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The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag. Page 1 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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  • The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag. Page 1

    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.

  • The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag. Page 2

    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?

  • The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag. Page 6

    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

  • The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag. Page 7

    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?

  • The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag. Page 9

    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.

  • The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag. Page 10

    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

  • The course material has been developed by Prof Joyeeta Gupta, Frank Jaspers and Prof. Pieter van der Zaag. Page 11

    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

    12.11.1References

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    Viessman, Jr. W. (1998). Water Policies for the Future: Bringing it all together. Water Resources Update, 111, 104-110.

    Wolf, A.T., 2000, Indigenous approaches to water conflict negotiations and implications for international waters.

    International Negotiation, December

    World Bank, 1993, Water resources management; a World Bank Policy Paper. World Bank, Washington DC

    12.11.2Recommended reading

    FAO, 2003, Preparing national regulations for water management Principles and practice. FAO Legislative Study No 80,

    ISSN 1014-6679

    World Bank, 1999, Initiating and Sustaining Water Sector Reforms: A Synthesis [South Asia Rural Development Series

    1999/12], ISBN 0821344609