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
Couverture_ARP.indd 1 4.3.2009 19:12:57
Rule
Reforming water governance
Alejandro Iza and Robyn Stein
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A catalogue of IUCN publications is also available.
2
3
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
4
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
5
Cases and boxes 117
Tables and figures 119
Glossary 120
Photo credits 125
References 126
6
7
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
8
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.
9
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.
10
11
Preface
12


Foreword
13
14
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
15
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.
16
17
C h a p t e r 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 Salaam
1

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
18
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.
19
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),
20
as well as the Dublin Statement on Water and Sustainable Development
6
(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
21
“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.
22
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
º AdopI ahd implemehI a haIiohal waIer sIraIegy ahd plah o! acIioh IhaI ihcludes Ihe righI Io
water indicators and benchmarks.
º MohiIor Ihe exIehI o! Ihe realizaIioh, or Ihe hoh-realizaIioh, o! Ihe righI Io waIer.
º AdopI relaIively low-cosI IargeIed waIer programmes Io proIecI vulherable ahd margihalized
groups.
The community level
º Lhsure Ihe righI o! access Io waIer ahd waIer !aciliIies ahd services oh a hoh-discrimihaIory
basis, especially for disadvantaged or marginalized groups.
º Lhsure physical access Io waIer !aciliIies or services IhaI provide su!!iciehI, sa!e ahd 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.
º Lhsure equiIable disIribuIioh o! all available waIer !aciliIies ahd services.
The individual level
º Lhsure access Io Ihe mihimum essehIial amouhI o! waIer IhaI is su!!iciehI ahd sa!e !or persohal
and domestic uses to prevent disease.
º Lhsure IhaI persohal securiIy is hoI IhreaIehed wheh physically accessihg waIer.
º 1ake measures Io prevehI, IreaI ahd cohIrol diseases lihked Io waIer, ih parIicular ehsurihg
access to adequate sanitation.
23
Table 1.1 Components of a national legal framework
Legal
Instrument
Scope Type of Regulation Purpose
º Na¦|oua|
Cous¦|¦u¦|ou
º lu¦e|ua¦|oua|
!|ea¦|e
º Na¦|oua|
Laws
º b,|aws
aud
Regu|a¦|ous
º Cus¦ora|,
Law
º R|g|¦ ¦o wa¦e|
º R|g|¦s couuec¦ed ¦o wa¦e|
suc| as |ea|¦| aud sau|¦a¦|ou,
eu.||oureu¦, ¦ood aud soc|a|
secu||¦,
º Es¦ab||s|reu¦ o¦ soec|¦|c ¦|are-
wo|| o||uc|o|es
º wa¦e| aud d|o|orac,
º Regu|a¦|ou o¦ '¦a¦es' ||g|¦s aud
du¦|es o.e| s|a|ed ¦|es|wa¦e|
|esou|ces
º 0e.e|ooreu¦ o¦ o||uc|o|es ¦o|
lwRV aud wa¦e| rauagereu¦
º Ru|es ou oo||u¦|ou. o|e.eu¦|ou
aud cou¦|o|
º Ru|es ou wa¦e| couse|.a¦|ou
º Eu.||oureu¦a| ¦|ows
º C|ouudwa¦e| abs¦|ac¦|ou ||r|¦s
º lo||u¦|ou ||r|¦s
º l|||ga¦|ou uuo¦as
º Nou·w||¦¦eu / No¦ a.a||ab|e |u
e.e|, couu¦|,
º Ru|es abou¦ use, couse|.a¦|ou
aud rauagereu¦ o¦ wa¦e| b,
d|¦¦e|eu¦ use|s
º fuudareu¦a| aud o|gau|c |aw o¦
a '¦a¦e. l¦ cau o|o.|de ¦|e cou-
ceo¦|ou, o||uc|o|es aud geue|a|
¦|arewo|| o¦ ¦|e wa¦e| oo||c,
º /g|eereu¦ ¦o|ra||, s|gued
aud |a¦|¦|ed be¦weeu so.e|e|gu
'¦a¦es
º 'e¦ |u|es aud o||uc|o|es c|a¦¦-
|ug wa¦e| oo||c, as rauda¦o|,/
ob||ga¦o|, ¦e|rs
º 'e¦ ou¦ |us¦|¦u¦|oua| ¦|arewo||
¦o| |ro|ereu¦a¦|ou
º Ru|es ¦|a¦ ¦u|¦|| aud e·ecu¦e
o|o.|s|ous cou¦a|ued |u wa¦e|
aud |e|a¦ed |aws
º lssued uo|ra||, b, ¦|e
E·ecu¦|.e |eo|eseu¦ed b, au
adr|u|s¦|a¦|.e ageuc,
º l|ac¦|ces aud cus¦ors acceo¦ed
as ob||ga¦o|, |u|es
º '¦ab|e
º Eusu|es c|a||¦, aud coo|d|ua¦|ou
be¦weeu
d|¦¦e|eu¦ go.e|uauce |e.e|s
º Regu|a¦e ¦|e |u¦e|¦ace be¦weeu
cus¦ora|, aud s¦a¦u¦o|, |aw
º C|ea¦es ob||ga¦|ous ¦o| ¦|e s|gu|ug
oa|¦|es w||c| corrou|, |a.e ¦o be
|ro|ereu¦ed ¦||oug| ua¦|oua|
|eg|s|a¦|ou
º 0e¦|u|¦|ou o¦ ||.e| bas|u, de.e|oo-
reu¦ o¦ |u¦e|ua¦|oua| |aw o||uc|o|es
|e.g., euu|¦ab|e u¦|||.a¦|ou aud ¦|e
du¦, uo¦ ¦o |a|r o¦|e| '¦a¦es)
º Ceue|a| aoo|oac| aud couu¦|,/s¦a¦e
|¦ede|a| s,s¦ers) w|de aoo||ca¦|ou
º Cau se¦ a geue|a| ¦|arewo|| ¦o be
coro|e¦ed a¦¦e|wa|ds, o| be |ssue·
soec|¦|c |wa¦e|, ¦o|es¦s, coas¦s, ||.e|
bas|us)
º lssue·soec|¦|c
º Eas|e| ¦o adoo¦/c|auge |¦|au |aws)
º Recogu|¦|ou o¦ cus¦ors aud ¦|ad|-
¦|oua| o|ac¦|ces |u ¦|e rauagereu¦,
use aud couse|.a¦|ou o¦ wa¦e|
|esou|ces
º l|ac¦|ces aud be||e¦s ¦|a¦ a|e a .|¦a|
oa|¦ o¦ soc|a| aud ecouor|c s,s¦er
24
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).
25
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.
26
“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 –
Figure 1.1 Components that are integral to Water Governance Capacity (WGC)
27
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:

º DeIermihe a sysIem o! waIer righIs ahd esIablish rules !or waIer appropriaIioh.
º LsIablish a relaIiohship wiIh oIher legal areas, such as lahd owhership ahd lahd uses.
º LsIablish a !ramework uhder which river basih auIhoriIies cah be seI up ahd operaIed.
º PromoIe cohservaIioh o! waIer resources Ihrough sysIems o! commahd ahd cohIrol ahd
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.
28
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
º Does your waIer mahagemehI sysIem deliver adequaIe cleah waIer Io Ihe populaIioh ahd Io
agriculture and industry?
º How coh!idehI are you IhaI you cah deliver adequaIe waIer supplies Ieh years !rom how,
given projections for population and economic growth?
º Does your waIer mahagemehI goverhahce promoIe e!!iciehcy? Does iI maximize Ihe use o!
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?
º Does your waIer goverhahce promoIe equiIy? Are boIh behe!iIs ahd cosIs shared ahd a Irahs-
parent process used to arrive at societal decisions applied to water management?
º Does your waIer goverhahce sysIem promoIe susIaihabiliIy? Does waIer mahagemehI 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:
º SeI prioriIies !or waIer use amohg Ihe heeds o! ihdividuals, agriculIure, power, ihdusIry ahd
ecosystems?
º LsIablish Ihe !ramework uhder which waIer mahagemehI ihsIiIuIiohs (such as river basih
authorities) can be established and operate?
º LsIablish clear roles ahd respohsibiliIies o! goverhmehI agehcies ahd privaIe sIakeholders?
º DecehIralize or devolve auIhoriIy Io Ihe mosI appropriaIe level o! goverhahce (ihcludihg Ihe
deployment of as many water governance functions as possible to civil society)?
º FaciliIaIe ihIer-relaIiohships wiIh oIher areas o! law, such as lahd owhership ahd lahd uses?
º O!!er Irahsparehcy ahd ciIizeh sIakeholder ihvolvemehI ih all aspecIs o! waIer plahhihg?
Law. How well do your national water laws:
º Codi!y Ihe policies described earlier?
º DeIermihe ah e!!ecIive ahd e!!iciehI sysIem o! waIer righIs?
º LsIablish clear ahd souhd rules !or waIer appropriaIioh?
º LsIablish ihsIiIuIiohs ahd machihery Io eh!orce Ihe laws?
º PromoIe cohservaIioh o! waIer resources Ihrough regulaIory Iechhiques?
º PromoIe cohservaIioh o! waIer resources Ihrough markeI mechahisms?
29
º Lhsure IhaI waIer law is cohsisIehI wiIh oIher laws, especially Ihose dealihg wiIh susIaihable
development?
º LsIablish a !ramework uhder which river basih auIhoriIies cah !orm ahd operaIe?
Institution. How well do your national water-related institutions:
º Ensure democratic representation and active participation of affected communities in all
planning and decision-making processes concerning water resources?
º IhIegraIe wiIh oIher social, poliIical ahd ecohomic secIors o! socieIy?
º AdapI Io chahgihg ehvirohmehIal, social ahd ecohomic cohIexIs?
º OperaIe oh a IrahsparehI basis ih Ihe ihIeresIs o! all sIakeholders?
º Follow Ihe cusIomary laws ahd pracIices o! your couhIry?
º DeliheaIe respohsibiliIies across mihisIries ahd iurisdicIiohs as well as provide !or coordihaIioh?
º LsIablish ah o!!ice !or waIer absIracIioh permiIs?
º SeI up e!!ecIive WaIer 8oards?
º Provide a reliable sysIem Io pay waIer bills?
º Provide ah ahIi-corrupIioh commissioh Io ihvesIigaIe waIer ahd waIer ih!rasIrucIure 'deals'?
º Provide a waIer righIs regisIrar ahd a smooIh mechahism Io regisIer waIer righIs?
º Ihclude o!!icials who have Ihe capaciIy Io review ehvirohmehIal impacI sIaIemehIs?
Implementation. How well do your regulatory agencies:
º WriIe ahd publicize clear regulaIiohs regardihg waIer use ahd cohservaIioh?
º NegoIiaIe appropriaIe waIer services ahd waIer resource-sharihg deals wiIh corporaIiohs or
public groups?
º Encourage the formation of, and engagement with, farmers’ associations organized in irriga-
tion boards or water boards?
º Cohsider ihhovaIive schemes such as paymehI !or ecosysIem services upsIream by cusIomers
downstream?
º IhsIiIuIe mulIi-sIakeholder mechahisms !or waIer plahhihg ahd decisioh makihg?
º Have Ihe capaciIy !or appropriaIe !aciliIaIioh arouhd waIer hegoIiaIiohs?
º UhdersIahd parIicipaIory plahhihg?
º Seek lawyers ahd hoIaries who have Ihe capaciIy Io dra!I ahd regisIer waIer cohIracIs?
º Lhcourage a !ree press IhaI reporIs oh waIer polluIioh scahdals?
º ResisI ahd reporI bribery ih Ihe waIer secIor?
º Assign water and environmental police who check effluent pipes, water abstractions, metering
and payment?
º Provide regular waIer qualiIy samplihg Io check compliahce ahd sIaIus?
º Lhcourage waIer NCOs IhaI cah advocaIe !or mohiIorihg ahd combaI corrupIioh?
º Ihclude a waIer dispuIe-resoluIioh mechahism IhaI is accessible ahd works e!!ecIively ih
resolving conflicts over waters?
º 1raih lawyers ih Ihe capaciIy Io deal wiIh cases o! waIer coh!licIs?
º Provide a souhd seI o! case law available Io resolve waIer dispuIe cases?
º IhcorporaIe mechahisms ahd ihcehIives Io eh!orce all waIer laws?

30
31
C h a p t e r 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:
º 1o help ihIerpreI ehvirohmehIal sIaIuIes by decisioh makers ahd Ihe CourIs.
º For Ihe applicaIioh ahd eh!orcemehI o! ehvirohmehIal sIaIuIes.
º For compliahce wiIh ehvirohmehIal sIaIuIes (!or example, assisIihg ih Ihe deIailed haIure o!
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”
32
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.
33
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:
º How much waIer is available !or use, while also proIecIihg Ihe ehvirohmehI?
º WhaI are Ihe prioriIy uses !or Ihis waIer?
º How much waIer should be allowed !or each use?
º Who deIermihes Ihe prioriIies ahd allocaIiohs?
º How cah Ihose who cahhoI e!!ecIively parIicipaIe ih Ihe poliIical ahd legal sysIems heverIheless
have their needs recognized and served?
º How should waIer be admihisIered Io avoid coh!licIs, accouhI !or !lood ahd droughI, ahd
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
34
wastage, and optimize the benefits derived. Water policy can promote efficiency by incorporating
these ideas:
º DeIermihe all values o! waIer Io ehsure Ihe raIiohal allocaIioh o! waIer as a scarce resource
through regulation, economic instruments or other means.
º Use o! waIer charges as ah ecohomic ihsIrumehI Io ehcourage cohservaIioh ahd e!!iciehI
water usage.
º AIIempI Io recover Ihe !ull cosIs o! all waIer uses as !ar as possible Io help creaIe Ihe uhder-
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.
º 1reaI waIer as ah ecohomic good Io help balahce Ihe supply ahd demahd o! waIer ahd susIaih
the flow of goods and services from this natural asset.
º PromoIe waIer demahd mahagemehI Io reduce overexploiIaIioh.
º Use moderh ihsIrumehIs such as 'li!e cycle ahalysis', 'disIribuIiohal ahalysis', 'sIraIegic ahd
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:
º Lhsure waIer allocaIiohs are based oh a souhd Iechhical ahalysis.
º Cive special aIIehIioh Io waIer allocaIiohs ahd basic services Io Ihe poor ahd margihalized
communities, including indigenous groups.
º Consider the historically exercised water uses and rights in water planning and decision
making.
º Lhsure ho hew waIer allocaIiohs are made IhaI ih!rihge upoh exisIihg waIer righIs ahd uses.
º Address ouIsIahdihg waIer coh!licIs ahd compehsaIiohs.
º Clarify and recognize existing rights of stakeholders to access to, and use of, water resources.
º IdehIi!y Ihe risks Iakeh by ahd Ihe behe!iIs accrued Io sIakeholders, voluhIarily or ihvoluh-
tarily, with actual and future water uses and allocations.
º Develop ahd implemehI behe!iI-sharihg mechahisms IhaI build solidariIy amohgsI waIer 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:
º AllocaIe waIer Io susIaih aquaIic li!e ahd waIer-depehdehI ecosysIems, such as rivers, lakes,
wetlands, bays and estuaries including through establishment of environmental flows and
water levels.
35
º RespecI Ihe lihkages beIweeh upsIream ahd dowhsIream waIer ahd users, sur!ace ahd
groundwater flows, and the connection between the river and its floodplain.
º Promote and support the restoration of damaged ecosystems throughout the river basin,
including through valuation of the resources and incentives for conservation and restoration.
º SeI aside some rivers ahd IribuIaries, or sighi!icahI porIiohs Ihereo!, Io proIecI ecosysIems,
their services and their benefits.
º Lhsure IhaI owhership o! sur!ace ahd grouhd waIer is wiIh Ihe public whehever possible ahd
manage these resources as a public good.
º LsIablish ahd cohIrol polluIioh !rom boIh poihI ahd hoh-poihI sources.
º MohiIor sur!ace ahd grouhdwaIer quahIiIy, qualiIy, ecology ahd !low regimes ahd make Ihe
acquired information publicly available.
º Lhsure IhaI exisIihg mahagemehI approaches ahd operaIihg rules re!lecI social ahd ehviroh-
mental concerns.
º Develop droughI ahd !lood plahs ahd guide rapid-respohse as well as mid- ahd lohg-Ierm
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 Africa
12

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
36
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
37
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:
º lhe Nalional Slralegy
º a classilicalion ol lhe walers and lhe reserve
º a mechanism lor allocaling and regulaling waler uses lhrough a licensing syslem
º a syslem ol prices
º calchmenl managemenl agencies
º waler users associalions
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
38
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:
º Requirihg IhaI cerIaih decisiohs be made ih public meeIihgs.
º Requirihg IhaI documehIs, ihcludihg meeIihg mihuIes ahd sciehIi!ic sIudies, be made avail-
able to the public free or at low cost of reproduction.
º SeIIihg up opeh chahhels o! commuhicaIioh beIweeh all Ihe sIakeholders ihvolved ih waIer
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:
º CreaIihg a climaIe IhaI hohours Ihe rule o! law.
º WriIihg laws ahd regulaIiohs IhaI clearly speci!y pehalIies !or violaIiohs.
º MaihIaihihg a sIrohg iudicial sysIem IhaI allows sIakeholders Io seek recourse !or damages.
º Providihg !or alIerhaIive dispuIe-resoluIioh mechahisms.
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:
º Lhsure public IrusI ahd coh!idehce Ihrough meeIihg commiImehIs !or plahhihg ahd mahagihg
of water resources and addressing social and environmental issues.
º Secure compliahce wiIh all laws ahd regulaIiohs, geheral or proiecI-speci!ic, aI all sIages o!
water resources development and management.
º Establish an appropriate ‘mix’ of regulatory and non-regulatory measures, including incentives
and sanctions.
39
º LsIablish ahd abide by sIricI ahIi-corrupIioh policies ahd regulaIiohs.
º ImplemehI ahy agreed plah Io compehsaIe !or loss o! ihcome or properIy due Io waIer devel-
opment in a timely and correct manner.
º LsIablish ihdepehdehI review pahels !or (ouIsIahdihg) social ahd ehvirohmehIal maIIers.
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:
º Lhsure IhaI parIicipaIioh is more Ihah merely cohsulIaIioh ahd ihcorporaIes sighi!icahI cohIri-
butions to outcomes.
º Develop !ull ahd e!!ecIive parIicipaIioh o! womeh aI all levels o! decisioh makihg.
º LsIablish e!!ecIive waIer !ora ahd mulIi-sIakeholder plaI!orms ahd de!ihe roles ahd respohsi-
bilities.
º AssisI sIakeholders ih parIicipaIihg by providihg ih!ormaIioh, Iraihihg, ahd Iechhical assisIahce
and/or financing mechanisms.
º Mahage waIer aI Ihe lowesI appropriaIe level, cohsisIehI wiIh a sIrohg !ramework o! per!or-
mance standards and financial assistance where needed and develop integration of the work
at the local, basin, provincial, national and regional levels.
º SeI up mechahisms Io resolve waIer-use coh!licIs !rom local Io ihIerhaIiohal levels.
º Caih public accepIahce o! chahges ih waIer mahagemehI, allocaIiohs ahd proiecIs.
“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.
40
“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.
1. Competitive services
Co.e|ureu¦ se|.|ces coroe¦e ¦o| uua||¦,
aud cus¦ore|s.
2. Empowered citizens
C|¦|.eus eroowe|ed b, ous||ug cou¦|o| ou¦
o¦ adr|u|s¦|a¦|ous |u¦o ¦|e corruu|¦,.
3. Outcomes-based
/dr|u|s¦|a¦|ou's oe|¦o|rauce uo¦ ¦ocused
ou |uou¦s aud o|ocess, bu¦ |a¦|e| ou de||.-
e||ug ou¦cores.
4. Mission-driven
/geuc|es a|e uo¦ d||.eu b, |u|es aud |egu-
|a¦|ous, bu¦ b, ¦|e|| co|e r|ss|ou.
5. Customer-oriented
/geuc|es de¦|ue ¦|e|| use|s as cus¦ore|s ¦o
w|or ¦|e, o¦¦e| c|o|ces o¦ se|.|ces.
6. Earn money
0e||.e|, o¦ se|.|ces ra|es roue,, |a¦|e|
¦|au ou|, cos¦|ug roue,.
7. Decentralized government
l|oro¦es oa|¦|c|oa¦o|, rauagereu¦ ¦o
add|ess |ssues.
8. Catalyze all sectors
'o|.|ug corruu|¦|es' o|ob|ers ¦||oug|
eugag|ug oub||c, o||.a¦e aud .o|uu¦a|,
ac¦|ou.
9. Prevent problems
focus ou o|e.eu¦|ou |a¦|e| ¦|au ou|, o¦¦e|-
|ug '|eoa||' se|.|ces.
10. Market mechanisms
l|e¦e| ra||e¦·based rec|au|srs o.e|
bu|eauc|ac,.
Table 2.1 Ten principles of new public management
13
“WATER POLICY REFORM CAN BE MATCHED WITH VARIOUS
MODELS OF GOVERNANCE”
41
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
/u¦|o||¦a¦|.e
l|u|a||s¦|c·||be|a|
0eceu¦|a||.ed·corruu|¦a||au
Name
F|e|a|c|,·based

Va||e¦·based
Ne¦wo||·based
Water governance mechanisms
Coe|c|.e, s¦a¦e·|ed wa¦e| oo||¦|cs, s¦a¦e o|gau|.a¦|ou
cou¦|o|s wa¦e|, ueoco|oo|a¦|sr
Nego¦|a¦|ou, oowe|·o|a,s, couseusus bu||d|ug
be¦weeu |u¦e|es¦ g|ouos used ¦o so|.e wa¦e| |ssues
la|¦|c|oa¦o|, ¦o|r o¦ soc|e¦,/ega||¦a||au|sr, uou·
||e|a|c||ca|. la|¦|c|oa¦|ou used |u wa¦e| rauagereu¦
aud dec|s|ou ra||ug.
a) Couse|.a¦|.e. |e.a|ua¦|ou o¦ ¦|e ¦|ad|¦|oua|
soc|e¦,/so||da||¦,
b) Reoub||cau. uew ba|auce be¦weeu ¦|e ¦|ad|-
¦|oua| corruu|¦, aud rode|u |ud|.|dua||sr/
.o|uu¦a||sr
42
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.
43
Table 2.3 Typology for water policy arrangements
17

Ideal types
Dimensions
Discourse
Coalitions
Resource distribution
Rules
Authoritative
'¦a¦e |u¦e|.eu¦|ous, ra|es
use o¦ ¦oo·dowu des|gu|ug
o||uc|o|es
Co.e|ureu¦a| bod|es
|eso|.e o|ob|ers
Leg|¦|r|.ed s¦a¦e |egu|a-
¦o|, oowe| ¦o| s¦|a¦eg|c
o|auu|ug
Leg|s|a¦|ou aud s¦||c¦ wo||-
|ug o|ocedu|es
Decentralized- commu-
nitarian
Loca| |u|¦|a¦|.es ¦||oug|
|oca| oa|¦|c|oa¦|ou
Coooe|a¦|.e se¦¦|ug o¦
go.e|ureu¦a| bod|es,
s¦a|e|o|de|s aud |oca|
oeoo|e |ea||.e a|ea·soec|¦|c
goa|s
'oc|a| cao|¦a| ¦o| g|ass|oo¦s
o|ojec¦s
!a||o|·rade so|u¦|ous ¦|a¦
au¦|c|oa¦e o| go be,oud
|eg|s|a¦|ou
Pluralistic-liberal
ba|auced aoo|oac| based
ou soc|e¦a| uego¦|a¦|ous
la|¦ue|s||os be¦weeu
go.e|ureu¦a| bod|es aud
s¦a|e|o|de|s |u¦eg|a¦e
oo||c|es
'¦a¦e budge¦ a||oca¦ed ¦o
s¦a|e|o|de|s ¦o| coo|d|ua¦-
ed oo||c, |ro|ereu¦a¦|ou
Co.euau¦s ¦|a¦ ¦a|e cu|-
|eu¦ |eg|s|a¦|ou ¦o| g|au¦ed
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.
44
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
º LvaluaIe Ihe capaciIy o! goverhmehI o!!icials Io cohducI waIer plahhihg.
º Veri!y how well ih!ormed parliamehIariahs are abouI waIer issues.
º DeIermihe how much decisioh makers uhdersIahd waIer goverhahce issues.
º Ahalyze Ihe muhicipal waIer plahs, Iheir proiecIiohs ihIo Ihe !uIure ahd respohses.
2. Analyze national, regional and international policies
º De!ihe maior policy Irehds, ahd so!I law relevahI !or Ihe couhIry.
º LvaluaIe i! Ihe couhIry is complyihg wiIh ihIerhaIiohally-agreed policy guidelihes. SIarI by
analyzing if principles and guidelines adopted in major fora have been translated into national
and local policies, plans and programmes.
º 1ake Ihe policy ahalysis a level !urIher ahd idehIi!y paradigms ih maior ihIerhaIiohal arrahge-
ments (e.g., IWRM) and compare them with local water policy.
3. Determine the scope of the country’s water institution(s)
º DeIermihe i! Ihere is a speci!ic ihsIiIuIioh ih charge o! waIer admihisIraIioh.
º Ih case Ihere is hoI, map all Ihe di!!erehI agehcies IhaI ioihIly admihisIer Ihe waIer ih Ihe couhIry.
º Check i! Ihere is a ParliamehIary Commissioh oh waIer issues.
45
º DeIermihe i! a sihgle goverhihg body, or complex o! bodies, !ollow a policy wiIh clear obiec-
tives, implementing steps, and compliance deadlines.
4. Assess the extent of public participation in decision making
º DeIermihe Ihe level o! orgahizaIioh !or public ihvolvemehI ih decisioh-makihg processes.
º LvaluaIe i! Ihe public parIicipaIioh process is ahchored ih Ihe law, well sIrucIured, ihvolves key
interest groups, and is well organized.
º LvaluaIe Ihe level o! commiImehI ahd poliIical will !or devolvihg decisioh makihg auIhoriIy
to the public.
º DeIermihe i! Ihe agehcies ahd ihsIiIuIiohs ih charge o! decisioh makihg opeh Ihe required
spaces for public participation, and if that participation is meaningful.
º LvaluaIe i! people !eel represehIed by Ihe waIer auIhoriIies o! Ihe couhIry.
5. Evaluate the country’s decentralization scheme
º DeIermihe Ihe degree o! decehIralizaIioh, i! ahy, o! Ihe waIer admihisIraIioh.
º Assess Ihe role o! local goverhmehIs ahd waIer auIhoriIies ih Ihe overall ihsIiIuIiohal seI 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
º IdehIi!y wheIher ih!ormaIioh oh policies, plahs ahd programmes is readily available !or civil
society, and if civil society is aware of the availability of this information.
º DeIermihe i! Ihere are spaces !or educaIioh ahd cohsulIaIioh o! waIer users.
7. Analyze whether economic-based instruments are being used successfully
º 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.
º CohducI a prelimihary ahalysis Io deIermihe i! Ihe waIer goverhahce sysIem is ecohomically
sustainable in the long term.
º LvaluaIe i! policy makers are aware o! Ihe Irade-o!! beIweeh shorI-Ierm behe!iIs ahd lohg-
term costs.
8. Consider the extent and functionality of private - sector participation
º Ahalyze wheIher, ahd Io whaI exIehI, privaIe-secIor parIicipaIioh ih waIer mahagemehI is ah
option in the country.
º WhaI are Ihe legal modaliIies uhder which privaIe-secIor parIicipaIioh cah Iake place?
º Are waIer markeIs !ully ih place?
9. Evaluate corruption levels in the country
º DeIermihe i! a IrahsparehI ahd publicly-available programme o! Ihe waIer ihsIiIuIiohal
expenses is available.
º DeIecI possible cases o! crohyism.
10. Assess the current model of governance
º IdehIi!y Ihe geheral goverhahce model o! Ihe couhIry, wheIher iI 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).
46
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
º Civeh couhIries' di!!erehI sIages o! waIer policy developmehI, iI is essehIial IhaI plah-
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
º Uhder auIhoriIaIive goverhmehI models, waIer policy re!orms should be ihIroduced
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
º Clear allocations of water rights will encourage water users to use it more efficiently.
º AllocaIioh o! waIer amohg hew uses will be allowed i! Ihey do hoI ihiure exisIihg uses.
Step 4: Introduce proactive, sustainable and just measures that encourage efficiency
º WaIer policy should pursue humah ahd socieIal wellbeihg, meeI ecosysIem heeds,
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
º AdequaIe Iechhologies appropriaIe Io Ihe geographical ahd developmehIal cohdi-
tions of the country.
Step 6: Apply the principle of recovery of costs for water services
º WaIer prices should Iake accouhI o! Ihe cosIs o! waIer services, ihcludihg ehvirohmeh-
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
º WaIer righIs sharihg ahd Iradihg should be made possible via exchahges, sIored
water banks and leases of water between the municipal and agricultural sector.
47
Step 8: Ensure support from enabling institutions
º IhsIiIuIiohal !ramework !or implemehIaIioh o! Ihe waIer policy has beeh desighed
and is in place.
º CooperaIive !orums !or adiusIihg waIer policy are esIablished ahd Iribuhals !or
resolving water-use conflicts are in operation.
Step 9: Ensure effective governance principles of transparency, certainty and accountability
º 1rahsparehcy cah be ehsured by requirihg public decisiohs, publicly available ih!orma-
tion and open stakeholder communications.
º CoverhmehIal !rameworks IhaI clari!y ahd eh!orce rules should be sIrehgIhehed Io
foster public certainty in governmental processes.
º Measures ehsurihg IhaI waIer mahagers ahd plahhers are accouhIable !or Iheir acIs
are fundamental to reliable governance.
Step 10: Guarantee international cooperation
º WaIer policy re!orm musI Irahscehd borders ih couhIries IhaI share Ihe resource.
48
49
C h a p t e r 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.
50
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 force
19
in favour of the concept of water as being controlled by
the State for the common good.
51
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.
52
“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.
53
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.
54
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.
55
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.
56
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:
57
º Cohsider how Ihe use beihg permiIIed will a!!ecI oIher waIer users.
º Cohsider how Ihe waIer body beihg used will be a!!ecIed, ihcludihg ih relaIioh Io waIer qualiIy
objectives.
º Cohsider Ihe socio-ecohomic impacIs o! Ihe waIer use proposed.
º Ask wheIher ahy ihvesImehIs relaIihg Io waIer use have already beeh made by Ihe applicahI.
º Cohsider how sIaIe obligaIiohs, such as public-ihIeresI uses o! Ihe waIer body, will be
affected.
º Cohsider impacIs oh reserve allocaIiohs or waIer !or proIecIed 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:
º WheIher Iradihg applies ohly durihg cerIaih seasohs.
º WheIher allocaIiohs, ih whole or ih parI, cah be Iraded all year rouhd.
º 1haI Ihe goverhmehI is hoIi!ied wheh a Irade is made, especially a permahehI exchahge, so
it can review whether the transfer would modify the original terms of the permit.
º 1he procedures Io be used Io Irahs!er licehces, such as Ihe lisI o! criIeria !or grahIihg auIho-
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
58
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:
59
º Discharge permiIs IhaI speci!y qualiIy sIahdards !or e!!luehI.
º MahdaIed obiecIives !or waIer qualiIy ih Ihe waIer bodies receivihg discharges.
º Fees !or dischargihg wasIe ihIo waIer bodies, based oh Ihe 'polluIer-pays' prihciple.
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.
60
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.
61
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:
º Waler sources, lloodplains and dependenl ecosyslems (including ground waler and wellands) should be
protected and restored and, where possible, land should not be degraded.
º Habilals, animals and planls lhal benelil lrom waler, or are polenlially allecled by managed aclivilies,
should be protected and (in the case of habitats) restored.
º The waler qualily ol all waler sources should be prolecled and, wherever possible, enhanced.
º The cumulalive impacls ol waler managemenl licences and approvals, and olher aclivilies on waler sources
and their dependent ecosystems should be considered and minimized.
º lealures ol indigenous signilicance should be prolecled.
º Ceographical and olher lealures ol major cullural, herilage or spirilual signilicance should be prolecled.
º Social and economic benelils lo lhe communily should be maximized.
º The principles ol adaplive managemenl should be applied, which should be responsive lo moniloring 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.
62
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.
63
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.
64
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”
65
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:
º Clearly deliheaIe respohsibiliIies ahd !uhcIiohs coverihg relevahI public ahd privaIe ihsIiIu-
tions particularly in the areas of licensing and monitoring.
º IdehIi!y key sIaIe acIors.
º SeI ouI Ihe rules !or Ihe esIablishmehI ahd operaIioh o! ihsIiIuIiohs aI various levels, ihclud-
ing details of their functions and powers.
º OuIlihe Iheir sIrucIure.
º LsIablish geheral admihisIraIive guidelihes.
º SeI Ihe quali!icaIioh o! sIa!! members, Ierms o! o!!ice, meeIihgs, reporIs ahd !ihahces o! Ihe
institution.
º Require capaciIy buildihg aI all levels Ihrough Iraihihg ahd educaIioh as a lohg-Ierm sIraIegy
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”
66
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:
º lormulale waler-relaled policies, developmenl slralegies, and medium and long-lerm developmenl plans,
including water conservation and demand management policies.
º lmplemenl lhe inlegraled managemenl ol waler resources, including almospheric waler, surlace waler and
ground water.
º lormulale waler resource proleclion plans in accordance wilh relaled nalional laws, regulalions and slan-
dards concerning resource and environmental protection.
º lormulale economic regulalory measures lor lhe waler seclor, exercise macro-economic regulalion on lhe
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.
º Drall and review proposals and leasibilily sludy reporls on large and medium-sized capilal waler conslruc-
tion projects in the water sector.
º Drall and supervise bolh lhe execulion ol lechnical slandards lor lhe waler seclor, and specilicalions and
codes for water works; implement key hydrological research projects; and popularize and disseminate
water-related technologies.
º Provide guidance lor aclivilies relaled lo rural waler resources, organize and coordinale capilal conslruc-
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
67
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”
68
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
º Map ouI Ihe legislaIioh IhaI is already oh Ihe sIaIuIe books, ahd make sure IhaI hoI ohly
the Water Act(s), but also all the legislation that may contain provisions on water resources
are canvassed.
º IdehIi!y wheIher Ihe obligaIiohs ihherehI Io waIer mahagemehI are beihg addressed by Ihe
legal mandates.
At the national constitutional level
º DeIermihe wheIher Ihe couhIry's haIiohal cohsIiIuIioh provides Ihe righI Io a cleah ahd
healthy environment.
º Check ahy oIher cohsIiIuIiohal righIs IhaI may be lihked Io Ihe righIs Io a cleah ahd healIhy
environment and to water.
º Ahalyze Ihe implemehIaIioh modaliIies o! Ihese righIs. Are Ihere ahy cohdiIiohs esIablished
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
º Check wheIher Ihe couhIry has a waIer law.
º Assess Io whaI exIehI Ihe waIer provisiohs are updaIed ih accordahce wiIh hew waIer poli-
cies.
º Veri!y Ihe implemehIaIioh o! Ihe waIer law ih Ierms o! respohsivehess Io chahgihg realiIies
and values.
º Check wheIher Ihere are local bylaws ahd regulaIiohs oh waIer.
º Check wheIher guidelihes !or waIer qualiIy have beeh adopIed.
Regional environmental agreements
º IdehIi!y regiohal agreemehIs IhaI may deal wiIh waIer issues.
º DeIermihe Ihe couhIry's obligaIiohs wiIh regard Io Ihese agreemehIs, idehIi!yihg cohcreIe
duties with which the country must comply and whether it is doing so.
Step 2. Document customary practices
º DocumehI exisIihg cusIomary pracIices be!ore dra!Iihg hew legislaIioh Io mihimize !ricIioh
between the water law reforms and established customary practices on the ground.
Step 3. Analyze existing legislation
º Ahalyze Ihe exisIihg legislaIioh ahd iIs compaIibiliIy wiIh Ihe policies emergihg !rom Ihe
policy enunciation process.
69
Step 4. Identify needed reforms
º DeIermihe Ihe scope ahd exIehI o! Ihe legislaIive re!orms required Io supporI Ihe 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:
º FacIorihg Ihe ehvirohmehIal healIh, ecological value, ahd !uhcIioh o! waIer sysIems ihIo all
governmental decisions regarding water allocation in general, and water abstraction licens-
ing and wastewater disposal permitting in particular.
º PrioriIizihg ehvirohmehIal allocaIiohs.
º ResIricIihg Irades o! waIer righIs IhaI hegaIively a!!ecI Ihe ehvirohmehI.
º Reservihg volumes or !lows o! waIer !or ehvirohmehIal supporI !uhcIiohs.
º MahdaIihg Ihe deIermihaIioh ahd observahce o! ehvirohmehIal !lows o! rivers.
º Makihg LIAs mahdaIory !or waIer absIracIioh ahd wasIewaIer disposal permiIs ahd licehces.
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
º Shi!I maIIers o! policy !rom admihisIraIive maIIers. 1he !ormer belohgs Io ah acI o!
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.
º Avoid dra!Iihg a sIaIuIe IhaI operaIes aI such a level o! geheraliIy as Io be ihe!!ecIual, or
conversely getting bogged down in the minute administrative details of operation.
Step 7. Prepare regulations to implement the law
º Prepare regulaIiohs !or Ihe !ull implemehIaIioh o! Ihe hew law.
º 1he Iime lapse beIweeh Ihe ehacImehI o! a hew law by ParliamehI ahd Ihe adopIioh 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
º Cauge Ihe capaciIy o! Ihe goverhmehI Io ihIerhalize ahd acI swi!Ily Io implemehI Ihe
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.
º AlIerhaIively, Ihe ambiIiohs ahd scope o! Ihe re!orms soughI could be scaled dowh, or
timed, to coincide with increases in administrative capacity.
Step 9. Inform and prepare water users
º LvaluaIe Ihe preparedhess o! waIer users Io receive ahd ihIerhalize Ihe waIer law re!orms.
Prepare a serious outreach and information campaign for implementation following enact-
ment of the new law.
º 1he public ih geheral, ahd waIer users ih parIicular, heed Io be ih!ormed ahd prepared hoI
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.
70
71
C h a p t e r 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
Preparation of a national plan to determine the uses of the different water bodies and the º
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
Working with other nations in an international river basin at the political and technical levels. º
Coordinating with other agencies, and provincial, basin and local water institutions, as well as º
with private and non-governmental organizations.
Engaging with agencies representing major water-using sectors such as agriculture, industry, º
power and urban development.
3. Fostering public involvement
Ensuring real participation by the public in water planning and development. º
4. Implementing water distribution and development through regulations and negotiations
Maintaining or restoring the health of the water system to provide clean drinking water, º
recreation, and water supply regeneration.
Overseeing development of water works including water treatment systems, sewerage and º
sewage treatment facilities, irrigation and hydropower facilities.
5. Operating and maintaining water works infrastructure
Adopting measures related to water works and other hydraulic installations, their operation º
and maintenance either through governmental agencies or through contracting with private
companies.
Developing clear stewardship regulations and contractual language for private operators. º
6. Administering water rights
Implementing a system to manage water rights through authorizations, permits, licences or º
concessions.
72
7. Managing conflict resolution
Establishing mechanisms to resolve conflicts over water resources. º
8. Conducting research for planning, monitoring and inspection
Collecting, interpreting and acting on scientific data starting with an inventory of the nation’s º
water bodies (surface water, ground water and atmospheric water) in terms of quantity and
quality.
Monitoring water quality, species composition, flow rates and other parameters before and º
after different interventions, and monitor use rates under permits.
9. Enforcing laws and regulations
Ensuring enforcement of, and compliance with, regulations. º
“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”
73
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.


lu¦e|ua¦|oua|/
|u¦e|·s¦a¦e
Na¦|oua|
Na¦|oua|
Na¦|oua|
Na¦|oua|
Na¦|oua|
lu¦e|·o|o.|uc|a|/
|u¦e|·|eg|oua|
bas|u/sub·bas|u
Loca|
Faud|es |ssues |e|a¦ed ¦o ¦|e u¦|||.a¦|ou o¦
s|a|ed wa¦e| |esou|ces. lo||¦|ca|, e·ecu¦|.e
aud ¦ec|u|ca| oowe|s.
0ec|s|ous cau |u¦|ueuce ¦|e ua¦|oua| |e.e|.
lo||c, ra||ug, o|auu|ug aud coo|d|ua¦|ou
cau be ¦|agreu¦ed aroug d|¦¦e|eu¦ r|u|s-
¦||es aud go.e|ureu¦ bod|es.
lo||c, ra||ug, o|auu|ug aud coo|d|ua¦|ou o¦
wa¦e|·|e|a¦ed ac¦|.|¦|es.
lo||c, ra||ug, o|auu|ug aud coo|d|ua¦|ou o¦
wa¦e|·|e|a¦ed ac¦|.|¦|es.
Va|es oo||c, aud coo|d|ua¦es ¦|e wo|| o¦
subo|d|ua¦ed o| a¦¦|||a¦ed ageuc|es.
Eusu|es coo|d|ua¦|ou a¦ ¦|e ||g|es¦ oo||¦|ca|
|e.e| aroug a|| ageuc|es |u.o|.ed |u wa¦e|
rauagereu¦.
Coo|d|ua¦es a¦ ¦|e ¦ec|u|ca| |e.e| ou|,.
Cau be ad.|so|, o| e·ecu¦|.e.
Faud|es |ssues |e|a¦|ug ¦o wa¦e| suoo|,,
e|ec¦||c|¦,, sewage.
l¦s au¦|o||¦, |auges ac|oss ¦wo o| ro|e
adr|u|s¦|a¦|.e uu|¦s |o|o.|uces, s¦a¦es, e¦c.).
Vauages a w|de |auge o¦ |ssues a¦ ¦|e
bas|u o| sub·bas|u |e.e|.
Coo|d|ua¦es de.e|ooreu¦ o¦ o|ojec¦s.
Faud|es |ssues |e|a¦|ug ¦o ruu|c|oa| wa¦e|
suoo|,, sewage, sau|¦a¦|ou, ||||ga¦|ou ¦o| a
sra|| a|ea.
lu¦e|go.e|ureu¦a|
Co.e|ureu¦a|
Co.e|ureu¦a|
Co.e|ureu¦a|
Co.e|ureu¦a|
Co.e|ureu¦a|
Co.e|ureu¦a|
Co.e|ureu¦a|
l||.a¦e/
uou·go.e|ureu¦a|
Institution Jurisdiction Function Characteristics
lu¦e|ua¦|oua| bas|u
Corr|ss|ou
Vu|¦|o|e ageuc|es
Na¦|oua| V|u|s¦|, |w|¦| r|·ed
au¦|o||¦|es,e.g., ¦o|es¦|,, ¦|s|-
e||es, r|u|ug, eue|g,)
wa¦e| V|u|s¦|,
wa¦e| Couuc|| o| /geuc,
wa¦e| Corr|ss|ou/wa¦e|
Corr|¦¦ee
wa¦e| /u¦|o||¦,
R|.e| bas|u /u¦|o||¦,
wa¦e| use|s' /ssoc|a¦|ou
Table 4.1 Classification of water institutions
74
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
75
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
/u¦|o||¦a¦|.e
l|u|a||s¦|c·||be|a|
0eceu¦|a||.ed·corruu|¦a||au
Water institutions
'¦|ouge| a¦ ¦|e ua¦|oua| |e.e|
'¦|ouge| a¦ ¦|e bas|u |e.e|
'¦|ouge| a¦ ¦|e |oca| |e.e|
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“
76
Box 4.2 Advantages and disadvantages of a centralized institutional framework
Advantages
º Cenlralizalion brings logelher secloral inleresls and mulli-level decision making in a legal and inslilulional
framework consistent with national objectives.
º ll can enhance lhe allocalion ol human and linancial resources lor lhe evalualion and conlrol ol waler
programmes and policies.
º Unilorm slandards and procedures are provided lor waler aclivilies.
º lnler-regional and inlernalional problems can be harmonized wilh nalional inleresls.
º A hierarchical order ol projecls can be developed according lo nalional priorilies.
º Duplicalion ol work by regional and secloral agencies can be avoided.
º A nalional lramework lor allocalion can guaranlee more equilable use ol lhe resources.
Disadvantages
º Slandardized policies can be inappropriale lor addressing parlicular regional and local problems.
º Cenlralizalion can limil lhe parlicipalion ol users in projecl lormulalion and decision making.
º Nalional-level adminslralors can lose louch wilh local users' needs leading lo decisions based on incomplele
information, and ineffective execution and operation of projects.
º A cenlral bureaucracy can lead lo slow decision making and inellicienl programme execulion.
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.
77
“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.
78
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.
79
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.
80
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:
º A sIrohg goverhahce sIrucIure.
º A sysIem !or khowledge mahagemehI o! boIh sciehIi!ic, ahd social ahd orgahizaIiohal ih!or-
mation.
º ParIicipaIioh o! all sIakeholders, especially public parIicipaIioh.
º MohiIorihg o! sciehIi!ic ahd social daIa ih order Io !ihd ouI i! programmes are havihg Ihe
desired effect.
º AdapIive mahagemehI IhaI cah chahge course i! heeded Io achieve iIs 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:
º 8e!ore esIablishihg a hew basih ihsIiIuIioh, ahalyze Ihe couhIry's heeds ahd have a close look
at past experiences. Have basin institutions been set up in the past? Did they work? If not, why
not?
º River basih ihsIiIuIiohs musI operaIe wiIhih a wider haIiohal (ahd eveh ihIerhaIiohal) !rame-
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.
º As a maIIer o! prihciple, Ihe more aware people are o! waIer issues, Ihe easier iI is Io esIab-
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
81
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.
º 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.
82
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.
83
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:
º NaIiohal agehcies musI Iake oh cross-cuIIihg roles supporIihg haIiohal growIh, developmehI
and social priorities, integrating across several government agencies at all levels.
º Locally based WUAs are besI placed Io uhderIake Ihe day-Io-day mahagemehI o! Ihe resource,
and the administration of water-use entitlements.
º 8asih-level agehcies cah play a viIal role ih maihIaihihg a !ocus oh basih-level mahagemehI,
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
84
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
85
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
86
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:
º Awarehess Ihrough media campaighs lihkihg Ihe behe!iIs o! a waIer proiecI Io Ihe heeds or
wants of the public.
º Public parIicipaIioh, ih which Ihe public becomes more ih!ormed ahd parIicipaIes ih decisioh
making.
º Co-mahagemehI ih which civic groups ehgage ih mahagemehI o! waIer proiecIs or ih mohi-
toring, inspection, implementation and enforcement of water arrangements.
º CiIizeh ihiIiaIives, ih which ciIizehs cah lead Ihe way Iowards beIIer waIer mahagemehI.
“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.
87
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
88
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.
89
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
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
Reform
Policy making
Always
public
Public
private
or PPP
Note: PPP – Public-Private Partnership
Regulation
Asset ownership
Corporate oversight
Service provision
Policy making
Regulation
Asset ownership
Corporate oversight
Service provision
90
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.
91
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).
92
Table 4.3 Features of alternative options for the privatization of water services
34
The shading signals the degree of importance
Option
Service
contract
Management
contract
Lease
Build-
operate-
transfer
Concessions
Divestiture
Stakeholder
support and
political
commitment
uu|roo|¦au¦
Low ¦o
rode|a¦e
|e.e|s ueeded
Vode|a¦e ¦o
||g| |e.e|s
ueeded
Vode|a¦e ¦o
||g| |e.e|s
ueeded
F|g| |e.e|s
ueeded
F|g| |e.e|s
ueeded
Cost-
recovering
tariffs
No¦
uecessa|,
|u ¦|e s|o|¦
¦e|r
l|e¦e||ed
bu¦ uo¦
uecessa|, |u ¦|e
s|o|¦ ¦e|r
Necessa|,
l|e¦e||ed
Necessa|,
Necessa|,
Good
information
about the
system
loss|b|e ¦o
o|oceed ou|,
w|¦| ||r|¦ed
|u¦o|ra¦|ou
'u¦¦|c|eu¦
|u¦o|ra¦|ou
|euu||ed ¦o
se¦ |uceu¦|.es
Cood
|u¦o|ra¦|ou
|euu||ed
Cood
|u¦o|ra¦|ou
|euu||ed
Cood
|u¦o|ra¦|ou
|euu||ed
Cood
|u¦o|ra¦|ou
|euu||ed
Developed
regulatory
framework
V|u|ra|
rou|¦o||ug
caoac|¦,
ueeded
Vode|a¦e
rou|¦o||ug
caoac|¦,
ueeded
'¦|oug
caoac|¦, ¦o|
|egu|a¦|ou aud
coo|d|ua¦|ou
ueeded
'¦|oug
caoac|¦, ¦o|
|egu|a¦|ou aud
coo|d|ua¦|ou
ueeded
'¦|oug
|egu|a¦o|,
caoac|¦,
ueeded
'¦|oug
|egu|a¦o|,
caoac|¦,
ueeded
Good
country
credit
rating
No¦ uecessa|,
No¦ uecessa|,
No¦ uecessa|,
F|g|e|
|a¦|ug w|||
|educe cos¦s
F|g|e|
|a¦|ug w|||
|educe cos¦s
F|g|e|
|a¦|ug w|||
|educe cos¦s
Potential
benefits
of the
option
LOW
HIGH
93
4.8 Practical steps and indicative principles
1. Institutions for water management should be designed to reflect national realities.
º Make sure IhaI waIer ihsIiIuIiohs make sehse wiIhih Ihe poliIical, ecohomic ahd social coh-
text in which they are established.
º OuIlihe Ihe ihsIiIuIiohal seI up IhaI already exisIs ih Ihe couhIry.
º Check Ihe hisIory o! Ihe ihsIiIuIiohal !ramework relaIihg Io waIer, Ihe successes ahd Ihe
pitfalls, and in particular the reasons why certain efforts may have been abandoned or
amended.
º Fihd ouI i! Ihere is a river/lake auIhoriIy ih Ihe couhIry (or ih heighbourihg couhIries) ahd
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.
º DeIermihe whaI poliIical agehcies ih Ihe couhIry have decisioh makihg powers oh waIer
issues.
º LvaluaIe Ihe level o! auIohomy giveh Io haIiohal (ih !ederal couhIries) ahd local (!ederal ahd
centralized) governments with regard to the administration of natural resources, including
water.
º Cohsider geographic realiIies (waIer disIribuIioh, ihIer-iurisdicIiohal basihs).
3. When establishing or reforming an institutional framework consider the following facts:
º FuhcIiohs relaIed Io agriculIural, !ishihg, muhicipal ahd domesIic uses are beIIer dealI wiIh
at the provincial or basin level, whereas navigation and water infrastructure are best left as
central government responsibilities.
º Policy !ormulaIioh ahd haIiohal waIer ihvehIories are more likely Io be cehIral goverhmehI
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.
º 8asih orgahizaIiohs musI relaIe Io Ihe wider waIer ihsIiIuIiohal seI up o! Ihe couhIry.
º 8asih orgahizaIiohs musI be provided wiIh a cerIaih level o! auIohomy Io Iake decisiohs,
hire qualified staff, and manage their own budgets.
º WiIhih Ihe cohIexI o! shared rivers ahd lakes, ih ah ideal case, Ihey have Io be compaIible
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.
º LvaluaIe pasI experiehces, parIicularly wiIhih Ihe couhIry or ih similar couhIries, ih Ierms o!
what went well and what went wrong.
º Cohsider Ihe advahIages ahd disadvahIages o! a basih orgahizaIioh ahd respohd Io realiIies
on the ground in terms of water management.
94
º LsIablishihg a basih orgahizaIioh should be accompahied by a capaciIy-buildihg ahd learh-
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.
º 1his coordihaIioh mechahism cah be a couhcil, a commiIIee, a commissioh or ah agehcy ahd
its composition will vary according to the political realities of the country.
º IIs goal is Io coordihaIe Ihe acIiviIies o! Ihe di!!erehI ihsIiIuIiohs relaIihg Io waIer mahage-
ment.
º II cah be a discussioh !orum, wiIh cerIaih decisioh-makihg powers, buI iI has Io be represeh-
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.
º Recoghize IhaI a cerIaih level o! ihsIiIuIiohal dispersioh is uhavoidable.
º The complexity in terms of jurisdiction (local, municipal, basin, national, international) cannot
be managed effectively within the scope of a single institution.
º CoordihaIioh mechahisms amohg ihsIiIuIiohs should be esIablished, as well as mohiIorihg,
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.
º A cohesive ahd solid ihsIiIuIiohal !ramework !or waIer is a prerequisiIe Io achievihg ah
effective water governance system that delivers on IWRM goals.
º A well desighed ihsIiIuIiohal !ramework IhaI respohds Io couhIry realiIies ih Ierms o! waIer
availability, distribution, geographical realities and jurisdictional boundaries, is the best
assurance to deliver on the country’s policy priorities.
º LlimihaIioh o! corrupIioh depehds oh several !acIors: goverhmehI's commiImehI ahd Ihe
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).
95
96
97
C h a p t e r 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:
º A sysIem IhaI promoIes public parIicipaIioh ahd a !ree press.
º Ah e!!ecIive ih!ormaIioh !low.
98
º Free or low-cosI access Io ih!ormaIioh.
º Readily available, perIihehI ahd accuraIe ih!ormaIioh.
º Opeh chahhels o! commuhicaIioh beIweeh all Ihe sIakeholders ihvolved ih waIer mahage-
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
99
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:
º L!!ecIive implemehIaIioh o! Ihe law.
º A process Io amehd Ihe law.
º A sysIem o! regulaIiohs Io order speci!ic IrahsacIiohs.
º A sIrohg iudicial sysIem.
º AbiliIy Io seek recourse !or damages.
º AlIerhaIive dispuIe-resoluIioh mechahisms.
“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:
º Lhsure public IrusI ahd coh!idehce Ihrough meeIihg commiImehIs !or plahhihg ahd mahagihg
water resources and addressing social and environmental issues.
º Secure compliahce wiIh all laws ahd regulaIiohs, geheral or proiecI-speci!ic, aI all sIages o!
the water resources development and management.
º Establish an appropriate ‘mix’ of regulatory and non-regulatory measures, including incentives
and sanctions.
100
º LsIablish ahd abide by sIricI ahIi-corrupIioh policies ahd regulaIiohs.
º ImplemehI ahy agreed plah Io compehsaIe !or loss o! ihcome or properIy due Io waIer devel-
opment in a timely and correct manner.
º 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.
101
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
102
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.
103
Table 5.1 Economic incentives for watershed service maintenance
Economic incentive
l||.a¦e oa,reu¦ sc|ere
Cao·aud·¦|ade sc|eres
Ce|¦|¦|ca¦|ou sc|eres o¦
eu.||oureu¦a| goods |eco·
|abe|||ug)
lub||c oa,reu¦
Characteristics
º Lowes¦ |e.e| o¦ go.e|ureu¦ |u¦e|.eu¦|ou
º 'l||.a¦e' |e¦e|s ¦o o|o¦|¦ see|e|s aud |ud|.|dua|s
º l||.a¦e eu¦|¦|es ag|ee arougs¦ ¦|erse|.es ¦o o|o.|de oa,reu¦s |u |e¦u|u
¦o| ra|u¦euauce o| |es¦o|a¦|ou o¦ a wa¦e|s|ed
º / 'cao' |s de¦e|r|ued |b, ¦|e go.e|ureu¦ o| a .o|uu¦a|, ra||e¦ s,s¦er)
º le|r|¦s o| c|ed|¦s a|e a||oca¦ed aroug oo||u¦e|s
º / ra||e¦ |s de.e|ooed ¦o| e·c|aug|ug oe|r|¦s aud c|ed|¦s
º la,reu¦ erbedded |u ¦|e o||ce oa|d ¦o| a ¦|aded o|oduc¦
º bu,e|s oa, ¦o| o|oduc¦s ¦|a¦ coro|, w|¦| eu.||oureu¦a| s¦auda|ds
º F|g|es¦ |e.e| o¦ go.e|ureu¦ |u¦e|.eu¦|ou
º bu,e|s a|e oub||c au¦|o||¦|es
º 'oec|¦|c rec|au|srs |uc|ude use| ¦ees, |aud ou|c|ase aud |aud easereu¦
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:
º Licehce ahd permiI cohIravehIiohs.
º UhauIhorized use o! waIer.
º 1amperihg wiIh Ihe qualiIy or quahIiIy (ihcludihg !low raIes) o! waIer resources.
º Uhlaw!ul cohsIrucIioh o! waIer ih!rasIrucIure (such as dam cohsIrucIioh).
º Failure or re!usal Io !urhish daIa or ih!ormaIioh, or !urhishihg !alse or misleadihg daIa or
information.
º ObsIrucIihg a SIaIe agehI or ihspecIor ih Ihe exercise o! ahy sIaIuIory power or duIy.
º Uhlaw!ully ahd ihIehIiohally or hegligehIly commiIIihg ahy acI or omissioh which acIually or
potentially pollutes a water resource.
º CorrupIioh ahd !raud.
“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
104
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.
105
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:
º The gravily or lhe seriousness ol lhe violalion and ils consequences.
º The monetary benefit, if any, that the facility has gained from non-compliance with Ontario’s environmental
laws.
º The number ol days lhe violalion conlinues.
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.
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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.
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“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?
º 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.
º HealIh variables such as access Io sa!e drihkihg waIer ahd sahiIaIioh, ahd ihcidehce o! waIer-
borne diseases.
º Lcohomic variables such as cosIs Io Ihe goverhmehI ahd cohsumers o! providihg waIer, sewer-
age and hydropower.
º Progress Iowards goals seI ih !ive-year plahs or ahy oIher goverhmehI waIer programmes.
These might include the number of water user groups formed, number of additional homes
served by sewerage, or agreements reached by various partners.
º Compliance with pollution regulations such as discharge limits or fertilizer use near waterways.
º L!!ecIivehess o! eh!orcemehI e!!orIs ih Ierms o! !ees collecIed, courI cases woh, or compliahce
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
108
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.
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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.
110
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:
º A syslem ol values lhal inlegrales lhe managemenl ol waler and loresls.
º A slruclure ol aulhorilies based on seniorily, bringing logelher leadership and aulhorily.
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º A legal syslem lhal emphasizes lhe proleclion ol communal loresls because lhese loresls are direclly linked
to water supply sources.
º A syslem ol communily managemenl based on lhe volunlary service ol lhe communily 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:
º Review ahd adiudicaIioh o! waIer agehcy admihisIraIive decisiohs.
Conflicts between private water rights claimants and/or (public or private) water administra-
tion agencies.
º PehalIies agaihsI waIer law violaIiohs.
º WaIer courIs geherally ihclude a iudge servihg as courI presidehI as well as Iwo specialisIs ih
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, USA
43
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
112
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.
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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
114
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.
115
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.
116
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.

117
Cases and boxes
Box 1.1 The Dublin Statement on Water and Sustainable Development
Box 1.2 IWRM in international policy
Box 1.3 The Right to Water
Box 3.1 Water law and environmental justice
Box 4.1 Examples of water institutions
Box 4.2 Advantages and disadvantages of a centralized institutional framework
Box 5.1 Steps to foster transparency
Case 1.1 Benefits of good water management in Dar es Salaam
Case 1.2 Detrimental consequences of poor water management
Case 1.3 Development of a coherent water management plan in Brazil
Case 2.1 Water reform in South Africa
Case 2.2 Water for El Chaco: a model of decentralized water management
Case 3.1 The Chagga furrow committees
Case 3.2 Water law reaches into building codes and agricultural land use
in Andhra Pradesh, India
Case 3.3 Applying for a water abstraction licence in Namibia
Case 3.4 The Chilean water market
Case 3.5 Ecological elements of water law, New South Wales, Australia
Case 3.6 Environmental flows in Costa Rica and Chile
Case 3.7 National water reserves in the South African Water Law
Case 3.8 Protected water landscapes
Case 3.9 China’s water code assigns responsibilities to the ministry
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22
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76
99
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25
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42
52
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61
61
63
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118
Case 4.1 Water institutional reforms in Morocco
Case 4.2 National, basin and local institutions within a regional context
Case 4.3 Problem solving through international basin institutions in West Africa
Case 4.4 Implementing national policies through local institutions in Tanzania
Case 4.5 New York pays upstream users to keep its water clean
Case 4.6 “Comunidades de Regantes”
Case 4.7 Citizen action wins case to create basin authority
Case 5.1 U.S. Environmental Protection Agency Water Pollution Regulations
Case 5.2 Applying water governance in a federal context; the case of Argentina
Case 5.3 ‘Cánon ambiental de vertidos’
Case 5.4 Wastewater discharge fees in Colombia
Case 5.5 Environmental penalty regulations help to protect Ontario’s water sources
Case 5.6 Water governance by covenant in the community of Pijal, Ecuador
Case 5.7 India’s 1974 Water Pollution Act: a failure of enforcement
Case 5.8 ‘Tribunal de Aguas de Valencia’, Spain
Case 5.9 Enforcement of customary water law
Case 5.10 Water Court in the District Court of Montrose, Colorado
Case 5.11 The Biwater Tanzania case
Case 5.12 Court injunction provides relief to community with contaminated water in

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85
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87
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Pursuant to the Clean Water Act
Argentina
119
Tables and figures
Table 1.1 Components of a national legal framework
Table 2.1 Ten principles of new public management
Table 2.2 Overview of types of water policy arrangements
Table 2.3 Typology for water policy arrangements
Table 4.1 Classification of water institutions
Table 4.2 Water policy arrangement approaches
Table 4.3 Features of alternative options for privatization of water services
Table 5.1 Economic incentives for watershed service maintenance
Figure 1.1 Effective water governance system
Figure 4.1 What can be privatized?
Figure 5.1 From water management to effective water governance
23
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75
92
103

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120
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.
121
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.
122
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.
123
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:
º AbsIracI or diverI ahd use a speci!ied amouhI o! waIer !rom a haIural or mah-made source
(for so-called ‘off-stream’ uses).
º Impouhd or sIore waIer ih a haIural source behihd a dam or oIher hydraulic sIrucIure.
º Use waIer ih a haIural source (!or so-called 'ih-sIream' 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.
124
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.
125
Photo credits
Photo 1.1 © IUCN/ Taco Anema
Photo 2.1 © IUCN/Taco Anema
Photo 3.1 © Wolfgang Franke
Photo 4.1 © IUCN / Danièle Perrot-Maître
Photo 5.1 © IUCN / Alejandro Iza
18
32
62
82
115
126
References
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worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:21693343~menuPK:34459~pagePK:34370~piPK:34424~the
SitePK:4607,00.html
2 World Bank. (2008). “Community-managed Water Supply System Changes Lives”. Press release, 20 March, 2008.
http://web.worldbank.org/WBSITE/EXTERNAL/NEWS/0,,contentMDK:21501143~menuPK:34457~pagePK:34370~piPK:
34424~theSitePK:4607,00.html
3 World Water Council. (2000). World Water Vision. London, UK: Earthscan. At http://www.worldwatercouncil.org/
fileadmin/wwc/Library/WWVision/TableOfContents.pdf
4 World Commission on Dams. (2000). Dams and Development: A New Framework for Decision-making. London, UK:
Earthscan.At http://www.dams.org//docs/overview/wcd_overview.pdf
5 Millennium Development Goals, in United Nations Millennium Declaration. United Nations, General Assembly,
Resolution Number A/RES/55/2 of 18 September, 2000. At http://www.un.org/millennium/declaration/ares552e.pdf
6 The Dublin Statement on Water and Sustainable Development. Adopted 31 January, 1992, Dublin, Ireland.
International Conference on Water and the Environment. At http://www.un-documents.net/h2o-dub.htm
7 Paris Declaration, Water and Sustainable Development International Conference, 19–21 March, 1998. Paris. At
http://www.waternunc.com/gb/decfingb.htm
8 Ministerial Declaration, 4th World Water Forum, 21–22 March, 2006. Mexico. At http://worldwaterforum5.org/
fileadmin/wwc/World_Water_Forum/WWF4/declarations/Ministerial_Declaration_english.pdf
9 Global Water Partnership Technical Advisory Committee (TAC). (2000). Integrated Water Resource Management.
TAC Background Papers No. 4. Stockholm, Sweden: Global Water Partnership.
10 Scanlon, J., Cassar, A. and Nemes, N. (2004). Water as a human right? Gland, Switzerland and Cambridge, UK:
IUCN.
11 Iza, A. and Rovere, M. (2009). Gobernanza del agua en America del Sur: dimension ambiental. Gland, Switzerland
and Cambridge, UK: IUCN.
12 Ministry of Water Affairs, Republic of South Africa. http://www.dwaf.gov.za/Documents/Policies/NWRS/Sep2004/
pdf/AppendixA.pdf
13 Osborne, D. and Gaebler, T. (1992). Reinventing government: how the entrepreneurial spirit is transforming the
public sector. Reading, MA, USA: Addison-Wesley.
14 Padt, F.J.G. (2007). Green Planning. An Institutional Analysis of Regional Environmental Planning in the
Netherlands. Delft, Netherlands: Eburon.
15 Harvey, D. (1996). Justice, nature and the geography of difference. Oxford, UK: Blackwell Publishers.
16 Dr Fernando Costantini and Olga Buendía.
17 Padt, supra, note 14.
18 Center for Environmental Law and Policy (CEPL). Central European University, Budapest, Hungary.
19 Caponera, D. (2000). Les principes du droit et de l’administration des eaux. Droit interne et droit international.
Paris, France: Editions Johanet.
20 IUCN Eastern Africa Programme. (2003). Pangani Basin: A situation analysis. Nairobi, Kenya: IUCN EARO.
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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.
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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
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
Couverture_ARP.indd 1 4.3.2009 19:12:57

Rule
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: Copyright: IUCN, Gland, Switzerland © 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. Reproduction of this publication for resale or other commercial purposes is prohibited without prior written permission of the copyright holder. Citation: Iza, A. and Stein, R. (Eds) (2009). RULE – Reforming water governance. Gland, Switzerland: IUCN. 978-2-8317-1027-3 Melanie Kandelaars Atar Roto Presse SA

ISBN Design by: Printed by:

Available from: IUCN (International Union for Conservation of Nature) Publications Services Rue Mauverney 28 1196 Gland Switzerland Tel +41 22 999 0000 Fax +41 22 999 0020 books@iucn.org www.iucn.org/publications A catalogue of IUCN publications is also available.

2

3 Water policy principles 2.7 Linking policies to realities: general principles 2.5 Context of water policy reform 2.3 Water governance capacity 1.1 Managing water effectively 1.4 Organization of RULE 1.6 Typology of water policy and planning reforms 2.2 Importance of policy and law 1. Creating Water Governance Capacity 1.5 The water governance capacity checklist 17 17 24 25 26 28 Chapter 2.2 Vision for the future 2.8 Reforming water policy: practical steps 31 31 33 33 37 39 41 44 46 3 .Contents Key messages Preface Foreword Editors and authors Acknowledgements 7 11 13 14 15 Chapter 1.1 The role of water policy 2. Linking Policies to Realities 2.4 Process principles for water policy 2.

role and reach of water resources legislation 3.3 Monitoring and information management mechanisms 5.4 Water quality protection 3.5 Incorporating conservation into water law 3.7 Private-sector roles in water management 4.8 Reforming water law: practical steps 49 49 50 54 58 60 65 67 68 Chapter 4.2 Types of water institutions 4.Chapter 3.5 RULE: A framework for effective water governance 97 97 100 107 107 114 4 .8 Practical steps and indicative principles 71 71 73 78 83 84 86 88 93 Chapter 5.1 Enabling implementation 5.4 Designing institutions for IWRM 4.5 Funding water institutions 4.1 Building governmental water institutions 4.3 Water allocation 3.4 Compliance and enforcement 5. Building a Sound Institutional Mechanism 4.3 Four levels of water institutions 4.1 Features of water law 3. Implementing Water Governance Capacity 5.6 Public participation and civil society organizations 4.6 Prescribing institutional functions 3.2 Regulations 5. Transforming Policy into Law 3.7 Weaknesses of existing legal systems 3.2 The context.

Cases and boxes Tables and figures Glossary Photo credits References 117 119 120 125 126 5 .

6 .

compliance and enforcement are likely to be lax. it needs a policy that defines principles. a vision statement. institutions (and implement them) to achieve a system of effective water governance. Achieving a balance of capacity (rather than areas of strengths and weaknesses) through reform is a country-specific process. it is difficult for institutions to know how to operate. 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. on leadership. Understanding which water issue can be best solved with which type of policy arrangement is key for successful water 7 . and a section on responsibilities regarding who will carry out the policies. which depends on political will and opportunities. Without a clear policy. institutions. A written water policy might contain a background section explaining the need for the policy. and have never been reconciled. law. policies and laws related to water management have accumulated over time deriving from different philosophies and approaches. Without a clear established legal structure. Reforming policies and laws into a cohesive package is a difficult and time-consuming task. There is no blueprint solution. a set of definitions. Understanding water policy arrangements is essential for a successful reform Not all policy arrangements are suited to every water management situation. Without effective institutions. a statement of scope. laws. and on a country’s capacity to govern its waters. an effective date. one or more statements of policy.Key messages 1. 2. a statement of purpose. Creating Water Governance Capacity Effective reform depends on water governance capacity In most countries. These can then be moved to an enforceable set of decision-making requirements through the law. 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. Water policy framework is consolidated by water law For water management to be compelling over time. 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. regulations. actors and processes. it is difficult to develop a coherent system of laws. and compliance mechanisms.

protect water quality for human and ecosystem uses as defined by water policy. a long-term strategy. and to maintain healthy ecosystems throughout the watershed. with rights which can be enforced and protected. but to coordinate the work of a multiplicity of them with jurisdiction over different water management sectors. 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). A pluralistic-liberal approach works best with parties that are closely linked to a specific geographic area such as a river basin. An authoritative policy is usually linked to macro projects dealing with national security or economic development. When setting up a river basin institution. Well drafted laws offer predictability.reform. 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. A modern legal regime for water is comprehensive and includes efficiency. and a precise yet flexible structure through which obligations are laid down. and a clear organizational structure must be established. 3. following a common vision and plan. 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. It must set out the coordination mechanisms across sub-national boundaries and jurisdictions. 8 . whereas a decentralized-communitarian water policy is suitable for periods of change and innovation. Consolidation promotes a more effective legal structure by avoiding the trouble of issues being overlooked. a clear mandate. and set up an institutional water management structure. Codification promotes legal certainty and increases efficiency A unified code for water expresses a decisive political commitment. and the complications and confusions of having to navigate through numerous and often inconsistent pieces of legislation. it is necessary to work at the river basin level. lakes and ground waters. equity and sustainability considerations A unified code of water law must establish water rights and fair allocations. Coordination rather than merely decentralization The critical issue is not to centralize or decentralize institutions. 4.

9 . Economic instruments provide an alternative mechanism for effective compliance Compliance with. certainty. and create respect and support for water decision making. Incentive mechanisms include taxation. and coherence in. What cannot be privatized The stewardship function of water management cannot be privatized. 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. Participation is the basis for commitment to.Public engagement in water management enhances water governance Civil society participation helps to create networks of arrangements for water management. policy-making and bargaining processes. 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. accountability and the lack of corruption. Enforcement mechanisms ensure stakeholder security in cases of non-compliance Inclusion of enforcement mechanisms in the water law (punitive sanctions. decentralization. and payment schemes for watershed services. institutional management of government agencies and regulatory functions must remain public responsibilities. subsidies. monitoring and inspection) ensures that justice can be reached when a contravention of the water law occurs. 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. 5. and enforcement of. An efficient judicial system is a key reinforcement for implementing water governance Effective enforcement of water legislation is rendered by properly funded and resourced administrative mechanisms overseen by accessible and affordable judicial systems. legislation. prior notice and abatement measures. water law can be enhanced using regulations to establish appropriate incentive mechanisms that support and enable compliance by stakeholders. generate trust and empowerment among stakeholders. Thus. implementation of effective water governance.

10 .

Preface 11 .

12 .

Foreword 13 .

former Legal Office. in collaboration with Olga Buendía (formerly of ELC) Dr Alejandro Iza and Robyn Stein Dr Alejandro Iza and Robyn Stein Chapter 2 Chapter 3 Chapter 4 Chapter 5 14 . IUCN Environmental Law Centre (ELC). World Water Council (WWC). Robyn Stein. Colorado Supreme Court) and Dr Alejandro Iza Stefano Burchi. Jr (Justice. IUCN Commission on Environmental Law and Juan Carlos Sánchez (ELC) Dr Ger Bergkamp. Gregory J. Hobbs.Editors and authors Edited by Alejandro Iza and Robyn Stein Chapter 1 Dr Alejandro Iza. Food and Agriculture Organization of the United Nations (FAO) and Robyn Stein.

and Megan Cartin. now Director General of the World Water Council. We also thank Mary Paden and Tiina Rajamets for editorial support. case studies and personal experiences. Thanks are also due to Ger Bergkamp. Finally. We also wish to thank Juan Carlos Sánchez. In particular. former Head of the IUCN Water Programme. IUCN Water Programme. for their unstinting assistance in the editorial process. We are grateful to Olga Buendía. as a continual source of inspiration during the development of the book. Many individuals provided advice and help to the authors and editors of this book in the form of feedback. Junior Legal Officer at the ELC. the financial contribution of the Government of the Netherlands through the Water and Nature Initiative is gratefully acknowledged. Head of the IUCN Water Programme for his invaluable direction and guidance in the process of developing this publication. we would like to thank Mark Smith. former ELC Water Governance and Research and Development Officer for her contribution in coordinating this project in its initial stage. and the preparation of this book.1. 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. 15 . and assembling the first draft.1 and 5.Acknowledgements RULE was developed by IUCN’s Environmental Law Centre (ELC) under the IUCN Water and Nature Initiative (WANI). Monitoring and Evaluation Officer. We are grateful for their time and assistance. We also thank Markus Kahlenberg of Magoodesign for work on figures 1.

16 .

everyone in this community enjoys reliable. According to the World Bank Water and Sanitation Program (WSP). and improve the economy. JUWABERI manages the water supply project on behalf of the state-owned water utility. while poor management can mean lack of power. Good water management can provide clean drinking water and sanitation. Case 1. Case 1. Today. Before the project started. Before the project’s implementation. poor sanitation is responsible for at least 17 .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. Good water management can result in harmonious and mutually beneficial water agreements with neighbouring countries. while bad management can trigger tensions and conflict. Good water management can bring hydroelectric power to homes and industry. Apart from providing water to the surrounding four schools and a local health centre. The association. while poor management can result in parched ground. a prohibitive amount for much of the population. desiccated crops. while poor water management can increase disease and suffering. The project is a successful example of a community managing its own water provision and subsequent income.4 percent in Bangladesh. and made it possible for people who previously spent time and energy looking for water to engage in more constructive economic activities. virtually eliminated waterborne diseases.Chapter 1 Creating Water Governance Capacity 1. the basics of good health.000). according to the Chairman of the Biblia Relini Water Users’ Association.2 shows the detrimental consequences of poor water management. Case 1. about 5 percent of the total cost of the project. the project has led to a dramatic improvement in hygiene.1 Managing water effectively How a country manages its water resources determines the health of its people. irrigation for agriculture. and its relations with its neighbours. private vendors sold water at prices upwards of TSh500 or US$0. the success of its economy. commonly known as JUWABERI.02 cents for 20 litres of water. In short.5 million (about US$2. Good water management allows water for wildlife to maintain biodiversity. privatelyowned boreholes and from private vendors. whilst Case 1. floods and famine. dried-up lakes and silted harbours.1 Benefits of good water management in Dar es Salaam1 In the Kitunda Settlement of Dar es Salaam’s Ilala District.6 percent in Tunisia. and 1. a community-managed water supply system changed the lives and work of the Kitunda community. which boasts 340 members. which was of poor quality and a high price.40 cents for 20 litres. and provides opportunities for recreation and tourism. good water management brings tangible benefits to a country. the group that manages the project. the sustainability of its natural environment. in Tanzania. employs 20 people who manage the revenues and administer the public standpipes. the Dar es Salaam Water and Sewage Authority (DAWASA). Members of the community contributed TSh2. the people of Kitunda had to buy water from mostly shallow. affordable clean water paying only Tsh20 or about US$0. 0.1 demonstrates an example of the benefits brought by improved management of water.

and reducing the production of fish in rivers and lakes. The most devastating impact of poor sanitation is an increased risk of infectious disease and premature death. and the uncertain effects of climate change. can do much to ensure that water is carefully managed. according to WSP. provide the skeleton that is fleshed out by institutions and management practices. growing demands of industry and agriculture. from professionals with a national water authority to local managers who oversee dams or hydro plants. 18 .8 billion. Poor sanitation also contributes significantly to water pollution – adding to the cost of safe fresh water for households. or US$12 per capita annually. constitute a country’s ‘water governance capacity’. implementation. although usually in the background of development. Sanitation is a neglected aspect of development in countries where spending is limited which has severe social consequences on their populations. However. RULE focuses on the importance of national policy and laws in effective water management. the Philippines and Viet Nam combined. and enforcement mechanisms. Water governance capacity is about building a management system that delivers tangible results for ecosystems and human wellbeing. when combined with institutions. even their best efforts can be thwarted by the lack of a comprehensive legal and policy framework that levels the playing field. Policy and law. clarifies the rules. Water managers understand the increasing stress placed on fresh water sources by growing populations. and sets a country on the route to good management. Photo 1.1 Women collecting water from a canal (Tanzania). Policy and law. and not always directly discussed in the context of good management practices.US$9 billion in economic losses per year in Cambodia. Innovative water managers. Indonesia. accounting for more than US$4.

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. and implementation and enforcement methods from many countries are analyzed and guidelines developed for reforming water governance structure. agriculture and wildlife. triggered by the growing scarcity of clean water and the significant alteration of habitat. However. Of course. the Aswan Dam in Egypt and the Ilisu Dam in Turkey produced astounding economic development in the areas they served. users began competing for water with each other and with the natural world.1. power and irrigation. taking into account not only the water. Water governance is a means to an end. industry. washing. Such development of water resources has also had negative effects including flooding of populated. productive valleys and forcing the relocation of thousands of people. including social and human capital. there are many varieties of successful laws and policies that suit countries with different traditions and forms of government. 1. policies and institutions. as human numbers grew and as society developed ever more water-demanding forms of industry and agriculture. Equitable: Both benefits and costs are shared and a transparent process is used to arrive at societal decisions applied to water management. Today. Reservoirs became silted up with the result that natural replenishment of soil fertility was withheld from downstream crops. an attempt is made to match policies to certain governmental situations (see Chapter 2).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.4 the Millennium Development Goals (MDGs). It also maintains good relations between all the users who share water resources and develops systems that will accommodate future generations. With coordinated laws. 19 . the purpose of water management was to bring water to where it could be used for drinking. Thus. It seeks to serve as a guide on how to shift away from often fractured and uncoordinated approaches by establishing a central role for policy and the rule of law. which is good water management. Large-scale industrial-age water projects like the Tennessee Valley Authority in the United States.RULE provides practical guidance on how to create a system of effective water governance at the national level. Since the early 1990s.3 the World Commission on Dams Report. policies. but doing so in a way that balances the competing interests of individuals. For most of human history. Water management was also used to even out the fluctuations of flood and drought by storing water and to carry away waste. Laws. The current international discourse is captured in a series of statements and documents such as the World Water Vision. many issues that are presently problematic for local managers can be addressed. water management means not only delivering water services.5 and the outcome of the United Nations Commission on Sustainable Development (CSD). Good water management can be characterized as: Efficient: It maximizes the use of water resources under rational patterns of consumption that can benefit most consumers. institutional arrangements. but also other resources. international bodies have been urging reform in national water policies and laws.

effective management of water resources demands a holistic approach. Sustainability and social welfare are incorporated into Integrated Water Resources Management (IWRM. When developing a new water policy it is therefore essential to be aware of the international discourse.7 and the Ministerial Declaration of the World Water Forum.2). It is also linked to international norms and standards to which many countries have agreed to abide. The discourse has generally incorporated the ideas of sustainability and human rights into water management. which is defined as: ‘A process that promotes the coordinated development and management of water. 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. It means that decisions are taken at the lowest appropriate level. 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. It often provides the ‘lingua franca’ with which to engage with other states to synchronize policies over shared resources.’9 20 . Effective management links land and water uses across the whole of a catchment area or groundwater aquifer. management and safeguarding of water. Fresh water is a finite and vulnerable resource. The participatory approach involves raising awareness of the importance of water among policy makers and the general public.8 Box 1. Women play a central part in the provision. This pivotal role of women as providers and users of water and guardians of the living environment has seldom been reflected in institutional arrangements for the development and management of water resources. the Paris Declaration on Water and Sustainable Development International Conference. in ways defined by them. and of encouraging conservation and protection of water resources.1 The Dublin Statement on Water and Sustainable Development Guiding principles: 1. 2. Within this principle. Water development and management should be based on a participatory approach. linking social and economic development with protection of natural ecosystems. development and the environment. Water has an economic value in all its competing uses and should be recognized as an economic good. 3. Past failure to recognize the economic value of water has led to wasteful and environmentally damaging uses of the resource. planners and policy makers at all levels. see Box 1. 4. This international discourse provides ideas and guidelines that can be adapted and further developed by national policy and legislation. land and related resources to maximize economic and social welfare in an equitable manner without compromising the sustainability of vital ecosystems. essential to sustain life. including decision making and implementation.as well as the Dublin Statement on Water and Sustainable Development6 (see Box 1. Since water sustains life. Managing water as an economic good is an important way of achieving efficient and equitable use. involving users.1). with full public consultation and involvement of users in the planning and implementation of water projects.

international discourse has promoted another line of reform – a rights-based approach (RBA) to water management. In developing and using water resources. we agree to halve. IWRM perceives water governance as a multi-stakeholder process in which social. “THE RIGHTS-BASED APPROACH HAS GAINED SOME RECOGNITION AT THE INTERNATIONAL LEVEL” More recently. in order to satisfy and reconcile needs for water in human activities. 2. South Africa. 3. Source: Millennium Development Goals.3). and a social and economic good. To this end. by 2015. to mention but a few countries. management and use of water resources. However. Goal 7. By definition. Box 1. political and economic institutions and their relationships are regarded as important for water development and management. a natural resource. It deals not only with human needs and development requirements. Thus RBA combines human development with human rights. Beyond these requirements. water resources have to be protected. and has been the objective of national plans in Nicaragua. priority has to be given to the satisfaction of basic needs and the safeguarding of ecosystems. In this respect.“IWRM IS A COMPLEX UNDERTAKING THAT PRESENTS MAJOR CHALLENGES FOR NATIONAL WATER GOVERNANCE SYSTEMS” Most of the recent water reform processes focus on IWRM. Protection of the quality and supply of freshwater resources: application of integrated approaches to the development. 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. 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). Ecuador and South Africa. Source: Johannesburg Plan of Implementation of the World Summit on Sustainable Development. whose quantity and quality determine the nature of its utilization.2 IWRM in international policy Excerpts from international policy documents on the concept of Integrated Water Resources Management 1. Source: Agenda 21. and gives communities a moral basis from which to claim international assistance. Halve. the implementation of IWRM is a complex undertaking that presents major challenges for national water governance systems. 21 . water users should be charged appropriately. taking into account the functioning of aquatic ecosystems and the perenniality of the resource. The provision of clean drinking water and adequate sanitation is necessary to protect human health and the environment. but also proposes a societal obligation to guarantee and protect inalienable rights of individuals. Integrated water resources management is based on the perception of water as an integral part of the ecosystem. It empowers people to demand water access as a right. however. the proportion of the population without sustainable access to safe drinking water and basic sanitation. Johannesburg. 2002. by the year 2015. Target 3. Chapter 18. which asserts that humans have a right to clean water (see Box 1. which has been promoted internationally in various fora.

Social and Cultural Rights (CESCR) adopted General Comment Number 15 (GC15). 5. The national level water indicators and benchmarks. access to adequate sanitation. Recognize citizens’ right to seek. Guarantee that the right to water is enjoyed without discrimination. the United Nations Committee on Economic. 3. acceptable. The individual level and domestic uses to prevent disease. safe. groups.Although a human right to water may ‘entitle everyone to sufficient. Agree to the government’s obligation to respect. safe. and prevent violations by organizations of which the state is a member or which it administers. Under this policy framework. Box 1. 6. Realize that people have a right to lead a life with human dignity. 4. 2. The right to water has impacts at the national. The community level basis. protect and fulfil its citizens’ rights to water. While the rights-based approach has gained some recognition at the international level. that have a sufficient number of water outlets to avoid prohibitive waiting times. 2002. and that are at a reasonable distance from the household. and affordable water for personal and domestic uses. especially for disadvantaged or marginalized groups. ‘The Right to Water’.3 The Right to Water On 12 November. there are still uncertainties about its meaning and practical implications.10 significant economic resources are needed to deliver clean water to every individual. water. physically accessible and affordable water for personal and domestic uses’. physically accessible. 22 . community and individual levels. Recognize the entitlement of everyone to sufficient. national governments would have six explicit obligations: 1. receive and impart information concerning water issues. acceptable. Refrain from interference and sanction.

Table 1.1 Components of a national legal framework Legal Instrument Scope Type of Regulation Purpose - - - - - 23 .

Corruption can be reduced when the laws ensure transparency and accountability. they can influence how a government negotiates with neighbouring states over water issues. In India. and thus the right to seek redress if they do not receive it. “NATIONAL POLICY SETS OUT THE PHILOSOPHY AND GOALS OF WATER MANAGEMENT” Laws codify public policies. these policies and laws have accumulated over time. policies set a clear direction.1).At least one national court has recognized the right to water.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. The Indian Supreme Court has interpreted the fundamental right to life under the Constitution to include the right of enjoyment of pollutionfree water. However. which is then codified into law and implemented in practice. IWRM and RBA are not mutually exclusive. spawned from different philosophies and approaches. especially the most vulnerable and marginalized (see Table 1.3). Clear. They can set up mechanisms for government to form partnerships with private industry. Policies can set priorities for water use and they can declare that every citizen has a right to clean water. Reforming national policies and laws into a cohesive package is a difficult and time-consuming task. a citizen might directly approach the Supreme Court under Article 32 of the Constitution. policies formed at different times by different administrations and interest groups are in conflict and can cause stalemate or confusion among managers. and have never been reconciled. In fact. However. and allow citizens to get involved and understand the economic and legal process related to water management. in many countries. “IWRM AND RBA ARE NOT MUTUALLY EXCLUSIVE AND THERE ARE OPPORTUNITIES TO BUILD BRIDGES BETWEEN THEM” 1. 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. Most countries have policies and laws related to water management. clarify property rights. are attributes of the right to life. For instance a constitutional guarantee of a human right to water through IWRM principles would enhance water security for more people. secure and well drafted laws reduce transaction costs. It ruled that if anything endangers or impairs this right. but countries that have tackled it have found that their ‘downstream’ implementation plans go more smoothly (see Case 1. or they can be passed in response to international negotiations. Laws determine who has the right to use water from different sources. there are opportunities to build bridges between them. Of course. the Kerala High Court established that the ‘right to sweet water and the right to free air. in most cases. 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. National policy sets out the philosophy and goals of water management. 24 . 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. allowing a stronger vision of a path towards effective water management. Finally. 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. In theory. for these are the basic elements which sustain life itself’. Laws can give citizens the right to potable water.

laws and institutions. Each outer circle builds on the inner circles. Not every country pursues the same sequence in terms of adopting policies on water. Figure 1. The establishment of water governance capacity may follow different patterns in different countries. RULE offers advice on how to identify weaknesses. Each chapter of RULE deals with one of the areas depicted as rings in Figure 1. institutions and compliance. the government underwent significant shifts in its conceptions of water management.1.Case 1. Following the development of hydroelectric infrastructure in the 1960s. “WITHOUT A CLEAR ESTABLISHED LEGAL STRUCTURE. regulations and compliance mechanisms. compliance and enforcement are likely to be lax. Without a clear established legal structure. followed (in concentric circles) by policy. 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. state water agencies oversee state and local water management decisions to the extent their jurisdiction is not superseded by higher agencies. Achieving a balance of capacity (rather than areas of strengths and weaknesses) is best. and since 1995 such authority rests within the Environment Ministry. 25 .1 illustrates the concept of water governance capacity as it relates to the establishment of a system for effective water governance. participatory approach for success. However. 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. In 2000. Without effective institutions. IT IS DIFFICULT FOR INSTITUTIONS TO KNOW HOW TO OPERATE” Whatever its policies toward water management. 1. contracts and compliance – in order to have effective water governance. with autonomy and special responsibilities for implementing national water policy and coordinating the national water management system. a country needs to develop each of these areas – policy. law. it is difficult to develop a coherent system of laws. the Agência Nacional de Águas (National Agency of Waters) was created. enacting the laws to realize the policies. institutions. Comitês de Bacia (Basin Committees) are federal boards responsible for regional and local water resource decisions. relevant powers were shifted to the Energy and Mines Ministry. At the core is the concept of water governance capacity. it is difficult for institutions to know how to operate. regulations. strengthen each area. In the second half of the 1990s. Additionally. As a result of a comprehensive system of policy.3 Development of a coherent water management plan in Brazil 11 Water law in Brazil is a complex mosaic. The legal reform process was the result of a progressive decentralization of its water governance. Brazil has been able to substantially improve its water management structure. 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.3 Water governance capacity Water governance capacity is a society’s level of competence to implement effective water arrangements through policies. and keep them in balance to achieve good water governance. laws. institutions. 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. and establishing the institutions to implement the law. Finally. Thus without a clear policy. law.

4. institutions and implementation. Chapter 2 identifies elements of a sustainable water policy and looks at questions that should be addressed in building a good policy.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. Recognizing that governments have different orientations – 26 . 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. Organization of RULE RULE has a chapter on each of the components of water governance capacity: policy. 1.Figure 1.1 Policy Policy is a government’s plan and strategy on how to address an issue. Policies are made through legislation and executive orders and they can be created by decree from above or pressure from below. law.

contracts and partnerships developed to manage water. consistency of water law with other laws regarding natural resources and sustainable development. 1. Finally.4. A coherent legal system for water management should: encourage market-based incentives. and local water boards. mandates. it looks at how ten principles of New Public Management (NPA) can be incorporated into national water policy. to liberal democracy. It argues that good institutional structures must also have clear direction. 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 usually regulated by water law: allocation of water resources and pollution control. Chapter 5 explores the required elements for setting up that enabling environment. 1. 27 . Effective water governance must be supported by a coherent legal system that formalizes the reform processes through law. openness to stakeholder participation and transparency.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. to participatory – and that within each form of government there may be elements of other forms. and government relations with the private sector and civil society through non-governmental organizations (NGOs). It examines the broad notion of regulations as tools for carrying the intent of policy and law into practical rules. and setting up the institutional machinery needed to enforce the laws.4 Implementation Policies. Compliance mechanisms must be built into the laws. municipal water and sewer authorities. The chapter looks at the important issue of compliance with established laws. Chapter 4 examines institutions at the local. 1.4. the chapter looks at how elements of water management can be approached differently under the different forms of government. institutions and contracts and then followed up with monitoring and enforcement devices. These institutions can include basin commissions within a country and membership on international basin commissions.4. national and regional water basin level. farmers’ cooperatives and associations.from authoritative. honesty. This chapter offers suggestions for setting up a clear compliance apparatus and/or how to improve it.3 Institutions Appropriate institutions need to be established to carry out the mandates of the laws. The chapter looks into the weaknesses of existing legal systems and offers practical steps for reforming water law at the national level. laws and institutions set up an enabling environment for the implementation of water governance. It also analyzes negotiations and the emerging concept of using covenants as alternative or complementary implementation mechanisms to command and control management. national water authorities.

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

agriculture and industry? given projections for population and economic growth? 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? parent process used to arrive at societal decisions applied to water management? 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:

ecosystems? authorities) can be established and operate?

deployment of as many water governance functions as possible to civil society)?

Law. How well do your national water laws:

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development?

Institution. How well do your national water-related institutions:
Ensure democratic representation and active participation of affected communities in all planning and decision-making processes concerning water resources?

Implementation. How well do your regulatory agencies:

public groups? Encourage the formation of, and engagement with, farmers’ associations organized in irrigation boards or water boards? downstream?

Assign water and environmental police who check effluent pipes, water abstractions, metering and payment?

resolving conflicts over waters?

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It establishes and clarifies rights and obligations. policy and law can easily be distinguished from each other. Legislation is distinct from. It also promotes the coordination of actions and activities of other government agencies regulating issues that are relevant to water management and water protection. and creates positive and negative rights and corresponding obligations. policy. 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. However.Chapter 2 Linking Policies to Realities 2. It defines complex technical. Greater legal certainty facilitates more efficient economic (for example. as well as an opportunity for meaningful public consultation in the reform and development of new laws. Policy is a blueprint for drafting and amending laws. scientific and economic terms. It creates legal certainty thereby facilitating orderly compliance and enforcement of laws.1 The role of water policy Theoretically. Policy provides guidelines: information to be submitted for a particular environmental licence application). “POLICY IS A BLUEPRINT FOR DRAFTING AND AMENDING LAWS” The role of policy is to facilitate institutional and legislative reform. financial provision made in the private sector to meet new compliance requirements). budget allocations) and financial planning (for example. Policy can also facilitate a smooth transition during times of legal and regulatory reform by indicating expected changes in law. and thereby contributes to market stability and potential growth. and creates binding rules for dispute resolution. legislation is binding on members of civil society and usually the State. Because a policy document is usually a ‘living document’ it can easily be revised to cater for developing international and national environmental norms and values. Legislation protects against capricious administrative decision making and ensures a rights-andrisk-based approach that provides a more effective framework for integrating the economic. in reality they are inter-related like two sides of a coin in an ongoing process that builds water governance structures. but complementary to. “LEGISLATION ESTABLISHES AND CLARIFIES RIGHTS AND OBLIGATIONS” 31 . and allows for implementation planning and capacity building to commence. defines roles and responsibilities of regulatory agencies and civil society and establishes rules for accountability. social and environmental dimensions of decision making.

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, doublepermitting). A well conducted and highly participatory process of policy development has the advantage 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.

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or in relation to water resources. A policy can be the culmination of a long period of public involvement (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 manage 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:

have their needs recognized and served? 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 economically 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

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wastage, and optimize the benefits derived. Water policy can promote efficiency by incorporating these ideas:

through regulation, economic instruments or other means. water usage. 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. the flow of goods and services from this natural asset.

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:

communities, including indigenous groups. Consider the historically exercised water uses and rights in water planning and decision making.

Clarify and recognize existing rights of stakeholders to access to, and use of, water resources. tarily, with actual and future water uses and allocations. 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:

wetlands, bays and estuaries including through establishment of environmental flows and water levels.

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Promote and support the restoration of damaged ecosystems throughout the river basin. water services shall be regulated in a manner which is consistent with the aim and approaches of local governments or.4 Setting out policy goals and principles It can be helpful to write out goals or principles for water policy in advance of actually determining the policy.1). including through valuation of the resources and incentives for conservation and restoration. These Fundamental Principles and Objectives for a New Water Law for South Africa12 incorporate the principles of efficiency. water resource development and supply shall be managed in a way that is consistent with broader approaches to environmental management. acquired information publicly available. when giving authorization to use water. allocation and management of water is done in an efficient manner reflecting its public trust obligation and the value of water to society. SOCIAL AND ECONOMIC NEEDS” 2. while ensuring that domestic. The principle of sustainability is endorsed in different ways in the South African Fundamental Principles. environmental and international obligations and needs are met. Also.3. their services and their benefits. the Government shall take into account the investment made by the user in developing the infrastructure to use that water. and that the water that is required to ensure that all people have sufficient water. and the connection between the river and its floodplain. the Fundamental Principles establish that beneficiaries of a water management system shall contribute to its costs on an equitable basis. equity and sustainability (see Case 2. for instance. South Africa’s Fundamental Principles provide that the Government will make sure that the development. investments in prevention and adaptation.groundwater flows. manage these resources as a public good. the Government of South Africa developed a set of 28 principles in different categories that the policy would address. With regard to the implementation of the principle of efficiency. mental concerns. water quality and quantity are interdependent and shall be managed in an integrated way consistent with broader environmental 35 . “WATER MANAGEMENT MUST FIND A BALANCE BETWEEN ENVIRONMENTAL. For example before drafting its policy statement on water management. “IT CAN BE HELPFUL TO WRITE OUT GOALS OR PRINCIPLES FOR WATER POLICY IN ADVANCE” As far as equity is concerned. shall be reserved.

The process commenced with a detailed review of all South African water laws. the discussion papers may evolve into policy statements and ultimately into legislation.approaches. 2. with a view to ensuring equal access to natural resources.5 Forging policy Once there is some clarity and agreement on a vision and policy principles. the Policy and Strategy Team gave direction to a Drafting Team constituted by the Minister and made up of legal and technical specialists. 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. the urgent need for a modern and more appropriate approach to water resource management in South Africa. and set out the main principles and provisions of the then existing legal structure and also contextualized these against their origin and historical development. Case 2.3. it contains the country’s commitment to land reform. equality and human dignity.1 Water reform in South Africa The success of the South African reform process can be attributed to the importance of strong political will. and an acknowledgement of the need to establish founding principles and objectives for the development of new policy and law that would be accessible to everyone. This document sought to assist the public in making meaningful contributions to policy development. Parallel to this. This may happen through a ‘strategic planning process’ or more haphazardly. tasks preferably done in a highly participatory setting. constitutional shortcomings noted in the existing law. by having regard to. the constitutional reform process strengthened the political momentum for a water policy reform. These principles were designed to focus attention on the primary areas of water management requiring urgent transformation. access to and distribution of water rights were determined on a racially discriminatory basis. As a result of the call for a public response to the review of South Africa’s water law. After undergoing a number of revisions following widespread formal consultative meetings. Within a context of social justice. 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. such as the right of life or the right to an environment not harmful to one’s health and wellbeing. 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. In March 1995 a document entitled You and Your Water Rights was published by the Department of Water Affairs and Forestry. these principles were approved by Cabinet in November 1996. it recognizes a series of individual rights directly related to water. and recognizes the progressive realization of this right. there is often a period of research and development of ‘white papers’ or documents that examine current conditions and propose policy solutions. Eventually. in April 1996 the Fundamental Principles and Objectives for a New Water Law in South Africa was published for comment. From the very start of the water reform process. No account was taken of the basic human needs of South African people as a whole. The new Constitution of South Africa adopted in December 1996 addresses water issues in different ways. Oppressive programmes of land dispossession which linked water rights to land rights characterized the colonial and apartheid eras. At the same time. issues related to equal access to safe drinking water and sanitation were part of a national concern. Through the Minister. 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. Although these elements can be easily separated for analytical purposes. They were developed. in reality they can become intertwined. In 1994. through consultation. political and cultural backgrounds. for example. The same 36 . Under the apartheid regime.

on implementation. and. Forever’. the South African Cabinet approved the White Paper on a National Water Policy of South Africa. The National Water Act includes the following instruments: 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 abolished the system of riparian rights through which water ownership was tied to land ownership along rivers. a starting point to correct existing inequities. and interdependent. and mechanisms to exercise their rights. Broad participation contributes both to the exchange of information needed for effective decision 37 . These process principles are transparency. food.principle applies to the right to health care. mutually reinforcing. 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. certainty and accountability as well as creating mechanisms for and encouraging public participation. 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. and a series of rules that envision water management according to standards of democracy. and a year later the National Water Act. but are outlined here because they must be thoroughly incorporated into policy. With the approval of a new national Constitution. a comprehensive and detailed document addressing resource management and water supply.4 Process principles for water policy For water management to be effective over time. They are discussed in more detail in Chapter 5. broader participation and more effective decision making. POLICY MUST ALSO INCORPORATE CERTAIN PROCESS ELEMENTS” The process principles are interrelated. 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. It recognized water to meet basic human needs and maintain ecosystems as a right. In April 1997. as a result of this. 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. “FOR WATER MANAGEMENT TO BE EFFECTIVE OVER TIME. the White Paper confirmed that water is an indivisible resource and a national asset. water and social security. For example. the logical next stage in the reform process was the codification of these principles in a law. laws and institutions. transparency and sustainability. In 1997. the adoption of policy principles within a consultative process. accountability means more transparency. the Government adopted the Water Services Act. 2. For All. Far from being perfect. 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. Under the slogan ‘Some. quantity and supply.

Transparency in decision making and contracting is vital to ensure accountability. 2. Certainty exists only when all the rules are stated and followed. and public interest groups.making and for the legitimacy of those decisions. a loyal opposition party. water resources development and management.4. meetings are open. and all the consequences of not following the rules are known and enforced. means effective implementation and encourages further participation.1 Transparency Transparency means that business is done in the open rather than in secret. the greater the willingness of stakeholders to participate. Responsive institutions must be transparent and function according to the rule of law if they are to be equitable. especially to the inspection of a free press. “TRANSPARENCY MEANS THAT BUSINESS IS DONE IN THE OPEN RATHER THAN IN SECRET” 2. Documents are available to the public.3 Accountability Water managers and decision makers should be accountable for the consequences of their actions. in turn. Transparency can be incorporated into water policy for instance by: able to the public free or at low cost of reproduction.4. The higher the level of certainty for any given transaction. 38 .4. Establish an appropriate ‘mix’ of regulatory and non-regulatory measures. stakeholders are unlikely to commit their resources to working with government agencies. Without a clear sense of the rules and the expected outcomes. Legitimacy. Certainty can be for example incorporated into policy by: 2. By opening proceedings to the light of day. public input is sought and considered. 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. The steps listed below could promote better accountability: of water resources and addressing social and environmental issues. management. including incentives and sanctions.2 Certainty Certainty is an intangible that is crucial to attracting non-governmental and private organizations to help with the work of water management. corruption will be discouraged or at least discovered.

women play a major role in providing. bilities. In many parts of the world.4. Water management and governance are constantly evolving. and should always be involved at all levels of decision making. and/or financing mechanisms. including social and environmental demands. 39 . both in terms of the prevailing discourse and in actual practice. water policy is changing from an exploitative approach with a focus on nation building and economic development. provincial.opment in a timely and correct manner. 2. managing and safeguarding water. as in many countries. the reform paradigms should be clearly reflected in the water policy.5. mance standards and financial assistance where needed and develop integration of the work at the local. basin. “DECISION MAKING AND MANAGEMENT SHOULD BE DONE AT THE LOWEST APPROPRIATE LEVEL OF GOVERNMENT” 2. updating water policy means incorporating more encompassing social and environmental goals. 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. If there is an ongoing reform process. The following actions will help ensure participatory decision making: butions to outcomes. 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.4 Public participation Water development and management should be based on a participatory approach. Decision making and management should be done at the lowest appropriate level of government. involving users. national and regional levels.1 Historical context Water policy should be updated regularly to respond to changing values and to address emerging water issues. Therefore in most countries. planners and policy makers at all levels. In evolving societies. to an approach that is oriented towards serving a wider set of needs.

In many OECD and non-OECD countries. Prevent problems - 5.5. Decentralized government 3. Customer-oriented 10. Mission-driven - 9. Market mechanisms “WATER POLICY REFORM CAN BE MATCHED WITH VARIOUS MODELS OF GOVERNANCE” 40 . delivery. Earn money 2. flexibility. state modernization is following key principles of the New Public Management (NPM) model. The ten principles of NPM are given in Table 2. They shape the priorities for public investments and the focus of the development or enforcement of new policies or legislation.1. effectiveness. measurement and outputs. Competitive services 6. NPM argues for cost reduction in public policy implementation.1 Ten principles of new public management 13 1.2 Political context Political priorities adapt with new governments and changing public opinion. which applies private-sector management principles to the public sector. This promotes efficiency. Table 2.“UPDATING WATER POLICY MEANS INCORPORATING MORE ENCOMPASSING SOCIAL AND ENVIRONMENTAL GOALS” 2. Outcomes-based - 8. Catalyze all sectors 4. Empowered citizens 7.

water policy reform can be matched with various models of governance. Direct or participatory 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. 2. In a pluralistic-liberal type of policy arrangement. This typology has been furthered developed and adapted to water governance in Table 2.2.6 Typology of water policy and planning reforms Within a theoretical framework known as the Policy Arrangement Approach (PAA).6. In this model. water policy development and implementation is led by the State and its vast number of organizations and bodies. water policy development and implementation involve negotiation and perhaps power-plays among many actors that must arrive at an agreement to move forward.2 Overview of types of water policy arrangements Type Name Water governance mechanisms - 41 . Liberal or representative democracy.1 Three models of governance 14 Three general models of governance can be defined as: Authoritative governance.2.15 This table shows that in an authoritative arrangement. A system with (de facto) one party within which decision making takes place under specific rules and in coordination with elected officials. A key aspect of this type of arrangement is that negotiations take place between actors as if they were in a ‘marketplace’. much emphasis is placed on hierarchy and state power dominates. A system of decision making about public affairs in which citizens are directly involved and actively engaged in policy formulation and implementation. Under Table 2.

Management of actors’ networks. The rules are supported by legislation and strict working procedures. It is mostly implemented by governmental coalitions aimed at resolving specific water issues.6.2).a decentralized-communitarian scheme. In 2003 the governors of the El Chaco region agreed on a new development action plan for the area.3 shows how the three models can play out along four dimensions: discourse. “DIFFERENT TYPES OF POLICY ARRANGEMENTS CAN COEXIST WITHIN ONE STATE” 2. resource distribution and rule making. Understanding which water issue can best be solved with which type of policy arrangement is key to successful water reform. foresters. However. A water council was established to oversee the water projects outlined in the governors’ action plan. 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. and/or re-valuating traditional community mechanisms of water governance are seen as key mechanisms for successfully implementing this type of policy arrangement (see Case 2. participated in a series of meetings to seek solutions bringing more water to the region and providing new sources of income. Legitimized state regulatory power is used as the main resource for strategic planning. the participation of all stakeholders is needed to develop and implement water policy. cattle ranchers. Parana.2 Three models in four dimensions Table 2. 42 . Authoritative water policy Water policy --> Strategy --> Design --> A plan Authoritative water policy is based on an intervention discourse with top-down principles and planning. A wide range of stakeholders. Different types of policy arrangements can coexist within one State. coalitions. Pilcomayo and Apa – and many other national ones and counts on one of the world’s biggest aquifers – the Guarani. It is a modern decentralized institution that represents both public and private sectors including municipal forces as well as associations of farmers. merchants. including members of both the public and private sector. Some policy arrangements are better suited to certain water management situations than others. The Chaco region covers 60 percent of Paraguay. operating plans and budgets. ‘Water for El Chaco’ sets a precedent for integrated water governance. Policy is formulated through a very formal process aimed at producing a policy document that is used to develop clear objectives. programmes and projects. It depends on four major transboundary rivers – the Paraguay. fishermen and indigenous communities.2 Water for El Chaco: a model of decentralized water management 16 Paraguay has substantial freshwater supplies in surface and ground water. In the drier region the population is dramatically increasing and needs new water sources. When and where each model is best used depends on the nature of the political system in which water governance reform takes place. The water council appointed a statutory body called ‘Water for El Chaco’ to coordinate stakeholders’ interests. Case 2. only some areas are abundant in water while others (such as Chaco Central and Bajo Chaco) suffer from droughts and water shortages.

Table 2. 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.3 Typology for water policy arrangements 17 Ideal types Dimensions Authoritative Pluralistic-liberal Decentralized. 43 . This type of policy arrangement requires that the parties involved have the skills and willingness to negotiate. including societal negotiations and partnership coalitions between governmental bodies and stakeholders that aim to integrate different interests. Pluralistic-liberal water policy Water policy --> Strategy --> Negotiations --> A deal The pluralistic-liberal policy arrangement is based on a balanced approach to policy making.communitarian Discourse Coalitions Resource distribution - - Rules - - Authoritative water policies and their arrangements are usually linked to large water infrastructure works regarded as of interest to national security or economic development. It works best with parties that are closely linked to a geographic area such as a watershed or river basin. The rules are laid down in covenants that take current legislation and policies for granted. A state budget is the main resource for coordinated policy implementation. Someone must take the lead in bringing the actors together and creating common understandings on different management issues.

Analyze national. planners should evaluate the existing system. one can start formalizing the best of them. 1. 3. Social capital is the main resource for grassroots projects.7 Linking policies to realities: general principles Policy development is a crucial first step in regulatory reform. Ideally. but doesn’t need to be. The decentralized-communitarian approach is particularly suited to periods of change and innovation. Determine the scope of the country’s water institution(s) 44 . 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. 2. The agreements often go beyond legislation in order to facilitate tailor-made solutions.. Once some useful ways of working emerge. IWRM) and compare them with local water policy. including local participation in cooperative settings with governmental bodies and other stakeholders that aim to develop and execute specific goals in a region. The challenge of this approach is that the ‘extra-legal’ status of the parties can make an agreement vulnerable.g. it is critical that leaders recognize the emergence of new ideas and intervene only when appropriate. mostly in an enabling and facilitating way. systematic outline for the country’s overall strategy on water and the entire range of issues related to its use. regional and international policies analyzing if principles and guidelines adopted in major fora have been translated into national and local policies. Mexico and China. ments (e. water policy should provide a clear. Patterns may simply spread through social absorption as they become recognized as valuable. This process of proliferation may be conscious and deliberate. 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.Decentralized-communitarian water policy Water policy --> Strategy --> Joint action --> Learning by doing A decentralized-communitarian policy arrangement is based on local initiatives. For this approach to succeed. serving as a recipe for drafting binding legislation. plans and programmes. However. Thus. Consider the capacity of existing actors for water policy reform 2. A learning approach to water policy development becomes institutionalized only when the actions become collective. Before reforming a country’s water policy. This happens when the new patterns of water management proliferate to pervade the behaviour of a large part of the population. Guatemala.

and if civil society is aware of the availability of this information. implementing steps. 45 . 5. sustainable in the long term. Analyze whether economic-based instruments are being used successfully Determine under what scheme water is being allocated for different uses and analyze if the real costs are being taking into account. gaining power by building consensus among interest groups). or direct or participatory democracy (citizens are directly involved in management and decision making). spaces for public participation. 8.sector participation option in the country. 9. 7. or if palliative measures such as subsidies are operating. 10. Evaluate corruption levels in the country expenses is available. and compliance deadlines. and is well organized. Determine if civil society abides by what decision makers decide. Assess the current model of governance authoritative (de facto one party with rule-based decision making). 4. Evaluate the country’s decentralization scheme and evaluate what is the level of legitimacy they have in decisions relating to water management. term costs. to the public. Consider ease of access to information relevant to water policy design society. and if that participation is meaningful.tives. Consider the extent and functionality of private . Assess the extent of public participation in decision making interest groups. liberal or representative democracy (officers represent their constituent citizens under a legal framework. 6.

thereby encouraging damaging overuse of water. Given the enormous breadth of individual considerations involved and the need for specific tailoring to a given country’s situation to ensure a water policy is comprehensive. where the political context is sufficiently modern. Step 1: Consider context of water policy reform ners consider proposed reforms in light of historical and political context. and sound economics are central to successful water policy reform. In pluralistic-liberal government. or direct-participatory democracy requires all stakeholders’ support via networks in order to achieve policy reform. Step 2: Assess what type of water policy reform will work best given the existing government structure and led by the state government. Step 6: Apply the principle of recovery of costs for water services tal and resource costs.8 Reforming water policy: practical steps Following this preliminary assessment. In particular. At the same time. there is a list of practical steps that should be kept in mind where starting any policy reform. such reforms are best made by negotiation and consortium building analogous to a marketplace setting. Thus. Finally. subsidies must be accounted for in assessing whether the prices paid by water users reflect the full cost of the water service. social justice and equity. conservation measures and principles of sustainability. Step 4: Introduce proactive.2. However. Step 3: Clearly allocate water rights among users and uses Clear allocations of water rights will encourage water users to use it more efficiently. This is important because water services are often highly subsidized. planners can begin the work of actual policy reform. decentralized. Step 7: Enable sharing and trading of water rights water banks and leases of water between the municipal and agricultural sector. Avoiding environmental harm before it occurs is a necessary feature of new water development projects. no one set of practical steps can provide a solution for every country. 46 . the ten principles of New Public Management should be incorporated to promote cost reduction in public policy. Step 5: Apply the right technologies tions of the country. sustainable and just measures that encourage efficiency and protect water quality.

Step 8: Ensure support from enabling institutions and is in place. Step 9: Ensure effective governance principles of transparency. are fundamental to reliable governance. resolving water-use conflicts are in operation. certainty and accountability tion and open stakeholder communications. foster public certainty in governmental processes. Step 10: Guarantee international cooperation 47 .

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it may not always promote social and environmental justice or adequate environmental protection. Although a water law may provide a scheme of secure water rights (and may include equity considerations). but those in which risks and hazards and investments and benefits are equally distributed without discrimination at any level.Chapter 3 Transforming Policy into Law 3. often by new multi-purpose infrastructure. participation in decision making. Good laws are not just those that define rights and obligations.’18 “WATER LAW PROVIDES CLEAR RULES AND PROCEDURES TO TRANSFORM POLICY INTO ACTION” Box 3. will harm the water-use rights of marginal social groups. it is important to consider that water law serves a higher purpose within the overall governance system of a country. whether direct or indirect. at any jurisdictional level. and when access to resources and the benefits derived thereof are equally distributed. public participation in decision making and access to justice are enjoyed by all the citizens of a State. and a system of incentives and penalties for the protection of the environment and the sustainable use of natural resources.1 Features of water law Water law provides clear rules and procedures to transform policy into action. before exploring the specific issues that surround water law. Coherent and concise laws should avoid ambiguity in interpretation and application. However. Good water law combines precision with flexibility.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. usually by requiring permits for water withdrawals or waste disposal. benefits. which is Environmental Justice. Allocation of water resources and pollution control. Finally. and natural resources are equally distributed. 49 . The extent to which these environmental justice claims will succeed is dependent on the availability of affordable processes to litigate or defend them. but they should be flexible enough to fit within a range of national contexts and adapt to evolving social. This is defined as ‘An existing condition where environmental risks and hazards and investments and benefits are equally distributed with a lack of discrimination. Contemporary water law addresses three focal areas: 1. economic and ecological circumstances. and when access to environmental investments. create effective institutions. and when access to information. environmental justice claims usually involve allegations that the use of water. In the water context. good laws that promote environmental justice are those in which access to information. or that pollution laws are enforced less stringently in poor areas. and access to justice in environment-related matters are enjoyed by all.

However. For example. 3.2. 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. The powers and mechanisms of these institutions must be prescribed. 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. conservation. the courts can overturn new laws that it deems unconstitutional. may sometimes develop comprehensive codes. “WATER LAWS SHOULD ALSO BE SYNCHRONIZED WITH OTHER NATURAL RESOURCE LAWS” 3.1 Legal context Civil versus Common law There are two major types of legal systems in operation around the world: civil law and common law. it is shaped by. environmental and conservation policies and practices. These principles are then applied to new scenarios and cases.2. Common law countries. and must conform to. In most of these countries. Water law therefore increasingly reflects the fundamental relationship of water to life. which is then the basis for applying and adjudicating the rules. In countries with civil law traditions – such as most of continental Europe. it is important to be aware of and recognize how the specific characteristics of different countries affect water law. with customary and traditional laws. and sustainable development that reflect the idea that good water management practices are underpinned by a sound balance of developmental. the requirements of the legal system in which it operates. when possible. the United Kingdom and Commonwealth countries. The preamble of national water laws usually contains statements of principles relating to social equity. 3. It may also be shaped by the customary laws that preceded it. protection of water sources and ecosystems. waters are classified as public or private. administrative bodies must be tasked in law with granting licences and monitoring compliance with regulations. role and reach of water resources legislation Water law does not exist in isolation.2 The context. In civil law countries. and the importance of securing a safe and adequate water supply for current and future generations. and Latin America – the law is laid down in exhaustive codes according to subject matter and is applied and interpreted by judges. 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 law must be consistent with broader societal goals for sustainable development and protection of the environment. to understand or reform water law. Water law must establish the institutional machinery needed to facilitate its application. Legal reasoning is used in formulating the stated principles of the codes. Thus. the vulnerability of water resources to human and natural influences. 50 . 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. Water laws should also be synchronized with other natural resource laws and. francophone and northern Africa. such as the United States. a concession or permit is required to use public water. New laws that override these precedents can be established by the legislative branch of government. Within the past decade. Over time.

Cases are similarly on record in the Supreme Courts of Argentina. Unitary versus Federal systems of government Countries with a unitary structure centre their law and policy at the national level. Pre-conflict situations are handled through negotiation and agreement. Brazil. as it can include legislation on matters ‘neglected’ by the states. 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. and of water law in particular. Supreme Court has been particularly active in this regard. All flowing waters are considered a resource common to all (following old Roman law principles) and the State. Interstate agreements addressing specific water bodies or issues are on record among the states and provinces of virtually all federal countries. “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. must ensure that the water is protected. Mexico. the United States. Failure to account for customary rights not only creates social conflict and tension. often brokered by the federal government. 51 . each state or province has authority to legislate in regard to water resources and to administer its own legislation. lakes and ground water that cross subnational boundaries. The federal level also often plays a key role in ensuring consistency of approach in legislation at the state level. in the United States.2. Germany and India. conserved. Friction.In common law countries. as distinct from written law. India and Germany. as the public trustee. is a significant source of law in general.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. In Argentina. Malaysia and Australia. The U. Germany. Customary water rights are often derived from customary law that governs access to land tenure. except Mexico. for example. long-standing customs and practices of traditional or religious groups. may arise because of the effects of one state’s action on its neighbours. used. managed and controlled in a sustainable and equitable manner for the benefit of all persons. Argentina. this can be seen with regard to ground water and in Australia with regard to a broad spectrum of water policies including provisions for trading water abstraction permits and prioritizing environmental water allocations. In these countries. creates an interface between the subnational (state or provincial) and national levels of executive and law-making authority. but may undermine the law. The role of the federal government is thus residual but not insignificant. developed.S. independently of its fellow states. there are no private waters. This is the case for control of water pollution. which is generally stated in the national constitution. 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. 3. and eventually conflict. The federal structure of countries such as Canada. Where negotiations have failed. Customary law refers to un-codified. In India. the federal government ensures consistency in minimum standards of environmental water management. overt conflicts have been adjudicated by the supreme judicial body of the country. for example. The nature of this interface depends on the distribution of power between the federation and its constituent states or provinces. India.

For example. the Chaggas have lived on Mt Kilimanjaro’s slopes for 300–450 years. they may be safeguarded either through recognition as water rights in formal statutes or by administrative mechanisms for recording and registering them. Case 3. Law makers need to devise acceptable solutions through research and consultation during the drafting or preparation stages to avoid the potential for confrontations and disputes during the implementation and administration of new water laws.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. which developed a system of irrigation furrows to deliver water from natural watercourses to their crops. such as land laws or those for environmental management and protection. The first furrows on Mt Kilimanjaro were dug in the 18th century. the climate drier. The chair has the flexibility to make exceptions to the formal allocation system. In addition. the population more scattered and social diversity much higher. where settlement is more recent.1). externally imposed. but they may also require separate permit requirements under water law relating to their effects on water quality or quantity (see Case 3. a Chagga had to be a member of the furrow board and comply with the chairman’s instructions.2. a furrow committee chairman (always male. In lowland areas. In addition. 3. the cohesion between formal and working rules is not so great. even to the extent of including fulfilment of customary water rights among licensing criteria (see Case 3. creating obligations for the way water resources are managed within a river basin. A furrow passes through or along the land of various potential water users. Traditionally. 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. the notion that it must be paid for is simply illogical. In a culture where water is perceived to be a ‘gift from God’.2). Members help maintain the furrows. which are not the same as Furrow Committees. Punishment for non-compliance included fines and prohibitions on water use. These traditional rules emphasize social equity and conflict minimization. plans for buildings or roads. rules that demand efficient water use. environmental laws may require conservation of natural habitats for animal and plant species along or within a watercourse. Similarly. a flexibility that is crucial to the allocative efficiency and sustainability of the irrigation system. People alongside furrows may need more or less water than others. To qualify for an allocation.“FAILURE TO ACCOUNT FOR CUSTOMARY RIGHTS CREATES SOCIAL CONFLICT AND TENSION“ In countries where customary rights are common. the new rules seek the establishment of Water Users’ Associations (WUAs). This complementary relationship between formal rules and working rules developed over hundreds of years in the highlands. They sit uneasily alongside new. drawn from the lineage of the person who originally dug the furrow) managed irrigation furrows.1 The Chagga furrow committees 20 In the Pangani basin. 52 . or intentions for agricultural land use are subject to land development legislation. The Chagga are a high intensity farming community. Tanzania. many of whom wish to use the water for irrigation. The law may also stipulate to what extent government water administrators should factor customary water rights over abstraction permits or licensing into decision making.

administrative practice and planning instruments. Such agreements may apply on a generic regional basis. Tree felling or pruning is subject to permit conditions. International insistence on the application of the IWRM concept and goals is an important driver of this change. such as in the Water Framework Directive of the European Union. fitting rainwater harvesting equipment to the rooftops of buildings is mandatory as part of the building construction approval by the local government authorities. International water resource treaties often specify approaches such as requiring the use of ‘best available technology’ for pollution control. The approval is needed in order to connect to water and power utilities. but small-scale farmers and wetland owners are exempt from these obligations. Conversely. Land and Trees Act. management of land and water resources are regulated by the 2002 Water. lakes and ground waters. and security of legal tenure in the face of a volatile and shrinking resource base. lake (or. These processes typically entail review of the strengths and weaknesses of existing legislation. International agreements may also commit countries to working together to establish bilateral or multilateral river. Agricultural land owners have a duty to plant up to 5 percent of their holdings with trees. more rarely. The same law also stipulates that local authorities may formulate guidelines for landscaping and tree planting along canal banks and water bodies. to enhance the recharge of ground water. which must then be facilitated through national legislation. For example. as well as the functions and structures of relevant institutions. 53 . leaving to State parties the choice of regulatory and other instruments to be adopted through national legislation. 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. but that they must ensure tree planting along the ‘foreshore area of open water bodies’. Demand for broadening the scope of water law has grown to encompass goals relating to distributional equity. environmental protection. efficiency of allocation. Consultation of stakeholders and interested parties should take account of vulnerable groups.2 Water law reaches into building codes and agricultural land use in Andhra Pradesh. “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.Case 3. or in relation to transboundary agreements on specific rivers. India 21 In the Indian state of Andhra Pradesh. a movement to review existing water laws and enact comprehensive new legislation has gained momentum since the early 1990s in reaction to global concern over scarcity of water and growing concerns over climate change. some treaty obligations are cast in generic language. lakes or ground waters. “NATIONAL WATER LEGISLATION MUST REFLECT THE COMMITMENTS MADE BY STATES UNDER INTERNATIONAL AGREEMENTS” 3. which enabled integration of a range of regulations.4 Water law reforms As discussed in Chapters 1 and 2.2. ground water) basin institutions.

3. 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. support abstraction or receive waste. have had significant impacts on water management. Usufruct rights are rights to the use of water resources without ownership. These concepts range from ownership of water by the state to the state holding water ‘in trust’ for the public. 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. “A UNIFIED CODE FOR WATER EXPRESSES A DECISIVE POLITICAL COMMITMENT” A unified code of water law must establish water rights and fair allocations.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. In line with public ownership. the state has been recognized as having possession of ‘superior use’ rights. In both cases. the private rights of individuals have been relegated to being usufructuary in character. for example.3 Water allocation 3. new or reformed water policy and law should keep water rights within the public domain.1 Who owns water and who has water rights? Because of water’s fundamental role in sustaining life. and (b) after the reform. and set up an institutional water management structure. Complete overhauls of government. 3. policy reversals – for example. The concept of private water and absolute riparian rights over surface water and ground water has been eroded in the modern era. 54 . the stability of the way water resources are managed is vulnerable to election cycles that transform governing structures. Consolidation avoids the trouble of issues being overlooked and the complications of having to navigate through numerous and often inconsistent pieces of legislation. the law must stipulate compensatory measures. giving way to concepts of water being in some degree of public ‘ownership’. Replacement of the concept of private water rights with water rights conferred by government permit has produced an interface with property law. which is particularly poignant at two junctures: (a) when a reform is legislated for the first time. Even on a less drastic scale. A unified code for water also expresses a decisive political commitment. but the situation is not always clear-cut. protect water quality for human and ecosystem uses as defined by water policy. “CODIFICATION OF NEW POLICY OBJECTIVES INTO LEGISLATION INVOLVES A LENGTHY CONSULTATIVE PROCESS” There is a well established trend toward consolidation and harmonization of previously fragmented laws into a single comprehensive text. 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. such as have occurred in transitions from communist to market economies. for example. Regardless of the concept chosen. However. In certain cases. if a permit-based right must be sacrificed in whole or in part to accommodate another use for water or for conservation.

agricultural and industrial uses of water. under the label ‘transitional’ provisions because they are to have effect for a limited period of time. to entice holders of pre-1992 water rights to register claims. and provides checks and balances between the profit. these transitional packages are no guarantee that the reforms will be shielded from claims in the courts. After expiration of this period. The law may grant the government discretion in accepting such claims. by granting varying degrees of statutory recognition to pre-reform water rights. This reassignment of rights is generally pursued. Such recognition may be automatic for ‘small’ domestic and household abstractions. of expropriation of constitutionally protected private property rights by dissatisfied water users. as well as conservation of river and lake habitats and preservation of scenic. or may direct it to accept claims at face value. the water rights part of a package of extensive water law reforms enacted in 1992 had to be scrapped two years later. whether in-stream or off-stream. however. it is presumed that all pre-reform water rights will have been claimed and registered. cultural and religious values and practices. or other. For example. 3. albeit with the risk of over-allocating the resource. Off-stream uses include domestic. can result in water users ignoring the law and the eventual neglect of the legislation. motivation of the permit seeker and the interest of the general public that the resource base is not depleted or contaminated beyond acceptable levels. The relevant case law from these three jurisdictions. Draconian deadlines.Generally. including customary rights. though not always achieved. and penalties of forfeiture of unclaimed rights. “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.2 Allocating water to users A fundamental role of water law is to allocate available water resources to competing uses. “THE CONCEPT OF PUBLIC WATERS MAKES THE GOVERNMENT THE CUSTODIAN OF WATER RESOURCES” Provisions to convert water rights within reform processes are found at the end of water statutes. Australian states.3. 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. Italy and the State of Arizona were challenged on these grounds. However generous. 55 . In-stream uses include activities such as hydropower generation. The record on this score is mixed: the abolition of riparian rights in England. It was replaced by a successful package of user-friendly inducements. South Africa and many US states was spared legal challenges of unconstitutionality. 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. but similar reforms in Spain. timber floating and recreation. financial and otherwise. in Mexico. new laws are designed with mechanisms to bring pre-reform water rights. but larger new abstractions may be made subject to registration of a claim with the government within a set deadline.

The applicant must. The application form must be submitted to the Minister and include the name of the applicant. and in this case grant the applicant the opportunity to make additional supporting representations. aquatic ecosystems and Namibia’s international obligations. The detailed criteria used to evaluate applications should be specified in the water laws and subject to refinement in administrative rules. 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. the water resource. Additionally the Minister must consider any further objections.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. general principles of efficient water management practices. the Minister must refer it to the basin management committee concerned with investigation and recommendations. consider any objections. issue a notice in the State Gazette inviting interested persons to object in writing. intended to support efficiency goals. indicating the place and period to make the objections. volume and time of abstraction. or any alteration of water flows or river banks. and itemize their standard contents. The application must be accompanied by proof of publication of the notice. the prescribed fee. An appeal against the Minister’s decision may be filed with the Water Tribunal within 14 days. Basin committees must then make their recommendations to the Minister. the relevant water resource and location. are also predicated on government permits. Market-based mechanisms for allocation. Decisions by governments to grant a permit or licence should be based on a range of considerations which can be spelled out in legislation. For reasons of administrative expediency. Allocation decisions are enforced through regular monitoring of users’ withdrawals and the condition of the resource. such as canal construction. and an environmental impact analysis of the proposed water use. the representations of the applicant. the environmental impact analysis and determine whether the requirements of conditions of licences have been met. 60 days prior to submission of form.3). small abstractions for domestic water use do not require a permit. and extent of customary rights and practices in. abstraction for dam storage.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. fairness and transparency (see Case 3. These uses can be. or dependent upon. After receiving an application. use of stored water for any economic activity. Such considerations might include: 56 . the name of the landowner. Penalties for breach of allocation agreements and dispute-resolution mechanisms are important parts of a comprehensive water law. The basin management committee or the Minister must investigate all matters pertaining to the application. and the rate. Identify the water uses needing permits. Permit systems contribute to the conservation and protection of waters by preventing over-allocation and pollution. while pursuing equity. the type and location of use. impact of the proposed abstraction on existing water users including the environment. The law must detail the standard conditions of permits and licences. likely impact on water quality. for example. “A TRANSPARENT PERMIT SYSTEM ENABLES THE ALLOCATION OF A SCARCE RESOURCE” Case 3. redressing past racial and gender discrimination.

and assignment of rights or water allocations under licences. undesirable effects on cultural values. the terms of transfers. Water rights may be obtained only by permit from the Dirección General del Agua (DGA).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. trading empowers water users rather than the government to make decisions about water allocation. also have informal water trading schemes. there is a basic irrigation infrastructure that facilitates reallocation between users through renting. several western states of the United States.3. loss of potential to satisfy priority needs for water and harm to marginal groups. South Africa. which also plays a leading role in the resolution of conflicts in water trading. especially in South Asia. sold. management structures. A strong regulatory and fiscal framework is a prerequisite for effective trading. Some other countries. The Code establishes two types of transactions: selling and renting.4). including suitable consultation processes. governments may want to impose restrictions on trades such as: it can review whether the transfer would modify the original terms of the permit. 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. Water rights trading Trading of water rights is the transfer or exchange of permits or licences for water extraction granted by government. However. Case 3. 3. Legislation should include provisions for independent monitoring of the trades. clear property and tenure rights. penalties for rule infractions and mechanisms for the enforcement of contracts and redress. Non-consumptive rights are bound to return a certain amount of water. Thus. When a transaction is agreed. Chile. DGA entitles consumptive and non-consumptive rights. the right to another type of water use.objectives. rization. which then allows a user to withdraw extra water 57 . The DGA grants rights free of charge and taxes. Regulation of trading must ensure protection against environmental degradation. mortgaged and transferred like other forms of real property. 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.3. and Spain’s Canary Islands have water trading schemes. In the Limari and Digullin basins. all of them examples of sophisticated and efficient schemes around the world (see Case 3. Australia. affected. or a donation. Water rights may be traded for monetary compensation. it is communicated to the authority of the reservoir.

DEPENDABILITY AND AFFORDABILITY OF THE SERVICE” 3. 3. dependability and affordability of the service. who have bought water rights to hold. A second issue is pollution.4 Providing water services Another part of a comprehensive Water Code or Water law deals with the provision and regulation of the service of supplying water for consumption and use. There are some criticisms of the system. para-statal or state company – must secure the abstraction or extraction permits required of all users and. comply with the relevant water resource legislation. but also for the safety of water supplies and therefore in meeting basic human needs. Third. limiting the country’s productive capacity by limiting the availability of water. and general water resource management legislation. Both regulatory and economic mechanisms are used to prevent and reduce water pollution from point sources. Examples are: 58 . Despite the fact that the Water Code states that non-consumptive users cannot return water in a way that affects other users. and seek to strike a balance between the profit motivation of private water providers and the interests of customers and of civil society in upholding public service standards. not only for sustainable development and conservation of water sources. First. in general. who claim that the water that energy companies retain is affecting their right to irrigate.3. “WATER SERVICE LAWS REGULATE THE QUALITY. In another example. 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. Public and private water suppliers are subject to laws and regulations regarding delivery of services.4.1 Water pollution control Protection of water quality is vital. the DGA is in charge of establishing minimum flows for each basin.4 Water quality protection 3. and irrigators.for a specific time. The flexibility of the ability to rent water has brought efficiency to the irrigation sector. the discharge of effluents and the deviation of water upstream causes pollution downstream. quality of water provided. and that non-consumptive rights do not authorize the holder to affect the natural course of the resource. Each player in the water service industry – whether a commercial. Water pollution from point sources Point sources of water pollution are discharge pipes such as industrial outfalls and municipal sewers. Water law must address regulation of both point sources and diffuse sources of pollution. but since considerable water rights have been granted in many basins. Conflicts have broken out between energy companies. Even during non-drought times. because the Water Code does not require putting the water to a beneficial use. irrigators sometimes rent wells to water treatment companies to supply the population during a drought. the DGA may have to buy water rights to comply with those minimums. it is possible for companies to acquire water rights but not use them. 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). Water service laws regulate the quality. especially in the summer season.

Monitoring To support compliance and enforcement. Legal provisions need to take account of the specific activities that can cause or exacerbate pollution. Good practice guidelines such as planting green belts along waterways. sewage overflows and excess run-off from paved areas also cause water pollution. GOVERNMENTS MUST ESTABLISH SYSTEMS FOR MONITORING” Enforcement Provisions must be made in law for enforcement mechanisms. Substantial water pollution can come from water that runs off farmland and urban areas. but it is much more difficult to identify the precise sources of pollution and therefore appropriate regulatory measures. “WATER LAW MUST ADDRESS REGULATION OF BOTH POINT SOURCES AND DIFFUSE SOURCES OF POLLUTION” Water pollution from diffuse sources Recent generations of water laws have addressed water pollution from diffuse sources. and analysis.2 Monitoring. governments must establish. and in the development of water resource plans.Historically. From urban areas. data processing. compliance and enforcement Chapter 5 goes into more depth on these topics. but can be unpopular. and the ability of enforcement officials to enter and search a premises. and limiting the amount and timing of fertilizer and pesticide applications. oil and other chemicals from city streets. 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. 59 . regulatory restrictions may be developed for the application of fertilizers that lead to nitrate pollution of surface waters or ground water. 3. water users and the general public. Provisions can be included in legislation to support adoption of these practices with the option of making them mandatory. From farmland. are common in many countries. such as requirements for notification of a violation. pollute streams and rivers. systems for monitoring users’ performance and the changing condition of the water resources. Fining farmers for run-off pollution is also an option. as well as eroded soil. Data should be available for use by state agencies. Quality standards should be established that adhere to accepted methods of scientific measurement. point sources of pollution were tackled first in water quality legislation because they were easier than non-point sources to identify and regulate. Data from monitoring is often used to support the protection and management of water resources. notably run-off from farmland and urban areas. but they are introduced here as they require legal provisions in the Water Code to make them possible. by legislation. “TO SUPPORT COMPLIANCE AND ENFORCEMENT. For example.4. excess fertilizers and pesticides.

As stated by the EU Water Framework Directive. These provisions. or between users and regulatory state bodies. 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. their dependent ecosystems. An example of ecological priorities in a law on water management can be found in Case 3. conservation. Hearings may be required before dispute-resolution commissions authorized to mediate issues. such as mediation.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. The law sets out the requisite composition of the Tribunal and procedures for the appointment of members. government agents or the courts. Decisions and case law from such bodies are important sources of law because they clarify and interpret statutory provisions and establish precedents. enforcement of penalty provisions arising from statutory offences should aim to be ‘effective. For example. or court proceedings to support resolution of cases between water users and utility companies. Some mechanisms for addressing environmental objectives include: incorporating the concept of ‘environmental flows’ into legislation. It has the power to summon any person as a party to the case to acquire necessary information. arbitration. and their remuneration. “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. “IT IS IMPORTANT THAT CITIZENS KNOW THEY HAVE THE OPTION OF LEGAL REDRESS” 3. but they are in fact binding obligations. Budgetary and expenditure matters are also addressed under these provisions. found in the opening sections of water laws. local community organizations.5. the authority to mediate and arbitrate water issues. private companies.5 Incorporating conservation into water law Water laws often contain environmental provisions that emphasize specific environmental objectives with only generic guidance on how to go about achieving them. Failure to comply with or to reach a decision can then result in referral to a judicial body. preservation or enhancement of water bodies. For example. It is important that citizens know they have the option of legal redress against the State. including appeals. 60 . or individuals who fail to uphold the law. requiring environmental impact assessments and requiring protection measures for water bodies in certain circumstances. The law may accommodate the involvement of individuals. For example. a Water Tribunal was established with jurisdiction over any waterrelated issues in the country. and their water quantity and quality. protection. under certain conditions. In addition. may seem aspirational. the Tribunal has. under the 2004 Water Resources Management Act in Namibia. proportionate and dissuasive’. The articulation of increasingly environmentally conscious guiding principles paves the way for interpretation of the rest of the statute with these priorities in mind. A range of penalties is possible but should include suspension and cancellation of the permit or licence. their necessary qualifications. an opening provision may state that the rules and regulations should be interpreted according to the principles of sustainability. and advocates holistic planning and management that encompasses environmental considerations.

6). Application of environmental flows is facilitated by clearly specifying mechanisms for assessment and implementation in water law. 61 . The minimum flow is the least quantity of water required to maintain water quality and support the aquatic environment.Case 3. 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. land should not be degraded. According to these principles: protected and restored and. but they vary seasonally in volume according to the needs of ecosystems.1 Environmental flows The IUCN toolkit FLOW 25 defines an ‘environmental flow’ as the water regime provided within a river. Minimum flow requirements mandate a certain volume to be maintained in streams. should be protected and (in the case of habitats) restored. Case 3. New South Wales.6 Environmental flows in Costa Rica and Chile Environmental flow in Costa Rican law is defined in the last draft of the nation’s Water Law as the ‘quantity of water required for guaranteeing the sustainability of each ecosystem’. Environmental flows are a scientific advance over the concept of ‘minimum flows’. which also appear in water law. 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. wetland. where possible. improvements in understanding of ecological water requirements. Another delicate legal issue is whether minimum flow requirements should only affect permits granted after the establishment of such requirements (see Case 3. Such requirements are often the basis of water allocation plans. They are determined through assessment of the impacts of changes in the volume and timing of flow on both the condition of ecosystems and river and water users. and their dependent ecosystems should be considered and minimized. 3. economic and social trade-offs between possible flow regimes.5. Minimum flows can be maintained by modification of infrastructure or changes in water allocation policies and entitlements. paying special attention to the different uses and its hydrological location. Flow regimes can then be agreed by weighing up environmental. such agreement can emerge through negotiation among stakeholders. 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. As outlined in FLOW. Some laws have stipulated the actual percentage of minimum flow requirements.5 Ecological elements of water law. which can be helpful in a dry period when allocations for other uses may take an unusually high percentage of the water resource.

Therefore water should not be extracted or used in a manner that will deplete the national reserve.5. 40 percent of the average annual flow. If a permit affects the established environmental flows. Rules should be clear. 3. with the exception of those required for supply of the human population. In Chile.1 Water rules and regulations through signs indicating nature and water protection areas (Germany). 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. as set by the President. Law 20017 of 16 June 2005 which reforms the Water Code. The Costa Rican Water Law draft is still under parliamentary debate for approval.2 National water reserves and protected areas Many water laws contain provisions obligating the State to set aside national water reserves. A useful definition of ‘national reserve’ is ‘the quality and quantity of water that is required to satisfy present and future basic human needs. 62 . Photo 3. establishes that the water administration must determine the minimum ecological flow requirements of surface watercourses. and the proposed impact will be solely on rights of use issued after the date of the law. as well as to protect aquatic ecosystems and to secure sustainable development and use of that water resource’.The Hydrological Unit Water Plans will be the body that determines the required environmental flow for each body of water. it will not be authorized or renewed. It stipulates that the required minimum flow should not exceed 20 percent of the average annual flow or. in exceptional cases. Existing rights are not affected. provide certainty but also flexibility to address a wide range of water related issues.

watershed. Declaration of a protected area can trigger restrictions on water abstraction. These provisions include the duty to publicize the purposes of declaring such an area. and that they and their immediate environments shall be protected for the benefit and enjoyment of present and future generations. road construction. cultural or similar values. historic.7). a classification system for water resources. Generally however. determination of the reserve. establishment of monitoring. establishment of water user associations (chapter 8) and advisory committees (chapter 9). and effluent discharge. in the reasonably near future. the 2005 Water Resource Management Act in Namibia provides for establishment of protected areas to safeguard ‘any water resource. and the activities that are prohibited within it. “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. environment or ecosystem at risk of depletion. power generation. This law designates prohibited development areas. taking water from. forbidding building and any type of construction (such as dams).’ Measures provided for by the NWA to protect the quantity and quality of the reserve include: water management strategies (chapter 2). An example of using the protected area approach to conservation of amenity values in river basins is described in Case 3. contamination. These are granted precedence in water allocation. mining.8. be relying upon.The South African Reserve Law pioneered the establishment of national water reserves. and meeting the flow requirements for ecosystem and wetland protection (see Case 3. application of pesticides or fertilizers. Case 3. wetland. strategies for water pollution prevention. as prescribed under the Water Services Act 108 of 1997 (WSA). assessment and information systems (chapter 14). establishment of agencies to regulate water resources at catchment level (catchment management agencies) (chapter 7).7 National water reserves in the South African Water Law A ‘reserve’ is defined as: ‘…the quantity and quality of water required to satisfy basic human needs by securing a basic water supply. For example. The U. a pricing strategy for water use including charges for waste discharge and pollution (chapter 5). or crop cultivation that modifies land contours. The impacts of these restrictions on affected permits must be assessed and distributed proportionately across the licensee population in the area. Wild and Scenic Rivers Act of 1968 declares that certain selected rivers that have remarkable scenic. 63 . tree felling. It has two components. determination of resource quality objectives. recreational. should be preserved in free-flowing condition. which would affect other parts of the water resource and includes guidelines on the determination of such a protected area. access to and rights over land necessary to protect water resources (chapter 13). reserves may be used for domestic and urban needs. ‘basic human needs reserve’ and an ‘ecological reserve’. geological. including aquatic and terrestrial weeds’. fish and wildlife. and to protect aquatic ecosystems in order to secure ecologically sustainable development and use of the relevant water resource (chapter 1). Case 3. for people who are now or who will. or being supplied from the relevant water resource. S. its geographic boundaries. riverine habitat. extinction or disturbance from any source. an elaborate water use licensing system (chapter 4).8 Protected water landscapes 26 Areas of scenic beauty or recreational values can be subject to special protection. remediation and emergency incidents (chapter 3). provisions on international water management (chapter 10). and criminal offences and remedies (chapter 16).

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. records submission. and penalties for non-compliance. of construction of pipelines and communication infrastructure. The high degree of regulation is also reflected in qualification and record-keeping requirements for professional drilling personnel. 3. Water rights are purchased on behalf of the environment and used to set up ‘water trusts’. such rights are trust water rights. For example. They then used these rights to reinstate stream flows. 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). This concern reflects the need for water policy and law to preserve the natural interconnection between ground water and stream water because of the severity of damage to the environment that can result from overexploitation and pollution of aquifers. Ground water protection laws commonly contain rules on ground water abstraction that cover well testing and casing. inspection rights of authorities. 27 Following this model.4 Environmental water trades and water trusts Trading of water rights has gained currency as a market-based device for safeguarding or restoring aquatic ecosystems. gifts or bequests. and zones of ecological disasters. by purchase. 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. legislation governing water trusts in Washington State stipulates that the State may acquire all or portions of existing water rights.5. water conservation works. and for extraction of biological resources and materials. and investment profits from the trust money.5. the 2005 Water Code in Kyrgyzstan includes provision for protection zones for the purposes of protecting aquatic ecosystems. “SPECIFIC PROVISIONS FOR PROTECTION OF AQUIFERS ARE COMMON IN WATER LAWS” 3.A similar approach is the establishment of ‘protection zones’ such as zones of sanitary protection. They typically define particular licensing requirements for activities such as drilling bore holes or constructing wells. water licence proceeds. Australia demonstrates the workings of a slightly different type of trust fund. Once protection zones are created. the government must establish procedures for regulation of land use and forest use within them. upgrades to water quality. 28 The 2003 Catchment Management Authorities Act in New South Wales. ground water protection. water protection. Monitoring programmes and cataloguing protection zones in a register are needed to support enforcement. gift or other appropriate means other than by condemnation. “TRADING OF WATER RIGHTS HAS GAINED CURRENCY AS A MARKET-BASED DEVICE” 64 . For example. a trust fund is operated using capital acquired from the state budget. Once acquired. from any person or entity or combination of persons or entities. and any environmentallyrelated functions under the law. Laws contain especially stringent controls to safeguard against overexploitation or depletion of ground waters. stock formation. flow. Under this Act.3 Ground water protection Specific provisions for protection of aquifers are common in water laws. ground water and environmental health.

ing details of their functions and powers. for example.5 Environmental impact assessments Laws often incorporate the use of environmental impact assessments (EIAs) in a number of areas including abstraction licensing. changes in land use. but also for their effective functioning and their capacity to realize national or regional objectives. “POLICY AND LAW ARE THE PLATFORM FOR THE ESTABLISHMENT OF AN INSTITUTIONAL FRAMEWORK THAT WILL MANAGE WATER RESOURCES” 65 . and planning.6. water law should not only allow for the establishment of water institutions at various levels. EIAs are commonly required in statutes as part of the process for granting permits or licences for discharge of wastewater or water abstraction. The principal functions of water law with regard to state water institutions are to: tions particularly in the areas of licensing and monitoring.3. and laws may also be needed to determine how governments work with non-governmental or private organizations active in water-related issues. waste disposal permitting.6 Prescribing institutional functions Chapter 4 is devoted to a discussion of effective institutional arrangements. EIAs are surveys that assess how.1 Governmental institutions Policy and law are the platform for the establishment of an institutional framework that will manage water resources. for enhancing efficiency and to reduce the likelihood of institutional weaknesses crippling the law. “LAWS OFTEN INCORPORATE THE USE OF ENVIRONMENTAL IMPACT ASSESSMENTS” 3. Often the review procedures of such studies allow for consultation and analysis by a competent environmental body. But most government institutions must be established by legislation. 3. site development or water management will impact the environment including watercourses and aquatic ecosystems.5. Ultimately. institution.

Case 3. For example. who may be vendors or partners in various efforts. state/provincial. with attendant staff changes and modifications to budgets. ground water. water resources but also facilitates acceptance of the legal regime and thus enhances its enforceability and ultimately its societal value. Water-related institutions should be established at the local. 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: including water conservation and demand management policies. taxation. Decentralized management is reflected in legislation through concepts such as ‘catchment management area agencies’ and ‘water user associations’ (WUAs). when reversal of policies accompanies changes of government. Provisions should also be made for participating in transboundary watershed management commissions. It not only encourages awareness of. is increasingly common practice. and diversified development within the water sector. tion of farmland drainage and irrigation. with various forms of involvement by community groups and the private sector. utilization of funds within the water industry. codes for water works. especially at the grassroots level. rural electrification. “WATER LAWS SHOULD ALSO ENCOURAGE PUBLIC PARTICIPATION” The participation of a wide range of actors in the management process also enhances the stability of institutional arrangements. WUAs have minimal state input and 66 .6. provide guidance for economic activities related to water supply. Water laws should also encourage public participation and set rules for working with NGOs and with contracting private organizations. impacts on the water management framework can be attenuated if stakeholders have been empowered to share responsibilities. and water supply projects for townships and villages. implement key hydrological research projects. and popularize and disseminate water-related technologies. hydropower. dards concerning resource and environmental protection. watershed and national levels. and responsibility for. provide recommendations on economic regulation of water pricing.2 Non-governmental organizations and the private sector Devolution of authority and decentralization of management of water resources to the basin or catchment level. tion projects in the water sector. credit and financial affairs.

and for legitimizing the environment as a ‘user’ of the resource.30 3. They are subject to national policies and plans. In the context of increasing competition for ever scarcer water resources. 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. government-administered permit systems hold the best promise across the spectrum of legal systems for the orderly arbitration of conflicting interests. but it is never absolute. social. however. As ‘legal persons’. rank prominently in recent water legislation among the variables that attenuate the security of legal title to water sought by investors. is the security of tenure afforded by government grants of licences for water use. as security is invariably qualified by the flexibility sought by government administrators to adjust allocation patterns to changing policy. The environment. “A WEAKNESS RUNNING ACROSS LEGAL SYSTEMS AND NATIONAL WATER LAWS IS IGNORANCE OF CUSTOMARY PRACTICES” 67 . valid across legal systems. Transition is a very delicate aspect of water law reform. can be all too easily imperilled by the weakness of the machinery that administers the system.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. of liability. Another weakness is inadequate outreach to the established water-using population. A permit system in the hands of a malfunctioning. how surplus income may be retained or distributed. WUAs have the right to enter into contracts. and an instrument of oppression and corruption at worst. with its panoply of property-related issues. economic and technological circumstances. inadequate attention at the drafting stage. hydrological. and inadequate preparation at the implementation stage may delay and jeopardize the reforms. and how their independence from the state is managed in their role as public service providers. thus defeating the very purpose of a regulatory approach to managing and developing water resources. employ staff and participate in legal proceedings in their own names. This security is very important to prospective investors. “GOVERNMENT-ADMINISTERED PERMIT SYSTEMS HOLD THE BEST PROMISE FOR THE ARBITRATION OF CONFLICTING INTERESTS” A weakness running across all legal systems and most national water laws is ignorance of customary practices. and laws frequently confer WUAs with legal personality for ease of operation. hold bank accounts. slow. although some smaller associations can function without it (usually where monetary transactions are not involved).are primarily cooperative entities that undertake water-related activities for mutual benefit at local level. The strength of a permit system. if any. and the ecological value and function of surface and groundwater systems. arbitrary and opaque administration will quickly become irrelevant at best. The risk is that both the legislation and its administrators multiply opportunities for conflict on the ground. It is useful to state explicitly in legislation the degree. Constituent members cannot be held liable as individuals. An overarching problem is the transition from the old to a new concept of water ownership and allocation. Their distinctive strength.

8 Reforming water law: practical steps Because legislative reform must be informed by policy. Regional environmental agreements duties with which the country must comply and whether it is doing so. Document customary practices between the water law reforms and established customary practices on the ground. Step 2. 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 cies. Step 1. 68 . Step 3. Conceptualize the legal framework At the national normative level the Water Act(s). the steps described below presuppose interaction between the stages of forming the policies and writing the laws. At the national constitutional level healthy environment. The steps below are given in a logical sequential order. although some may be carried out in parallel. Opportunities for public debate during both stages are also assumed. and values. legal mandates.3. but also all the legislation that may contain provisions on water resources are canvassed. environment and to water. Analyze existing legislation policy enunciation process.

Otherwise the law runs the risk of being discredited and appearing irrelevant. Include environmental provisions The achievement of environmental water governance goals calls for any combination of mechanisms such as: governmental decisions regarding water allocation in general. and water abstraction licensing and wastewater disposal permitting in particular. timed.Step 4. 69 . whereas the latter can be left to implementing regulations to be made by government under the authority of an act of Parliament. Prepare regulations to implement the law government of implementing regulations must be kept within reasonable bounds or risk jeopardizing the credibility of the reforms as a whole. Step 9. Inform and prepare water users Prepare a serious outreach and information campaign for implementation following enactment of the new law. conversely getting bogged down in the minute administrative details of operation. this requirement can be scaled to the level of the importance and magnitude of the use applied for. and to participate in the decision-making process. Determining what belongs where. to coincide with increases in administrative capacity. For administrative expediency’s sake. Step 8. Separate laws from regulations Parliament. Step 5. Step 6. Step 7. and plan the necessary upgrades ahead of the adoption of the proposed legislation. Identify needed reforms mentation of new policies. only to comply with the new law. however. is a discretionary exercise. but also to avail themselves of new opportunities for the protection of their legitimate interests and rights. Gauge governmental capacity reforms.

70 .

and incorporate crafting of relationships with non-governmental and private partners.Chapter 4 Building a Sound Institutional Mechanism 4. Such a framework should be set up to deliver IWRM goals. 2. permits. Engaging with agencies representing major water-using sectors such as agriculture. Water institutions have many functions. irrigation and hydropower facilities. Coordinating with other agencies. Administering water rights Implementing a system to manage water rights through authorizations. 3. Implementing water distribution and development through regulations and negotiations Maintaining or restoring the health of the water system to provide clean drinking water. Operating and maintaining water works infrastructure Adopting measures related to water works and other hydraulic installations. and water supply regeneration. Fostering public involvement Ensuring real participation by the public in water planning and development. national and subnational levels Working with other nations in an international river basin at the political and technical levels. as well as with private and non-governmental organizations. They must address a variety of issues in implementing water governance.1 Building governmental water institutions An institutional framework is needed to move from reform of water policy and law to implementation and thus to achieve effective water governance. 4. Planning sustainable development of water resources 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. industry. sewerage and sewage treatment facilities. Overseeing development of water works including water treatment systems. Coordinating with other water-related institutions at the international. and provincial. 5. their operation and maintenance either through governmental agencies or through contracting with private companies. licences or concessions. 6. basin and local water institutions. Developing clear stewardship regulations and contractual language for private operators. power and urban development. recreation. Some of their major functions are: 1. 71 .

from a centralized system recognizing customary rights to a decentralized and private management set up. but later other factors such as severe droughts and economic crisis played a major role. The reform shifted certain water management paradigms: from water development to water allocation. the Chraa – the religious interpretation of Islamic law – and by the rules introduced by the French Protectorate. ground water and atmospheric water) in terms of quantity and quality. The decision to follow a particular approach will also depend on the political will and circumstances in which a water reform is undertaken. 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. 9. Conducting research for planning. 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. geographical and climatic factors. interpreting and acting on scientific data starting with an inventory of the nation’s water bodies (surface water. “THERE IS NO BLUEPRINT FOR AN INSTITUTIONAL FRAMEWORK” 72 . religious. local). and compliance with. Case 4. flow rates and other parameters before and after different interventions. unitary/centralized or federal). instruments such as water pricing. historical and political factors led institutional reform before independence. law and institutions) can influence the evolution of institutional reform.1 Water institutional reforms in Morocco Moroccan institutional reform has been influenced by customary rule. but the quest to achieve an effective water governance system adjusted to national realities is a process with different entry points.7. There is no linear evolution in the water reform process (policy objectives-legal instruments-institutional set up). Once a new legal framework was consolidated. and other political. monitoring and inspection Collecting.g. “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. regulations. became more relevant for translating the legal framework into action. influenced by different factors. In the early stages of the reform process. Religious. from a subsidized to an autonomous approach and from a sectoral approach to integrated management. 8. and monitor use rates under permits. The Moroccan experience shows how the interaction between the three components of a water governance system (policy. Enforcing laws and regulations Ensuring enforcement of. Monitoring water quality. legal aspects were crucial. Managing conflict resolution Establishing mechanisms to resolve conflicts over water resources. national. and administrative components like the creation of RBAs and WUAs.. species composition. and ultimately depending on strengthening the governance system. In the early 1990s.

1 lists the functions of water organizations at various levels. Table 4.2 Types of water institutions Water institutions can range from complex international basin commissions to local water user groups.4. Box 4. Table 4.1 Classification of water institutions Institution Jurisdiction Function Characteristics - - 73 .1 gives examples of some existing water institutions.

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. Public Works. Australia or the United States. investigates water quality or quantity and supports community involvement in integrated basin and water resource protection management. which is in charge of defining water policy. grant the water institutions in their federated states different degrees of autonomy. Non-specific water institution: In Belize. 4.1 Examples of water institutions International commission: In 2002. the Water Resource Advisory Committee advises the Water Resource Authority. particularly in water supply and water treatment. including the Ministries of Natural Resources. Basin Authority: The Po River Basin. In Brazil. water. The Tripartite Permanent Technical Committee. the federal agency CONAGUA is in charge of the administration of the national water policy from the federal to the local level. Under Jamaica’s Water Resource Act. there are many grey areas in which responsibilities are not clearly defined. together with the Kingdom of Swaziland. water policy makers are supported by advisory technical boards that inform their decisions. 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. signed an agreement to cooperate on the protection and sustainable utilization of the water resources of the Incomati and the Maputo watercourses. air and ground water resources issues. such as Argentina.2. serves as the competent water authority responsible for the joint implementation of different projects. It also works on sustainable development. ecotourism. the responsibility and management of water is shared among several ministries. 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. Water Agency: In Mexico. However.1 To centralize or decentralize Countries with federal structures. information exchange and control of transboundary impacts. established in a prior agreement among the parties.Box 4. a new policy must be approved by the Minister. Before being implemented. chemicals. Energy and Health and Environment Resources. Water Committee: Frequently. It develops water policy and coordinates its implementation under IWRM as a major policy paradigm. climate change. the Republics of Mozambique and South Africa. One of its major concerns is to formulate and implement policies that allow the government to achieve European standards. water policy is shared among two agencies at the federal level. ground water levels and water quality. who must first obtain the recommendation of the Advisory Committee. whereas in more centralized 74 . waste. National Ministry: The Bulgarian Ministry of Environment and Water coordinates cross-sectoral and hierarchical policies. manage and protect water resources for socio-economic development. biodiversity. Water Ministry: In Kenya the Ministry of Water and Irrigation seeks to conserve. CONAGUA coordinates with institutions and stakeholders at all levels of governance. It also identifies water bodies and basins that require monitoring.

enabling a bottom-up institutional framework. perhaps because in less centralized governments there is more room for multi-stakeholder negotiations. the national government controls water and environmental management. “THE MAIN RESPONSIBILITY AND DECISION MAKING SHOULD REST WITH THE LOWEST POSSIBLE LEVEL OF AUTHORITY“ 75 . economic growth and environmental protection. mining. local organizations must still be held to national and basin principles. Although many decisions may best be made at the most local level. water institutions tend to be managed by the State. the main responsibility and decision making should rest with the lowest possible level of authority within a political hierarchy. from the top of the government to the final users. visions and policies. at the national level. since water management issues cut vertically and horizontally (vertically. there might be an argument in favour of having a central institution oversee the overall water administration. this means that. many functions of water management should be carried out at the local level. and horizontally among different sectors. forests. “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. 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.countries such as South Africa and Mexico.2). Nevertheless. In countries with centralized governments. whereas in countries with less centralized governments. it is unlikely that all the decisions related to water management would reside in a single institution. land use and land planning.2 Water policy arrangement approaches Water policy Water institutions Bearing in mind the need for a national approach to equity. Considering that locals can best identify their needs with respect to resource use and that local societal structures are more representative. public-private institutions tend to manage the resource. In terms of water institutions. 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. energy. In the decentralized-communitarian type of societies. such as agricultural irrigation. the State should perform only those functions that cannot be performed effectively at a more local level. institutions tend towards the direction of individual user arrangements. that is. Table 4. environment). health and sanitation.

but to find a way to integrate and account for all the organizations that do everything. because the hydrological cycle conforms more to the river basin than to any political jurisdiction. to avoid the risk of duplication of work. it is necessary to work at the river basin level. with the municipalities for water recreation activities. it is essential that basin-level institutions coordinate their activities with government units such as federated states.2 describes how water institutions can be coordinated from the local to the international level. Thus. For institutions. 76 . but to make sure they are complementary and try to synchronize interventions and actions as much as possible. most of which are formed in governmental jurisdictions. However. working at the basin level. and ineffective execution and operation of projects. jurisdictional conflict and. as a result. the river basin is the most logical unit of administration. involves a major challenge of coordination. with universities for scientific research. programmes and policies. The critical issue is not to centralize or decentralize. with the Ministry of Health to monitor levels of pollution and discharges. which probably overlaps many jurisdictions. and even with the police in relation to law infringements. The aim should be not to change the power of those institutions. organizations and corporations at different levels. In summary.Box 4. In order to coordinate upstreamdownstream uses and allocations. but to coordinate the work of this multiplicity of institutions and agencies that have jurisdiction over different sectors of water management to follow a common vision and plan.2 Advantages and disadvantages of a centralized institutional framework Advantages framework consistent with national objectives. 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. Case 4. Disadvantages information. ineffective water management. water institutions are a mixture of agencies. and to maintain a healthy ecosystem throughout the watershed for all users. provinces and municipalities. “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 key is not to develop a few institutions that do everything.

the Ministry of Environment. A third option is to disaggregate the Water Council’s political and technical functions. while the federal states must adopt all provisions necessary to implement the WFD. “COORDINATION AT THE NATIONAL LEVEL CAN BE ACHIEVED IN MANY WAYS” A second option is through a Water Council. Germany transposed the WFD into federal law.g. communes are allowed to use different types of public or public-private business models. The working groups of federal states discuss common problems of the basin. While international river commissions (e. and are responsible for their maintenance. the Federal Water Act can only establish the main framework for water resources management. However.g. with which it can decide not only on inventories and plans. This council would ensure integration at the highest political level and decide issues ranging from environment to financial. They collaborate in associations to organize water supply and wastewater treatment. like those established by the EU. The centralized body would have decision-making. A number of technical agencies provide consultative and advisory functions. there are also national river commissions (e. the International Commission for the Protection of the Rhine) coordinate the interests of the different basin states. Communes sometimes own small water bodies. An alternative is to provide the council with technical and economic powers. and implements regional standards. or within the ministry with the most responsibilities in the area of water. federal and local level. Member States must establish the appropriate administrative arrangements to implement the WFD provisions at the national level.. communes play a critical role in implementing federal and state laws. At the local level. 4.. according to the German Constitution. One option is the establishment of a central unit to consolidate the administration of water resources.2. Natural Resources or equivalent. This unit could be located at the Ministry of Water Resources. composed of representatives of all the ministries with sectoral involvement in water resources.“WATER INSTITUTIONS ARE A MIXTURE OF AGENCIES. With an amendment to its Federal Water Act. thereby creating the basis for achieving the EU-wide environmental objectives. 77 . the German Commission for the Protection of the Rhine – DRK) and working groups on specific rivers (e. They are entitled to recover costs through consumer fees. 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. ORGANIZATIONS AND CORPORATIONS AT DIFFERENT LEVELS” Case 4. In order to ensure water supply and wastewater treatment. technical and executive powers. exchange experiences and seek joint solutions. the Working Group of Federal States for the Protection of the Rhine – ARGE Rhein).2 National. and establish a Water Commission or Water Committee for coordinating work only at the technical level. 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. administrative.. but also on specific investment projects or re-allocation of water rights.2 National coordination Coordination at the national level can be achieved in many ways.g. Germany illustrates how a federal and decentralized country organizes its water resources management at the national.

or actual regulation. working groups on various technical issues. “THERE ARE MORE THAN 260 SHARED RIVER BASINS IN THE WORLD” International basin organizations usually start with the joint appointment of a technical committee that tries to deal with data collection and assessment of resources in a non-political framework. It also needs a strong technical capacity to participate in inventories. 4. “INTERNATIONAL BASIN ORGANIZATIONS USUALLY START WITH THE JOINT APPOINTMENT OF A TECHNICAL COMMITTEE” Case 4. Nineteen basins are shared by five or more countries.000 water treaties. To participate effectively in an international basin organization. About 145 nations have a portion of their territory in an international river basin. and spreading to cooperation in other sectors. Burkina Faso. improving sustainable management. a board of trustees. There are currently nearly 200 international river basin organizations (IRBOs) in operation around the world.3. Eventually a diplomatic-level commission may agree on principles and objectives. 78 . and a secretariat for administrative work. but. a country needs: high-level diplomats who understand the advantages of the basin approach and have the ability to effectively negotiate win-win results. planning and management. a group that settles disputes.3 Four levels of water institutions 4. Water conflicts among nations have been common throughout history and efforts to find peaceful solutions have resulted in more than 1. The international basin commissions tend to function at one of three levels: coordinating. Ghana. The National Water Agency should be able to both formulate and regulate more local institutions. and river basin experts have concluded that it takes a long time to build a competent basin organization.1 International level There are more than 260 shared river basins in the world. which interacts with several line-function ministries on an equal basis. a funding mechanism. monitoring and innovation and real public participation from all levels and sectors.32 Many have a long history of successes and frustrations.3 Problem solving through international basin institutions in West Africa The Volta Basin Authority (VBA) was formed by six states: Benin. which held a series of meetings and negotiations leading to the development and adoption of the ‘Convention on the Status of the Volta River and the Establishment of Volta Basin Authority’ on 19 January.A fourth option is a National Water Agency not linked to any ministry. Mali and Togo.33 the benefits can extend beyond water issues to driving economic development. as discussed in detail in the IUCN toolkit SHARE. A fully functioning IRBO might include a diplomatic-level commission. The process of creating the VBA began in 2004 with the formation of a Technical Committee of the Volta Basin (TCVB). one-third of which are shared by two or more countries. Ivory Coast. 2007. Only a few are in the regulation category.

3. It is expected that the parties will be able to prevent further conflicts. 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. 1977) recommended that states should consider the establishment and strengthening of river basin authorities. it does not necessarily coincide with the ground water located underneath the basin.The mandate of the VBA is to promote integrated water resources management and the equitable distribution of benefits. management at the basin level needs to reflect the existing political divisions such as municipalities and provinces. municipal and domestic uses tend to be administered by the federated states. Politically. Countries following an authoritative type of water policy as discussed in Chapter 2.1). functions such as agricultural. The organs of the VBA include the Conference of Heads of States and Governments. fishing. It is more likely that policy formulation and the compilation of a national waters inventory are central government responsibilities.1. The combination of functions depends on the institutional framework. and monitoring and inspection are done. 2001) noted that river basins are the most appropriate frame of reference for water resource management. “THERE ARE GEOGRAPHICAL. at the more local level (see Box.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. whose borders do not necessarily coincide with the geographical boundaries of the basin.2 National level National water institutions reflect all or some of the functions mentioned in Table 4. and the World Summit on Sustainable Development (Johannesburg. The United Nations Water Conference (Mar del Plata. the Forum of the Parties involved in the development of the basin. 4. as a matter of efficiency. There are geographical. This is also where the relationships between consumptive and non-consumptive uses of water take place. such as those that have characterized the area for the past decade. Therefore. The International Conference on Freshwater (Bonn. the basin territory does not include the sea (where part of the hydrological cycle takes place) and hydrologically. operation and maintenance of water works. In countries with a decentralized structure. 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. physical and political reasons for a basin approach and the establishment of basin-level institutions. by solving any issues that may arise through the organs of the VBA. PHYSICAL AND POLITICAL REASONS FOR A BASIN APPROACH” 4. the convention is seen as a new opportunity for securing peace in the region. and the distributions of competencies among different sections of the government. whereas administration of water rights. the Council of Ministers in Charge of Water Resources. the Technical Committee of Experts as well as the Executive Directorate of the Authority. 4. 79 . 2002) recommended countries adopt an integrated water basin approach.3. and the type of water policy followed by the country. whereas navigation and infrastructure tend to be central government responsibilities. Geographically.

Basin institutions can no longer focus on the simple expedient of sharing the water to the benefit of existing water users within the basin. a series of recommendations can be made: at past experiences. A basin-wide consensus-building approach open to public participation holds the best hope for implementing the policy and the law. This is a particular risk in developing countries facing severe skills and funding shortages. and an increasing tendency to decentralize water management to river basin organizations. desired effect. or may abandon their broader mandate in favour of simple water sharing. Although there is ample consensus on the benefits of managing water at the basin level. there are many examples of organizations that have failed in their broader IWRM mandate. pollution prevention and water resource development. which entails a judgement on the scale on which to manage the water resources of a country. lish an effective decentralized institutional system. social. common interests and conflicts explored. why not? work.The establishment of basin-level institutions derives from a policy decision. and potential 80 . Faced with that mandate. Have basin institutions been set up in the past? Did they work? If not. basin commissions may either suffer a ‘paralysis by analysis’ problem. 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. Countries with a pluralisticliberal 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. but must look at a wider national and international. “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. there are essential foundations for a basin institution to work effectively as described in the IUCN toolkit SHARE: mation. Major stakeholders can be identified.

This alternative encourages awareness and responsibility towards water and facilitates the acceptability of the legal system. “A BASIN-WIDE CONSENSUS-BUILDING APPROACH HOLDS THE BEST HOPE FOR IMPLEMENTING THE POLICY AND THE LAW” 4. New governments may reverse policies. the impacts of such changes on the stability of the institutional set up can be attenuated if stakeholders have been empowered to share responsibilities.resolutions identified and agreed upon. When the water is used for irrigation. but one that can be boosted by local attention to basic parameters such as gauge heights and simple water quality tests. which demand a basinwide vision on the one hand. BUT ACT LOCAL” Decentralized management at the basin level that includes community groups and the private sector is becoming increasingly popular. and should be monitored at a national level. where possible. Within the policy framework discussed in Chapter 2. In addition. but act local’. usually an expensive task carried out by larger agencies. and the need for local decision making on the other. Consider self-funding mechanisms such as member dues or user fees for at least part of the budget. “THINK BASIN. WUAs also offer a good platform for resolving possible conflicts between traditional or customary rights and statutory rights.3. these types of local partnerships are more likely to be adopted in countries where the water policy is decentralized or communitarian. However. They can also fulfil an important role in monitoring. Local political structures and communities often find it difficult to conceptualize impacts over larger basin scales. However. “DECENTRALIZED MANAGEMENT AT THE BASIN LEVEL ENCOURAGES AWARENESS AND RESPONSIBILITY TOWARDS WATER” According to the law in some countries. 81 . perhaps in a National Ministry. and change budget priorities – with positive or negative results on the institutional framework. restructure staff. users taking water from the same source must organize themselves into Water User Associations (WUAs). the participation of a wide range of actors in water management processes offsets the frequent institutional adjustments deriving from cyclical changes in governments. user associations are called irrigation communities. participation must be tempered with consistency with core national principles. This potential dilemma can be addressed by the principle of subsidiarity in such a way as to encourage stakeholders to ‘think basin. so that the institution will not be totally dependent on funds from other institutions. by facilitating the implementation of water law through an active participation of the users at the final stage of water distribution. or National Water Agency. 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.4 Local level There is a potential inconsistency between IWRM goals and principles. These groups govern themselves and are funded by a statute submitted for approval to the relevant basin institution.

000km2 from the high slopes of Mount Kilimanjaro to the Indian Ocean. incorporating local concerns and interests will help to develop more effective management systems. overextraction.4 Implementing national policies through local institutions in Tanzania In Tanzania’s Pangani River basin. Case 4. to a proposed drinking area away from the farmlands. and problems with livestock travelling long distances. and reduce the pressure on the spring.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. The government established the Kahe East Water Users Association. The agriculture-livestock conflict was generating the most passionate conflicts. more than 2. many water disputes are settled by local water user groups. local tensions built up due to pollution. the elders from the villages agreed on a project to pipe water 500m from the spring. Photo 4. Community Involvement is an important element in the development of water governance capacity. to access water. which covers 48. In the Soko Spring region. six villages depend on the healthy functioning of the Soko. to prioritize water uses. On one tributary of the Pangani.1 Stakeholder discussions during the Joint White Volta Basin Communities Consultative Forum (Burkina Faso).In Venezuela. Using the Association as a discussion panel for achieving solutions. This simple project will secure the livestock and the livelihoods of the farmers. under the railway line. 82 . through land planted with crops.

WUAs can operate at a very local level. Water institutions for IWRM go beyond the regular decision making and management of water resources to creating 83 . recognizing that it is integrated in terms of surface water and ground water. “IWRM REQUIRES THE ESTABLISHMENT OF AN ADMINISTRATIVE SYSTEM” 2. Basin organizations are better placed to undertake visioning exercises. Organizations covering several sub-basins may also be necessary to take advantage of the economies of scale for funding. The institutional set-up must be cross-sectoral IWRM requires the establishment of an administrative system that allocates tasks among different agencies and pursues a high level of communication among those agencies. Management too must be integrated to consider the effects of every water use over the others. economic growth and environmental sustainability.4 Designing institutions for IWRM The point of departure for IWRM is that water is part of an ecosystem. quantity versus quality issues. IWRM deems the river basin as the most appropriate management scale. and the administration of water-use entitlements. economic and sustainability goals. 4. These organizations typically manage allocations among individual users. and that water allocations and discharge regulations remain consistent with national objectives. and work within the framework of the country’s overall social. Following the principle of subsidiarity. but can also have limited responsibilities with regard to monitoring and visioning for the larger system (apart from perhaps direct abstractions from the system). and to plan water allocation scenarios which meet the criteria of social equity. “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. ensuring upstream use does not compromise downstream users. integrating across several government agencies at all levels. Different water uses are interdependent and thus need to be considered in an integrated manner. operating at different levels and with different mandates: and social priorities. What are the institutional requirements to implement IWRM? They can be grouped in four clusters: 1. These agencies may consequently play a role in issuing water-use and waste-discharge entitlements and rights. fresh water and coastal zone issues. The government coordinates water management at the national level Effective water management requires the coordination of a range of agencies. fresh water and land issues. Larger allocation decisions may have to be made by basin-level structures. social and environmental objectives.

However. Smaller WUAs. However. as an ongoing strategy enhances institutional capacity and efficiency. in which water users pay for the water they use. However. principle-based model of democracy should be followed within water institutions. through training and education.an enabling environment for water management. Any schemes for full cost recovery for industrial water use and wastewater treatment services should be balanced by subsidies to lowincome consumers. by customary law. can usually be funded from direct user charges. directly involved with the management of water. private interests often represent a small group of individuals. but there is an increasing tendency to make water management agencies self-sustaining by imposing water-use charges. National funding also recognizes the broader social and economic benefits of IWRM. 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. and public interest 84 . agencies with more IWRM responsibilities need support from the national government. many governments are reluctant to charge poor people who would not be able to pay and may react badly to a new charge. in many cases. 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. This usually requires investment in studies on environmental. delivery pipes. Capacity building at all levels. economic and social impacts before a decision is made. The same dynamic can play out within poor communities on a gender basis. “DECISIONS MADE BY LOCALLY BASED WATER INSTITUTIONS SHOULD BE TEMPERED BY A CORE SET OF NATIONAL VALUES AND PRINCIPLES” 4. enforcement. A representative. national agencies are funded out of the national budget. “THE COSTS OF PROVIDING WATER SERVICES AND MAINTAINING HEALTHY WATER BASINS CAN BE HIGH” Traditionally. which imposes another level of coordination at the sub-basin and WUA levels. sewerage and sewage treatment. The concept of enabling refers to enhancing arrangements that go beyond decentralization models. Government must fund constant monitoring (both scientific and contractual). 3. decisions made by locally based water institutions should be tempered by a core set of national values and principles and. Many international agencies promote payment for services schemes.5 Funding water institutions The costs of providing water services and maintaining healthy water basins can be high. 4. as does hydropower or industrial use. this approach involves many sectors and political and administrative jurisdictions. Irrigation involves its own infrastructure. Gender equity considerations must be mainstreamed into decision making processes. and conservation or restoration efforts. Good planning can only be achieved through informed and rational decision making. However. However. Water services include large infrastructure and maintenance costs for water treatment.

They can relate to provision of goods such as fish. 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 agricultural practices in the watershed territory altered the once highly-regarded water quality of New York City.2 billion gallons a day for a population of nine million people. crops or clean water. Degradation of ecosystems in watersheds can lead to loss of benefits for people because of changes in the quality. or timing of the availability of water. 4. Private consultants and publicly employed experts can and should continue to be used to assess impacts. thus preventing soil erosion and run-off in a nearby watercourse. The MoA provides a legal framework for the City’s direct investment in watershed protection programmes. schemes can be put in place to enable beneficiaries to pay for the upkeep or restoration of ecosystem services. and credible compliance monitoring and enforcement of the rules (see Case 4. quantity. Payments can be made when sellers agree to forego an activity that they have a legally protected right to carry out.5).5. which averages a daunting 1. “DEVELOPMENT AND IMPLEMENTATION OF PAYMENT SCHEMES FOR ECOSYSTEM SERVICES MUST BE SUPPORTED BY LAWS AND RULES” Case 4. The IUCN toolkit PAY provides a guide to the design and application of payment schemes for watershed services. clarification of rights and institutional mechanisms that enable agreement of obligations among parties. to regulation of river flows and natural hazards. state and local governments should assume the primary role in making these investments.groups are often underfunded. Therefore. villages and counties in the Catskill/Delaware region and with environmental and agricultural organizations.1 Payment for ecosystem services Ecosystem services are the benefits people obtain from ecosystems. to cultural amenities and habitat for wildlife. a landowner to be paid for refraining from cutting down trees. for example. such transactions must be supported further by reliable contract law. 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. As a result. Development and implementation of payment schemes for ecosystem services must be supported by laws that establish transaction mechanisms and set clear and enforceable rules. As described in PAY. This watershed supplies 90 percent of New York City’s water demand. Such a provision would enable. indicating that with implementation of this watershed management programme. but responsibility for decisions should lie with those individuals that the public has entrusted to make them. which finances farmers in their shift to sustainable 85 . national. watershed towns. such as land acquisition and land easement purchases as conservation set-asides in the Catskill/Delaware watershed and for the voluntary Whole Farm programme. when it signed the New York City Watershed Memorandum of Agreement (MoA) with the State of New York. timber. economic values can be determined for ecosystem services in watersheds. the water is of a sufficient quality for human consumption.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. the EPA has granted New York City a five-year Filtration Avoidance Determination (FAD). 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. With the MoA. As shown in the IUCN toolkit VALUE.

Lauded as one of the most successful examples of public payment for environmental services. making. Water User Groups (described elsewhere in this and other chapters) are a more formal organization of direct water users. public-awareness building activities are needed to generate public support. but also access for.6 Public participation and civil society organizations Evidence shows that public participation in water management makes for better governance. People who help set up the rules are more likely to abide by them.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. residents’ associations. bringing dynamism as well as publicity to the water sector.000 acres (or 28. It generates trust and empowerment among stakeholders and creates respect and support for the decision-making process.2 Participation Public participation includes not only access for individuals. or small. single-issue and temporary. Public participation can help create networks of water arrangements. toring.7 percent of the commercial farms in the watershed area). farmers’ groups and many others.1 Awareness If a government agency is leading the way towards IWRM. touching many concerns. at a cost of US$384.agricultural practices that allow for better environmental stewardship. implementation and enforcement of water arrangements. 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. Civil society participation in the decision making process is being incorporated in legal instruments and institutional procedures as a result of reform processes. which represent 95. inspection. but water issues are pervasive.6. thus financing the acquisition of approximately 70. 4. Public engagement in water governance is examined at four levels: wants of the public.344.6. and relations with. Lack of attention to public awareness can lead to failure of reforms. implementation of this system is founded in the cooperative protection of a watershed environment that provides critical natural ecosystem services. These groups might include local environmental groups. NGOs representing various public interests. They may be long-lived and well known. “PUBLIC PARTICIPATION IN WATER MANAGEMENT MAKES FOR BETTER GOVERNANCE” 4. 86 . This urban-rural watershed management agreement resulted in a nine percent increase in water fees to New York City. 4.

The Matanza-Riachuelo basin. heavy metals. they can be effective through the use of lawsuits. Principles. The management of the basin is far from effective. water was distributed according to customary rules that were transmitted verbally from generation to generation. 4. The 1979 Spanish Water Law recognized the irrigation communities for the first time. or provided for a reasonable fee. pesticides and a long list of other pollutants. Case 4. food. are of enormous importance as ancient institutions where farmers grouped themselves to self-manage and distribute waters in an equitable. Along the basin there are more than 3.6.000 chemical. In time. efficient and organized manner. In 2006. and the 1985 Amendments strengthened them by making water users participate in.6 “Comunidades de Regantes” The Comunidades de Regantes (Irrigation communities). citizens can also implement policies and co-manage water schemes or assist with monitoring or other activities. As a result of the Court’s decision. and share responsibility for. a group of citizens filed a claim before the Supreme Court against some of the polluting industries. Although citizen groups lack the power of government. They sought an injunction to stop the polluting activities and the re-establishment of the original situation before the damage took place.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. these rules were set in written documents expedited by the mayor of the town. “WATER STAKEHOLDERS WILL DISENGAGE FROM WATER ARRANGEMENTS IF THEIR PARTICIPATION IS NOT TAKEN INTO ACCOUNT” 4.4 Citizen initiatives Finally.6. Information should only be denied for credible reasons. an aware and empowered citizenry can take the lead in water reform (see Case 4. alleging collective environmental damage. planning and finance of irrigation water together with the State administration. a 87 . In their origins in Spain. jurisdictions and districts with overlapping competencies. 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. timely and free of charge. the management.Access to information is critical in involving civil society in decision making. one of the largest cities of South America. is highly polluted resulting from a long history of dumping untreated sewage.3 Co-management Not only is citizen input critical in forming policy and making decisions. rights and obligations governing the organization of the irrigation communities are set out in the Water Law. oil. such as national security. located south of Buenos Aires. changing public opinion through media campaigns and other tactics. as there is a multiplicity of authorities. Information for the public must be available. sediments. Case 4. paper. a unique type of Water User Association. textile and metal industries and over 100 clandestine dump sites. which causes inefficiency in decision making and implementation.7).

or assessment of options for irrigation management in an area. which can account for about 70 percent of water use). 4.7. routine planning of water supply and sanitation requirements for a new settlement. though.1 Stewardship versus Service delivery The stewardship functions of water management i. however. 2. The activities where privatization offers most promise are the design. adopt preventive measures to protect human health and the environment. may be privatized on a limited basis. Particularly in irrigation (an often wasteful use. have the capital to invest in setting up an infrastructure to deliver a service. (see Figure 4. ensuring that the resources are managed on behalf of citizens. For example. private-sector involvement is feasible in specific tasks such as installation and monitoring of flow measuring equipment. The Basin Authority will monitor industrial activities affecting the basin environment.ministerial plan was developed to clean up the basin and to establish a Basin Authority (Autoridad de Cuenca Matanza-Riachuelo). and for their maximum sustainable benefit. and hence a more rational allocation. must be the responsibility of government agencies. which operates under the Secretary of the Environment (equivalent to a Ministry). Privatization is seen as a means of addressing the perceived inefficiency of public-sector agencies in providing water services. which are intrinsically linked to stewardship functions. decentralization. maintaining water flows and protecting aquatic habitats. Activities such as data collection and planning. institutional management of government agencies and regulatory functions. 3. with low economic value. mitigate and restore environmental damages in the basin. Overall guidance of such activities.. which results from the widely observed divergence between the relatively low prices beneficiaries pay for services and the higher costs of service provision. operation and maintenance of infrastructure for water services. 4.e. A fund administered by the Basin Authority was established in order to protect individual rights. the vast bulk of the financial resources are allocated to these activities. Private companies do not have stewardship functions.7 Private-sector roles in water management The rationale for privatization in the water sector has rested on at least three propositions: 1. legislation. Although this is a narrow slice of the assortment of functions required for water management and provision of water services. and promote a system of penalties. Stewardship functions include: policy making and the political bargaining processes. cannot be privatized. construction. Privatization may also be a response to the inability of governments to afford the funds required to extend water services to new users. They may. The powers and decisions of the Basin Authority pre-empt any other authority. proponents of privatization argue that appropriately higher charges for water will reduce demand and leave more water for higher value uses.1). develop uniform criteria for dumping effluents and emissions. Environmental stewardship includes providing treatment for sewage and industrial effluent. and prevent. Governmental stewardship includes protecting public health by providing clean water and sewerage. 88 .

It is especially important to ensure that standards are consistent with economic and social policies. see note 34. of the standards. regulations and enforcement capacity to avoid or overcome such issues should be in place and operating effectively before private 89 . and of the relationship between economic and environmental regulation. Conversely. treatment costs may increase for service providers. “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. for example. separation of service-delivery functions through privatization can facilitate more effective stewardship alongside improvements in the efficiency of service provision. creating the need for the service operator to develop new water sources to fulfil its service obligations. institutional roles and decision making processes used in environmental regulation. ground water resources could be depleted. In preparing for privatization. if government does not detect illegal water abstractions. For example. Figure 4. (2004). that is if the requirements on the companies are beyond what they can achieve and still make a profit. If regulation of private companies is too heavy-handed. Therefore. When the stewardship functions of public institutions are well developed. and for improving the effectiveness of regulatory arrangements.Privatization breaks the institutional link between stewardship and service provision. clear rules on environmental protection and water management are actually in the interests of private service operators.1 The core elements that must remain within the public sphere Policy making Regulation Policy making Regulation Asset ownership Corporate oversight Service provision Reform Asset ownership Corporate oversight Service provision Note: PPP – Public-Private Partnership Always public Public private or PPP Adapted from: World Bank. If government does not halt illegal discharges by polluting industries upstream. assessments should be made. privatization can fail.

Interventions. As a result. if necessary. different schemes for private-sector participation are possible. which are nominally within the control of government. Since very little risk is transferred to the operator. In some cases. 4. 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.7. In Asia a large proportion of irrigation water is provided by private tube wells. billing and collection. investing in sewage treatment and other pollution control mechanisms. The contracting authority 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. operated and maintained by groups of farmers. which they also nominally control. Non-agricultural water supplies are often derived from the same sources. More complex versions offer efficiency incentives by basing the fee in part on performance targets. In this context. Before privatization of water services takes place. In reality. controlling the operation of industries. Clear and narrow specification of the task combined with competitive bidding or fee negotiation ensure an appropriate rate is paid for the job. Privatization does not only apply to large companies and large infrastructure. constructed.participation. there should be a process of creating. but for practical purposes are unregulated. such as reducing abstractions. provoke controversy or compete with other development and economic objectives. 90 . the operator designs and manages the investment programme. Management contracts: Transfer responsibility for managing a utility to a private operator. 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. These can be broadly grouped as follows: Service contracts: Transfer responsibility for a specific aspect of service provision to a private contractor. often for a limited period. If the public institution responsible for stewardship is weak. and worldwide many small-scale irrigation systems are collectively funded. but not for financing investment. Examples of contracted tasks are maintenance of facilities. record keeping.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. The operator retains revenue collected from customers and makes a specified lease payment to the contracting authority. which typically gives the operator an incentive to improve operating efficiency and increase sales. and separating the monitoring of environmental and public health standards from service functions. there is a danger that the private-sector agency might succeed in negotiating a contract favouring its interests over stewardship. the prevailing institutional arrangements allow direct interventions by government for stewardship reasons into service provision activities. The simplest management contracts pay a private operator a fixed fee for performing managerial tasks. Profits depend on sales and costs.

without which the divested assets have little value. Under such arrangements the operator is usually responsible for raising investment funds. Build. 91 . but there are more and more stringent criteria for the institutional environment in which privatization takes place. Broadly. 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. Unlike a concession. possibly also including design of facilities. however. Asset ownership typically rests with the government from a legal perspective. However. it indicates that as the complexity of private-sector involvement increases. on strong regulatory capacity. typically revert to the government when the arrangement ends. often after 25 or 30 years. the priority must be to develop stronger capacity for regulation within government institutions before considering privatization beyond service contracts (see Chapter 5 on implementation). Table 4. It is better understood as an ‘affermage-lease with concession features’. as well as the basis for determining tariffs for services. 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. supervision (or execution) of construction. even for the most moderate levels of privatization. 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. therefore it is not required to invest from its own funds and receives an operator tariff.Concessions: Give a private operator responsibility not only for the operation and maintenance of assets but also for financing and managing investment. different from the customer tariff. especially in regard to environmental issues. For those categories of privatization that must attract investment of private capital. the operator may be given a fixed-term licence. it manages tariff revenues reserved for investments but. the potential benefits also increase. maintenance and investment. it must supplement revenues to the contractor accordingly. operate and transfer arrangements: Provide the maximum involvement of the private sector in provision of water services. Divestitures: Give the private operator full responsibility for operations. operation and provision of water services for an agreed period. Accountability and control of potential environmental impacts depends. The assets may revert to the government if the licence is revoked. as in an affermage contract. 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. Discharge fee: Although the contract is nominally referred to as a concession. If the government is not prepared to force users to pay the charges. legal ownership of the assets rests with the private operator.3 summarizes how the suitability of different options for private-sector involvement relates to features of the political and institutional context. Choice of a scheme and the potential benefits of privatization depend on the institutional capacities and the regulatory framework in place. but in such a way that efficiency incentives are not diluted. including those created by the operator. and finally transfer of the facilities to the contracting authority. rights to all the assets. Where the regulatory capacity to enforce proper environmental compliance is inadequate.

3 Features of alternative options for the privatization of water services 34 Option Stakeholder support and political commitment Costrecovering tariffs Good information about the system Developed regulatory framework Good country credit rating Potential benefits of the option Service contract LOW Management contract Lease Buildoperatetransfer Concessions Divestiture HIGH The shading signals the degree of importance 92 .Table 4.

but also increase corruption in the absence of a national system of supervision and control. operation and maintenance of water works. 3. while administration of water rights. failures and successes. When establishing or reforming an institutional framework consider the following facts: at the provincial or basin level. Water institutions must reflect a country’s political structure: centralized or federal. what went well and what went wrong. and in particular the reasons why certain efforts may have been abandoned or amended. centralized) governments with regard to the administration of natural resources. 93 . Decentralized management might lead to higher levels of transparency and accountability.8 Practical steps and indicative principles 1. hire qualified staff.4. text in which they are established. including water. but particularly on the political will and political timing of institutional reform. 2. responsibilities. evaluate its effectiveness in terms of managing the waters of the river/lake basin. 5. The establishment of a basin-level institution is a learning process from past experiences. pitfalls. on the ground in terms of water management. and monitoring and inspection are taken over. issues. whereas navigation and water infrastructure are best left as central government responsibilities. Whether to use a centralized or decentralized approach for an institutional framework will depend on many circumstances. The most adequate level of water management is the basin level. 4. 6. Institutions for water management should be designed to reflect national realities. and manage their own budgets. for efficiency reasons. at a more local level. or harmonized with other basin or sub-basin authorities with jurisdiction over the river/lake basin.

Achieving an effective water governance system is not just adopting the right institutional structures. municipal. distribution. must be established. is the best assurance to deliver on the country’s policy priorities. 8. Independently of the management structure. and the elimination of corruption. basin institutions with a more integrated vision of the whole river basin. basin. an essential institutional foundation. a long-term strategy. stakeholder’s trust in the political system. but also making a commitment to accountability. compliance and enforcement mechanisms for all the institutional levels. The complexity in terms of jurisdiction (local. transparency. proper devolution of authority. international) cannot be managed effectively within the scope of a single institution. The constant tension between the need for smaller local institutions directly answerable to stakeholders. ment. and a clear definition of roles and responsibilities of the staff. a system of fees and penalties and a timely and effective administration of justice (due and timely process). When setting up a basin institution. and appropriate funding mechanisms must be followed. availability. empowerment of civil society. including a clear mandate. 9.ing process within the institution. a clear organizational structure. recognition of subsidiarity and customary law. 94 . its composition will vary according to the political realities of the country. tative and inclusive of all the water governance levels within the country. effective water governance system that delivers on IWRM goals. Basic parameters such as consistency with national objectives. national. 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. 10. it is critical to establish an effective coordination mechanism among institutions with responsibilities over different sectors of water management. geographical realities and jurisdictional boundaries. 7.

95 .

96 .

1). LAWS AND INSTITUTIONS IS A PRELUDE TO GOVERNING” 5. If the system of governance is corrupt. Transparent systems have clear procedures for public decision making and open channels of communication between stakeholders and officials. deals. the types of regulations and negotiations needed for effective implementation will be very difficult to achieve. and any kind of agreement between parties over issues related to water management. corruption can be held at bay. verbal agreements. improving transparency. If these intangible necessities are present.35 Misuse and misallocation of resources negatively affects water governance because actors will not engage if they cannot trust in law. or nonprofit’. Conversely.policy. “DEVELOPING POLICIES. certainty and accountability will hinder corruption. The office is a position of trust in which one receives authority in order to act on behalf of an institution. certainty. Such an environment is needed for successful implementation. Corruption is ‘the misuse of the office for private gain. Transparency Transparency ‘allows stakeholders to gather information that may be critical to uncovering abuses and defending their interests. contracts. certainty and accountability – in brief. Chapter 2 described how these elements can be woven into policy. For individuals.1. laws and institutions is a prelude to governing. agencies. be it private or public. implementation needs to be backed by enforcement mechanisms. accountability and a lack of corruption. Finally.36 Transparency is achieved by: 97 . as well as applying incentives and monitoring progress.1 Trust and the rule of law Developing policies.1 Enabling implementation Effective water governance depends in large part on achieving an overall balance among the components of water governance capacity . regulations. including laws. contracts and enforcement mechanisms. All manner of social water arrangements must be accommodated when governing. through both dispute-resolution systems and the courts.Chapter 5 Implementing Water Governance Capacity 5. they need three things: transparency. An enabling environment is characterized by transparency. organizations or corporations to feel comfortable making these social arrangements. honest governance that abides by the rule of law. and make a wide range of information available’. Here they are followed in implementation. law and institutions. Combining water governance 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. Implementation needs to be enabled by designing effective regulations and negotiations to achieve compliance with water management goals.

ment. Figure 5. by involving the public in the decision making process. Transparency is reinforced by a proactive investigative media. Transparency can be fostered by public participation. which itself hinders corruption. A free press will shine a light on any dubious practices carried out by institutions.1).1 Combining water governance capacity with a strong enabling environment contributes towards achieving effective water governance 98 . and in the monitoring stages of any water arrangement schemes (Box 5.

99 . 3.1 Steps to foster transparency 37 1. Targeting specific issues: Use specific issues as entry points for improving transparency. Low levels of corruption are also critical. Access to information: Take measures to improve stakeholders’ access to information so that they may participate in decision making more effectively. Steps to promote accountability include: water resources and addressing social and environmental issues. Institutional reforms: Streamline and simplify administrative procedures and structural innovations to promote participation and accountability. 4. 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. the water resources development and management. access to redress in courts and the absence of corruption. Establish an appropriate ‘mix’ of regulatory and non-regulatory measures. Certainty The higher the level of certainty for any given transaction. increasing public awareness. meaning that the rule of law treats everyone the same without favour. 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. Include monitoring mechanisms to ensure they adhere to their commitments and are sanctioned if they break public trust. Those who violate the laws and regulations must be brought to justice. Certainty is fostered by rule of law. Create a baseline against which progress in improving transparency. 5.Box 5. Private water users should be held accountable for their water use. the greater is the willingness of stakeholders to participate. Ethics and integrity: Clarify what is expected from professionals. stakeholders are not motivated to participate because they cannot predict the outcome. Accountability is increased by effective supervision and monitoring both of data and information on water resources and contracts. 2. Under doubtful circumstances. These same issues can also be vulnerable to corruption. Certainty is achieved by: “CERTAINTY IS FOSTERED BY RULE OF LAW. and mobilizing a constituency committed to tackling corruption can be measured. including incentives and sanctions. Assessment and monitoring: Understand the types and scale of corruption and the degree of transparency in local governance. and industrialists for their water use and pollution.

Administrative agencies. In the case of framework or umbrella laws. which are designed to cover a wide spectrum of cross-sectoral issues. Whereas a constitution gives a country or a state (in a federation) an overall structure to its legal system. followed by the agency’s responses and promulgation of the final regulation.2. Establish independent review panels to safeguard outstanding social and environmental matters. regulations give specific practical and technical detail to the law. where detailed provisions are defined via protocols. with a mandate to regulate in a given area from a specific law passed by the legislative branch. avoiding longer legislative processes. which are enacted by the executive. and facilitate a more coordinated approach on environmental management issues. the effectiveness and practical implementation of law can be compromised. Regulations are the ‘rules of the game’ and must be clear to all if the system is to function smoothly. They are the means by which laws are implemented in daily life. While legal systems differ procedurally. derived from laws. In some countries. agencies are tasked with providing factual justification for the regulation. and generally includes a declaration of the main objectives and policies to be established and defined. “REGULATIONS ARE THE RULES OF THE GAME” 5. In their regulatory proposal and response to public comments. as is also the case with framework treaties. There is no clear-cut division between framework laws and comprehensive laws. This type of legislation lays down the basic legal principles without attempting to codify. 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. regulations in the form of bylaws are also needed. “THOSE WHO VIOLATE THE LAWS AND REGULATIONS MUST BE BROUGHT TO JUSTICE” 5. If these regulations are not enacted.2 Regulations Regulations (in some cases called bylaws or guidelines) are specific rules. In case of regulatory challenges.opment in a timely and correct manner. regulations contain specific instructions for the application and enforcement of law. may propose a new regulation or modification or elimination of an existing regulation. Affected individuals or groups may bring a lawsuit challenging the rule in either an administrative court or a judicial court. Framework or umbrella laws are a recent legislative technique used in environmental management. generally depending on the language in the law enabling the regulation. It delineates the main bodies and institutions and the establishment of decision making procedures applicable to a variety of sectors. as some laws have elements of both types of legislative techniques. courts will generally give wide discretion to agencies in their decision making powers. 100 .1 Writing regulations All regulations are tied inextricably to the laws enabling them and are more easily changed or revoked than the laws themselves. An important feature and advantage of framework laws is that details can be left to be determined when regulations are set. and its laws describe the rights and duties of the government and citizens in general terms.

but exceptional in character. including for waters. This is the case with navigable waterways. but have a certain level of autonomy. provinces have all the powers not delegated to the Federation. that are shared between the provinces and the federation. there are the municipalities. such as drinking water services. but never less strict. as a result.2 exemplifies different legal instruments that must be put into place in a national context. each province owns the natural resources located within its territory and. and stated that ‘No person may discharge any pollutant into waters of the U. According to the constitution. provinces can then adopt complementary rules that are stricter than the minimum protection standards. 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. however.e provincial). which had among its various goals to make US waters ‘fishable and swimmable by July 1. institutional and administrative structures create further challenges. Case 5. Finally. subject to federal approval. Some water issues can be regulated via municipal ordinances. the provinces (or federated States). the U.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). Congress passed the Clean Water Act (CWA). the powers of the federation are higher than that of the small provinces.Case 5. the ‘total elimination of discharges by 1985’. An area of power delegated by the provinces to the federation is the establishment of minimum standards for the environmental protection. As a law on minimum standards. This has raised particular concerns for example among the provinces. Municipalities are below the provinces in terms of powers. Case 5. legal. And this also applies to water. the federal Environmental Protection Agency (EPA) sets pollutant level regulations and permit guidelines as well as delegates authority to certain states to issue permits. or waste management.S. within the institutional legal structure. In dealing with point-source pollution. Law 25688 (Environmental Management Regime of Waters) adopted in 2002 establishes minimum protection standards for the rational use and protection of water. there are problems with implementation. all of which are then subject to EPA approval. which see it as their responsibility to establish those committees (and not the federation’s). and the provinces are obliged to follow its provisions. bearing in mind that according to the constitution. and the municipalities. 1983’. meaning by that. There are certain powers. Law 25688 regulates management of river basins. it applies at the federal level. but the provinces regulate water quality and quantity in those rivers located within their boundaries. water quantity and quality. a permit is needed to use those waters regulated by Law 25688. In addition to such difficulties in interpretation. for which the federation regulates issues relating to navigation. the autonomous city of Buenos Aires. The authorities need to establish water quality and 101 . and the EPA issues specifications for control technology standards outlined by Congress in the CWA. The exercise of this power by the federation is limited by the provincial power over the natural resources located within their territories. Regarding non-point sources.1 U. in order to provide effective water management.S. and that over-arching basin committees should be established for those basins located within the territory of more than one province (inter-jurisdictional basins). Environmental Protection Agency Water Pollution Regulations Pursuant to the Clean Water Act In 1972. complex political.S. In a federal context. state environmental agencies set ‘total maximum daily load’ regulations as well as comprehensive management and evaluation programmes. without a permit’. including a call for regulations. stating that their management should not be subject to territorial division (i. For example. adopts its own water laws and water codes which regulate water management.

the cánon is imposed so that users do not exceed a pollution target. Many governments do not treat water as a scarce natural resource but subsidize both urban and rural water usage.2. 10 percent in managing the cánon system. through transportation or waste discharge.effluent standards. 5. Based on the ‘polluter-pays principle’. but is proportional to the intensity of the water use. and 5 percent in funding activities relating to environmental education. Table 5. In recent years. or so that pollution is gradually reduced. The cánon is not based on a fixed payment.2 Including incentives Regulations need not always prohibit actions. These instruments are not limited to taxation and subsidies but include a variety of types of payment schemes for watershed services. The cost of water in cities is also often subsidized. However. 102 . Costa Rica has been working on the design and implementation of a new regulatory instrument called Cánon Ambiental de Vertidos geared towards a significant reduction in pollution of surface waters through economic incentives. rather than a static ‘one price for all you can use’ system. Incentives are an integral part of effective water policy reforms. The application of Law 25688 is therefore seriously compromised. 10 percent in monitoring pollution sources. and prepare and update a National Water Plan (which needs the approval of Parliament) to coordinate different basin committees. Money saved from eliminating wasteful subsidies could be converted into more useful subsidies for poor and disaffected groups. Starting from a pollution baseline in a river basin. by allowing users to own and in some areas to trade such rights among individuals and water user groups. associated ecosystems and human health. Case 5. As a result the law has not been applied and put into effect. Privatizing and regulating urban water services also improves efficiency and encourages conservation and investment in water conservation and recycling sectors. governments can encourage efficient water usage. 15 percent in promoting the use of clean technologies and capacity building. 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. it will charge those organizations/bodies that. they should first remove any pre-existing ‘perverse incentives’ encouraging inefficient water usage. resulting in water scarcities. Finally. For example. a number of countries have turned their attention to economic instruments to create incentives for effective compliance and enforcement.3 “Cánon ambiental de vertidos” In recent years. Funds collected through this system have to be re-invested within the basin: 60 percent in domestic sewage treatment. (and with the aim of lowering pollution). Law 25688 has not yet been regulated.1 lists some of the current forms of economic incentives that have been successful in some places. they can adapt to evolving circumstances. 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. Agricultural users are often not charged for irrigation water or they are subsidized in dry countries. have a negative impact on water resources. because market-based price incentives offer a dynamic means of valuing resources. as it typically does not include delivery costs. Before good water governance systems create new incentives for efficient water usage. They can instead provide incentives for people or organizations to behave in ways that benefit good water management.

monetary benefit to the non-complying party and duration of the violation. potentially pollutes a water resource. Examples of violations may include: information.3 Penalties Regulations must clearly state what comprises a violation of the law and the sanctions for noncompliance.2. the consequences. Personal liability on the part of company 103 . presence of hazardous or toxic substances in an unlawful discharge. imprisonment. Penalties may include a range of administrative or criminal fines.Table 5. or both. “REGULATIONS MUST CLEARLY STATE WHAT COMPRISES A VIOLATION 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.1 Economic incentives for watershed service maintenance Economic incentive Characteristics 5.

Discharging pollution into a public water body is perhaps the most obvious case for imposing a fine (see Case 5. The decree granted certain water management duties to 33 regional environmental authorities called Corporaciónes Autónomas Regionales (CARs). 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. The Environmental Enforcement Statute Law Amendment Act. Similarly. By national decree. passed in June 2005.4 Wastewater discharge fees in Colombia In Colombia.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. Revenues from collection of discharge fees are retained by the CARs. unlawful discharges and other related environmental contraventions. the CARs were to inventory all facilities discharging wastes that produce biological oxygen demand (BOD) and total suspended solids (TSS). to encourage quick and effective compliance with Ontario’s environmental laws. amended the Environmental Protection Act (EPA) and the Ontario Water Resources Act (OWRA). thus promoting local enforcement. 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. Case 5. and to map all key water basins so that five-year pollution reduction goals for aggregate discharges could be set and regulated. nationwide BOD discharges from point sources in Colombia decreased. In order to mitigate any unnecessarily punitive effects. The efficacy of the discharge fee programme has been questioned by some and lauded by others. “PENALTIES MAY BE CAPPED AT A GIVEN AMOUNT IF THE INFRACTION IS A MINOR VIOLATION” Case 5. Environmental penalties give the Ministry a remedy that can be applied swiftly. but rather by natural ecological delineations. Additional regulations require facilities subject to environmental penalties to prepare spill prevention and contingency plans and codify spill reporting requirements already in practice. The jurisdiction of each CAR was determined not by political boundaries. 104 . These amendments allow the Ministry of Environment to impose financial penalties in response to unlawful industrial spills. 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. The objective is to reduce waterway pollution by imposing penalties (the discharge fee) on polluters.directors or managers may also be considered for inclusion in a new water law. but between 1997 and 2003. regulations impose discharge fees on any point of wastewater discharge that releases certain effluents into a water source. penalties may be capped at a given amount if the infraction is a minor violation or results from failing to report unknown spills. As pollution reduction targets are made more stringent over time.4). The national system of discharge fees was created by Law 99 in 1993 and later implemented through Decree 901 (a regulation) in 1997. Polluters who exceed set discharge limits are required to pay a per-unit excess discharge fee starting at a minimum rate that is adjusted upwards as pollution reduction targets are continually not attained.

treaty or convention’. more solemn validity than an ordinary contract. unlike in a classic contract. 105 . exceeding discharge limits of certain substances and unlawful spills. and both require mutual consent to be abrogated. Revenue collected from environmental penalties is deposited into a Special Purpose Account. A covenant. metal casting.2. In a negotiated agreement or contract. The “Environmental Penalties – Code of Toxic Substances” provides a list of 113 toxic substances that would result in such an increase. are created in a hierarchical relationship in which governors direct the activities of the governed.000–20. for example. 40 In the field of international law. ‘Compacts’ share with covenant. ‘is a mutual promise of two (or more) parties that is valid independently of whether the parties deliver on their promise or not. restoration and related purposes. The nine sectors include petroleum. industrial minerals. a concept with a long history. 5. 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.000 for unlawful spills and spill-related violations. inorganic chemicals. Types of violations include improper reporting and record-keeping. conventions. and pulp and paper. charters. whether they prohibit behaviours by imposing penalties or encourage them by offering incentives. This gives a covenant a higher. and electric power generation facilities. treaties and even contracts may carry forward disguised forms of covenants and aspirations. manifestos. violation of the terms of the contract by one party usually releases the other parties from their obligations. the expectation that parties are obligated to respond to each other beyond the letter of the law. In 2003. designed as they are to be perpetual. In 2004. All revenue collected will be made available to communities affected by spills for remediation. constitutions. The presence of a toxic substance in an unlawful spill or unlawful discharge increases the gravity portion of the penalty by 35 percent. that the facility has gained from non-compliance with Ontario’s environmental laws. 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. iron and steel. the term ‘covenant’ refers to agreements in which one party’s non-performance does not affect the other party’s duty to perform. compacts. They also include metal mining. As the Environmental Protection Act also requires polluters to compensate for losses or damages that result from spills. Average penalties are expected to be about CAD $1. 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.4 Covenants and negotiations Regulations. these operations accounted for 30 percent of reported industrial spills on land and 64 percent of reported industrial spills into water. Environmental proposals from community organizations will be accepted every year and will be assessed by technical experts to ensure they meet the criteria. Declarations. they accounted for 30 percent of reported industrial spills into water and 37 percent of reported industrial spills on land.000 for administrative violations and CAD $10. The size of a penalty is determined by an assessment of: The monetary benefit. organic chemicals.Environmental penalty regulations apply to 148 facilities in nine industrial sectors whose operations discharge directly into a surface water body. In contrast. if any. in which rights and duties are mutually linked. the fund is not required for compensation of the victims of spills and spill-related violations.

as a general rule. by which decisions regarding the relationships between the parties to the covenant will be made and implemented. 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 government). In addition to formal written promises officially recognized by governments. which includes fines for one-time offenders and temporary or permanent suspensions of water access for repeat offenders. The Asamblea hears and adjudicates water access conflicts between members of a single community. and punishments determined by the Asamblea General reflect this understanding. The Juntas de Agua convenes mandatory work parties of community members when needed to perform maintenance on canals and ditches in the area..138. As demonstrated in the IUCN toolkit NEGOTIATE.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. is organized communally and has an unofficial system of local governance that includes elements of parliamentary. 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. sacred agreements reflecting moral relationships believed to be inherent in reality itself. 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. the parties involved must be autonomous. Tensions over water in the community have risen in recent years due to the growing problem of drought in the area. Indeed. the community has instituted a graduated system of penalties. Ecuador 41 The northern Ecuadorian indigenous community of Pijal.6). Such imbalances can lead to manipulation of processes in favour of the stronger parties. Case 5.6 Water governance by covenant in the community of Pijal. taking more than the amount allotted each family for US$ 0. representatives of those communities who understand the problem are convened and allowed to propose solutions to the issue. beneath which sits the powerful Juntas de Agua (Water Board). and imposes fines or sanctions on members who do not participate. but in order to be fruitful. Under the Asamblea is the Cabildo (a combined administrative-judicial branch). and that ‘social contracts’ were therefore deep. but community members maintain that Pijal’s water governance mechanisms are accepted by the community. the less formally regulated is the system of water governance (see Case 5. Negotiation is thus a means to an end. benefits. The basis for agreement of covenants is negotiation. In order to control theft of water (i. judiciary and administrative branches. and year-round reductions in water flow occurring simultaneously with a growing population. Thus. population 1. which is decided by a vote. 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. The system is not recognized by the Ecuadorian government. compacts and covenants can also originate from systems of local community customs and unwritten agreements. composed of the most honest citizens in Pijal. Indeed. In the case of conflicts between members of different communities. 106 .e. the more localized a system is. as the underlying concepts and values are understood by all.50 a month). facilitated processes of negotiation can help to build consensus among parties. rights and obligations. no community can long be governed without some form of mutual trust or covenantal bond that provides identity and purpose to its members and that is judged a fair distribution of powers. while recognizing that there are commonly imbalances in power among parties.

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 . These might include the number of water user groups formed.4 Compliance and enforcement Compliance refers to the conformity of society to the obligations agreed to in water arrangements. The State may use police action to assure compliance with a specific law or act. borne diseases. negotiated. Compliance with pollution regulations such as discharge limits or fertilizer use near waterways. or agreements reached by various partners. as mentioned earlier in Chapter 3 on law and Chapter 4 on institutions. When the parties involved are willing to meet their obligations. Enforcement. there are specific mechanisms to force compliance. the results should be expressed in terms that are understandable to lay people. 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. fosters security amongst stakeholders because each party knows that if the other party does not abide by the agreement. Given the highly technical nature of monitoring.“MONITORING AND INFORMATION MECHANISMS MUST BE COORDINATED BETWEEN NATIONAL AND RIVER-BASIN LEVELS” 5. Ongoing assessment must then be made using the same measurement to determine if they are improving or deteriorating. Monitoring and information mechanisms must be coordinated between national and river basin levels. What should be monitored? Physical parameters such as water quality. age and hydropower. number of additional homes served by sewerage. enforcement is not such an issue.3 Monitoring and information management mechanisms Monitoring and information management mechanisms are essential tools for enforcement. 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 implications if they fail. aquatic biodiversity and habitat must have a baseline established. The costs of monitoring can be high as they are not limited to the installation. which is necessary when voluntary compliance fails.

4. India enacted the Water (Prevention and Control) Pollution Act. Clear rights and obligations may also arise indirectly under other legislation with implications for water resources. this may be achieved through the creation of a system that secures ‘property rights’ to use water. judicial procedures or customary practices. Laws and judicial decisions have not been supported by the appropriation of the public monies needed to reduce waste discharges and support compliance. 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. Compliance is also strengthened by incorporating transitional arrangements in legislation that provide opportunities for civil society to arrange their affairs before a new law takes full effect. The implementation of the Water Act has been slow because of problems with compliance and enforcement. which created the Central Board and State Boards for Pollution Control and contains specific provisions for restrictions on new outlets and new discharges. for example through civil actions in the judicial system and ‘whistle-blowing’ procedures. These mechanisms are not limited to State or administrative action. however. Case 5. It has been argued that criminal liability may not be an appropriate deterrent.1 Enforcement mechanisms Enforcement mechanisms aim to ensure that justice can be efficiently attained when contravention of the law occurs. The Act licenses pollution by obliging anyone undertaking a potentially polluting activity to obtain permission before the discharge is allowed. in the introduction of a new water law regime. they have proved insufficient to address serious sources of pollution. Whilst most often expressed as punitive sanctions. 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. search and seizure powers.7 India’s 1974 Water Pollution Act: a failure of enforcement India has a strong water law and judiciary. Cities have spent millions on complying with court rulings by constructing new sewage treatment systems but continued population growth has rendered the expenditure ineffective. as well as the right to be heard after decisions have been taken by the authorities. 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. 108 .private) as well as the State. in appropriate circumstances. enforcement mechanisms may also include prior notice and abatement measures and. but may also enable enforcement actions by citizens. However. “ENFORCEMENT. 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. Enforcement under the Act has been seen critically as ‘policing society’. rules on existing discharge of domestic sewage or industrial waste waters and emergency measures for response to pollution of streams or wells. Firm rights can also be established through permit or licensing systems. Enforcement provisions enable punishment of a company or a government department committing an offence under the Act. 5. WHICH IS NECESSARY WHEN VOLUNTARY COMPLIANCE FAILS. In 1974. As discussed in Chapter 3. prevention and control area’. Such arrangements are often overlooked. such as in the case of the Endangered Species Act in the United States.

109 . for example. provide access to justice and the information necessary to enable direct or indirect citizen enforcement claims as an alternative to adversarial court proceedings. Spain. In Valencia. Case 5. that private property and privacy rights (as well as safety and security concerns) in addition to other relevant constitutional provisions are properly protected. The viability of such jurisdictions will depend on the requirements of constitutional and legal circumstances. Often overlooked is the nature of the forensic. by way of a warrant) is required. In addition to gaining access to private property.8 “Tribunal de Aguas de Valencia”. such mechanisms have taken the form of special water tribunals or alternative independent tribunals to deal exclusively with water disputes. judicial and alternative dispute-resolution systems. customary water institution that takes place at Valencia Cathedral every Thursday. Resources for gathering evidence are essential to enable prosecutions.2 Alternative dispute-resolution mechanisms Administrative. It was established by Jaime I in the 13th century to regulate the distribution of irrigation water from the River Turia. an inspector may require the assistance of other persons or technical equipment – these should also be specified. Specifically for the water sector. 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. 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. for example.8). that entry and inspection powers are clearly described and limited to persons duly authorized to exercise such powers. Spain The Tribunal de Aguas de Valencia is a long-standing. that describe the scope of the investigation needed where there is a suspected violation and the evidence needed for prosecution. therefore. It is important. Consideration should be given to the circumstances in which prior notification and authorization of inspection by a court or other independent tribunal (for example. weir or water piping. levee. 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. 5. This is particularly important when criminal prosecution may follow an inspection activity. It is essential. 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. Special water tribunals may be an adjunct to the official judicial system or may be established as a separate administrative tribunal.4.In the context of water governance. however. 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. such as arbitration and mediation. The affordability of public access to such a forum is a critical consideration in determining its effectiveness and viability. technical or other evidence that is necessary to prove guilt beyond reasonable doubt in the case of criminal violations of the law. Entry and inspection powers are proactive mechanisms for compliance and enforcement. In certain situations. an inspector may also require access to a particular infrastructure such as a dam.

include: 110 .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. They wear traditional smocks and hand down their sentences orally. as well as for the protection of the resource. which are implemented through practices and customs inextricably linked to a particular world vision. Nevertheless. Case 5. Customary water laws have most influence in many areas in the allocation of land and water. which may be costly. If voluntary compliance does not occur then the tribunal can enforces its decision through the closure or confiscation of the water right. The judges are eight ordinary workers representing a different irrigation network or Comunidades de Regantes who are elected to office for two years. 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. This is the case where state-centred policies for managing natural resources have failed for several reasons. their water needs. and communities restrict monopolies or individual uses. It has been criticized for disregarding the principle in Spanish Law of centralized jurisdiction. “CUSTOMARY WATER LAW CAN BE AN EFFECTIVE MEANS OF ENFORCING ENVIRONMENTAL JUSTICE” Customary water law is particularly effective because local people are informed about available water resources. and they constitute a special legal category of so-called ‘soft law’. although often ignored. The tribunal is independent but administered within the Ministry of Public Works. The term implies a quasi-legal status. They are seen by some as more successful in managing rural water resources than imposing formal laws. It is a civil tribunal and its decisions can take the form of a fine or other sanction . 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. as cases are solved rapidly. local. Evidence shows that the regulation of customary law does not need enforcement by external resources. meaning that they are not legally binding. the use of customary water management law is cost-effective. can be an effective means of enforcing environmental justice. The power of customary law normally derives from the community’s beliefs and values. due to the proximity between water users. These water arrangements can be either verbal or written. This tribunal is seen as a model of efficiency. rural chiefs play an important role as quasi judges. Human consumption has a priority over other uses. They are non-formal norms and behaviours that are accepted by the community and that have endured over time. and in the settling of disputes.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. inefficient implementation and corruption. and where respected among agreeing parties without the intervention of administrative authorities to enforce them. The main features of these governance arrangements. and the importance of managing their water. There is no right of appeal. and their rulings are complied with in the community. Monitoring processes are also more cost-efficient. including faulty design for resource management programmes. Finally. Customary water law.

Such claims should be made to the water administration or a regular judicial court. 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. The deputy Mayor is responsible for overseeing the maintenance and distribution of water for human consumption. but they are established to provide justice.10 Water Court in the District Court of Montrose. The competence of such courts may include: Conflicts between private water rights claimants and/or (public or private) water administration agencies. USA43 The Colorado Constitution provides that all water belongs to the People of the State. through an assembly.4. a right of appeal should be allowed. 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. one of which could be appointed by the water administration (see Case 5. Ideally. The water administration should be able to adjudicate cases relating to individual water rights. respectively.10). “CUSTOMARY WATER LAWS ARE THE MOST INFLUENTIAL IN LAND AND WATER ALLOCATION AND SETTLING DISPUTES” 5. generally first to the administration chief on a technical or public interest basis. Colorado. was established to determine. but cases against citizens or groups alleging legal violations should have recourse that is more directed to regular courts of the country or state. will legitimize actions to restore any damage. Case 5. the community in plenary. The Water Court of Montrose. in cases of multiple claimants for identical water. or the deputy Mayor. All community members are responsible for their actions and can be reprimanded by the Mayor. economic and technical issues.8). then to the water management minister.3 Using the courts Court cases can be expensive and time-consuming. A RIGHT OF APPEAL SHOULD BE ALLOWED” With striking similarity to the centuries-old water tribunals of Valencia (Case 5. Colorado. who has 111 . but that anyone may lay claim to a water use according to the common law doctrine of ‘First in time. “IN THE CASE OF CLAIMS MADE AGAINST THE WATER ADMINISTRATION. In the case of claims made against the water administration. then to either a water court or a regular court (for cases involving alleged legal violations).to water supply sources. first in right’. In cases of serious breaches of rules.

5 Friend of the Court The term Amicus curiae. direct political lobbying by NGOs has been demonstrated as an indirect or alternative means of ensuring proper enforcement. division engineer and the water referee. in 2000 the European Community instituted additional protections for water users by means of the European Water Framework Directive (WFD). the judge signs the ruling and makes it the court decree. the Clean Water Act allows citizens to bring lawsuits against polluters for on-going violations of effluent limitations. the latter will visit the site to verify the application information. they become liable to suit from the European Commission. or to have ‘standing’. For example. The information may be a legal opinion in the form of a brief. 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. and a timetable for legislation and entry into force of laws required to meet the minimum threshold levels. The court clerk also sends a copy of the application to the state engineer. unless an interested party protests the decision within 20 days of the ruling.4 Standing Court systems usually do not allow people to bring a case. 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. The referee makes a recommendation to the water judge of whether the applicant has met the law and. or ‘friend of the court’. testimony or a learned treatise on a matter that bears on the case. In Mexico. Regional integration has also influenced the way in which the courts are being used in a national context.4. Upon filing of an application with the court. but who believes that the court’s decision may affect its interest and therefore volunteers information on a point of law or fact in the case to assist the court in deciding a matter before it. as it mandates what minimum levels of water protection countries must adjust their laws to follow. The WFD provides a means of harmonization of water law in EU member states. then the judge will hear the case and decide independently on the issues raised. In the Hubei Province. In addition to the domestic courts of European countries. many legal systems allow indirect enforcement by citizens through filing of formal administrative complaints or lawsuits. 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. However. If an interested party protests. 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. which can bring the member state before the European Court of Justice.first right of water use and what priority other users might claim. seeking penalties and injunctive measures requiring the member to act in accordance with the WFD. Interested parties then have two months from the application filing to enter the case by means of filing a statement of opposition. If EU member states do not fulfil the requirements under the WFD. the water clerk publishes a summarized version of the application in a newspaper located within the county of the water claim. 112 . unless they can demonstrate that they have been personally harmed by the actions of another. 5. in the United States. refers to someone – often an advocacy group – who is not a party in the litigation.4. The decision whether to admit the information lies with the discretion of the court or tribunal.44 5. In China. common definitions of water quality and quantity status.

Pleadings or the filing of additional and separate papers are not needed.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.Case 5. The State. governments accept that the investor will be allowed to operate under international law (and not necessarily national law). particularly where investments might affect human rights or sustainable development objectives. In South Africa. the Tanzanian government announced termination of the contract because Biwater had failed to provide clean drinking water to millions of people in Dar es Salaam. because by accepting a foreign investment. rapid and highly efficient steps need to be taken 113 .e. The dispute relates to the Tanzanian government and the British investor Biwater. Biwater is demanding compensation under the UK-Tanzania Bilateral Investment Treaty. or at the request of the court. an amicus curiae brief may be filed only if accompanied by written consent of all parties. the National Water Act authorizes a court. In May 2005. It is argued in the brief that governments should be encouraged to refuse investor-state provisions or investment provisions more generally. The brief calls into question the responsibilities of foreign investors undertaking international investment agreements. to enquire into harm or loss allegedly suffered by a third party. 5. through the responsible Minister. particularly in circumstances where third parties may have suffered harm or loss because of a violation. with rights of access to natural resources.7 Injunctive relief ‘Supportive’ enforcement mechanisms should be included in a new water law. Appropriate compensation mechanisms then become relevant.6 Civil penalties Criminal sanctions should not be the only means of law enforcement. 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). in the same proceedings where a person has been convicted of a criminal violation.4. 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. In both instances. or by leave of court granted on motion. A motion of amicus curiae to participate in the oral argument is usually granted only for extraordinary reasons. in addition to criminal and civil sanctions. “CRIMINAL SANCTIONS SHOULD NOT BE THE ONLY MEANS OF LAW ENFORCEMENT” 5. the enquiry must take place in the presence of the convicted person. concerning an agreement for the provision of water services in Dar es Salaam from 2003–2005. which allow investors to sue host governments in international tribunals and in this way avoid submission to national law. This dispute shows how problematic foreign investment agreements are. monetary compensation – for the harm or loss suffered. In principle.4. particularly if they include investorstate provisions. for example. There should also be provision for enforcement through civil actions. In some circumstances. After making a determination. The Act merely requires that a third party make written application for such an enquiry. may also make a similar written application.. The court has broad discretion to grant or to deny the NGOs permission to act as amicus curiae. There is therefore a risk that the investment will not meet local needs and compensation may be demanded under international law. the Court is empowered to award civil damages – i.

CEDHA and community representatives presented the test results to the court and requested an injunction. equitable and efficient. in order to minimize the environmental impact caused by it. The court ordered that ‘the municipality of Cordoba adopt all of the measures necessary relative to the function of the EDAR Bajo Grande. CEDHA) invited a scientist from the National University of Cordoba’s laboratory to test the water quality around the facility. until public works be carried out to ensure the full access to the public water service. 5. in appropriate circumstances. In addition. The Centre for Human and Environmental Rights (Centro de Derechos Humanos y Ambiente. the plant began operating at approximately 70 percent of its original capacity. the EDAR Bajo Grande municipally operated water treatment facility was opened on the banks of Argentina’s Suquía River. 114 . and that the Provincial State assure the injunction filers a provision of 200 daily litres of safe drinking water.000–800.by a State agency.000 coliform bacteria per 100 millilitres of water. resulting in daily spills of untreated sewage into the Suquía River. tests taken from family wells in the Chacras de la Merced community showed concentrations as high as 2. increasing the volume of sewage going into the plant. To immediately secure safe drinking water for the community. For example. Widespread access to clean water and sanitation inevitably improves people’s health and productivity and ultimately the economic success of a country.’ Thus through an injunction the court was able to provide some relief to the community while that legal matter was being addressed. but was receiving 600.12 Court injunction provides relief to community with contaminated water in Argentina In 1987. The test results demonstrated that the concentration of fecal coliform in the river was 40 percent higher downstream from the facility.000 litres of sewage that it could not treat. “SUPPORTIVE ENFORCEMENT MECHANISMS SHOULD BE INCLUDED IN A NEW WATER LAW” Case 5. far exceeding World Health Organization recommendations that there should be no fecal coliform in water destined for human consumption. a water law may include the powers 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. additional sewage connections were authorized. until a permanent solution can be attained with respect to its functioning. Water resources that are developed in a way that is environmentally sustainable will outlast those that are depleted by overdevelopment or ruined by pollution. Because of the continued growth of the nearby city of Córdoba.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. 2km upstream from the Chacras de la Merced community. 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 distributing the rights and benefits of water in an equitable fashion. Furthermore. 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. Later. The availability of interdictory (injunctive) measures in a water law may assist in achieving this goal. compared with upstream. an order may be sought compelling a particular action or activity to prevent such threat.

Ideally a country goes through a process that moves from a vision of how water resources should be managed to serve national goals. civil society and the private sector interact from the creation of the vision to the enforcement of regulations.1 Public protest over water issues (Nicaragua). Water governance capacity requires development of a coherent set of policies and laws. Instead. Governments must always retain their stewardship role in guaranteeing that water is managed for the benefit of citizens and the national interest. 115 . This then provides continuity on down to negotiations. “A COUNTRY NEEDS TO BUILD A STRONG WATER GOVERNANCE CAPACITY AS A MEANS TO ACHIEVING EFFECTIVE WATER GOVERNANCE” Governmental and non-governmental organizations. Private companies may be contracted to provide Photo 5. 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 WGC as a means to achieving effective water governance. Without the backbone of national policy and law. negotiations and incentives. and strong institutions to implement them through regulations. contracts. other elements of reform may not provide a coherent whole or be able to endure for long.Reform of water laws is often attempted piecemeal with sometimes discouraging results. to laws that codify the policies and craft them in obligatory terms. Thence. to a policy or set of policies that can implement that vision. 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.

For regulations. 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. These characteristics help reinforce the rule of law and fend off corruption. By establishing policies and laws that demand transparency in all its dealings. many countries have committees of local farmers that maintain irrigation works and allocate water amongst themselves. but they must be monitored by government agencies for cost. and that the government will uphold its end of the contract or deliver on the promised incentives. Civil society organizations can also give meaningful input to every step of the WGC process from vision to enforcement. but it must also have certain process-oriented characteristics such as transparency. Although governmental systems vary in their degree of centralization and democratic participation. clean-up or construction services. Likewise non-governmental civil organizations can be partners in delivering services. certainty and accountability to create an enabling environment for reform of water governance. certainty and accountability. Citizen groups are even known to use the courts to force government agencies to fulfil commitments made in policies or laws. negotiations and incentives – the management tools of government – to succeed. For example. A corrupt government breaks this trust by using a shadow agenda of private gain rather than its stated agenda of public stewardship. there must be a sense of trust among the actors that the rules will apply equally to everyone. and the ever-present tribunal of public opinion best expressed in free elections. 116 . All actors can help hold each other accountable through the courts. a government allows citizens. contracts. other mechanisms of dispute resolution. that infractions will be punished. all can find ways to promote transparency. By establishing a strong independent judiciary.delivery. and can often do so more efficiently than government agencies. a government increases the certainty that those who violate the rules will be brought to justice and that individuals. environmental and other parameters that affect the public. a loyal opposition and a free press to examine its actions and blow the whistle on corrupt practices. organizations or corporations can settle disputes in an impartial forum.

India Case 3.3 The Right to Water Box 3.3 Development of a coherent water management plan in Brazil Case 2.3 Applying for a water abstraction licence in Namibia Case 3.6 Environmental flows in Costa Rica and Chile Case 3.2 Detrimental consequences of poor water management Case 1.1 Examples of water institutions Box 4.2 Water for El Chaco: a model of decentralized water management Case 3.1 Water law and environmental justice Box 4.2 Water law reaches into building codes and agricultural land use in Andhra Pradesh.1 Benefits of good water management in Dar es Salaam Case 1.2 IWRM in international policy Box 1.Cases and boxes Box 1.1 The Dublin Statement on Water and Sustainable Development Box 1.2 Advantages and disadvantages of a centralized institutional framework Box 5.1 Steps to foster transparency 20 21 22 49 74 76 99 Case 1.8 Protected water landscapes Case 3.1 Water reform in South Africa Case 2. New South Wales.5 Ecological elements of water law.4 The Chilean water market Case 3.9 China’s water code assigns responsibilities to the ministry 17 17 25 36 42 52 53 56 57 61 61 63 63 66 117 . Australia Case 3.1 The Chagga furrow committees Case 3.7 National water reserves in the South African Water Law Case 3.

basin and local institutions within a regional context Case 4.2 Applying water governance in a federal context.8 ‘Tribunal de Aguas de Valencia’.1 U.10 Water Court in the District Court of Montrose.11 The Biwater Tanzania case Case 5.Case 4.6 Water governance by covenant in the community of Pijal. Environmental Protection Agency Water Pollution Regulations Pursuant to the Clean Water Act Case 5. Ecuador Case 5. the case of Argentina Case 5.5 New York pays upstream users to keep its water clean Case 4.6 “Comunidades de Regantes” Case 4.2 National.3 ‘Cánon ambiental de vertidos’ Case 5.7 Citizen action wins case to create basin authority Case 5.3 Problem solving through international basin institutions in West Africa Case 4.9 Enforcement of customary water law Case 5. Spain Case 5.4 Wastewater discharge fees in Colombia Case 5.4 Implementing national policies through local institutions in Tanzania Case 4.12 Court injunction provides relief to community with contaminated water in Argentina 72 77 78 82 85 87 87 101 101 102 104 104 106 108 109 110 111 113 114 118 .S.5 Environmental penalty regulations help to protect Ontario’s water sources Case 5.1 Water institutional reforms in Morocco Case 4. Colorado Case 5.7 India’s 1974 Water Pollution Act: a failure of enforcement Case 5.

1 What can be privatized? Figure 5.1 Classification of water institutions Table 4.1 Components of a national legal framework Table 2.3 Typology for water policy arrangements Table 4.1 Effective water governance system Figure 4.1 Economic incentives for watershed service maintenance 23 40 41 43 73 75 92 103 Figure 1.2 Water policy arrangement approaches Table 4.3 Features of alternative options for privatization of water services Table 5.Tables and figures Table 1.1 From water management to effective water governance 26 89 98 119 .1 Ten principles of new public management Table 2.2 Overview of types of water policy arrangements Table 2.

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 connected 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 development and management scheme.

Water governance
The process of managing and developing water resources by engaging and interacting social, political, economic and legal institutions.

Water governance capacity
Level of competence of a society to implement effective water arrangements, by means of transparent, coherent and cost-efficient institutional settings that enhance water governance.

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Chapter 2
Accountability
Principle by which managers and decision makers in the government, the private sector and organized 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 precedents, 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 international levels.

Efficiency
Principle by which individuals and institutions must use the best processes available to produce better 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 influenced 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.

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Position
Point of view adopted in a particular topic.

Sustainability
Development approach that focuses on economic growth parallel to environmental protection, preserving 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 legislation 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.

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provided there is no damage to the property (usufructuary = adjective). including the rights to enjoy the profits and advantages of the object. in particular at the national level. which in turn is critical to achieving sustainable development. Legal personality The legal conception by which the legal system regards entities. but mostly on the basis of a legal instrument issued by the state agency responsible for water resources management. is necessary for ‘good governance’. Decentralization The act by which the central government transfers powers. The local government is responsible for all capital outlays. rights and duties to individuals or groups of individuals that are located within or outside of the government. A formula fixes rates that often include a surcharge to be remitted to the government for repayment of debts. 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. which can be physical persons or artificial persons (business).Usufruct The right of enjoyment or use of property that belongs to another. Chapter 4 Affermage contract A lease contract whereby the government agrees to finance a facility but the private company operates the system and is responsible for providing work capital. This is linked directly to ‘good governance’ as building the capacity of institutions and people. Water right A legal right to: (for so-called ‘off-stream’ uses). rights and duties to lower political and administrative hierarchical units. 123 . Capacity building Cooperative training network for sustainable development. Water right trading The transfer or exchange of permits or licences for water extraction granted by government. Devolution The act by which the government transfers core powers. water rights may be created by the direct operation of the law. As to their legal form. Monitoring Recording activities carried out to meet set environmental objectives.

It is a bottom-up approach. where two or more parties come to a settlement or agreement on water issues. and that have endured over time in the society. State institutions will only intervene in the absence of capacity of lower institutions. The outcome might be formal or informal. Negotiation capacity The qualification that determines one’s ability to engage in valid negotiations in a parity situation towards the other contracting parties. 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. 124 . Chapter 5 Compliance To act according to the prescriptions of law and regulations.Subsidiarity Legal principle that aims to bring the decision-making process to citizens. The goal of regulations might be to produce outcomes that without the introductions of the restrictive measures would not have otherwise occurred. Transparency The capacity to avoid corruption in the governance system by means of clear and open decisionmaking processes as well as accountable officers. Water arrangement Outcome of the process of negotiation. Regulation Legal restrictions imposed by the government to adjust the conducts of the citizens. Enforcement To compel observance of or obedience to laws and regulations by imposing certain sanctions. Customary water management laws Group of non-formal norms and behaviours that are accepted by the community. Corruption The misuse of a position of trust (where one receives authority in order to act on behalf of an institution) to gain profit. 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.

1 © IUCN/Taco Anema Photo 3.1 © Wolfgang Franke Photo 4.1 © IUCN/ Taco Anema Photo 2.1 © IUCN / Alejandro Iza 18 32 62 82 115 125 .1 © IUCN / Danièle Perrot-Maître Photo 5.Photo credits Photo 1.

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www. government agencies. within an enabling environment that allows for their implementation. www.org . IUCN seeks to influence. policy and institutions. 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. RULE guides managers and decision makers on a journey which provides an overview of what makes good law. About IUCN IUCN (International Union for Conservation of Nature) brings together States. Water governance reform processes must work towards building capacity in a cohesive and articulated approach that links national policies.waterandnature. and the steps needed to build a coherent and fully operational water governance structure. This guide shows how national water reform processes can deliver good water governance.Rule – Reforming water governance Effective water governance capacity is the foundation of efficient management of water resources. and a diverse range of non-governmental organizations in a unique partnership. As a Union of members. by focussing on the principles and practice of reform. laws and institutions.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.

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