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Copyright © 2021, United Nations Children’s Fund, UNICEF
Copyright © 2021, World Health Organisation, WHO
Copyright © 2021, Inter American Development Bank IADB

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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

Version for Print, 2021


CONTENTS

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

2.2 Regulatory models____________________________________________________________ 4

2.3 Regulatory autonomy__________________________________________________________ 4

2.4 Regulatory principles__________________________________________________________ 5

2.5 Regulatory accountability______________________________________________________ 5

3. GEOGRAPHICAL REGULATORY SCOPE_____________________________________ 8


3.1 Regulation of water and sanitation services in a decentralized context________________ 8

3.2 Urban water and sanitation services regulation____________________________________ 8

3.3 Rural water and sanitation services regulation_____________________________________ 9

4. REGULATORY AREAS____________________________________________________ 10
4.1 Tariff setting or price regulation_________________________________________________ 11

4.2 Service quality regulation______________________________________________________ 11

4.3 Competition regulation________________________________________________________ 12

4.4 Consumer protection regulation________________________________________________ 12

4.5 Environmental regulation______________________________________________________ 13

4.6 Public health regulation_______________________________________________________ 13

5. THE REGULATORY CYCLE________________________________________________ 14


6. WORKING WITH REGULATION: THE WASHREG APPROACH´S METHODOLOGY___ 15
BIBLIOGRAPHY____________________________________________________________ 16

THE WASHREG APPROACH: AN OVERVIEW | i


FOREWORD

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.

This “WASH Regulation (WASHREG)


Approach: An Overview” is intended to help
WASH professionals and other stakeholders
understand the elements of WASH regulation
within a broader enabling environment for
effective and sustainable WASH service delivery.
The document aims to provide clarity on the
main areas of WASH regulation, the main
tasks of water and sanitation regulatory actors
and introduces a conceptual framework for

1 https://www.siwi.org/what-we-do/accountability-for-sustainability/#partnership

ii | THE WASHREG APPROACH: AN OVERVIEW


GLOSSARY

ENABLING ENVIRONMENT: the set of REGULATORY MODEL (OR REGIME): generally


interrelated sector functions that impact the understood as a set of agreements on the
capacity of governments and public and private division of the respective responsibilities of
partners to engage in the WASH service delivery actors involved in the sector regulation.
development processes in a sustained and
effective manner. In the context of UNICEF’s REGULATORY ACTORS: used in a broad sense,
work, an enabling environment for WASH is includes government institutions that exercise
one that creates the conditions for a country to regulatory functions (i.e. a department within a
have sustainable, at-scale WASH services that ministry) and separate bodies created by the State
will facilitate achievement of Universal Access to carry out regulatory functions (Heller, 2017).
for All to WASH with Progressive Reduction in
Inequality (UNICEF, 2016). REGULATOR (OR REGULATORY BODY OR
REGULATORY AUTHORITY): a public authority
WATER GOVERNANCE: Water governance responsible for applying and enforcing standards,
defines who gets water, when and how, and who criteria, rules or requirements – which have
has the right to water and its related services been politically, legally or contractually adopted
and benefits (Allan, 2001). Hence, governance – exercising autonomous authority over the
is about the processes and institutions involved Services, in a supervisory capacity (International
in decision-making about water. From this Water Association, 2015)
procedural perspective, it has been defined
as “a combination of functions, performed REGULATORY AREAS: the different areas which
with certain attributes, to achieve one or more can be subject to regulation in the water and
desired outcomes, all shaped by the values and sanitation sector: tariff setting or price regulation,
aspirations of individuals and organisations” service quality, competition, consumer
(Jiménez et al., 2020). protection, environment, and public health.

REGULATION (OR THE REGULATION FUNCTION): REGULATORY POWERS: the instruments


the legal mechanisms, enforcement processes used by regulatory actors to ensure individuals
and other rules to ensure that stakeholders fulfil and operators comply with regulations. The
their mandates, and that standards, obligations powers are: rule definition and approval granting;
and performance are maintained, as well as to monitoring and informing; and enforcement.
ensure that the interests of each stakeholder are
respected (Jiménez et al., 2020).

REGULATION THEORY: a set of propositions


or hypotheses about why regulation emerges,
which actors contribute to that emergence and
typical patterns of interaction between regulatory
actors (Morgan & Yeung, 2007).

REGULATORY AUTONOMY: refers to the


capacity of regulatory actors to be protected
against other powerful groups or entities’
interferences.

THE WASHREG APPROACH: AN OVERVIEW | III


1. THE NEED TO REGULATE WATER AND
SANITATION SERVICE PROVISION

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

1 | THE WASHREG APPROACH: AN OVERVIEW


also frequently the case in sanitation and faecal Lastly, the provision of water and sanitation
sludge management services provision, e.g., services may have externalities that can be
on-site sanitation emptying services. In these both negative and positive. Consumption of
circumstances the role of a regulatory body is contaminated water, for instance, that sparks an
to first ensure free market entry to all interested epidemic disease such as cholera can quickly
parties, and second, to play an anti-monopoly spread beyond the geographical zone from which
role in the case of an abuse of a dominant the services originate. Over abstraction at a
position by a single operator, or several operators. water point or intake could affect a downstream
waterbody, its related ecosystems, and limit
Third, unequal access to information between downstream consumers’ ability to access services.
operators and consumers in the absence of On the positive side, an increase of wastewater
regulation could result in severe consequences and faecal sludge treatment in a specific
for the consumers. Information about poor geographical area could improve the surrounding
water quality or service interruption are among environment and the lives of citizens. Regulating
those where timely notification could prevent the public health, social and environmental costs of
potential public health problems or other related service operator activities are, therefore, important
and unnecessary damage to consumers. To elements to ensure an optimal level of service
bridge this gap, a wide range of reporting and provision, and adequate protection, when it comes
monitoring requirements and mechanisms exist to the impact both within and beyond the area in
that specify the different types and quality of which the services originate.
information to be provided.

THE WASHREG APPROACH: AN OVERVIEW | 2


2. WASH REGULATORY GOVERNANCE

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,

3 | THE WASHREG APPROACH: AN OVERVIEW


particularly for water supplies in rural areas (e.g., respective responsibilities of actors involved in
community water supplies), and for sanitation, a certain sector. There is no magic formula in
when the household is not connected to a relation to the models, and the solutions that
sewerage network. In this case, service provision may have worked for some countries may not
can have multiple actors along the sanitation value work for others (Heller, 2017). In the water and
chain, many of them acting informally. In these sanitation sector, the most common models
cases, regulation needs to balance enforcement are regulation by government, regulation by an
measures with support for professionalization and agency, regulation by contract, regulation by
technical support to operators. outsourcing some activities to third parties and
self-regulation (Mumssen et al., 2018; OECD,
2.2 Regulatory models 2015). These five models are summarized below:

Regulatory models are generally understood


as a set of agreements on the division of the

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

Figure 1: Regulatory models

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,

THE WASHREG APPROACH: AN OVERVIEW | 4


managerial, political, and decentralized autonomy. towards the full realization of the rights.

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.

Decentralized autonomy: refers to the capacity 2.5 Regulatory accountability


of the regulatory actor to delegate and supervise
certain regulatory activities to decentralized The principle of accountability, defined as “the
government levels. democratic principle whereby elected officials
and those in charge of providing access to
2.4 Regulatory principles water supply and sanitation services account
for their actions and answer to those they
From a human rights perspective, “regulatory serve” (UNDP-SIWI Water Governance Facility
actors must ensure that their policies, & UNICEF, 2015), also applies to the regulatory
procedures and activities are compliant with the actors and to the degree to which they are
State’s international human rights obligations held accountable for their choices and actions.
in relation to the rights to water and sanitation” The study of accountability poses an essential
(Heller, 2017). In this regard, regulatory actors question to both regulatory scholars and to
are bound by certain principles and obligations: theories of democratic participation (Baldwin
progressive realization, equality and non- et al., 2012; Gerber & Teske, 2000; Graham,
discrimination and the obligation to take steps 1995; Majone, 1997).

5 | THE WASHREG APPROACH: AN OVERVIEW


WASH regulation is highly complex, requiring and transparent a regulator should be (OECD,
significant technical expertise, like other 2014b). Regulatory actors are generally
regulated sectors; because of this complexity accountable to the three same actors for which
there is a consequent delegation of substantial they act as referee (Figure 2): the government or
policymaking authority to the regulatory staff. parliament (policy-maker), the service providers
Accountability is considered as the other side of (or regulated entities) and the users, or more
the coin to autonomy, and the more autonomous generally, the public.
a regulatory actor is, the more accountable

POLICY
MAKER

AC VI
SE
CO CE
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UN PR
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S
L R ED

TA OV
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GA NE

BIL IS
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ITY ION
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DIN
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RA RO

ON
VO

ILI
BL AB

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PU UNT

FO ISIO
IC

R
V
CO
AC

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.

THE WASHREG APPROACH: AN OVERVIEW | 6


Table 1: Regulatory accountability. Sources: UNDP-SIWI Water Governance Facility & UNICEF, 2015
and OECD, 2014b

7 | THE WASHREG APPROACH: AN OVERVIEW


3. GEOGRAPHICAL REGULATORY SCOPE

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.

THE WASHREG APPROACH: AN OVERVIEW | 8


The challenge for sanitation is even much larger. or service provision may fall directly under
In developing countries, the proportion of citizens municipal services. At the same time, several
connected to sewerage systems is very low, and it rural service operators may perform informally in
is even lower when considering proper treatment a legal vacuum. However, more recently these
and disposal of wastewater and faecal sludge. Over informal service operators tend to formalize
a billion people in urban and peri-urban areas of their status through signed contracts with
Africa, Asia, and Latin America are served by onsite local community-based organizations or local
sanitation technologies. And, around 2.7 billion governments (regulation by contract).
need faecal sludge management (FSM) services for
emptying, transporting, treating and safely disposing As much as these contracts regulate their
the waste generated (Strande et al., 2014). FSM activities, support is still required from regional
is very different from wastewater management. or national institutions when conducting certain
Multiple actors, who often operate informally, are regulatory activities, mainly because regulatory
involved in FSM, and these actors might perform actor and service operator capacity is often low
different functions within the sanitation service chain. in rural contexts. For this reason, it is common
to find regulatory instruments that mostly rely on
Hence, regulation needs to cover all actors the dissemination of information and consumer
and each step of the sanitation service chain, feedback, to increase accountability and
including the storage, collection, transport, minimize intensive and costly monitoring, and
treatment and end use or disposal of faecal application of penalties. For example, the water
sludge. The actors providing FSM services will watch groups created by the Zambian regulator
require a substantial effort from the regulator in (NWASCO) are voluntary consumer groups
terms of the provision of licenses for qualified responsible for monitoring the performance of
operators, coordination across stages of the the local authorities or utilities and for ensuring
service chain, and monitoring and follow up of that consumer water rights are protected, and
their performance. This also includes the control that information is readily available to consumers.
of discharges to the environment.
An important segment of service delivery
3.3 Rural water and sanitation services activities in rural areas are those that are
regulation performed on a voluntary basis in the form
of village water committees. In such cases,
In the context of rural areas, it is difficult to regulation based on penalties risks being
identify and introduce regulatory mechanisms ineffective, as it will only impose a higher
due to the number of rather small service burden on the already weak structure and
providers (or even self-supply arrangements), might lead towards discontinuation of service
geographical dispersion, low level of provision activities. Hence, a more “supportive”
formalization and limited access to information regulation, which includes capacity development
at central level. These service providers often and support for compliance, is often more
have limited resources to respond to regulatory appropriate in these contexts.
requirements and penalties. Hence, it is
generally necessary to apply a mix of approaches
to regulate water and sanitation services,
relying on a mix of contracts, national-level
regulatory bodies, and in some cases, regulatory
attributions at the local level (Trémolet, 2013).

Regulation in rural areas is sometimes very


complex, as the service provision can be
undertaken by many operators, (e.g., several
thousands in many countries), with legal statuses
ranging from private to community associations,

9 | THE WASHREG APPROACH: AN OVERVIEW


4. REGULATORY AREAS

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

Figure 3: Regulatory areas.

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

THE WASHREG APPROACH: AN OVERVIEW | 10


functions are interlinked, and coherence is needed Other common approaches are price cap
between the different mandates to avoid gaps regulation, revenue cap regulation or yardstick
and overlaps, as well as cooperation among the competition, which are approaches based
different institutions involved. on performance incentives which introduce
the component of productivity to motivate
Capacity building and resourcing for implementation operators to improve their efficiency and increase
of regulatory functions within the responsible innovation. Price cap regulation consists of
agencies is critical for regulation to work smoothly establishing an average limit or cap for the prices
(World Health Organization (WHO), 2018). of the water, wastewater and FSM services
during a given regulatory period, between three
4.1 Tariff setting or price regulation and ten years. The regulated operators retain
the profits coming from the reduction of costs
Price regulation can be defined as the that happens during the given period, along with
establishment and implementation of a set of those gained through improved productivity. At
specific rules for the definition of tariffs and the end of each regulatory period, the benefits
prices, inducing operators to achieve optimum of the cost reductions are partially transferred
results in terms of the prices adopted, the to consumers through the reduction of prices
quantities produced, and the standards of during the next regulatory period. In revenue cap
quality offered. It is considered one of the most regulation, operators are limited to a maximum
important regulatory areas, and whether services average value for their revenues. The revenue
are outlined through public or private ownership ceiling is established through a consumer price
and irrespective of the actual regulatory model, index and a factor that translates variations,
tariff setting is necessary and essential for the in terms of productivity. The gains achieved
sustainability of water and sanitation services. are transferred to consumers within the next
regulatory timeframe. Yardstick competition
Tariffs should be sufficient to cover the costs of is price regulation by comparison, between
providing the service. Various definitions may be a given operator and its peers through a
used, depending on how far the existing tariffs are benchmarking exercise, that is in turn translated
from full cost-recovery levels and how challenging into financial consequences. The key element
moving to cost-recovery levels may be in the short of this regulatory model consists of redirecting
term. In general, legislation would require that incentives to improve efficiency for a given
tariffs cover at least the operation and maintenance operator through information extracted from
costs, plus the costs of investments (that is, other operators. In consequence, this constitutes
depreciation and a fair return on capital), but this an artificial form of competition between the
might not always be implemented in practice. regulated operators. The yardstick approach also
serves against asymmetry in information among
One of the most common approaches to price- the operators and tends to set a fertile ground
regulation is the rate-of-return price, also called the for transparency and access to information.
American approach, that allows an operator to set However, a sufficient base of comparable service
a level of remuneration based on the investments providers is required for this approach to work
preapproved by the regulator. Within this approach, (Rouse, 2013).
a regulatory body defines the prices and facilitates
the definition of tariff systems that motivate the 4.2 Service quality regulation
accomplishment of non-economic objectives
(e.g., contexts involving the extensive creation Service quality regulation is defined as the
of infrastructure in less mature sectors), and, establishment and implementation of a set
especially, cross-subsidization between users, or of specific rules to achieve a certain level of
between the services supplied. However, if under- service in relation to certain characteristics
regulated, the operators do not have incentives such as technical requirements or customer
to reduce the costs and have a remuneration responsiveness. Service quality regulation
regardless of the operators’ actual performance. can be direct or indirect. In direct regulation,

11 | THE WASHREG APPROACH: AN OVERVIEW


a service quality parameter is included in the further investigate such abuses and to take
service contract, with the operators being concrete actions to resolve it. Depending on the
rewarded or penalized following their level of nature of the abuse, a possible range of actions
compliance at the end of a regulatory period. may include breaking of the oligopoly through
The indirect approach penalizes and rewards financial penalties, enforcement of asset sale to
operators occasionally and periodically during break a dominant position, or imposition of an
the regulatory period for shortcomings in their obligation to supply.
performance (e.g., a failure to address consumer
complaints), according to the minimum Competition is also important in the provision of
standards of quality that had been defined. sanitation and faecal sludge management (FSM)
Operators are not audited randomly under services. The sanitation service value chain
the direct approach, and enjoy more freedom might be fragmented, and different operators
to manage the quality of service (Rovizzi & can be working on on-site sanitation emptying,
Thompson, 1992). transportation, treatment and discharge, or
eventual re-use of by-products. To learn about
Both direct and indirect service quality regulation can the market dynamics, the competition regulatory
use the benchmarking approach, which consists activity must first seek to obtain all the available
of the application of comparative and quantitative data and information to assess the existence of
methods that are used to assess and measure anti-competitive abuses. On many occasions,
the performance of operators over the course the first step will be to provide licenses to
of time, for instance in monitoring sustainability the operators that might be operating in the
through sustainability checks or other monitoring informal sector. At the same time, it is important
mechanisms. The use of benchmarking indicators to oversee quality of service and public health
results in continuous pressure on the operators to regulations when trying to establish competition
improve the quality of service, whilst also increasing in the market- for example, by avoiding a
the sharing and transparency of information, and situation where services providers limit the
minimizing the asymmetry of information that equipment for sanitation workers to reduce
exists between regulators and operators. Another costs. Similarly, as for water, when an abuse is
approach in service quality regulation is the found, sanctions will be imposed, for example,
sunshine approach, which obliges operators to when a few operators in an area have created an
make available all relevant service information and oligopoly and agreed to charge an unreasonable
actions for public observation, participation, and/or tariff to consumers.
inspection, and it is through the exposure to media
and the public that this approach has proven to 4.4 Consumer protection regulation
have a competitive impact on the sector.
Consumer protection regulation is defined as
As mentioned earlier, there can be quite a blurred the establishment and implementation of a set
line between service quality and public health of specific rules applicable to the water and
regulation. For example, technical requirements sanitation service providers in order to achieve
and protection of sanitation workers’ standards, the protection of the users. Regulatory actors
are both integral to service quality and public are due to audit all the available mechanisms for
health protection. consumer protection, to assess to what extent
they are relevant, and to help consumers identify
4.3 Competition regulation and claim their own standards and requirements.

Competition regulation is defined as the In addition, regulatory actors collect consumer


establishment and implementation of a set of and operator views through different consultation
specific rules to prevent the abuse of a dominant processes, review the results, and potentially
position by one or several operators through amend regulatory policies. Typical forms of
oligopoly (e.g., water trucking). If abuse is consultations are informal consultation with
found, the regulatory actor is duly bound to selected groups, public meetings open to any

THE WASHREG APPROACH: AN OVERVIEW | 12


user, consultation with other sector regulators, offending operator to remediate and compensate
public notice of regulatory intentions, open for the environmental damage.
calls for commenting on policy documents, or
preparatory public commissions or committees. 4.6 Public health regulation

4.5 Environmental regulation Public health regulation is defined as the


establishment, monitoring (surveillance) of
Environmental regulation is defined as the implementation and/or enforcement, of a set
establishment and implementation of a set of of specific rules to ensure drinking water safety
specific rules applicable to water abstractions and safe management of the sanitation chain, in
and sanitation chain management, in order to order to protect public health.
protect the environment.
Regulations should include requirements for
Environmental regulation of water abstractions monitoring priority substances and for preventive
may involve a variety of options, with various risk management, such as Water Safety Planning
levels of effectiveness and cost. Generally, a (WSP). Often the term “standard” is used to
regulatory authority would establish a registry describe the mandatory numerical value in a
of existing abstraction points and require all table of parameters and limits. These standard
new applicants wanting to develop a new requirements are usually established at the
water abstraction to obtain authorization in national or sub-national level and often in
advance. Authorization would include a fee, alignment with the WHO Guidelines for Drinking
typically aimed to cover administrative costs. Water Quality. Operators then monitor and
To grant an abstraction license, a regulatory report to the regulator on compliance against
authority would need to assess the impact of the standards and norms. Support for such
the planned abstraction on the environment, and monitoring activities may be provided at the
on the existing usages and availability of water national level, especially for carrying out more
resources; as well as to assess whether the expensive testing activities. The regulatory body
water quality of the source matches the intended should gather, assess, and publish drinking
use. The licensed abstractors may be required water safety and WSP compliance data. Other
to monitor their abstractions (in quantity and activities to be carried out by the regulator
quality) over time and report on compliance with should include auditing WSPs, where WSP are
an issued license. required or promoted, carrying out sanitary
inspections (particularly where WSPs are not
Environmental regulation along the sanitation required), conducting water quality testing
chain (including for both “off-site” networked to complement the testing carried out by the
sanitation and on-site sanitation) can be done water supplier, and monitoring and investigating
in different ways. Commonly, a regulatory drinking water safety failure events and
authority regulates the quantity and quality consumer complaints. In the event of a drinking
standards of discharges and the treatment/ water safety failure event, the regulatory body
use/disposal of wastewater, effluent, and faecal may instruct the service provider to remediate
sludge, to prevent heavily polluting substances the damage, compensate for damages, or to
from being released into the environment, strengthen operations, including introducing or
and to ensure minimum environmental water improving WSPs. Detailed guidance has been
flows in receiving waterbodies (in the case of developed by the WHO on “Developing drinking-
urban wastewater discharges). The licensed water quality regulations and standards” (WHO,
dischargers or users/disposers may be required 2018)
to monitor their discharges/uses/disposals over
time, and report on compliance with an issued Public health regulation for safe management
license or standard. In the event of a serious of the sanitation chain is an emerging area of
non-compliance event, the regulatory body may regulation. Relevant legislation and regulation
coordinate an investigation and instruct the and elements may be found under local

13 | THE WASHREG APPROACH: AN OVERVIEW


government public health, occupational sludge treatment and specific standards for safe
health and safety, environmental, water use of wastewater and sludge according to the
resources, amongst other areas (WHO, 2018). use type. There is hence a strong interconnection
The regulation of the safe management of between public health, service quality regulation
the sanitation chain should use risk-based and environment in sanitation regulation.
approaches to set health-based standards at
each step of the chain. Multiple regulators may Regulators may establish a requirement for local
be involved in deploying a variety of regulatory authorities to carry out Sanitation Safety Planning
mechanisms at each step of the sanitation (SSP) to ensure risk-based improvements are
chain such as planning and building regulation monitored and coordinated among service providers
standards for toilets and on-site treatment at the local level. Finally, incentives or sanctions may
technologies, licencing of faecal sludge emptying be imposed on sanitation chain operators and end
and transport service providers, occupational users of sanitation products, for actions that infringe
health and safety regulations to protect workers, the health-based standards.
and minimum standards for wastewater and

5. THE REGULATORY CYCLE


Whichever regulatory area is analysed, with the aim for progressive improvement. These
regulatory activity can be divided into three regulatory powers apply to each of the regulatory
main regulatory powers, that can be organized areas defined in section 4- Tariff setting, Service
in a cyclical process (Figure 4). First, Rule Quality, Competition, Consumer protection,
definition and Approval Granting it is about Environment and Public Health.
defining and setting the regulation rules, as
well as granting the approvals required
for operating water and sanitation related
services. Secondly, Monitoring and Informing
is about collection of the information and
data needed to regulate, and making the
information available to the service providers
and public. Thirdly, Enforcement is about
the mechanisms developed to enforce
compliance with the defined rules. The
results of the assessment of the information
gathered through monitoring, as well as
results of enforcement, should inform
updates of the regulations and supporting
programmes,

Figure 4: The Regulatory Cycle

THE WASHREG APPROACH: AN OVERVIEW | 14


6. WORKING WITH REGULATION: THE
WASHREG APPROACH´S METHODOLOGY

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.

Figure 5: WASHREG Approach´s Methodology

15 | THE WASHREG APPROACH: AN OVERVIEW


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