resources.
s )DENTIFY THE RISKS TAKEN BY AND THE BENEFITS ACCRUED TO STAKEHOLDERS VOLUNTARILY OR INVOLUN-
tarily, with actual and future water uses and allocations.
s $EVELOP AND IMPLEMENT BENEFIT
SHARING MECHANISMS THAT BUILD SOLIDARITY AMONGST WATER USERS
and wider sets of beneficiaries.
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:
s !LLOCATE WATER TO SUSTAIN AQUATIC LIFE AND WATER DEPENDENT ECOSYSTEMS SUCH AS RIVERS LAKES
wetlands, bays and estuaries including through establishment of environmental flows and
water levels.
34
s 2ESPECT THE LINKAGES BETWEEN UPSTREAM AND DOWNSTREAM WATER AND USERS SURFACE AND
groundwater flows, and the connection between the river and its floodplain.
s Promote and support the restoration of damaged ecosystems throughout the river basin,
including through valuation of the resources and incentives for conservation and restoration.
s 3ET ASIDE SOME RIVERS AND TRIBUTARIES OR SIGNIFICANT PORTIONS THEREOF TO PROTECT ECOSYSTEMS
their services and their benefits.
s %NSURE THAT OWNERSHIP OF SURFACE AND GROUND WATER IS WITH THE PUBLIC WHENEVER POSSIBLE AND
manage these resources as a public good.
s %STABLISH AND CONTROL POLLUTION FROM BOTH POINT AND NON
POINT SOURCES
s -ONITOR SURFACE AND GROUNDWATER QUANTITY QUALITY ECOLOGY AND FLOW REGIMES AND MAKE THE
acquired information publicly available.
s %NSURE THAT EXISTING MANAGEMENT APPROACHES AND OPERATING RULES REFLECT SOCIAL AND ENVIRON-
mental concerns.
s $EVELOP DROUGHT AND FLOOD PLANS AND GUIDE RAPID
RESPONSE AS WELL AS MID
AND LONG
TERM
investments in prevention and adaptation.
“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 deter-
mining 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 man-
agement 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
35
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 docu-
ment 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 acknowledge-
ment 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 differ-
ent 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
36
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:
s THE .ATIONAL 3TRATEGY
s A CLASSIFICATION OF THE WATERS AND THE RESERVE
s A MECHANISM FOR ALLOCATING AND REGULATING WATER USES THROUGH A LICENSING SYSTEM
s A SYSTEM OF PRICES
s CATCHMENT MANAGEMENT AGENCIES
s WATER USERS ASSOCIATIONS
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, trans-
parency 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
37
making and for the legitimacy of those decisions. Legitimacy, in turn, means effective implementa-
tion 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 avail-
able 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:
s 2EQUIRING THAT CERTAIN DECISIONS BE MADE IN PUBLIC MEETINGS
s 2EQUIRING THAT DOCUMENTS INCLUDING MEETING MINUTES AND SCIENTIFIC STUDIES BE MADE AVAIL-
able to the public free or at low cost of reproduction.
s 3ETTING UP OPEN CHANNELS OF COMMUNICATION BETWEEN ALL THE STAKEHOLDERS INVOLVED IN WATER
management.
“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 organiza-
tions 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:
s #REATING A CLIMATE THAT HONOURS THE RULE OF LAW
s 7RITING LAWS AND REGULATIONS THAT CLEARLY SPECIFY PENALTIES FOR VIOLATIONS
s -AINTAINING A STRONG JUDICIAL SYSTEM THAT ALLOWS STAKEHOLDERS TO SEEK RECOURSE FOR DAMAGES
s 0ROVIDING FOR ALTERNATIVE DISPUTE
RESOLUTION MECHANISMS
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:
s %NSURE PUBLIC TRUST AND CONFIDENCE THROUGH MEETING COMMITMENTS FOR PLANNING AND MANAGING
of water resources and addressing social and environmental issues.
s 3ECURE COMPLIANCE WITH ALL LAWS AND REGULATIONS GENERAL OR PROJECT
SPECIFIC AT ALL STAGES OF
water resources development and management.
s Establish an appropriate ‘mix’ of regulatory and non-regulatory measures, including incentives
and sanctions.
38
s %STABLISH AND ABIDE BY STRICT ANTI
CORRUPTION POLICIES AND REGULATIONS
s )MPLEMENT ANY AGREED PLAN TO COMPENSATE FOR LOSS OF INCOME OR PROPERTY DUE TO WATER DEVEL-
opment in a timely and correct manner.
s %STABLISH INDEPENDENT REVIEW PANELS FOR OUTSTANDING SOCIAL AND ENVIRONMENTAL MATTERS
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 deci-
sion making. Decision making and management should be done at the lowest appropriate level of
government. The following actions will help ensure participatory decision making:
s %NSURE THAT PARTICIPATION IS MORE THAN MERELY CONSULTATION AND INCORPORATES SIGNIFICANT CONTRI-
butions to outcomes.
s $EVELOP FULL AND EFFECTIVE PARTICIPATION OF WOMEN AT ALL LEVELS OF DECISION MAKING
s %STABLISH EFFECTIVE WATER FORA AND MULTI
STAKEHOLDER PLATFORMS AND DEFINE ROLES AND RESPONSI-
bilities.
s !SSIST STAKEHOLDERS IN PARTICIPATING BY PROVIDING INFORMATION TRAINING AND TECHNICAL ASSISTANCE
and/or financing mechanisms.
s -ANAGE WATER AT THE LOWEST APPROPRIATE LEVEL CONSISTENT WITH A STRONG FRAMEWORK OF PERFOR-
mance standards and financial assistance where needed and develop integration of the work
at the local, basin, provincial, national and regional levels.
s 3ET UP MECHANISMS TO RESOLVE WATER
USE CONFLICTS FROM LOCAL TO INTERNATIONAL LEVELS
s 'AIN PUBLIC ACCEPTANCE OF CHANGES IN WATER MANAGEMENT ALLOCATIONS AND PROJECTS
“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 emerg-
ing 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.
39
“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 pri-
orities 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 management 13
1. Competitive services 6. Earn money
'OVERNMENT SERVICES COMPETE FOR QUALITY $ELIVERY OF SERVICES MAKES MONEY RATHER
AND CUSTOMERS THAN ONLY COSTING MONEY
2. Empowered citizens 7. Decentralized government
#ITIZENS EMPOWERED BY PUSHING CONTROL OUT 0ROMOTES PARTICIPATORY MANAGEMENT TO
OF ADMINISTRATIONS INTO THE COMMUNITY ADDRESS ISSUES
3. Outcomes-based 8. Catalyze all sectors
!DMINISTRATIONS PERFORMANCE NOT FOCUSED 3OLVING COMMUNITIES PROBLEMS THROUGH
ON INPUTS AND PROCESS BUT RATHER ON DELIV- ENGAGING PUBLIC PRIVATE AND VOLUNTARY
ERING OUTCOMES ACTION
4. Mission-driven 9. Prevent problems
!GENCIES ARE NOT DRIVEN BY RULES AND REGU- &OCUS ON PREVENTION RATHER THAN ONLY OFFER-
LATIONS BUT BY THEIR CORE MISSION ING @REPAIR SERVICES
5. Customer-oriented 10. Market mechanisms
!GENCIES DEFINE THEIR USERS AS CUSTOMERS TO 0REFER MARKET BASED MECHANISMS OVER
WHOM THEY OFFER CHOICES OF SERVICES BUREAUCRACY
“WATER POLICY REFORM CAN BE MATCHED WITH VARIOUS
MODELS OF GOVERNANCE”
40
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 governance 14
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 arrange-
ment, 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
Table 2.2 Overview of types of water policy arrangements
Type Name Water governance mechanisms
!UTHORITATIVE (IERARCHY BASED #OERCIVE STATE LED WATER POLITICS STATE ORGANIZATION
CONTROLS WATER NEOCORPORATISM
0LURALISTIC
LIBERAL -ARKET
BASED .EGOTIATION POWER
PLAYS CONSENSUS BUILDING
BETWEEN INTEREST GROUPS USED TO SOLVE WATER ISSUES
$ECENTRALIZED COMMUNITARIAN .ETWORK BASED 0ARTICIPATORY FORM OF SOCIETYEGALITARIANISM NON
HIERARCHICAL 0ARTICIPATION USED IN WATER MANAGEMENT
AND DECISION MAKING
A #ONSERVATIVE REVALUATION OF THE TRADITIONAL
SOCIETYSOLIDARITY
B 2EPUBLICAN NEW BALANCE BETWEEN THE TRADI-
TIONAL COMMUNITY AND MODERN INDIVIDUALISM
VOLUNTARISM
41
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 com-
munity mechanisms of water governance are seen as key mechanisms for successfully implementing
this type of policy arrangement (see Case 2.2).
Case 2.2 Water for El Chaco: a model of decentralized water management 16
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 oth-
ers (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, pro-
grammes 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, coali-
tions, 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.
42
Table 2.3 Typology for water policy arrangements 17
Ideal types Authoritative Pluralistic-liberal Decentralized- commu-
Dimensions nitarian
Discourse 3TATE INTERVENTIONS MAKES "ALANCED APPROACH BASED ,OCAL INITIATIVES THROUGH
USE OF TOP DOWN DESIGNING ON SOCIETAL NEGOTIATIONS LOCAL PARTICIPATION
PRINCIPLES #OOPERATIVE SETTING OF
Coalitions 'OVERNMENTAL BODIES 0ARTNERSHIPS BETWEEN GOVERNMENTAL BODIES
RESOLVE PROBLEMS GOVERNMENTAL BODIES AND STAKEHOLDERS AND LOCAL
STAKEHOLDERS INTEGRATE PEOPLE REALIZE AREA SPECIFIC
POLICIES GOALS
Resource distribution ,EGITIMIZED STATE REGULA- 3TATE BUDGET ALLOCATED TO 3OCIAL CAPITAL FOR GRASSROOTS
TORY POWER FOR STRATEGIC STAKEHOLDERS FOR COORDINAT- PROJECTS
PLANNING ED POLICY IMPLEMENTATION
Rules ,EGISLATION AND STRICT WORK- #OVENANTS THAT TAKE CUR- 4AILOR MADE SOLUTIONS THAT
ING PROCEDURES RENT LEGISLATION FOR GRANTED ANTICIPATE OR GO BEYOND
LEGISLATION
Authoritative water policies and their arrangements are usually linked to large water infrastruc-
ture 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 stake-
holders 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.
43
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 agree-
ment 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 con-
scious 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 inno-
vation. 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
s %VALUATE THE CAPACITY OF GOVERNMENT OFFICIALS TO CONDUCT WATER PLANNING
s 6ERIFY HOW WELL INFORMED PARLIAMENTARIANS ARE ABOUT WATER ISSUES
s $ETERMINE HOW MUCH DECISION MAKERS UNDERSTAND WATER GOVERNANCE ISSUES
s !NALYZE THE MUNICIPAL WATER PLANS THEIR PROJECTIONS INTO THE FUTURE AND RESPONSES
2. Analyze national, regional and international policies
s $EFINE MAJOR POLICY TRENDS AND SOFT LAW RELEVANT FOR THE COUNTRY
s %VALUATE IF THE COUNTRY IS COMPLYING WITH INTERNATIONALLY AGREED POLICY GUIDELINES 3TART BY
analyzing if principles and guidelines adopted in major fora have been translated into national
and local policies, plans and programmes.
s 4AKE THE POLICY ANALYSIS A LEVEL FURTHER AND IDENTIFY PARADIGMS IN MAJOR INTERNATIONAL ARRANGE-
ments (e.g., IWRM) and compare them with local water policy.
3. Determine the scope of the country’s water institution(s)
s $ETERMINE IF THERE IS A SPECIFIC INSTITUTION IN CHARGE OF WATER ADMINISTRATION
s )N CASE THERE IS NOT MAP ALL THE DIFFERENT AGENCIES THAT JOINTLY ADMINISTER THE WATER IN THE COUNTRY
s #HECK IF THERE IS A 0ARLIAMENTARY #OMMISSION ON WATER ISSUES
44
s $ETERMINE IF A SINGLE GOVERNING BODY OR COMPLEX OF BODIES FOLLOW A POLICY WITH CLEAR OBJEC-
tives, implementing steps, and compliance deadlines.
4. Assess the extent of public participation in decision making
s $ETERMINE THE LEVEL OF ORGANIZATION FOR PUBLIC INVOLVEMENT IN DECISION MAKING PROCESSES
s %VALUATE IF THE PUBLIC PARTICIPATION PROCESS IS ANCHORED IN THE LAW WELL STRUCTURED INVOLVES KEY
interest groups, and is well organized.
s %VALUATE THE LEVEL OF COMMITMENT AND POLITICAL WILL FOR DEVOLVING DECISION MAKING AUTHORITY
to the public.
s $ETERMINE IF THE AGENCIES AND INSTITUTIONS IN CHARGE OF DECISION MAKING OPEN THE REQUIRED
spaces for public participation, and if that participation is meaningful.
s %VALUATE IF PEOPLE FEEL REPRESENTED BY THE WATER AUTHORITIES OF THE COUNTRY
5. Evaluate the country’s decentralization scheme
s $ETERMINE THE DEGREE OF DECENTRALIZATION IF ANY OF THE WATER ADMINISTRATION
s !SSESS THE ROLE OF LOCAL GOVERNMENTS AND WATER AUTHORITIES IN THE OVERALL INSTITUTIONAL SET UP
and evaluate what is the level of legitimacy they have in decisions relating to water manage-
ment. Determine if civil society abides by what decision makers decide.
6. Consider ease of access to information relevant to water policy design
s )DENTIFY WHETHER INFORMATION ON POLICIES PLANS AND PROGRAMMES IS READILY AVAILABLE FOR CIVIL
society, and if civil society is aware of the availability of this information.
s $ETERMINE IF THERE ARE SPACES FOR EDUCATION AND CONSULTATION OF WATER USERS
7. Analyze whether economic-based instruments are being used successfully
s Determine under what scheme water is being allocated for different uses and analyze if the real
costs are being taking into account, or if palliative measures such as subsidies are operating.
s #ONDUCT A PRELIMINARY ANALYSIS TO DETERMINE IF THE WATER GOVERNANCE SYSTEM IS ECONOMICALLY
sustainable in the long term.
s %VALUATE IF POLICY MAKERS ARE AWARE OF THE TRADE OFF BETWEEN SHORT TERM BENEFITS AND LONG
term costs.
8. Consider the extent and functionality of private - sector participation
s !NALYZE WHETHER AND TO WHAT EXTENT PRIVATE SECTOR PARTICIPATION IN WATER MANAGEMENT IS AN
option in the country.
s 7HAT ARE THE LEGAL MODALITIES UNDER WHICH PRIVATE SECTOR PARTICIPATION CAN TAKE PLACE
s !RE WATER MARKETS FULLY IN PLACE
9. Evaluate corruption levels in the country
s $ETERMINE IF A TRANSPARENT AND PUBLICLY AVAILABLE PROGRAMME OF THE WATER INSTITUTIONAL
expenses is available.
s $ETECT POSSIBLE CASES OF CRONYISM
10. Assess the current model of governance
s )DENTIFY THE GENERAL GOVERNANCE MODEL OF THE COUNTRY WHETHER IT BE authoritative (de facto
one party with rule-based decision making), liberal or representative democracy (officers rep-
resent their constituent citizens under a legal framework, gaining power by building consensus
among interest groups), or direct or participatory democracy (citizens are directly involved in
management and decision making).
45
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 tailor-
ing 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
s 'IVEN COUNTRIES DIFFERENT STAGES OF WATER POLICY DEVELOPMENT IT IS ESSENTIAL THAT PLAN-
ners consider proposed reforms in light of historical and political context. In particu-
lar, where the political context is sufficiently modern, the ten principles of New Public
Management should be incorporated to promote cost reduction in public policy.
Step 2: Assess what type of water policy reform will work best given the existing government structure
s 5NDER AUTHORITATIVE GOVERNMENT MODELS WATER POLICY REFORMS SHOULD BE INTRODUCED
and led by the state government. In pluralistic-liberal government, such reforms are
best made by negotiation and consortium building analogous to a marketplace set-
ting. Finally, decentralized, or direct-participatory democracy requires all stakeholders’
support via networks in order to achieve policy reform.
Step 3: Clearly allocate water rights among users and uses
s Clear allocations of water rights will encourage water users to use it more efficiently.
s !LLOCATION OF WATER AMONG NEW USES WILL BE ALLOWED IF THEY DO NOT INJURE EXISTING USES
Step 4: Introduce proactive, sustainable and just measures that encourage efficiency
s 7ATER POLICY SHOULD PURSUE HUMAN AND SOCIETAL WELLBEING MEET ECOSYSTEM NEEDS
and protect water quality. Avoiding environmental harm before it occurs is a neces-
sary feature of new water development projects. Thus, conservation measures and
principles of sustainability, social justice and equity, and sound economics are central
to successful water policy reform.
Step 5: Apply the right technologies
s !DEQUATE TECHNOLOGIES APPROPRIATE TO THE GEOGRAPHICAL AND DEVELOPMENTAL CONDI-
tions of the country.
Step 6: Apply the principle of recovery of costs for water services
s 7ATER PRICES SHOULD TAKE ACCOUNT OF THE COSTS OF WATER SERVICES INCLUDING ENVIRONMEN-
tal and resource costs. At the same time, subsidies must be accounted for in assessing
whether the prices paid by water users reflect the full cost of the water service. This
is important because water services are often highly subsidized, thereby encouraging
damaging overuse of water.
Step 7: Enable sharing and trading of water rights
s 7ATER RIGHTS SHARING AND TRADING SHOULD BE MADE POSSIBLE VIA EXCHANGES STORED
water banks and leases of water between the municipal and agricultural sector.
46
Step 8: Ensure support from enabling institutions
s )NSTITUTIONAL FRAMEWORK FOR IMPLEMENTATION OF THE WATER POLICY HAS BEEN DESIGNED
and is in place.
s #OOPERATIVE FORUMS FOR ADJUSTING WATER POLICY ARE ESTABLISHED AND TRIBUNALS FOR
resolving water-use conflicts are in operation.
Step 9: Ensure effective governance principles of transparency, certainty and accountability
s 4RANSPARENCY CAN BE ENSURED BY REQUIRING PUBLIC DECISIONS PUBLICLY AVAILABLE INFORMA-
tion and open stakeholder communications.
s 'OVERNMENTAL FRAMEWORKS THAT CLARIFY AND ENFORCE RULES SHOULD BE STRENGTHENED TO
foster public certainty in governmental processes.
s -EASURES ENSURING THAT WATER MANAGERS AND PLANNERS ARE ACCOUNTABLE FOR THEIR ACTS
are fundamental to reliable governance.
Step 10: Guarantee international cooperation
s 7ATER POLICY REFORM MUST TRANSCEND BORDERS IN COUNTRIES THAT SHARE THE RESOURCE
47
48
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 interpreta-
tion 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 juris-
dictional 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.
49
2. Water law must be consistent with broader societal goals for sustainable development and pro-
tection 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 regula-
tions. 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 con-
cession 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.
50
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 fed-
eral 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 gener-
ally 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 fel-
low 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 poli-
cies 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 neigh-
bours. 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 reli-
gious 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.
51
“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 dur-
ing 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 per-
mits 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 committees 20
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 excep-
tions 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 manage-
ment 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 require-
ments 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.
52
Case 3.2 Water law reaches into building codes and agricultural land use in
Andhra Pradesh, India 21
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 condi-
tions. 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 transbound-
ary 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 institu-
tions, which must then be facilitated through national legislation.
“NATIONAL WATER LEGISLATION MUST REFLECT THE COMMIT-
MENTS 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 compre-
hensive 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 broad-
ening the scope of water law has grown to encompass goals relating to distributional equity, envi-
ronmental 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, administra-
tive practice and planning instruments, as well as the functions and structures of relevant institu-
tions. Consultation of stakeholders and interested parties should take account of vulnerable groups.
53
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 frag-
mented 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 tran-
sitions 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 ripar-
ian 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 per-
mit 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.
54
Generally, new laws are designed with mechanisms to bring pre-reform water rights, includ-
ing 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 stat-
utes, 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.
55
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 effi-
ciency 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 Namibia 22
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 inter-
ested 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 addi-
tional 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 envi-
ronmental 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 stor-
age, 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 domes-
tic 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 consider-
ations might include:
56
s #ONSIDER HOW THE USE BEING PERMITTED WILL AFFECT OTHER WATER USERS
s #ONSIDER HOW THE WATER BODY BEING USED WILL BE AFFECTED INCLUDING IN RELATION TO WATER QUALITY
objectives.
s #ONSIDER THE SOCIO
ECONOMIC IMPACTS OF THE WATER USE PROPOSED
s !SK WHETHER ANY INVESTMENTS RELATING TO WATER USE HAVE ALREADY BEEN MADE BY THE APPLICANT
s #ONSIDER HOW STATE OBLIGATIONS SUCH AS PUBLIC
INTEREST USES OF THE WATER BODY WILL BE
affected.
s #ONSIDER IMPACTS ON RESERVE ALLOCATIONS OR WATER FOR PROTECTED AREAS
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, govern-
ments may want to impose restrictions on trades such as:
s 7HETHER TRADING APPLIES ONLY DURING CERTAIN SEASONS
s 7HETHER ALLOCATIONS IN WHOLE OR IN PART CAN BE TRADED ALL YEAR ROUND
s 4HAT THE GOVERNMENT IS NOTIFIED WHEN A TRADE IS MADE ESPECIALLY A PERMANENT EXCHANGE SO
it can review whether the transfer would modify the original terms of the permit.
s 4HE PROCEDURES TO BE USED TO TRANSFER LICENCES SUCH AS THE LIST OF CRITERIA FOR GRANTING AUTHO-
rization, the terms of transfers, and assignment of rights or water allocations under licences.
A strong regulatory and fiscal framework is a prerequisite for effective trading, including suit-
able 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 market 23
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
57
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 regula-
tion of the service of supplying water for consumption and use. Water service laws regulate the qual-
ity, 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 uphold-
ing 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:
58
s $ISCHARGE PERMITS THAT SPECIFY QUALITY STANDARDS FOR EFFLUENT
s -ANDATED OBJECTIVES FOR WATER QUALITY IN THE WATER BODIES RECEIVING DISCHARGES
s &EES FOR DISCHARGING WASTE INTO WATER BODIES BASED ON THE @POLLUTER
PAYS PRINCIPLE
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 pre-
cise 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 appli-
cation 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 notifica-
tion of a violation, and the ability of enforcement officials to enter and search a premises.
59
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 ‘effec-
tive, 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 statu-
tory 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 remunera-
tion. 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 objec-
tives 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 accord-
ing 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 increas-
ingly 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.
60
Case 3.5 Ecological elements of water law, New South Wales, Australia 24
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:
s 7ATER SOURCES FLOODPLAINS AND DEPENDENT ECOSYSTEMS INCLUDING GROUND WATER AND WETLANDS SHOULD BE
protected and restored and, where possible, land should not be degraded.
s (ABITATS ANIMALS AND PLANTS THAT BENEFIT FROM WATER OR ARE POTENTIALLY AFFECTED BY MANAGED ACTIVITIES
should be protected and (in the case of habitats) restored.
s 4HE WATER QUALITY OF ALL WATER SOURCES SHOULD BE PROTECTED AND WHEREVER POSSIBLE ENHANCED
s 4HE CUMULATIVE IMPACTS OF WATER MANAGEMENT LICENCES AND APPROVALS AND OTHER ACTIVITIES ON WATER SOURCES
and their dependent ecosystems should be considered and minimized.
s &EATURES OF INDIGENOUS SIGNIFICANCE SHOULD BE PROTECTED
s 'EOGRAPHICAL AND OTHER FEATURES OF MAJOR CULTURAL HERITAGE OR SPIRITUAL SIGNIFICANCE SHOULD BE PROTECTED
s 3OCIAL AND ECONOMIC BENEFITS TO THE COMMUNITY SHOULD BE MAXIMIZED
s 4HE PRINCIPLES OF ADAPTIVE MANAGEMENT SHOULD BE APPLIED WHICH SHOULD BE RESPONSIVE TO MONITORING AND
improvements in understanding of ecological water requirements.
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 con-
dition 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 environmen-
tal 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 require-
ments 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 ‘quan-
tity 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.
61
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 administra-
tion 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 sat-
isfy 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.
62
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 prece-
dence 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 secur-
ing 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 develop-
ment 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 licens-
ing 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, environ-
ment 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 pro-
tected area approach to conservation of amenity values in river basins is described in Case 3.8.
Case 3.8 Protected water landscapes 26
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 construc-
tion (such as dams), which would affect other parts of the water resource and includes guidelines on the
determination of such a protected area.
63
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 pro-
grammes 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 interconnec-
tion between ground water and stream water because of the severity of damage to the environ-
ment 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 restor-
ing 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”
64
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 abstrac-
tion. 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 govern-
ment 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:
s #LEARLY DELINEATE RESPONSIBILITIES AND FUNCTIONS COVERING RELEVANT PUBLIC AND PRIVATE INSTITU-
tions particularly in the areas of licensing and monitoring.
s )DENTIFY KEY STATE ACTORS
s 3ET OUT THE RULES FOR THE ESTABLISHMENT AND OPERATION OF INSTITUTIONS AT VARIOUS LEVELS INCLUD-
ing details of their functions and powers.
s /UTLINE THEIR STRUCTURE
s %STABLISH GENERAL ADMINISTRATIVE GUIDELINES
s 3ET THE QUALIFICATION OF STAFF MEMBERS TERMS OF OFFICE MEETINGS REPORTS AND FINANCES OF THE
institution.
s 2EQUIRE CAPACITY BUILDING AT ALL LEVELS THROUGH TRAINING AND EDUCATION AS A LONG
TERM STRATEGY
for enhancing efficiency and to reduce the likelihood of institutional weaknesses crippling the
law.
“POLICY AND LAW ARE THE PLATFORM FOR THE
ESTABLISHMENT OF AN INSTITUTIONAL FRAMEWORK THAT WILL
MANAGE WATER RESOURCES”
65
Case 3.9 China’s water code assigns responsibilities to the ministry 29
China’s water policy code of 2002 assigns the following responsibilities to the Ministry of Water Resources:
s &ORMULATE WATER
RELATED POLICIES DEVELOPMENT STRATEGIES AND MEDIUM AND LONG
TERM DEVELOPMENT PLANS
including water conservation and demand management policies.
s )MPLEMENT THE INTEGRATED MANAGEMENT OF WATER RESOURCES INCLUDING ATMOSPHERIC WATER SURFACE WATER AND
ground water.
s &ORMULATE WATER RESOURCE PROTECTION PLANS IN ACCORDANCE WITH RELATED NATIONAL LAWS REGULATIONS AND STAN-
dards concerning resource and environmental protection.
s &ORMULATE ECONOMIC REGULATORY MEASURES FOR THE WATER SECTOR EXERCISE MACRO
ECONOMIC REGULATION ON THE
utilization of funds within the water industry; provide guidance for economic activities related to water
supply, hydropower, and diversified development within the water sector; provide recommendations on
economic regulation of water pricing, taxation, credit and financial affairs.
s $RAFT AND REVIEW PROPOSALS AND FEASIBILITY STUDY REPORTS ON LARGE AND MEDIUM
SIZED CAPITAL WATER CONSTRUC-
tion projects in the water sector.
s $RAFT AND SUPERVISE BOTH THE EXECUTION OF TECHNICAL STANDARDS FOR THE WATER SECTOR AND SPECIFICATIONS AND
codes for water works; implement key hydrological research projects; and popularize and disseminate
water-related technologies.
s 0ROVIDE GUIDANCE FOR ACTIVITIES RELATED TO RURAL WATER RESOURCES ORGANIZE AND COORDINATE CAPITAL CONSTRUC-
tion of farmland drainage and irrigation, rural electrification, and water supply projects for townships and
villages.
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 man-
agement 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 sta-
bility 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 respon-
sibilities, especially at the grassroots level.
Decentralized management is reflected in legislation through concepts such as ‘catchment man-
agement area agencies’ and ‘water user associations’ (WUAs). WUAs have minimal state input and
66
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 environ-
ment 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 custom-
ary 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”
67
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
s -AP OUT THE LEGISLATION THAT IS ALREADY ON THE STATUTE BOOKS AND MAKE SURE THAT NOT ONLY
the Water Act(s), but also all the legislation that may contain provisions on water resources
are canvassed.
s )DENTIFY WHETHER THE OBLIGATIONS INHERENT TO WATER MANAGEMENT ARE BEING ADDRESSED BY THE
legal mandates.
At the national constitutional level
s $ETERMINE WHETHER THE COUNTRYS NATIONAL CONSTITUTION PROVIDES THE RIGHT TO A CLEAN AND
healthy environment.
s #HECK ANY OTHER CONSTITUTIONAL RIGHTS THAT MAY BE LINKED TO THE RIGHTS TO A CLEAN AND HEALTHY
environment and to water.
s !NALYZE THE IMPLEMENTATION MODALITIES OF THESE RIGHTS !RE THERE ANY CONDITIONS ESTABLISHED
by the national constitution? Have there been cases decided by the courts and tribunals on
the implementation of these rights?
Regarding national and subnational laws on water and natural resources
s #HECK WHETHER THE COUNTRY HAS A WATER LAW
s !SSESS TO WHAT EXTENT THE WATER PROVISIONS ARE UPDATED IN ACCORDANCE WITH NEW WATER POLI-
cies.
s 6ERIFY THE IMPLEMENTATION OF THE WATER LAW IN TERMS OF RESPONSIVENESS TO CHANGING REALITIES
and values.
s #HECK WHETHER THERE ARE LOCAL BYLAWS AND REGULATIONS ON WATER
s #HECK WHETHER GUIDELINES FOR WATER QUALITY HAVE BEEN ADOPTED
Regional environmental agreements
s )DENTIFY REGIONAL AGREEMENTS THAT MAY DEAL WITH WATER ISSUES
s $ETERMINE THE COUNTRYS OBLIGATIONS WITH REGARD TO THESE AGREEMENTS IDENTIFYING CONCRETE
duties with which the country must comply and whether it is doing so.
Step 2. Document customary practices
s $OCUMENT EXISTING CUSTOMARY PRACTICES BEFORE DRAFTING NEW LEGISLATION TO MINIMIZE FRICTION
between the water law reforms and established customary practices on the ground.
Step 3. Analyze existing legislation
s !NALYZE THE EXISTING LEGISLATION AND ITS COMPATIBILITY WITH THE POLICIES EMERGING FROM THE
policy enunciation process.
68
Step 4. Identify needed reforms
s $ETERMINE THE SCOPE AND EXTENT OF THE LEGISLATIVE REFORMS REQUIRED TO SUPPORT THE IMPLE-
mentation of new policies.
Step 5. Include environmental provisions
The achievement of environmental water governance goals calls for any combination of
mechanisms such as:
s &ACTORING THE ENVIRONMENTAL HEALTH ECOLOGICAL VALUE AND FUNCTION OF WATER SYSTEMS INTO ALL
governmental decisions regarding water allocation in general, and water abstraction licens-
ing and wastewater disposal permitting in particular.
s 0RIORITIZING ENVIRONMENTAL ALLOCATIONS
s 2ESTRICTING TRADES OF WATER RIGHTS THAT NEGATIVELY AFFECT THE ENVIRONMENT
s 2ESERVING VOLUMES OR FLOWS OF WATER FOR ENVIRONMENTAL SUPPORT FUNCTIONS
s -ANDATING THE DETERMINATION AND OBSERVANCE OF ENVIRONMENTAL FLOWS OF RIVERS
s -AKING %)!S MANDATORY FOR WATER ABSTRACTION AND WASTEWATER DISPOSAL PERMITS AND LICENCES
For administrative expediency’s sake, this requirement can be scaled to the level of the
importance and magnitude of the use applied for.
Step 6. Separate laws from regulations
s 3HIFT MATTERS OF POLICY FROM ADMINISTRATIVE MATTERS 4HE FORMER BELONGS TO AN ACT OF
Parliament, whereas the latter can be left to implementing regulations to be made by gov-
ernment under the authority of an act of Parliament. Determining what belongs where,
however, is a discretionary exercise.
s !VOID DRAFTING A STATUTE THAT OPERATES AT SUCH A LEVEL OF GENERALITY AS TO BE INEFFECTUAL OR
conversely getting bogged down in the minute administrative details of operation.
Step 7. Prepare regulations to implement the law
s 0REPARE REGULATIONS FOR THE FULL IMPLEMENTATION OF THE NEW LAW
s 4HE TIME LAPSE BETWEEN THE ENACTMENT OF A NEW LAW BY 0ARLIAMENT AND THE ADOPTION BY
government of implementing regulations must be kept within reasonable bounds or risk
jeopardizing the credibility of the reforms as a whole.
Step 8. Gauge governmental capacity
s 'AUGE THE CAPACITY OF THE GOVERNMENT TO INTERNALIZE AND ACT SWIFTLY TO IMPLEMENT THE
reforms, and plan the necessary upgrades ahead of the adoption of the proposed legislation.
Otherwise the law runs the risk of being discredited and appearing irrelevant.
s !LTERNATIVELY THE AMBITIONS AND SCOPE OF THE REFORMS SOUGHT COULD BE SCALED DOWN OR
timed, to coincide with increases in administrative capacity.
Step 9. Inform and prepare water users
s %VALUATE THE PREPAREDNESS OF WATER USERS TO RECEIVE AND INTERNALIZE THE WATER LAW REFORMS
Prepare a serious outreach and information campaign for implementation following enact-
ment of the new law.
s 4HE PUBLIC IN GENERAL AND WATER USERS IN PARTICULAR NEED TO BE INFORMED AND PREPARED NOT
only to comply with the new law, but also to avail themselves of new opportunities for the
protection of their legitimate interests and rights, and to participate in the decision-making
process.
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70
Chapter 4
Building a Sound Institutional Mechanism
4.1 Building governmental water institutions
An institutional framework is needed to move from reform of water policy and law to imple-
mentation and thus to achieve effective water governance. Such a framework should be set up to
deliver IWRM goals, and incorporate crafting of relationships with non-governmental and private
partners.
Water institutions have many functions. They must address a variety of issues in implementing
water governance. Some of their major functions are:
1. Planning sustainable development of water resources
s Preparation of a national plan to determine the uses of the different water bodies and the
sectoral uses of water according to national development and environmental policy.
2. Coordinating with other water-related institutions at the international, national and sub-
national levels
s Working with other nations in an international river basin at the political and technical levels.
s Coordinating with other agencies, and provincial, basin and local water institutions, as well as
with private and non-governmental organizations.
s Engaging with agencies representing major water-using sectors such as agriculture, industry,
power and urban development.
3. Fostering public involvement
s Ensuring real participation by the public in water planning and development.
4. Implementing water distribution and development through regulations and negotiations
s Maintaining or restoring the health of the water system to provide clean drinking water,
recreation, and water supply regeneration.
s Overseeing development of water works including water treatment systems, sewerage and
sewage treatment facilities, irrigation and hydropower facilities.
5. Operating and maintaining water works infrastructure
s Adopting measures related to water works and other hydraulic installations, their operation
and maintenance either through governmental agencies or through contracting with private
companies.
s Developing clear stewardship regulations and contractual language for private operators.
6. Administering water rights
s Implementing a system to manage water rights through authorizations, permits, licences or
concessions.
71
7. Managing conflict resolution
s Establishing mechanisms to resolve conflicts over water resources.
8. Conducting research for planning, monitoring and inspection
s Collecting, interpreting and acting on scientific data starting with an inventory of the nation’s
water bodies (surface water, ground water and atmospheric water) in terms of quantity and
quality.
s Monitoring water quality, species composition, flow rates and other parameters before and
after different interventions, and monitor use rates under permits.
9. Enforcing laws and regulations
s Ensuring enforcement of, and compliance with, regulations.
“AN APPROPRIATE INSTITUTIONAL FRAMEWORK IS BUILT BY
USING AN ARRAY OF TYPES OF INSTITUTIONS”
An appropriate institutional framework is built by using an array of types of institutions that
combine different functions at different administrative levels (international, national, local). There
is no blueprint for an institutional framework because effective frameworks must reflect the reality
in which they operate and will vary according to a country’s structure (e.g., unitary/centralized or
federal), and other political, religious, geographical and climatic factors. The decision to follow a
particular approach will also depend on the political will and circumstances in which a water reform
is undertaken.
Case 4.1 Water institutional reforms in Morocco
Moroccan institutional reform has been influenced by customary rule, the Chraa – the religious interpretation
of Islamic law – and by the rules introduced by the French Protectorate. Religious, historical and political factors
led institutional reform before independence, but later other factors such as severe droughts and economic
crisis played a major role. In the early 1990s, the government passed a water law aimed at creating river basin
authorities (RBAs) to prepare – with the national government – river basin management plans based on the
principles of IWRM. The reform shifted certain water management paradigms: from water development to
water allocation; from a centralized system recognizing customary rights to a decentralized and private man-
agement set up; from a subsidized to an autonomous approach and from a sectoral approach to integrated
management.
The Moroccan experience shows how the interaction between the three components of a water governance
system (policy, law and institutions) can influence the evolution of institutional reform. In the early stages of the
reform process, legal aspects were crucial. Once a new legal framework was consolidated, instruments such
as water pricing, and administrative components like the creation of RBAs and WUAs, became more relevant
for translating the legal framework into action. There is no linear evolution in the water reform process (policy
objectives-legal instruments-institutional set up), but the quest to achieve an effective water governance sys-
tem adjusted to national realities is a process with different entry points, influenced by different factors, and
ultimately depending on strengthening the governance system.
“THERE IS NO BLUEPRINT FOR AN INSTITUTIONAL FRAMEWORK”
72
4.2 Types of water institutions
Water institutions can range from complex international basin commissions to local water user
groups. Table 4.1 lists the functions of water organizations at various levels. Box 4.1 gives examples
of some existing water institutions.
Table 4.1 Classification of water institutions
Institution Jurisdiction Function
Characteristics
)NTERNATIONAL "ASIN )NTERNATIONAL (ANDLES ISSUES RELATED TO THE UTILIZATION OF )NTERGOVERNMENTAL
#OMMISSION INTER STATE SHARED WATER RESOURCES 0OLITICAL EXECUTIVE
AND TECHNICAL POWERS
$ECISIONS CAN INFLUENCE THE NATIONAL LEVEL
-ULTIPLE AGENCIES .ATIONAL 0OLICY MAKING PLANNING AND COORDINATION 'OVERNMENTAL
CAN BE FRAGMENTED AMONG DIFFERENT MINIS-
TRIES AND GOVERNMENT BODIES
.ATIONAL -INISTRY WITH MIXED .ATIONAL 0OLICY MAKING PLANNING AND COORDINATION OF 'OVERNMENTAL
AUTHORITIES EG FORESTRY FISH- WATER RELATED ACTIVITIES
ERIES MINING ENERGY
7ATER -INISTRY .ATIONAL 0OLICY MAKING PLANNING AND COORDINATION OF 'OVERNMENTAL
WATER RELATED ACTIVITIES
7ATER #OUNCIL OR !GENCY .ATIONAL -AKES POLICY AND COORDINATES THE WORK OF 'OVERNMENTAL
SUBORDINATED OR AFFILIATED AGENCIES
%NSURES COORDINATION AT THE HIGHEST POLITICAL
LEVEL AMONG ALL AGENCIES INVOLVED IN WATER
MANAGEMENT
7ATER #OMMISSION7ATER .ATIONAL #OORDINATES AT THE TECHNICAL LEVEL ONLY 'OVERNMENTAL
#OMMITTEE
#AN BE ADVISORY OR EXECUTIVE
7ATER !UTHORITY )NTER PROVINCIAL (ANDLES ISSUES RELATING TO WATER SUPPLY 'OVERNMENTAL
INTER REGIONAL ELECTRICITY SEWAGE
)TS AUTHORITY RANGES ACROSS TWO OR MORE
ADMINISTRATIVE UNITS PROVINCES STATES ETC
2IVER "ASIN !UTHORITY "ASINSUB BASIN -ANAGES A WIDE RANGE OF ISSUES AT THE 'OVERNMENTAL
BASIN OR SUB BASIN LEVEL
#OORDINATES DEVELOPMENT OF PROJECTS
7ATER 5SERS !SSOCIATION ,OCAL (ANDLES ISSUES RELATING TO MUNICIPAL WATER 0RIVATE
SUPPLY SEWAGE SANITATION IRRIGATION FOR A NON GOVERNMENTAL
SMALL AREA
73
Box 4.1 Examples of water institutions
International commission: In 2002, the Republics of Mozambique and South Africa, together with the
Kingdom of Swaziland, signed an agreement to cooperate on the protection and sustainable utilization of the
water resources of the Incomati and the Maputo watercourses. The Tripartite Permanent Technical Committee,
established in a prior agreement among the parties, serves as the competent water authority responsible for
the joint implementation of different projects, information exchange and control of transboundary impacts.
Non-specific water institution: In Belize, the responsibility and management of water is shared among sev-
eral ministries, including the Ministries of Natural Resources, Public Works, Energy and Health and Environment
Resources. However, there are many grey areas in which responsibilities are not clearly defined.
National Ministry: The Bulgarian Ministry of Environment and Water coordinates cross-sectoral and hier-
archical policies. One of its major concerns is to formulate and implement policies that allow the government
to achieve European standards, particularly in water supply and water treatment. It also works on sustain-
able development, climate change, chemicals, biodiversity, ecotourism, water, waste, air and ground water
resources issues.
Water Ministry: In Kenya the Ministry of Water and Irrigation seeks to conserve, manage and protect water
resources for socio-economic development. It develops water policy and coordinates its implementation under
IWRM as a major policy paradigm.
Water Agency: In Mexico, the federal agency CONAGUA is in charge of the administration of the national
water policy from the federal to the local level. CONAGUA coordinates with institutions and stakeholders at all
levels of governance. In Brazil, water policy is shared among two agencies at the federal level. The Secretaria
Nacional de Recursos Hídricos formulates the national policy for water resources and the Agência Nacional de
Águas (ANA) is in charge of implementing the policy.
Water Committee: Frequently, water policy makers are supported by advisory technical boards that inform
their decisions. Under Jamaica’s Water Resource Act, the Water Resource Advisory Committee advises the
Water Resource Authority, which is in charge of defining water policy. Before being implemented, a new policy
must be approved by the Minister, who must first obtain the recommendation of the Advisory Committee.
Water Authority: The Department of Water of the Government of Western Australia is a strong regional
water authority that provides services including advice on the allocation of water and the protection of ground
water, measurement of water flows, ground water levels and water quality. It also identifies water bodies and
basins that require monitoring, investigates water quality or quantity and supports community involvement in
integrated basin and water resource protection management.
Basin Authority: The Po River Basin, the largest basin in Italy, is managed by the Basin Authority of the
Po River which coordinates efforts and synergies from all the institutions interested in the conservation and
development of the river.
4.2.1 To centralize or decentralize
Countries with federal structures, such as Argentina, Australia or the United States, grant the
water institutions in their federated states different degrees of autonomy, whereas in more centralized
74
countries such as South Africa and Mexico, the national government controls water and environmental
management.
In countries with centralized governments, water institutions tend to be managed by the State,
whereas in countries with less centralized governments, public-private institutions tend to manage
the resource, perhaps because in less centralized governments there is more room for multi-stake-
holder negotiations. In the decentralized-communitarian type of societies, institutions tend towards
the direction of individual user arrangements, enabling a bottom-up institutional framework. A
number of countries have privatized some water management services and many others work with
users’ associations or environmental groups for water management (see Table 4.2).
Table 4.2 Water policy arrangement approaches
Water policy Water institutions
!UTHORITATIVE 3TRONGER AT THE NATIONAL LEVEL
0LURALISTIC LIBERAL 3TRONGER AT THE BASIN LEVEL
$ECENTRALIZED COMMUNITARIAN 3TRONGER AT THE LOCAL LEVEL
Bearing in mind the need for a national approach to equity, economic growth and environ-
mental protection, there might be an argument in favour of having a central institution oversee
the overall water administration. Nevertheless, since water management issues cut vertically and
horizontally (vertically, from the top of the government to the final users, and horizontally among
different sectors, such as agricultural irrigation, health and sanitation, land use and land planning,
mining, energy, forests, environment), it is unlikely that all the decisions related to water manage-
ment would reside in a single institution.
“IT IS UNLIKELY THAT ALL THE DECISIONS RELATED TO WATER
MANAGEMENT WOULD RESIDE IN A SINGLE INSTITUTION”
The principle of subsidiarity applied in the field of government and state administration implies
that all actions in social and political life should be performed at the lowest possible unit; that is, the
main responsibility and decision making should rest with the lowest possible level of authority within
a political hierarchy. In terms of water institutions, this means that, at the national level, the State
should perform only those functions that cannot be performed effectively at a more local level. The
State should take action only to the extent to which given objectives can be attained more effectively
at the state level than at the local level.
Considering that locals can best identify their needs with respect to resource use and that local
societal structures are more representative, many functions of water management should be carried
out at the local level. Although many decisions may best be made at the most local level, local orga-
nizations must still be held to national and basin principles, visions and policies.
“THE MAIN RESPONSIBILITY AND DECISION MAKING SHOULD REST
WITH THE LOWEST POSSIBLE LEVEL OF AUTHORITY“
75
Box 4.2 Advantages and disadvantages of a centralized institutional framework
Advantages
s #ENTRALIZATION BRINGS TOGETHER SECTORAL INTERESTS AND MULTI
LEVEL DECISION MAKING IN A LEGAL AND INSTITUTIONAL
framework consistent with national objectives.
s )T CAN ENHANCE THE ALLOCATION OF HUMAN AND FINANCIAL RESOURCES FOR THE EVALUATION AND CONTROL OF WATER
programmes and policies.
s 5NIFORM STANDARDS AND PROCEDURES ARE PROVIDED FOR WATER ACTIVITIES
s )NTER
REGIONAL AND INTERNATIONAL PROBLEMS CAN BE HARMONIZED WITH NATIONAL INTERESTS
s ! HIERARCHICAL ORDER OF PROJECTS CAN BE DEVELOPED ACCORDING TO NATIONAL PRIORITIES
s $UPLICATION OF WORK BY REGIONAL AND SECTORAL AGENCIES CAN BE AVOIDED
s ! NATIONAL FRAMEWORK FOR ALLOCATION CAN GUARANTEE MORE EQUITABLE USE OF THE RESOURCES
Disadvantages
s 3TANDARDIZED POLICIES CAN BE INAPPROPRIATE FOR ADDRESSING PARTICULAR REGIONAL AND LOCAL PROBLEMS
s #ENTRALIZATION CAN LIMIT THE PARTICIPATION OF USERS IN PROJECT FORMULATION AND DECISION MAKING
s .ATIONAL
LEVEL ADMINSTRATORS CAN LOSE TOUCH WITH LOCAL USERS NEEDS LEADING TO DECISIONS BASED ON INCOMPLETE
information, and ineffective execution and operation of projects.
s ! CENTRAL BUREAUCRACY CAN LEAD TO SLOW DECISION MAKING AND INEFFICIENT PROGRAMME EXECUTION
However, because the hydrological cycle conforms more to the river basin than to any political
jurisdiction, the river basin is the most logical unit of administration. In order to coordinate upstream-
downstream uses and allocations, and to maintain a healthy ecosystem throughout the watershed
for all users, it is necessary to work at the river basin level. For institutions, most of which are formed
in governmental jurisdictions, working at the basin level, which probably overlaps many jurisdictions,
involves a major challenge of coordination. Thus, it is essential that basin-level institutions coordinate
their activities with government units such as federated states, provinces and municipalities, to avoid
the risk of duplication of work, jurisdictional conflict and, as a result, ineffective water management.
“THE RIVER BASIN IS THE MOST LOGICAL UNIT OF ADMINISTRATION”
Coordination also needs to be achieved at various levels and within and between various state
organizations. The aim should be not to change the power of those institutions, but to make sure
they are complementary and try to synchronize interventions and actions as much as possible. A
Water Ministry in charge of coordinating basin-level institutions will also need to coordinate with
the Ministry of Environment to protect particular water bodies or provide environmental flow
requirements, with the Ministry of Health to monitor levels of pollution and discharges, with univer-
sities for scientific research, with the municipalities for water recreation activities, and even with the
police in relation to law infringements.
In summary, water institutions are a mixture of agencies, organizations and corporations at dif-
ferent levels. The critical issue is not to centralize or decentralize, but to coordinate the work of this
multiplicity of institutions and agencies that have jurisdiction over different sectors of water manage-
ment to follow a common vision and plan. The key is not to develop a few institutions that do every-
thing, but to find a way to integrate and account for all the organizations that do everything. Case
4.2 describes how water institutions can be coordinated from the local to the international level.
76
“WATER INSTITUTIONS ARE A MIXTURE OF AGENCIES,
ORGANIZATIONS AND CORPORATIONS AT DIFFERENT LEVELS”
Case 4.2 National, basin and local institutions within a regional context 31
The European Union Water Framework Directive (WFD) sets out a European Union (EU)-wide framework of
policy action that promotes sustainable water use and enhances the status of the EU aquatic environment.
Member States must establish the appropriate administrative arrangements to implement the WFD provisions
at the national level.
Germany illustrates how a federal and decentralized country organizes its water resources management at the
national, federal and local level, and implements regional standards, like those established by the EU.
With an amendment to its Federal Water Act, Germany transposed the WFD into federal law, thereby creating
the basis for achieving the EU-wide environmental objectives. However, according to the German Constitution,
the Federal Water Act can only establish the main framework for water resources management, while the
federal states must adopt all provisions necessary to implement the WFD. At the local level, communes play a
critical role in implementing federal and state laws. They collaborate in associations to organize water supply
and wastewater treatment. They are entitled to recover costs through consumer fees. Communes sometimes
own small water bodies, and are responsible for their maintenance. In order to ensure water supply and waste-
water treatment, communes are allowed to use different types of public or public-private business models. A
number of technical agencies provide consultative and advisory functions.
While international river commissions (e.g., the International Commission for the Protection of the Rhine) coor-
dinate the interests of the different basin states, there are also national river commissions (e.g., the German
Commission for the Protection of the Rhine – DRK) and working groups on specific rivers (e.g., the Working
Group of Federal States for the Protection of the Rhine – ARGE Rhein). The national river commissions are
responsible for improving collaboration between the affected federal states and the relevant federal ministries
in order to speak with one voice at the international level. The working groups of federal states discuss com-
mon problems of the basin, exchange experiences and seek joint solutions.
4.2.2 National coordination
Coordination at the national level can be achieved in many ways. One option is the establishment
of a central unit to consolidate the administration of water resources. This unit could be located at
the Ministry of Water Resources, the Ministry of Environment, Natural Resources or equivalent, or
within the ministry with the most responsibilities in the area of water. The centralized body would
have decision-making, administrative, technical and executive powers.
“COORDINATION AT THE NATIONAL LEVEL CAN BE
ACHIEVED IN MANY WAYS”
A second option is through a Water Council, composed of representatives of all the ministries
with sectoral involvement in water resources. This council would ensure integration at the highest
political level and decide issues ranging from environment to financial. An alternative is to provide
the council with technical and economic powers, with which it can decide not only on inventories
and plans, but also on specific investment projects or re-allocation of water rights.
A third option is to disaggregate the Water Council’s political and technical functions, and estab-
lish a Water Commission or Water Committee for coordinating work only at the technical level.
77
A fourth option is a National Water Agency not linked to any ministry, which interacts with sev-
eral line-function ministries on an equal basis. The National Water Agency should be able to both
formulate and regulate more local institutions.
4.3 Four levels of water institutions
4.3.1 International level
There are more than 260 shared river basins in the world, one-third of which are shared by
two or more countries. Nineteen basins are shared by five or more countries. About 145 nations
have a portion of their territory in an international river basin. Water conflicts among nations have
been common throughout history and efforts to find peaceful solutions have resulted in more than
1,000 water treaties. There are currently nearly 200 international river basin organizations (IRBOs)
in operation around the world.32 Many have a long history of successes and frustrations, and river
basin experts have concluded that it takes a long time to build a competent basin organization, but,
as discussed in detail in the IUCN toolkit SHARE,33 the benefits can extend beyond water issues to
driving economic development, improving sustainable management, and spreading to cooperation
in other sectors.
“THERE ARE MORE THAN 260 SHARED RIVER BASINS IN THE
WORLD”
International basin organizations usually start with the joint appointment of a technical commit-
tee that tries to deal with data collection and assessment of resources in a non-political framework.
Eventually a diplomatic-level commission may agree on principles and objectives. A fully functioning
IRBO might include a diplomatic-level commission, a board of trustees, a funding mechanism, a group
that settles disputes, working groups on various technical issues, and a secretariat for administrative
work.
The international basin commissions tend to function at one of three levels: coordinating, plan-
ning and management, or actual regulation. Only a few are in the regulation category.
To participate effectively in an international basin organization, a country needs: high-level
diplomats who understand the advantages of the basin approach and have the ability to effectively
negotiate win-win results. It also needs a strong technical capacity to participate in inventories,
monitoring and innovation and real public participation from all levels and sectors.
“INTERNATIONAL BASIN ORGANIZATIONS USUALLY START WITH
THE JOINT APPOINTMENT OF A TECHNICAL COMMITTEE”
Case 4.3 Problem solving through international basin institutions in West Africa
The Volta Basin Authority (VBA) was formed by six states: Benin, Burkina Faso, Ivory Coast, Ghana, Mali and
Togo. The process of creating the VBA began in 2004 with the formation of a Technical Committee of the
Volta Basin (TCVB), which held a series of meetings and negotiations leading to the development and adop-
tion of the ‘Convention on the Status of the Volta River and the Establishment of Volta Basin Authority’ on
19 January, 2007.
78
The mandate of the VBA is to promote integrated water resources management and the equitable distribution
of benefits. The organs of the VBA include the Conference of Heads of States and Governments, the Council
of Ministers in Charge of Water Resources, the Forum of the Parties involved in the development of the basin,
the Technical Committee of Experts as well as the Executive Directorate of the Authority.
It is expected that the parties will be able to prevent further conflicts, such as those that have characterized
the area for the past decade, by solving any issues that may arise through the organs of the VBA. Therefore,
the convention is seen as a new opportunity for securing peace in the region.
4.3.2 National level
National water institutions reflect all or some of the functions mentioned in Table 4.1. The com-
bination of functions depends on the institutional framework, and the distributions of competencies
among different sections of the government, and the type of water policy followed by the country.
Countries following an authoritative type of water policy as discussed in Chapter 2, tend to have
stronger national water institutions with different degrees of decentralization or devolution of
authority to basin-type water institutions:
Authoritative water policy --> Strategy --> Design--> A plan --> A national-level water institution
Institutional functions also depend on the country’s centralization level. In countries with a
decentralized structure, functions such as agricultural, fishing, municipal and domestic uses tend
to be administered by the federated states, whereas navigation and infrastructure tend to be cen-
tral government responsibilities. It is more likely that policy formulation and the compilation of a
national waters inventory are central government responsibilities, whereas administration of water
rights, operation and maintenance of water works, and monitoring and inspection are done, as a
matter of efficiency, at the more local level (see Box. 4.1).
“THERE ARE GEOGRAPHICAL, PHYSICAL AND POLITICAL REASONS
FOR A BASIN APPROACH”
4.3.3 Basin level
Almost all recent international conferences dealing with water have advocated for the river
basin as the most appropriate unit to implement water management. The United Nations Water
Conference (Mar del Plata, 1977) recommended that states should consider the establishment and
strengthening of river basin authorities. The International Conference on Freshwater (Bonn, 2001)
noted that river basins are the most appropriate frame of reference for water resource management,
and the World Summit on Sustainable Development (Johannesburg, 2002) recommended countries
adopt an integrated water basin approach.
There are geographical, physical and political reasons for a basin approach and the establish-
ment of basin-level institutions. River basins are the physical areas in which natural processes connect
with socio-economic processes and in which water interacts with other natural resources through the
hydrological cycle. This is also where the relationships between consumptive and non-consumptive
uses of water take place.
Geographically, the basin territory does not include the sea (where part of the hydrological
cycle takes place) and hydrologically, it does not necessarily coincide with the ground water located
underneath the basin. Politically, management at the basin level needs to reflect the existing politi-
cal divisions such as municipalities and provinces, whose borders do not necessarily coincide with the
geographical boundaries of the basin.
79
The establishment of basin-level institutions derives from a policy decision, which entails a judge-
ment on the scale on which to manage the water resources of a country. Countries with a pluralistic-
liberal type of government are more likely to place an emphasis on the establishment of empowered
basin-level institutions:
Pluralistic-liberal water policy --> Strategy --> Negotiations --> A deal --> Basin-level institutions
“THE ESTABLISHMENT OF BASIN-LEVEL INSTITUTIONS DERIVES
FROM A POLICY DECISION”
Although no matrix fits every country’s needs, there are essential foundations for a basin institu-
tion to work effectively as described in the IUCN toolkit SHARE:
s ! STRONG GOVERNANCE STRUCTURE
s ! SYSTEM FOR KNOWLEDGE MANAGEMENT OF BOTH SCIENTIFIC AND SOCIAL AND ORGANIZATIONAL INFOR-
mation.
s 0ARTICIPATION OF ALL STAKEHOLDERS ESPECIALLY PUBLIC PARTICIPATION
s -ONITORING OF SCIENTIFIC AND SOCIAL DATA IN ORDER TO FIND OUT IF PROGRAMMES ARE HAVING THE
desired effect.
s !DAPTIVE MANAGEMENT THAT CAN CHANGE COURSE IF NEEDED TO ACHIEVE ITS GOALS
Although there is ample consensus on the benefits of managing water at the basin level, and
an increasing tendency to decentralize water management to river basin organizations, there are
many examples of organizations that have failed in their broader IWRM mandate. Faced with that
mandate, basin commissions may either suffer a ‘paralysis by analysis’ problem, or may abandon their
broader mandate in favour of simple water sharing, pollution prevention and water resource devel-
opment. This is a particular risk in developing countries facing severe skills and funding shortages.
“WHAT IS IN THE BEST INTERESTS OF THE BASIN MAY
NOT BE IN THE BEST INTERESTS OF THE COUNTRY OR THE REGION”
To address at least some of the risks posed by the establishment and operation of basin-level
water institutions, a series of recommendations can be made:
s "EFORE ESTABLISHING A NEW BASIN INSTITUTION ANALYZE THE COUNTRYS NEEDS AND HAVE A CLOSE LOOK
at past experiences. Have basin institutions been set up in the past? Did they work? If not, why
not?
s 2IVER BASIN INSTITUTIONS MUST OPERATE WITHIN A WIDER NATIONAL AND EVEN INTERNATIONAL FRAME-
work. Basin institutions can no longer focus on the simple expedient of sharing the water to
the benefit of existing water users within the basin, but must look at a wider national and
international, social, economic and environmental framework and understand that what is in
the best interests of the basin or its water users may not be in the best interests of the country
or the region.
s !S A MATTER OF PRINCIPLE THE MORE AWARE PEOPLE ARE OF WATER ISSUES THE EASIER IT IS TO ESTAB-
lish an effective decentralized institutional system. A basin-wide consensus-building approach
open to public participation holds the best hope for implementing the policy and the law.
Major stakeholders can be identified, common interests and conflicts explored, and potential
80
resolutions identified and agreed upon, where possible. However, participation must be tem-
pered with consistency with core national principles, and should be monitored at a national
level, perhaps in a National Ministry, or National Water Agency.
s Consider self-funding mechanisms such as member dues or user fees for at least part of the
budget, so that the institution will not be totally dependent on funds from other institutions.
“A BASIN-WIDE CONSENSUS-BUILDING APPROACH HOLDS
THE BEST HOPE FOR IMPLEMENTING THE POLICY AND THE LAW”
4.3.4 Local level
There is a potential inconsistency between IWRM goals and principles, which demand a basin-
wide vision on the one hand, and the need for local decision making on the other. Local political
structures and communities often find it difficult to conceptualize impacts over larger basin scales.
This potential dilemma can be addressed by the principle of subsidiarity in such a way as to encourage
stakeholders to ‘think basin, but act local’.
“THINK BASIN, BUT ACT LOCAL”
Decentralized management at the basin level that includes community groups and the private
sector is becoming increasingly popular. This alternative encourages awareness and responsibility
towards water and facilitates the acceptability of the legal system. In addition, the participation of a
wide range of actors in water management processes offsets the frequent institutional adjustments
deriving from cyclical changes in governments. New governments may reverse policies, restructure
staff, and change budget priorities – with positive or negative results on the institutional framework.
However, the impacts of such changes on the stability of the institutional set up can be attenuated
if stakeholders have been empowered to share responsibilities.
“DECENTRALIZED MANAGEMENT AT THE BASIN LEVEL ENCOURAGES
AWARENESS AND RESPONSIBILITY TOWARDS WATER”
According to the law in some countries, users taking water from the same source must organize
themselves into Water User Associations (WUAs). When the water is used for irrigation, user associa-
tions are called irrigation communities. These groups govern themselves and are funded by a statute
submitted for approval to the relevant basin institution. Within the policy framework discussed in
Chapter 2, these types of local partnerships are more likely to be adopted in countries where the
water policy is decentralized or communitarian. The equation will then be:
Water policy --> Strategy --> Joint action --> Learning by doing --> Local-level institutions
The law can establish provisions for the recognition of WUAs as autonomous bodies with legal
personality and financial autonomy. WUAs also offer a good platform for resolving possible conflicts
between traditional or customary rights and statutory rights, by facilitating the implementation
of water law through an active participation of the users at the final stage of water distribution.
They can also fulfil an important role in monitoring, usually an expensive task carried out by larger
agencies, but one that can be boosted by local attention to basic parameters such as gauge heights
and simple water quality tests.
81
In Venezuela, more than 2,800 Mesas Técnicas del Agua have organized themselves to actively
participate in decision-making processes that affect their specific community in coordination with
the local water service providers.
Case 4.4 Implementing national policies through local institutions in Tanzania
In Tanzania’s Pangani River basin, which covers 48,000km2 from the high slopes of Mount Kilimanjaro to the
Indian Ocean, many water disputes are settled by local water user groups. In the Soko Spring region, local ten-
sions built up due to pollution, overextraction, and problems with livestock travelling long distances, through
land planted with crops, to access water. On one tributary of the Pangani, six villages depend on the healthy
functioning of the Soko. The government established the Kahe East Water Users Association, to prioritize water
uses. The agriculture-livestock conflict was generating the most passionate conflicts. Using the Association as
a discussion panel for achieving solutions, the elders from the villages agreed on a project to pipe water 500m
from the spring, under the railway line, to a proposed drinking area away from the farmlands. This simple
project will secure the livestock and the livelihoods of the farmers, and reduce the pressure on the spring.
Photo 4.1 Stakeholder discussions during the Joint White Volta Basin Communities Consultative Forum (Burkina
Faso). Community Involvement is an important element in the development of water governance capacity, incor-
porating local concerns and interests will help to develop more effective management systems.
82
WUAs can operate at a very local level, but can also have limited responsibilities with regard
to monitoring and visioning for the larger system (apart from perhaps direct abstractions from the
system). These organizations typically manage allocations among individual users. Larger allocation
decisions may have to be made by basin-level structures. Organizations covering several sub-basins
may also be necessary to take advantage of the economies of scale for funding. Basin organizations
are better placed to undertake visioning exercises, and to plan water allocation scenarios which meet
the criteria of social equity, economic growth and environmental sustainability.
4.4 Designing institutions for IWRM
The point of departure for IWRM is that water is part of an ecosystem. Different water uses are
interdependent and thus need to be considered in an integrated manner. Following the principle
of subsidiarity, IWRM deems the river basin as the most appropriate management scale, recognizing
that it is integrated in terms of surface water and ground water, fresh water and land issues, fresh
water and coastal zone issues, quantity versus quality issues. Management too must be integrated
to consider the effects of every water use over the others, and work within the framework of the
country’s overall social, economic and sustainability goals.
“IWRM DEEMS THE RIVER BASIN AS THE MOST APPROPRIATE
MANAGEMENT SCALE”
The difference between IWRM and sectoral approaches is that IWRM is a systematic process for
allocation and sustainable management of water within the context of economic, social and envi-
ronmental objectives. What are the institutional requirements to implement IWRM? They can be
grouped in four clusters:
1. The government coordinates water management at the national level
Effective water management requires the coordination of a range of agencies, operating at dif-
ferent levels and with different mandates:
s .ATIONAL AGENCIES MUST TAKE ON CROSS CUTTING ROLES SUPPORTING NATIONAL GROWTH DEVELOPMENT
and social priorities, integrating across several government agencies at all levels.
s ,OCALLY BASED 75!S ARE BEST PLACED TO UNDERTAKE THE DAY TO DAY MANAGEMENT OF THE RESOURCE
and the administration of water-use entitlements.
s "ASIN LEVEL AGENCIES CAN PLAY A VITAL ROLE IN MAINTAINING A FOCUS ON BASIN LEVEL MANAGEMENT
ensuring upstream use does not compromise downstream users, and that water allocations
and discharge regulations remain consistent with national objectives. These agencies may
consequently play a role in issuing water-use and waste-discharge entitlements and rights.
“IWRM REQUIRES THE ESTABLISHMENT OF AN
ADMINISTRATIVE SYSTEM”
2. The institutional set-up must be cross-sectoral
IWRM requires the establishment of an administrative system that allocates tasks among differ-
ent agencies and pursues a high level of communication among those agencies. Water institutions
for IWRM go beyond the regular decision making and management of water resources to creating
83
an enabling environment for water management. The concept of enabling refers to enhancing
arrangements that go beyond decentralization models. The same dynamic can play out within poor
communities on a gender basis. A representative, principle-based model of democracy should be fol-
lowed within water institutions. However, decisions made by locally based water institutions should
be tempered by a core set of national values and principles and, in many cases, by customary law.
3. Water management follows the hydrological boundaries of the river/lake basins
An IWRM institutional set up revolves around the river basin as the basic unit of management.
However, this approach involves many sectors and political and administrative jurisdictions, which
imposes another level of coordination at the sub-basin and WUA levels.
4. Principal stakeholders are informed and consulted in decision making
Transparency, state accountability and the option of legal redress for failure to uphold the law
are vital elements in the institutional set up and ultimately for effective water governance. Gender
equity considerations must be mainstreamed into decision making processes.
Capacity building at all levels, through training and education, as an ongoing strategy enhances
institutional capacity and efficiency.
“DECISIONS MADE BY LOCALLY BASED WATER INSTITUTIONS
SHOULD BE TEMPERED BY A CORE SET OF NATIONAL VALUES AND
PRINCIPLES”
4.5 Funding water institutions
The costs of providing water services and maintaining healthy water basins can be high. Water
services include large infrastructure and maintenance costs for water treatment, delivery pipes,
sewerage and sewage treatment. Irrigation involves its own infrastructure, as does hydropower or
industrial use. Government must fund constant monitoring (both scientific and contractual), enforce-
ment, and conservation or restoration efforts.
Many international agencies promote payment for services schemes, in which water users pay
for the water they use. However, many governments are reluctant to charge poor people who
would not be able to pay and may react badly to a new charge. Any schemes for full cost recovery
for industrial water use and wastewater treatment services should be balanced by subsidies to low-
income consumers.
“THE COSTS OF PROVIDING WATER SERVICES AND MAINTAINING
HEALTHY WATER BASINS CAN BE HIGH”
Traditionally, national agencies are funded out of the national budget, but there is an increas-
ing tendency to make water management agencies self-sustaining by imposing water-use charges.
Smaller WUAs, directly involved with the management of water, can usually be funded from direct
user charges. However, agencies with more IWRM responsibilities need support from the national
government. National funding also recognizes the broader social and economic benefits of IWRM.
Good planning can only be achieved through informed and rational decision making. This usu-
ally requires investment in studies on environmental, economic and social impacts before a decision
is made. However, private interests often represent a small group of individuals, and public interest
84
groups are often underfunded. Therefore, national, state and local governments should assume the
primary role in making these investments. Private consultants and publicly employed experts can and
should continue to be used to assess impacts, but responsibility for decisions should lie with those
individuals that the public has entrusted to make them.
4.5.1 Payment for ecosystem services
Ecosystem services are the benefits people obtain from ecosystems. They can relate to provision
of goods such as fish, timber, crops or clean water, to regulation of river flows and natural hazards,
to cultural amenities and habitat for wildlife. Degradation of ecosystems in watersheds can lead to
loss of benefits for people because of changes in the quality, quantity, or timing of the availability
of water. As shown in the IUCN toolkit VALUE, economic values can be determined for ecosystem
services in watersheds. As a result, schemes can be put in place to enable beneficiaries to pay for the
upkeep or restoration of ecosystem services. The IUCN toolkit PAY provides a guide to the design and
application of payment schemes for watershed services.
Development and implementation of payment schemes for ecosystem services must be sup-
ported by laws that establish transaction mechanisms and set clear and enforceable rules. Payments
can be made when sellers agree to forego an activity that they have a legally protected right to carry
out. Such a provision would enable, for example, a landowner to be paid for refraining from cutting
down trees, thus preventing soil erosion and run-off in a nearby watercourse. As described in PAY,
such transactions must be supported further by reliable contract law, clarification of rights and insti-
tutional mechanisms that enable agreement of obligations among parties, and credible compliance
monitoring and enforcement of the rules (see Case 4.5).
“DEVELOPMENT AND IMPLEMENTATION OF PAYMENT
SCHEMES FOR ECOSYSTEM SERVICES MUST BE SUPPORTED
BY LAWS AND RULES”
Case 4.5 New York pays upstream users to keep its water clean
New York City has had a public payment for environmental services watershed management programme
since 1997, when it signed the New York City Watershed Memorandum of Agreement (MoA) with the State
of New York, watershed towns, villages and counties in the Catskill/Delaware region and with environmental
and agricultural organizations. This watershed supplies 90 percent of New York City’s water demand, which
averages a daunting 1.2 billion gallons a day for a population of nine million people.
The decision behind the MoA was an affirmative choice to invest in the environmental quality of the Catskill/
Delaware watershed and thus in the quality of the water that flows downstream to New York City; rather
than to invest in the construction and development of water treatment and filtration plants that would impose
a heavy financial burden on city consumers. With the MoA, the EPA has granted New York City a five-year
Filtration Avoidance Determination (FAD), indicating that with implementation of this watershed management
programme, the water is of a sufficient quality for human consumption. This was a luxury that had been rapidly
disintegrating in the late 1980s and early 1990s when unsustainable and harmful changes in land use and agri-
cultural practices in the watershed territory altered the once highly-regarded water quality of New York City.
The MoA provides a legal framework for the City’s direct investment in watershed protection programmes,
such as land acquisition and land easement purchases as conservation set-asides in the Catskill/Delaware
watershed and for the voluntary Whole Farm programme, which finances farmers in their shift to sustainable
85
agricultural practices that allow for better environmental stewardship. This urban-rural watershed management
agreement resulted in a nine percent increase in water fees to New York City, thus financing the acquisition of
approximately 70,000 acres (or 28,328 hectares) of land and land easements at a cost of US$168 million and
the implementation of 288 Whole Farm best practice plans (out of the 290 voluntarily participating commercial
farms, which represent 95.7 percent of the commercial farms in the watershed area), at a cost of US$384,344.
Lauded as one of the most successful examples of public payment for environmental services, implementa-
tion of this system is founded in the cooperative protection of a watershed environment that provides critical
natural ecosystem services. This has resulted in substantially lower costs to New York City for potable water
and better relations between the co-dependent urban and rural populations.
4.6 Public participation and civil society organizations
Evidence shows that public participation in water management makes for better governance.
Civil society participation in the decision making process is being incorporated in legal instruments
and institutional procedures as a result of reform processes.
Public participation can help create networks of water arrangements, bringing dynamism as
well as publicity to the water sector. It generates trust and empowerment among stakeholders and
creates respect and support for the decision-making process. People who help set up the rules are
more likely to abide by them.
Public engagement in water governance is examined at four levels:
s !WARENESS THROUGH MEDIA CAMPAIGNS LINKING THE BENEFITS OF A WATER PROJECT TO THE NEEDS OR
wants of the public.
s 0UBLIC PARTICIPATION IN WHICH THE PUBLIC BECOMES MORE INFORMED AND PARTICIPATES IN DECISION
making.
s #O
MANAGEMENT IN WHICH CIVIC GROUPS ENGAGE IN MANAGEMENT OF WATER PROJECTS OR IN MONI-
toring, inspection, implementation and enforcement of water arrangements.
s #ITIZEN INITIATIVES IN WHICH CITIZENS CAN LEAD THE WAY TOWARDS BETTER WATER MANAGEMENT
“PUBLIC PARTICIPATION IN WATER MANAGEMENT MAKES FOR
BETTER GOVERNANCE”
4.6.1 Awareness
If a government agency is leading the way towards IWRM, public-awareness building activities
are needed to generate public support. Lack of attention to public awareness can lead to failure of
reforms.
4.6.2 Participation
Public participation includes not only access for individuals, but also access for, and relations
with, NGOs representing various public interests. These groups might include local environmental
groups, residents’ associations, farmers’ groups and many others. They may be long-lived and well
known, or small, single-issue and temporary. Water User Groups (described elsewhere in this and
other chapters) are a more formal organization of direct water users, but water issues are pervasive,
touching many concerns.
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Access to information is critical in involving civil society in decision making. Technical issues must
be presented clearly to a lay audience because the public must understand the issues if they are to
help decide the outcomes. Information for the public must be available, timely and free of charge,
or provided for a reasonable fee. Information should only be denied for credible reasons, such as
national security.
“WATER STAKEHOLDERS WILL DISENGAGE
FROM WATER ARRANGEMENTS IF THEIR PARTICIPATION IS NOT
TAKEN INTO ACCOUNT”
4.6.3 Co-management
Not only is citizen input critical in forming policy and making decisions, citizens can also imple-
ment policies and co-manage water schemes or assist with monitoring or other activities.
Case 4.6 “Comunidades de Regantes”
The Comunidades de Regantes (Irrigation communities), a unique type of Water User Association, are of
enormous importance as ancient institutions where farmers grouped themselves to self-manage and distribute
waters in an equitable, efficient and organized manner. In their origins in Spain, water was distributed accord-
ing to customary rules that were transmitted verbally from generation to generation. In time, these rules were
set in written documents expedited by the mayor of the town. The 1979 Spanish Water Law recognized the
irrigation communities for the first time, and the 1985 Amendments strengthened them by making water users
participate in, and share responsibility for, the management, planning and finance of irrigation water together
with the State administration. Principles, rights and obligations governing the organization of the irrigation
communities are set out in the Water Law.
4.6.4 Citizen initiatives
Finally, an aware and empowered citizenry can take the lead in water reform (see Case 4.7).
Although citizen groups lack the power of government, they can be effective through the use of
lawsuits, changing public opinion through media campaigns and other tactics.
Case 4.7 Citizen action wins case to create a basin authority
The Matanza-Riachuelo represents an example of how environmental awareness and citizen action led to the
establishment of a river basin institution. The Matanza-Riachuelo basin, located south of Buenos Aires, one
of the largest cities of South America, is highly polluted resulting from a long history of dumping untreated
sewage, heavy metals, sediments, pesticides and a long list of other pollutants. Along the basin there are more
than 3,000 chemical, oil, food, paper, textile and metal industries and over 100 clandestine dump sites. The
management of the basin is far from effective, as there is a multiplicity of authorities, jurisdictions and districts
with overlapping competencies, which causes inefficiency in decision making and implementation.
In 2006, a group of citizens filed a claim before the Supreme Court against some of the polluting industries,
alleging collective environmental damage. They sought an injunction to stop the polluting activities and the
re-establishment of the original situation before the damage took place. As a result of the Court’s decision, a
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ministerial plan was developed to clean up the basin and to establish a Basin Authority (Autoridad de Cuenca
Matanza-Riachuelo), which operates under the Secretary of the Environment (equivalent to a Ministry). The
Basin Authority will monitor industrial activities affecting the basin environment, develop uniform criteria for
dumping effluents and emissions, adopt preventive measures to protect human health and the environment,
and promote a system of penalties. The powers and decisions of the Basin Authority pre-empt any other
authority. A fund administered by the Basin Authority was established in order to protect individual rights, and
prevent, mitigate and restore environmental damages in the basin.
4.7 Private-sector roles in water management
The rationale for privatization in the water sector has rested on at least three propositions:
1. Privatization is seen as a means of addressing the perceived inefficiency of public-sector
agencies in providing water services.
2. Privatization may also be a response to the inability of governments to afford the funds
required to extend water services to new users, which results from the widely observed diver-
gence between the relatively low prices beneficiaries pay for services and the higher costs of
service provision.
3. Particularly in irrigation (an often wasteful use, with low economic value, which can account
for about 70 percent of water use), proponents of privatization argue that appropriately
higher charges for water will reduce demand and leave more water for higher value uses, and
hence a more rational allocation.
4.7.1 Stewardship versus Service delivery
The stewardship functions of water management i.e., ensuring that the resources are managed
on behalf of citizens, and for their maximum sustainable benefit, cannot be privatized. Stewardship
functions include: policy making and the political bargaining processes, legislation, decentralization,
institutional management of government agencies and regulatory functions. Activities such as data
collection and planning, which are intrinsically linked to stewardship functions, may be privatized on
a limited basis. For example, private-sector involvement is feasible in specific tasks such as installa-
tion and monitoring of flow measuring equipment, routine planning of water supply and sanitation
requirements for a new settlement, or assessment of options for irrigation management in an area.
Overall guidance of such activities, though, must be the responsibility of government agencies. (see
Figure 4.1).
The activities where privatization offers most promise are the design, construction, operation
and maintenance of infrastructure for water services. Although this is a narrow slice of the assort-
ment of functions required for water management and provision of water services, the vast bulk of
the financial resources are allocated to these activities.
Governmental stewardship includes protecting public health by providing clean water and sew-
erage. Environmental stewardship includes providing treatment for sewage and industrial effluent,
maintaining water flows and protecting aquatic habitats. Private companies do not have stewardship
functions. They may, however, have the capital to invest in setting up an infrastructure to deliver a
service.
88
Privatization breaks the institutional link between stewardship and service provision. When the
stewardship functions of public institutions are well developed, separation of service-delivery func-
tions through privatization can facilitate more effective stewardship alongside improvements in the
efficiency of service provision.
Figure 4.1 The core elements that must remain within the public sphere
Always
Policy making public
Regulation
Policy making
Regulation Reform
Asset ownership Asset ownership
Corporate oversight
Service provision
Corporate oversight
Public
private
Service provision
or PPP
Note: PPP – Public-Private Partnership
Adapted from: World Bank, (2004), see note 34.
“PRIVATIZATION BREAKS THE INSTITUTIONAL LINK BETWEEN
STEWARDSHIP AND SERVICE PROVISION”
The reform of the water sector provides an important opportunity for both strengthening
supervision of environmental and public health, and for improving the effectiveness of regulatory
arrangements. In preparing for privatization, assessments should be made, for example, of the stan-
dards, institutional roles and decision making processes used in environmental regulation, and of the
relationship between economic and environmental regulation. It is especially important to ensure
that standards are consistent with economic and social policies.
If regulation of private companies is too heavy-handed, that is if the requirements on the compa-
nies are beyond what they can achieve and still make a profit, privatization can fail. Conversely, clear
rules on environmental protection and water management are actually in the interests of private ser-
vice operators. For example, if government does not detect illegal water abstractions, ground water
resources could be depleted, creating the need for the service operator to develop new water sources
to fulfil its service obligations. If government does not halt illegal discharges by polluting industries
upstream, treatment costs may increase for service providers. Therefore, regulations and enforcement
capacity to avoid or overcome such issues should be in place and operating effectively before private
89
participation. If the public institution responsible for stewardship is weak, there is a danger that the
private-sector agency might succeed in negotiating a contract favouring its interests over stewardship.
Before privatization of water services takes place, there should be a process of creating, if necessary,
and separating the monitoring of environmental and public health standards from service functions.
Privatization does not only apply to large companies and large infrastructure. In Asia a large
proportion of irrigation water is provided by private tube wells, and worldwide many small-scale irri-
gation systems are collectively funded, constructed, operated and maintained by groups of farmers.
Non-agricultural water supplies are often derived from the same sources, which are nominally within
the control of government, but for practical purposes are unregulated. In this context, the prevailing
institutional arrangements allow direct interventions by government for stewardship reasons into
service provision activities, which they also nominally control. In reality, many developing countries
are struggling to meet appropriate stewardship targets.
“PRIVATIZATION DOES NOT ONLY APPLY TO LARGE COMPANIES
AND LARGE INFRASTRUCTURE”
Attempts by governments to address these issues are politically sensitive. Interventions, such as
reducing abstractions, controlling the operation of industries, investing in sewage treatment and
other pollution control mechanisms, provoke controversy or compete with other development and
economic objectives.
4.7.2 Arrangements for private-sector participation
There is a wide range of political and regulatory contexts for private-sector involvement in water
services and management. As a result, different schemes for private-sector participation are possible.
These can be broadly grouped as follows:
Service contracts: Transfer responsibility for a specific aspect of service provision to a private
contractor. Examples of contracted tasks are maintenance of facilities, record keeping, billing and
collection. Clear and narrow specification of the task combined with competitive bidding or fee
negotiation ensure an appropriate rate is paid for the job.
Management contracts: Transfer responsibility for managing a utility to a private operator, often
for a limited period. The simplest management contracts pay a private operator a fixed fee for per-
forming managerial tasks. More complex versions offer efficiency incentives by basing the fee in part
on performance targets. Since very little risk is transferred to the operator, large improvements in
operating and investment performance are less likely than under other arrangements.
Leases: Make the operator responsible for operating and maintaining the business, but not for
financing investment. The operator retains revenue collected from customers and makes a specified
lease payment to the contracting authority. Profits depend on sales and costs, which typically gives
the operator an incentive to improve operating efficiency and increase sales. The contracting author-
ity is usually responsible for financing investment in infrastructure assets and it must therefore raise
the finance needed and coordinate its investment programme with the operator. In some cases, the
operator designs and manages the investment programme.
90
Concessions: Give a private operator responsibility not only for the operation and maintenance
of assets but also for financing and managing investment. Asset ownership typically rests with the
government from a legal perspective, however, rights to all the assets, including those created by
the operator, typically revert to the government when the arrangement ends, often after 25 or 30
years.
Discharge fee: Although the contract is nominally referred to as a concession, it manages tariff rev-
enues reserved for investments but, as in an affermage contract, therefore it is not required to invest
from its own funds and receives an operator tariff, different from the customer tariff. It is better
understood as an ‘affermage-lease with concession features’.
Divestitures: Give the private operator full responsibility for operations, maintenance and invest-
ment. Unlike a concession, legal ownership of the assets rests with the private operator. However,
the operator may be given a fixed-term licence, without which the divested assets have little value.
The assets may revert to the government if the licence is revoked.
Build, operate and transfer arrangements: Provide the maximum involvement of the private sector
in provision of water services, possibly also including design of facilities. Under such arrangements
the operator is usually responsible for raising investment funds, supervision (or execution) of con-
struction, operation and provision of water services for an agreed period, and finally transfer of the
facilities to the contracting authority.
Choice of a scheme and the potential benefits of privatization depend on the institutional capac-
ities and the regulatory framework in place, as well as the basis for determining tariffs for services.
The design of arrangements for private-sector involvement has implications for the affordability
of water services and the accountability of the private contractor to the government, especially in
regard to environmental issues. Table 4.3 summarizes how the suitability of different options for
private-sector involvement relates to features of the political and institutional context. Broadly, it
indicates that as the complexity of private-sector involvement increases, the potential benefits also
increase, but there are more and more stringent criteria for the institutional environment in which
privatization takes place.
The key issue in respect to levels of tariffs and affordability is that the funds received by the
operating agency must be sufficient to ensure that the service is provided on a continuing basis. This
means that the facilities must be maintained adequately on a day-to-day basis, and provision made
for more significant expenditures when major infrastructure items need replacement. If the govern-
ment is not prepared to force users to pay the charges, it must supplement revenues to the contrac-
tor accordingly, but in such a way that efficiency incentives are not diluted. For those categories of
privatization that must attract investment of private capital, the risk premium required by investors
depends on the degree to which the government can assure the operator that tariffs can be set that
allow appropriate profits.
Accountability and control of potential environmental impacts depends, even for the most mod-
erate levels of privatization, on strong regulatory capacity. Where the regulatory capacity to enforce
proper environmental compliance is inadequate, the priority must be to develop stronger capacity
for regulation within government institutions before considering privatization beyond service con-
tracts (see Chapter 5 on implementation).
91
Table 4.3 Features of alternative options for the privatization of water services 34
Option Stakeholder Cost- Good Developed Good Potential
support and recovering information regulatory country benefits
political tariffs about the framework credit of the
commitment system rating option
Service 5NIMPORTANT .OT 0OSSIBLE TO -INIMAL .OT NECESSARY LOW
contract NECESSARY PROCEED ONLY MONITORING
IN THE SHORT WITH LIMITED CAPACITY
TERM INFORMATION NEEDED
Management ,OW TO 0REFERRED 3UFFICIENT -ODERATE .OT NECESSARY
contract MODERATE BUT NOT INFORMATION MONITORING
LEVELS NEEDED NECESSARY IN THE REQUIRED TO CAPACITY
SHORT TERM SET INCENTIVES NEEDED
Lease -ODERATE TO .ECESSARY 'OOD 3TRONG .OT NECESSARY
HIGH LEVELS INFORMATION CAPACITY FOR
NEEDED REQUIRED REGULATION AND
COORDINATION
NEEDED
Build- -ODERATE TO 0REFERRED 'OOD 3TRONG (IGHER
operate- HIGH LEVELS INFORMATION CAPACITY FOR RATING WILL
transfer NEEDED REQUIRED REGULATION AND REDUCE COSTS
COORDINATION
NEEDED
Concessions (IGH LEVELS .ECESSARY 'OOD 3TRONG (IGHER
NEEDED INFORMATION REGULATORY RATING WILL
REQUIRED CAPACITY REDUCE COSTS
NEEDED
Divestiture (IGH LEVELS .ECESSARY 'OOD 3TRONG (IGHER
NEEDED INFORMATION REGULATORY RATING WILL
REQUIRED CAPACITY REDUCE COSTS
NEEDED
HIGH
The shading signals the degree of importance
92
4.8 Practical steps and indicative principles
1. Institutions for water management should be designed to reflect national realities.
s -AKE SURE THAT WATER INSTITUTIONS MAKE SENSE WITHIN THE POLITICAL ECONOMIC AND SOCIAL CON-
text in which they are established.
s /UTLINE THE INSTITUTIONAL SET UP THAT ALREADY EXISTS IN THE COUNTRY
s #HECK THE HISTORY OF THE INSTITUTIONAL FRAMEWORK RELATING TO WATER THE SUCCESSES AND THE
pitfalls, and in particular the reasons why certain efforts may have been abandoned or
amended.
s &IND OUT IF THERE IS A RIVERLAKE AUTHORITY IN THE COUNTRY OR IN NEIGHBOURING COUNTRIES AND
evaluate its effectiveness in terms of managing the waters of the river/lake basin.
2. Water institutions must reflect a country’s political structure: centralized or federal. Whether to use
a centralized or decentralized approach for an institutional framework will depend on many circum-
stances, but particularly on the political will and political timing of institutional reform.
s $ETERMINE WHAT POLITICAL AGENCIES IN THE COUNTRY HAVE DECISION MAKING POWERS ON WATER
issues.
s %VALUATE THE LEVEL OF AUTONOMY GIVEN TO NATIONAL IN FEDERAL COUNTRIES AND LOCAL FEDERAL AND
centralized) governments with regard to the administration of natural resources, including
water.
s #ONSIDER GEOGRAPHIC REALITIES WATER DISTRIBUTION INTER
JURISDICTIONAL BASINS
3. When establishing or reforming an institutional framework consider the following facts:
s &UNCTIONS RELATED TO AGRICULTURAL FISHING MUNICIPAL AND DOMESTIC USES ARE BETTER DEALT WITH
at the provincial or basin level, whereas navigation and water infrastructure are best left as
central government responsibilities.
s 0OLICY FORMULATION AND NATIONAL WATER INVENTORIES ARE MORE LIKELY TO BE CENTRAL GOVERNMENT
responsibilities, while administration of water rights, operation and maintenance of water
works, and monitoring and inspection are taken over, for efficiency reasons, at a more local
level.
4. Decentralized management might lead to higher levels of transparency and accountability, but also
increase corruption in the absence of a national system of supervision and control.
5. The most adequate level of water management is the basin level.
s "ASIN ORGANIZATIONS MUST RELATE TO THE WIDER WATER INSTITUTIONAL SET UP OF THE COUNTRY
s "ASIN ORGANIZATIONS MUST BE PROVIDED WITH A CERTAIN LEVEL OF AUTONOMY TO TAKE DECISIONS
hire qualified staff, and manage their own budgets.
s 7ITHIN THE CONTEXT OF SHARED RIVERS AND LAKES IN AN IDEAL CASE THEY HAVE TO BE COMPATIBLE
or harmonized with other basin or sub-basin authorities with jurisdiction over the river/lake
basin.
6. The establishment of a basin-level institution is a learning process from past experiences, failures and
successes.
s %VALUATE PAST EXPERIENCES PARTICULARLY WITHIN THE COUNTRY OR IN SIMILAR COUNTRIES IN TERMS OF
what went well and what went wrong.
s #ONSIDER THE ADVANTAGES AND DISADVANTAGES OF A BASIN ORGANIZATION AND RESPOND TO REALITIES
on the ground in terms of water management.
93
s %STABLISHING A BASIN ORGANIZATION SHOULD BE ACCOMPANIED BY A CAPACITY
BUILDING AND LEARN-
ing process within the institution.
7. When setting up a basin institution, an essential institutional foundation, including a clear mandate, a
long-term strategy, a clear organizational structure, and a clear definition of roles and responsibilities
of the staff, must be established. Basic parameters such as consistency with national objectives, rec-
ognition of subsidiarity and customary law, and appropriate funding mechanisms must be followed.
8. Independently of the management structure, it is critical to establish an effective coordination
mechanism among institutions with responsibilities over different sectors of water management.
s 4HIS COORDINATION MECHANISM CAN BE A COUNCIL A COMMITTEE A COMMISSION OR AN AGENCY AND
its composition will vary according to the political realities of the country.
s )TS GOAL IS TO COORDINATE THE ACTIVITIES OF THE DIFFERENT INSTITUTIONS RELATING TO WATER MANAGE-
ment.
s )T CAN BE A DISCUSSION FORUM WITH CERTAIN DECISION MAKING POWERS BUT IT HAS TO BE REPRESEN-
tative and inclusive of all the water governance levels within the country.
9. The constant tension between the need for smaller local institutions directly answerable to stake-
holders, basin institutions with a more integrated vision of the whole river basin, and national bodies
ensuring consistency to national objectives and international obligations can only be addressed by a
number of institutions at different levels and with different mandates.
s 2ECOGNIZE THAT A CERTAIN LEVEL OF INSTITUTIONAL DISPERSION IS UNAVOIDABLE
s The complexity in terms of jurisdiction (local, municipal, basin, national, international) cannot
be managed effectively within the scope of a single institution.
s #OORDINATION MECHANISMS AMONG INSTITUTIONS SHOULD BE ESTABLISHED AS WELL AS MONITORING
compliance and enforcement mechanisms for all the institutional levels.
10. Achieving an effective water governance system is not just adopting the right institutional structures,
but also making a commitment to accountability, transparency, and the elimination of corruption.
s ! COHESIVE AND SOLID INSTITUTIONAL FRAMEWORK FOR WATER IS A PREREQUISITE TO ACHIEVING AN
effective water governance system that delivers on IWRM goals.
s ! WELL DESIGNED INSTITUTIONAL FRAMEWORK THAT RESPONDS TO COUNTRY REALITIES IN TERMS OF WATER
availability, distribution, geographical realities and jurisdictional boundaries, is the best
assurance to deliver on the country’s policy priorities.
s %LIMINATION OF CORRUPTION DEPENDS ON SEVERAL FACTORS GOVERNMENTS COMMITMENT AND THE
stakeholder’s trust in the political system, proper devolution of authority, empowerment
of civil society, a system of fees and penalties and a timely and effective administration of
justice (due and timely process).
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95
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Chapter 5
Implementing Water Governance Capacity
5.1 Enabling implementation
Effective water governance depends in large part on achieving an overall balance among the
components of water governance capacity - policy, law and institutions. Combining water gover-
nance capacity with a strong enabling environment and basing both on a respect for traditional
norms and values can produce effective governance outcomes (see Figure 5.1).
An enabling environment is characterized by transparency, certainty, accountability and a lack
of corruption. Such an environment is needed for successful implementation. Implementation needs
to be enabled by designing effective regulations and negotiations to achieve compliance with water
management goals, as well as applying incentives and monitoring progress. Finally, implementation
needs to be backed by enforcement mechanisms, through both dispute-resolution systems and the
courts.
“DEVELOPING POLICIES, LAWS AND INSTITUTIONS IS A PRELUDE
TO GOVERNING”
5.1.1 Trust and the rule of law
Developing policies, laws and institutions is a prelude to governing. All manner of social water
arrangements must be accommodated when governing, including laws, regulations, deals, contracts,
verbal agreements, and any kind of agreement between parties over issues related to water manage-
ment. For individuals, agencies, organizations or corporations to feel comfortable making these social
arrangements, they need three things: transparency, certainty and accountability – in brief, honest
governance that abides by the rule of law. If these intangible necessities are present, corruption can
be held at bay. If the system of governance is corrupt, the types of regulations and negotiations
needed for effective implementation will be very difficult to achieve. Conversely, improving transpar-
ency, certainty and accountability will hinder corruption. Chapter 2 described how these elements can
be woven into policy. Here they are followed in implementation.
Corruption is ‘the misuse of the office for private gain. The office is a position of trust in which
one receives authority in order to act on behalf of an institution, be it private or public, or non-
profit’.35 Misuse and misallocation of resources negatively affects water governance because actors
will not engage if they cannot trust in law, contracts and enforcement mechanisms.
Transparency
Transparency ‘allows stakeholders to gather information that may be critical to uncovering
abuses and defending their interests. Transparent systems have clear procedures for public decision
making and open channels of communication between stakeholders and officials, and make a wide
range of information available’.36 Transparency is achieved by:
s ! SYSTEM THAT PROMOTES PUBLIC PARTICIPATION AND A FREE PRESS
s !N EFFECTIVE INFORMATION FLOW
97
s &REE OR LOW
COST ACCESS TO INFORMATION
s 2EADILY AVAILABLE PERTINENT AND ACCURATE INFORMATION
s /PEN CHANNELS OF COMMUNICATION BETWEEN ALL THE STAKEHOLDERS INVOLVED IN WATER MANAGE-
ment.
Transparency can be fostered by public participation, by involving the public in the decision mak-
ing process, and in the monitoring stages of any water arrangement schemes (Box 5.1). A free press
will shine a light on any dubious practices carried out by institutions. Transparency is reinforced by
a proactive investigative media, which itself hinders corruption.
Figure 5.1 Combining water governance capacity with a strong enabling environment con-
tributes towards achieving effective water governance
98
Box 5.1 Steps to foster transparency 37
1. Assessment and monitoring: Understand the types and scale of corruption and the degree of transparency
in local governance. Create a baseline against which progress in improving transparency, increasing public
awareness, and mobilizing a constituency committed to tackling corruption can be measured.
2. Access to information: Take measures to improve stakeholders’ access to information so that they may
participate in decision making more effectively.
3. Ethics and integrity: Clarify what is expected from professionals. Include monitoring mechanisms to ensure
they adhere to their commitments and are sanctioned if they break public trust.
4. Institutional reforms: Streamline and simplify administrative procedures and structural innovations to pro-
mote participation and accountability.
5. Targeting specific issues: Use specific issues as entry points for improving transparency. These issues must
be important in terms of local development and have the potential to serve as rallying points for positive
changes in local governance. These same issues can also be vulnerable to corruption.
Certainty
The higher the level of certainty for any given transaction, the greater is the willingness of stake-
holders to participate. Under doubtful circumstances, stakeholders are not motivated to participate
because they cannot predict the outcome. Certainty is fostered by rule of law, access to redress in
courts and the absence of corruption. Certainty is achieved by:
s %FFECTIVE IMPLEMENTATION OF THE LAW
s ! PROCESS TO AMEND THE LAW
s ! SYSTEM OF REGULATIONS TO ORDER SPECIFIC TRANSACTIONS
s ! STRONG JUDICIAL SYSTEM
s !BILITY TO SEEK RECOURSE FOR DAMAGES
s !LTERNATIVE DISPUTE
RESOLUTION MECHANISMS
“CERTAINTY IS FOSTERED BY RULE OF LAW, ACCESS TO REDRESS
IN COURTS AND THE ABSENCE OF CORRUPTION”
Accountability
Officials must be held accountable for their actions according to the rules of their office. Private
water users should be held accountable for their water use, and industrialists for their water use and
pollution. Those who violate the laws and regulations must be brought to justice.
Accountability is increased by effective supervision and monitoring both of data and information
on water resources and contracts. Low levels of corruption are also critical, meaning that the rule of
law treats everyone the same without favour. Steps to promote accountability include:
s %NSURE PUBLIC TRUST AND CONFIDENCE THROUGH MEETING COMMITMENTS FOR PLANNING AND MANAGING
water resources and addressing social and environmental issues.
s 3ECURE COMPLIANCE WITH ALL LAWS AND REGULATIONS GENERAL OR PROJECT
SPECIFIC AT ALL STAGES OF
the water resources development and management.
s Establish an appropriate ‘mix’ of regulatory and non-regulatory measures, including incentives
and sanctions.
99
s %STABLISH AND ABIDE BY STRICT ANTI
CORRUPTION POLICIES AND REGULATIONS
s )MPLEMENT ANY AGREED PLAN TO COMPENSATE FOR LOSS OF INCOME OR PROPERTY DUE TO WATER DEVEL-
opment in a timely and correct manner.
s Establish independent review panels to safeguard outstanding social and environmental
matters.
“THOSE WHO VIOLATE THE LAWS AND REGULATIONS MUST BE
BROUGHT TO JUSTICE”
5.2 Regulations
Regulations (in some cases called bylaws or guidelines) are specific rules, derived from laws. They
are the means by which laws are implemented in daily life. Regulations are the ‘rules of the game’
and must be clear to all if the system is to function smoothly. Whereas a constitution gives a country
or a state (in a federation) an overall structure to its legal system, and its laws describe the rights and
duties of the government and citizens in general terms, regulations give specific practical and techni-
cal detail to the law. In some countries, regulations contain specific instructions for the application
and enforcement of law, which are enacted by the executive. If these regulations are not enacted,
the effectiveness and practical implementation of law can be compromised.
In the case of framework or umbrella laws, regulations in the form of bylaws are also needed,
as is also the case with framework treaties, where detailed provisions are defined via protocols.
Framework or umbrella laws are a recent legislative technique used in environmental manage-
ment, which are designed to cover a wide spectrum of cross-sectoral issues, and facilitate a more
coordinated approach on environmental management issues. This type of legislation lays down the
basic legal principles without attempting to codify, and generally includes a declaration of the main
objectives and policies to be established and defined. It delineates the main bodies and institutions
and the establishment of decision making procedures applicable to a variety of sectors. There is no
clear-cut division between framework laws and comprehensive laws, as some laws have elements of
both types of legislative techniques. An important feature and advantage of framework laws is that
details can be left to be determined when regulations are set, avoiding longer legislative processes.
“REGULATIONS ARE THE RULES OF THE GAME”
5.2.1 Writing regulations
All regulations are tied inextricably to the laws enabling them and are more easily changed or
revoked than the laws themselves. Administrative agencies, with a mandate to regulate in a given
area from a specific law passed by the legislative branch, may propose a new regulation or modifica-
tion or elimination of an existing regulation. While legal systems differ procedurally, generally notice
is given of a proposed new regulation and a period for public comment is set during which affected
groups may voice concerns or support for the new regulation, followed by the agency’s responses
and promulgation of the final regulation. In their regulatory proposal and response to public com-
ments, agencies are tasked with providing factual justification for the regulation. Affected individu-
als or groups may bring a lawsuit challenging the rule in either an administrative court or a judicial
court, generally depending on the language in the law enabling the regulation. In case of regulatory
challenges, courts will generally give wide discretion to agencies in their decision making powers.
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Case 5.1 U.S. Environmental Protection Agency Water Pollution Regulations
Pursuant to the Clean Water Act
In 1972, the U.S. Congress passed the Clean Water Act (CWA), which had among its various goals to make US
waters ‘fishable and swimmable by July 1, 1983’, the ‘total elimination of discharges by 1985’, and stated that
‘No person may discharge any pollutant into waters of the U.S. without a permit’. The CWA created a two-tier
pollution regulatory system in which the federal government promulgates technology-based standards and
state governments set water quality standards, subject to federal approval. In dealing with point-source pollu-
tion, the federal Environmental Protection Agency (EPA) sets pollutant level regulations and permit guidelines
as well as delegates authority to certain states to issue permits, and the EPA issues specifications for control
technology standards outlined by Congress in the CWA. Regarding non-point sources, state environmental
agencies set ‘total maximum daily load’ regulations as well as comprehensive management and evaluation
programmes, all of which are then subject to EPA approval.
In a federal context, complex political, legal, institutional and administrative structures create
further challenges. Case 5.2 exemplifies different legal instruments that must be put into place in a
national context, including a call for regulations, in order to provide effective water management.
Case 5.2 Applying water governance in a federal context: the case of Argentina 38
The National Constitution of Argentina establishes a division of powers between different government levels:
the federation (nation), the provinces (or federated States), the autonomous city of Buenos Aires, and the
municipalities.
According to the constitution, provinces have all the powers not delegated to the Federation, meaning by
that, the powers of the federation are higher than that of the small provinces, but exceptional in character.
And this also applies to water, bearing in mind that according to the constitution, each province owns the
natural resources located within its territory and, as a result, adopts its own water laws and water codes which
regulate water management, water quantity and quality. There are certain powers, however, that are shared
between the provinces and the federation. This is the case with navigable waterways, for which the federation
regulates issues relating to navigation, but the provinces regulate water quality and quantity in those rivers
located within their boundaries.
An area of power delegated by the provinces to the federation is the establishment of minimum standards
for the environmental protection, including for waters. The exercise of this power by the federation is limited
by the provincial power over the natural resources located within their territories. provinces can then adopt
complementary rules that are stricter than the minimum protection standards, but never less strict. Finally,
within the institutional legal structure, there are the municipalities. Municipalities are below the provinces
in terms of powers, but have a certain level of autonomy. Some water issues can be regulated via municipal
ordinances, such as drinking water services, or waste management.
Law 25688 (Environmental Management Regime of Waters) adopted in 2002 establishes minimum protection
standards for the rational use and protection of water. As a law on minimum standards, it applies at the federal
level, and the provinces are obliged to follow its provisions. Law 25688 regulates management of river basins,
stating that their management should not be subject to territorial division (i.e provincial), and that over-arching
basin committees should be established for those basins located within the territory of more than one province
(inter-jurisdictional basins). This has raised particular concerns for example among the provinces, which see it
as their responsibility to establish those committees (and not the federation’s).
In addition to such difficulties in interpretation, there are problems with implementation. For example, a permit
is needed to use those waters regulated by Law 25688. The authorities need to establish water quality and
101
effluent standards, and prepare and update a National Water Plan (which needs the approval of Parliament) to
coordinate different basin committees. However, Law 25688 has not yet been regulated. As a result the law
has not been applied and put into effect. The application of Law 25688 is therefore seriously compromised,
and the Ombudsman has already enacted a resolution requesting the Chief of Cabinet to adopt the necessary
provisions for the application of this law and other similar ones establishing minimum environmental protection
standards for the whole country.
5.2.2 Including incentives
Regulations need not always prohibit actions. They can instead provide incentives for people or
organizations to behave in ways that benefit good water management. In recent years, a number
of countries have turned their attention to economic instruments to create incentives for effective
compliance and enforcement. These instruments are not limited to taxation and subsidies but include
a variety of types of payment schemes for watershed services. Some of these schemes are described
in Chapter 3 and in the IUCN-WANI toolkit PAY which provides guidance on how payment schemes
can be used to create incentives for sustainable management of watersheds.
Case 5.3 “Cánon ambiental de vertidos”
In recent years, Costa Rica has been working on the design and implementation of a new regulatory instru-
ment called Cánon Ambiental de Vertidos geared towards a significant reduction in pollution of surface waters
through economic incentives. Based on the ‘polluter-pays principle’, it will charge those organizations/bodies
that, through transportation or waste discharge, have a negative impact on water resources, associated eco-
systems and human health. The cánon is not based on a fixed payment, but is proportional to the intensity
of the water use. Starting from a pollution baseline in a river basin, (and with the aim of lowering pollution),
the cánon is imposed so that users do not exceed a pollution target, or so that pollution is gradually reduced.
Funds collected through this system have to be re-invested within the basin: 60 percent in domestic sewage
treatment, 15 percent in promoting the use of clean technologies and capacity building, 10 percent in monitor-
ing pollution sources, 10 percent in managing the cánon system, and 5 percent in funding activities relating
to environmental education.
Before good water governance systems create new incentives for efficient water usage, they should first
remove any pre-existing ‘perverse incentives’ encouraging inefficient water usage. Many governments do not
treat water as a scarce natural resource but subsidize both urban and rural water usage. Agricultural users are
often not charged for irrigation water or they are subsidized in dry countries, resulting in water scarcities. The
cost of water in cities is also often subsidized, as it typically does not include delivery costs. Money saved from
eliminating wasteful subsidies could be converted into more useful subsidies for poor and disaffected groups.
Incentives are an integral part of effective water policy reforms. For example, by allowing users to own and
in some areas to trade such rights among individuals and water user groups, governments can encourage
efficient water usage. Privatizing and regulating urban water services also improves efficiency and encourages
conservation and investment in water conservation and recycling sectors. Finally, because market-based price
incentives offer a dynamic means of valuing resources, rather than a static ‘one price for all you can use’ sys-
tem, they can adapt to evolving circumstances.
Table 5.1 lists some of the current forms of economic incentives that have been successful in
some places.
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Table 5.1 Economic incentives for watershed service maintenance
Economic incentive Characteristics
0RIVATE PAYMENT SCHEME s ,OWEST LEVEL OF GOVERNMENT INTERVENTION
s @0RIVATE REFERS TO PROFIT SEEKERS AND INDIVIDUALS
s 0RIVATE ENTITIES AGREE AMONGST THEMSELVES TO PROVIDE PAYMENTS IN RETURN
FOR MAINTENANCE OR RESTORATION OF A WATERSHED
#AP AND TRADE SCHEMES s ! @CAP IS DETERMINED BY THE GOVERNMENT OR A VOLUNTARY MARKET SYSTEM
s 0ERMITS OR CREDITS ARE ALLOCATED AMONG POLLUTERS
s ! MARKET IS DEVELOPED FOR EXCHANGING PERMITS AND CREDITS
#ERTIFICATION SCHEMES OF s 0AYMENT EMBEDDED IN THE PRICE PAID FOR A TRADED PRODUCT
ENVIRONMENTAL GOODS ECO
s "UYERS PAY FOR PRODUCTS THAT COMPLY WITH ENVIRONMENTAL STANDARDS
LABELLING s (IGHEST LEVEL OF GOVERNMENT INTERVENTION
0UBLIC PAYMENT s "UYERS ARE PUBLIC AUTHORITIES
s 3PECIFIC MECHANISMS INCLUDE USER FEES LAND PURCHASE AND LAND EASEMENT
5.2.3 Penalties
Regulations must clearly state what comprises a violation of the law and the sanctions for non-
compliance. Examples of violations may include:
s ,ICENCE AND PERMIT CONTRAVENTIONS
s 5NAUTHORIZED USE OF WATER
s 4AMPERING WITH THE QUALITY OR QUANTITY INCLUDING FLOW RATES OF WATER RESOURCES
s 5NLAWFUL CONSTRUCTION OF WATER INFRASTRUCTURE SUCH AS DAM CONSTRUCTION
s &AILURE OR REFUSAL TO FURNISH DATA OR INFORMATION OR FURNISHING FALSE OR MISLEADING DATA OR
information.
s /BSTRUCTING A 3TATE AGENT OR INSPECTOR IN THE EXERCISE OF ANY STATUTORY POWER OR DUTY
s 5NLAWFULLY AND INTENTIONALLY OR NEGLIGENTLY COMMITTING ANY ACT OR OMISSION WHICH ACTUALLY OR
potentially pollutes a water resource.
s #ORRUPTION AND FRAUD
“REGULATIONS MUST CLEARLY STATE WHAT COMPRISES A VIOLA-
TION OF THE LAW AND THE SANCTIONS FOR NON-COMPLIANCE”
Each violation should carry a penalty of a nature and gravity appropriate to the seriousness of the
violation, the consequences, presence of hazardous or toxic substances in an unlawful discharge, mon-
etary benefit to the non-complying party and duration of the violation. Penalties may include a range
of administrative or criminal fines, imprisonment, or both. Personal liability on the part of company
103
directors or managers may also be considered for inclusion in a new water law. Discharging pollution
into a public water body is perhaps the most obvious case for imposing a fine (see Case 5.4).
Case 5.4 Wastewater discharge fees in Colombia
In Colombia, regulations impose discharge fees on any point of wastewater discharge that releases certain
effluents into a water source. The objective is to reduce waterway pollution by imposing penalties (the dis-
charge fee) on polluters.
The national system of discharge fees was created by Law 99 in 1993 and later implemented through Decree
901 (a regulation) in 1997. The decree granted certain water management duties to 33 regional environmental
authorities called Corporaciónes Autónomas Regionales (CARs). The jurisdiction of each CAR was determined
not by political boundaries, but rather by natural ecological delineations. By national decree, the CARs were to
inventory all facilities discharging wastes that produce biological oxygen demand (BOD) and total suspended
solids (TSS), and to map all key water basins so that five-year pollution reduction goals for aggregate discharges
could be set and regulated.
Polluters who exceed set discharge limits are required to pay a per-unit excess discharge fee starting at a mini-
mum rate that is adjusted upwards as pollution reduction targets are continually not attained. As pollution
reduction targets are made more stringent over time, discharge fees can become increasingly harsh for sources
that are unable or unwilling to implement technology that will allow them to meet the BOD/TSS standards.
Revenues from collection of discharge fees are retained by the CARs, thus promoting local enforcement.
The efficacy of the discharge fee programme has been questioned by some and lauded by others, but between
1997 and 2003, nationwide BOD discharges from point sources in Colombia decreased.
In order to mitigate any unnecessarily punitive effects, penalties may be capped at a given
amount if the infraction is a minor violation or results from failing to report unknown spills. Similarly,
reductions of a given percentage from the normal penalty are possible if the party committing the
discharge undertakes good-faith mitigation efforts according to an environmental management
system. Parties entering into settlement agreements (and possibly agreeing to environmental project
investment) may have their penalties reduced in order to facilitate quick litigation and remediation
of the area.
“PENALTIES MAY BE CAPPED AT A GIVEN AMOUNT IF THE
INFRACTION IS A MINOR VIOLATION”
Case 5.5 Environmental penalty regulations help to protect Ontario’s water
sources 39
Environmental regulations help to reduce industrial spills in Ontario by giving the Ministry of Environment the
power to impose monetary penalties on companies that pollute land or water. Additional regulations require
facilities subject to environmental penalties to prepare spill prevention and contingency plans and codify spill
reporting requirements already in practice.
The Environmental Enforcement Statute Law Amendment Act, passed in June 2005, amended the
Environmental Protection Act (EPA) and the Ontario Water Resources Act (OWRA). These amendments allow
the Ministry of Environment to impose financial penalties in response to unlawful industrial spills, unlawful
discharges and other related environmental contraventions. Environmental penalties give the Ministry a remedy
that can be applied swiftly, to encourage quick and effective compliance with Ontario’s environmental laws.
104
Environmental penalty regulations apply to 148 facilities in nine industrial sectors whose operations discharge
directly into a surface water body. The nine sectors include petroleum, iron and steel, industrial minerals,
inorganic chemicals, organic chemicals, and pulp and paper. They also include metal mining, metal casting,
and electric power generation facilities. The facilities that are subject to environmental penalties account for
a significant portion of reported industrial spills on land and water from year to year. In 2003, these opera-
tions accounted for 30 percent of reported industrial spills on land and 64 percent of reported industrial spills
into water. In 2004, they accounted for 30 percent of reported industrial spills into water and 37 percent of
reported industrial spills on land.
The fines against companies that violate the law will be based on a number of factors related to the type of
violation and the seriousness of the violation. Types of violations include improper reporting and record-keeping,
exceeding discharge limits of certain substances and unlawful spills. Average penalties are expected to be about
CAD $1,000 for administrative violations and CAD $10,000–20,000 for unlawful spills and spill-related viola-
tions. The size of a penalty is determined by an assessment of:
s 4HE GRAVITY OR THE SERIOUSNESS OF THE VIOLATION AND ITS CONSEQUENCES
s The monetary benefit, if any, that the facility has gained from non-compliance with Ontario’s environmental
laws.
s 4HE NUMBER OF DAYS THE VIOLATION CONTINUES
The presence of a toxic substance in an unlawful spill or unlawful discharge increases the gravity portion of the
penalty by 35 percent. The “Environmental Penalties – Code of Toxic Substances” provides a list of 113 toxic
substances that would result in such an increase.
Revenue collected from environmental penalties is deposited into a Special Purpose Account. All revenue col-
lected will be made available to communities affected by spills for remediation, restoration and related purposes.
Environmental proposals from community organizations will be accepted every year and will be assessed by
technical experts to ensure they meet the criteria. As the Environmental Protection Act also requires polluters
to compensate for losses or damages that result from spills, the fund is not required for compensation of the
victims of spills and spill-related violations.
5.2.4 Covenants and negotiations
Regulations, whether they prohibit behaviours by imposing penalties or encourage them by
offering incentives, are created in a hierarchical relationship in which governors direct the activities
of the governed. In contrast, some organizations are considering the use of another type of power
arrangement in which parties are equal partners in a negotiated agreement or covenant that benefits
all involved.
In a negotiated agreement or contract, violation of the terms of the contract by one party usu-
ally releases the other parties from their obligations. A covenant, a concept with a long history, ‘is a
mutual promise of two (or more) parties that is valid independently of whether the parties deliver on
their promise or not. This gives a covenant a higher, more solemn validity than an ordinary contract,
treaty or convention’. 40
In the field of international law, the term ‘covenant’ refers to agreements in which one party’s
non-performance does not affect the other party’s duty to perform, unlike in a classic contract, in
which rights and duties are mutually linked. Declarations, charters, compacts, conventions, manifes-
tos, constitutions, treaties and even contracts may carry forward disguised forms of covenants and
aspirations. ‘Compacts’ share with covenant, for example, the expectation that parties are obligated
to respond to each other beyond the letter of the law, and both require mutual consent to be abro-
gated, designed as they are to be perpetual.
105
It has been theorized that all forms of contract between citizen and state involve more than
mere mutual self-interest in order to be binding, and that ‘social contracts’ were therefore deep,
sacred agreements reflecting moral relationships believed to be inherent in reality itself. Indeed, no
community can long be governed without some form of mutual trust or covenantal bond that pro-
vides identity and purpose to its members and that is judged a fair distribution of powers, benefits,
rights and obligations. No covenant can be successfully formed and kept that does not provide for a
constitution or other legal structure institutionalizing the norms and political processes (or govern-
ment), by which decisions regarding the relationships between the parties to the covenant will be
made and implemented.
In addition to formal written promises officially recognized by governments, compacts and
covenants can also originate from systems of local community customs and unwritten agreements.
Indeed, as a general rule, the more localized a system is, the less formally regulated is the system of
water governance (see Case 5.6).
Case 5.6 Water governance by covenant in the community of Pijal, Ecuador 41
The northern Ecuadorian indigenous community of Pijal, population 1,138, is organized communally and has
an unofficial system of local governance that includes elements of parliamentary, judiciary and administrative
branches. The community assembly (Asamblea de la Comunidad) is a parliamentary body with the highest level
of decision making power and includes all members of the community government. Under the Asamblea is the
Cabildo (a combined administrative-judicial branch), beneath which sits the powerful Juntas de Agua (Water
Board), composed of the most honest citizens in Pijal. The Juntas de Agua convenes mandatory work parties
of community members when needed to perform maintenance on canals and ditches in the area, and imposes
fines or sanctions on members who do not participate.
Tensions over water in the community have risen in recent years due to the growing problem of drought in the
area, and year-round reductions in water flow occurring simultaneously with a growing population. In order to
control theft of water (i.e., taking more than the amount allotted each family for US$ 0.50 a month), the com-
munity has instituted a graduated system of penalties, which includes fines for one-time offenders and tem-
porary or permanent suspensions of water access for repeat offenders. The Asamblea hears and adjudicates
water access conflicts between members of a single community. In the case of conflicts between members
of different communities, representatives of those communities who understand the problem are convened
and allowed to propose solutions to the issue, which is decided by a vote. The system is not recognized by
the Ecuadorian government, but community members maintain that Pijal’s water governance mechanisms are
accepted by the community, as the underlying concepts and values are understood by all, and punishments
determined by the Asamblea General reflect this understanding.
The basis for agreement of covenants is negotiation. A negotiation requires a process in which
the parties involved come together to bargain and trade off within their positions aiming to reach
an agreement over a disputed or potentially disputed matter. As demonstrated in the IUCN tool-
kit NEGOTIATE, facilitated processes of negotiation can help to build consensus among parties.
Negotiation is thus a means to an end, but in order to be fruitful, the parties involved must be
autonomous, while recognizing that there are commonly imbalances in power among parties. Such
imbalances can lead to manipulation of processes in favour of the stronger parties. Thus, capacity to
negotiate as equal partners must be addressed particularly when civil society actors negotiate with
stronger traditional players such as the government or the private sector.
106
“MONITORING AND INFORMATION MECHANISMS MUST BE
COORDINATED BETWEEN NATIONAL AND RIVER-BASIN LEVELS”
5.3 Monitoring and information management mechanisms
Monitoring and information management mechanisms are essential tools for enforcement, as
mentioned earlier in Chapter 3 on law and Chapter 4 on institutions. The extent to which this data
is made publicly available may support compliance greatly by helping water users who are subject to
the law’s requirements verify that they are meeting their obligations and to understand the implica-
tions if they fail.
What should be monitored?
s Physical parameters such as water quality, aquatic biodiversity and habitat must have a baseline
established. Ongoing assessment must then be made using the same measurement to deter-
mine if they are improving or deteriorating.
s (EALTH VARIABLES SUCH AS ACCESS TO SAFE DRINKING WATER AND SANITATION AND INCIDENCE OF WATER-
borne diseases.
s %CONOMIC VARIABLES SUCH AS COSTS TO THE GOVERNMENT AND CONSUMERS OF PROVIDING WATER SEWER-
age and hydropower.
s 0ROGRESS TOWARDS GOALS SET IN FIVE
YEAR PLANS OR ANY OTHER GOVERNMENT WATER PROGRAMMES
These might include the number of water user groups formed, number of additional homes
served by sewerage, or agreements reached by various partners.
s Compliance with pollution regulations such as discharge limits or fertilizer use near waterways.
s %FFECTIVENESS OF ENFORCEMENT EFFORTS IN TERMS OF FEES COLLECTED COURT CASES WON OR COMPLIANCE
negotiated.
Monitoring and information mechanisms must be coordinated between national and river basin
levels. Given the highly technical nature of monitoring, the results should be expressed in terms that
are understandable to lay people.
The costs of monitoring can be high as they are not limited to the installation, operation and
maintenance of the necessary infrastructure to support monitoring mechanisms but also extend to
training and administration.
“THE COSTS OF MONITORING CAN BE HIGH”
5.4 Compliance and enforcement
Compliance refers to the conformity of society to the obligations agreed to in water arrange-
ments. When the parties involved are willing to meet their obligations, enforcement is not such an
issue.
Enforcement, which is necessary when voluntary compliance fails, fosters security amongst stake-
holders because each party knows that if the other party does not abide by the agreement, there
are specific mechanisms to force compliance. The State may use police action to assure compliance
with a specific law or act.
The incorporation of appropriate regulatory mechanisms to support compliance is accomplished
in part by clearly and concisely defining the rights and obligations of all water users (public and
107
private) as well as the State. As discussed in Chapter 3, this may be achieved through the creation
of a system that secures ‘property rights’ to use water. Firm rights can also be established through
permit or licensing systems, judicial procedures or customary practices. Clear rights and obligations
may also arise indirectly under other legislation with implications for water resources, such as in the
case of the Endangered Species Act in the United States.
“ENFORCEMENT, WHICH IS NECESSARY WHEN VOLUNTARY COM-
PLIANCE FAILS, FOSTERS SECURITY AMONGST STAKEHOLDERS”
The objective of incorporating appropriate compliance mechanisms in a water law is greatly
enhanced by measures that ensure a high level of public participation prior to administrative decision
making, as well as the right to be heard after decisions have been taken by the authorities. Compliance
is also strengthened by incorporating transitional arrangements in legislation that provide opportuni-
ties for civil society to arrange their affairs before a new law takes full effect. Such arrangements are
often overlooked, however, in the introduction of a new water law regime.
Case 5.7 India’s 1974 Water Pollution Act: a failure of enforcement
India has a strong water law and judiciary. However, they have proved insufficient to address serious sources of
pollution. In 1974, India enacted the Water (Prevention and Control) Pollution Act, which created the Central
Board and State Boards for Pollution Control and contains specific provisions for restrictions on new outlets
and new discharges, rules on existing discharge of domestic sewage or industrial waste waters and emergency
measures for response to pollution of streams or wells. The Act also gives the Boards powers to apply to courts
for orders to stop pollution of water in streams or wells. The state governments have no enforcement powers
under the Act beyond the mere power to declare an area as a ‘water pollution, prevention and control area’.
The Act licenses pollution by obliging anyone undertaking a potentially polluting activity to obtain permission
before the discharge is allowed. Enforcement provisions enable punishment of a company or a government
department committing an offence under the Act.
The implementation of the Water Act has been slow because of problems with compliance and enforcement.
Laws and judicial decisions have not been supported by the appropriation of the public monies needed to
reduce waste discharges and support compliance. Cities have spent millions on complying with court rulings
by constructing new sewage treatment systems but continued population growth has rendered the expendi-
ture ineffective. Enforcement under the Act has been seen critically as ‘policing society’. Low conviction rates
together with the reluctance to prosecute have also led to questioning of the use of criminal law as a tool for
preventing water pollution. It has been argued that criminal liability may not be an appropriate deterrent.
There is a view that the Act has been weakened because compliance and enforcement mechanisms under the
Act predominantly use a command-and-control approach that has resulted in high-cost regulatory structures.
5.4.1 Enforcement mechanisms
Enforcement mechanisms aim to ensure that justice can be efficiently attained when contraven-
tion of the law occurs. Whilst most often expressed as punitive sanctions, enforcement mechanisms
may also include prior notice and abatement measures and, in appropriate circumstances, search and
seizure powers. These mechanisms are not limited to State or administrative action, but may also
enable enforcement actions by citizens, for example through civil actions in the judicial system and
‘whistle-blowing’ procedures.
108
In the context of water governance, international experience has demonstrated that the most
effective enforcement is rendered by well funded and well resourced administrative systems overseen
by accessible and affordable judicial systems.
Water law may be significantly enhanced by including detailed guidance for enforcement agents
and prosecuting authorities on how violations of the law can be proved. These can be provided in
practice notes or guideline documents, for example, that describe the scope of the investigation
needed where there is a suspected violation and the evidence needed for prosecution.
Entry and inspection powers are proactive mechanisms for compliance and enforcement. It is
important, however, that private property and privacy rights (as well as safety and security concerns)
in addition to other relevant constitutional provisions are properly protected. It is essential, there-
fore, that entry and inspection powers are clearly described and limited to persons duly authorized
to exercise such powers.
Consideration should be given to the circumstances in which prior notification and authorization
of inspection by a court or other independent tribunal (for example, by way of a warrant) is required.
This is particularly important when criminal prosecution may follow an inspection activity. In certain
situations, an inspector may require the assistance of other persons or technical equipment – these
should also be specified. In addition to gaining access to private property, an inspector may also
require access to a particular infrastructure such as a dam, levee, weir or water piping. Specification
of such detail in the law not only ensures certainty as to the powers of an inspector but also provides
the necessary information to those required to comply with the law.
Often overlooked is the nature of the forensic, technical or other evidence that is necessary to
prove guilt beyond reasonable doubt in the case of criminal violations of the law. Resources for
gathering evidence are essential to enable prosecutions. The law should therefore support the use
of expert witnesses to assist and guide the courts (or any other appropriate independent tribunal) in
the course of the presentation of evidence, for example.
5.4.2 Alternative dispute-resolution mechanisms
Administrative, judicial and alternative dispute-resolution systems, such as arbitration and
mediation, provide access to justice and the information necessary to enable direct or indirect citi-
zen enforcement claims as an alternative to adversarial court proceedings. Specifically for the water
sector, such mechanisms have taken the form of special water tribunals or alternative independent
tribunals to deal exclusively with water disputes.
Special water tribunals may be an adjunct to the official judicial system or may be established as
a separate administrative tribunal. The viability of such jurisdictions will depend on the requirements
of constitutional and legal circumstances. The affordability of public access to such a forum is a critical
consideration in determining its effectiveness and viability.
In Valencia, Spain, a centuries-old water tribunal now operates within the modern administrative
and legal framework and continues to be effective in settling disputes (see Case 5.8).
Case 5.8 “Tribunal de Aguas de Valencia”, Spain
The Tribunal de Aguas de Valencia is a long-standing, customary water institution that takes place at Valencia
Cathedral every Thursday. It was established by Jaime I in the 13th century to regulate the distribution of
irrigation water from the River Turia.
109
The water tribunal is recognized in Spanish law with full authority to decide on conflicts between users of the
Valencian irrigation network and with full powers of enforcement. It has been criticized for disregarding the
principle in Spanish Law of centralized jurisdiction, but the trust of water users in the tribunal and the application
of principles and guaranties such as public appearance and speed and efficiency – have made it world-famous.
The tribunal is independent but administered within the Ministry of Public Works.
The judges are eight ordinary workers representing a different irrigation network or Comunidades de Regantes
who are elected to office for two years. They wear traditional smocks and hand down their sentences orally. It
is a civil tribunal and its decisions can take the form of a fine or other sanction . If voluntary compliance does
not occur then the tribunal can enforces its decision through the closure or confiscation of the water right.
There is no right of appeal. This tribunal is seen as a model of efficiency, as cases are solved rapidly.
Customary water law, although often ignored, can be an effective means of enforcing environ-
mental justice. Customary law can be successful in establishing water governance when formulated
by users at the local level in the absence or inefficiency of a water law, and where respected among
agreeing parties without the intervention of administrative authorities to enforce them. They are
non-formal norms and behaviours that are accepted by the community and that have endured over
time. The power of customary law normally derives from the community’s beliefs and values.
These water arrangements can be either verbal or written, and they constitute a special legal
category of so-called ‘soft law’. The term implies a quasi-legal status, meaning that they are not
legally binding. Nevertheless, local, rural chiefs play an important role as quasi judges, and their
rulings are complied with in the community.
“CUSTOMARY WATER LAW CAN BE AN EFFECTIVE MEANS
OF ENFORCING ENVIRONMENTAL JUSTICE”
Customary water law is particularly effective because local people are informed about avail-
able water resources, their water needs, and the importance of managing their water. Monitoring
processes are also more cost-efficient, due to the proximity between water users. Finally, the use of
customary water management law is cost-effective. Evidence shows that the regulation of customary
law does not need enforcement by external resources, which may be costly.
Customary water laws have most influence in many areas in the allocation of land and water,
and in the settling of disputes. They are seen by some as more successful in managing rural water
resources than imposing formal laws. This is the case where state-centred policies for managing
natural resources have failed for several reasons, including faulty design for resource management
programmes, inefficient implementation and corruption.
Case 5.9 Enforcement of customary water law 42
Some indigenous communities of Guatemala have developed their own water governance mechanisms for
water supply and other water priority uses, as well as for the protection of the resource. Human consumption
has a priority over other uses, and communities restrict monopolies or individual uses. The main features of
these governance arrangements, which are implemented through practices and customs inextricably linked to
a particular world vision, include:
s ! SYSTEM OF VALUES THAT INTEGRATES THE MANAGEMENT OF WATER AND FORESTS
s ! STRUCTURE OF AUTHORITIES BASED ON SENIORITY BRINGING TOGETHER LEADERSHIP AND AUTHORITY
110
s ! LEGAL SYSTEM THAT EMPHASIZES THE PROTECTION OF COMMUNAL FORESTS BECAUSE THESE FORESTS ARE DIRECTLY LINKED
to water supply sources.
s ! SYSTEM OF COMMUNITY MANAGEMENT BASED ON THE VOLUNTARY SERVICE OF THE COMMUNITY MEMBERS
All community members are responsible for their actions and can be reprimanded by the Mayor, or the deputy
Mayor. The deputy Mayor is responsible for overseeing the maintenance and distribution of water for human
consumption. In cases of serious breaches of rules, the community in plenary, through an assembly, will legiti-
mize actions to restore any damage.
“CUSTOMARY WATER LAWS ARE THE MOST INFLUENTIAL IN
LAND AND WATER ALLOCATION AND SETTLING DISPUTES”
5.4.3 Using the courts
Court cases can be expensive and time-consuming, but they are established to provide justice.
Ideally, any person or group afflicted by a water administration decision or action of another citizen
or group should be able to make a claim against such a decision or action. Such claims should be
made to the water administration or a regular judicial court, respectively. The water administra-
tion should be able to adjudicate cases relating to individual water rights, but cases against citizens
or groups alleging legal violations should have recourse that is more directed to regular courts of
the country or state. In the case of claims made against the water administration, a right of appeal
should be allowed, generally first to the administration chief on a technical or public interest basis,
then to the water management minister, then to either a water court or a regular court (for cases
involving alleged legal violations).
“IN THE CASE OF CLAIMS MADE AGAINST THE WATER ADMINIS-
TRATION, A RIGHT OF APPEAL SHOULD BE ALLOWED”
With striking similarity to the centuries-old water tribunals of Valencia (Case 5.8), recent water
laws in many countries of both common and civil law heritage have created specialized water courts
operating within the regular court system although exclusively addressing water disputes. The com-
petence of such courts may include:
s 2EVIEW AND ADJUDICATION OF WATER AGENCY ADMINISTRATIVE DECISIONS
Conflicts between private water rights claimants and/or (public or private) water administra-
tion agencies.
s 0ENALTIES AGAINST WATER LAW VIOLATIONS
s 7ATER COURTS GENERALLY INCLUDE A JUDGE SERVING AS COURT PRESIDENT AS WELL AS TWO SPECIALISTS IN
economic and technical issues, one of which could be appointed by the water administration
(see Case 5.10).
Case 5.10 Water Court in the District Court of Montrose, Colorado, USA43
The Colorado Constitution provides that all water belongs to the People of the State, but that anyone may lay
claim to a water use according to the common law doctrine of ‘First in time, first in right’. The Water Court of
Montrose, Colorado, was established to determine, in cases of multiple claimants for identical water, who has
111
first right of water use and what priority other users might claim. Upon filing of an application with the court,
the water clerk publishes a summarized version of the application in a newspaper located within the county of
the water claim. Interested parties then have two months from the application filing to enter the case by means
of filing a statement of opposition. The court clerk also sends a copy of the application to the state engineer,
division engineer and the water referee; the latter will visit the site to verify the application information. The
referee makes a recommendation to the water judge of whether the applicant has met the law and, unless
an interested party protests the decision within 20 days of the ruling, the judge signs the ruling and makes it
the court decree. Such a decree holds that the applicant complied with the law and is entitled to use a certain
amount of water for a given use within a defined priority. If an interested party protests, then the judge will
hear the case and decide independently on the issues raised.
Regional integration has also influenced the way in which the courts are being used in a national
context. In addition to the domestic courts of European countries, in 2000 the European Community
instituted additional protections for water users by means of the European Water Framework
Directive (WFD). The WFD provides a means of harmonization of water law in EU member states,
as it mandates what minimum levels of water protection countries must adjust their laws to follow,
common definitions of water quality and quantity status, and a timetable for legislation and entry
into force of laws required to meet the minimum threshold levels. If EU member states do not fulfil
the requirements under the WFD, they become liable to suit from the European Commission, which
can bring the member state before the European Court of Justice, seeking penalties and injunctive
measures requiring the member to act in accordance with the WFD.44
5.4.4 Standing
Court systems usually do not allow people to bring a case, or to have ‘standing’, unless they can
demonstrate that they have been personally harmed by the actions of another. However, many legal
systems allow indirect enforcement by citizens through filing of formal administrative complaints
or lawsuits. For example, in the United States, the Clean Water Act allows citizens to bring lawsuits
against polluters for on-going violations of effluent limitations. In Mexico, the denuncia popular
found in Mexican law allows citizens to lodge complaints with the responsible agency and to obtain
a formal response as to the status of enforcement. In China, direct political lobbying by NGOs has
been demonstrated as an indirect or alternative means of ensuring proper enforcement. In the Hubei
Province, the Green Han River NGO has mounted an aggressive campaign against water pollution
allegedly caused by a paper manufacturing plant and the authorities have responded by starting to
implement action to close down the factory.
5.4.5 Friend of the Court
The term Amicus curiae, or ‘friend of the court’, refers to someone – often an advocacy group
– who is not a party in the litigation, but who believes that the court’s decision may affect its inter-
est and therefore volunteers information on a point of law or fact in the case to assist the court in
deciding a matter before it. The information may be a legal opinion in the form of a brief, testimony
or a learned treatise on a matter that bears on the case.
The decision whether to admit the information lies with the discretion of the court or tribunal.
It is unquestionable that an amicus curiae brief that brings to the attention of the court a relevant
matter not already brought to its attention by the parties may be of considerable help.
112
Case 5.11 The Biwater Tanzania case
Non-profit legal advocacy organizations frequently submit an amicus curiae brief to advocate for or against
a particular legal change or interpretation. A coalition of NGOs recently filed such a brief in the Biwater
Tanzania case pending before an ICSID Tribunal (an arbitration tribunal under the auspices of the World Bank).
The dispute relates to the Tanzanian government and the British investor Biwater, concerning an agreement
for the provision of water services in Dar es Salaam from 2003–2005. In May 2005, the Tanzanian govern-
ment announced termination of the contract because Biwater had failed to provide clean drinking water to
millions of people in Dar es Salaam. Biwater is demanding compensation under the UK-Tanzania Bilateral
Investment Treaty.
The brief calls into question the responsibilities of foreign investors undertaking international investment agree-
ments, particularly where investments might affect human rights or sustainable development objectives.
This dispute shows how problematic foreign investment agreements are, particularly if they include investor-
state provisions, which allow investors to sue host governments in international tribunals and in this way
avoid submission to national law. It is argued in the brief that governments should be encouraged to refuse
investor-state provisions or investment provisions more generally, because by accepting a foreign investment,
governments accept that the investor will be allowed to operate under international law (and not necessarily
national law), with rights of access to natural resources. There is therefore a risk that the investment will not
meet local needs and compensation may be demanded under international law.
The court has broad discretion to grant or to deny the NGOs permission to act as amicus curiae. In principle,
an amicus curiae brief may be filed only if accompanied by written consent of all parties, or by leave of court
granted on motion, or at the request of the court. A motion of amicus curiae to participate in the oral argu-
ment is usually granted only for extraordinary reasons.
5.4.6 Civil penalties
Criminal sanctions should not be the only means of law enforcement. There should also be
provision for enforcement through civil actions, particularly in circumstances where third parties
may have suffered harm or loss because of a violation. Appropriate compensation mechanisms then
become relevant.
In South Africa, for example, the National Water Act authorizes a court, in the same proceedings
where a person has been convicted of a criminal violation, to enquire into harm or loss allegedly
suffered by a third party. Pleadings or the filing of additional and separate papers are not needed.
The Act merely requires that a third party make written application for such an enquiry. The State,
through the responsible Minister, may also make a similar written application. In both instances, the
enquiry must take place in the presence of the convicted person. After making a determination, the
Court is empowered to award civil damages – i.e., monetary compensation – for the harm or loss
suffered. It may also order the convicted person to institute appropriate remedial measures or to pay
the costs of measures that have been or will be implemented.
“CRIMINAL SANCTIONS SHOULD NOT BE THE ONLY MEANS OF
LAW ENFORCEMENT”
5.4.7 Injunctive relief
‘Supportive’ enforcement mechanisms should be included in a new water law, in addition to
criminal and civil sanctions. In some circumstances, rapid and highly efficient steps need to be taken
113
by a State agency. The availability of interdictory (injunctive) measures in a water law may assist in
achieving this goal. For example, a water law may provide an enforcement agency with powers to
apply to a court for an interim order for the cessation of a particular activity that presents a threat
to a water resource. Alternatively, in appropriate circumstances, an order may be sought compelling
a particular action or activity to prevent such threat. In addition, a water law may include the pow-
ers needed to suspend or withdraw a permit or licence while further investigation is done or while
waiting for a ruling by a court or any other appropriate independent tribunal.
“SUPPORTIVE ENFORCEMENT MECHANISMS SHOULD
BE INCLUDED IN A NEW WATER LAW”
Case 5.12 Court injunction provides relief to community with contaminated
water in Argentina
In 1987, the EDAR Bajo Grande municipally operated water treatment facility was opened on the banks of
Argentina’s Suquía River, 2km upstream from the Chacras de la Merced community. Because of the continued
growth of the nearby city of Córdoba, additional sewage connections were authorized, increasing the volume
of sewage going into the plant. Later, the plant began operating at approximately 70 percent of its original
capacity, but was receiving 600,000–800,000 litres of sewage that it could not treat, resulting in daily spills of
untreated sewage into the Suquía River.
The Centre for Human and Environmental Rights (Centro de Derechos Humanos y Ambiente, CEDHA) invited a
scientist from the National University of Cordoba’s laboratory to test the water quality around the facility. The
test results demonstrated that the concentration of fecal coliform in the river was 40 percent higher down-
stream from the facility, compared with upstream. Furthermore, tests taken from family wells in the Chacras
de la Merced community showed concentrations as high as 2,000 coliform bacteria per 100 millilitres of water,
far exceeding World Health Organization recommendations that there should be no fecal coliform in water
destined for human consumption.
To immediately secure safe drinking water for the community, CEDHA and community representatives pre-
sented the test results to the court and requested an injunction. The court ordered that ‘the municipality of
Cordoba adopt all of the measures necessary relative to the function of the EDAR Bajo Grande, in order to
minimize the environmental impact caused by it, until a permanent solution can be attained with respect to
its functioning; and that the Provincial State assure the injunction filers a provision of 200 daily litres of safe
drinking water, until public works be carried out to ensure the full access to the public water service.’ Thus
through an injunction the court was able to provide some relief to the community while that legal matter was
being addressed.
5.5 RULE: A framework for effective water governance
The workings of courts are just one component of the framework that water managers and policy
makers need to develop to ensure effective water governance arrangements that are sustainable,
equitable and efficient. The international discourse has set the tone for reform of water governance
to become more mindful of environmental limits (and opportunities) and more focused on distribut-
ing the rights and benefits of water in an equitable fashion. Water resources that are developed in
a way that is environmentally sustainable will outlast those that are depleted by overdevelopment
or ruined by pollution. Widespread access to clean water and sanitation inevitably improves people’s
health and productivity and ultimately the economic success of a country.
114
Reform of water laws is often attempted piecemeal with sometimes discouraging results. Instead,
a country needs to build a strong WGC as a means to achieving effective water governance. Water
governance capacity requires development of a coherent set of policies and laws, and strong institu-
tions to implement them through regulations, negotiations and incentives. Without the backbone
of national policy and law, other elements of reform may not provide a coherent whole or be able
to endure for long. Ideally a country goes through a process that moves from a vision of how water
resources should be managed to serve national goals, to a policy or set of policies that can implement
that vision. Thence, to laws that codify the policies and craft them in obligatory terms. This then pro-
vides continuity on down to negotiations, contracts, regulations and incentives that actually prohibit
or promote institutional or individual behaviours that produce the results foreseen in the vision.
“A COUNTRY NEEDS TO BUILD A STRONG WATER
GOVERNANCE CAPACITY AS A MEANS TO ACHIEVING EFFECTIVE
WATER GOVERNANCE”
Governmental and non-governmental organizations, civil society and the private sector interact
from the creation of the vision to the enforcement of regulations. Governments must always retain
their public-interest stewardship function for guaranteeing that water resources are managed for
the benefit of citizens and the national interest. Private companies may be contracted to provide
Photo 5.1 Public protest over water issues (Nicaragua). Governments must always retain their stewardship role
in guaranteeing that water is managed for the benefit of citizens and the national interest.
115
delivery, clean-up or construction services, and can often do so more efficiently than government
agencies, but they must be monitored by government agencies for cost, environmental and other
parameters that affect the public. Likewise non-governmental civil organizations can be partners
in delivering services. For example, many countries have committees of local farmers that maintain
irrigation works and allocate water amongst themselves. Civil society organizations can also give
meaningful input to every step of the WGC process from vision to enforcement. Citizen groups are
even known to use the courts to force government agencies to fulfil commitments made in policies
or laws.
Good water governance must not only have the right content (such as the environmental and
equity features described in the international discourse) and a strong capacity, but it must also have
certain process-oriented characteristics such as transparency, certainty and accountability. These
characteristics help reinforce the rule of law and fend off corruption. For regulations, contracts,
negotiations and incentives – the management tools of government – to succeed, there must be a
sense of trust among the actors that the rules will apply equally to everyone, that infractions will be
punished, and that the government will uphold its end of the contract or deliver on the promised
incentives. A corrupt government breaks this trust by using a shadow agenda of private gain rather
than its stated agenda of public stewardship.
By establishing policies and laws that demand transparency in all its dealings, a government
allows citizens, a loyal opposition and a free press to examine its actions and blow the whistle on cor-
rupt practices. By establishing a strong independent judiciary, a government increases the certainty
that those who violate the rules will be brought to justice and that individuals, organizations or
corporations can settle disputes in an impartial forum. All actors can help hold each other account-
able through the courts, other mechanisms of dispute resolution, and the ever-present tribunal of
public opinion best expressed in free elections. Although governmental systems vary in their degree
of centralization and democratic participation, all can find ways to promote transparency, certainty
and accountability to create an enabling environment for reform of water governance.
116
Cases and boxes
Box 1.1 The Dublin Statement on Water and Sustainable Development 20
Box 1.2 IWRM in international policy 21
Box 1.3 The Right to Water 22
Box 3.1 Water law and environmental justice 49
Box 4.1 Examples of water institutions 74
Box 4.2 Advantages and disadvantages of a centralized institutional framework 76
Box 5.1 Steps to foster transparency 99
Case 1.1 Benefits of good water management in Dar es Salaam 17
Case 1.2 Detrimental consequences of poor water management 17
Case 1.3 Development of a coherent water management plan in Brazil 25
Case 2.1 Water reform in South Africa 36
Case 2.2 Water for El Chaco: a model of decentralized water management 42
Case 3.1 The Chagga furrow committees 52
Case 3.2 Water law reaches into building codes and agricultural land use
in Andhra Pradesh, India 53
Case 3.3 Applying for a water abstraction licence in Namibia 56
Case 3.4 The Chilean water market 57
Case 3.5 Ecological elements of water law, New South Wales, Australia 61
Case 3.6 Environmental flows in Costa Rica and Chile 61
Case 3.7 National water reserves in the South African Water Law 63
Case 3.8 Protected water landscapes 63
Case 3.9 China’s water code assigns responsibilities to the ministry 66
117
Case 4.1 Water institutional reforms in Morocco 72
Case 4.2 National, basin and local institutions within a regional context 77
Case 4.3 Problem solving through international basin institutions in West Africa 78
Case 4.4 Implementing national policies through local institutions in Tanzania 82
Case 4.5 New York pays upstream users to keep its water clean 85
Case 4.6 “Comunidades de Regantes” 87
Case 4.7 Citizen action wins case to create basin authority 87
Case 5.1 U.S. Environmental Protection Agency Water Pollution Regulations
Pursuant to the Clean Water Act 101
Case 5.2 Applying water governance in a federal context; the case of Argentina 101
Case 5.3 ‘Cánon ambiental de vertidos’ 102
Case 5.4 Wastewater discharge fees in Colombia 104
Case 5.5 Environmental penalty regulations help to protect Ontario’s water sources 104
Case 5.6 Water governance by covenant in the community of Pijal, Ecuador 106
Case 5.7 India’s 1974 Water Pollution Act: a failure of enforcement 108
Case 5.8 ‘Tribunal de Aguas de Valencia’, Spain 109
Case 5.9 Enforcement of customary water law 110
Case 5.10 Water Court in the District Court of Montrose, Colorado 111
Case 5.11 The Biwater Tanzania case 113
Case 5.12 Court injunction provides relief to community with contaminated water in
Argentina 114
118
Tables and figures
Table 1.1 Components of a national legal framework 23
Table 2.1 Ten principles of new public management 40
Table 2.2 Overview of types of water policy arrangements 41
Table 2.3 Typology for water policy arrangements 43
Table 4.1 Classification of water institutions 73
Table 4.2 Water policy arrangement approaches 75
Table 4.3 Features of alternative options for privatization of water services 92
Table 5.1 Economic incentives for watershed service maintenance 103
Figure 1.1 Effective water governance system 26
Figure 4.1 What can be privatized? 89
Figure 5.1 From water management to effective water governance 98
119
Glossary
Chapter 1
Effective water governance
Normative approach that aims towards transparent, coherent and sustainable water management
and development.
Governance
The act, process or power of governing. It involves four aspects: social, political, economic and
legal.
Institution
Established organization within society, normally of a public nature, with a specific mandate, and of
significant importance for a given sector.
Integrated Water Resources Management (IWRM)
Paradigm for sustainable management of water resources, which also considers related and con-
nected resources.
Law
The regime that orders human activities and relations in accordance to a given policy.
Policy
General principles that guide a government in its management of public affairs.
Reform
The process of change, amendment and modification of policies, laws and institutions, but also the
instruments and vehicles to promote that change.
Rights-based approach
Water management paradigm that centres inalienable rights of individuals in the core of the devel-
opment and management scheme.
Water governance
The process of managing and developing water resources by engaging and interacting social, politi-
cal, economic and legal institutions.
Water governance capacity
Level of competence of a society to implement effective water arrangements, by means of transpar-
ent, coherent and cost-efficient institutional settings that enhance water governance.
120
Chapter 2
Accountability
Principle by which managers and decision makers in the government, the private sector and orga-
nized civil society are responsible towards the public for the actions they do or take within their
positions.
Common law jurisdictions
Common law as opposed to civil law. Common law jurisdictions (most of which descend from the
English legal system) place great weight on common law decisions which take great account of prec-
edents, as opposed to ‘civil law’ or ‘code’ jurisdictions (many of which descend from the Napoleonic
code) in which the weight accorded to judicial precedent is much less.
Customary laws
Long-established practices commonly accepted as correct rules of action at local, national and inter-
national levels.
Efficiency
Principle by which individuals and institutions must use the best processes available to produce bet-
ter results, meeting the goals traced while using the least amount of resources needed.
Enactment
Act of officially publishing a law leading to compliance and enforcement.
Equity
Principle under which all individuals that are in the same situation must abide by the same laws,
without any type of distinction or discrimination.
New Public Management
Economic policy movement which argues for cost reduction in public policy and its implementation.
It is seen as a paradigm for modernizing public administration.
Participatory decision making
Political process which allows (and advises) that individuals have a voice in the decisions that affect
their interests, either directly or indirectly.
Pattern of behaviour
A way of working that is consistent with an overarching plan. It emerges over time and can be influ-
enced through incentives.
Perspective
Evaluation or consideration of a specific topic.
Plan
Strategy to attain outcomes consistent with broader policy objectives.
Policy arrangement
Implemented outcome of a specific set of ideas and concepts materializing a discourse into a framed
practice.
121
Position
Point of view adopted in a particular topic.
Sustainability
Development approach that focuses on economic growth parallel to environmental protection, pre-
serving it for future generations.
Chapter 3
Bylaw
Administrative decision adopted within an organization or corporation for its internal governance.
Duty
A legal obligation, the breach of which may give rise to liability or possibility of sanction by the
law.
Forfeiture
The loss of property or right as a result of a violation of the law.
Jurisdiction
Generally speaking this means the geographical area over which authority or control may be exerted.
A specifically legal interpretation refers to the authority of a court to hear and rule on a particular
matter within a specific territory, or within a specific subject matter.
Jurisprudence
The study of law or legal questions, commonly referred to with respect to case decisions.
Legislation
A law or group of laws, also known as statutes, acts, decrees, edicts, codes (to codify means to put
legal principles into a code or statute form). In certain situations, there can be a hierarchy of leg-
islation according to the source of law making, for example ordinances are frequently issued by
municipal government, and in cases of conflict, and the latter may not have the same authority as
acts issued by the principal law-making authority in the state.
Precedent
A legal rule or principle established by a case (the higher the court that establishes the rule the
greater its precedent value) which may be applied in later cases on the same legal issue.
Property law
Governs various forms of ownership over property which can take the form of tangible assets such
as land or items, or immovable or personal property such as bank accounts. A property right refers
to ownership of title to that property.
Regulation
Order or rule legally binding adopted by an administrative agency or local government.
Sanction
A coercive measure that results from failure to comply with a law, rule or order.
122
Usufruct
The right of enjoyment or use of property that belongs to another, including the rights to enjoy the
profits and advantages of the object, provided there is no damage to the property (usufructuary =
adjective).
Water right
A legal right to:
s !BSTRACT OR DIVERT AND USE A SPECIFIED AMOUNT OF WATER FROM A NATURAL OR MAN
MADE SOURCE
(for so-called ‘off-stream’ uses).
s )MPOUND OR STORE WATER IN A NATURAL SOURCE BEHIND A DAM OR OTHER HYDRAULIC STRUCTURE
s 5SE WATER IN A NATURAL SOURCE FOR SO
CALLED @IN
STREAM USES
As to their legal form, water rights may be created by the direct operation of the law, but mostly on the
basis of a legal instrument issued by the state agency responsible for water resources management.
Water right trading
The transfer or exchange of permits or licences for water extraction granted by government.
Chapter 4
Affermage contract
A lease contract whereby the government agrees to finance a facility but the private company oper-
ates the system and is responsible for providing work capital. The local government is responsible
for all capital outlays. A formula fixes rates that often include a surcharge to be remitted to the
government for repayment of debts.
Capacity building
Cooperative training network for sustainable development. This is linked directly to ‘good gover-
nance’ as building the capacity of institutions and people, in particular at the national level, is neces-
sary for ‘good governance’, which in turn is critical to achieving sustainable development.
Decentralization
The act by which the central government transfers powers, rights and duties to lower political and
administrative hierarchical units.
Devolution
The act by which the government transfers core powers, rights and duties to individuals or groups of
individuals that are located within or outside of the government.
Legal personality
The legal conception by which the legal system regards entities, which can be physical persons or
artificial persons (business).
Monitoring
Recording activities carried out to meet set environmental objectives.
WUAs
Associations of water users at the local level to manage commonly the resource in their best interest
and according to the legal constraints established.
123
Subsidiarity
Legal principle that aims to bring the decision-making process to citizens. It is a bottom-up approach.
State institutions will only intervene in the absence of capacity of lower institutions.
Chapter 5
Compliance
To act according to the prescriptions of law and regulations.
Corruption
The misuse of a position of trust (where one receives authority in order to act on behalf of an insti-
tution) to gain profit.
Customary water management laws
Group of non-formal norms and behaviours that are accepted by the community, and that have
endured over time in the society.
Enforcement
To compel observance of or obedience to laws and regulations by imposing certain sanctions.
Incentive
Mechanism to incite the behaviour and choice patterns of a given population.
Negotiation
The process of bringing different interests into settlements or arrangements of some matter.
Negotiation capacity
The qualification that determines one’s ability to engage in valid negotiations in a parity situation
towards the other contracting parties.
Regulation
Legal restrictions imposed by the government to adjust the conducts of the citizens. The goal of
regulations might be to produce outcomes that without the introductions of the restrictive measures
would not have otherwise occurred.
Public participation
Mechanism by which organized civil society can take part in the decision-making process of plans and
projects that affect them directly or indirectly.
Transparency
The capacity to avoid corruption in the governance system by means of clear and open decision-
making processes as well as accountable officers.
Water arrangement
Outcome of the process of negotiation, where two or more parties come to a settlement or agree-
ment on water issues. The outcome might be formal or informal.
124
Photo credits
Photo 1.1 © IUCN/ Taco Anema 18
Photo 2.1 © IUCN/Taco Anema 32
Photo 3.1 © Wolfgang Franke 62
Photo 4.1 © IUCN / Danièle Perrot-Maître 82
Photo 5.1 © IUCN / Alejandro Iza 115
125
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20 IUCN Eastern Africa Programme. (2003). Pangani Basin: A situation analysis. Nairobi, Kenya: IUCN EARO.
126
21 Act No. 10 of 2002 Water, Land and Trees Act, sections 17, 28 and 30.
22 Government Gazette of the Republic of Namibia. Windhoek, Namibie, 23 of December, 2004. No. 3357. http://
faolex.fao.org/docs/pdf/nam61956.pdf
23 ILADES. (1994). El Mercado de Aguas en Chile. Trabajo de Asesoría Económica al Congreso Nacional.
24 Godden, L. (2005). “Water Law Reform in Australia and South Africa: Sustainability, Efficiency and Social Justice”.
Journal of Environmental Law 17(2).
25 Dyson, M., Bergkamp, G. and Scanlon, J. (Eds). (2008). Flow. The essentials of environmental flows. 2nd Edition.
Gland, Switzerland: IUCN.
26 Burchi, S.(2007). Balancing Development and Environmental Conservation and Protection of the Water
Resource Base – The “greening” of water laws. http://www.ielrc.org/activities/workshop_0704/content/d0706.pdf
27 Purkey, A. and Landry, C. (2001). “A New Tool for New Partnerships: Water Acquisitions and the Oregon Trust
Fund”. Water Law 12(5).
28 Revised Code of Washington, Water Rights, 90.42.080.
29 Wouters, P., Hu, D., Zhang, J., Tarlock, A.D. and Andrews-Speed, P. (2004). “The New Development of Water Law
in China”. Univ. Denv. Water L. Rev. 7: 243–308.
30 Hodgson, S. (2003). Legislation on Water Users’ Organizations: A Comparative Analysis. FAO Legislative Study 79.
Rome, Italy: FAO.
31 Getches, D.H. (2003). “Spain’s Ebro River Transfers: Test Case for Water Policy in the European Union”.
International Journal of Water Resources Development 19(3): 502.
32 Marloes Bakker, Program in Water Conflict Management and Transformation, Oregon State University, http://
www.transboundarywaters.orst.edu/research/RBO/.html – this site maintains a list of international water basin
organizations by world region.
33 Sadoff, C., Greiber, T., Smith, M. and Bergkamp, G. (2008). Share – Managing water across boundaries. Gland,
Switzerland: IUCN.
34 World Bank. (2004). Public and Private Sector Roles in Water Supply and Sanitation Services. At: http://siteresourc-
es.worldbank.org/INTWSS/Publications/20249486/Guidance%20note%20Public%20and%20Private%20Sector%20
Roles%20in%20Water%20Supply%20and%20Sanitation%20Services%20Apr%2004.pdf
35 Transparency International. (2004). Tools to support transparency in local governance. Nairobi, Kenya and Berlin,
Germany: UN-Habitat and Transparency International. At: http://www.transparency.org/tools/e_toolkit/tools_to_
support_transparency_in_local_governance
36 UNDP. (1997). At http://www.pogar.org/governance/transparency.asp
37 Transparency International, supra, note 35.
38 Iza and Rovere, supra, note 11.
39 From the Ministry of Environment of the Government of Ontario. At http://www.ene.gov.on.ca/en/
news/2007/060801mb.php
40 Bosselmann, Klaus, Engel, Ron and Taylor Prue. (2008). Governance for Sustainability - Issues, Challenges,
Successes. IUCN, Gland, Switzerland. xvi + 260 pp.
41 IUCN. (2007). Prácticas Ancestrales y Derecho de Aguas: de la Tensión a la Coexistencia.
42 Iza and Rovere, supra, note 40.
43 http://www.courts.state.co.us/Index.cmf
44 EC. (2000). European Community Water Framework Directive. At: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do
?uri=OJ:L:2000:327:0001:0072:EN:PDF
127
128
Rule – Reforming water governance
Effective water governance capacity is the foundation of efficient management of water resources.
Water governance reform processes must work towards building capacity in a cohesive and articu-
lated approach that links national policies, laws and institutions, within an enabling environment
that allows for their implementation. This guide shows how national water reform processes can
deliver good water governance, by focussing on the principles and practice of reform. RULE guides
managers and decision makers on a journey which provides an overview of what makes good law,
policy and institutions, and the steps needed to build a coherent and fully operational water gover-
nance structure.
About IUCN
IUCN (International Union for Conservation of Nature) brings together States, government agenci-
es, and a diverse range of non-governmental organizations in a unique partnership. As a Union of
members, IUCN seeks to influence, encourage and assist societies around the world to conserve the
integrity and diversity of nature and to ensure that any use of natural resources is equitable and
ecologically sustainable.
www.iucn.org
About the IUCN Water and Nature Initiative
The IUCN Water and Nature Initiative is an action programme to demonstrate that ecosystem-based
management and stakeholder participation will help to solve the water dilemma of today – bringing
rivers back to life and maintaining the resource base for many.
www.waterandnature.org
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