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12. National Water Institutions:
allocation & integrated management
by Joyeeta Gupta, Frank Jaspers and Pieter van der Zaag
12.1 Introduction and Learning Objectives
In the previous unit the history of water law has been
discussed. This Unit takes a more
forward-looking approach and discusses different possible
allocation systems to achieve
equitable water distribution and ways to integrate water
management. Besides theory, this
unit will give examples of water laws in other countries. After
reading this Unit, you should
be able to:
Define and understand the general concepts with regard to the
right to use water
( 12.2);
Articulate the relation between the priority of use system and
the human right to
water ( 12.3);
Understand and analyze the different types of classification of
water ( 12.4);
Analyze and form judgements on tradeable water rights (
12.5);
Analyze the system of proportional water rights ( 12.6);
Understand, analyze and assess property rights to natural
resources ( 12.7); and
Be able to integrate the different information learnt so far and
critically assess the
concept of Integrated Water Resources Management ( 12.8); and
the dilemmas and
contradictory principles in water allocation.
12.2 Introduction to the right to use water
The right to water is generally acquired through the effect of
law, appropriation through prior
use or through administrative authorisation in terms of permits,
licenses and concessions.
Permits may be issued for different water uses and nowadays
there is also increasing
discussion of water trading. Key concepts here include:
Riparian use: ownership and use of water is related to ownership
of land adjacent to water.
Absolute ownership, which allows riparians absolute rights on
the water.
Correlative rights, which allows owners rights in relation to
the rights of others.
Minimum flow, which limits the amount of water a riparian may
extract to the minimum
flow level prescribed for a water body.
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Reasonable use, which limits the amount of water a riparian may
use to that which may be
seen as reasonable. Criteria for reasonable use developed in the
English and American
courts:
No riparian owner is allowed to use water to the detriment of
other owners with
similar rights;
A reasonable share depends on its value to the user, the similar
rights of lower
owners, the size and nature of the stream and the different uses
to which the stream
could be appropriated;
Artificial use of water benefits the user rather than the
fulfilling the vital requirements
of humans and animals. It would therefore be an unreasonable use
if an owner uses
water for irrigation or for industry to the detriment of the
domestic water
requirements of a neighbour;
A riparian owner has to allow water which is diverted but not
used to flow back to the
channel from where it is diverted; and
Pollution is unreasonable and illegal.
Prior appropriation allows those who have been accessing water
for some time, to gain
rights to continue acquiring that quantity of water in the
future. The most important
features of prior appropriation are:
It gives an exclusive right to the first appropriator. In times
of shortages, holders of a
senior right are permitted to take their entire right without
regard to whether there is
any left for those holding junior rights;
It makes all rights conditional upon beneficial use; the right
may be lost by non-use;
It permits water to be used on non-riparian lands as well as on
riparian lands;
It permits diversion of water regardless of the diminution of
the stream
Although the system of prior appropriation has generally been
hailed as the most
advantageous, especially in environments where water is scarce,
a growing body of
studies recognise its limitations. A number of authors concur
that for dealing with
water shortage, the appropriation doctrine is inefficient (Howe
et al. 1986: 442),
imposes greater risks (Rosegrant and Binswanger 1994: 1621) or
is less flexible
(Ciriacy-Wantrup 1985). This is so because the most senior water
right may not have
the best use of the water. A system based on senior claims may
also deter
investment in water-saving technology because parties may risk
forfeiting their claim
to water they are no longer using. States with systems based on
seniority have seen an
increasing need to intervene and regulate access to water
resources.
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Public trust is where a state holds a resource which is
available for the free use of the
general public. A court will look with considerable scepticism
on any government conduct
which is calculated either to reallocate that resource to more
restricted uses, or to subject
public interest to the self interest of private parties. Here
the government has a role in
ensuring that developmental projects are carried out only if
they are consistent with the
environmental and ecological values attached to the water
resource.
12.3 Priority of use and the human right to water
Most institutions also include the concept of priority of use
which calls for prioritising uses in
times of conflict. For example, in the former Soviet Union the
water legislation empowered
local authorities to prohibit or limit the use of drinking water
for industrial purposes in times
of scarcity in favour of drinking and domestic water needs. All
water users are obliged to
utilise water rationally (Caponera 1992). In the U.S. state of
Minnesota, the order of priorities
in times of drought are 1) domestic water supply, 2) consumptive
uses of less that 10,000
gallons per day, 3) agricultural irrigation, then 4) power
production and lastly, 5) other uses
(Goldfarb 1988: 28). In Taiwan, the Water Law was amended in
1983 and the priority of use
was as follows: 1) domestic and public water supply; 2)
agricultural, 3) hydropower, 4)
industrial 5) navigation and 6) other uses. The use of water for
drinking purposes is
prioritised when a human right to water is recognised. This is,
alas, not often the case in the
developing countries. In India, the priorities appear to be a
bit confused. In his treatise, Singh
(Singh 1991) makes an impassioned plea for the recognition of
the right to water as against the
right to use water for irrigational or other purposes. He makes
the distinction between positive
and negative rights. In a positive right (such as the right to
education), the state is obliged to
ensure that water is made available to every human being. In a
negative right, it is up to the
person to enforce his right to water. In times of scarcity, the
poor man has no access to water.
Singh believes that the state should be obliged to provide him
with drinking water and water for
domestic needs. This is probably the situation in most
developing countries that face acute water
shortages. In these countries it is of vital importance that the
positive right to water for drinking
and domestic purposes should be recognized. This should perhaps
be the first priority in the list
of water uses.
For example, in recent years, two nations have developed a
priority of use concept in their water
law. The Zimbabwe Water Act of 1998 prioritises primary purposes
over commercial uses:
Primary purposes in relation to the use of water, means the
reasonable use of water
a. for basic domestic human needs in or about the area of
residential premises; or
b. for the support of animal life, other than fish in fish farms
or animals or poultry
in feedlots;
c. for the making of bricks for the private use of the owner,
lessee or occupier of
the land concerned; or
d. for dip tanks
(Zimbabwe Water Act of 1998).
What are examples of
priority rankings?
Why is there a need for a
positive right to water?
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The South Africa National Water Act of 1998, too prioritises
specific uses of water. In
particular it establishes a system of reserves for meeting basic
human needs and a reserve for
ecosystems.
Meanwhile, the concept of a human right to water and sanitation
has become more and more
important. Chapter 6 discussed this concept in more detail. The
adoption by 122 countries at
the UN General Assembly of the Human Right to Water and
Sanitation in July 2010 now
means that there are at least 122 countries that will have to
think of ways to reconcile giving
priority to drinking water and sanitation purposes in their
priority of use concept.
Point to Ponder: Do you think national institutions should have
a different priority of use than international institutions? Do you
think that the right to drinking water should be prioritized?
12.4 Classification of water
Water has traditionally been classified in different legal
traditions as:
Surface (blue) water, which includes diffused surface water (the
uncollected flow
from falling rain or melting snow), water in watercourses which
includes all surface
waters contained within definite banks/boundaries such as
running waters in rivers
and streams and still waters in lakes and ponds and coastal
waters generally up to the
3 mile territorial limit;
Ground water, which includes the subflow of surface streams (the
saturated zone just
below a river), underground streams or streams that flow below
the ground-level, and
percolating waters that pass through the ground and accumulate
in water tables and
aquifers; and
Grey water: Waste water flushing from households and the
economic sectors of
society.
In addition, people now talk of green water water that is
captured in green ecosystems.
Water has traditionally been treated as a separate entity from
land, ecosystems, forests, the
environment etc. However, this is gradually changing and the
boundaries between one system
and the next are becoming harder to define.
Points to ponder: Traditional institutions have tended to
classify water into different types in order to be able to develop
separate legal rules for the water bodies. However, water is
surely, as the Hindu legal system explains, indivisible. Is the
tendency of the law to divide the waters according to their
"source" contrary to the principles of water resources
management?
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12.5 Tradeable water rights
The trend towards public allocation, which gives a government a
central role in water
management, is the dominant trend globally. However, a trend in
the opposite direction is
towards a system of tradable water rights. Here, water rights
have become in effect real
ownership rights, conferring the rights of access, exclusion and
alienation to the right holder.
These rights do not prescribe the type of use, nor is there a
clause of beneficial use. Water
rights are acquired through the market. Under this system the
role of the right holder
increases, while that of government diminishes.
One major argument in favour of the system of tradable water
rights is that the market is the
most efficient mechanism through which the scarce water resource
will be allocated to its
best use. This will, it is argued, facilitate the transfer of
water from lower to higher value
usages, including the transfer of water from the agricultural to
the industrial sector and to
urban areas. Another argument is that since water is scarce, a
water right should be secure,
such that the right holder is willing to make investments which
will enhance the efficient use
of the water.
The basic premise of the system of tradable water rights is that
the water market will be
efficient. However, this may not be the case:
property rights in water are, in practice, difficult to define
with precision;
market prices may fail to reflect full opportunity costs because
of geographical limits
to the market;
information flows may be imperfect among potential buyers and
sellers resulting
from wide geographic separation; i.e. high transaction
costs;
water allocation through markets is less predictable than
existing allocation systems;
markets tend to ignore negative externalities (changes in return
flows, groundwater
levels and water quality); and
markets are likely to understate public good values, such as
in-stream flows and
higher water quality.
If left on their own, water markets may have severe social and
environmental effects which,
from the perspective of society, are undesirable. Consequently,
mature water marketing
systems have developed sets of rules and regulations with a view
to strike a balance between
market forces and social and environmental concerns. A first
regulation, it is argued, should
condition water rights and their transfer on the rule of
effective and beneficial use of the
waters. Other conditions and regulations applying to water
marketing intend to prevent the
causation of negative transactional impacts on other users,
special groups, communities,
society at large, and the environment. Thus, mature water
marketing systems have developed
rules on the amounts of water to be transferred, protection of
area of origin, environmental
impacts, community interests, priorities and preferences, water
rights of aboriginal citizens,
and other concerns (Solanes n.d.).
What are the arguments pro
tradeable rights?
What are the concerns with
regard to tradeable
rights?
What could go wrong with
tradeable rights?
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Case 12-1: Zimbabwe water law reform - Pieter van der Zaag
The Old Law
Although Zimbabwe was colonised by the English, its legal system
fell under Dutch influence because of
Zimbabwes proximity to South Africa. Thus the earlier Zimbabwe
Water Act of 1976 was not based on the
riparian doctrine, but derives from Roman-Dutch law.
The key features of the system of law until 1998 were:
All surface water was publicly owned;
All ground water was privately owned by the riparian, except
that boreholes deeper than 15 metres were to
be reported (Matinenga 1995, 1996);
Rights to water for other than primary uses was based on the
prior appropriation doctrine and granted by
the administrative court;
Primary uses of water enjoy preference over other rights;
The Government is allowed to sell or lease water rights;
River boards were allowed to be set up to regulate and supervise
the exercise of rights to public water; and
Discharge of organic and inorganic matter into water bodies was
prohibited.
The above law led to the allocation of water to land owners and
those who developed first. By granting rights in
perpetuity, it created major problems of access even though in
principle there were opportunities for re-
allocating water and for prioritising primary uses.
The above law was poorly implemented, especially the provisions
regarding the re-allocation of water, and
inadequately enforced. The critique of the injustices in water
access as well as the need for modernizing the
water act led to the adoption of the new Water Act of Zimbabwe
of 1998 (Matinenga 1995, 1996).
The New Law
In 1998, on the basis of considerable negotiation, the new Water
Act of Zimbabwe was adopted. The new act
abolishes the concept of private water and treats all water
(surface and groundwater) similarly. No person shall
abstract water for any purpose other than primary purposes
except in terms of a permit. Thus, also for
groundwater abstraction a permit is required. Further, the
important role of outline plans for catchments
areas is retained in the new Act. An outline plan contains the
major water uses within the river system
concerned, including those of the important public utilities,
and any major amenity or recreation areas, areas
for development and measures for the conservation and
improvement of the physical environment. The plan
also contains hydrologic information; and how the available
water (in absolute volumes or in relative
proportions) should be allocated between public and private
developments, and between uses of the different
sectors of the economy. The plan also indicates the maximum
permissible levels of pollution. The outline plan
defines the proportion of the available water, which should be
reserved for future use or for the benefit of the
environment. Finally, the outline plan gives the priorities in
the utilization and allocation of water, taking into
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account policy guidelines provided by the Minister, and makes
provisions for changes in priorities for the use,
development and allocation of water, where they are necessitated
by changes in the availability of water or
social or economic priorities. The new Act defines much heavier
penalties for offences. Any person who
enlarges or obstructs any water works, alters or interferes with
the flow of the water of any water works or of
a public stream or interferes with the distribution of the
water, or extracts more of the water than he is
entitled to, fails to maintain and to keep the water works in
repair; wastes water, does not take due precaution
to prevent the waste of water from the water works; hinders or
obstructs any officer in the exercise of his
duties shall be guilty of an offence and liable to a fine of Z$
50,000 (maximum) or twice the amount of any
profit or advantage unlawfully gained whichever is the greater;
or to 2 years imprisonment (maximum) or to
both. Any person who persists shall be liable to a fine of Z$
2,000 per day (maximum) during which he so
persists.
Some critical questions
The new Act abolishes rights granted in perpetuity and
introduces permits with a limited period of validity.
Permits will from time to time be checked on beneficial use, to
enhance efficient water use. However it
also implies the expropriation and de-privatisation of water
rights. Will the permit system provides enough
security so as to induce investments in water works, which may
enhance efficient water use and economic
development?
Under the new Act, permits will be granted by catchment
councils. Public good values and wider public
interests in the water resource can be taken into account when
granting a permit. However, does a permit
system have enough checks and balances to ensure transparency
and efficiency, and to preclude rent-
seeking? Will the catchment councils be able to deal with their
important responsibility of granting permits?
The new Act abolishes the priority system. This system clearly
defined water allocation in periods of
shortage. It, however, disadvantaged new entrants and was thus
considered inequitable. The new Act does
not prescribe how water should be allocated in times of
scarcity, but gives the Minister, ZINWA and the
catchment councils guidelines and powers to deal with it. Does
the lack of clarity negatively affect the
predictability of the allocation system? Is not the foremost
purpose of a law to clearly define allocation of a
scarce resource?
The inclusive way of defining water implies that groundwater is
treated in the same way as surface water.
Under the new Act, any water abstraction from a well or
borehole, other than for primary purposes, will
require a permit. This is, in principle, a great improvement as
the new Act recognises the unity of the
hydrological cycle. However, do we have sufficient knowledge
about groundwater-surface water
interaction, to guide catchment councils and managers in
deciding how much groundwater may be
permitted to be abstracted?
The new Act establishes catchment councils and subcatchment
councils, tasked with operational functions.
The catchment manager will have relative large executive powers.
The councils will enhance user
participation in decision-making. Is it consistent with the
stated goals of decentralisation and user
participation that the catchment manager is appointed by, and
accountable to the Minister only?
Water from government dams will not fall under the jurisdiction
of the councils. Does this not segregate
again the water sector, which goes against the drive towards
integrating water resources management, and
which may severely limit the scope of the councils?
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The permit system allows for new entrants to get access to
water. Is this enough to redress the large
imbalance in access to water in Zimbabwe?
In Zimbabwe water is stored in storage works which are privately
or publicly owned. The de-privatisation of
storage rights through permits may open up storage space for new
entrants. Will the private owner of a
storage work be allowed to charge for storing of the water of
third persons (e.g. because his permit to store
water is cancelled and granted to a third person)?
Point to Ponder: Which of the raised critical questions, would
you judge to be the most crucial for the success of the new
law?
12.6 The system of proportional water rights
In most countries, water rights are expressed in absolute
volumetric units per time unit. In
some countries or states, however, water rights are defined as a
share in a water body. Such
systems may be found in various countries, but normally these
are very localised ancient
irrigation systems, which have survived in tiny pockets of a
country. Examples are the Subak
system of irrigation in Bali (Indonesia), tank irrigation in Sri
Lanka, hill irrigation in Nepal,
qanat irrigation in Iran and Mexico. It has also survived in
certain places in Spain, where
proportional water rights first emerged during the Muslim
occupation around the turn of the
first millennium.
Proportional water rights often have emerged in places where the
investment in the
development of a water source was high. The contribution of
individuals in this investment
then became the key to define individual shares in the water
resource.
In Chile water rights are defined in absolute volumetric terms
per time unit. These rights are
tradable. However, in case of water shortage the entitlement to
water is decreased in
proportion to the shortage occurring in the river basin or
source of water. It should therefore
be noted that proportional rights may, in particular situations,
also be traded on a market.
12.7 Property rights to natural resources
A property right is an enforceable right to undertake particular
actions in a specific domain.
Property rights define actions that individuals can take in
relation to other individuals
regarding some thing. If one individual has a right, someone
else has a commensurate duty
to observe that right. The system of property rights in a given
society (village, country) is a
specific form of an institution. The intensity of competition
over resources increases in
proportion to the value of the resources relative to other
alternatives (Demsetz 1967). More
clearly defined property rights will therefore emerge if the
relative value of the resource
increases through more competition. This usually also implies
that a resource which used to
be defined in terms of common property may gradually become
defined in terms of private
property (e.g. arable land in some communal areas in Zimbabwe).
There will be an increasing
need to define clear boundaries of private property. And this,
in case of natural resources, is
often difficult. Boundaries become increasingly subject to
dispute (Moore 1993, Fortmann
1995). Water is a special case, for which it is impossible to
spatially demarcate rights. A right
In which units are water rights
expressed?
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to a certain resource (e.g. water) may in fact relate to
different levels, conferring increasing
control over that resource:
Access: the right of access to a resource, to withdraw it and
use it; for instance the
right to divert a certain amount of water from a river at a
specified site and use it for,
say, irrigation; this is in effect a user right (usufructuary
right);
Exclusion: the right to determine who will have access rights,
and how and to whom
that right may be transferred;
Alienation: the right to sell or lease the resource. The
distinction between rights of
access and rights of exclusion and alienation is important. It
is the difference between
exercising a right and participating in the definition of future
rights to be exercised
(Schlager and Ostrom 1992: 251).
Only if you hold all three kinds of rights to a resource, you
will have the full ownership of
the corpus of that resource (i.e. private property), and have
the right of use and abuse. If
you, however, only have a right of access, you may be charged a
fee for its enjoyment by the
holder of the right of exclusion and/or alienation. Rights to
natural resources, more often then
not, do not confer the full ownership to the right holder. In
the case of communal grazing in
Zimbabwe, communal farmers normally have the right to access,
whereas exclusion and
alienation are prerogatives of the Chief, District Administrator
or the Minister. In the case of
arable plots, communal farmers normally have also a say in who
will inherit the plot
(exclusion), but they certainly do not have the right of
alienation (selling, leasing). A water
right in Zimbabwe, likewise, involves the right of exclusion,
but only to some extent the right
of alienation (namely only through the sale of the land to which
that water right pertains).
Alienation is the prerogative of the Minister.
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Case 12-2: Challenges for water management in Colombia
Diana Guio (2004)
Water resources and water use in Colombia
Water Resources in Colombia are abundant. The water available
per capita per year is five times the world
average (IDEAM 2002). However, Colombia faces many water
problems. In addition to natural factors that
produce an unequal distribution and regulation of resources,
concentration of water demand over the Caribe
basin, mainly in the Magdalena-Cauca watershed (see figure 14-2)
is the main cause of water problems.
Figure 12-1 Main Rivers in Colombia [Source: Ministry of
Environment 2004]
The latter watershed has 22,5% of country surface area and
produces 10,6 % of the available water. But the
water is demanded by 70% of the inhabitants (nearly 31 million
people) and by economic activities that
generate 85% of GNP (Ministry of Environment 1996). The four
main industrial corridors, most of the
hydropower plants (with and without dams) and most of the
irrigation projects are located in the basin.
Water demand is concentrated in four sectors: agriculture (37%),
households (59%) and industry (4%). The
national water extraction was 8,9 km3/year (FAO 2000 - data
1996). This demand involves a mixture of
unsustainable social practices that reduce the present provision
and access of water resources. As a
consequence, the people suffer diverse water problems that are
summarized in Table 12.2.
Water Management Problems
There are serious problems of water management in Colombia. The
effectiveness of the water institutions is
low due to its poor problem-solving capacity, legal profusion
and instability, dispersion of duties, continuous
changes into the water organisations, poor coordination, limited
information management, weak integrated
forecasting and planning, fragmented decision-making, limited
communication among sectors and weak
financial management are the main problems.
TToo OOrriinnooccoo
RRiivveerr
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WATER PROBLEMS
ASSOCIATED TO WATERSHEDS AND RIVER CONDITIONS
Problems associated with water availability Reduction of water
availability Illegal appropriation of water sources Problems to
access water resources Intensive use of aquifers
Water related disasters River floods Wastewater floods
Avalanches Landslides associated with rainy periods Droughts
Reduction of Navigability
Problems in the relationship water-land Land Change uses in
sensitive areas strongly related with
water regulation
Water related ecosystem damages Damages to water related
ecosystems (lakes, wetlands,
paramo, aquatic ecosystems, riparian forest) Conflicts among
entities about who and how do solve the
problem
Pollution Contamination of surface waters Contamination of
groundwater
ASSOCIATED TO SERVICE DELIVERY/ CONDITIONS IN EACH KIND OF
USE
Drinking water Insufficient coverage of services Illegal
collection of water Informal collection of water Interruption of
services Low water quality for human consumption Water losses
Financial problems
Sanitation Deficiency in sewage collection Deficiency in
drainage system Damages in sewage systems Low quality of effluents
Contract problems Financial problems
Irrigation Coverage of services Conflict of interest
Administrative problems Financial problems
Navigation Reduction of navigability
Hydropower Depletion of adequate conditions for generation
Conflicts with other sectors and communities
Fishery Reduction in yield
Figure 12-2 Clusters of water problems in Colombia
This means that
The capacity to acquire, use and produce knowledge about water
issues in an integrated manner is weak.
This capacity is vital to understand the problems, define the
solutions and learn lessons from managerial
experiences.
The capacity to mobilize support and promote dialogue is
limited. Water management is a multi-
stakeholder process, where there is a natural incongruence of
aim, interests and power among parties.
The best mechanism to deal with such complexity is based on
negotiation and dialogue. However, in the
Colombian case, the decision making tends to be sectoral, thus
fragmented. The inter-sectoral
communication and coordination is weak, and the sectors tend to
implement solutions without regard to
the interest of others.
In addition, water institutions have a strong interplay with
land, ecosystems and territorial development
institutions. Such institutions also have similar problems.
How Is Water Law Arranged?
Colombia does not have a unified water law. The main laws and
policies are related with environmental laws. In
addition, several sets of rules deal with aspects of integrated
water management.
The state is the owner of all sources of water. Hence, water is
an inalienable, public resource. Private
ownership is only possible when the water source naturally
evaporates or returns to ground in the owners
land. It also establishes that private ownership is lost after
three years of no water use. The state not only owns
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the waters but also the courses, the banks, the river banks up
to 30m, the glaciers and the subsoil layers that
contains groundwater.
The water use right can be acquired by direct use or by
administrative methods. In the first case, inhabitants
have the right to free use of water for basic needs exclusively.
In this case it is not possible to transport water
by pipeline or any other permanent method. In the second case,
water use concessions are possible by request
to the environmental authority. Such authority has the duty to
verify the water availability and determine the
possibility of new users, as well as determine the final water
concession. The concession is not tradable, but
the rights can be transferred. The concession period is defined
according with the use. If reallocation is
needed, the authority can modify concessions by resolution. The
requestor needs approval from the authority
if new terms of concession are wanted (Colombia 1974, 1978). The
use priority is as follows: Human
consumption, Irrigation, Livestock consumption, Industrial use,
Energy generation, Mining projects, Wood
transportation, Fishing and aquaculture, Recreation and aquatic
sports, Medicinal uses.
In special cases, it is possible to deny a concession of water
in order to conserve, restore and manage water
resources, or due to water quality problems.
How Is Water Management Arranged?
At national level, several agencies have duties related to water
use and water management. In Figure 12-3, the
structure of executive branch can be seen, including the related
ministries.
Figure 12-3 Executive branch structure. [Note: underlined,
organisms related to WRM. In bold letters, the
organisms with the main duties. In italic, the main organism
that administers the financial resources]
The Environmental Administration is organized as a system, where
water is one more of natural resources to be
managed. This system is called the National Environmental System
SINA. SINA includes the public, private and
communitarian organisations that work on environmental issues.
It also includes the rules and financial
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resources available in order to reach the sustainable
development goal. The SINA structure can be seen, with
modifications regarding WRM issues.
Figure 12-4 Water Management Organisational structure [Source:
Guio, 2004]
The Ministry of Housing, Environment and Territorial Affairs is
the organisation in charge of Natural resources
management, river basin management, land use, territorial
development, drinking water and sanitation in
order to safeguard the quality of environment and human
welfare.
The National Environmental Council is the inter-ministerial and
territorial coordination forum. IDEAM is the
assigned organisation in hydrology, meteorology and
environmental research (Colombia 1993).
The Autonomous Regional Corporations CARs - are decentralized
organisations that implement the
environmental policies at regional level. Regarding WRM, they
are in charge of the water concession process,
river basin planning and protection, water quality and quantity
monitoring, collection of water fees and taxes,
participation in water issues, advising municipalities and
departments on land use, territorial planning and
project formulation. CARs can also make infrastructural works.
At regional level, CARS also have a role in
prevention of and attention to disasters. Until 1993, CARs were
development corporations that covered only
some areas. After 1993, the entire country is covered by CARs
jurisdiction.
Key Challenges In Water Management
Colombia has several problems of general governance that affects
water resources management. The main
issues are:
There is a structural weakness of the justice system that
strongly reduces the effectiveness in the punitive
system linked to water resources management. Sanctions that
should be addressed by the judicial system
can take a long time, hence impact on illegal behaviour is less
than it should be.
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There are strong limitations for accountability. Since the
responsibilities are not clear in the law, it is
difficult to ensure accountability. In addition, the
surveillance organisations have capacity constraints to
address complaints from the public in a short time.
Corruption is widespread. Water related authorities at national
and regional level have been identified as
highly vulnerable to systematic corruption. This problem also
affects the justice system, legislative
authorities, ministries and surveillance agencies.
State capture by interest groups in order to influence decision
making process. More than 70% of
enterprises consider that state organisations favour private
interest to the detriment of public welfare.
There are illegal practices that are linked with internal
warfare and drug traffic that produce local or
regional inequities about the practice of rule of law
principle.
12.8 Towards Integrated Water Resources Management
As was already observed, most existing laws on water issues deal
with specific issues and do
NOT represent a comprehensive approach to water resource
management. They cover some
aspects of ownership, some aspects of pollution and some aspects
of water quality standards.
In some countries there is confusion on the rights of the state
and the rights of the individual
(India, Singh 1991). In other countries the laws differ from
state to state (USA, Leeden et al.
1990). In most countries there is no integration of existing
policies with existing laws and
institutions. In very few countries is there an attempt to
integrate the different aspects of
water resource management into one comprehensive document.
However, there is growing awareness that comprehensive water
resources management is
needed because:
fresh water resources are limited;
those limited fresh water resources are becoming more and more
polluted, rendering
them unfit for human consumption and also unfit to sustain the
ecosystem;
those limited fresh water resources have to be divided amongst
the competing needs
and demands in a society;
techniques used to control water (such as dams and dikes) may
often have
undesirable consequences on the environment; and
there is an intimate relationship between ground water and
surface water, between
coastal water and fresh water, etc. Regulating one system and
not the others may not
achieve the desired results.
Hence, engineering, economic, social, ecological and legal
aspects need to be integrated, as
well as quantitative and qualitative aspects, and supply and
demand. Furthermore, the
management cycle (planning, monitoring, operation &
maintenance, etc.) needs to be
consistent and integrated.
For these reasons it is important to have a comprehensive,
integrated approach to water
management and law at the local, intermediate and national level
(Caponera 1992, Koudstaal
Why is there a need for
integration?
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et al. 1992). An integrated approach is the only way to achieve
sustainable water resources
management. Chapter 5 has elaborated on the progress made on the
concept at international
level. Most developed countries are trying to implement this
concept in the domestic context.
Many developing countries have subsequently adopted policies on
integrated water resources
management, very often stimulated by aid agencies.
Even if a nation does draw up a policy plan for water
management, this does not mean that it
will be implemented and become operational. India prepared a
National Water Policy in 1987
which mandated equitable distribution of water resources and
sustained-yield use. However,
the policy had little effect because it was not embodied in
operational laws, rules and
administrative orders (Singh 1991). A policy must not only be
accompanied by laws for its
implementation but also by bodies to execute the obligations
imposed by the law.
Because policy planning alone cannot ensure implementation,
designing a comprehensive
legal framework for IWRM is not an easy process. It should
involve a critical appraisal of the
strengths and weaknesses of the existing legal framework and of
the institutional reality,
while having due regard for the local physical and social
conditions. The literature reveals
that there are a number of reasons for the success and failure
of IWRM in the developed
countries (see Table 12.1).
Table 12.1: Reasons for IWRM success or failure in Developed
Countries
Reasons for Success
1. Their economies respond to the regulatory instruments (e.g.
direct controls such as land use
plans and utility regulation, economic instruments -
prices, tariffs, subsidies etc. and encouragement of
self-regulation (Davis and Threlfall, 2006;
Dellapenna, 2009; Viessman, 1998).
2. Availability of and effective data collection networks, risk
management tools, e.g. for floods and
droughts and effective communication and
information process (Mitchell, 2006; McDonnell,
2008).
3. Participation relatively successful because of lower power
distance between various levels of society and
between sexes (Hooper, 2005).
4. Adequate capacity to enforce laws and regulations; good
monitoring (Galloway, 2003; Coulomb, 2002).
5. Ability to overcome vertical and horizontal fragmentation in
water management (Mitchell,
2006).
6. Existence of a strong enabling legislation based on
sustainable development (Rogers & Hall, 2003).
7. Application of IRBM institutional models (Hooper, 2005)
Reasons for Failure
1. Institutional structures not supporting
integration (Biswas,
2004; Margerum 1995:
41; Anderson et al,
2008). 2. Limited or no horizontal
coordination that
impedes efficient
implementation and a
very weak vertical
linkage with national
policy (Ballweber, 2006).
3. Too many issue at time leading to too many
implementing tools at a
time and adding to the
complexities (Mitchell,
2006; Hooper, 2006;
Allan, 2003)
Source: Boateng-Agyenim 2011.
Why are plans alone not enough?
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There are also several reasons for the success and failure of
IWRM in developing countries.
Table 12.2: Strengths and weaknesses of IWRM processes in
Developing Countries
Strengths
1. Allowing local water rights to work in the conservation of
water
resources and distribution of water
(through local negotiations,
agitations, customs and traditions
based on the principles of
enforcements of personal positive
behaviour and equity). Local rights
are participatory in operation, self-
regulatory, sensitive to the
vulnerable (e.g. widows & the poor),
and able to contain conflicts.
2. Improvement and modernization of irrigation and drainage
infrastructure
projects (local actions) since there is so much funding and
monitoring
by donor community together with
expert support/assistance.
3. Preparation and implementation of Integrated Water Management
plans
in selected/limited areas,
4. Relatively, richer urban centres where public water supply
systems
are under the ambit of direct
influence of the formal institutions.
5. Where top-down model management approaches which depends
on
professionals to lead the planning
process because they have clear
understanding of a collaborative
planning process and where
stakeholder inputs are needed
Weaknesses
1. Comprehensiveness requires huge administrative capacity and
financial
resources which are not readily available
2. Conflicting policies with some responsibilities of state
bodies
overlapping creating confusion over
implementation.
3. Definition of Acts not adequately capturing what is envisaged
in policy
documents
4. Existing formal water rights are complex to operateissued
under different water regimes and alien to pre-colonial Africa;
so many water users with flexible,
changing off-take structures leading to
difficulty in monitoring all abstractions
5. Central governments unwillingness to transfer water rights to
WUAs
6. Linking water management with conventional theories of
common
resource management. (In Sub-Saharan
Africa for example, water is more than a
common resource- it is a basis for life for agro- and pastoral
societies and its
allocation mechanism is firmly anchored
in the deeper socio-cultural and economic
context that cannot be simply understood
by mainstream economic, social, and
legal principles 7. Little connection of the water economy
with public systems and formal
organisations through which policies,
laws and water administrations operate.
8. Decentralisation not accompanied by changes in power
relations.
9. Limited ability to enforce laws and regulations
Source: Boateng-Agyenim 2011, based on Kidd, 2009, IWMI, 2007;
Sokile & van Koppen,
2004; Biswas, 2004; Cleaver and Toner, 2006; Mitchell, 2006;
Mostert, 2006; Davis and
Threlfall, 2006; Cairns, 2003; Bruns and Meinzen-Dick, 2003;
Berck, 1996; Jaglin, 2002;
McDonald and Ruiters, 2005; Hearne, 2004; Ballweber, 2006; Hall,
2009; Dellapenna, 2009.
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Structural and regulatory functions
The peculiar characteristics of water stem from its unique
physical, chemical and biological
attributes, and its crucial environmental, economic and social
roles for which there are often
no substitutes. This places a heavy burden on water rights
systems, as these systems are
expected to strike a balance among the different demands and
requirements, informed by
clearly defined principles.
Once the principles of water resources management have been
clearly defined in a policy, a
country may review its laws and regulations, and formulate a new
legal framework. A legal
framework should perform both a structural function and a
regulatory function. The
structural function determines the manner in which private users
will relate to the resource,
and to other users. Clarity, security and transferability are
three main attributes of this
function, and should be reflected in the contents of permits and
rights to water in terms of
access, exclusion and alienation. The regulatory function of a
legal system aims to defend
first and second order policy principles, and will enshrine
principles such as equity,
efficiency and ecological integrity.
When setting up a legal framework for Integrated Water Resources
Management, the
following aspects may be addressed: international catchment
management, integrated
planning, water rights or permits, arbitration and appeal,
control, policing and sanctioning,
institutional development, financial accountability, delegation
and decentralisation,
participation of water users and stakeholders, commercialisation
and privatisation, demand
management, standards for water quality, emission standards,
safety standards, financial
arrangements. Many of those aspects are discussed in this
unit.
When society gets more complex, with an increasing and more
diverse water use, a legal
framework for water resources management needs more
differentiation and flexibility.
Normally this requires functional differentiation between
constitutional issues (related to
property rights, security, arbitration), organisational issues
(regulation, supervision, planning,
conflict management), and operational issues (water provision
etc.) (World Bank 1993).
These issues are handled at three different levels:
Constitutional level: the activities being governed by
conventions of international
organisation, bilateral or multilateral treaties and agreements,
the national
constitution, national legislation or national policy plans.
Organisational level: activities at this level are defined by
(federal) state regulation,
ministerial regulation, regulation or plan of a functional
public body (national water
authority, (sub) catchment authority), provincial regulation or
plan.
Operational level: activities being governed by subcatchment-,
district-, town
regulations, bye-laws of semi-public or private water users
organisations etc.
The above ideas and insights allow some general remarks to be
made on the institutional
requirements for integrated water resources management. The most
important issue in
dealing with water resources is to ensure an institutional
structure that can coordinate
What are the demands on a
legal framework?
What are the concerns with
regard to tradeable
rights?
At which levels are legal
arrangements necessary?
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activities in different fields that all have a bearing on water.
Linking structures are crucial.
Through a process of vertical and horizontal coordination it is
possible to integrate different
aspects of the water issue at different levels. Linking can be
facilitated if a countrys water is
managed following hydrological boundaries (river basins, which
may be subdivided into
catchment areas and sub-catchments).
Another important issue relates to the allocation or
distribution of water rights in a society.
As good quality water should be treated as a scarce resource,
very often the competing needs
in a society have to be balanced and prioritised. This obviously
requires criteria which often
derive from first order principles, such as efficiency (economic
criteria), equity (social
criteria) and ecological integrity (environmental criteria). An
institutional structure that
allocates water will have to be able to consider these criteria,
weigh them, and come to
allocation decisions in a transparent manner.
When managing water resources, there is a choice of how to
delegate authority over water.
The choice is between a centralised, a deconcentrated, and a
decentralised water authority.
A centralised water authority regulates all activities from one
central place. If the central
authority is located in different places, this leads to
deconcentration of the central authority.
If the central authority delegates responsibilities to regional,
basin, or local authorities this
leads to a decentralised water management system. The growing
complexity of water
management induces a need for management at the lowest
appropriate level (also known as
the subsidiarity principle), resulting in the delegation of
functions to the decentralised
organisational (regulatory) and operational levels. In general,
the organisational (or
regulatory) level may have a mandate over a river basin, while
at the operational level
concessions may have been delegated to sub-catchment areas or to
user groups
(municipalities, irrigation districts).
Once agreement exists over what type of functions and decisions
can best be made at what
level, a next policy option is that of privatisation.
Operational functions often involve the
provision of specific services in water sub-sectors, such as
irrigation and drainage, water
supply and sanitation, and energy. The production function may,
in principle, be privatised;
but only if the nature of the good (or service) is fit for it,
and if governments regulatory
capacity is strong enough to prevent monopoly formation or other
market failures.
Financial and economic arrangements are complex issues. The
maxim water is an
economic good and should be priced according to the principle of
opportunity costs, as well
as the user pays and polluter pays principles carry within them
a danger, especially in
countries lacking sufficient resources and with a skewed
distribution of wealth. In such
countries the user pays principle may boil down to who can pay
is allowed to use or
pollute water. Because of historical inequities in society, this
may result in a large group of
the population having limited access to water resources. This
often creates severe social
problems and should be considered unconstitutional because it
violates a first order principle
(equity). Therefore a balance has to be found between water
pricing which ensures economic
sustainability on the one hand, and the social requirement of
sufficient access to clean water,
How can authority be distributed?
What are the risks of the
user pays and polluter pays
principle?
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on the other (i.e. efficiency versus equity). Instruments that
may assist in achieving a balance
between efficiency and equity include:
recovery of real costs by functional (catchment) agencies;
financial independence (and accountability) of implementing
agencies; and
water pricing by means of increasing block tariffs, and other
forms of cross-subsidies.
A wider concept than water pricing and cost recovery is demand
management, which is the
use of economic and legal incentives in combination with
awareness raising and education to
achieve more desirable consumption patterns, both in terms of
distribution between sectors
and quantities consumed, coupled with an increased reliability
of supply.
Environmental sustainability need not conflict with the
principle of economic sustainability
in the sense that activities not priced often waste water
resources, if not the resource base
itself. In addition, environmental costs or environmental
externalities should be clearly
accounted for in economic impact assessments, although this is
often not properly done. This
points to the need for integrating the assessment tools, as
suggested by UNEP (1997):
assessments have to be carried out of the likely environmental,
economic, and equity impacts
of any water resources measure or development, the so-called
EIA3. The vital inclusion of
land use appraisal in water management assessment studies is
often also omitted. Experiences
in the field of environmental protection or environmental
reconstruction show that positive
incentives (e.g. subsidies) for practices that restore the
ecology are rendering more effect than
negative incentives (sanctions, fines) on practices that damage
the environment.
Another prerequisite for success is the involvement and
participation of water users and other
stakeholders. Control without consensus is hard, if not
impossible, to reach. The basic
premise should be: those who have an interest in the water
resource and benefit from it have
the duty to contribute to its management and upkeep (in money
and/or in kind) and have the
concomitant right to participate in decision-making. This leads
to the maxim of the water
boards in The Netherlands: interest taxation representation.
Moreover, the wider public may play an important role in the
difficult process of monitoring
this fluid and fugitive resource; reference is here made to the
locus standi principle, and to
the important role played by voluntary associations and pressure
groups.
Even a perfect legal and institutional framework (assuming that
this could ever exist) cannot
function without motivated people with sufficient awareness,
know-how and skills. Human
resources are scarce. It requires investment in (further)
training to build up and maintain the
resource.
12.9 Conclusion
This unit has shown that within specific countries there are
multiple layers of institutions and
there is no guarantee that the new institutions replace the
older ones. This is important to
How can equity and efficiency be balanced?
How can environmental and economic
tensions be dealt with?
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keep in mind in designing new institutions. Also it has been
shown that each choice of
allocation has it benefits and drawbacks
12.10 New Concepts and Terms Used
Integrated water resource management Priority of use
Proportional water rights
Public trust Tradeable water rights Usufructuary rights
12.11 References and Further Information
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