AGENG 413- Introduction to Water Management and Irrigation

Module 5

Lesson 1: Legal and Administrative Aspects of Water Use

Introduction

Water is essential to sustain all forms of life. Without it, there would be no life on Earth. To
sustain life, we need to sustain water resources too. The World Bank noted that economic and
social developments are dependent on sustainable water resources. Water is vital to maintain
health, grow food, generate energy, manage the environment, and create jobs (2018).

Rajendra Singh, the Water Man of India, fearlessly predicted in an interview that “World War
III will be fought over water!” (Policy Innovations, 2016). This goes to show that water has
become a political commodity nowadays unlike many decades ago when “global warming”
and “climate change” are not yet buzzwords in the scientific community.

Today, water resources are under intense pressure due to rapidly increasing population.
Groundwater is being depleted at a rate faster than it is being replenished. With current
practices, there will 40 percent shortfall between forecast demand and available water supply
by 2030. Currently, 70 percent of global water withdrawals are for agriculture, which will
further increase by 15 percent by 2050 if only to produce enough food for the estimated 9
billion world population by that time (World Bank, 2018). In the Philippines, the water
demand in 1996 was 29,944 million cubic meters (MCM) per year and is expected to
dramatically increase three-fold by up to 86,500 MCM/yr in 2025 (Rola, Pulhin & Hall, 2018).

Managing freshwater resources involves ensuring reliable quantities of water of acceptable

quality, while simultaneously maintaining or restoring the ecological functioning of water
bodies that supply these amenities (Bren School of Environmental Science & Management,
2010). To achieve these ends, the government must ensure sustainability of water use, build
climate resilience and promote sustainable water resources development and management.
To operationalize these, doctrines and water laws have to be promulgated coupled with
effective and efficient administration of irrigation infrastructures. This is our concern in this
module.

Time Frame: 3-6 hours

Intended Learning Outcomes:

At the end of this module, it is expected that the students will be able to:

1. Discuss legal and administrative aspects of water resources development and utilization

2. Identify the enforcing agencies of these laws and regulations

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Activity (Let’s do this!)

1. In not more than 100 words, describe the evolution of water rights in the
Philippines. (10 pts)

Analysis (Let’s Think About it!)

1. Synthesize the principles of water rights in the Water Code of the Philippines
(WCP). (15 pts)

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Abstraction

I. Water Right Doctrines

In water laws, water right refers to the right of the user to utilize water from
a natural watercourse such as groundwater, river, stream, pond, or lake. Water right
is an essential element supporting basic human needs like drinking or irrigation
including physical occupancy of waterways for purposes of travel, commerce and
even recreational pursuits (Wikipedia, 2018).

The statutory water rights in the Philippines was first introduced by the
Spaniards in 1866 through the Spanish Law of Waters. This law recognized the
duality of water ownership, that is, waters are owned publicly and privately. While
all natural resources were owned by the Crown, the principle of riparian ownership
of water was recognized (Kho & Agsaoay-Saño, 1979). In property law, riparian
water right (or simply riparian right) is a doctrine pertaining to properties adjacent
to a waterway that (a) governs the use of surface water and (b) gives all owners of
land contiguous to streams, lakes, and ponds equal rights to the water, whether the
right is exercised or not. The riparian right is usufructuary, meaning that the
landowner does not own the water itself but instead enjoys a right to use the water
and its surface (Abrams, 2018).

When the Philippines was ceded by Spain to the United States in 1898, the
riparian doctrine remained in effect, but in addition, the American regime
introduced the principle of priority of appropriation and beneficial use of water
through the Irrigation Act of 1912 (Kho & Agsaoay-Saño, 1979). Prior appropriation
doctrine is the rule that among the persons whose property borders on a waterway,
the earliest users of the water have the right to take all they can use before anyone
else has a right to it (US Legal, Inc., 2016).

The riparian (Spanish) and prior appropriation (American) doctrines

institutionalized the two water rights that have been recognized and in effect in the
Philippines today. These are discussed in the ensuing sections.

A. Water rights based on ownership of the land

All waters belong to the State (Water Code of the Philippines, PD No. 1067).
In spite of this statute, landowners have water rights based on riparian doctrine,
that is, their ownership of the land upon which the water rests or flows. This water
right is a real property thus the landowner holds an exclusive right to waters
overlying and underlying his property (see riparian zone in Figure 1). This does not
imply any right of ownership over the water, but simply the right to its beneficial
and reasonable use (Wikipedia, 2018). According to Hutchins & Steele, the true test
of this beneficial and reasonable use principle and extent of its use is, “whether it is
to the injury of the other proprietors or not” (1957).

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Riparian uses of water are divided into natural and artificial uses. Natural
uses are those necessary to maintain the lives of occupants of the riparian land.
Artificial uses are commercial or business uses such as irrigation, industrial, and
power generation. In time of water shortage, preference is accorded to natural uses
over artificial uses, and to upstream users over those downstream (Hutchins &
Steele, 1957). In the latter case under certain conditions, however, the prior
appropriation doctrine is also applied.

Source: Wildlife & Botanical Artists, Inc. (2015)

Figure 1. Riparian water right or water right based on land ownership

B. Water rights based on previous use or prior appropriation

According to Hutchins & Steele, where water is scarce, allocation of the

flowing water is premised upon prior appropriation. The appropriation doctrine
confers upon one who actually diverts and uses water the right to continue to do so;
provided that the water is used for beneficial and reasonable uses, regardless of
whether or not that person owns the land contiguous to the watercourse (1957).

As between appropriators, the rule of thumb in priority is 'first in time, first

in right.' This rule is illustrated in Figure 2. Prior appropriation ensures that the
first water user to obtain water rights has first access to water in times of shortage.
If a downstream landowner (senior user) has the earlier priority date, the
upstream landowner (junior user) may have to let the water pass unused to meet
the needs of the senior, downstream water right holder (Hutchins & Steele, 1957).
Note that prior appropriation doctrine overrides the riparian doctrine under this
particular case wherein upstream users enjoy first priority use of water over those
downstream if and only when there is water shortage.

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The modern system of prior appropriation water rights is characterized by

the following principles (Wikipedia, 2018):

▪ Exclusive right is given to the original appropriator, and all following

privileges are conditional upon precedent rights.

▪ All privileges are conditional upon beneficial use, which is defined as

agricultural, industrial, or urban use.

▪ Water may be used on riparian lands (land bordering a water source), or

non-riparian lands (land away from the water source).

▪ Diversion is permitted, regardless of the shrinkage of the river or stream.

▪ The privilege may be lost through non-use.

Source: Bovee (2017)

Figure 2. An illustration of prior appropriation doctrine “first in time, first in right”

The appropriative right does not confer limitless utilization of water. Each
appropriator is entitled to the use of whatever quantity of water he needs but at no
time divert and use more water than he needs. Whatever surplus water there may
be in the supply may be claimed by junior appropriators subsequent to the senior
appropriator in time. This is true regardless of the relative locations of headgates.

Unlike in the riparian right, appropriative right may be lost by abandonment

when the intent of the holder to give up his right is accompanied by actual

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relinquishment. No time element is involved. When intent and relinquishment

occur, abandonment takes place instantly (Hutchins & Steele, 1957).

II. Water Laws

A. Civil Code of the Philippines

When the Philippines became an independent state, Republic Act (RA) No.
386 otherwise known as the Civil Code of the Philippines was enacted in June 18,
1949. Most of its provisions on water rights were both patterned after and/or
modifications of the Spanish Law of Waters and the American Irrigation Act of 1912.
RA 386 affirms the right of riparian owners to the flow of water passing through its
natural channels for private ownership, subject however, to the qualification that
upstream owners should not exercise their water rights to the prejudice of the
rights legally acquired by those of the downstream estates.

B. Water Code of the Philippines

RA 386 was the only law dealing with water rights until December 31, 1976
when the Water Code of the Philippines (PD No. 1067) was promulgated by Pres.
Ferdinand E. Marcos.
Since then, the provisions of RA 386, the Spanish Law of Waters, the Irrigation Act of
1912, RA
9275, and all other earlier laws regarding water rights have been expressly
repealed. The Water Code revised and consolidated all laws that govern the
ownership, appropriation, utilization, exploitation, development, conservation and
protection of water resources.

The nature of water rights can be drawn from the following principles (Art. 3,
PD No. 1067):

a. All waters belong to the State.

b. All waters that belong to the State cannot be the subject to acquisitive
prescription.

c. The State may allow the use or development of waters by administrative

concession.

d. The utilization, exploitation, development, conservation and protection of

water resources shall be subject to the control and regulation of the
government through the National Water Resources Council.
e. Preference in the use and development of waters shall consider current
usages and be responsive to the changing needs of the country.

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Waters, as used in the Water Code, refers to water under the grounds, water
above the ground, water in the atmosphere and the waters of the sea within the
territorial jurisdiction of the Philippines (Art. 4, PD 1067).

Appropriation of water, as used in the Water Code, is the acquisition of rights

over the use of waters or the taking or diverting of waters from a natural source in
the manner and for any purpose allowed by law (Art. 9, PD 1067).

Rule I, Section 1 of the amended Implementing Rules and Regulations (IRR)

of PD No. 1067 promulgates that water may be appropriated for the following
descending purposes and uses:

1st Priority – the utilization of water directly drawn from a source by a

household for drinking, washing, bathing, cooking, watering of gardens or animals
and other domestic uses;

2nd Priority – the utilization of water for supplying the water requirements of a
community, whether by piped or bulk distribution for domestic and other uses,
direct consumption, the drawer or abstractor of which being the national
government, its subsidiary agencies, local government units, private persons,
cooperatives or corporations;

3rd Priority – the utilization of water for producing agricultural crops

(irrigation);

4th Priority – the utilization of water for producing electrical or mechanical

power (power generation);

5th Priority – the utilization of water for the propagation and culture of fish as a
commercial enterprise or any other aqua-culture ventures (fisheries);

6th Priority – the utilization of water for large herds or flocks of animals raised as
a commercial enterprise (livestock raising);

7th Priority – the utilization of water in factories, industrial plants and mines
including the use of water as an ingredient of a finished product (industrial);

8th Priority – the utilization of water for swimming pools, bath houses, boating,
water skiing, golf courses and other similar facilities in resorts and other places
of recreation (recreational); and

9th Priority – other purposes.

C. Regulatory Agency: The National Water Resources Board

Prior to the creation of NWRB, formerly known as the National Water

Resources Council (NWRC), in March 28, 1974, there were more than 30

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government agencies and offices involved and mandated to undertake various

water resources development programs and projects in the country. Project
identification and planning were performed to meet the targets of each agency with
little or no regard to the needs of others.

Against this backdrop, PD 424 was issued by Pres. Marcos on March 28, 1974
creating the National Water Resources Council (NWRC), reconstituting its
membership, vesting the same with powers to coordinate and integrate water
resources development, and providing funds therefor. The history of the evolution
of NWRC to NWRB is reflected in Figure 3 (Dayrit, 2001).

Source: Integrated Water Resources Management (2016)

Figure 3. Legal bases in the creation of the National Water Resources Board

The Council has the following functions, duties, and powers (Sec. 2, PD 424):

a. Coordinate and integrate, on a sound and logical basis, water resources

development activities of the country within the context of national plans
and policies for social and economic development;

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b. Determine, adjudicate, and grant water rights amending, for this purpose, Act
No. 2152, and other laws relating to the appropriation and utilization of
surface ground water;

c. Formulate and promulgate:

(1) General criteria, methods, and standards for basic data collection,
project investigation, formulation, planning and design, and feasibility
evaluation; and

(2) Rules and regulation for the exploitation and optimum utilization of
water resources, including the imposition on water appropriators of such
fees or charges as may be deemed necessary by the Council for water
resources development;

d. Review and approve water resources development plans and programs of

any agency within the context of the overall national plans and program;

e. Undertake river basin survey, inventory and appraisal of water and related
resources and develop comprehensive basin-wide of storage and control to
maximize the conservation and multi-purpose use of water in the basin;

f. Undertake hydrologic surveys and establish, operate and maintain

observation station networks and a centralized water resources data center
necessary for the scientific survey and appraisal of surface and ground water
potentials of the country; and

g. Conduct and/or promote special studies and researches with other

government or private agencies on all related aspects of water resources
development such as weather modification, environmental quality,
desalination, and the like.

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D. Other laws pertaining to water quality control

Table 1. Brief description of other water laws

Water Laws Brief Description
Republic Act (RA) No. ▪ Provides for a program and regulations for the abatement and
9275 – The Clean management of water pollution from point and non-point sources
Water Act of 2004
▪ Introduces market-based instruments such as the wastewater
charge system that imposes fees based on the volume of effluents
discharge

▪ Strengthens enforcement by providing stiffer penalties for violations

of standards

▪ The permitting system has been modified to accommodate the fee

system based on amount of pollution discharged

Commonwealth Act ▪ Prohibits dumping of refuse, waste matter or other substances into
(CA) No. 383 – rivers
Antidumping Law of
1938

Presidential Decree ▪ Provides guidelines for the control of water pollution from industrial
(PD) No. 984 – sources and sets penalties for violations, also requires all polluters to
Pollution Control Law secure permits
of 1976

RA No. 9003 – ▪ Calls for the institutionalization of a national program that will
Ecological Solid Waste manage the transfer, transport, processing, and disposal of solid
Management Act of waste in the country
2000
▪ Sets the criteria for siting landfills to ensure that their operation do
not affect aquifers, groundwater reservoirs or watersheds

RA No. 6969 – Toxic ▪ Mandates the control and management of the import,
Substances & manufacturing, processing, distribution, use, transport, storage,
Hazardous & Nuclear treatment, and disposal of toxic substances and hazardous and
Wastes Control Act nuclear wastes

RA No. 4850 – Laguna ▪ Regulates and controls the pollution of the Laguna de Bay Region,
Lake Development including sewage works and industrial waste disposal systems
Authority Act of 1966,
as amended by PD
813

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RA No. 6234 – Creation ▪ Constructs, operates, and maintains water systems, sewerage and
of Metro sanitation facilities in the Metro-Manila area
Waterworks and
Sewerage System
(1971)

PD No. 281 – Creation ▪ Regulates and controls pollution of the Pasig River
of the Pasig River
Development Council
(1973)

DENR Administrative ▪ Defines classification of water bodies according to their best usage
Order (AO) No. 90-34 –
Revised Water Usage ▪ Identifies the different parameters and criteria for water quality
and Classification / required for each type of classification
Water Quality Criteria

DENR AO No. 90-35 – ▪ Prescribes the standards for discharge of effluents to the different
Revised Effluent classifications of water bodies
Regulations of 1990

DENR AO No. 94-26A – ▪ Provides the different parameters and value for drinking water
Philippine National quality
Standards for Drinking
Water ▪ Defines guidelines for assessing water quality for drinking water

PD No. 856 – ▪ Covers solid and liquid waste disposal

Sanitation Code of the
Philippines ▪ Prescribes standards for sewage collection and refuse and excreta
disposal

▪ Assigns to cities and municipalities the responsibilities to provide for

efficient and proper disposal, and to handle nuisance and offensive
trades and occupations

DENR AO No. 97-39 – ▪ Regulates the importation, manufacture, distribution and use of
Chemical Control mercury and mercury compounds and the storage, transport, and
Order for Mercury and disposal of their wastes
Mercury Compounds

DENR AO No. 2000-18 ▪ Identifies requirements and procedures pertaining to the importation,
– Chemical Control manufacture, distribution, and use of cyanide and cyanide
Order for Cyanide compounds and the storage, transport and disposal of their wastes
and Cyanide
Compounds

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DENR AO No. 98-58 – ▪ Identifies existing and new chemicals that the DENR has determined
Priority Chemical List to potentially pose unreasonable risk to public health, workplace,
and the environment

▪ Requires all manufacturers, distributors, users, and importers of

chemicals included in the PCL to submit bi-annual reports

Source: Greenpeace (2007)

III. The National Irrigation Administration

Prior to 1963, irrigation in the Philippines had been without sustained and
concerted efforts to develop and operate irrigation infrastructures until the National
Irrigation Administration (NIA) started operations in 1964. NIA is a government-
owned and controlled corporation (GOCC) primarily responsible for irrigation
development and management in the Philippines. It was created by virtue of
Republic Act (RA) 3601 on June 22, 1963. Its charter was later amended by
Presidential Decree (PD) 552 on September 11, 1974 and PD 1702 on July 17, 1980,
both increasing its capitalization and broadening its authority.

NIA's forerunner was the Irrigation Division of the defunct Bureau of Public
Works. NIA was placed under the Office of the President (OP) upon its creation. In
1972, it was attached to the Department of Public Works, Transportation, and
Communication under PD No.1. Said PD also integrated all irrigation activities under
NIA. By operation of the Administrative Code of 1987, NIA was attached to both the
Department of Public Works and Highways (DPWH), and the
Department of Agriculture (DA) but NIA opted to remain attached to DPWH. On
September 14, 1992, NIA was transferred to OP pursuant to Executive Order (EO)
No. 22. A month after in October 14, 1992, it was attached to DA under
Administrative Order No. 17.

In May 5, 2014, NIA including the National Food Authority (NFA), Philippine
Coconut Authority (PCA), and Fertilizer and Pesticide Authority (FPA) were
transferred under the OP through EO No. 165. Memorandum Order No, 70 issued on
the same date provided for the functions of the Presidential Assistant for Food
Security and Agricultural Modernization. A Memorandum from the Executive
Secretary-OP on November 3, 2016 designated the Cabinet Secretary as Acting
Chairperson of the NIA Board of Directors, the governing body of the agency
(National Irrigation Administration, 1990).

NIA has the authority and powers to (RA No. 3601):

a. Investigate, study, improve, construct and administer all irrigation systems in

the Philippines;

b. Investigate all available and possible water resources in the country for the
purpose of utilizing the same for irrigation;

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c. Plan, design and construct the necessary projects to make the ten to twenty-
year period following the approval of the Act as the “Irrigation Age” of the
Republic of the Philippines;

d. Collect from the users of irrigation systems constructed by it such fees as

may be necessary to finance their continuous operation and reimburse
within a certain period of not less than twenty-five years the cost of
construction thereof; and

e. Do such other things and to transact all such businesses as are directly or
indirectly necessary, incidental or conducive to the attainment of its vision,
mission and objectives.

Application (Let’s Do It!).

1. Describe briefly in chronological order the evolution of the National Water
Resources Board (NWRB). (5 pts)
2. Synthesize the application of water permit of a rice farmer using water for
irrigation 10 points.

Closure
Congratulations! You are done with Module 4 lesson 2. Get ready for the next module.

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REFERENCES:

Abrams, R.H. (2018). Riparian right. In Encyclopaedia Britannica, Inc. Retrieved

from https://www.britannica.com/topic/riparian-right

Bovee, B. (2017). Valuing water rights. The Colorado Real Estate Journal.
Retrieved from https://coyotegulch.blog/2017/02/28/valuing-water-
rights/

Bren School of Environmental Science & Management. (2010). Water resources

management. University of California at Sta. Barbara. Retrieved from
http://bren.ucsb.edu/academics/mesm_specialization/water_res_mgt.htm

Clipart Library. (n.d). Agricultural and biosystems engineering [Logo].

Retrieved from http://clipa.cash/agricultural-biosystems-engineering-
logo.html

Dayrit, H. (2001). The Philippines: Formulation of a national water vision. In

The FAO-ESCAP pilot project on national water visions - From vision to
action - A synthesis of experiences in Southeast Asia. Ti, L.H. & Facon, T.
(eds.). Retrieved from
http://www.fao.org/docrep/004/AB776E/ab776e03.htm

Greenpeace. (2007). The state of water resources in the Philippines. Quezon

City, Philippines: Greenpeace Southeast Asia. Retrieved from
https://www.greenpeace.org/seasia/ph/Global/seasia/.../the-state-of-
water-in-thephil.pdf

Hutchins, W.A. & Steele, H.A. (1957). Basic water rights doctrines and their
implications for river basin development. Retrieved from
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2717&context
=lcp

Integrated Water Resources Management. (2016). Overview of IWRM in the

Philippines. Retrieved from http://aseaniwrm.water.gov.my/iwrm-in-
philippines/

Kho, J. & Agsaoay-Saño, E. (1979). Country study on customary water laws and
practices in the Philippines. Retrieved from
www.fao.org/fileadmin/templates/legal/docs/CaseStudy_Philippines.pdf

National Irrigation Administration. (1990). A comprehensive history of

irrigation in the Philippines. Quezon City, Philippines: Agency. Retrieved
from
www.nia.gov.ph/sites/default/files/pdf_reader/nia-book.pdf

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____________________. (2017). Overview. Quezon City: Agency. Retrieved from

http://www.nia.gov.ph/?q=content/overview

National Water Resources Board. (n.d). Amended implementing rules and

regulations (IRR) of PD 1067 otherwise known as the Water Code
of the Philippines. Retrieved from
www.nwrb.gov.ph/images/laws/pd1067_amended.pdf
Policy Innovations. (2016). Rajendra Singh: “World War III will be fought over
water.” [Interview of Gupta, A. (Writer)]. Retrieved from
https://qz.com/691254/world-war-iii-will-be-foughtover-water/

Presidential Decree No. 424. (1974, March 28). PD creating the National Water
Resources Council (NWRC), reconstituting its membership, vesting
the same with powers to coordinate and integrate water resources
development, and providing funds therefor. Retrieved from
http://www.lawphil.net/statutes/presdecs/pd1974/pd_424_1974.html

____________________ 1067. (1976, December 31). The Water Code of the

Philippines. Retrieved from
http://www.lawphil.net/statutes/presdecs/pd1976/pd_1067_1976.html

Republic Act No. 386. (1949, June 18). The Civil Code of the Philippines: An
Act to ordain and institute The Civil Code of the Philippines. Book 2,
Title VII, Chapter 2, Section 2, Articles 637 – 648. Retrieved from
https://philippinecivillaw.wordpress.com/tag/legaleasements/

____________________ 3601. (1963, June 22). An Act creating the National Irrigation
Administration. Retrieved from
http://www.chanrobles.com/legal3nia.html#.WimgkHlx3IW

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