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AUTHORS
This report was co-authored by a team from the SIWI Water and Sanitation Department composed of
Ivan Draganic (Lead consultant), Pilar Avello and Alejandro Jiménez. The authors contributed equally
to this work.
CONTRIBUTORS
Substantial contributions were provided by Jorge Alvarez Sala (WASH Specialist ,UNICEF NY), Bisi
Agberemi (WASH Specialist ,UNICEF NY), Silvia Gaya (Senior Water and Environment Advisor, UNICEF
NY), Robin Ward (Program Manager, SIWI), Batsirai Majuru, (Technical Officer for Water, Sanitation,
Hygiene and Health, WHO), Jennifer De France (Team lead for drinking-water quality, WHO), Kate
Medlicott (Team lead for sanitation, WHO), Corinne Cathala (IADB), Virginia Mariezcurrena (Program
Manager, SIWI), and Lotten Hubendick (Program officer, SIWI).
HOW TO CITE
SIWI/UNICEF/WHO/IADB (2021) “The WASHREG Approach: An Overview” Stockholm and New York.
Available from www.siwi.org
FOREWORD________________________________________________________________ II
GLOSSARY________________________________________________________________ III
1. THE NEED TO REGULATE WATER AND SANITATION SERVICE PROVISION______ 1
2. WASH REGULATORY GOVERNANCE_______________________________________ 3
2.1 Regulation theory_____________________________________________________________ 3
4. REGULATORY AREAS____________________________________________________ 10
4.1 Tariff setting or price regulation_________________________________________________ 11
The Sustainable Development Goal (SDG) a phased approach to regulatory reform. The
6 Global Acceleration Framework calls for a conceptual framework for regulatory reform is
dramatic acceleration to meet off-track SDG 6 further explained, and an accompanying full
targets. The SDG targets for WASH go further methodology is provided in a separate document:
than just the provision of facilities. They target “The WASHREG Approach: Methodology”,
safely managed water and sanitation services, which provides a practical step by step guide to
which requires sustainable local service models help countries identify and plan for implementing
operating under a robust regulatory framework. the “best-fit” solution to regulatory reform.
Estimates indicate that, despite progress made This product is part of the set of guidance
in the preceding decades, in 2020, around one documents produced under the “Accountability
in four people lacked safely managed drinking for Sustainability”1 partnership, between
water in their homes and nearly half the world’s UNICEF, SIWI and the UNDP-SIWI Water
population lacked safely managed sanitation Governance Facility – which aims at increasing
(UNICEF & WHO, 2021). Lack of safe water, sustainability of WASH interventions through
and poor sanitation and wastewater practices, the improvement of governance in the WASH
have serious impacts on people’s health service delivery framework. The World Health
and the environment. The recognition of the Organization (WHO) and the Inter American
human rights to water and sanitation, and the Development Bank (IADB) have provided
international commitment towards sustainable substantial inputs to the development of the
water and sanitation services for all, expressed WASHREG Approach documents. We believe
through the SDGs, demands a stronger focus that by strengthening regulation, countries can
on both expanding the coverage of facilities and improve the performance and sustainability of
services, and on ensuring the quality of services water and sanitation service delivery, achieving
delivered. Regulation of water and sanitation the SDG targets on universal access to services,
services in the economic, social, public health and realizing the human rights to water and
and environmental dimensions, is an essential sanitation for all.
governance function, which ensures better
service outcomes, in terms of affordability,
consumer protection, quality of service, public
health, and environmental protection.
1 https://www.siwi.org/what-we-do/accountability-for-sustainability/#partnership
The Sustainable Development Goal (SDG) 6 course corrections for the compliance of the
Global Acceleration Framework aims to deliver services provided with the normative content
fast results at an increased scale as part of the of the human rights to water and sanitation,
Decade of Action to deliver the SDGs by 2030. which call for services to be available, affordable,
By committing to the Framework, the United accessible, acceptable, of quality and safe
Nations (UN) system, and its multi-stakeholder to all; and to be delivered in a transparent,
partners, driven by country demand, and accountable, participatory, non-discriminatory
coordinating through UN-Water, will unify the and sustainable way (Heller, 2017).
international community’s support to countries
to rapidly accelerate towards national targets for Second, the water and sanitation sector is highly
SDG 6. The framework identifies five accelerators dependent on large infrastructural works, which
(financing; data and information; capacity is a reason why water and sanitation service
development; innovation; and governance). provision becomes a natural monopoly. Without
Regulation contributes to all of them. Well public oversight, water and sanitation service
balanced regulation is an essential component operators could possibly neglect key factors such
of governance, as it helps to clarify the roles and as the quality of services, certain geographical
responsibilities of different stakeholders; it allows areas, population groups or simply charge
for more predictable financing of the sector, by unreasonable tariffs. As such, public oversight
highlighting the performance, and strengths is articulated through regulation of economic,
and weaknesses of the service providers; it public health and environmental elements of
contributes to data collection and availability services, which is primarily necessary to protect
of information about the sector, including for consumers´ interests and their rights. On the
the public; it can promote innovation through other hand, since the water and sanitation
new standards, and performance criteria; and service might be provided at a loss to ensure
it can support capacity development of service full coverage and uniform pricing, the operator
providers and consumers, through technical needs to be compensated. The governments
support, and peer to peer exchange among and relevant authorities can manage such
operators. compensation through various modalities. In
some cases, operators are reimbursed through
In most jurisdictions, regulation of water supply is cross-subsidization i.e., the areas profitably
significantly more established and well-defined than serviced compensate those served under an
for sanitation, and especially for on-site sanitation imposition. In many urban cases, utilities receive
facilities and faecal sludge management. Regulation subsidies from the national or municipal budget
of sanitation is in a period of rapid evolution and as well. It is in this context that regulation is set
effective approaches are beginning to emerge. to make service operators more accountable, to
As such, guidance within this concept note and establish an independent price-setting process
accompanying methodology is likely to evolve as and to bring regulatory expertise into the public
new experiences emerge. sector. There are, however, some exceptions,
where water and sanitation services are not
Regulation aims to address different elements considered to be a natural monopoly. In areas
of water and sanitation service delivery. First, where water is provided by trucks, kiosks,
water and sanitation are not only services, but standpipes or through any other kind of on-
human rights that need to be guaranteed. In this selling arrangement, users might benefit from
regard, regulation is key to monitor and make competition among several operators. This is
Regulation is one of the core water and sanitation if contracts are well established between the
governance functions and is described as the parties and impartial courts ensure efficiency
“legal mechanisms, enforcement processes through appropriate wrongdoing rules and
and other rules to ensure that stakeholders fulfil enforcement of contracts. In this sense,
their mandates, and that standards, obligations potential wrongdoers are disincentivized by the
and performance are maintained, as well as to consequences of breaching contracts if well-
ensure that the interests of each stakeholder are functioning courts enforce them, and in this
respected” (Jiménez et al., 2020). scenario, scholars of the contracting theory
argue that only limited regulation can be justified
The UN system views human rights norms and (Posner, 1974).
standards as its primary frame of reference
for everything it does. Following the Special The capture theory of Stigler (1971) critiques
Rapporteur’s (Heller, 2017) interpretation, the the public interest theory’s understanding that
ultimate goal of WASH regulation should be to the government is a benign being, because the
give practical meaning to the normative content regulator can be controlled by different group
and principles of the human rights to water interests, hence a fully independent role of a
and sanitation. However, there is no single regulator is almost impossible and instead it is
formula on how to best achieve that goal and more an arbiter between conflicting interests.
the mechanisms and processes designed and Scholars of the capture theory have been very
implemented are different from one country to prolific in developing mechanisms to control
another. The study of those differences and the regulatory activity, ensuring performance of
implications for regulatory outcomes constitutes the utilities, creating coordination mechanisms
what is known as regulatory governance. about regulatory activities, and establishing a
This chapter unpacks the concept of WASH clear, transparent, accountable, legitimate, and
regulatory governance by presenting the main credible regulatory process.
concepts about regulation theory, models,
autonomy, principles, and accountability. The theories of regulation are not mutually
exclusive and policy makers’ choices are the
2.1 Regulation theory result of a combination of influences from the
various theories that impact on decisions about
While a full discussion about regulation theory is the regulatory model, regulatory autonomy,
beyond the scope of this note, it is important to and the mechanisms to ensure regulatory
understand the main schools of thought that have accountability. In any case, in the last decades,
come with different ways to understand and think the trend in WASH regulatory reform has
about regulation in our society. Public interest witnessed the creation of quasi-autonomous
theory (Pigou, 1920) , also known as the welfare regulatory agencies and an increased
state, presents that markets often fail because application of rules to protect “public services”
of problems of monopolies or other factors, (Cabrera & Cabrera, 2016; Melo Baptista, 2014;
and assumes that governments are capable of Lodge, 2001; Mumssen et al., 2018; OECD,
correcting those failures through regulation. Public 2014, 2015; Rouse, 2013).
interest theory has been used to justify much of
the growth of public ownership and regulation over However, there is a need to acknowledge that
the twentieth century (Shleifer, 2005). current regulatory theory is better suited to
service provision through large infrastructure and
The contracting theory, associated with Coase professional service providers, mainly in urban
(1960), assumes that regulation can happen areas. Regulatory theory does not always apply,
The public sector owns Concerns the Also known as the Use of external Service providers
the assets and has the establishment of an French model. This is contractors to perform regulate their own
responsibility of the agency responsible for one of the predominant certain duties such as activities, set tariffs and
management. The conducting regulation in models, especially in tariff review, quality standards and
Netherlands and a more or less those countries in benchmarking or monitor their own
Germany have this autonomous manner which the municipalities dispute resolution performance
model and adapts the rules to have the responsibility
changing circumstances for service provision
REGULATION BY
REGULATION BY REGULATION BY REGULATION SELF-
SOURCING TO
GOVERNMENT AN AGENCY BY CONTRACT REGULATION
3RD PARTIES
The most important lesson to bear in mind for policymakers, service providers and users; and
regulatory designers is that there is no single they are the best placed to assess whether water
international best practice for regulatory models. and sanitation rights are being progressively
In fact, the models are not mutually exclusively met, or are being overlooked. In this regard, it
and tend to adopt different aspects of each one of is recognized that although no universal model
them. For example, when addressing sanitation, exists, those carrying out regulatory activity
there are different regulatory mechanism options should enjoy some level of immunity, or regulatory
that can be applied across the sanitation service autonomy, against pressures from illegitimate
chain (containment, conveyance, treatment, and interests, so that the main objectives of regulation
end use/disposal), as highlighted by WHO in the are aligned with the human rights to drinking
Guidelines on Sanitation and Health (World Health water and sanitation (Heller, 2017). Regulatory
Organization (WHO), 2018). Although, it is worth autonomy refers to the capacity of regulatory
acknowledging, that in the past two decades, actors to take and implement decisions without
countries have tended to develop a dedicated influence from other powerful groups or entities.
regulatory body in the water and sanitation sector It is important to acknowledge though that in
(OECD, 2015). The most effective regulatory some situations, regulatory autonomy is far
model depends on a multitude of factors including from present. A starting point in those cases to
the country’s legal and political system, as well as improve autonomy is to identify authorities with
its governance structure (Mumssen et al., 2018). some responsibility for oversight and establish
a dialogue to understand the existing degree of
2.3 Regulatory autonomy autonomy, and to identify feasible avenues for
making progress. When discussing regulatory
The human rights framework understands that autonomy, it is important to understand different
regulatory actors are at the interface between autonomy dimensions: institutional, financial,
Institutional autonomy: refers to the skills The principle and obligation of progressive
and capacity a regulatory actor needs to secure realization refers to the obligation of regulatory
to initiate or implement regulatory practice. actors to put in practice regulatory measures
Institutional autonomy also includes the ability to ensure that the State utilizes the maximum
of the regulatory actor to ensure capacity of their available resources to move beyond the
building activities for operators and consumer minimum levels of water and sanitation service
associations around regulation. provision. However, regulatory frameworks should
be appropriate for the existing service landscape
Financial autonomy: refers to the ability of the and policy goals need to be achievable. As each
regulatory actor to secure sufficient resources goal is achieved, and as additional resources
to initiate or implement regulatory practice. and capacity are gained, the regulations can be
Regulatory actors should ideally rely financially increased in complexity and/or scope over time.
on the licenses and fines it issues and imposes The principle and obligation to ensure equality
on operators as its own and unique revenue, and non-discrimination is ensuring the same
distinct and clearly separated from the state or treatment to all consumers without any distinction
governmental budget. based on race, political affiliation, origin, religion,
gender, age, or other condition. To ensure
Managerial autonomy: refers to the existence non-discrimination, regulatory actors must,
of an established regulatory mandate with a clear for example, when regulating prices, consider
matrix of roles and responsibilities among the those who cannot pay for services, or implement
principal actors within the sector. It also includes mechanisms for their protection. Regulatory
the ability of the regulatory actor to secure actors also have the obligation to identify and
appropriate human resources and respond to the monitor possible retrogressions in the realization
needs of the sector. of the rights, and the obligation to find and
remediate the root causes of these violations.
Political autonomy: refers to the ability of
the regulatory actor to be protected against In addition to these three main obligations,
political interferences. As the regulatory mandate there are additional human rights principles that
is granted by a state it is a state itself that should guide not only regulatory actors and
often tends to control the decision making WASH regulations, but the entirety of WASH
around regulatory policies, for its own interest. service provision: active, free and meaningful
Regulatory actor staff should ideally remain participation; access to information; and
detached from political engagement. sustainability.
POLICY
MAKER
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REGULATOR
COMMUNITIES SERVICE
PAYMENT (TARIFF)
/ USERS AND COMPLAINTS PROVIDERS
SERVICE PROVISION
(ACCORDING TO CONTRACT)
Figure 2: Accountability service delivery triangle (UNDP-SIWI Water Governance Facility & UNICEF, 2015)
The different elements of accountability are Assembly, 2018; Jiménez et al., 2018; UNICEF &
often explained through its three-dimensional UNDP/SIWI, 2016).
approach: responsibility, refers to the existence
of clear roles and responsibilities of the actors The fundamentals of regulatory accountability
for the variety of processes and the coordination combine these two levels of analysis, with the actors
mechanisms between them; answerability refers to whom the regulator should be accountable to
to the mechanisms whereby the actors provide on one side, and on the other side, the different
explanations of, and justification for, their actions, elements of the accountability dimensions (Table
inaction and decisions; and enforceability, refers 1). For these accountability lines to be operational,
to the existence of mechanisms to oversee and regulatory data and its granularity is of particular
ensure actors’ compliance with established importance, to enable accountability as well as to
standards, impose sanctions and ensure that evaluate if the regulatory mechanisms are benefiting
corrective and remedial action is taken (General sub-groups as intended.
All water and sanitation service operators should As much as decentralization can promote
fall under the scope of a regulatory authority, better and more efficient services through
regardless of the management model adopted enhanced accountability, it is empirically evident
in each context. All service providers should that decentralized regulation is not easy to
be subject to regulation. This would ensure the implement. How is it possible to implement
same level of protection to any user, regardless decentralized water and sanitation regulation in
of the operator that provides the service to countries with limited resources and capacities?
them. However, this might not be feasible To what extent is it possible to rely on local
in the short term in many circumstances. In authorities for consumer protection or when
those cases, progressive improvement towards challenged to develop sustainable and affordable
reaching this goal will be needed, by using a tariff systems in impoverished areas? Most
risk-based approach – i.e., prioritising regulatory of the answers to these questions lie within
aspects and service providers that pose the strengthened capacities, legislative reforms, and
highest risk to population if not dealt with, and an appropriate balance between central and local
acting on them first. power, and between regulation by centralized
and decentralized bodies. This includes an
Regulatory intervention should be geographically appropriate decentralization legislative reform
bordered, ideally nationally, or regionally in to strengthen central to local level governance
large countries. This allows for a broad view relations; capacities in provision of water and
of the sector, whereby a regulatory actor can sanitation services, and improved accountability,
better harmonize the rules, procedures, and oversight, and participation of locals in a bottom-
interpretations in an extended territory, with the top approach. In some countries, such as in
possibility of benchmarking a more significant Colombia, Mozambique, Honduras, or Zambia,
number of operators. In general, the bigger the even though water services are decentralized, a
territory it regulates, the larger is the rationalization national regulatory body has been established.
of regulatory resources and provision of lower
service unit costs per user is ensured. At the same 3.2 Urban water and sanitation services
time, the geographical regulatory scope needs regulation
to be matched with the resources and capacity
needed to successfully undertake the regulation. Regulation has been historically focused on
urban centres, typically determined by many
3.1 Regulation of water and sanitation users serviced by a single service provider (a
services in a decentralized context “utility”), with a networked infrastructure providing
piped water and a sewerage network for
Theory suggests that a local government’s sanitation. However, modern cities face multiple
proximity to citizens gives the latter more challenges that are not always well addressed
influence over local officials, promotes productive by this typical regulation. Rapid increase in
competition among local governments, urban populations, and lack of proper planning,
and alleviates corruption through improved have led to almost a billion people worldwide
transparency and accountability. At the same living in informal settlements. These peri-urban
time, decentralisation can generate negative areas often fall into a responsibility gap between
effects, if local political dynamics undermine rural and urban authorities, leaving them in a
accountability, or local governments have grey zone of unclear legalities, regulations, and
inadequate capacity, or face weak incentives to administration. Multiple informal actors step in to
act as the theory predicts (Smoke, 2015). deliver services (e.g., water vendors), which are
typically not covered by regulation.
In the same way that there is no universal also considered the areas that constitute economic
regulatory regime implemented by all countries, regulation, and in many countries, there exists a
regulatory actors conduct a combination of dedicated regulatory agency. In contrast are public
very different activities (OECD, 2015) that can health and environmental regulation that often
be organized around six main regulatory areas: fall within the mandate of ministries of health or
tariff setting/price regulation, service quality, environment, or a specific dedicated public health
competition, consumer protection, environment or environmental protection agency.
and public health (Figure 3). The first four area are
It should be noted that there may be overlap regulatory aspects such as water quantity, supply
between the different regulatory areas, notably reliability and continuity, pressure, and wastewater
between Public Health and Environment and Public treatment and sludge standards are relevant for
Health and Service Quality. For example, effective public health regulation and should be coherent
catchment management for drinking water source between the two. And in turn these linked service
protection, and setting of effluent standards, quality and public health aspects also affect the
requires coherence between public health and cost of water delivered, and thus the tariffs to be
environmental regulation. Similarly, service quality set and charged. Hence the different regulatory
As previously explained, there is no single systematic approach structured in line with this
model for a good regulatory framework, or for concept note (see Figure 5), to help decision-
its implementation. Every country has its own makers and practitioners better understand
institutional and legal settings, each facing a wide the challenges and different approaches, and
range of different challenges. Hence, there is the help them to implement regulatory objectives.
need to have a structured analysis of each situation, Once conducted, the WASHREG Approach´s
in order to be able to assess and improve the Methodology results in a set of actions and
performance of regulation in a given country. practical solutions conceived to initiate a
process of developing, strengthening, or
The WASHREG Approach´s Methodology is aligning regulatory roles and responsibilities.
a multi-stakeholder diagnosis, proposed to The WASHREG Approach´s Methodology and
identify national regulation gaps and challenges Annexes provides a detailed description of the
in water and sanitation services provision. It is a process, and how to facilitate it.
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