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Asia Water Action: Irrigation Water Rights: Options for Pro-Poor Reform

Asia Water Action: Irrigation Water Rights: Options for Pro-Poor Reform

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Published by adbwaterforall
Irrigation Water Rights: Options for Pro-Poor Reform
Irrigation Water Rights: Options for Pro-Poor Reform

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Published by: adbwaterforall on Oct 11, 2012
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Country water actions are stories that showcase water reforms undertaken by individuals,communities, organizations, and governments in Asia-Pacific countries and elsewhere.
Country Water ActionsAsia: Irrigation Water Rights: Options for Pro-Poor Reform
November 2004
 
INTRODUCTION
A farmer walking along anirrigation canal discovers ithas been blocked by a smallearthen checkdam,preventing water fromreaching her fieldsdownstream.Villagers find that theshallow wells on which theyrely for drinking water havebeen dried up by mechanizedtubewells that draw fromdeeper in the aquifer.Water users agree to takeover management responsibilities, but later do notreceive the supply that is supposed to be available attheir intake.A new bottled water plant obtains a permit toabstract water, without any advance notice to theirrigators who depend on the same source to watertheir crops.Hydropower operators adjust reservoir releases tosuit electricity demand, ignoring formal plans andregulatory requirements to provide stable flows.Basin water allocations are revised to favor urbanneeds, without consultation or compensation toirrigators.All these situations can be looked at in terms of waterrights, broadly defined as socially accepted and enforceableclaims to water.A simple question to ask is, if someone feels their rights towater have been denied, how can they seek justice? In toomany cases, the answer is that there is no recourse. There,then, is a need to develop institutions where those who feelthat their rights have been impaired can defend their accessto water and resolve conflicts over water allocation.
THE CHALLENGES
Local institutions for water allocation are often unsupportedby national law. Customary rights may lack legal standing.Regulations on water rights are often incomplete,contradictory, and unenforced. Water users may have littleknowledge of the laws and regulations that define formalwater rights. Courts are often distant, distrusted, and takeyears or even decades to deliver verdicts that seem morelinked to the ability of litigants to pay than to jurisprudence.Technical measurements of water flows may be nonexistent,secret, or so inaccurate as to be useless.Deprivation of water in the tail-end reaches irrigation canalsis a classic symptom used to diagnose the lack of effectiveinstitutions for resolving conflicts over water allocation.Pumping "races to the bottom" of groundwater aquifersfurther show how the poor may lose out if effective ratescannot be developed for sharing access to water resources. Whether or not water rights are accepted as human rightsonly makes a difference if it affects how water users andgovernments regulate access to water. Issuing formal waterlicenses on paper matters little, unless licensees can defendtheir rights against infringement.
WATER RIGHTS AND THE POOR
Water rights may offer a way for poor irrigators to protecttheir water from being stealthily stolen away by expandingcities. However, formalization of water rights may alsoexpand opportunities for those who are wealthier, morepowerful, and better connected to manipulate registration toserve their interests. In theory, and sometimes in practice,transferable water rights create opportunities for win-wintransactions to voluntarily reallocate water to moreproductive uses. However, initiatives to introduce watermarkets are frequently challenged by critics concerned thatpoor farmers may be exploited and that water may bemonopolized by corporations.Water rights reform is no panacea. It may open a Pandora'sbox of potential problems. However, without changes inwater allocation institutions, the even more likely outcome isthat poor people may be further impoverished by losing outin competition over water.
Biliran Province
Biliran province has a population of about 140,000 residingin 132 barangays in 8 municipalities. The Provincial Planningand Development Office has 8 staff and is handling severalprojects in coordination with the Provincial EngineeringOffice, which mainly handles procurement and constructionsupervision. Water supply has been a priority project in theprovince. To date, the target of establishing 77 BWSAs wasachieved and their training is completed. A total of 5,635households benefited from the completed facilities.
Barangay Lucson, NavalMunicipality
. This barangaydeveloped a spring source (2.7km away) and a distributionnetwork for about 100households, of which 46households installed individualhouse connections at their owncost. The BWSA President, aformer Overseas Filipino Worker,acts as caretaker of the system.The BWSA disinfects the twowater tanks every 3 months.BWSA holds a general assemblyannually in March and collectsP100 per year per householdduring the assembly.
Haguikhican Elementary School
. This school received 3toilet units, each one attached to an existing classroom. Thestudents kept the toilets clean. The school principal foundthat it is better to attach toilet to the classroom to minimizeclass disruption.
 
 
Public Toilet, Almeria Municipality
. A public toilet wasbuilt in the municipal hall complex. No user charge wascollected. The municipality operates and maintains it byassigning a caretaker.Disempowerment and deprivation in access to irrigationwater cause to poverty. Water rights reforms can offersignificant benefits for irrigators, but pose risks if not welldesigned and developed. Opportunities for pro-poorintervention arise in negotiating shares, strengthening waterrights, improving measurements, sequencing reforms inwater rights laws, and through legal empowerment.
INTRODUCTION
A farmer walking along anirrigation canal discovers ithas been blocked by a smallearthen checkdam,preventing water fromreaching her fieldsdownstream.Villagers find that theshallow wells on which theyrely for drinking water havebeen dried up bymechanized tubewells thatdraw from deeper in theaquifer.Water users agree to take over managementresponsibilities, but later do not receive the supplythat is supposed to be available at their intake.A new bottled water plant obtains a permit toabstract water, without any advance notice to theirrigators who depend on the same source to watertheir crops.Hydropower operators adjust reservoir releases tosuit electricity demand, ignoring formal plans andregulatory requirements to provide stable flows.Basin water allocations are revised to favor urbanneeds, without consultation or compensation toirrigators.All these situations can be looked at in terms of waterrights, broadly defined as socially accepted and enforceableclaims to water. This paper will stress the issue of enforceability, making rights meaningful through developinginstitutions by which those who feel their rights have beenimpaired can defend their access to water and resolveconflicts over water allocation. A simple question to ask is,if someone feels their rights to water have been denied,how can they seek justice? In too many cases, the answeris that there is no recourse.Local institutions for water allocation are often unsupportedby national law. Customary rights may lack legal standing.Regulations on water rights are often incomplete,contradictory, and unenforced. Water users may have littleknowledge of the laws and regulations that define formalwater rights. Courts are often distant, distrusted, and takeyears or even decades to deliver verdicts that seem morelinked to the ability of litigants to pay than to jurisprudence.Technical measurements of water flows may be nonexistent,secret, or so inaccurate as to be useless.Deprivation of water in the tail-end reaches irrigation canalsis a classic symptom used to diagnose the lack of effectiveinstitutions for resolving conflicts over water allocation.Pumping "races to the bottom" of groundwater aquifersfurther show how the poor may lose out if effective ratescannot be developed for sharing access to water resources.Whether or not water rights are accepted as human rightsonly makes a difference if it affects how water users andgovernments regulate access to water. Issuing formal waterlicenses on paper matters little, unless licensees can defendtheir rights against infringement. Water rights may offer a way for poor irrigators to protecttheir water from being stealthily stolen away by expandingcities. However, formalization of water rights may alsoexpand opportunities for those who are wealthier, morepowerful, and better connected to manipulate registration toserve their interests. In theory, and sometimes in practice,transferable water rights create opportunities for win-wintransactions to voluntarily reallocate water to moreproductive uses. However, initiatives to introduce watermarkets are frequently challenged by critics concerned thatpoor farmers may be exploited and that water may bemonopolized by corporations.Water rights reform is no panacea. It may open a Pandora'sbox of potential problems. However, without changes inwater allocation institutions, the even more likely outcome isthat poor people may be further impoverished by losing outin competition over water. This paper outlines options andguidelines that may be useful in formulating pro-poorreforms in irrigation water rights. The next section looks athow deprivation and disempowerment define water poverty.The following sections examine some of the options fordeveloping pro-poor reforms in irrigation water rights.Shares can be equitably negotiated as part of intervention.Rights need to be strengthened for communities andindividuals. Measurement can help make rights meaningful.Protecting rights of existing irrigators is a key to makingwater rights reforms feasible. International experience withwater rights reform and legal empowerment illustrate waysto make institutional change more effective.
WATER POVERTY
Contemporary definitions of poverty focus not just onmaterial deprivation, such as inadequate food and water,but also on insecure access to and lack of power over vitallivelihood resources, such as irrigation water.
2
Overcomingpoverty means not just exceeding some threshold of dailycalories or expenditures, but also securing rights and a voicein governance.Wealthy and powerful people typically have many ways of protecting their interests. Lack of secure and enforceablerights poses a much bigger problem for those who arepoor.
3
If their access to an essential resource such as watercan be taken away without consultation, compensation, oreven advance notice, then their ability to earn a living isfragile. Their ability and incentives to invest in improvingtheir lives are severely compromised.Within a locality, cooperation in coordinating water allocationamong neighbors may be woven into a network of otherrelationships. However growing water scarcity in a riverbasin brings conflicts, and the need for coordination,between strangers who may be spread across hundreds of kilometers. An essential task of governance is to create theconditions for peaceful cooperation among strangers: lack of such conditions brews conflict, blocks opportunities, andthereby impoverishes.
4
Uncertainty undermines livelihoodsecurity. Economic gains from trade and specializationdepend crucially on trust and expectations of repeatedexchanges. Failure to establish conditions under which waterrights can be secured represents a failure of governance,with consequences not only for more abstract values such astrust, equity, and citizenship, but also for practicalopportunities to earn a living and avoid immiseration. 
 
 Water rights may be composed of various bundles of rightsto access, consume, exclude, manage, and transfer.
5
Waterrights are usually structured differently and are morelimited than rights to land and movable property, which isone reason why some prefer the term water "use" rights.However, whatever the term, water rights are still a form of property rights. Secure property rights can play a vital rolein expanding opportunities for poor people to escape frompoverty.
6
Conversely, lack of secure rights perpetuatespoverty. The arguments for the role that secure rights toland can play in reducing poverty are compelling, andsimilar logic applies to water rights.In many situations, establishing or improving water rights isnot easy, and may face even more obstacles than efforts tostrengthen rights to land. The specific pathways to changein water allocation institutions may be highly dependent onparticular circumstances. Nevertheless, Asian experiencereveals a range of opportunities for pro-poor interventionsto strengthen water rights.
NEGOTIATING SHARES
Share systems that divide water inagreed proportions among usersare a traditional solution todefining water rights amonggroups of farmers to whocooperate to build and manageirrigation systems.
7
Shareholdersdecide how to allocate water toavailable land. A well-designedshare system creates incentives toincrease efficiency and expand thearea served. Rights to watershares are typically linked toobligations to invest in constructionand repair, and to respect the water rights of others.By contrast, governments typically design irrigation systemsto distribute water in proportion to land area. In manycases, government interventions ignore and disrupt existinglocal water rights, such as share systems, while failing toestablish an effective alternative. An unfortunate and toocommon result is that head-enders take a disproportionateamount of water, and tail-enders suffer. Design principles of allocation, for example according to area, are thus notconverted into enforceable rights.One option for government intervention in irrigation,particularly aid that provides new or greatly enhanced watersupplies, is to provide water according to a share system,for example to all households, all community members, orall those who invest in new construction, including "sweatequity" in labor. This may formalize shares that are part of existing water allocation arrangements or may establishnew shares. The conventional choice of implicitly allocatingmore water rights to those who already have more landtends to reinforce existing inequities, and neglects anopportunity to reduce poverty. Development of sharesystems may provide a way to assist and empower poorerhouseholds in controlling and using shared water resources.Allocating irrigation water according to existing landholdingis often very acceptable to local power holders, since theyusually are the larger landowners. If rights are not clearlydefined, then this gives them even more scope to use theirpower to capture more of the benefits of irrigation.Government's concern for the general good, and morespecifically for reducing poverty, justifies looking for ways tospread benefits as broadly and productively as possible. Government intervention provides the opportunity torenegotiate water allocation, (as well as other essentialmatters such as how maintenance will be funded andimplemented). Philosophically, negotiation requires anapproach of working with communities as partners, with aright to say no, to speak up for their own interests andnegotiate until mutual agreement is reached, while pursuingsolutions that spread benefits as equitably as possible. Suchnegotiation needs to occur during the planning process,during identification, feasibility study, and design phaseswhen all parties have choices about whether or not toproceed. Water rights should be an essential part of suchnegotiations.Negotiations about water rights may be implicit, indiscussions of designed command area, plans for waterdelivery and cropping patterns, control structures, andinstitutional arrangements for monitoring and enforcing rulesabout water distribution. Another option is to make this anopen and explicit negotiation about water rights, whetherthose are rights formalized in water licenses, as watershares, or as contractual commitments in serviceagreements for water distribution. In practice, differentinstruments may be used depending on local experience andat different levels of irrigation systems, but the general aimshould be to have mechanisms that allow transparency,accountability, and enforceability in sharing water.
STRENGTHENING WATER RIGHTS
Many Asian irrigation systems serve hundred or thousandsof irrigators. A common argument has been that in suchcases it is impossible and inappropriate to recognizeindividual water rights, and that instead water rights shouldbe only held by collective organizations, such as water userassociations, or state agencies operating irrigation systems.However, contemporary information technologies, such asglobal positioning satellites and geographic informationsystems have drastically reduced the cost of identifyinglocations, such as abstraction points; and of storinginformation, such as about rights holders. Defining individualrights involves technical complexities such as consumptiveuse and conveyance losses, but many of these must be dealtwith in any water rights system. They can be handled inpractical ways by employing standard rates, with provisionsfor exceptions in special cases. Therefore, the feasibility of recognizing individual water rights deserves to be assessedmore carefully.Concern for equity and understanding of local powerstructures lead to the conclusion that it is not appropriate tosimply delegate control over water rights to localorganizations with no further accountability or appeal. Thereis also a risk that arguments for collective rights simplybecome another excuse for avoiding accountability inirrigation management. For many aspects of management,users may be happy to have an organization manage rightson their behalf. However, for irrigation water rights to bemeaningful, especially for the poor, rights need to berecognized and enforceable for individual irrigators.Individual water rights can and should constitute thefoundation for a system of water management. Water rightsalso need to be recognized at higher, aggregate levels of managing bulk flows. However, unless individual rights canbe clarified and enforced, those rights, particularly of poorer,smaller-scale farmers, are at risk of being neglected. 

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