Legal Mechanisms for Water Resources in the Third Millennium

Select papers from the IWRA XIV and XV World Water Congresses

Marcella Nanni, Stefano Burchi, Ariella D’Andrea, Gabriel Eckstein, Ariella D'Andrea

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780815363637
• eBook ISBN: 9781351108812
• Edition: 1
• Topic: Biological Sciences
• Subtopic: Ecology
• Index: Biological Sciences

Legal mechanisms for the management, development and protection of water resources have evolved over the years and have reached unprecedented levels of complexity and sophistication. This phenomenon is largely in response to the global community's sustainable development agenda, to the challenges and limitations imposed by climate variability, and to scientific and technological advances. Bringing together diverse experiences from across the world, this book analyses existing water law and governance solutions, their shortcomings, as well as developments and trends in the light of changing circumstances. The legal mechanisms examined range from international treaties, agreements and arrangements on cooperation over transboundary water resources, to the onset of novel issues arising out of technological advances, and from domestic regulation of water abstraction and groundwater management, to domestic regulation of the water industry. The articles in this book were originally published in the journal Water International, following the XIV and the XV World Water Congresses of the International Water Resources Association (IWRA), which were held in 2011 and in 2015, respectively.

The chapters originally published in Water International.

Introduction

Marcella Nanni, Stefano Burchi, Ariella D’Andrea and Gabriel Eckstein

Legal mechanisms for the management and development of water resources, as well as for their protection against pollution, have evolved over the years and have reached unprecedented levels of complexity and sophistication within both domestic and transboundary contexts. This phenomenon is largely in response to the global community’s sustainable development agenda, to the challenges and limitations imposed by climate variability, and to scientific and technological advances. Legal mechanisms, however, are not to be viewed as static contrivances that, once identified, work effectively to meet all local and global water challenges. Rather, they need to be moulded and remoulded in response to changing circumstances and, as a necessary preliminary step, to be analyzed from practical angles that are informed by experience on the ground. Only on these premises are they likely to be understood and adapted to current and emerging needs.

Bringing together diverse experiences from across the world, this book examines contemporary water law and governance approaches, their shortcomings, and existing and potential developments and trends. Together, they provide food for thought for those engaged in water sector reforms.

The book is structured into five parts elaborating on specific themes and covering a broad spectrum of legal mechanisms for water resources management. These range from international treaties, agreements and arrangements on cooperation over transboundary water resources, to the onset of novel issues arising out of technological advances, and from domestic regulation of water abstraction and groundwater management, to domestic regulation of the water industry.

Part 1 is meant to “set the stage” by illustrating key developments and trends in contemporary water resources legislation and inviting innovative thinking (Chapter 2). It further discusses legal reform approaches facilitating adaptation to climate variability and change (Chapter 3). Part 2 examines water resources legislation, and in particular provisions on water rights and groundwater management, in the context of equity (Chapters 4 and 5), legal pluralism (Chapter 6) and climate variability (Chapters 7 and 8). In Part 3, Chapters 9 and 10 are devoted to the right to water within domestic and transboundary contexts, respectively, while the chapter that follows tells a success story in relation to the regulation of the water industry in Scotland (Chapter 11). Science and the law are the subject of Part 4. Chapter 12 examines options for land use and water resource management through the lens of the science of bioprecipitation, and considers the extent to which relevant findings may help stimulate reforms in land use and water management policies and legislation. Chapter 13 evaluates how the UN Convention on the Law of the Non-navigational Uses of International Watercourses can be interpreted and implemented to facilitate responsible and equitable implementation of water augmentation technologies. Finally, Part 5 deals with treaties, agreements and arrangements among states regarding cooperation over transboundary aquifers (Chapter 15) and international watercourses, covering the Niger and Senegal river basins (Chapter 14), and the Tizsa River, which is a tributary of the Danube (Chapter 16).

To sum up, the book consists of an in-depth, high-quality compilation of material on a selection of contemporary water law topics and across a broad spectrum of water-related disciplines. It is hoped that the collection will stimulate the pursuit of a policy dialogue regarding the problematique and direction of contemporary water law and associated review processes.

The articles in this book were originally published in two Special Issues of the journal Water International, following the XIV World Water Congress of the International Water Resources Association (IWRA) “Adaptive Water Management: Looking to the Future”, held in Porto de Galinhas, Brazil, 25–29 September 2011, and the XV World Water Congress, “Global Water, A Resource for Development: Opportunities, Challenges and Constraints”, held in Edinburgh, UK, 25–29 May 2015, respectively. As a contributor to the development of the two Congresses, the International Association for Water Law (known as AIDA from its Spanish acronym) took a leading role in the delivery of the water law and governance track in the two congress programmes, by soliciting papers and presentations from within and outside its membership covering a variety of water law and governance topics, and by contributing to the relevant debates.

AIDA is a network of legal, policy, and management specialists active in government, academia and civil society, with a specific interest in freshwater resources law and related disciplines. It was founded in 1967 by a group of like-minded, visionary water law and management specialists who, with remarkable anticipation, foresaw the growing significance of freshwater to the well-being of humankind and to its economic and social development, in a world of rapidly changing circumstances and increasing competition for what has come to be regarded as “blue gold”. On the strength of the vision of its founders, AIDA is now a partner to a variety of governmental and non-governmental institutions to ensure the role of water law as a foundational pillar of the good governance of freshwater and related resources throughout the world.

A comparative review of contemporary water resources legislation: trends, developments and an agenda for reform

Stefano Burchi

Key trends in water legislation include: attraction of water resources into the public domain; limitations on governmental authority to allocate water resources; controlled trading of water rights; the “greening” of water laws; capturing the land–water connection; and ensuring user participation in decision making and implementation. Hence the water law reform agenda is likely to be preoccupied with reconciling tenure security with risk and uncertainty; pursuing equitable resource allocation efficiency gains; raising the environment’s profile in water resources allocation; rekindling the connection between water resources management and land use regulations; empowering users; and mapping the interface between customary and statutory water allocation.

Introduction

Concern for the long-term sustainability of water resources development and use gained definitive prominence on the agenda of the world community at the Second World Water Forum and Ministerial Conference, held at The Hague in March 2000. In particular, the concept and goal of water security were loosely articulated there, by reference to “key challenges”, namely, meeting basic needs; securing the food supply; protecting ecosystems; sharing water resources; managing risks; valuing water; and governing water wisely. As such, water security appears to go beyond just concern for the maintenance of supplies of drinking water, and to be of relevance not only to arid countries. Subsequently, in the Ministerial Declaration issuing from the International Freshwater Conference held in Bonn in December 2001,¹ preparatory to the United Nations World Summit for Sustainable Development (Johannesburg, 2002) and to the Third World Water Forum (Kyoto, 2003), water governance, including a supportive legal and institutional framework, was seen to play a central role in achieving water security. The policy pronouncements which have been articulated since then, and, in particular, the Ministerial Statement which issued from the latest (fifth) World Water Forum (Istanbul, 2009),² confirm that water security and governance, and a legal and institutional framework conducive to the attainment of the relevant goals, have definitively earned the attention of the international community, and found their place in the latter’s agenda for the twenty-first century.

Based primarily on prior analyses of water resources legislation by this author (Burchi 2001, 2003, 2004, 2005b, 2006, 2007, 2008, 2010), this paper takes stock of the salient features and main trends detectable in the contemporary water resources management legislation of a wide spectrum of countries. The issues emerging, and the challenges ahead, are presented and discussed, for the inspiration of lawmakers as they chart the scope and the agenda of water law reform in support of water security and water governance policies and goals in the twenty-first century.

Salient features and trends of contemporary domestic water resources legislation

A comparative analysis of contemporary legislation for the management and development of water resources discloses a number of discrete trends, some of which are novel compared to the consolidated direction of mainstream water legislation. The trends, known and emerging, that one can detect in the water laws enacted in the two decades astride the beginning of the twenty-first century can be summarized as follows.

Steady attraction of water resources into the public domain of the state, and into the scope of governmental (or judicial) allocation authority

Groundwater in particular, and riparian rights in surface watercourses and in groundwater, have been steadily attracted into the ever-expanding sphere of ‘public’ domain waters. Public waters may include those waters held in the public domain (ownership) of the state, as in the water laws adopted in Italy in 1994, in Morocco in 1995 and in Zimbabwe in 2000, all of which bring groundwater resources in particular into the public domain. Alternatively, water resources have been vested in the state in trust for the public, as in South Africa’s National Water Act (1998), or vested in the president in trust for the public (Tanzania, Water Resources Management Act, 2009), or the state may be vested with superior user rights, as in Uganda’s 1995 Water Statute and in the Australian state of New South Wales’s Water Management Act (2000). Whatever the legal underpinning, the result has been the same, i.e., to extricate a nation’s water resources from the ownership or control of landowners, and to bring the resource and the relevant allocation under the scope of governmental authority.³

As a result of water becoming public property, individuals can only claim and obtain user rights in water. Such rights generally accrue from a grant made by the government (or by the courts, as in some western states of the United States), and are recorded in an administrative permit, licence, concession or the like instrument. Grants tend to be time-bound, are qualified by terms and conditions, and are subject to review and adjustment to reflect new circumstances. As a general rule and trend, the regulation of abstraction licensing seeks to reconcile the security of water rights tenure implicit in the government grant of an abstraction licence, permit or concession, with the flexibility which is desirable to adjust allocation patterns to the ever-changing circumstances of water availability, of evolving abstraction and use technologies and economics, and of shifting policies, priorities, and political agendas.

Checking the government authority to allocate and re-allocate water resources, thereby improving the quality of allocation decisions

The discretionary authority the government enjoys in making abstraction grants and allocating water has traditionally been checked by the courts of law or through the hierarchical review (appeal) opportunities available through the granting process. These traditional review mechanisms are available after an allocation decision had been made and a permit granted. By contrast, a new generation of fetters tends to operate before such decisions and the relevant grants are made.

These are basically aimed at improving the quality of decision making, thereby minimizing opportunities for judicial or administrative review and litigation. The allocation authority of government is increasingly qualified by:

•Legislation imposing environmental impact assessment (EIA) requirements in respect of proposed water abstractions (e.g., Nicaragua’s General Law on National Waters, 2007; Paraguay’s Law on Water Resources, 2007). In what appears to constitute an effective extension of the standard scope of EIA provisions in relation to water resources, Tanzania’s Water Resources Management Act (2009) mandates EIA requirements in respect of “any proposed development” in a water resource area (no definition provided, however) or watershed. Moreover, a strategic EIA is required of “major” water projects (no definition provided either, however, of what constitutes a “major” water project).

•Legislation prescribing water resources plans, especially where these have a binding effect on government decisions.

•Legislation prescribing the imposition of minimum ecological flow requirements in respect of surface watercourses, which seek to protect the ecology and fish life of watercourses and act as a limit on the government’s allocation authority by barring new abstractions above established limits, and by forcing review and the downwards adjustment of abstractions in progress (see the discussion in the section below on raising the profile of the environment in the management of water resources). For instance, in Spain, the minimum environmental flow requirements of rivers provided for by the consolidated Water Act (2001) have priority call on available river flows under the Law on the National Water Plan (2001). In Chile, the minimum ecological flow requirements mandated by the 2005 reforms to the Water Code (1981) act as a barrier to the granting of new abstraction rights, but do not affect the abstraction rights already in existence.

•Legislation prescribing the formal reservation of water quantities or flows for a specific purpose – notably, the satisfaction of basic human needs and the protection of ecosystems – which a...

Table of contents

• Cover
• Half Title
• Series Page
• Title
• Copyright
• Contents
• Citation Information
• Notes on Contributors
• 1. Introduction
• 2. A comparative review of contemporary water resources legislation: trends, developments and an agenda for reform
• 3. Legislation as a tool in support of adaptive water management in response to climate change
• 4. Water governance reform in the context of inequality: securing rights or legitimizing dispossession?
• 5. Compulsory licensing under South Africa’s National Water Act
• 6. Legal pluralism and customary water resources management in Guatemala
• 7. Why the Western United States’ prior appropriation water rights system should weather climate variability
• 8. Adapting water laws to increasing demand and a changing climate
• 9. The human right to water as a creature of global administrative law
• 10. The right to water in a transboundary context: emergence of seminal trends
• 11. Scottish Water: a public-sector success story
• 12. Are we killing the rain? Meditations on the water cycle and, more particularly, on bioprecipitation
• 13. Governing water augmentation under the Watercourse Convention
• 14. Joint infrastructure and the sharing of benefits in the Senegal and Niger watersheds
• 15. Ad hoc legal mechanisms governing transboundary aquifers: current status and future prospects
• 16. Adaptation in the Tisza: innovation and tribulation at the sub-basin level
• Index