NO 2 AUGUST 2016 IBA ANNUAL CONFERENCE, …WATER LAW NEWSLETTER 1SEPTEMBER 2015 W ater Law News Newsletter of the International Bar Association Legal Practice Division NO 2 AUGUST

WATER LAW NEWSLETTER SEPTEMBER 2015 1

Water Law News Newsletter of the International Bar Association Legal Practice Division

NO 2 AUGUST 2016

IBA ANNUAL CONFERENCE, WASHINGTON, DC, 18–23 SEPTEMBER 2016

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WATER LAW NEWSLETTER AUGUST 2016 3

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Newsletter Editor:

Kelvin WongAllen & Gledhill, [email protected]

IN THIS ISSUE

From the Chair 4 José Luis Vittor

From the Editor 5 Kelvin Wong

Committee Officers 6

IBA Annual Conference Washington, DC, 18–23 September: Our Committee’s sessions 7

Articles

Brazil

Water – shortage, pollution and legal protection in Brazil 8

India

National Water Framework Law: India’s push for water reforms 13

Spain

Technological and financing challenges faced by the water sector in Spain and some possible answers 15

United States

What COP21 means for water lawyers 18

Flint, Michigan water crisis: lessons learned 21

This newsletter is intended to provide general

information regarding recent developments in

water law. The views expressed are not necessarily

those of the International Bar Association.

AdvertisingShould you wish to advertise in the next issue of

the Water Law newsletter, please contact the IBA

Advertising Department.

[email protected]

The International Bar Association’s Human Rights InstituteThe International Bar Association’s Human Rights Institute (IBAHRI), established in 1995, works to promote

and protect human rights and the independence of the legal profession worldwide. The IBAHRI undertakes

training for lawyers and judges, capacity-building programmes with bar associations and law societies, and

conducts high-level fact-fi nding missions and trial observations. The IBAHRI liaises closely with international

and regional human rights organisations, producing news releases and publications to highlight issues of

concern to worldwide media.

All IBAHRI activities are funded by grants and individual donations.

To help support our projects, become a member for just £40 a year –

less than £4 a month.

Visit www.ibanet.org/IBAHRI.aspx for more information, and click join

to become a member. Alternatively, email us at [email protected].

To read more on IBAHRI activities, download the IBAHRI Annual Review 2015 at

http://tinyurl.com/IBAHRI-AnnualReview2015.

Our work around the world

Work carried out in 2015 Work carried out prior to 2015

International Bar Association’s Human Rights Institute

Annual Review 2015

www.ibanet.org/IBAHRI.apsx @IBAHRI

/IBAhumanrights

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INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISION4

FROM THE CHAIR

José Luis VittorHogan Lovells US, Houston

[email protected]

From the Chair

On behalf of my fellow officers of the Water Law Committee, I am pleased to update you on the various activities of the Committee

over the past few months and the road ahead.The Section on Energy, Environment,

Natural Resources and Infrastructure Law (SEERIL) held its Biennial Conference in New York in April. The meeting was well attended by members of the Water Law Committee and addressed many topical issues of concern for resource and infrastructure lawyers.

The Committee is pleased to present two sessions at the IBA Annual Conference, to be held in Washington, DC in September. The first is ‘Water Wars – the next driver of global conflict: thirst and the rule of law’ on 20 September. The second is ‘Water makes the money flow: financing models for water supply and sanitation projects’on 22 September. The panels will be comprised of experienced lawyers, industry and corporate counsel representatives and the topics will have broad appeal to lawyers in the water, infrastructure and finance sectors. I would urge delegates at the Conference to attend the sessions and join in the discussions on the topics.

The Water Law Committee is continuing to work and cooperate with the Climate Change Justice and Human Rights implementation working group. The working group is looking at migration, tech transfer and food security. The Committee will expand its efforts to implement and enhance the relationship of our members’ activities with the working group.

Committee members will also have an opportunity to socialise with the officers and other members of the Committee at a dinner function during the week of the IBA Conference in Washington, DC. Please check the conference programme for details. Tickets to the dinner function typically sell out, so I encourage you to register early to avoid disappointment.

We will hold a Water Law Committee meeting in Washington to plan future Committee activities. All Committee members are encouraged to attend. The input and feedback from our members is essential to the success of the Committee so please do not hesitate to contact me or any of the other officers. We look forward to hearing your thoughts, suggestions or comments.

I am looking forward to seeing you all in Washington, DC.


FROM THE EDITOR

From the EditorKelvin WongAllen & Gledhill, Singapore

[email protected]

Governments around the world are facing increasing challenges in adequately catering for the water demands of their communities.

The water demands of rapid urbanisation and industrialisation exceed the capabilities of the existing water resources and water supply infrastructure available. The problem is compounded by unusual climatic conditions affecting widespread geographical areas.

The articles in this edition of the Water Law Committee Newsletter discuss a diverse range of water issues in different parts of the world, covering legal reform, case studies and the practical challenges needed to be addressed by legal frameworks:

• Brazil: Water – shortage, pollution and legal protection in Brazil

• India: National Water Framework Law: India’s push for water reforms

• Spain: Technological and financing challenges faced by the water sector in Spain and some possible answers

• United States: What COP21 means for water lawyers

• United States: Flint, Michigan water crisis: lessons learned

We welcome contributions on water issues to the newsletter; if you are interested in submitting an article for the next edition, please do not hesitate to contact me. We hope that you will enjoy this newsletter and we look forward to hearing from you.


COMMITTEE OFFICERS

Committee OfficersChairJosé Luis VittorHogan Lovells, [email protected]

Senior Vice-ChairJill WillisBest Best & Krieger, Los [email protected]

Vice-ChairBrendan ClarkMinter Ellison, [email protected]

Vice-ChairNicola DunleavyMatheson, [email protected]

SecretaryJuan Pablo RaigosaConsejo de la Judicatura del Estado de Nuevo Leon, [email protected]

Regional Representative South AmericaMauricio Costa du RelsWürth Bedoya Costa du Rels Abogados, Santa [email protected]

Newsletter EditorKelvin WongAllen & Gledhill, [email protected]

Membership OfficerGonzalo DelaveauHonorato & Delaveau, [email protected]

Yong-Jae ChangProgramme OfficerLee & Ko, [email protected]

Website OfficerMirella LechnaWardynski i Wspolnicy Sp K, [email protected]


Water Law Committee sessions

IBA ANNUAL CONFERENCE WASHINGTON, 18–23 SEPTEMBER 2016 – OUR COMMITTEE’S SESSIONS

Monday 1430 – 1730The commodity price downturn: would the industries survive?Presented by the Energy, Environment, Natural Resources and Infrastructure Law Section

The commodity price downturn that currently affects the oil, gas and mining industries has strongly impacted the markets. Companies have been forced to restructure their business, making huge efforts to reduce their costs, increase efficiency, divest under-performing assets, and so on. Despite these efforts, market capitalisation of companies has been heavily impacted. This panel will analyse the causes of the current downturn cycle, how long it is expected to last and how much it will impact the extractive industries.

Tuesday 1045 – 1230Water wars – the next driver of global conflict: thirst and the rule of lawPresented by the Water Law Committee

With water supplies getting drier across the world, this session will explore the legal consequences of long-term water scarcity; the panel will also analyse the economic impact of cross-border, regional and social unrest caused by such water wars and concomitant legal battles.

Thursday 1045 – 1230Water makes the money flow: financing models for water supply and sanitation projectsPresented by the Water Law Committee

This session will analyse, compare and contrast multilateral, bilateral and commercial financing models for water supply and sanitation projects. Washington, DC, as the headquarters of International Financial Institutions such as the World Bank Group and US government agencies active in the water sector, is an ideal location to bring together experts in financing water and sanitation to discuss the challenges to ‘getting it right’ with a mix of sovereign lending, grant funding and project finance adapted to project risk and affordability.


WATER – SHORTAGE, POLLUTION AND LEGAL PROTECTION IN BRAZIL

As society becomes more educated on the environmental and human impact of current water consumption, so too are the laws

that regulate it becoming more sophisticated. Scientific research indicates that only 2.5

per cent of the water covering the Earth’s surface is fresh water and 12 per cent of this is in Brazil. However, that 12 per cent does not indicate an abundance of this natural resource in the country. Freshwater availability in Brazil is concentrated in areas with low demography, which means that urban centres are remote from the places where water is available – 80 per cent of the naturally occurring fresh water is located in the Amazon basin, in the north of the country, where no more than eight per cent of Brazil’s population reside).

Meanwhile, poor water quality in Brazil is a real and serious issue. This is caused not only by the discharge of untreated industrial wastewater, but also by basic mistakes from the authorities regarding sanitation (resulting in the discharge of great volumes of untreated sanitary wastewater) and lack of protection for spring water areas and the vegetation that borders bodies of water.

The Brazilian authorities have thus legislated in order to protect the country’s water, prevent its pollution and ensure its sustainable use.

Water laws in Brazil

Powers to legislate and manage the waters

The Brazilian Constitution provides that surface and underground waters are public resources. The Union is solely empowered to legislate on the water; however, through special federal laws, states can receive delegated powers to legislate on it.1

In addition, when it comes to preventing hydro pollution and environmental protection of waters, the Union, states, the Federal District and municipalities are jointly empowered to legislate.2

Waters are managed by the Union or states and Federal District according to their

geographic locations. The Union manages waters that are located in the Union’s areas, that flow in more than one state, that make boundaries with other countries or that flow to or come from foreign lands, as well as those that flow in marginal lands and fluvial beaches.3 The states are empowered to manage all other waters not subject to the Union management.4

Further, since enactment of the Federal Constitution in 1988, the concept of hydrographic basins as territorial units – a major change in the previous concept of rivers as isolated geographic elements – drives water protection. Such change contributed to improvement of water management in the country, allowing for an integrated, rational system.

The Water Act

In line with the Constitution, the Water Act5 provides the federal water resources management system. According to the Act, water is a limited natural resource of public use with economic value, whose management must guarantee that the needs of the current and future generations are met.6

Taking into account the legal system, the Water Act implements management of water resources through hydrographic basins. Management of water resources is decentralised, with participation of the Government, users and communities.

Instruments in the Water Act to put it into practice are: (1) water resources plans; (2) classification of water resources according to their main uses; (3) water permitting; (4) usage fees; and (5) an information system about water resources.

Hydro pollution and contamination of waters

From a legal perspective, the driver to protect and prevent hydro pollution and contamination of waters is, undoubtedly, the ‘polluter pays’ principle. Such principle, enforced by the Federal Environmental Police,7 is an economic instrument aimed at preventing, avoiding, reducing, remediating and compensating for hydrological damages.

Water – shortage, pollution and legal protection in Brazil

Ana Luci Limonta Esteves Grizzi Veirano Advogados, São Paulo

analuci.grizzi@ veirano.com.br



The principle holds that the negative environmental consequences of a production process or rendering of a service must be borne by the individual/company that is benefiting from it. The point is for it to act as a lesson to those who directly or indirectly have caused the pollution.

As for quality of water in Brazil, it is still a work in progress. Considering that Brazil is a country with continental dimensions, that some of its states (such as São Paulo) have an industrial background and most others have an agricultural, livestock and mining background. That the effective management of environmental aspects and imposition of liability rules are relatively recent, the waters running near/inside urban centres are not in general of good quality.

Unfortunately, Brazil still lacks basic sanitation, causing its waters to have reduced quality and to be mandatorily subject to treatment before consumption. The overview on quality of waters is that the nearer they are to urban centres, the more polluted they are.

The biggest cause of poor quality nowadays is not industrial wastewater, but untreated sanitary wastewater. For example, in the state of São Paulo, one of its most populated cities, Guarulhos, still does not treat about 50 per cent of its sanitary wastewater and discharges it directly in natura into the region’s bodies of water.

As for industrial wastewater, environmental laws imposing treatment and establishing standards for discharge have forced companies to improve its management. Thus the volume of untreated industrial wastewater has been reducing over the years.

Despite this, sadly, we are still used to dealing with mistreatment of industrial wastewater. Some companies have not understood yet that hydro resources are limited and that the more polluted they are, the more expensive it is for them to have water for their own production processes. The interesting fact is that such companies have not realised that their lack of investment in achieving compliance with discharge standards is resulting in additional costs for them.

In view of such scenario, environmental laws and rules continue to be on the agenda of Brazilian environmental authorities in the effort to enhance water quality. Actually, Brazil is in a learning process to value its fresh water, especially drinking water.

Cost of water in the 21st century

Scarcity, degradation, inadequate use, lack of reuse, floods, droughts – all these have caused Brazil to better value its water. Internationally, water is recognised as a resource with economic value, besides being a social and environmental resource.

From a legal perspective in Brazil, the sustainable development principle was the basis of the enactment of the Water Act, which attributes monetary value to water, guiding its applicability and conditioning the notion of development.

While economic value was attributed to Brazilian waters, a relevant management instrument was created promoting protection and enhancing social consciousness, based on the user-pays principle.

Considering that the user-pays principle results from the polluter-pays principle, it is an economic instrument and supports the valuation of fresh water. The user-pays principle entitles users to continue consuming water as long as they pay for it.

Note that the user-pays principle, along with the polluter-pays principle, aims at ensuring the fundamental right to water. Due to the fact that the right to the water (when water refers to life) is not disposable, Brazilian authorities monitor and inspect the water in order to guarantee access to it by all individuals.

In this sense, the user-pays principle harmonises with the legal nature of the water (a fundamental right). Thus, the right to access water is not absolute. Its relativity is based on the acknowledgment of the economic value pertaining to the water and that has been granted by law. The Water Act8 provides that the water is a limited natural resource with economic value whose use can be charged for.

The Brazilian water payment system is controlled by hydrographic basins committees and is complemented by federal or state permitting for the use of surface or underground water as well as the discharge of treated sanitary and industrial wastewater.

According to Brazil’s Water Agency,9 the following basin committees have implemented charging criteria: four federal committees;10 all committees that govern rivers under the domain of the State of Rio de Janeiro11; in the State of São Paulo, committees of the basins of the rivers Sorocaba-Médio Tietê, Alto Tietê, Baixo Tietê and Baixada Santista; in the State of Minas Gerais, committees of the basins of the rivers



Velhas and Araguari; in the State of Paraná, committees of the basins of the river Alto Iguaçu and tributaries from the Alto Ribeira; all committees that govern rivers under the domain of the State of Paraíba; and some other states12 have implemented mixed instruments of fees and charges.

Shortage: the recent case in the Southeast of Brazil

From the beginning of 2014 to April/May 2016, the Southeast of Brazil, mainly the State of São Paulo, suffered a significant water shortage. Clearly, the main fact that caused the shortage was the low volume of rain; however, Brazil’s poor environmental protection of the vegetation bordering rivers, elevated deforestation, poor infrastructure system. As well as poor water management is has led to a significant crisis in the most economically important region of the country.

One symbol of the crisis was the drastic decrease in the ‘Cantareira system’, which is a pool of reservoirs constructed in the water spring areas of the Piracicaba basin, encompassing five rivers,13 and located in the North region of the city of São Paulo. Such system supplies water to 5.3 million people located in the North region, Central region and part of the East and West regions, as well as to six municipalities14 and part of four other municipalities.15

From 2014 to 2016, several measures were adopted by the Federal Water Agency, the São Paulo State Government, the São Paulo Sewage Company (SABESP)16 – a company incorporated by the State to supply water to the city of São Paulo, as well as to several municipalities that have entered into an agreement with SABESP – and the São Paulo Water Agency17 to manage the crisis and avoid a complete drought.

Meanwhile, the media was very active regarding the potential impacts of a severe water restriction in the State of Sao Paulo and reported alleged lawsuits18 and improvements to water management by users to avoid extra fees.19

This was a unique situation in Brazil: it was the first time the Government faced a serious water shortage. However, as of May 2016, the shortage was declared over. Despite this, SABESP’s current slogan in educational public campaigns perfectly summarises Brazil’s ongoing lack of water sustainability: “Water is not born by Taps.”

legal perspective: water supply as an essential service

When it came to the legal scenario during the crisis, the São Paulo Government had to deal with the following provisions:• The Brazilian Federal Constitution20

determines that public services must be adequately provided, meaning continuous21 rendering.

• The Water Act provides that in cases of water shortage the priority use of water must be for human and animal consumption.

• The National Guidelines for Basic Sanitation (NGBS)22 state that governmental agencies can issue regulations that may contain contingency measures to be taken in cases of emergency, such as a water crisis.

Pursuant to the Federal Constitution, each municipality has jurisdiction to organise and render, directly or under a concession or permission, the public services of local interest, which have the nature of being essential. Within such public services are water and sewage.23

Thus each municipality in the State of São Paulo may have water supply provided directly by a department of the local government or engage a third party, by means of a concession, for example, to render such services. For the city of São Paulo, SABESP is the company entitled to supply water.

Accordingly, continuity of water supply services is legally guaranteed (excluding exceptional situations) and must be duly accomplished by SABESP in the State of São Paulo.

Furthermore, from an administrative standpoint, Brazilian legal scholars also establish principles that shall be met while rendering public services, among which is the continuity principle.24

Thus both Brazilian Constitution and administrative legal scholars determine that public essential services, such as water supply, are extremely important and should not be subject to interruptions/shortages.

exceptional situations

Notwithstanding the above, ‘emergency situations’25 (to be declared by competent authorities) are exceptions in which the continuity of public services could be superseded. Interruption of water supply in emergency scenarios is also foreseen by the NGBS.26

Competent authorities can declare an emergency situation as a result of a



disaster, derived from intense and serious modifications to regular conditions (ie, drought) in a municipality, state or region.27 The emergency situation would require the establishment of a ‘special legal condition’ to guarantee compliance with temporary necessities of public interest.

The chart below describes the specificities that must be met for a declaration of emergency situation in Brazil:

Additionally, court precedents indicate that public services can only be interrupted or suspended with legal bases (emergency situation) and/or with detailed prior notice from the provider of the public service.28

legal review of tHe são paulo sHortage case

The São Paulo drought could have given cause to an emergency situation; however, competent authorities had not declared it.

By then, in view of the imminent collapse of the water supply system, the São Paulo Government enacted a new rule providing that inspection of use of water resources were subject to new rules.29

The publication of such rule aimed at strengthening the management system, increasing the risk of imposition of penalties for incorrect use of water resources, especially on activities that demanded high volumes of water.

NGBS30 also provides that during shortage situations that could lead to interruption of water supply, SABESP may charge consumers a contingency fee, in order to cover the additional costs incurred to provide water and basic sanitation, which was stipulated in São Paulo.

The fee applied to those who exceeded the average consumption previously incurred within the period of February 2013 to January 2014. If the consumption exceeded that average by no more than 20 per cent, a fee of 40 per cent over the total amount of the water bill was charged; if consumption

exceeded 20 per cent of the average, the fee was equivalent to 100 per cent over the amount of the water bill.31

In view of the scenario, legal recommendations for companies were to:(1) ensure compliance with use restrictions;(2) potentially invest in systems to optimise use,

such as: a. installation of systems to collect

pluvial water and reuse such water for secondary purposes (excluding consumption and direct contact with the human body); or

b. adapt the existing pluvial water collection system to reuse water that was regularly discharged in the public drainage system;

(3) drill wells to capture and use underground water. In this case, on the one hand, there was a bureaucratic step to be fulfilled with the São Paulo Water Agency: obtain the applicable construction and use permits; on the other hand, underground water could be cheaper than buying mineral water from private companies; and

(4) assess the possibility of choosing other alternative means of water supply, such as water trucks.

Conclusion: how to manage water quality and availability in Brazil?

The nature of the hydrological cycle, its limited capacity to auto-clean and the external factors that command its volume and flow. Alongside adequate environmental planning and management, enhancement of inspection measures followed by more severe penalties to reduce the discharge of untreated industrial wastewater, public planning and investment to ensure treatment of all sanitary wastewater, protection/revegetation of spring water areas and borders of rivers. These are essential aspects when discussing the availability and quality of water in Brazil. Such

Scenario Declared by Requirements Enforcement Period

Emergency situation

Municipal or state authorities

(i) A level I disaster(ii) Decree from: a. Municipal authority: In case of a situation that occurs exclusively in the limits of a specific municipality; b. State authority: In case the situation occurs in more than one city in the same state.

180 days after publication of the Decree



aspects, per se, indicate that management of water and pollution control demand shared liabilities by Government and individuals.

Referred shared liabilities entirely rely on enhancing Brazilians’ environmental consciousness and on authorities truly invested with public interest to improve environmental/water management and create and execute integrated policies for sustainable development.

Finally, from a legal perspective, the Brazilian legal water/environmental system in force is valid and comprehensive. However, it still lacks full effectiveness, which leads again to the necessity of a Government invested with public interest and capable of integrating the environmental and social aspects of economic development.

Notes1 Federal Constitution, Article 22, IV.2 Federal Constitution, Article 24, VIII, and 30, I.3 Federal Constitution, Article 20, III.4 Federal Constitution, Article 26.5 Law No 9,433/1997.6 Articles 1 and 2.7 Law No 6,938/81.8 Articles 1 and 5, IV.9 Agência Nacional de Águas (ANA). See www2.ana.gov.br/

Paginas/servicos/cobrancaearrecadacao/cobrancaearrecadacao.aspx.

10 Basin from the Paraíba do Sul river; basin from Piracicaba, Capivari e Jundiaí rivers; basin from Rio São Francisco river and basin from the Rio Doce river.

11 The Guandu river, the Iha Grande bay, the São José Lagoon, the Macaé river, the Ostras river and the Itabapoana river.

12 Ceará, Bahia, Pará and the Federal District.13 Rivers: Jaguari, Jacareí, Cachoeira, Atibainha and Paiva

Castro.14 Municipalities: Franco da Rocha, Francisco Morato,

Caieiras, Osasco, Carapicuíba and São Caetano do Sul.15 Municipalities partially attended by the Cantareira system:

Guarulhos, Barueri, Taboão da Serra and Santo André.16 Companhia de Saneamento Básico do Estado de São

Paulo.17 Departamento de Águas e Energia Elétrica do Estado de

São Paulo – “DAEE”.18 See www1.folha.uol.com.br/cotidiano/2015/01/1582678-

em-meio-a-crise-advogado-ganha-na-justica-direito-de-ter-agua-o-dia-todo.shtml and http://educacao.uol.com.br/noticias/2015/02/17/escolas-de-sp-investem-em-cisternas-para-lidar-com-falta-de-agua.htm.

19 For instance, Article 46 of NGBS provides for potential increase in values charged for use of water in case of water restrictions.

20 As provided by article 175. 21 According to Federal Law No 8,987/1995, article 6,

Section 1o.22 Law No 11,445/2007.23 Federal Constitution, Article 30, V. 24 Such principle aims at protecting users from potential

interruption of public services. “The public service must be provided in a continuous manner, which means that it is not interruptible. This is the importance that covers the public service, which means that it should be available to users with quality and regularity, as well as efficiency […] Such continuity seems in some cases absolute, meaning services that meet permanent needs, such as water supply, gas, electricity. Therefore, users can take appropriate legal action in case a public service is not appropriately rendered, or in case of improper termination of such service, even by means of judicial mechanisms with quickly procedure, such as writ of mandamus and injunctions.” (Bastos, Celso Ribeiro in Curso de Direito Administrativo, 2nd ed, 1996, p165.)

25 Federal Law No 8,987/1995.26 Article 40, item I of NGBS.27 As provided by Article 2o, Section 1o of Ordinance No

01/2012 from the Ministry of National Integration.28 “WATER SUPPLY. Possibility of service’s interruption in specific

situations (emergency situations or after notice in cases of user’s failure to pay or for technical or safety reasons) given that referred hypothesis have been broadly accepted by Brazilian Courts, in accordance with Federal Law No 8,987/1995 and other applicable rules. It is mandatory to comply with determined requirements for suspension of water supply, and the interruption is not caused by debt but by alleged fraud in the water meter, which was uniquely determined by the concessionaire. Lack of proof of violation in the water meter in this case. Irregular interruption on water supply due to debt caused by violation in water meter determined. Previous decisions in the same sense issued by Superior Court of Justice and the São Paulo’s Court of Justice. Appeal has not been accepted.” (São Paulo’s Court of Justice – TJ/SP. Appeal No 0009699-66.2008.8.26.0153, reported by Francisco Loureiro and judged on 22 September 2011.)

29 Decree No 61,117/2015. 30 Article 46.31 Such fee ended on April 2016.


NATIONAL WATER FRAMEWORK LAW: INDIA’S PUSH FOR WATER REFORMS

According to a recent UN study, India’s population is set to exceed that of China and become the world’s most populous country by

2022. With such steady growth in population, India will need to be adequately equipped to meet the food and water requirements of its people. India has suffered back-to-back droughts over the past couple of years, with reservoir levels hitting record lows as a result of dwindling monsoons which, in turn, has resulted in a consistent decline in the growth of the agricultural sector. Furthermore, the dependence on India’s water resources is set to increase with the Union Government’s recent announcement to develop 98 cities into ‘smart cities’ and increase the promotion of industrialisation.

Under the Indian Constitution and the federal system of India, water is a state subject,1 whereby each state within the Union of India has the power to legislate on: ‘Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I.’ Thus each state has the jurisdiction and power to legislate in relation to management of its water resources. Accordingly, various states have imposed different and contradicting positions on the ownership and use of water, which has given rise to many issues. Currently, under the Indian Constitution, the Union Government’s interference in a state’s management of its water resources is limited to adjudication of any dispute with respect to the use, distribution or control of the waters of inter-state rivers.

Origin of the national water framework law

Taking cognisance of the problems plaguing the water sector in India, the Union Government formulated the National Water Policy (2012) (the ‘Water Policy’) as an initiative to address these concerns. The Water Policy enjoined all relevant stakeholders (Union Government, state governments and local municipal bodies) to help resolve the issues surrounding the water

industry and set out a structure to enable smooth formation of laws by the Union and state governments and the local municipal bodies. Most importantly, the Water Policy sought to bring a national framework law for water as an umbrella statement of principles that would serve as a base for the legislations introduced at state level for sustainable use and management.

Following through on the Water Policy’s objective of having a national framework law, the Ministry of Water Resources presented the Draft National Water Framework Bill, 2013 (the ‘Water Bill’). Which incorporated inter alia, several principles set out in the Water Policy. While the Water Bill is yet to be passed by Parliament, the Union Government did, at the National Water Summit 2016, indicate that with certain modifications including strengthening the role of the Central Water Commission its passing will be expedited.

Salient features of the Water Bill

For the very first time in India, the Water Bill has provided an express recognition of the right to water and transparent administration at all levels so as to ensure that water, being a common pool resource, is managed by community-based institutions. Water has now been recognised as a sustainer of human life that shall take precedence over other uses of water, such as agricultural, industrial and commercial. The Supreme Court of India in M C Mehta v Union of India 2 stated that the fundamental right to life includes the right to safe and sufficient water and sanitation. Giving statutory basis to this proposition, the Water Bill provides each individual’s right to a minimum quantity of potable water for essential health and hygiene, which shall not be less than 25 litres per day. While this is a laudable step aimed at providing much-needed water supply, capping the minimum quantity to a mere 25 litres tempers its impact.

Another groundbreaking provision of the Water Bill is the recognition of the role of the respective state government as a ‘public trustee’ of water. The Water Bill is categorical in stating that the responsibility

National Water Framework Law: India’s push for water reforms

Vandana Shroff Cyril Amarchand Mangaldas, Mumbai

[email protected]

Alice GeorgeCyril Amarchand Mangaldas, Mumbai

[email protected]


NATIONAL WATER FRAMEWORK LAW: INDIA’S PUSH FOR WATER REFORMS

of the state government as a public trustee and as a watchdog to ensure that the right to water is not affected will remain despite corporatisation or privatisation of water resources. The primary intent of this is to create community sentiment in relation to the use and management of water by entrusting the general public with responsibility for sustainable management.

Public/civil bodies also now have a role in the planning and management of projects that may have a significant effect on the environment. Local authorities such as municipal corporations and water user associations will now play an active role in the planning of such projects. The Water Bill also makes a special mention to take into consideration the unique needs and aspirations of women and other vulnerable members of society during planning. Though this is a welcome change and a step towards lifting the lower stratas of society and women, ensuring that such measures are taken will be a challenge to the authorities.

Role of the private sector

Being a landmark bill, the Water Bill also dwelt on the role of the private sector and the responsibilities it seeks to impose on it. For instance, industries in the water-short regions are allowed to either withdraw only the ‘make-up’ water, or return treated wastewater to a specified standard to the hydrological system. Further, filing of annual ‘water returns’ by major water-using businesses (those consuming more than one million cubic metres in a year) has been made mandatory; such water returns contain information such as use per unit per produce, effluent discharge and reuse details, etc. The Water Bill also seeks to implement a system wherein water accounts and water audit reports will be published to the public in an attempt to halt the reckless use of water in areas of shortage.

In order to maintain the spirit of sustainable management and for improved service delivery, the private sector may be involved via the public-private partnership model, with penalties for failure to comply with the state and local legislations, regulatory control on prices charged, service standards and full accountability to the democratically elected local bodies. Gradual privatisation will indeed serve as a boon to the water sector due to increase in service standards and accountability across all stakeholders.

While seeking to categorise water as a community resource, the Water Bill also regards it as a commodity by introducing the concept of water pricing. Now, urban water supply will be 100 per cent metered and priced on a volumetric basis, and reviewed periodically, thereby plugging a major loophole. An independent water regulatory authority will be set up in each state to ensure fair pricing. Differential pricing will be adopted for water used for drinking and water used for sanitation provided that, as a pre-emptive need, a minimum quantity of water will be free to eligible households. While the Water Bill recognises the need for differential pricing of water on the basis of its utility, the criteria for fixation of tariffs have not been provided for in the Water Bill. Since the regulatory authorities responsible for fixing the prices for water are state-specific, this may lead to different states adopting different criteria for the fixation of such prices. This is likely to dent private sector interest in the water sector.

It is pertinent to note that the concept of water pricing in a country such as India, where water is deficit, will only be a successful tool for bringing about efficient water use, if adopted after extensive research into the water needs of the population in each state. The private sector can play a crucial part in this area as it is technologically equipped and skilled to conduct feasibility studies in determining the pricing schemes to be adopted independently for each state. However, privatisation of such an essential function as the management and distribution of water, which has always been vested with the states, should be done with caution as profit-making could jeopardise the very purpose of the Water Bill, which seeks to ensure ‘equitable access to water for all and its fair pricing’.

Areas of concern

Some critical aspects that the Water Bill has failed to provide for include a mechanism for dealing with inter-state river water disputes, which have plagued the Indian economy since independence. The issue of inter-state river water basins was briefly touched upon but lacked the manner and procedure by which such disputes can be resolved at the earliest stage and not be repeated in the future. Most of the inter-state water disputes in India have taken years to resolve. Further, states’ non-compliance with awards has been


FLINT, MICHIGAN WATER CRISIS: LESSONS LEARNED

a major cause of failure of settlements in such disputes. In this regard, the Water Bill could have provided for an effective and binding mechanism for speedy settlement and strict consequences in the event of non-compliance with awards. Furthermore, while the Water Bill instructs the state and local municipal bodies to enact legislation for inter-state rivers and basins in order to amicably resolve disputes, it fails to set out the principles and guidelines that can be adopted by states and municipal bodies in relation to water sharing and better coordination.

Another major drawback of the Water Bill is that it lacks a central administrative machinery or institutional structure to ensure overall compliance. Therefore an independent monitoring body should be established at Union level to monitor implementation and coordination with the states. The modifications suggested for the Water Bill by the current Government are on similar lines, wherein the role of the Central Water Commission will be strengthened. The Commission is entrusted with general responsibilities for initiating, coordinating and furthering in consultation with the state governments concerned schemes for control, conservation and utilisation of water resources throughout the country. Further, incorporation of prohibitive penalties to discourage reckless use will give teeth to this

umbrella legislation. Though the Water Bill brings in full accountability of the private sector to the elected local bodies, this accountability does not pass on from the local bodies to the state governments and thereafter to the Union Government.

Conclusion

The introduction of the Water Bill in India, though a decade late, was not an easy step. Success of the Bill hinges on the respective state governments adopting and implementing it. The task now for the authorities is to ensure compliance and effective adoption of the policies and principles set out in the Water Bill and Water Policy. India has an immense task ahead in managing its water resources. Constant research and development in the area, coupled with strong implementation of the Water Bill (as and when enacted), will be key to meeting India’s long-term goals of achieving sustainability in the water sector.

Notes1 Entry 17 of the State List (List II). The Seventh Schedule

in the Constitution of India provides for Union, State and Concurrent Lists. The State List enumerates the various items on which the respective state governments have powers to legislate.

2 2004 (12) SCC 118.

It seems unimaginable in one of the wealthiest countries in the world that any citizen would be deprived of access to safe, clean potable water. This is in fact what

happened to the residents of Flint, Michigan, who were exposed to inappropriately treated river water contaminated with high levels of lead. While federal and state resources pour into Flint to restore water quality, improve water distribution problems, and assess the health impacts of lead exposure on residents, investigations are ongoing to figure out what happened here. How was this situation allowed to unfold under the watchful, yet

some would say neglectful, eye of the US Environmental Protection Agency (EPA), the Michigan Department of Environmental Quality (MDEQ), the City of Flint, and a myriad other governmental authorities that knew about, discussed the facts surrounding, and permitted the residents of Flint to continue to pay for and consume contaminated water.

Flint water crisis facts

During 2012-2013, Flint was evaluating a transition from the Lake Huron water

Flint, Michigan water crisis: lessons learned

E Lynn Grayson1

Jenner & Block, Chicago

[email protected]



purchased from the Detroit Water & Sewerage Department (DWSD) in favour of a more cost-effective option. Flint decided to build a pipeline to the Karegnondi Water Authority with an anticipated cost saving of $200 million over 25 years, and the City’s emergency manager so informed the state treasurer on 16 April 2013. The DWSD advised Flint that it planned to terminate the water supply agreement, effective April 2014. The proposed pipeline could not be built in the one-year timeframe before DWSD planned to cease providing water, so Flint needed an interim alternative water supply. The City decided to return to a water source previously used by the community in the 1960s – the Flint River. Water distribution started from the river on 25 April 2014. The MDEQ verified at the time that the Flint River met drinking water standards and informed residents it was safe.

Flint citizens started to complain almost immediately about the smell and colour of the Flint River water, which was 70 per cent harder than the prior water supply. In August 2014, E. coli and total coliform bacteria were detected in the new water supply, prompting boil water advisories. In January 2015, Flint water failed to meet Safe Drinking Water Act (SDWA) standards for total trihalomethanes (THMM). An organic chlorinated chemical compound that is formed as a by-product of the addition of chlorine to water that contains organic matter such as algae, riverweeds or decaying leaves. In February 2015, sampling from a Flint home revealed high levels of lead at 104 parts per billion (ppb) – the standard established by the EPA is 15 ppb. An investigation conducted by a science team from Virginia Tech confirmed lead in the water at 13,200 ppb.

On 24 April 2015, MDEQ advised EPA that no corrosion control treatment was in place at the Flint Water Treatment Plant.

On 13 July 2015, MDEQ advised there was no reason for concern following the leak of an EPA memo expressing concern over lead levels in the Flint River water supply. On 25 September 2015, Flint issued a water advisory concluding no level of lead is safe. On 2 October, Michigan Governor Rick Snyder issued an action plan including free water filters and water testing for Flint residents. On 16 October, Flint returned to the Lake Huron water supply.

On 14 December, newly elected Flint Mayor Karen Weaver declared a state of emergency over the high lead levels in the water supply.

In January 2016, both Governor Snyder and President Barack Obama declared a state of emergency for Genesee County (of which Flint is the principal city) related to high levels of lead in the drinking water.

Lessons learned: What went wrong?

What can we learn from the Flint water crisis? What does it say about the status of environmental protection in the US and those legally obligated to safeguard our public water supplies? What really happened in Flint and can it happen elsewhere in the US? Were Flint’s water problems exacerbated by the economically depressed racial justice community where these residents lived and worked? We know enough to consider some of the lessons learned to date.

Water regulatory oversight failures

A five-member Flint Water Advisory Task Force created by Governor Snyder released a preliminary report on 29 December 2015, finding that MDEQ bore ultimate blame for the crisis. The task force found that MDEQ failed to follow the federal Lead and Copper rule requiring optimised corrosion control treatment (CCT) and advised Flint that CCT would not be necessary for a year. The task force concluded that ‘the decision not to require CCT, made at the direction of MDEQ, led directly to the contamination of the Flint water system’.

A final report issued on 21 March 2016 found that MDEQ bears primary responsibility but also blamed the Michigan Department of Health and Human Services (MDHHS), the Governor’s Office and state-appointed emergency managers, finding them ‘fundamentally accountable’ for the water crisis.

While the task force focused on state entities, EPA bears at least some responsibility for the agency’s failure to act, particularly when confronted with critical data from one of its own water experts concerning high lead levels in Flint’s water. An agency water official identified problems in February 2015, continuing to update EPA leadership including an internal memo dated June 2015. EPA finally issued a SDWA emergency order in January 2016.

Ageing infrastructure

Ageing drinking water infrastructure played a critical role in the Flint lead-contaminated



water emergency. Flint failed to apply corrosion inhibitors when the water supply transitioned from Lake Huron to the Flint River. As a result, corrosive Flint River water caused lead from ageing pipes to leach into the water supply. In February 2016, Mayor Weaver announced that the city would remove and replace all water service lines containing lead piping at an estimated cost of $1.5 billion. Flint saved approximately $140 per day by not adding a corrosion inhibitor upon transitioning to river water.

Many understand that Flint may be a ‘canary in the coal mine’ signalling more problems throughout the US with ageing infrastructure. In 2013, the US received a ‘D’ in the drinking water category of the American Society of Civil Engineers Report Card for its infrastructure. The report found that most of the nation’s drinking water infrastructure is nearing the end of its useful life, with replacement costs estimated at more than $1 trillion. The Associated Press analysis of EPA data found that nearly 1,400 water systems serving 3.6 million Americans exceeded the federal lead standard at least once between 1 January 2013 and 30 September 2015. The affected systems are large and small, public and private and include 278 systems that are owned and operated by schools and daycare centres in 41 states.

Environmental justice

The concept of ‘environmental justice’ as defined by EPA is the fair treatment and meaningful involvement of all people regardless of race, colour, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies. In short, your health should not suffer because of the environment where you live, work, play or learn, and all citizens should receive environmental protection efforts appropriate for their communities. Environmental justice, also referred to sometimes as ‘environmental racism’, began as a movement in the 1980s with growing focus on the disproportionate number of polluting industries, power plants and waste disposal areas located in or near low-income or minority communities.

Flint’s residents are primarily black (56.6 per cent) and largely live in poverty (41.6 per cent). The task force called the water crisis a ‘clear case of environmental injustice’.

According to Virgil Bernero, the Mayor of nearby Lansing, Michigan, the state gave Flint the cold shoulder when the water situation was developing and he commented in an interview with the Huffington Post dated 2 February 2016: ‘The response was muted. The state response was sluggish and irresponsible. That does have something to do with the people being voiceless. When those voices started saying, “This water is discoloured, it doesn’t smell right, I’ve got a rash, my kid isn’t responding properly”, those voices were not heard. And that does have something to do with being poor and a minority, frankly.’

Current status: Water for Flint residents

Flint residents are using filtered or bottled water for consumption as the recovery of the water distribution system continues. Flint returned to using water from Lake Huron delivered by the Great Lakes Water Authority in October 2015. Newly implemented corrosion control strategies will allow a protective coating within water service lines to build up over time to acceptable levels. EPA is sampling to ensure the effectiveness of the corrosion control measures being taken. In addition, Flint residents are strongly encouraged by EPA to implement the ‘Flush for Flint’ best practices to promote improved flushing of the water service lines in order to remove loose lead particles and to assist with the protective coating of the pipes. The best practices included running cold water at the highest flow in the bathtub and kitchen faucet for five minutes every day for a two-week period. EPA warned residents not to drink, cook or brush teeth with unfiltered water because it is not safe, but advised that residents can wash hands, bath or shower with unfiltered water.

The emergency declaration allowing the use of federal funding will end on 14 August 2016. Governor Snyder announced on 2 June that the State of Michigan will pay for the bottled water, filters and home testing kits needed by Flint residents. At this time, it is unclear when Flint’s public water supply will be considered safe for all potable uses.

Conclusion

More is yet to be uncovered about the adverse impact of ineffective federal and state regulatory oversight, Michigan politics, and dire financial distress on the quality of Flint’s drinking water supply. Numerous


TECHNOLOGICAL AND FINANCING CHALLENGES FACED BY THE WATER SECTOR IN SPAIN AND POSSIBLE ANSWERS

investigations are under way and certain responsible parties have been suspended, terminated and even criminally charged.

On 17 February 2016, Governor Snyder testified along with EPA administrator Gina McCarthy before the House Committee on Oversight and Government Reform, and in his opening statement probably provides the best explanation for the Flint water crisis: ‘Let

me be blunt: this was a failure of government at all levels – local, state and federal officials – we all failed the families of Flint.’

Notes1 E. Lynn Grayson is chair of the Environmental

Workplace Health & Safety Practice at Jenner & Block in Chicago, Illinois.

T he water sector in Spain faces two key challenges: the guarantee of water supply in the Spanish regions that are subject to hydric stress and potential

water shortages. The fulfilment of the high standards of purification and treatment of waste water imposed by European and Spanish regulations.

These two challenges have become priorities for the Spanish authorities but they also bring new opportunities for the water sector.

On the one hand, the guarantee of water supply is critical for the population and the economy. Not only would the welfare of a society be jeopardised if the water supply were subject to uncertainty, but such uncertainty would also create an obstacle to foreign direct investment, domestic capital investment or other forms of economic development, particularly in industrial and tourism sectors. Consequently, the guarantee of water supply is an important issue within the Mediterranean area. A region that is not only periodically threatened by episodes of drought and where the sources of rainwater and natural water are limited but is also dependent on a large volume of water given its high population density and significant tourism, industry and agricultural sectors.

On the other hand, Spanish public authorities are under an obligation to ensure that waste water is adequately treated and

purified through sewage systems and treatment plants. European and Spanish regulations impose strict rules on water pollution reduction. Failure to comply with these rules can entail a severe regime of penalties and public liability, either for the public authorities or the public officials who may be held personally accountable. Accordingly, water purification is a major concern for the public authorities. However, the current financing sources for the waste water sewage system and treatment plants are not always sufficient to ensure that such plants can satisfy the requirements of the aforementioned regulations operationally.

The two challenges outlined above require innovative solutions from a technological, financial and regulatory point of view. These innovative solutions may require a more holistic and integrated approach towards the challenges and their respective needs and synergies.

The current regulatory and financial framework of the water sector

The current Spanish regulations treat water supply and the waste water sewage systems and treatment plants as independent activities and assume that these activities are operated separately from each other. However, this approach can restrict the potential benefits and synergies of the treatment of both activities as a part of an integrated system.

Technological and financing challenges faced by the water sector in Spain and some possible answers

José Alberto Navarro ManichUría Menéndez, Barcelona

[email protected]



Water supply

The water supply activity includes the collection of water from rivers and natural reserves, its purification as drinkable water and its distribution to the final consumers (population, industries, etc).

In Spain, this activity is regulated as a public service and is managed by local authorities (municipalities). These local authorities typically grant long-term (up to 50 years) concession contracts to private operators, which entail an exclusive right to operate the public service in a specific territory. By virtue of these concession contracts, private operators carry out the construction of the infrastructure required for the public service, assume the maintenance of such infrastructure, ensure the quality of the resulting drinking water and provide water directly to every consumer.1

The water supply as a public service is financed by a tariff paid by every consumer, which is calculated according to the volume of water used. This tariff has to ensure that the costs of the public service are sufficiently covered. Therefore the tariff has to cover the costs of amortisation of the infrastructure construction, the water collection process and the management of the infrastructure and the public service.2

The tariff is collected by the operator of the service and, in general terms, constitutes its remuneration. Therefore the private operator of the public service is entitled to the earnings of the tariff, which will form part of the commercial gain under the concession contract.

Waste water sewage systems and treatment plants

The waste water sewage systems and treatment plants include the collection and transport of waste water and its purification in order to reduce the pollution levels before its discharge into rivers or the sea.

The systems and plants also constitute a public service under Spanish regulations. The operation and financing regime of this public service differs depending on the regulations of each Spanish region and in certain cases, the approaches can vary significantly between regions.

The sewage systems and treatment plants are managed by the authority that owns the infrastructure, which can be the local authorities (municipalities or associations of

municipalities) or the regional authorities (Comunidad Autónoma).

The relevant authority usually manages this public service through a private operator. The private operator will be granted with a long-term (up to 50 years) concession contract and will assume the tasks of management and maintenance of the infrastructure and fulfilment of the water pollution reduction standards, as well as the construction of infrastructure.

The source of financing of this public service is a specific tax levied by the regional authority. The regional authority will therefore assume the costs of the construction and operation of these infrastructures and will transfer the requisite funds to the company responsible for construction of the sewage infrastructure, as well as the private operators of these infrastructures.

This tax is paid by the consumers of the water, and it is calculated according to the volume of water consumed. The tax is collected by the operator of the water supply public service, who will transfer those earnings to the regional authority.

Accordingly, the waste water sewage systems and treatment plants are financed by the regional authorities, which levy a specific tax on consumers and then transfer funds originated by the aforementioned tax to the operators of the infrastructure.

In practice, the funds provided by the regional authorities are not always sufficient to ensure the adequate management of the waste water sewage system and treatment plants. This situation creates a risk that the obligations regarding the pollution reduction levels will not be fulfilled.

The reuse of regenerated waste water

The hydric stress existing in several regions of Spain has stimulated an interest in the technology that allows the reuse of waste water after a process of regeneration and purification. This technological process can be applied to waste water at the end of the treatment process provided in the sewage system and treatment plants. The so-called ‘regeneration’ of waste water is an additional process that can be applied in the waste water treatment plants and its aim is not only to ensure that the pollution reduction levels are met but also to provide a new source of water.

According to Spanish regulations, the regenerated waste water cannot be used as drinking water. However, this regenerated



water can be used for non-drinking uses, such as irrigation, industrial activities, cleaning of streets or ornamental fountains.

The allocation of regenerated waste water to these non-drinking uses could then mean that collection of water from rivers and natural resources could be preserved for drinking water. The compulsory reuse of regenerated waste water for non-drinking purposes described above is essentially a new source of water and could therefore help guarantee water supply in the future.

Despite the clear benefits of the regeneration of waste water for its reuse, there are several complications with respect to its development.

Significant investment and financing is required for the implementation of the technology for regeneration of waste water, as well as the distribution network for this water. The ability to achieve sufficient financing is uncertain for the following reasons: (1) the regeneration of waste water is, from a technological point of view, a process of the sewage system and the treatment plants, which may be already underfinanced; and (2) given that regenerated waste water is more expensive than the regular drinking water and may be perceived to be water of a lesser quality, consumers may not be willing to purchase regenerated waste water.

Therefore the commercial opportunities associated with the regeneration of waste water may be difficult to achieve without adequate financing capacity, especially if the operators of such regenerated water are to compete in the market with other water supply operators.

Overcoming the challenges of the water sector

The integrated management of water sector activities

It is submitted that the key challenges of the water sector, namely guaranteeing water supply and the fulfilment of the pollution reduction standards of waste water, could be solved through: the transformation of the regeneration of waste water as a viable and profitable economic activity; and increased financing of the waste water sewage system and treatment plants.

These two solutions do not seem plausible for as long as the water supply public service and the waste water sewage system and treatment plants are treated by public authorities as independent and separate

activities. A new integrated vision of the different activities of the water sector is required. This integrated vision could start in relation to the regeneration of waste water, which could constitute the vital link between the water supply and the waste water sewage system and treatment plants.

First, the regeneration of waste water should not compete in the market with the water supply public service operator. The regenerated waste water should be considered as another resource of the water supply public service. Therefore the private operators of the water supply public service would supply drinking water and regenerated waste water depending on the final use. The incorporation of the regenerated waste water under the umbrella of the water supply public service would mean that the local authorities and private operators would be obliged to promote the development of distribution networks for the regenerated waste water for its reuse (for industrial activities, irrigation, etc). The costs of these investments could be incorporated within the water supply public service tariff, considering that the aim of the tariff is also to contribute to the guarantee of water supply for the benefit of the whole of the public service and its consumers.

Secondly, the reuse of regenerated waste water should promote an improvement of the financing and the operation of the waste water sewage system and treatment plants. Indeed, the fulfilment of the water pollution reduction standards would be an essential technical and environmental requirement to produce regenerated waste water. Without an optimal result of the waste water purification and treatment process, regenerated water could not be reused. Therefore if regenerated waste water has to become a new source for the water supply public service, the waste water sewage system and treatment plants need to be sufficiently funded and meet the high environmental standards.

Thirdly, the earnings obtained by the reuse of regenerated waste water could be partially applied to the financing of the waste water sewage system and treatment plants. These earnings may constitute a novelty as no commercial income is generated by the waste water sewage system and treatment plants.

In conclusion, the connection between the different activities of the water sector can entail an improvement of their financing and operation, which could allow the achievement of its challenges.


WHAT COP21 MEANS FOR WATER LAWYERS

The creation of a single operator to manage the water sector

However, these benefits would only be reached if one single operator assumed the joint management of the different services. That single operator could apply the financial and technical efficiencies created by connecting the reuse of regenerated waste water with the water supply public service and the waste water sewage system and treatment plants. The operator of the water supply public service is the only one that can develop the production of regenerated waste water and the network for its distribution – the only one that can provide this water directly to the final consumers, without the economic and commercial obstacles that complicates the sale of regenerated waste water. Therefore, and additionally, it is the only one that can provide the incentives and funds created by the reuse of regenerated waste water for the sewage system and treatment plants. A single operator would then be accountable for the management of all the system and could reach the required benefits to face the challenges of the water sector.

The creation of this single operator that jointly manages all the activities of the water

sector, and the achievement of the challenges of the water sector, would require innovative and sophisticated regulatory, technological and financial solutions.

In the search of these solutions, opportunities may be found. The integrated operation of all the activities of the water sector will require significant efforts of financing in a sector where the operator holds strong earning and collecting rights –considering that the operator holds an exclusive right to develop its activity, and its earning rights are linked to the payment by consumer for the supply of water.

The challenges of the water sector can open new scenarios with attractive technological and financial projects, which may guide the evolution of the sector for the next decades.

Notes1 The collection of water from rivers and natural resources

is, in general terms, regulated by the regional authorities and/or the Spanish environmental authorities. These authorities grant rights to collect water to the local authority or to the private operator in charge of the water supply public service.

2 The tariff is calculated on the basis of the estimation of consumption of water and the estimation of costs presented by the private operator. Therefore the private operator manages the service at its own risk in the event that these estimations were not precise.

Several substantial international water initiatives were announced in December 2015 at the 21st Conference of the Parties to the United Nations

Framework Convention on Climate Change (COP21) in Paris. The announcements came as a part of a full day of water-related programming, a first for the UN climate change convention. The initiatives include the Paris Pact on Water and Climate Change signed by a large coalition of nations and public and private organisations, the Business Alliance for Water and Climate Change, and the Megacities Alliance for Water and Climate.

COP21’s focus on water is an indication that the climate change dialogue is shifting. Traditionally, climate change talks have focused on prevention efforts, primarily

limiting emissions. However, as impacts of climate change are felt around the world, topics related to adaptation and mitigation have garnered increased attention. Water-related impacts, such as drought, flood and changing precipitation patterns, are among the most palpable of these climate changes.

The newly announced COP21 initiatives devote significant attention to adaptation in the water context. Each initiative calls for gathering and sharing information, identifying and completing projects, instituting adaptive management systems of governance, and securing funds. These activities will raise a number of legal issues as they inevitably conflict with existing legal structures and expand into previously unregulated or new areas of the law.

What COP21 means for water lawyers

Eric L GarnerBest Best & Krieger, Los Angeles

eric.garner@ bbklaw.com



Paris Pact on Water and Climate Change Adaptation

The headlining initiative emerging from COP21 is the Paris Pact on Water and Climate Change Adaptation.1 The Pact aims to make water systems more resilient to climate impacts and takes a basin-level (thus often transboundary) approach. It has been signed by more than 300 nations, river basin organisations, companies, funding agencies and local governments.

Specifically, the Paris Pact endeavours to establish basin-wide knowledge networks, develop adaptive basin management plans, reinforce governance through staff training and stakeholder participation and ensure adequate financing by establishing an investment programme and sustainable financing mechanisms. To this end, the Pact invites individual commitments to strengthen water monitoring and measurement systems in basins, implement adaptation plans, promote financial sustainability and/or invest in water systems management.

Specific adaptation projects called for in the Paris Pact include ‘water efficiency programs, retention measures, modernisation of systems, reuse of treated wastewater, artificial recharge of aquifers, rainwater harvesting, [and] application of polluter-pays principle’.

To date, over US$1bn in financing and over US$20m in technical assistance has been committed to Pact projects.

Business Alliance for Water and Climate Change

The Business Alliance for Water and Climate Change initiative was launched to solicit commitments from businesses around the globe to take action to reduce the water-related risks of climate change. In a declaration released at COP21,2 the Business Alliance proclaimed that ‘without water, there will be no agriculture and thus no food security, no industry and thus no economic development’.

Participating businesses have pledged to join one or more of the Alliance’s three enumerated actions: (1) analyse and share water-related risks to implement collaborative response strategies that embed water stewardship principles; (2) measure the business’s water footprint with existing standards to identify water impacts; and (3) utilise a strategic action plan to improve

water use efficiency all along the value chain, using best available technologies. Meeting these objectives will require lawyers to advise businesses on a variety of regulatory issues.

Megacities Alliance for Water and Climate

In a call for action, the Megacities Alliance for Water and Climate declared that “climate change is water change and water is a key resource for the sustainable development for megacities and a key factor of their resilience”.3 The Megacities Alliance seeks to enhance capacity building between megacities by setting up a worldwide knowledge exchange platform and by supporting the completion of local projects. The Alliance also seeks to keep the global average temperature rise to below 1.5-2°C.

The Alliance aims to have its knowledge platform live within two years, enabling cities to report water use, share data and best practices and have dialogue about the challenges posed to water in megacities by climate change.

Participating megacities – Lagos, Buenos Aires, Chicago, Los Angeles, Mexico City, San Francisco, São Paulo, Seoul, Mumbai, Istanbul and Paris – have identified 32 projects that will address climate change and water in their localities.4 The projects target flood control, sewage management, stormwater runoff, recapture and treatment, infrastructure replacement, energy efficiency, water conservation, water recycling, sea-level rise, data collection and public education. These types of initiatives are crucial to grapple with drought and changing precipitation patterns. They will require new projects with all of the attendant construction, permitting and financing issues and will require lawyers to modify existing laws and create new ones.

Other initiatives

Other initiatives announced at COP21 include the Global Clean Water Desalination Alliance and GRAPHIC’s5 Position Paper and Call for Action on Groundwater and Climate Change.

The Global Clean Water Desalination Alliance – a 70-member, multi-stakeholder platform – is taking on the carbon footprint of desalination.6 The Alliance acknowledges that desalination is an energy-intensive process largely fuelled by fossil fuels, and that desalination capacity is expected to grow worldwide in the coming years. The Alliance has pledged to advance energy efficiency



and clean energy supply in new and existing desalination plants.

GRAPHIC’s Call for Action highlights the role of groundwater as a global water resource and the threat posed to groundwater by climate change and overuse.7 GRAPHIC calls for improved groundwater governance, adaptive groundwater management and collaboration with partners with specialised knowledge. Many countries’ groundwater laws are undeveloped and many businesses pump water from overdrafted basins. These are two areas where lawyers can contribute.

What do the COP21 water initiatives mean for water attorneys?

Each of the activities called for by the COP21 water initiatives – ie, identifying and completing projects, gathering and sharing information, and instituting adaptive management systems of governance – will require legal planning and guidance.

Water projects are crucial to climate change adaptation and mitigation. Yet successfully completing the array of water projects required to meet the challenges of climate change will require navigation of existing legal and political frameworks and, very likely, advocacy for change. For example, in many parts of the world, direct potable use of treated wastewater is prohibited, even where the water meets all safe drinking water standards.

As water projects improve the availability and reliability of water supplies, issues of water rights and priorities are likely to arise. Who, for example, will have a claim of ownership to treated wastewater or recaptured return flows? When groundwater is recharged, who owns the storage space and who has a right to pump the water back out? Who is obligated to fund projects, and how do financial contributions correlate to use of project water? How much water should be allocated to the environment?

Water conservation and water quality initiatives also raise legal questions. How does the polluter-pays model identified in the Paris Pact account for old pollution, a particularly pertinent problem in the context of groundwater basins? If strict water reductions are mandated, how are they fairly applied to water users that have already been conserving?

The COP21 water initiatives acknowledge that needed plans and projects cannot

get off the ground without public and private funding. A growing number of leading financial institutions are heeding the call and committing to integrate climate change considerations into their investment strategies.8 Public-private financing arrangements, however, have inherent risks, can involve contractual and procedural complexities, and require careful risk assessment and planning. Developing countries in particular will need guidance to understand, evaluate and attract private financing options. All of these areas provide ample opportunity for lawyers to be involved in water projects on behalf of their client.

Data on water use is often extremely limited and yet essential for water management. New technologies will allow for a significant increase in data gathering, and public and private knowledge-sharing platforms, such as those set forth in the COP21 water initiatives, will provide important access to data. Yet proprietary and privacy concerns are certain to arise and attorneys must be ready to address those issues.

Finally, as climate change inevitably causes hydrological shifts, adaptive management of water resources will be required. Implementing adaptive management, however, will challenge existing water law regimes and require stakeholder engagement. Attorneys will need to become aware of how these changes may impact their clients and determine the appropriate level of engagement to protect their clients’ interests.

Notes1 See www.riob.org/IMG/pdf/Pacte_Paris_Eng_version_

Non_COP_v17-2.pdf.2 See http://ceowatermandate.org/files/Business_

Alliance_for_Water_Declaration.pdf.3 See http://eaumega2015.sciencesconf.org/resource/

page/id/23.4 These projects are also reported in the carbonn Climate

Registry hosted by ICLEI.5 GRAPHIC is the Groundwater Resources Assessment

under the Pressures of Humanity and Climate Change, a project of the UN Educational, Scientific and Cultural Organization (UNESCO)’s International Hydrological Programme (IHP).

6 See www.circleofblue.org/waternews/wp-content/uploads/2015/12/Global-Water-Desalination-Alliance_6dec2015.pdf.

7 See www.graphicnetwork.net/wp-content/uploads/2015/11/GRAPHIC_pp20151.pdf.

8 See www.worldbank.org/en/news/press-release/2015/12/07/major-financial-institutions-move-to-integrate-climate-change.

T he 2017 IBA

Annual Conference

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As one of the world’s most

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Sydney will be an ideal location for

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What will Sydney 2017 offer you? • Gain up-to-date date knowledge of the key developments in your area of law

which you can put into practice straight away

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lawyers – attracting over 6,000 individuals in 2016 representing over 2,700 law

fi rms, corporations, governments and regulators from over 130 jurisdictions

• Build invaluable international connections with leading practitioners worldwide,

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• Hear from leading international fi gures, including offi cials from the government

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Documents

NO 2 AUGUST 2016 IBA ANNUAL CONFERENCE, …WATER LAW NEWSLETTER 1SEPTEMBER 2015 W ater Law News Newsletter of the International Bar Association Legal Practice Division NO 2 AUGUST