Global Water Partnership PO. Box 179-D, Santiago, Chile Tel.: 56 2 2102271 Fax.: 56 2 2081946 Email: MSolanes@Eclac.Cl TABLE OF CONTENTS OVERVIEW 3 INTRODUCTION 7 FRESH WATER IS A FINITE AND VULNERABLE RESOURCE, ESSENTIAL TO SUSTAIN LIFE, DEVELOPMENT, AND THE ENVIRONMENT8 Overview The purpose of this report is to analyse the relationship between the 1992 Dublin Principles, integrated water management and water law. The Dublin principles were an attempt to concisely state the main issues and thrust of water management: Freshwater is a finite and vulnerable resource, essential to sustain life, development and the environment; Water development and management should be based on a participatory approach, involving users, planners and policy-makers at all levels; Women play a central part in the provision, management, and safeguarding of water; Water has an economic value in all its competing uses, and should be recognised as an economic good; This report does not pursue to endorse a single given model or solution, but to provide a set of alternatives and experiences to readers seeking information about institutional issues affecting water management. In so doing the report assesses existing relationships between the Dublin Principles and national water law systems. Water is a Finite and Vulnerable Resource… 1. The principle has been interpreted as a requirement for integrated management, responsive to the characteristics of water resources. Integrated includes technically appropriate water management (surface and groundwater, quality and quantity, water and soil, etcetera). Consideration of social needs, economic soundness and environmental requirements are implied. The ultimate goal is sustainable use and development of water resources. 2. The review shows there are water policies and legislation concerned with integrated water management; water quality protection; flow and landscape considerations; ecological requirements; rational and guided water use; integration among soil, water, and other natural resources; protection of water supplies; water planning; recognition of the river basin; groundwater protection; mandatory assessment of water policies, plans, programmes and projects; and mandatory assessment of water related subsidies. 3. There are also examples of legislation specifically concerned with the needs of all citizens, the common interest, benefits of individual users and the livelihood of population. Concrete examples of social concerns in water legislation are the preference often found for drinking water supply and sanitation, as well as the requirement of public access of British law. 4. The link with development is also a tenet of water law. Legislative requirements for optimal use and full realisation of the economic benefits of water have been found. Some systems relate water planning to economic improvement and economic regions. Economic considerations are, in some countries, important normative criteria for decision making and program and project evaluation. Water Development and Management should be based on a Participatory Approach… 5. Legislation relating to this principle was analysed under the assumption that water related activities are not confined to the interests of limited groups of users, geographical boundaries, sectoral institutions, or national jurisdictions. Participation, (and venues and opportunities thereof), was the criterium informing the analysis. 6. Generally, meaningful participation is associated to well defined national policies for which water is either a main component or a relevant input. Policy implementation is usually associated with socially acknowledged, relatively well informed, government organisations with adequate capabilities and appropriate legal mandates. These institutions have evolved from sector oriented to resource oriented, with strong indications that the concept of the river basin is steadily, albeit laboriously, coming into the institutional scene. 7. The review of experiences strongly suggest that the institutional dimension of water management is a system, where relatively successful water management experiences (success in this context is contingent to what a system knew and sought at specific times) have included a balance of government institutions and policies and stakeholders participation. 8. Such experiences, drawing from places as far apart as California and South Africa, indicate that meaningful stakeholder participation requires, at the least, a certain degree of government overseeing, and, ocaisionally, support. Such support may consist of promotion and encouragement of involvement and dissemination of information. Otherwise there is an ever present risk of participation becoming coopted by well informed, intent-specific, special interests groups. 9. Conciliation of interests, public consultations, and hearings are some of the manners in which interested parties and stakeholders, not necessarily having a conventional (in the typical sense) proprietary interest in water, are able to participate. More formal structures include advisory boards, integration within government bodies and associations and districts with field goals and responsibilities. 10. Interestingly, some legislations acknowledge the globability of water issues and acknowledge transnational interests through references to international treaties and obligations. 11. Some laws recognise the intimate connection existing between participation and information at all levels. 12. Some systems, where agricultural and other subsidies have traditionally coexisted with relatively strong participation, seem to indicate that a main, although not necessarily exclusive, prompt to participate is economic self-interest. 13. Finally, on account of Mexican experiences, it seems relevant to notice that technical needs, opportunities for economies of scale and scope, and other factors need to be taken into account when applying the concept of the lowest appropriate level. Also, the lowest appropriate level and the private sector are not synonymous: water corporations purveying water services are private, but many are global. Water as an Economic Good 14. In Western, Roman-based legislation, the economic aspects of water resources were relevant enough for them to be included within public or private ownership. Systems of rights on water have existed since Roman times. However, a full “econominisation” of water resources may be a complex task in countries with a Muslim, Hindu, or traditional Chinese background. 15. At present most legislations recognise, and protect the property aspects of rights to use water, which is the manner in which law reacts to the economic concept of scarcity. 16. At the same time, water law systems acknowledge the social and environmental dimensions of water through norms intended to protect third parties, the environment, and the resource base. 17. An important social dimension of water rights, closely associated to the economic dimension of the resource, is a definite intent in most legislations to prevent water hoarding, speculation, monopolies and waste. With worldwide privatisation of water related services, monopolistic control of water rights configures a typical case of barrier to entry. Therefore, the requirement of effective and beneficial use of water rights as a universal principle of water law – at both national and international levels. 18. In the single known case of non-existence of this provision, Chile, the system has resulted in speculation, hoarding, and impaired water management to the detriment of water sources. Proposals to amend the system are presently before Congress. However, the manner in which the rights were granted may make legal change extremely laborious. Proposals to tax water rights in order to promote their more efficient and equitable use by holders, have been attacked on Constitutional grounds. Private electrical utilities, argue that since original water rights were not conditioned to effective and beneficial use, the use of taxes to induce behavior other than the one unilaterally fitting the company would be an infringement of its property rights, which are constitutionally protected as granted. 19. A corollary of the economic character of water is the existence of water markets. They are a useful tool to optimise the use of the resource. However, since the many roles of water and its peculiar features make it a very special commodity, mature systems of water marketing regulate market performance in light of social, economic, and environmental considerations. 20. Finally, there are proposals to charge for water according to its opportunity cost. Examples of this approach are not abundant. However there are examples of charges intended to recover costs, pay for treatment of wastes, cover administrative expenses and induce environmentally sound behavior. Two examples relating to charges and value are discussed: Mexico and Spain. However, more analytical work seems to be required in order to refine criteria for inception, procedures for application, and consideration of issues of opportunity and equity. Introduction 21. The present report on water legislation and institutional arrangements submitted in compliance with agreements reached during the June 10-13, 1996 Copenhagen meeting of the Technical Advisory Group (TAC) of the Global Water Partnership (GWP), identifies manners in which the Dublin Principles about water reflect, coincide, or agree with practices and principles accepted by water legislation and institutions in a number of countries. 22. Although the report covers a wide range of issues, it does not purport to be exhaustive. There are important subjects that have not been dealt with due to limitations of time and space. 23. The Report is organised according to the four guiding principles for water resulting from the Dublin Statement. It is based on the review of a number of systems of national water law and on experiences provided by ongoing processes in countries such as Chile, Mexico, South Africa, and Zimbabwe. Cases selected were generally chosen as representative of trends or situations, and not necessarily as models to be followed. 24. The Dublin Statement and Conference Report express a holistic, comprehensive, multi-disciplinary approach to water resource problems worldwide. It is based on four “guiding principles” which cover environmental, social, political, and economic issues: “Fresh water is a finite and vulnerable resource, essential to sustain life, development, and the environment…” “Water development and management should be based on a participatory approach, involving users, planners, and policy-makers at all levels…” “Women play a central part in the provision, management, and safeguarding of water…” “Water has an economic value in all its competing uses and should be recognised as an economic good….” 25. The Report relates each principle to actual law. Four main themes inform the principles: environment, economics, social needs, and the role of women, under a paramount goal of sustainability. 26. Data are organised according to information found on the principles in different national systems. A. Fresh Water is a Finate and Vulnerable Resource, Essential to Sustain Life, Development, and the Environment 1. Water Policies 27. Several countries state the purposes and objectives of their water policies in their water legislation. The statement of policies is relevant to the interpretation, application and enforcement of legislation. Several of the statements reflect awareness of the interrelationships resulting from the principle. 28. Several laws include policy principles where the multiple roles of water are recognised. Thus, the 1970 Canadian Water Act encourages optimum use of water resources for the benefit of all Canadians (art.1). The Water Law of Germany (as amended on 23 September 1986) requests that water (both, surface and groundwater) be managed in a manner that serves the common interest, benefiting individual users, while preventing avoidable harmful impacts (art. 1a). The Netherlands’ “Policy Document on Water Management” sets up a policy of integrated water resources management which includes the quantitative and the qualitative aspects of water management. The 1988 Water Law of China policy is to ensure the rational development, utilisation, and protection of water resources, fully realising the benefits of water, for economic development, and the livelihood of the population. The policies of the 1992 Mexican Water Law include the preservation of water quality and the promotion of sustainable development. 2. Quality Controls and Environmental Concerns 29. The environmental dimension of water is rapidly becoming a major component of water legislation. As water becomes scarcer, relative to demand; as externalities increase, and as knowledge improves, the need to control the deterioration of water quality is translated into more detailed and demanding legislation. Permits, prohibitions, and charges are used to curb the deterioration of water and related natural resources and environmental assets. 30. The Canadian Water Act provides for the designation of water quality management areas and the implementation of water quality management programs (art. 11). Water quality management agencies shall plan, initiate and carry out programs to restore, preserve and enhance the quality of the waters within the water quality management area (art 13). 31. The German Water Law imposes a general duty to prevent water contamination and detrimental changes of its properties, requiring “an economical use of water in the interest of natural water resources” (art. 1a). Discharges into water are subject to maximum loads and technological requirements. Hazardous wastes must be treated using the best available technology (art. 7). Article 22 provides for strict, joint and several liability resulting from damages caused by introducing or throwing any substances into water. Discharges causing not merely insignificant detrimental changes, shall only be allowed when overriding public interest thus requires. Waters can be subject to characterisation parameters issued by the Federal Government (art. 36b). The law also provides for proper flow conditions, maintenance of navigation, ecological requirements, landscape features, protection of banks, and self purification (art. 27) . 32. The policies on environment and water of the Netherlands aim primarily at having and maintaining a safe and habitable country and to develop and maintain healthy water systems which guarantee sustained use. Three “screens” are established: 1) Reduction of pollution at the source; 2) Hydraulic design; 3) Rational or “guided” use of water resources, in particular groundwater. Quality objectives and monitoring methods and procedures have been established. The system includes licensing of discharges into water and, for specific industrial sectors, into sewers; payment of pollution charges and the preparation, every five years, of action plans to combat water pollution. The policies also address diffuse pollution, like atmospheric deposition, tars (utilised on protection materials for wooden shore and bank facilities), and agricultural run-off and leachates. Some pesticides have been absolutely prohibited, others are restricted, and some are subject to application according to best environmental practices. Additional measures, intended to control environmentally negative effects, include friendly environmental design and sedimentation and eutrophication control. 33. The 1989 Water Act of England provides for the classification of water quality in relation to controlled waters (sect. 104), the establishment of water quality objectives (sect. 105), controlling and remedying pollution (sect. 107), protection from sedimentation and refuse or waste vegetation (sect. 109), protection against pollution (sect. 110), creation of water protection zones (sect. 111), establishment of nitrate sensitive areas (sect. 112), establishment of minimum acceptable river flows (sect. 127), and enactment of codes of good agricultural practices, with a view to protect water resources (sect. 116). The 1991 Water Resources Act imposes conservation and enhancement duties on ministers and the National Rivers Authority, with a view to protect amenities, flora, fauna, historical places and other environmental interests. Public access and public availability are also taken into account. These duties are likewise to be considered when dealing with undertakers and their proposals for the management of waters and lands (sect. 16). Additional duties refer to environmental concerns for sites of special interest and for the enactment of codes of practice with respect to environmental and recreational duties (sects. 17-18). 34. The Water Law of China creates a state duty to protect water resources and adopt effective measures to protect flora, conserve water sources, control soil and water losses and improve the ecological environment. Water pollution is to be prevented and controlled, with a view to protect and improve water quality. Supervision and management of prevention and control of water pollution is to be strengthened (arts. 5-7). Agriculture must be practiced with a view to promote stable and high agricultural yield (art. 15). Hydropower development is to be done in accordance with protection of the ecological environment (art. 16). Fish ladders must be constructed when needed (art. 18). Adverse environmental impacts in the implementation of interbasin transfers (art. 21) must be prevented. Additional rules control disposal of refuse, mining activities, land reclamation, construction of projects, and creation of management and safeguard zones (arts. 24-29). 35. In some systems environmental concerns are the basis on which existing water rights can be amended, restricted, subjected to prorata, or cancelled. The 1992 French Water Law authorises changes in water rights when public health or safety so requires, or when water environments are threatened (art. 10iv). In the United States the public trust doctrine has been utilised to limit prior appropriation rights when the full exercise of such rights would have affected the environmental functions of a lake. 3. Protection and Management of Water Supplies 36. The protection of water sources has been a traditional concern of water law. Increasing demand and externalities have strengthened this concern. The Mexican Water Law reflects this dimension of water legislation through the regulation of the use and development of national water resources. 37. The German Water Law provides for the creation of water protection areas, within which certain activities cannot take place, or certain measures have to be tolerated (art. 19). The law requires the licensing of pipeline systems conveying substances constituting a hazard to water. These licenses are subject to conditions that can be changed even after a license has been issued (art. 19). Use of, and discharges into, groundwater are subject to permit and licensing (arts. 32-34). 38. Groundwater is increasingly controlled and protected. A number of countries have enacted legislation requiring permits, creating administrative devices to control the use of groundwater in special management areas and restricting the expansion of high consumption activities like irrigation. Management measures include issuing certifications of assured water supplies, required for the approval of subdivision plats, registration and recording of wells, control of water storage and recovery, control of well drillers, protection of preexisting uses, use of groundwater charges, measurement of withdrawals, estimations of supply and demand, stopping and reducing withdrawals in order to allow replenishment, granting emergency powers in case of drought, granting of permits at the discretion of water administrators (except in cases of clear abuse of discretion), deadlines for waterworks and activities, monitoring, possibility to amend and forfeit water rights (previous hearing), conjunctive use of surface and groundwater, control of discharges into groundwater and allocation of groundwater to preferred uses like drinking water supply. 39. The 1991 Water Resources Act of England provides for the National Rivers Authority to have a general mandate of proper management, which includes conserving, redistributing, augmenting, and securing the proper use of the water supplies of England and Wales. Water resources management schemes can be entered into for this purpose. 4. Water Planning and River Basins 40. The development of water resources is no longer amenable to isolated action. Water legislation is rapidly evolving towards integrated water planning to satisfy environmental objectives, economic requirements and social concerns. 41. The German water legislation requires a prior plan approval procedure before approving any substantial modifications of water bodies and their banks (art. 31). River basins and economic regions shall be subject to water plans, in order to safeguard the water resources needed for economic improvement and protection of the quality of life. Plans must consider available water resources, flood control, and protection from pollution, integrating water planning with regional planning. Plans are subject to adjustment and updating. They are implemented through a variety of means including, inter alia, administrative requirements, revocation of permits and licenses (art. 36b). 42. In Europe, there is trend to implement a double level of water resources management: a regional level for water basin plans, legal enforcement and incentive policies, and a local level for operation of services, and for implementation of innovative policies, like urban hydrology. The German (Ruhr) organisations and the French model are known worldwide. However, the Ruhr system seems to be strictly related to the socio-economic characteristics of its area of origin, and therefore non-replicable. On the other hand, the performance of the French river basin agencies has drawn some criticisms, resulting from excessive reliance on a “give and take” approach and also from argued shortcomings in integrated water resources planning and lack of clearly defined police powers. Interestingly, this kind of criticism is the same that could be leveled out at attempts to incept river basin institutions in Latin America. 43. Another well known international example is the Tennessee Valley Authority in the United States. However, its unique policy foundations, political support at the time of inception, and complex gamut of economic, social and managerial objectives would be very difficult to successfully replicate elsewhere. 44. While the role of regional and basin planning, control and management has been strengthened in Europe, the lack of adequate mechanisms for intersectoral planning and coordination at basin level seems to be negatively affecting water management in some countries. According to Dellapenna a constraint to water planning stems from the split between planning and regulation. 45. The Water Law of China requires that the development and utilisation of water and the prevention of disaster be planned in a comprehensive and systematic manner, with all the aspects taken into account, for multipurpose development and maximum benefits, allowing full consideration of the multifunctions of water (art. 4). There are comprehensive plans for the basins of major rivers and specialty plans for sectors. Comprehensive plans shall be coordinated with the National Land Plan considering the demands of different regions and sectors. They are prepared by the Department of Water Resources at different levels of government. Specialty plans are sectoral, to be prepared by the concerned departments (art. 11). Remedial measures or, alternatively, compensation are required in cases of interference with existing developments (art. 20). 46. According to recent research the river basin would be the most sensible unit within which to implement water transfer-strategies. 5. Assessment of Water Projects and Programs 7. Water related programs and policies are, in some countries assessed according to their impact on the environment and other national concerns. 48. Decision making in Australia, as required by the Intergovernmental Agreement on the Environment, must include economic and environmental considerations; considering that strong, growing and diversified economies enhance the capacity for environmental protection; applying the precautionary principle; looking for intergenerational equity; conserving biological diversity and ecological integrity. 49. More than twenty years ago the National Water Resources Council of the United States prepared a set of “Proposed Principles and Standards for Planning Water and Related Land Resources” which are a good example of multidisciplinary assessment of water plans. The principles call for the implementation of a system to display the relevant beneficial or adverse effects of water plans. Consequently, water development was to be assessed according to the effects that alternative plans would have on objectives of national economic development, environmental quality, regional development and social factors. 50. The 1969 United States National Environmental Protection Act (NEPA) requires that federal agencies include an Environmental Impact Statement for every major federal action significantly affecting the quality of the human environment. NEPA has been used to bring water related cases to the courts (dam and reservoir construction, dredge and fill, flood control, ocean dumping, rivers and harbors projects, and wetlands and water pollution). 51. In the Netherlands activities requiring environmental impact statements include, inter alia, discharges into surface and groundwater; or interfering with the groundwater table; construction of navigable waterways or widening or deepening them; diverting navigable waterways when it is a river; construction of naval ports; construction of main water pipelines; construction of marinas, dikes, dams; land reclamation; and construction of water reservoirs. 52. Norway has environmental impact statements proceedures requiring that possible impacts on the environment, natural resources, and society of all major physical developments be assessed. Some countries have established areas within which projects or programmes are presumed to have significant environmental effects. In Finland they include a number of areas in the Wild and Scenic Rivers Conservation Act; groundwater protection areas; the criteria of sensitive areas is also utilised in land planning. Poland lists the disturbance of water regime and intakes as one of the factors likely to produce environmental alterations. 53. The 1992 Canadian Environmental Assessment Act aims to assure that environmental effects of projects are carefully considered; that sustainable development is promoted for a healthy environment and a healthy economy; to ensure that projects do not cause significant adverse environmental effects and to ensure public participation. The Act applies to projects where the Federal Government has decision making authority. Assessments are to be carried out as early as possible (art. 11). The Act is to be implemented through four regulations: Inclusion List, (physical activities); Exclusion List (insignificant environmental effects); Law list (functions, powers and duties whose exercise requires assessment); and the Comprehensive Study List (significant environmental effects). The Law List includes several water related enactments, like the Navigable Waters Protection Act; the International Rivers Improvement Regulations, and so forth. 54. The Comprehensive Study List includes, inter alia, water related activities like dams in national parks and protected areas; hydroelectric generating stations with more than 300 MW of production capacity; certain categories of water projects; off-shore oil, gas and minerals projects; and certain transportation facilities. 55. It has been possible to identify at least one court case where an environmental impact assessment was requested for irrigation subsidies. A federal judge in California, USA, ordered an environmental review of rules setting up how many acres farmers in the West can irrigate using subsidised federal water. The Bureau of Reclamation must study the effects of a set of rules and regulations that it enacted in 1987 to put into effect the 1982 Reclamation Reform Act. The rules were challenged by environmental groups which argued that they allow large farms to continue using subsidised water, defeating the purposes of the reclamation project to provide cheap waters to family farms, and not properly assessing their environmental impact. The 1902 Reclamation Policy provided water, below market prices, with a view to increase agricultural output and encourage the creation of family farms. Leasing arrangements and other devices were used to escape the limitations on acreage intended to promote family farming. Subsidies were in fact granted to very large farming operations. The 1992 Act required that water provided to agricultural holdings exceeding the legal limit pay the full cost for water. The Bureau of Reclamation enacted regulations to implement the Act. These regulations were found to have no significant impact, and were, therefore, not subjected to Environmental Impact Statement. This finding was challenged in court, which found that the regulations were a major federal action with a potential to significantly affect the human environment. The court objected the use of purely economic notions like “rational utility maximiser”, which it found theoretical, far from reality and in violation of the regulations, which require an interdisciplinary approach. An environmental impact review was therefore requested. 56. It has been found that subsidising water for some activities and uses cause “an unnatural excess of demand”, with impacts on water uses, the environment and water reserves. Some countries are considering, and implementing, legislation to lower subsidies to irrigation water. B. Water Development and Management Should be Based on a Participatory Approach, Involving Users, Planners, AND Policy Makers at all Levels 1. Vesting Responsibility for Overall Water Management 57. The functional organisation for policy making, water allocation, water management, and monitoring of users plays an important role in the implementation of a sustainable water development system. Where these functions are vested in institutions with functional responsibilities for specific water uses, or for discrete economic activities, water planning and management might not be objective. In these cases each concerned party may tend to support projects or allocations of waters according to vested functional interests, without regard to the source of supply or the soundness of investments and projects. 58. To avoid such problems, many jurisdictions allocate responsibility for policy making, water allocation, and programme and project evaluation to a non-user agency or ministry. A recent publication of the World Bank emphasises the need to separate policy, planning, and regulatory functions from operational functions at each level of government. In so doing the Bank agrees with the United States National Water Commission, which in 1972 was already recommending that “Policy planning and sectorial planning must be separated from functional planning, design and construction, and operation by action agencies”. Other important consideration is that, due to the complexities of water management, a number of countries tend to defer to administrative judgement on technical issues: “Findings of fact must be determined in the first instance by the officers charged with the administration of the stream…this finding of fact is final…unless it appears unreasonable or arbitrary…” 59. Yet, other systems, like Chile, have chosen to limit administrative roles in water related matters. As a result, Bauer argues that many water conflicts have gone to higher courts, whose performances have been quite uneven. At least one working paper has suggested that the administrative set up in Chile be given greater powers, a
